BJL17 v Minister for Immigration and Anor (No.2)

[2018] FCCA 789

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJL17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 789

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the Tribunal failed to consider the applicant’s commitment to religion – whether the Tribunal failed to consider the applicant’s statements – no utility in setting aside previous order – application in a case dismissed.

PRACTICE & PROCEDURE – Application for reinstatement of proceedings – where the proceedings were dismissed for nonappearance – application for reinstatement dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), ss.36, 476

Applicant: BJL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 989 of 2017

Judgment of: Judge Street

Hearing date: 29 March 2018

Date of Last Submission: 29 March 2018

Delivered at: Sydney

Delivered on: 29 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Zinn
Mills Oakley

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s further costs fixed in the amount of $600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 989 of 2017

BJL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. These proceedings were commenced on 31 March 2017 seeking an order within this Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) for a Constitutional writ in response to the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 March 2017 affirming a decision of the delegate made on 25 June 2015 to refuse the applicant a protection (Class XA) visa.

2. The applicant is a citizen of China who was granted a class TU subclass 571 student visa on 23 February 2008. The applicant arrived in Australia on 22 March 2008 using a passport issued in her name. The applicant was granted a further subclass 571 student visa on 14 May 2008. The applicant’s visa ceased on 25 January 2011. It was not until 10 June 2014 that the applicant applied for a protection visa.

3. On 25 June 2015, the delegate made adverse findings in relation to the applicant’s credibility and did not accept the applicant’s claim in relation to her alleged fear of harm by reason of being a practitioner of I-Kuan Tao and found the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal’s decision

1. The applicant applied to the Tribunal for review on 20 July 2015. By letter dated 5 October 2015, the applicant was invited to attend a hearing on 23 November 2016. The applicant appeared on the date to give evidence and present arguments. On 15 March 2017, the Tribunal delivered reasons affirming the decision of the delegate.

2. The Tribunal in its findings expressly found it did not accept the applicant and her immediate family members were I-Kuan Tao believers. The Tribunal found the applicant was not able to give a plausible description of her experiences and her observations of the family’s I-Kuan Tao practice and that her evidence was vague and she could not give direct, first-hand evidence of matters which she claimed she had experienced from a very young age. The Tribunal noted that when asked to describe the practices the applicant stated that the praying rituals were confidential and not disclosed to outsiders. The Tribunal found the applicant’s inability to describe the family’s practice in any detail meant that she and her family members were not I-Kuan Tao practitioners in China.

3. The Tribunal identified significant inconsistencies and deficiencies in relation to the applicant’s evidence. The Tribunal set out in detail those inconsistencies, including the failure by the applicant to mention significant incidents in her written statement. The Tribunal found the applicant had a strong desire to stay in Australia after she ceased studying and did not accept the applicant has a genuine interest in I-Kuan Tao or has a genuine belief in its principles.

4. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for any of the reasons she claimed. The Tribunal found there is no real chance that the applicant will face serious harm for one or more of the reasons set out in the Refugees Convention or for any other reasons, if she returns to China now or in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) of the Act or s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. The proceedings in this Court were the subject of orders made by another Judge standing the matter into a call over list and making orders providing the applicant with an opportunity to file an amended application, and affidavit evidence on which the applicant wished to rely and also made orders for the filing of submissions to occur in a time sequence before the hearing date. No such documents were filed by the applicant.

2. On 11 October 2017, this Court made orders fixing the matter for hearing and granting liberty to apply. Those orders were forwarded to the applicant’s residential address identified on the applicant’s initiating application, being the same residential address that the applicant had identified before the Tribunal. There was also sent to the applicant’s residential address a letter by the first respondent on 1 December 2017, reminding the applicant of the hearing date and foreshadowing an application for the proceedings to be dismissed with costs if the applicant failed to appear. The applicant failed to appear at the hearing date on 11 December 2017 and the proceedings were dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”).

3. An interlocutory application was filed on 22 March 2018 seeking an order under r 16.05(2)(a) of the Rules to set aside the order made in default of the non-appearance of the applicant. At the commencement of the interlocutory hearing, the Court explained to the applicant that the Court was hearing the application in a case to set aside the order made by the Court in the absence of the applicant. The Court explained that there were two material issues that the Court was considering. First, the applicant’s explanation for failing to appear and secondly, the utility of making an order setting aside the application and in that regard, whether the applicant had an arguable case of relevant error by the Tribunal. The Court explained that the relevant error had to be either an excess of statutory power or denial of procedural fairness. The Court explained in summary that this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair. The Court explained that it would also take into account the grounds in the applicant’s application in considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair.

4. The Court explained to the applicant that it would firstly have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

5. Whilst the applicant’s affidavit in support of the application did not so explain, the applicant asserted from the bar table that she did not receive either of the letters sent in October or December and that she was unaware of the hearing date. The applicant confirmed that she was residing at the address to which the letters were sent and suggested someone else may have taken the letters and pointed out that she also had a PO Box to which correspondence had been sent in the past. The applicant’s explanation for the failure to receive the letters is not satisfactory. However, the real issue in the present case are the merits of the application and whether there would be any utility in setting aside the ordinance of the Court.

