BWF15 v Minister For Immigration and Anor (No.2)

[2016] FCCA 764

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWF15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 764

Catchwords:
MIGRATION – Application to set aside – whether applicant has a satisfactory explanation for failing to appear – whether applicant has an arguable case of jurisdictional error – whether the Tribunal erred in making findings of fact – no arguable jurisdictional error identified – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.426A, 476

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

Applicant: BWF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2509 of 2015

Judgment of: Judge Street

Hearing date: 7 April 2016

Date of Last Submission: 7 April 2016

Delivered at: Sydney

Delivered on: 7 April 2016

REPRESENTATION

Solicitors for the Applicant: The applicant appeared in person

Solicitors for the Respondents: Ms H Musgrove
Sparke Helmore

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $950.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2509 of 2015

BWF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case under r.16.05 of the Federal Circuit Court Rules 2001 to set aside an order of this Court made on 3 February 2016 dismissing the applicant’s application for want of an appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.  At the commencement of the hearing, the Court explained to the applicant that the nature of the hearing concerned whether the earlier default order should be set aside.  The Court explained this involved first whether there was a satisfactory explanation for the failure to appear, and, secondly, whether there was a sufficiently arguable case to warrant the Court setting aside the order in the interests of the administration of justice.

2. The Court explained the procedure that would be followed in relation to evidence and submissions and the applicant confirmed that she understood the nature of the hearing. The substantive application is one for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 2 September 2015, affirming a decision of the delegate not to grant the applicant a protection visa.

3. The applicant was found to be a citizen of China, and her claims were assessed against that country.  The applicant’s claims for fear of harm arose out of her alleged practice of Falun Gong.  Before the delegate, the applicant was found not to have been a genuine Falun Gong practitioner.  The applicant’s claims in relation to being detained by the police were rejected by the delegate. 

4. The Tribunal also found that it was not satisfied the applicant or the family had been practitioners of Falun Gong, and rejected the applicant’s claims in relation to ever being detained by the police.  The Tribunal found the reasons for the loss of her business were due to the breakdown of her marriage, and nothing to do with any persecution by authorities.  It was in those circumstances the Tribunal found that the applicant did not have a well-founded fear of prosecution for a convention reason.

5. The Tribunal also found that it was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk she will suffer significant harm for the reasons claimed, or any other reason.  The Tribunal sent the applicant a letter dated 20 July 2015 to the email address identified by the applicant on her application for review, inviting the applicant to attend to give evidence and present arguments on 17 August 2015.

6. On 30 July 2015 a further letter was sent to the same email address, changing the date to 24 August 2015.  The Tribunal received a response to the invitation to hearing, which indicated the applicant needed a Chinese interpreter.  The response also identified the applicant’s telephone number being the same number as was on the application for review.

7. The Tribunal noted that an SMS reminder about the hearing was sent to the applicant on both 17 August 2015 and on 21 August 2015. It was in those circumstances that the Tribunal decided, pursuant to s.426A of the Act to proceed to make a determination of the applicant’s application. The Tribunal was entitled to proceed in the circumstances. There was no jurisdictional error in the Tribunal deciding to proceed in the circumstances of the present case to determine the applicant’s application.

8. The grounds identified in the applicant’s application are as follows:

   1. I am scared to return back to China, because there really exists the persecution targeted towards the followers of Falun Gong Cult in China. If I returned to China, 1 would certainly be monitored by the staff from the Chinese governmental department due to my pratcticing Falun Gong. Even I could be arrested and detained without any freedom or human rights in China.

   2. I did not contact any institution that support practicing Falun Gong Cult because 1 was so afraid there are Chinese spies to supervise Falun Gong practitioners in Australia as well. 1 can only practice it at home, alone.

   3. My ex-husband left me because I was detained in jail and practice Falun Gong. In china it is a shame that somebody have stayed in jail for even one second. My ex-husband cannot tolerate to live with a Falun Gong practitioner as well.

   4. AAT failed to consider my actual living condition in China and the risk I return there.

   5. 1 hope the Federal Circuit Court of Australia could consider my situation back to China and do justice for me.

9. On 22 October 2015 a Registrar of the Court made orders fixing the matter for hearing on 3 February, and providing a timetable for the applicant to file an amended application, affidavit of evidence and submissions.  No such documents were filed by the applicant.

10. The applicant’s explanation for failing to attend the hearing was entirely unsatisfactory.  The applicant’s proposition was that she forgot.  There was no communication by the applicant to the first respondent or to the Court about her failure to attend on or before the date of the hearing.  I accept the first respondent’s submission that the explanation proffered is unsatisfactory and on that ground alone I would refuse the application to set aside the order made on 3 February 2016.  The first respondent further submits that the underlying grounds do not identify any sufficiently arguable jurisdictional error by the Tribunal to warrant the making of any order setting aside the order made on 3 February 2016.

11. Ground 1 of the application seeks to cavil with the adverse findings by the Tribunal that she was not a Falun Gong practitioner.  Nothing in ground 1 identifies any arguable jurisdictional error. 

12. Ground 2 is also an assertion that the applicant is a Falun Gong practitioner, and, again, fails to identify any arguable jurisdictional error.

13. Ground 3 refers to the applicant being jailed for the practice of Falun Gong.  This appears to be a reference to the detention of the applicant, which the Tribunal rejected. That adverse finding was open on the material before the Tribunal, and cannot be said to lack an evident and intelligible justification.  Ground 3 fails to identify any arguable jurisdictional error. 

14. Ground 4 raised a reference to the applicant’s actual living condition in China.  No such claim was raised by the applicant before the delegate.  No such claim was raised before the tribunal, and no such claim arose on the material before the tribunal.  A reference to the applicant’s living conditions is not a matter that could give rise to any arguable jurisdictional error.

15. Ground 5 fails to identify any arguable jurisdictional error.  The Court has also taken into account the applicant’s affidavits.  The substance of the applicant’s affidavits are, in essence, an impermissible invitation to review the merits of the matter that were for the Tribunal to determine.  Nothing said in the affidavits of the applicant identify any arguable jurisdictional error.

16. The applicant maintained from the bar table that she could not go back to China.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error.  I am not satisfied that the interest of administration of justice require the setting aside of the order made on 3 February 2016, because I am not satisfied there is any arguable case of jurisdictional error.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 April 2016

CORRECTIONS:

(1)ORDERS – delete orders 1 and 2.

(2)ORDERS – insert:

(a)1. The application in a case is dismissed.

(b)2. The applicant pay the costs of the first respondent fixed in the amount of $950.