BOW15 v Minister for Immigration

[2016] FCCA 2814

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2814

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Migration Act 1958 (Cth), s. 36(2)(a), 36(2)(aa)

Applicant: BOW15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2138 of 2015

Judgment of: Judge Manousaridis

Hearing date: 20 October 2016

Delivered at: Sydney

Delivered on: 20 October 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Mr J. Palte of
Clayton Utz

ORDERS

1. The application for an adjournment is dismissed.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

3. The applicant pay the first respondent’s costs in the amount of $3,416

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2138 of 2015

BOW15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application for review the applicant seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.

2. Whether the Minister is correct in his submission requires me to identify the claims for protection the applicant made before the Tribunal, and the Tribunal’s reasons for not accepting those claims.  The claims the applicant made before the Tribunal are as follows.

3. The applicant and his wife have one son.  The applicant’s wife wanted to have a second child, particularly a daughter, who would be more considerate of a mother’s needs.  In March 2012 the applicant’s wife informed the applicant she was pregnant. To keep the applicant’s wife’s pregnancy secret from the cadres of the Family Planning Office, the applicant and his wife arranged for the applicant’s parents to look after their son and for the applicant and his wife to move and rent a room in Tianjin.  In June 2012, as he was returning to his room from work, the cadres from the town Family Planning Office came in a van.  One of the cadres told the applicant he knew the applicant’s wife was pregnant.  The applicant and his wife were taken to a hospital for a pregnancy examination of the applicant’s wife.  The wife’s child was aborted.  “These persons” then proposed to “impose a surgical sterilisation” of the applicant.  The applicant fled to avoid that occurring.

4. The Tribunal did not believe the applicant was telling the truth about the circumstances that led to his departing from China, or the reasons the applicant gave for claiming he fears to return to China.  The Tribunal found the applicant to be “a very unimpressive witness”, that the evidence the applicant gave at the hearing contained “many inconsistencies”, he made inconsistent statements at different times, and elements of his account were “highly implausible.”  In summary, the Tribunal relied on the following matters: 

   a)First, the applicant gave to the Tribunal dates of his marriage, his wife’s birthday, and the date of his son’s birth, which were different from the dates he gave in his application for a protection visa. 

   b)Second, the reason the applicant gave to the Tribunal for his obtaining a passport in January 2012 was different from the reason he gave to the delegate.  The reason the applicant initially gave to the Tribunal was that his wife was pregnant and he and his wife were worried about the consequence of breaching family planning regulations, and he obtained the passport in case he had to flee. The applicant changed his evidence to say that his wife was not pregnant at the time he applied for his passport but she had said by that stage that she wanted a baby.  Before the delegate, however, the applicant said that the passport is a document they need in China occasionally. 

   c)Third, the applicant said his wife did not tell him when the baby was due or how advanced she was in her pregnancy.  The Tribunal, in substance, found implausible the applicant’s explanation about how the family planning officials became aware the applicant’s wife was pregnant.  The applicant said that the official’s asked around the wife’s village, but that the applicant and his wife escaped to Tianjin.  The Tribunal member said she found it hard to believe that a team of family planning officials from another area would have been sent on a four to five-hour drive to Tianjin to take the applicant and his wife for a forced termination in circumstances where it was not clear how they knew the applicant’s wife was pregnant, and in the absence of a test or examination to confirm the pregnancy.

   d)Fourth, there was a delay in the applicant’s applying for a protection visa.  The applicant applied 18 months after he arrived in Australia. The Tribunal did not accept the applicant’s explanation for the delay. 

5. The Tribunal therefore concluded the applicant satisfied neither criteria specified in s.36(2)(a) of the Migration Act 1958 (Cth) (Act) and s.36(2)(aa) of that Act.

6. I will now turn to the grounds of application.  These are as follows (errors in original):

   My wife was pregnant on 6 Mar. 2012. We decided to escape to Tianjin City in order to avoid of being located by family planning officials. But, unfortunately she was found at last and took back for abortion on 2 June 2012. I learnt that they were going to take to for sterilisation. I had to leave to Australia.

   The Tribunal member didn’t believe that the China family planning officials would locate my wife staying in another city. They didn’t know the great capability of the China family planning officials. Because they can search any one they want by means of the computer system of the Public security Ministry.

   Due to lacking mastering of the China true condition, the Tribunal member made wrong decision, making jurisdictional error.

7. These grounds were interpreted to the applicant, who is not legally represented, and I invited the applicant to make submissions in relation to those grounds and in relation to anything else he might wish to say.  The applicant said he wished to make no submission about and in relation to the grounds set out in the application.  The applicant also made no other submissions. 

