BUB16 v Minister for Immigration

[2016] FCCA 2720

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUB16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2720

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders dismissing application for judicial review made in the absence of the applicant – whether applicant has given a reasonable explanation for not appearing at the First Court Date – whether applicant has reasonably arguable prospects of succeeding on her application for review if the matter is reinstated – application dismissed.

Legislation:

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

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: BUB16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS

TRIBUNAL

File Number: SYG 1824 of 2016

Judgment of: Judge Manousaridis

Hearing date: 12 October 2016

Delivered at: Sydney

Delivered on: 12 October 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent:

Ms K. Hooper of

HWL Ebsworth Lawyers

ORDERS

1. The application in a case filed on 28 September 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1824 of 2016

BUB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 14 July 2016 the applicant filed an application in this Court for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister), not to grant the applicant a Protection (Class XA) visa.

2. The application was listed for a first court date before a Registrar of this Court at 10.15 am on 15 September 2016. At that time and date the applicant did not appear and a Registrar of the Court made an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing the application for judicial review.

3. On 28 September 2016 the applicant filed an application in a case.  In that application the applicant seeks the following orders:

   (a)The appeal is allowed.

   (b)The order of the Federal Circuit Court be set aside.

   (c)The matter be remitted to the Federal Circuit Court to determine according to the law.

4. In the application in a case under the heading “Affidavit/s” the application states the application in a case is supported by an affidavit of the applicant, and says that the affidavit is:

   [I]n support of Application for leave to appeal that the affidavit was filed in support of Application for extension of time and leave to appeal.

5. The application in a case contains a heading, “Why I Lodged My Application Beyond Limited Time.”  Under that heading it is stated the applicant does not often check her mailbox so she:

   …couldn’t receive the court letter of dismissing my appeal in time which caused me to lodge this appeal to the Federal Court beyond the limited time.

6. Finally there is a heading, “Grounds of Application” under which the following is stated:

   My husband and I did want a daughter because a daughter will be more attentive to us when we are sick or old. When I was pregnant, I believed it must be a daughter.

   In order to not being found by our local family planning officer, I rent a room far away from my residential.

   Unfortunately I was located by them and forced for abortion. I suffered a complete physical and emotional breakdown.

   I was deprived of the right as a mother to give birth and deprived of my dignity. I had no choice but to leave China to Australia seeking protection.

   But the Tribunal member said there was no real risk I would suffer significant harm which certifies that the tribunal member didn’t really know China “one family one child policy”.

   So the member’s decision is unfair to me, making jurisdictional error.

   The Federal Circuit Court dismissed my appeal on 15th Sept. 2016

7. It is evident that the applicant wishes to set aside the orders made by the Registrar on 15 September 2016.  It is also evident that the applicant does not understand the grounds on which this Court can set aside the Registrar’s orders.  The documents filed on behalf of the applicant are premised on the view that the appropriate means of setting aside those orders is by way of appeal.  The documents filed on behalf of the applicant also seem to be premised on the view that some time limit has not been complied with, and that an extension is required.

8. Although this Court does have power to review a Registrar’s decision, that is an exercise of original jurisdiction. The Court does not have any appellate jurisdiction. The Court, however, does have power to set aside orders made by the Court, whether by a judge or by a Registrar, which have been made in the absence of a party, and the source of that power is r.16.05(2)(a) of the FCC rules. And that rule provides that:

   The Court may vary or set aside its judgment or order after it has been entered if the order is made in the absence of a party.

9. As I indicated to the applicant, I propose to treat the application in a case as in effect being an application for an order pursuant to rule 16.05(2)(a) of the FCC Rules. Before I consider the application it will be useful to set out the principles that should guide me in determining that application.

10. The principles that govern the Court’s exercise of the power under rule 16.05(2)(a) of the FCC Rules were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship where His Honour said:[1]

    In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

    (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

    (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant

    (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

    [1] [2010] FCA 530 at [7]

11. I first turn to consider the explanation the applicant gave for not appearing at the first court date. 

12. I have already noted the applicant filed an affidavit made on 28 September.  That affidavit does not give any explanation for the applicant’s not appearing before the Court on 15 September 2016.  It purports to seek leave to appeal the orders made by the Registrar, and repeats the explanation given in the application in a case for the applicant’s not lodging an “appeal” on time.  The absence in that affidavit of any explanation I find to be due to the applicant being entirely ignorant of her having to put on affidavit evidence which discloses the reasons for which she did not appear at the first court date.

