BXD15 v Minister for Immigration and Anor (No.2)
[2016] FCCA 2170
•23 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXD15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 2170 |
| Catchwords: PRACTICE & PROCEDURE – setting aside previous Court order pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) – whether the applicant’s explanation for non-appearance at the previous hearing was adequate – whether there was any merit in the applicant’s initiating application –inadequate explanation – no merits found in the initiating application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Cases cited: Spencer v The Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | BXD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2568 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 23 August 2016 |
| Date of Last Submission: | 23 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the First Respondent: | Ms N Maddocks DLA Piper Australia |
ORDERS
The application in a case is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $2,200.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2568 of 2015
| BXD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 28 August 2015, affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of China. On 13 October 1998, the applicant arrived in Australia as the holder of a Temporary Business Visitor visa. That visa expired on 13 November 1998. Two days prior to the expiry of the business visa on 10 November 1998, the applicant lodged his first application for protection. That application was refused by a delegate of the first respondent on 21 December 1998. On 22 January 1999, the applicant sought review of that decision by the Refugee Review Tribunal. On 28 May 1999, the Refugee Review Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. On 19 July 1999 the applicant lodged a request for Ministerial intervention. On 26 October 1999, the applicant was notified that the Minister would not intervene in his case.
The applicant remained in Australia without a visa and worked unlawfully from 26 October 1999 to 18 February 2014. On 6 February 2014, the applicant lodged a second application for protection on the grounds of complementary protection pursuant to s.36(2)(aa) of the Act.
The applicant claimed to fear harm in China by reason of his practice of I-Kuan-Tao. The applicant alleged that a man had baptised him into the faith and that he had been contacting the man and asking him to help the applicant to establish the faith in Australia. The applicant also alleged that the man had subsequently been arrested and investigated by the Chinese authority.
On 24 June 2014, the delegate refused the applicant’s second application for protection. The delegate identified various credibility concerns that the delegate had in relation to the applicant’s evidence and noted the inconsistencies in the applicant’s evidence. The delegate was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that the applicant would be subject to significant harm.
On 25 July 2014, the applicant lodged an application for review of the delegate’s decision by the Tribunal. By letter dated 29 May 2015, the applicant was invited to attend a Tribunal hearing on 29 June 2015. That hearing was subsequently rescheduled to 21 August 2015. The applicant attended the Tribunal hearing on that date to give evidence and present arguments.
The Tribunal identified the relevant law and summarised the applicant’s claims and evidence. In considering the applicant’s claims, the Tribunal correctly confined itself to the complementary protection criterion under s.36(2)(aa) of the Act. The Tribunal found that the applicant was not a witness of truth. The Tribunal found that the applicant’s account of events on which his protection claims were based was false. The Tribunal gave detailed reasons in relation to the adverse credibility findings which were open to the Tribunal on the material before it.
Those adverse credibility findings cannot be said to lack an evident and intelligible justification. The Tribunal found the applicant’s claims in relation to being introduced to I-Kuan-Tao by another Chinese national, the applicant’s practice of that belief system, and the materials the applicant provided in support of that claim to be false.
The Tribunal found that there was not a real risk that the applicant would suffer significant harm if he returns to China. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there was a real risk the applicant would suffer significant harm. Accordingly, the Tribunal found that the applicant failed to satisfy the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.
On 29 October 2015, a Registrar of the Court provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions. On 26 February 2016, this Court fixed the matter for a show cause hearing on 3 June 2016 and provided the applicant with an opportunity to file any amended application or affidavit evidence on which the applicant wished to rely.
On 3 June 2016, the applicant failed to appear before the Court and the proceedings were dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). On 23 June 2016, the applicant filed an Application in a Case, seeking to set aside, pursuant to r.16.05 of the Rules, the order that the Court made on 3 June 2016 (“the Earlier Order”).
At the commencement of today’s hearing, the Court explained to the applicant that the hearing was to determine whether the Earlier Order should be set aside and whether there was any utility in doing so.
The Court explained to the applicant that in considering whether the Earlier Order should be set aside, the Court would consider whether there was a satisfactory explanation for his failure to appear. The Court also explained to the applicant that in considering whether or not to set aside the Earlier Order, the Court would take into account the merits of his originating application. The Court explained to the applicant that in considering whether the originating application has merit, the Court has to be satisfied that there is a reasonable argument that the Tribunal’s decision was affected by a relevant legal error.
The Court further explained that the relevant legal error by the Tribunal had to be either an excess of its statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or unfair. The Court explained to the applicant that if the Court was satisfied that there is an adequate explanation for his non-appearance on the last occasion, and that it is reasonably arguable that the Tribunal committed a legal error, then the Court would set aside the Earlier Order and the matter would be fixed for a further hearing.
The Court also explained to the applicant that conversely, if the Court was not satisfied that there was an adequate explanation for his non-appearance, or a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the Court would dismiss the Application in a Case filed by the applicant. The applicant confirmed that he understood what had been said by the Court. The Court explained that it would have first 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 he understood the nature of the hearing as explained by the Court.
The application identified the following:
Orders sought by Applicant
1. I don't think DIAC and RRT'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 I-Kuan Tao in China and Australia.
2. RRT 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 fact.
3. RRT failed to prudently consider my risk for persecution if I return to origin.
4. RRT 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 been 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 actives. My action and performance has been evidenced by my I-Kuan Tao fellows
3. RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence
4. Tribunal's over objective in judging my explanation and the response at the hearing.
(Errors in original).
