CFS15 v Minister For Immigration and Anor (No.2)
[2016] FCCA 3296
•22 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFS15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 3296 |
| Catchwords: MIGRATION – Application in a Case to reinstate – substantive application seeking review of Administrative Appeals Tribunal decision – whether there is a satisfactory explanation for non-appearance – whether it is in the interests of justice to warrant reinstatement – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 425 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05, 44.12 |
| Cases cited: CFS15 v Minister for Immigration & Anor [2016] FCCA 1766 SZSNJ v Minister for Immigration & Anor (No.2) [2013] FCCA 260 |
| Applicant: | CFS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2914 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 31 August 2016 and 7 September 2016 |
| Date of Last Submission: | 7 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2016 |
REPRESENTATION
| Applicant: | In person | ||
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley | ||
ORDERS
The Application in a Case made on 5 July 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2914 of 2015
| CFS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 5 July 2016 whereby the applicant seeks to reinstate before the Court an application for judicial review made on 27 October 2015. That application was dismissed on 14 June 2016 because of the applicant’s failure to attend at a scheduled hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) on that date (see CFS15 v Minister for Immigration & Anor [2016] FCCA 1766).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (Court Book – “CB”, “RE1”), and the applicant’s affidavit affirmed on 1 July 2016 filed in support of the AIC on 5 July 2016.
Background
The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 26 May 2012 as the holder of a student visa. He applied for a protection visa on 3 December 2013. He was assisted by a registered migration agent (CB 1 to CB 46 with annexures).
The delegate refused the application on 13 March 2015 (CB 71 to CB 91). The applicant applied to the Tribunal for review of that decision on 7 April 2015 (CB 91 to CB 93). He continued to be represented by the same migration agent. The applicant was invited to, and attended, a hearing before the Tribunal on 23 September 2015 (CB 104 to CB 105). The Tribunal affirmed the decision of the Minister’s delegate on 1 October 2015.
The applicant’s claim to protection as it was ultimately put to the Tribunal, was that he feared harm on return to China for religious reasons. The applicant claimed to have come from a Christian family in China, and also claimed that he suffered harm in China because of his Christian practice. After arriving in Australia, the applicant said he commenced attendance at a Mormon church and was baptised on 12 July 2014.
Based on its assessment of his oral evidence at the hearing, the Tribunal did not accept he came from a practising Christian family in China. The Tribunal rejected the applicant’s claimed factual account of past events in this regard ([66] at CB 124).
In its analysis, the Tribunal also placed weight on the applicant’s delay of four years in leaving China after he claimed to have been detained and beaten because of his religious practice, and the 18 month delay in applying for protection after arrival in Australia ([66] at CB 124).
The Tribunal had concerns with some aspects of his claim to be an adherent of the Mormon faith, in particular, the applicant’s lack of relevant knowledge. Nonetheless, having regard to certain other parts of the applicant’s evidence, the Tribunal gave him the benefit of the doubt and accepted he was a practising Mormon in Australia and would continue to be so on return to China ([86] at CB 127).
The Tribunal had regard to relevant country information before it and found that Mormons were able to practice their religion freely in China, and that the Mormon Church enjoyed good relations with the Chinese authorities ([80] at CB 126 and [93] at CB 128).
The Tribunal noted that proselytising outside the family in China could bring a person to the adverse attention of the authorities. However, it relied on the applicant’s evidence that he would not proselytise if he were to return ([94] at CB 128).
The Tribunal found that there was not a real chance of serious harm if the applicant were to return to China where he would continue to practice his Mormon religion ([97] at CB 128). The Tribunal also found that there was not a real risk that the applicant would suffer significant harm on return to China ([98] at CB 129).
Before the Court
The applicant first appeared before a Registrar of the Court on 3 December 2015. Orders were made, which, amongst other things, gave the applicant the opportunity to file any amended application and evidence by way of affidavit. No such documents were filed.
The applicant next appeared before a Registrar of the Court at a callover on 31 March 2016. Given the state of the grounds of the originating application, the matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) on 14 June 2016.
The applicant did not appear before the Court on that date. I was satisfied that he had reasonable notice of the hearing date and had not communicated to the Court or the Minister’s solicitors any difficulty in attending or sought any adjournment in this regard. The applicant’s application was subsequently dismissed for non-appearance pursuant to r13.03C(1)(c) of the FCC Rules.
The applicant then filed the current AIC on 5 July 2016, accompanied by an affidavit made by him on 1 July 2016. The orders sought by the applicant in his AIC appeared to assert that the applicant seeks a hearing so that his application for a protection visa can be heard again. It is trite to say that if that is an attempt to ask the Court to grant him a protection visa, then the Court cannot do so.