13. Before me, after making a number of statements from the bar table explaining her absence, the applicant gave evidence relevant to the reasons she did not appear at the first court date.  She says that she was unaware of the first court date. She said that she first became aware that her application had been dismissed when she was at Medicare where Medicare had access in its records to information relevant to the applicant’s immigration status in this country.  It was revealed to the applicant that her application had been dismissed, and that triggered a time period by which the applicant would be required to leave Australia.

14. The applicant gave evidence that the application which was filed with the Court was prepared and lodged by a friend whom she named, and she says that her friend failed to inform her of the first court date.  She says her friend said that the applicant should wait for a communication from the Court about the date and time of a court appearance.  Although I cannot say I found the applicant’s evidence particularly persuasive I am not prepared to disbelieve it.  There would be no rational reason why the applicant would not attend the first court date for a number of reasons, and I am prepared to assume for the purpose of this application that what she said in the witness box was true.  And by that I mean her evidence that the person who assisted her with the application did not inform her of the first court date.  That, however, does not mean her failure to attend was reasonable.

15. As an applicant, she has the responsibility to ensure that she satisfies herself about what is happening in a proceeding which she herself initiated.  This is so even if the applicant’s friend misinformed, or may have misinformed the applicant about whether there was a first court date listing.  The friend is not suggested to have been legally qualified and the documents that have been filed on behalf of the applicant which she said had been prepared by this friend certainly does not show otherwise.  At least in most cases, and this is one such case, it is not reasonable for a person in the applicant’s position to rely on a non-qualified person for assistance in the conduct of litigation in this Court.

16. In any event, I propose to place no weight on what I have found to be the absence of a reasonable explanation for the applicant’s non-attendance.  The determinative factor is whether there would be any utility in my setting aside the Registrar’s orders. And by that I mean whether the application the applicant filed contains grounds for which there are reasonable prospects of success.  To consider that question it is necessary for me to set out the claims for protection the applicant made before the Tribunal, and the reasons for which the Tribunal did not accept those claims. 

17. The applicant is a national of the People’s Republic of China.  In her application for a protection visa the applicant claimed that even though she and her husband had a son they also wanted a daughter.  When the applicant became pregnant she was concerned that family planning officers would discover that fact and coerce her into having an abortion.  To avoid that possibility the applicant decided to move from the family home and rent another apartment some distance from the family home. 

18. Almost two months after she moved to the apartment the local street committee cadres and family planning officers visited the applicant’s family home for the purpose of conducting a pregnancy screening examination on the applicant.  The applicant’s husband informed the cadres and the officers that he and the applicant had fallen out, and that the applicant had left him.  About one month later, however, the family planning officers discovered the applicant’s whereabouts.

19. The officers visited the applicant at her apartment.  She was forcibly taken to the hospital and was forced to have her child aborted.  The applicant claims she suffered a complete physical and emotional breakdown.  She also claimed that there is no safeguard in China of her human rights and she had no other choice but to leave China for a democratic and free country. 

20. Before the Tribunal the applicant claimed she feared the government would confiscate her property and persecute her. The applicant said she had been told that she would be fined 50,000 yuan by the family planning officer because the applicant had an out of plan pregnancy.  The applicant also claimed that she and her husband were harassed over the phone to pay the fine, and that her husband’s car had been towed away because the fine had not been paid. 

21. The Tribunal accepted most of the applicant’s claims.  The Tribunal accepted the applicant fell pregnant, that she leased premises to avoid family planning officers conducting a pregnancy screening examination, and that she was forcibly examined and forced to abort her child. The Tribunal, however, did not accept that the applicant had been harassed over the payment of a fine or that the husband’s car had been confiscated.  The Tribunal considered it significant that those claims were introduced at the hearing when the Tribunal asked the questions about the likelihood of the applicant suffering harm if she were to return to China.  The Tribunal also relied on the applicant’s evidence that her husband encountered no problems at his workplace.  Her son experienced no interruption to his schooling as a result of her pregnancy or forced abortion or non-payment of any fine, and the applicant’s husband and son continued to live in the family home.

22. The Tribunal also did not accept the applicant had been fined.  The Tribunal asked the applicant whether she had proof that a fine had been imposed.  The applicant said that there was a demand letter in China.  The Tribunal invited the applicant to produce the letter within 14 days of the hearing but, according to the Tribunal, no letter was produced, and the applicant made no request for further time to produce such letter.  The Tribunal also noted it was aware of no information to the effect that women who have been subjected to a forced abortion are also subjected to a fine. In any event, the Tribunal was not persuaded the applicant would be unable to pay the fine if one were imposed. 

