BYX15 v Minister for Immigration

[2016] FCCA 261

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 261

Catchwords:
MIGRATION – Administrative review – Review of Refugee Review Tribunal decision – Protection visa – no grounds established – no appearance by Applicant – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001, r.13.03C(1)(e)

Applicant: BYX15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 890 of 2015

Judgment of: Judge Vasta

Hearing date: 4 February 2016

Date of Last Submission: 4 February 2016

Delivered at: Brisbane

Delivered on: 4 February 2016

REPRESENTATION

There being no appearance by or on behalf of the Applicant.

Solicitors for the Respondent: SPARKE HELMORE

ORDERS

1. That the Application filed on 23 September 2015 be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001.

2. That the Applicant pay the Respondent’s costs of and incidental to the application including reserved costs fixed in the sum of $8,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 890 of 2015

BYX15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 23 September 2015, the Applicant seeks judicial review of the decision of the Tribunal of 27 August 2015 where the Tribunal affirmed a decision of the delegate to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Fiji who first arrived in Australia as the holder of a business visa on 27 June 2013. 

3. She has twice returned to Fiji and back to Australia before finally arriving in Australia on 1 March 2014. 

4. On 11 March 2014, she made an application to the department for a visa, which set out her claims for protection.

5. In summary, she claimed she was employed as a senior legal officer within the Fiji Revenue and Customs authority and would represent that authority in legal proceedings commenced by the tax payers objecting to tax assessments made by the authority.  She was the subject of an anonymous complaint to the Fiji Independent Commission Against Corruption, and that complaint was in relation to her integrity on the basis of her friendship with another lawyer who would represent tax payers who were objecting to the tax assessments.

6. She believed a disgruntled tax payer made the complaint but she feared the person who made the complaint.  The investigation was eventually ceased, and there were no findings made against her.  The matter had finished.  She never found out the name of the person who made the complaint against her. 

7. She does say, though, that because of that complaint there were many things that happened to her.  However, it is hard to see how those things are going to be absolutely linked to this complaint.

8. The things that she says happened to her were that her mother was removed as a Magistrate and her sister and brother-in-law, the brother-in-law being a police officer, were told by police to withdraw a sexual assault complaint they made against an officer of the strike back team. 

9. The applicant believed that this confluence of events meant that someone was after her and if she returned to Fiji that she may be in fear of being imprisoned or having false accusations made against her.

10. It is trite to say that those sorts of matters could not ever fit into either the Refugee Convention or the complementary protection criterion.  So it has been not surprising that both the delegate and the Tribunal have dismissed her claim for protection and not allowed her a visa. 

11. She has applied to this Court for review, but the grounds are very nebulous. 

12. There have been no submissions made in the matter. 

13. On 20 January 2016 the applicant appeared before me and said that she was not ready to argue her case and she wanted more time. 

14. I gave her until today and did say that come hell or high water the matter would be heard today.

15. At 5.30 am an email was received by the registry from the applicant that reads:

    “Good morning. 

    I’m emailing to request that my matter be withdrawn and further if I may be advised of the results. 

    While I may want to pursue this course, I cannot bear another hearing fees. 

    My sincerest apologies that i cannot attend the matter today. 

    Requesting if I may be advised of the cost that I have to pay and also when I will need to leave the country. 

    Thank you”

16. To my mind, there has been no jurisdictional error made by the Tribunal.

17. It is a matter that the Minister had prepared. 

18. I am of the view that in these circumstances I should proceed under r.13.03C (1)(e) of the Federal Circuit Court Rules 2001 and determine the matter on the merits. 

19. For the reasons that I have already outlined I dismiss the application with costs, including the costs thrown away by the adjournment on 20 January 2016.

20. I assess costs of the dismissal of this matter plus the costs of the adjournment in the sum of $8200.

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

Date: 11 February 2016.