Consideration
The issue raised for consideration now is whether the order made on 14 June 2016, dismissing the application, should be set aside. I understood the AIC to invite the Court to proceed pursuant to r.16.05(2)(a) of the FCC Rules, albeit not expressly raised by the applicant.
In SZSNJ v Minister for Immigration & Anor (No.2) [2013] FCCA 260 at [23] – [25], I relevantly said the following:
“[23] The exercise of the discretion as expressed in r.16.05(2)(a) of the Rules has a number of elements which can be derived from a number of judgments (see for example SZIDH v Minister for Immigration & Citizenship [2007] FCA 369, Capital Webworks Pty Ltd v Adultshop.Com.Limited & Ors [2002] FCA 389 for the corresponding order in the Federal Court Rules 2011 (Cth), Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543; (1997) 148 ALR 578; 47 ALD 1, Smith v NSW Bar Association [1992] HCA 36(1992) 176 CLR 256 – ‘there is some matter calling for review’ (at [27]); Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 111 ALR 385 – ‘the interests of justice so require’ at per Gaudron J at [1] and [18])
[24] I note, and respectfully agree with, what was said in NAJN v Minister for Immigration [2003] FMCA 414 at [7] per Judge Barnes:
‘This is not a case where both parties consent to the setting aside of the orders. The respondent opposes such a procedure. The court has a discretion under Rule 16.05(2)(a) to set aside a judgment. Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation recognising the tension between the public interest in the expeditious conduct of litigation and the obligation of the court to ensure litigants have the opportunity to present a case where there is a real dispute. The power is generally not to be exercised unless the applicant can show that by accident and without fault on his part the order was made without his being heard. It is necessary to look at the whole of the circumstances. (Australian Fisheries Management Authority v P.W. Adams Pty Limited No.2 (1996) 66 FCR 349).’
[25] In light of this, the elements for consideration in the present case are whether the applicant has presented a satisfactory explanation for his lack of appearance and whether there is an arguable case in the application calling for review, or the interests of justice require that the applicant should be given the opportunity to present his case where a real dispute exists. That is, whether there exist material arguments that might reasonably lead to a different order to the one already made by the Court. (In this latter regard see Clifford v Mountford [2006] FMCAfam 450 per Judge Jarrett at [34]).”
In the current case, the Minister opposes the AIC.
I find that the applicant has not provided a reasonable explanation for his absence at the last Court event which led to the dismissal of the originating application. Further, the originating application would not have reasonable prospects of success given the absence of a real dispute if the matter were to go to a final hearing, or even a show cause hearing as had been contemplated by the orders made on 31 March 2016.
The terms of the applicant’s affidavit of 1 July 2016 are as follows:
“1. I am very sick on 14th June 2016 and I had to take a lot of medicine and stay in bed.
2. I am sorry that I missed the hearing but I really need to get the final hearing.
3. Please allow me to have a fair judgement.”
In the current proceedings, the applicant gave evidence about his failure to attend Court on 14 June 2016, the assistance he said he received from a migration agent, who it subsequently emerged was a solicitor involved in the making of his originating application to the Court, and also as to the time he obtained the “CD” (audio recording) of the Tribunal hearing.
It appeared from the applicant’s evidence that a Mr Xing Gao, solicitor, had played a role in the applicant’s matter before the Court. I note that there is no reference to Mr Xing Gao in any of the documentation filed by the applicant with the Court. In any event, the claim was that Mr Gao “assisted” the applicant in the conduct of his substantive case before the Court.
I adjourned for a short period and asked the applicant to contact Mr Gao to see if he was available to assist with the applicant’s case, or at least, to “explain” a number of matters concerning the items referred to at [21] above, and whether he was able to assist with the grounds of the originating application.
Mr Gao was contacted. He made submissions to the Court by telephone. He stated, contrary to the applicant’s evidence, that his only involvement with the applicant was to assist in drafting the applicant’s affidavit of 1 July 2016, and witness the applicant’s signature on that document.
The telephone connection was disconnected by an unknown cause. I adjourned the hearing to give the applicant the opportunity to ask Mr Gao to attend. I considered whether in the circumstances Mr Gao’s attendance should be compelled, but on reflection, took the view that the applicant should be given the opportunity to see if he would assist him.
On resumption of the hearing on 7 September 2016, the applicant appeared with Mr Gao. Mr Gao gave evidence that he was a migration agent, and a solicitor, and he confirmed that he had not assisted the applicant with either of the applications to the Court, and in particular, that he had not drafted the grounds of the originating application. The only assistance he said he gave to the applicant was to witness the applicant’s signature on the affidavit in support of his AIC made on 1 July 2016. This was contrary to what he had said earlier on the telephone but nonetheless was his evidence.
