CAS15 v Minister for Immigration

[2016] FCCA 692

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAS15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 692

Catchwords:
MIGRATION – Application to reinstate – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether applicant had an adequate explanation for failing to appear before the Court – whether applicant had an arguable case – no adequate explanation offered – no jurisdictional error identified – application in a case dismissed.

Legislation:

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

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

Applicant: CAS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2726 of 2015

Judgment of: Judge Street

Hearing date: 31 March 2016

Date of Last Submission: 31 March 2016

Delivered at: Sydney

Delivered on: 31 March 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms S Sangha
Mills Oakley Lawyers

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2726 of 2015

CAS15

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 the Court made in default of appearance of the applicant on 5 February 2016. The substantive proceedings are an application for a Constitutional writ under s.476 of the Migration Act in respect of a decision of the Tribunal made on 8 September 2015 affirming a decision of the delegate not to grant the applicant a protection visa. On 12 November 2015, a Registrar of the Court made orders fixing the matter for a show cause hearing on 5 February 2016 and providing the applicant with an opportunity to file an amended application, affidavit of evidence, and submissions. No such documents were filed by the applicant.

2. On 29 January 2016, the applicant was sent a letter by the first respondent enclosing the written submissions and noting that the matter was listed for a show cause hearing on 5 February 2016 and noted that the failure to appear may give rise to the application being dismissed with costs.  In support of the application in a case to set aside the default order, the applicant filed an affidavit.  That affidavit relevantly said:

   I missed attending the Court date listed on 5 February 2016 due to my illness:  order was made without my appearance.

3. Annexed to the affidavit was a medical certificate from an acupuncture healing centre purporting to identify that the applicant was medically unfit to resume normal duty from 3 February 2016 to 5 February 2016 inclusive.  Before the Court today, the applicant explained that it was his fault that he did not attend because he was taking care of a friend in hospital in Canberra.  The applicant acknowledged that he had made no attempt to contact the first respondent, which he said was his fault, and the applicant confirmed that he made no attempt to contact the Court, which he confirmed was his fault. 

4. The applicant was shown his affidavit and the medical certificate and asked whether or not it was due to any illness that he failed to attend.  The applicant confirmed that it was not any illness of his that was a reason for his failure to attend and maintained that his failure to attend Court on the hearing date was because he was taking of a friend in hospital in Canberra.  The applicant was asked why there was no reference to that incident in the affidavit.  The applicant indicated that the affidavit had been prepared with the assistance of another person. 

5. The applicant was shown his signature on the affidavit and was not sure whether that was his signature.  The applicant did confirm that it was his signature on the application in a case filed together with the affidavit as well as identifying his signature on the substantive application.  The applicant was asked whether he attended upon a doctor to obtain the medical certificate referred to in the affidavit and the applicant gave evidence that he thought he attended a dermatologist or skin clinic. 

6. At the commencement of the application for reinstatement, the Court explained to the applicant that it needed to be satisfied that he had an adequate explanation for his failure to attend and that he had a sufficiently arguable case of an excess of statutory power by the Tribunal or denial of procedural fairness by the Tribunal to the applicant.  The applicant confirmed that he understood the explanation given by the Court. 

7. The Court also admitted into evidence the Court book that had been filed which the applicant confirmed he had seen and the applicant indicated that he had not read the first respondent’s submissions. The matter was stood down for those submissions to be read to the applicant and the applicant was again informed prior to standing the matter down to have the submissions read to him, that the Court would wish to hear from him as to why his application identified any arguable ground of jurisdictional error as well as his explanation for the failure to attend. 

8. The applicant’s explanation for his failure to attend was one that he maintained was due to his taking care of his friend in a hospital.  That explanation is not an adequate explanation for the failure to appear before the Court.  On that ground alone, I would refuse the application to set aside the default order.  The first respondent submitted that the grounds were also insufficient and that there is no arguable ground that warranted the Court setting aside its order. 

9. In response to the applicant’s submissions and the invitation to identify any excess of statutory authority by the Tribunal or any denial of procedural fairness, the applicant maintained that he was not given fair treatment and that he gave the department all the documents they asked for and that he always gave them the documents.  The Court heard submissions from the first respondent as to why the application should be refused, referring to the applicant’s explanation and it was put that explanation was inadequate as well as referring to the grounds in the application as failing to disclose any arguable ground. 

10. The first respondent submitted that, insofar as the allegation of unfair treatment was one in respect of the delegate, that was not a matter that could give rise to any jurisdiction before this Court.  It was also submitted that what was said by the applicant in relation to the alleged unfair treatment and the giving of documents by the applicant to the department did not identify any jurisdictional error. 

11. The grounds in the application are as follows: 

    1. AAT HAS DESCRIMINATIO ON ME, FAILED TO CONSIDER MY REAL SITUATION.

    2. AAT AND DIBP ARE UNFAIR TO ME, I AM SEEKING JUSTICE

12. The applicant was found by the Tribunal to be a citizen of China and his claims were assessed against that country.  The applicant was invited to appear before the Tribunal to give evidence and present arguments by a letter dated 12 May 2015.  It is apparent that the applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent. 

13. The applicant claimed to fear harm if he returned to China on the basis that he would be perceived to be and imputed to have a political opinion of being opposed to the Chinese government because he was involved in opposing land acquisition by government officials.  The applicant claimed that he had been arrested and beaten and detained by police and charged with disturbing public service after he fought with demolition workers who came to demolish his house.  The applicant also claimed that his daughter was discriminated against at school because of his detention. 

14. In addition, the applicant claimed he planned to escalate his complaint to the provincial government but was arrested on 11 March 2013 and warned by the police to stop complaining and was beaten and forced to write a letter of guarantee.  The applicant complained he was completely disillusioned with the Chinese government and left China on 20 February 2014. 

15. The applicant arrived in Australia on 21 February 2014 holding an FA 600 visitor visa that was valid until 6 March 2014. The Tribunal made adverse credibility findings in relation to the applicant’s claims and was not satisfied that the applicant had a well-founded fear of persecution and found that the criteria under ss.36(2)(a) and 36(2)(aa) had not been met.

16. In relation to ground 1 of the application, the reasoning of the Tribunal identifies consideration of the applicant’s claims and evaluation of the applicant’s credit and a reasoned basis for the rejection of those claims that was open on the material before the Tribunal.  Ground 1 fails to make out any arguable case of jurisdictional error.

17. In relation to ground 2, the generalised assertion that the Tribunal and the Department were unfair to him does not identify any jurisdictional error.  It is apparent that the applicant had a genuine hearing and that the Tribunal complied with the statutory requirements in relation to inviting the applicant to attend and appear before that hearing. It is also apparent from the Tribunal’s reasons that in the hearing the Tribunal raised its concerns with the applicant about his credibility and his claims and his evidence.  There is nothing in the Tribunal’s reasons to support any arguable case of the Tribunal failing to properly exercise its statutory powers or failing to afford the applicant procedural fairness.  Ground 2 fails to make out any arguable case of jurisdictional error.

18. The applicant’s reference from the bar table to not being treated fairly even if construed as referring to the Tribunal was a generalised assertion that did not identify any actual unfairness by the Tribunal.  The assertion by the applicant that he provided documents that he was asked for does not of itself identify a basis on which any jurisdictional error could be made out.  Nothing said by the applicant identified any arguable jurisdictional error. 

19. In these circumstances, I am not satisfied that there is any sufficiently arguable jurisdictional error to warrant setting aside the order earlier made by the Court, even if the Court accepted the applicant’s explanation as satisfactory.  For these reasons, the application in a case is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016