8. The matters stated in the first paragraph of the grounds of application raise no arguable case of jurisdictional error.  Those matters do no more than repeat the claims for protection the applicant made before the Tribunal. 

9. As I was delivering this part of my judgment, the applicant asked if he could say something.  I permitted the applicant to say what he wished to say.  The applicant said that he wanted to obtain the audio recording of the hearing before the Tribunal.  I asked the applicant why it was that he only thought of asking for the audio recording now.  He said that he had only just thought of it now. 

10. A dialogue ensued between me and the applicant about his request for the audio recording of the hearing before the Tribunal.  I think he accepted that he appeared on the first court date in this matter on 3 September 2015; and he appeared with the assistance of an interpreter.  His accepting that accords with the court record of the listing on that day, although, the applicant says he cannot remember the orders that were made.  A Registrar did make directions on 3 September 2015, one of which was that the applicant file and serve any affidavit containing additional evidence on which the applicant wished to rely, including any transcript of the tribunal hearing. 

11. The only explanation by the applicant why he has not complied with that direction,  as I recall what he said, was that he had forgotten about it.  I asked the applicant what it was that he intended to do with the audio recording.  He said he intended to listen to its contents.  When I asked him to what end, he said, “To see if there is something.” 

12. In effect, the applicant’s disrupting my delivering my judgment, is an application for an adjournment. In order to grant an adjournment, the court must be satisfied of two things.  The first is whether there is a reasonable explanation for why an adjournment is required, and the other is whether there would be any utility in granting the adjournment.  The explanation the applicant has given for not having obtained an audio recording or a transcript of the hearing before the Tribunal, is unacceptable.  The application was filed on 31 July 2015, and directions were made on 3 September 2015.  That is over one year ago.  The applicant has had more than an ample opportunity to obtain whatever material he considers necessary in order for him to have prepared for the application that is before me today. 

13. When I turn to utility, none has been demonstrated.  The applicant has only said that he wants to listen to the tape, to see if there is something.  The applicant does not appear to have sought legal advice in relation to his application to date.  He did not indicate that he proposed to obtain legal advice.

14. Given these matters, there is little probability that the applicant’s being given an adjournment, for the purpose of the applicant listening to the audio recording of the hearing before the Tribunal, would result in any benefit to him.  The probability is that it would only result in further delay, and expense to the Minister.  For those reasons, the application for an adjournment, for the purpose of the applicant being given an audio recording of the Tribunal, is dismissed. 

15. I will now return to delivering the judgment before I was interrupted.  I was dealing with the matters stated in the first paragraph of the grounds of application.  I think I have already said that they raise no arguable case of jurisdictional error because the grounds do no more than repeat the claims for protection the applicant made before the Tribunal.  This Court has no jurisdiction to determine whether the applicant has a valid claim for a protection visa. 

16. The second paragraph of the grounds of application asserts the Tribunal did not believe that China’s Family Planning Officials would locate the applicant’s wife staying in another city.  And the Tribunal did not know the great capability of China’s Family Planning Officials. This too raises no arguable case of jurisdictional error.  It goes no further than expressing disagreement with the Tribunal’s not accepting the applicant’s evidence concerning the Family Planning Officials becoming aware of the applicant’s wife’s pregnancy and of where the applicant claimed he and his wife had moved to.  It is beyond argument that it was reasonably open to the Tribunal, for the reasons it gave, not to accept the applicant’s evidence on that point. 

17. The third paragraph of the grounds makes two claims.  One is that the Tribunal lacked mastery of the true condition in China.  That discloses no arguable case. It is beyond argument that the Tribunal was under no obligation to acquire mastery of the situation in China, whatever that may mean.  It is beyond argument that the Tribunal’s obligation was to consider the claims the applicant made on the basis of the evidence that was before the Tribunal. 

18. The second claim made in the third paragraph of the grounds of application is that the Tribunal made the wrong decision.  That raises no arguable case of jurisdictional error. This Court does not have jurisdiction to determine whether the Tribunal was correct in not accepting the applicant was a credible witness.  It is without doubt that these were matters entirely within the jurisdiction of the Tribunal to determine.

19. It is beyond argument that, on the material that is before me, the Tribunal understood the applicant’s claims.  It questioned the applicant about his claims.  It considered his claims but, unfortunately for the applicant, it did not accept that he was a witness of truth or at any rate a witness to whom credit could be given.  It is also beyond argument that the conclusions the Tribunal reached were reasonably open to it, for the reasons that it gave.

20. For these reasons, therefore, I am satisfied that the application raises no arguable case for the relief it seeks, and I propose to order that the application be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 31 October 2016