Mr Gao’s evidence also contradicted the applicant’s evidence in other material respects. First, he denied that the applicant asked him to contact the Minister’s solicitors or the Court, to explain his inability to attend on that previous Court occasion. He said this assertion by the applicant was “not correct”. Further, that he did not, contrary to the applicant’s evidence, draft the affidavit for him, as opposed to witnessing the applicant’s signature on it.
In submissions, the applicant sought to explain the obvious inconsistencies in his evidence with that of Mr Gao. He submitted that the person who witnessed his signature on the affidavit, and who had just given evidence, and had left the Court, was Xing Gao, and that his migration agent who had assisted him otherwise was a different person by the name of Xin Gao.
There is no reason not to accept the evidence Mr Gao gave before the Court. While in the witness box, the applicant was given every opportunity to explain the conduct of his case before the Court and the circumstances leading to his non-appearance. If there was a “second” Mr Gao, involved in the applicant’s case, he made no mention of this, let alone whilst giving evidence, other than to seek to explain the obvious inconsistencies between his evidence and that of Mr Gao. He made no attempt to call the “second” Mr Gao.
Nor has the applicant otherwise provided a satisfactory explanation for his non-appearance at the Court event on 14 June 2016. His evidence that he was too ill to telephone the Court’s Registry or engage a friend to call on his behalf to explain his difficulty in attending, cannot be accepted as a satisfactory explanation, in light of his evidence that he went out to buy medicine from a chemist at that time.
Nor did the applicant provide any satisfactory explanation as to why, even after he recovered from his illness, it still took him over two weeks following the dismissal of his originating application, to file the current AIC. This was in circumstances where he gave evidence that he was able to go to the Tribunal, and obtain a copy of the recording of the Tribunal hearing.
However, the consideration that weighs most against the making of the order that is now sought by the applicant is, that the grounds of the originating application lack any merit.
The originating application to the Court contains three grounds in the following terms:
“1. AAT failed to consider my religion in my country.
2. AAT has bias against me as I was on a student visa.
3. AAT didn’t have fairness when I was interviewed by the AAT.”
The grounds of the originating application are broad assertions which lack meaning, due in large part to the lack of particularity. In this light, it is important to note the following about the Tribunal’s decision.
First, the Tribunal’s conclusion about the applicant’s claimed Christian activity in China, and the findings that inform it, were all reasonably open to the Tribunal on what was before it. It gave cogent reasons probative of the material before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2001) 168 ALR 407). The Tribunal’s evaluation of the applicant’s oral evidence is consistent with the proper exercise of its jurisdiction.
Second, the Tribunal’s reliance on the periods of delay in leaving China, and applying for protection after arrival in Australia, were consistent with the capacity for the Tribunal to resolve any question of the credibility of the applicant’s claims, and the attribution of weight to his evidence. It was open to the Tribunal, and there was no legal error, in evaluating the inherent improbability of the claimed events in light of the delay in leaving China (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Third, at [82] the Tribunal stated (at CB 126):
“The Tribunal informed the applicant that it is required by law to disregard any activity which is engaged in in Australia for the sole purpose of strengthening claims for protection and invited comment on this. The applicant stated that he has always had a belief in Jesus Christ having been influenced by his family. He said that when he came to Australia he had no idea what type of Christianity he believed in but after being introduced to the Book of Mormon he knows he needs to be persistent with that belief. He stated that this has nothing to do with his application for a Protection visa. He said that his belief arises from all the things that have happened to him through prayer God has shown himself in front of him. He believes that everything has been arranged by God.”
The comment to the applicant that the Tribunal is to dismiss any activity engaged in in Australia for the sole purpose of strengthening claims to protection, does not apply to the consideration of harm pursuant to the criterion for the protection visa at s.36(2)(aa) of the Act. On its face, this raises the question of whether the Tribunal misdirected itself in relation to the proper application of the law. However, it is clear on a fair, and holistic reading of the decision record, that the Tribunal was referring to s.91R(3) of the Act, and the criterion at s.36(2)(a) (see [87] - [89] at CB 127).
In any event, no arguable case, or issue to be heard, is raised in circumstances where the Tribunal gave the applicant the benefit of the doubt, and accepted that his conduct in Australia relating to Mormon practice formed the basis for the finding that he was an adherent of the Mormon faith (see [87] - [89] at CB 127).
Fourth, as set out above, the central findings made by the Tribunal were that the applicant had not been a Christian in China in the past and would not suffer harm for this reason if he were to return. Further, although he had become a genuine adherent of the Mormon faith after arrival in Australia, he would not, based on relevant country information, face harm for that reason if he were to return to China.