23. The Tribunal also considered whether the applicant was owed protection obligations on the ground that she is a single woman.  The Tribunal saw that claim arising because the applicant informed the Tribunal that she had separated from her husband.  The Tribunal found the applicant did not have a well-founded fear of persecution on the ground of being a single woman. The Tribunal relied on the law of China that provided for equal rights for women.  There was nothing to suggest the applicant would suffer domestic violence and before the applicant visited Australia she worked as a marketing supervisor and there was nothing that suggested the applicant could not obtain a similar position if she returns to China as a single woman. 

24. The Tribunal also considered whether the applicant had a complete physical and emotional breakdown. Although the Tribunal accepted that the circumstances she endured when she was forced to abort her child were traumatic, it was not satisfied the applicant had a medical condition, such that returning to China would place her at risk of any harm or that it could not be adequately treated in China on her return. 

25. The Tribunal therefore concluded the applicant did not have a well-founded fear of persecution if she returns to China now or in the reasonably foreseeable future.  The Tribunal also was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that she will suffer significant harm.

26. I then turn to the grounds of application stated in the application.  These are as follows.

    I and my husband shared a wish that our first born child would be a boy followed by a daughter. We both believed that a daughter would be more attentive to us when sick and old. On 2 Oct. 2013 I experienced pregnancy symptoms and I firmly believed I would have a daughter.

    In order to not being found by our local family planning officers, we rent a one bedroom unit far away from my resident under the name of Fan Juanjuna, a friend of my husband.

    Unfortunately, I was found and to take to hospital for a pregnancy screaming examination, then forced for abortion on 5 Jan. 2014.

    I suffered a complete physical and emotional breakdown.

    I hated the brutality of a government that could do such a thing. I was deprived of the right as a mother to give birth and deprived of my dignity.

    There is no safeguard of human right in China and I had no choice but to leave China to Australia seeking protection.

    The Member of the Tribunal said: “The Tribunal is not satisfied that there is substantial ground for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is real risk she will suffer significant harm.” No.52 of DECISION”

    I have suffered the harm of abortion in China. If I was forced back to China and pregnant, I will firmly be forced for abortion again.

    Given above the ground, I think the member of the Tribunal made jurisdictional error while making the decision of refusing my application.

27. These grounds do not disclose any arguable ground of jurisdictional error and, for that reason, have no reasonable prospects of success.  The grounds repeat the substance of the claims the applicant made to the Tribunal and expresses disagreement with the Tribunal’s conclusion that it was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk she will suffer significant harm.

28. These grounds were interpreted to the applicant before me and I invited the applicant to make submissions.  The applicant said the Tribunal had accepted that she had been harmed and that she will continue to be harmed if she returns to China because of her previous record but the Tribunal did not accept that. This submission discloses no arguable case for jurisdictional error and therefore discloses no reasonable prospects of success.  If I were to set aside the orders of the Registrar, the submission, just like the grounds contained in the application, goes no further than expressing disagreement with the Tribunal’s findings.

29. The Tribunal’s reasons for decision shows beyond argument that the Tribunal understood the applicant’s claims, asked the applicant questions about those claims and considered those claims in the light of the evidence the applicant gave.  It is beyond argument that the Tribunal’s findings were reasonably open to it for the reasons it gave.

30. As I informed the applicant, the jurisdiction of this Court, when challenges are made to decisions of the Tribunal based on that Tribunal’s affirming decisions of delegates not to grant applicants protection visas, is limited.  The Court does not have power to consider whether an applicant before it satisfies the relevant criteria for the grant of a protection visa.  The Court’s jurisdiction is limited to considering whether the Tribunal has undertaken its tasks of reviewing a delegate’s decision according to law, having regard to the grounds on which the Tribunal’s decision is sought to be challenged.

31. Given I have found that the grounds contained in the application would have no reasonable prospects of success if I were to set aside the orders made by the Court on 15 September 2016, it follows, in my opinion, there would be no utility in setting aside the orders that were made on that day.  It therefore also follows that the application in a case filed by the applicant on 28 September 2016 must be dismissed and I propose to make that order. 

32. The Minister applies for an order that the applicant pay costs in the amount of $1,500.  The respondent says she cannot afford that amount.  That is no reason for the Court not making an order for costs or for costs not following the event.  In my opinion, $1,500 is a reasonable amount, and I propose to make an order that the applicant pay the first respondent’s costs set in that amount.  

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 21 October 2016