Bte15 v Minister for Immigration

[2016] FCCA 1001

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTE15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1001

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – dismissal of show cause application on account of the non appearance of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.36

Cases cited:
AMA15 v Minister for Immigration [2015] FCA 1424
SZGIZ v Minister for Immigration [2013] FCAFC 71

Applicant: BTE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2397 of 2015

Judgment of: Judge Driver

Hearing date: 28 April 2016

Delivered at: Sydney

Delivered on: 28 April 2016

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2397 of 2015

BTE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 August 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the matter are set out in the Minister’s outline of legal submissions filed on 15 April 2016.    

2. The applicant is a male citizen of China who arrived in Australia on 28 October 2008 as the holder of a business (Short Stay) subclass 456 visa.  The applicant first applied for a protection visa on 17 November 2008 (first application).[1]  A delegate of the Minister refused to grant the applicant a protection visa on 6 February 2009.[2]  The applicant subsequently applied to the Tribunal for review of the delegate's decision which was affirmed on 7 May 2009.[3]

   [1] Court Book (CB) 1-26.

   [2] CB 27-35.

   [3] CB 36-41.

3. The applicant lodged a second protection visa application on 4 December 2013 (second application).[4]  The applicant claimed to fear harm in China from creditors as he has borrowed money, from family members due to his failed marriages and because he will not be able to find a job in China or receive government support. 

   [4] CB 42-90.

4. On 25 June 2014 a delegate of the Minister refused to grant the applicant a protection visa.[5]  The applicant applied to the Tribunal for review of this decision on 21 July 2014.[6]  The applicant attended a hearing before the Tribunal on 30 July 2015.[7] 

   [5] CB 123-136.

   [6] CB 137-142.

   [7] CB 162-165.

5. The Tribunal made a decision on 3 August 2015 affirming the decision not to grant the applicant a protection visa.[8]

   [8] CB 175-180.

The decision of the Tribunal

1. The Tribunal found that, applying the Full Federal Court decision in SZGIZ v Minister for Immigration[9] (SZGIZ) it was required to confine its decision to in respect of the applicant to consideration against the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[10] 

   [9] [2013] FCAFC 71.

   [10] see [12]. It is submitted that this reveals no error, see AMA15 v Minister for Immigration [2015] FCA 1424.

2. The Tribunal found that the applicant's claims were not credible.[11]  The Tribunal noted that the applicant had not maintained a claim from his first application to fear harm in China for reason of not obeying the rules during his military service.[12] 

   [11] see [13].

   [12] see [11].

3. The applicant claimed he was addicted to gambling such that he only had enough money left for living expenses despite his debts in China.  The Tribunal found this claim was not credible because he had not raised this claim until the Tribunal hearing and it was implausible that if he was addicted to gambling that he would have the capacity to limit it to save for living expenses.[13]  Further the Tribunal found that the applicant's claim to be supporting his mother and son was inconsistent with his claim to only have sufficient funds for living expenses.[14]  The Tribunal also found that the applicant had not provided any corroborative evidence of his gambling addiction.[15]

   [13] see [14]-[16].

   [14] see [17]

   [15] see [18]

4. The Tribunal did not accept the applicant's claim that he will be pursued by loan sharks for repayment of loans in relation to a failed business venture.[16]  The Tribunal did not accept that a loan shark would wait from 2003 to 2008 before taking any action against the applicant on the basis of a letter which the applicant had showed the loan shark.[17]  The Tribunal also found that the applicant's evidence that his son went to New Zealand with classmates was inconsistent with his claim that his son went to New Zealand due to harassment from the loan shark.[18] 

   [16] see [19] and [25]

   [17] see [21]-[23]

   [18] see [24]

5. The Tribunal noted that the applicant failed to address his claim about harm from family members due to his failed marriage at the hearing until it was raised with him, at which point the applicant indicated it could be disregarded.[19]  In any event the Tribunal made a finding that the applicant would not suffer significant harm for this reason.[20]

   [19] see [26]

   [20] see [27]

6. In relation to the applicant's claim that he will not be able to get a job in China or access the welfare system, the Tribunal did not accept that his family would not support him in light of evidence about his own efforts to support his mother and son.[21]

   [21] see [28]

7. In concluding that the applicant's claims were not credible the Tribunal found that the applicant was not at a real risk of significant harm.[22]

   [22] see [29]-[30]

8. The show cause application was filed on 1 September 2015 together with a supporting affidavit.

9. Nothing further has been filed by or on behalf of the applicant.  The matter came before a registrar on 8 October 2015 who made orders by consent preparing the matter for a hearing today.  Relevantly, order 6 stated that the substantive application be listed for a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) at 2.15 pm on 28 April 2016 before me. There was no appearance by or on behalf of the applicant when the matter was called. The matter has been called twice and on each occasion there was no answer to the call. There is no explanation for the applicant’s non-attendance.

10. Before I came on the bench my associate attempted to contact the applicant on his nominated mobile telephone number with the assistance of the interpreter.  That attempt was unsuccessful.  The mobile telephone had been turned off. 

11. I received an affidavit by Cassandra Iling Nguyen made on 28 April 2016.  Annexed to that affidavit is a copy of a letter from the Minister’s solicitors dated 15 April 2016 to the applicant at his nominated address for service.  A letter enclosed a copy of the Minister’s outline of submissions and reminded the applicant of the hearing fixture details.  Importantly, the letter warned the applicant that if he failed to attend the Minister may seek to have the matter dismissed with costs for that non-appearance.  Also annexed to the affidavit is a courier delivery receipt.

12. In the circumstances I am persuaded that the appropriate course is to dismiss the application on account of the applicant’s non-appearance.

13. I will order that, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules, the application be dismissed.

14. I will further order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

15. I will further direct that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

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

Associate: 

Date:  3 May 2016