From the bar table, the applicant submitted that the result of the Tribunal’s decision was unfair. The applicant explained that he had been in Australia for 18 years. The applicant submitted that his life would be in danger if he was sent back to China. The applicant further submitted that there was a difficulty with the interpreter at the hearing before the Tribunal. The applicant also suggested that the Tribunal’s decision had been partial and reflected a subjective view of the Tribunal member.
Nothing said by the applicant from the bar table identified any arguable jurisdictional error on the part of the Tribunal. In substance, the applicant’s submissions as to why the Tribunal’s decision was unfair were not supported by any detail, other than by reference to the conduct of the interpreter at the Tribunal hearing. On the face of the transcript, which was tendered in evidence, the applicant had a real and genuine hearing before the Tribunal. It is also apparent from the transcript of the Tribunal hearing that the applicant did not raise any issue relating to the standard of interpretation during the hearing, despite being told at the commencement of the hearing to raise any issue in that regard at any time.
On the face of the transcript, there was nothing to suggest that the applicant had anything other than an orthodox hearing, in which the Tribunal member raised with him inconsistencies and credibility issues arising from his claims and evidence. There was no material error identified by the applicant in respect of the hearing before the Tribunal. Nothing said by the applicant in relation to the alleged interpreting error identifies any arguable case of a material deficiency in the conduct of the hearing before the Tribunal, or in the standard of interpretation of the applicant’s evidence.
On the material before the Court, I am satisfied that the applicant had a real and genuine hearing before the Tribunal. I am also satisfied that there is no reasonably arguable case of jurisdictional error relating to the conduct of the interpreter at the hearing before the Tribunal. There is nothing in the transcript or in the Tribunal’s decision that identifies any conduct which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.
An allegation of bias must be clearly alleged and properly proved. In the present case, no bias on the part of the Tribunal is apparent from the Tribunal’s decision or the transcript of the Tribunal hearing. Nor was there any reasonably arguable case of bias in relation to the applicant’s unsupported allegations that the Tribunal member took a subjective view of his evidence, or made a partial determination. The Tribunal’s determination of the applicant’s credit was based on identified reasons that, as indicated above, were open to it on the material before the Tribunal.
The applicant’s assertion in relation to his claims of fearing harm in China was an impermissible invitation to this Court to review the merits of the matter. This Court does not have jurisdiction to review the merits.
In relation to the grounds of the application, order 1 is a disagreement with the Tribunal’s reasons. On the material before the Court, the Tribunal complied with its statutory obligation and afforded the applicant procedural fairness in the conduct of the review.
It is apparent from the Tribunal’s reasons that the Tribunal took into account the applicant’s claims and evidence in relation to his practice of I-Kuan-Tao. The adverse findings by the Tribunal in that regard were open to it. Order 1 fails to identify any arguable jurisdictional error.
In relation to order 2, the assertion that the Tribunal did not take into account the applicant’s statement and evidence is without substance. It is apparent from the Tribunal’s decision record and the transcript that the Tribunal took into account the applicant’s claims, and raised with the applicant the concerns it had in relation to his evidence. As stated above, it was open to the Tribunal to make the adverse credit findings on the evidence and material before it. Order 2 fails to identify any arguable jurisdictional error.
In relation to order 3, it is apparent that the Tribunal properly identified the relevant law and made findings in relation to s.36(2)(aa) of the Act that were open to it. Order 3 is, in substance, an impermissible invitation for this Court to review the merits of the matter. Order 3 fails to identify any arguable jurisdictional error.
In relation to Order 4, it is apparent that the Tribunal considered the whole of the applicant’s claims and evidence. Order 4 fails to identify any arguable jurisdictional error.
Grounds 1 and 2 of the applicant’s grounds of application are, in substance, a repetition of the applicant’s claims which do not identify any arguable jurisdictional error.
Ground 3 sought to cavil with the adverse credit findings made by the Tribunal. For the reasons earlier given, those adverse credit findings were open to the Tribunal on the material before it. Ground 3 fails to identify any arguable jurisdictional error.
In relation to ground 4, for the reasons earlier given, neither the conduct of the review by the Tribunal, nor its adverse findings support any arguable case of bias. It was a matter for the Tribunal to determine whether it accepted the applicant’s evidence. Ground 4 fails to identify any arguable jurisdictional error.
The applicant’s explanation for his failure to appear on 3 June 2016 was that on the night before, he was suffering from a toothache and he could not sleep. The applicant then slept through his alarm and was too late to catch a train to attend the Court on time. There is no medical evidence to support the applicant’s alleged toothache. The applicant’s explanation that he slept in and could not get to Court on time is not a satisfactory explanation.
Regardless of the applicant’s explanation for his non-appearance, the more significant consideration is whether there is any merit in the originating application. I am satisfied that the applicant’s application fails to identify any arguable jurisdictional error. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I am satisfied that there would be no utility in setting aside the order made by the Court on 3 June 2016, as there is no arguable case of jurisdictional error by the Tribunal. In reaching this decision I take into account the principles and caution outlined in Spencer v The Commonwealth (2010) 241 CLR 118 at [24]-[25] and [59]-[60].
The Application in a Case is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 30 August 2016
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