These findings and the findings that inform them were all reasonably open to the Tribunal on what was before it. In relation to the use of the country information, the choice of, and the assessment of weight to be given to such information is for the Tribunal to determine in the proper exercise of its function. As the Minister submits, the Court cannot substitute its own view of such material. In any event, the Tribunal’s decision record reveals it gave careful consideration to this material. There is no arguable case here.
Fifth, the Tribunal did consider the matter of proselytising in China. It found that the applicant could come to the adverse attention of the Chinese authorities if he were to proselytise the Mormon faith outside his family.
However, the Tribunal placed weight on the applicant’s own evidence that his inclination was not to engage in such activities and that in any event, he would follow the Church’s direction not to do so. The country information revealed that the Mormon Church took the position that it would not proselytise in China, as such conduct was contrary to Chinese law.
It was reasonably open to the Tribunal to place weight on the applicant’s own evidence. In the circumstances, the finding that he would not proselytise was not based on any requirement that the applicant modify his behaviour to avoid harm (S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473). No arguable case is raised here.
The absence of particularity to ground one, and the absence of any satisfactory explanation from the applicant at the hearing, raises the question of the exact nature of the complaint. Does the ground allege that the Tribunal failed to consider his claimed past Christian activities, or is it a complaint about its findings relating to his Mormon religion, or even both. Even if it was meant to cover all of these interpretations, no arguable case is raised.
The Tribunal did consider the applicant’s claimed past Christian activity. If the complaint is that it did not accept that he had been a Christian in China then no arguable case arises in circumstances where the Tribunal’s findings were reasonably open to it. In relation to his Mormon beliefs, as set out above, the Tribunal’s findings were reasonably open to it. No arguable case or issue arises in circumstances where, on the evidence, the ground merely seeks impermissible merits review.
Ground two asserts actual bias. The sole reason for this assertion is that the Tribunal was said to be biased because the applicant was on a student visa. An allegation of bias against an administrative decision‑maker is a serious matter. It must therefore be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507) (“Jia Legeng”).
The test for bias is now a well settled (Jia Legeng, Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). There is nothing in the evidence before the Court to indicate that any arguable case for bias is raised here.
However, the reference by the applicant’s ground to the student visa immediately directs attention to the Tribunal’s findings that the applicant delayed making his application for the protection visa for some 18 months after arrival in Australia, and in circumstances where other efforts to legalise his stay had failed. This was part of the Tribunal’s analysis leading to its finding that he had not left China due to fear of harm arising from any Christian belief or involvement ([66] at CB 124).
The Tribunal’s account of the hearing reveals that this matter of delay was discussed at the hearing (see [44] – [46] at CB 121). As part of his explanation for not applying for the protection visa at an earlier time after arrival, the applicant stated, amongst other things, that he was the holder of a valid student visa ([45] at CB 121).
The Tribunal is not obliged to uncritically accept any explanation offered by the applicant (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 and Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559). It was reasonably open to the Tribunal in the circumstances, to take the view that the applicant sought to remain in Australia and applied for protection only after his attempts to obtain student and work visas “failed”.
It was also open to the Tribunal to see the applicant’s delay in applying for a protection visa in these circumstances as a relevant factor in assessing his subjective fear of harm. No arguable case is raised in the circumstances.
Ground three alleges that the Tribunal failed to act “fairly” at the hearing with the applicant. No particulars whatsoever are provided. At the hearing of this matter on 31 August 2016, the applicant sought to tender an audio recording (“CD”) of what he said was the Tribunal hearing. The applicant stated that errors in interpretation had occurred at the hearing (see further below). The applicant was unable to satisfactorily explain what errors had occurred. In the absence of evidence as to what was said by the applicant and the Tribunal member, and what was said by the interpreter at the hearing, the “CD” is of no assistance in revealing any “interpretation” errors. The Court does not read or speak Mandarin.
This ground cannot be made out on the evidence presented. No issue arises calling for reinstatement. The hearing conducted by the Tribunal was, on the evidence, a meaningful opportunity for the applicant to present his evidence and make his arguments (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”), Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575). The evidence reveals that the issues dispositive of the review were discussed the hearing (s.425 of the Act and SZBEL). The applicant was given the opportunity to address the Tribunal’s concerns. No issue calling for reinstatement arises here.
Conclusion
In all, the applicant has not provided a satisfactory explanation for his absence from Court at the relevant time, nor any satisfactory explanation for the delay in seeking to reinstate his substantive application. However, the primary reason that the AIC should be refused is that there is no issue arising from what has been presented to the Court that calls for the reinstatement of the application in the interests of justice. The AIC therefore should be dismissed. I will make that order accordingly.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 22 December 2016
0
30
3