BYF15 v Minister for Immigration

[2016] FCCA 75

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYF15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 75

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – application for reinstatement – whether medical certificate a proper basis upon which the applicants were unable to attend – whether applicants have sufficiently arguable case – whether the Tribunal failed to take into account an integer of the applicants’ claims – whether the applicants were given a fair-hearing – no jurisdictional error – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.05(2)

Migration Act 1958 (Cth), ss.36(2)(aa), 476

Cases:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

First Applicant: BYF15

Second Applicant: BYG15

Third Applicant: BYH15

Fourth Applicant: BYI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2604 of 2015

Judgment of: Judge Street

Hearing date: 18 January 2016

Date of Last Submission: 18 January 2016

Delivered at: Sydney

Delivered on: 18 January 2016

REPRESENTATION

The first applicant appeared in person

Solicitors for the First Respondent: Ms M Stone
DLA Piper

ORDERS

1. The application in a case is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent in this application fixed in the sum of $1200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2604 of 2015

BYF15

First Applicant

BYG15

Second Applicant

BYH15

Third Applicant

BYI15

Fourth 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 to set aside orders made by this Court on 4 December 2015. The application is made under r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth). The substantive proceedings seek a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) and were listed for a show cause hearing on 4 December 2015, at which the applicants failed to appear.

2. The first, second and third applicants arrived in Australia on a subclass 676 visa on 13 June 2007 and made an application for protection on 9 September 2009, which was unsuccessful.  Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicants made a further application for protection on 29 October 2013, and this application included the recently born fourth named applicant.

3. Prior to the hearing on 4 December, a medical certificate was received by the Court from a Dr Haasbroek, dated 3 December 2015. The Court treated the medical report as an application for an adjournment, albeit that no contact had been made with the first respondent to formally make an application.  The Court found that the content of the doctor’s report was insufficient to explain the failure to attend by the applicants.  In support of the application, the applicant made the bold assertion that he was unable to attend due to the severe medical condition of his wife and relied upon the same certificate that the Court had already identified as being insufficient to identify a proper basis upon which the applicants were unable to attend. 

4. From the bar table, the applicant was asked why he had not contacted the first respondent to formally seek an adjournment or identify the difficulty in his ability to attend, and he conveyed that he was trying to get a friend to look after the children and also suggested at one stage that he had a doctor’s appointment that he had to attend, which was why he could not come to Court.  Nothing said by the first named applicant provides any satisfactory explanation for the failure of the applicants to appear at the hearing that was listed on 4 December 2015. 

5. On that ground alone, I would refuse the application to set aside the earlier orders made on 4 December 2015.  The Court has, however, also taken into account the grounds of the application and raised with the applicant whether there was a sufficiently arguable case. 

6. The grounds of the application are as follows:

   1. The Tribunal made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances.

   Particulars

   The applicants state that they produced before the Department of Immigration and Administrative Appeals Tribunal valid and relevant information with regard to their protection claims. However, these evidence were rejected by the assessing authorities as simply not accepting. The applicants state that such a stand is not accepting to them, because their claims were not given due consideration by the assessors.

   2. The applicants were not afforded natural justice.

   Particulars

   The applicants believe that they were not afforded a fair hearing. The first applicant states that his legitimate expectation to seek protection in Australia with his family was denied by the decision of the Tribunal. The first applicant believes this is due to the fact he did not have an opportunity to have her case heard by an impartial decision-maker. The first applicant felt that in certain situations, the Respondents have prejudged their case not allowing the evidence to prevail. The Respondents simply chose to disbelieve the applicants' evidence. The first applicant states while the Respondents are entitled to his/her opinion, this should be done reasonably. The first applicant states the respondents did not take into account relevant considerations and took into account irrelevant considerations.

7. I accept the first respondent’s submission that ground 1 is in substance an impermissible challenge to the merits of the review by the Tribunal and does not identify any arguable jurisdictional error. 

8. It was a matter for the Tribunal to determine whether or not it accepted the whole or part of the applicant’s evidence.  The Tribunal gave detailed reasoning in the consideration the claims advanced by the applicant, and there is no substance in the proposition that there was any error by the Tribunal by reason of not accepting the applicant’s claims. 

9. To the extent that the applicant advanced a claim concerning his involvement as a member of the Dera Sacha Sauda (DSS), the delegate had accepted that the applicant was a low-level member of the DSS.  However, as the Tribunal identified in para.19 of its reasons, the Tribunal was conducting a fresh review, and it is clear from the Tribunal’s reasons that the applicant was put on notice that his membership of the DSS was a live issue before the Tribunal.  Nothing said in ground 1 identifies any arguable jurisdictional error. 

10. On 18 May 2015, the applicant was sent a letter inviting the applicant to appear before the Tribunal to give evidence and present arguments on 19 June 2015.  The applicant appeared before the Tribunal on that date, although erroneously identified as 19 August 2015 in the Tribunal’s reasons, both to give evidence and present arguments.  Only the first applicant appeared on that occasion.  The applicant was also represented at that hearing.  There is no substance in the proposition that the applicants were denied procedural fairness or not afforded natural justice.  It is clear that the applicants had a genuine hearing.  The proposition that the applicants had a legitimate expectation in relation to protection is lacking in substance. 

11. To the extent that there is a criticism advanced of the decision-maker not being impartial, any allegation of bias is something that must be clearly alleged and properly proved.  Adverse findings by a Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits.  There is no substance in the criticism of the Tribunal, and no arguable case of jurisdictional error is made out because the Tribunal did not accept the first applicant’s evidence. 

12. There was no relevant consideration identified that the Tribunal failed to take into account, and there was no irrelevant consideration identified that the Tribunal should not have taken into account.  Nothing in ground 2 identifies any arguable jurisdictional error. 

13. The first applicant said from the bar table that he was shocked that his claim and that of his wife and children were rejected. That is a somewhat surprising assertion, given that the applicant’s earlier application for protection had already been rejected and that this was his second application under the grounds of complementary protection under s.36(2)(aa). The applicant suggested from the bar table that the topic of his membership of the DSS had not been addressed by the Tribunal. That is clearly contrary to the Tribunal’s reasons and is a contention without substance.

14. It was suggested that the applicant was not given a proper opportunity to adduce his case.  When asked whether the applicant had sought any adjournment, the applicant indicated he had not done so, and the applicant said he did not need more time and that the substance of his criticism was the Tribunal not accepting his evidence.  Nothing said by the applicant identified any arguable jurisdictional error by the Tribunal.  Accordingly, on the merits of the matter, I am not satisfied that there is any sufficiently arguable case of jurisdictional error to warrant setting aside of the earlier judgment in the interests of the administration of justice.  The application in a case is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 January 2016