Che15 v Minister for Immigration
[2020] FCCA 2231
•26 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHE15 v MINISTER FOR IMMIGRATION | [2020] FCCA 2231 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 48B, 476 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Cases cited: BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121; (2018) 265 FCR 477 |
| Applicant: | CHE15 |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 2339 of 2018 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 May 2020 |
| Date of Last Submission: | 26 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2020 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the Respondent: | Sparke Helmore |
| Legal Representative for the Respondent: | Ms K. Evans (by telephone) |
ORDERS
The name of the respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 16 August 2018 is dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs set in the amount of $4000.
Within 7 days’ of the making of these orders the Minister’s solicitors write to the applicant at the address for service he has provided notifying him of the orders made today and of the existence of Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2339 of 2018
| CHE15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me an application made on 16 August 2018 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the delegate of the Minister who on 15 August 2018 notified the applicant that his application for a protection visa (subclass 866) was invalid, as a decision had previously been made to refuse the grant of a protection visa to him.
In evidence before the Court are documents that have been tendered by the Minister, respondent’s exhibit 1 (“RE1”), and respondent’s exhibit 2 (“RE2”), and a bundle of relevant documents, also filed and tendered by the Minister (“Court Book” – “CB”, “RE3”).
Before the Court
When the matter was called, there was no appearance by or on behalf of the applicant. The Minister applied for the substantive application to be dismissed summarily for non-attendance.
The immediate background to the Minister’s application is that on 23 April 2020, the Court made orders setting this matter down for final hearing at 10:15am today. The applicant was given the opportunity to file and serve written submissions 14 days before that date, and the respondent Minister was given the opportunity to file and serve written submissions 7 days before the hearing.
Nothing has been filed by the applicant. Nor did the applicant file any documents pursuant to orders made, by consent, on an earlier occasion by a Registrar of the Court on 13 September 2018, to file any evidence by way of affidavit, or any amended application.
RE1 contains a bundle of communications from the Court to the applicant, setting out the method by which he may attend the final hearing. Given the current COVID-19 restrictions, the attendance was to be effected by telephone. The applicant was given instructions as to how to facilitate his appearance. I am satisfied that that communication, sent to both parties, was sent to the email address provided by the applicant in his substantive application to the Court. There is nothing to indicate that this was not delivered to the applicant’s email address. I am therefore satisfied that the applicant had been given reasonable notice of the Court event, and the method by which he could effect his attendance.
RE2 is comprised of two communications from the Minister’s solicitors, dated 19 May 2020 and 24 April 2020 respectively. Both communications were sent to the applicant’s residential address for service provided on his substantive application, and both provide the applicant with the time, date, and place, of the hearing. This provides a further basis to support the finding made above.
When the matter was called outside the Court room, in the public area, to which applicants, even in these COVID-19 times, have access, there was no appearance, or attendance by, or on behalf of, the applicant.
Further, three unsuccessful attempts were made to contact the applicant by telephone today prior to the hearing for the purpose of explaining the instructions about how to join the hearing by telephone. This was done with the assistance of an interpreter in the Mandarin language. A message was left on the applicant’s voicemail.
I am satisfied, therefore, that the applicant had reasonable notice of the Court event today, and, for whatever reason, has elected not to attend.
I did consider, notwithstanding what is set out above, whether the hearing should be adjourned to give the applicant another opportunity to attend. But given the nature of the grounds of the application to the Court, I am satisfied that there would be no utility in adjourning the matter to enable the applicant to appear at some further time.
The relevant background to the substantive application is that the applicant is a citizen of the People’s Republic of China (CB 7.6 and item 14 at CB 47). He arrived in Australia on 13 July 2013 (item 43 at CB 53). He applied for protection on 18 December 2013 (CB 1) on the basis of his claimed fear of harm because of his practice of Christianity, and because of his Christian faith (CB 10).
The application was refused on 22 July 2014 by a delegate of the Minister. The evidence in the Court Book reveals that the applicant’s application for the protection visa was considered, in light of both s.36(2)(a), and s.36(2)(aa) of the Act (CB 7 – CB 16).
The applicant sought review of that decision before the Administrative Appeals Tribunal (“the Tribunal”), which on 6 October 2015 affirmed the delegate’s decision (CB 17 – CB 38). In essence, the Tribunal was not satisfied, after: “…having considered all of the evidence and the claims singularly and cumulatively” ([64] at CB 27) that the applicant met the criterion set out in s.36(2)(a) ([64] at CB 27). Nor was the Tribunal satisfied that the applicant was a: “…person in respect of whom Australia has protection obligations under s.36(2)(aa)” ([66] at CB 28).
In short, the applicant’s claims for protection were considered and determined as against both of the relevant criteria for the grant of the protection visa.
The applicant applied again for a protection visa on 15 August 2018 (CB 39 – CB 68). The delegate notified the applicant on the same date that a decision had: “…previously been made to refuse to grant [him] a protection visa” (CB 70.6), and that therefore his second application was not valid.
I note the provisions of s.48A of the Act that applied, and am satisfied that there is no apparent error in the delegate’s determination that the application for the visa made on 15 August 2018 was not a valid application.
I also note, for the sake of completeness, that there is no evidence before the Court, nor is there any indication, that the Minister considered the exercise of his power pursuant to s.48B of the Migration Act.
In short, the applicant has already had his protection claims considered and determined, and it appears elected not to prosecute further judicial review of the Tribunal decision, by way of attendance.
In any event, on the evidence, I agree with the Minister that there is no utility in adjourning the matter today to enable the applicant to appear. The grounds of the application, with great respect to the applicant, are in a formulaic form seen in this Court on a number of occasions, attacking, if I may describe it that way, the validity of the form used to make the application for the protection visa.
The same argument was rejected by the Federal Court in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (“BVJ16”), and subsequent Federal Court authorities have proceeded on the basis that that was correctly decided. (For example, see SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121; (2018) 265 FCR 477, and DUY18 v Minister for Home Affairs [2019] FCA 1564).
I am bound by those decisions. Even if the applicant had appeared, there is no other judgment of the Federal Court of which I am aware from which the applicant could have derived any argument in support of the grounds.
It is appropriate that the substantive application be dismissed summarily for want of attendance.
I am also satisfied that there is no utility in further prolonging the determination of this matter by giving the applicant yet another opportunity to attend in circumstances where the Federal Court, by judgments binding on this Court, has determined in the Minister’s favour, the very argument that the applicant has put before the Court by way of his initiating application.
I am unaware of any other approach by the applicant, or any response by the applicant. Attempts made this morning to contact the applicant by telephone were unsuccessful. Messages were left for the applicant. Again, there has been no response. It is well over 25 minutes after the scheduled hearing commencement time. I am satisfied that the matter should be dismissed summarily. I will make that order.
The Minister also seeks his costs in the matter, set in the amount of $4000. It is appropriate that an order for costs be made in the usual way. As is said, costs follow the event.
For whatever reason, the applicant has elected not to participate in the hearing of his matter, and there is no reasonable argument that I can see to argue against the making of the costs order. As to the amount, I am satisfied the amount sought is reasonable in all the circumstances. I will make the order as sought by the Minister.
Also, given, again, the general circumstance of the application of COVID-19 restrictions, I will also make an order that within 7 days of the date of the making of the orders, that the Minister’s solicitors write to the applicant at the address for service provided, notifying him of the orders made today, and of the existence of r.16.05 of the Federal Circuit Court Rules 2001 (Cth). I do this just in case there has been some difficulty or misadventure on the part of the applicant in effecting his attendance. He will at least be on notice of the means by which he may seek to reinstate his substantive application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 August 2020
0
3
3