6. From the bar table, the applicant maintained that she was a believer in I-Kuan Tao and that she was not believed, and that that may have been due to her limited capacity of expressing herself. There is nothing in the Tribunal’s reasons to suggest that the applicant had any difficulty in understanding the Tribunal, in expressing herself, or in participating in the hearing before the Tribunal.

7. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal made adverse credibility findings in relation to the applicant’s claims, identifying logical and rational reasons in support of those adverse credibility findings that were open on the material brought before the Tribunal. The delegate had also made adverse credibility findings in relation to the applicant’s claims. The oral submissions by the applicant do not identify any arguable case of jurisdictional error.

8. The grounds in the application appear under both of the headings “Orders sought” and the heading “Grounds of the application”. Those grounds as considered are as follows:

   Orders sought by the Applicant:

   1. I don’t think DIBP and AAT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of my religion in Australia.

   2. DIBP and AAT’s did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3. AAT failed to prudently consider my risk if I return to origin.

   4. AAT’s failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

   The Grounds of the Application are:

   1. I am a Chinese citizen and believe in I-Kuan Tao. I have strong fears for being persecuted and threatened by Chinese authority due to my involvement with I-Kuan Tao, and have a fear of return to origin.

   2. I have been actively involved in I-Kuan Tao activities. My action and performance has been evidenced by my I-Kuan Tao fellows.

   3. AAT unreasonable suspect of the truthfulness of my clams just because of the absence of the evidence.

   4. I do not think that I have been fairly treated by DIBP & AAT.

Orders sought by the Applicant

Particular 1

1. In relation to particular 1, the applicant contends that the Tribunal’s decision was unfair or unreasonable because the Tribunal failed to take into account the applicant’s commitment of religion and ignored the applicant’s background and practice in Australia. The Tribunal comprehensively considered the applicant’s background and set out her claims in relation to her practice in Australia. The Tribunal identified a number of inconsistencies in the applicant’s evidence and was not satisfied the applicant was a genuine I-Kuan Tao follower. Those findings were open to the Tribunal on the available materials for the reasons given by the Tribunal.

2. To the extent that the applicant alleges the Tribunal’s decision was unreasonable, the reasons given by the Tribunal were rational and logical and cannot be said to lack in evident and intelligent justification. The adverse credibility findings were not based on minor or trivial inconsistencies. No arguable case of jurisdictional error is made out by particular 1 of the orders sought.

Particular 2

1. In relation to particular 2, the applicant asserts that the Tribunal did not consider the applicant’s statement and comments at the hearing and judged her faith by knowledge instead of her real practice and fear. This ground takes issue with the adverse factual findings made by the Tribunal that were open for the reasons given by the Tribunal. The Tribunal expressly considered the applicant’s claims and did not determine the matter by application of a doctrine of faith or stereotype.

2. The Tribunal provided cogent and logical reasons for finding the applicant was not a genuine I-Kuan Tao follower. Those findings included taking into account the identified inconsistencies in the applicant’s evidence and her lack of demonstrated knowledge about the practice. That lack of knowledge was a relevant factor to take into account and was not the sole basis upon which the Tribunal concluded that the applicant was not a person of credibility. No arguable jurisdictional error as alleged in particular 2 of the orders sought is demonstrated.

Particular 3

1. In relation to particular 3, the applicant submitted that the Tribunal failed to prudently consider the applicant’s risk if she returned to China. This in substance, invites the Court to engage in impermissible merits review. No arguable jurisdictional error is demonstrated by particular 3 of the orders sought by the applicant.

Particular 4

1. In relation to particular 4, this is a generalised assertion that the Tribunal failed to consider the applicant’s statements, explanation and evidence. No aspect of the applicant’s evidence or statements has been identified as being overlooked by the Tribunal and it is not apparent that the Tribunal overlooked the applicant’s claims and evidence. The Tribunal made comprehensive adverse findings dispositive of the applicant’s claims. On the face of the material before the Court, there was no failure by the Tribunal to consider any of the applicant’s claims. Particular 4 of the orders sought fails to demonstrate any arguable jurisdictional error.

Grounds of the application

1. Grounds 1 and 2 repeat the applicant’s claims and do not identify any arguable jurisdictional error.

2. Ground 3 takes issue with the adverse credibility findings of the Tribunal, which were open to the Tribunal for the reasons earlier given.

3. Ground 4 asserts the applicant was not treated fairly. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of review and the applicant had a real and meaningful hearing. There is no arguable case of jurisdictional error apparent in relation to the conduct of the review. The Court finds grounds 1 to 4 also fail to identify any arguable case of jurisdictional error.

4. The Court accepts the submission of the first respondent that the merits of the application are sufficiently lacking to warrant an order reinstating the proceedings. The applicant’s grounds have no reasonable prospect of success as there has not been any arguable case of jurisdictional error identified either in the grounds in the application, or from anything said by the applicant at the bar table.

5. Accordingly, there would be no utility in setting aside the order made by this Court on 11 December 2017. The Court is not satisfied that a satisfactory explanation has been provided for setting aside the orders that were made in default of appearance by the applicant and is not satisfied that there would be any utility in doing so. The Court is not satisfied that the interests of the administration of justice warrant setting aside the orders.

6. Accordingly, the application in a case is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  23 April 2018