CHH17 v Minister For Immigration and Anor (No.2)

[2017] FCCA 3338

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHH17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 3338

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application in a case to set aside orders made by this Court – unsatisfactory explanation for the applicant’s failure to appear – whether any utility in setting aside the order made by the Court on 14 December 2017 – consideration of the merits of the application – application failed to make out an arguable jurisdictional error – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), s.476

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: CHH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1652 of 2017

Judgment of: Judge Street

Hearing date: 19 December 2017

Date of Last Submission: 19 December 2017

Delivered at: Sydney

Delivered on: 19 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Ms A Zinn

Mills Oakley Lawyers

ORDERS

1. The application in a case is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1652 of 2017

CHH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application in a case filed on 15 December 2017 seeking to set aside an order pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (“the Rules”) made by this Court on 14 December 2017, dismissing the applicant’s application for want of an appeal under r 13.03C(1)(c) of the Rules.

2. The substantive application is within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) being an application for a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 April 2017, affirming a decision of the delegate not to grant the applicant a protection visa.

The nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a hearing of the applicant’s application in a case to decide whether or not to set aside the order made by the Court dismissing the applicant’s proceedings. The Court explained that there were in substance, two issues in respect of that application. First, whether the applicant had a satisfactory explanation for the failure to appear before the Court and secondly, whether there was utility in making the order. 

2. The Court explained that whether there was utility, depended upon whether the applicant had a reasonably arguable case that the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness.  The Court explained that in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the applicant had a satisfactory explanation for the delay and a reasonable argument that the Tribunal’s decision was unlawful or unfair, the order would be set aside and the matter would be fixed for hearing on another occasion. The Court explained that if not satisfied, and the applicant had a satisfactory explanation for the failure to appear and a reasonable argument that the Tribunal’s decision was unlawful or unfair, the application in a case would be dismissed. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of hearing as explained by the Court.

The applicant’s explanation for the failure to appear

1. The applicant’s explanation for the failure to appear is that she went to the correct location where the Court was half an hour before the sitting time, but approached a receptionist and was informed by the receptionist that only Family Court matters are heard at that place and that the applicant should go back to the Law Courts Building. Despite having an order from the Court identifying the courtroom in respect of which the matter was to be heard, the applicant decided to leave the premises and go to another location. 

2. It was the applicant’s responsibility to ensure that she was at the correct place at the correct time. The applicant’s explanation that she followed the receptionist’s directions and the applicant’s failure to provide to the person she spoke to a copy of the order that clearly specified the courtroom that she was to appear in, is an unsatisfactory explanation for the failure to appear.

3. Further, there were Court lists available at the building identifying the courtroom in respect of the applicant’s application. There were also electronic daily lists that the applicant could have had access to. The first respondent submitted that the applicant’s explanation was plausible but not satisfactory.  I accept that submission.

The merits of the application

1. In relation to the merits of the application and whether there is any utility in making an order setting aside the earlier order, I take into account the grounds in the application which are as follows:

   1. The decision of the Second Respondent is affected by a jurisdictional error by failing to comply with Migration Act 1958.

   2. The Second Respondent has ignored relevant consideration in making the decision.

   3. The Second Respondent asked itself wrong questions and applied the wrong tests.

2. This was a case where the Tribunal identified that the applicant was a citizen of Indonesia and her claims were assessed against that country. The applicant applied for a subclass FA 600 (Visitor) visa on 22 July 2014, which was granted on 24 July 2014. On 16 August 2014, the applicant arrived in Australia as the holder of a subclass FA 600 (Visitor) visa valid until 27 September 2014. It was not until 25 September 2014, that the applicant applied for a protection visa. The delegate, on 2 July 2015, found the applicant failed to meet the criteria for a grant of a visa under the Act.

3. The applicant applied for a review and was invited by letter dated 7 March 2017 to attend a hearing on 9 March 2017. The applicant appeared on that date to give evidence and present arguments. 

4. The Tribunal in its reasons identified the applicant’s claims and in particular, the applicant’s claim to fear harm for her husband, which was something that occurred after the applicant’s business was closed and they lost their source of income. The applicant alleged that her husband felt very stressed and started to treat the applicant terribly.  The applicant claimed that the husband hit her many times and she feared returning to Indonesia, because she would be harmed by her husband. 

5. The Tribunal made adverse credit findings in relation to the applicant’s claims. The Tribunal questioned whether the applicant provided truthful evidence regarding the extent of the financial difficulties in 2014 and found it difficult to comprehend how the applicant was then able to afford four months travel prior to arrival in Australia, where she went to Malaysia, Singapore, Hong Kong and China. Those adverse credit findings were the subject of detailed reasons by the Tribunal that were logical and reasonable.

6. The Tribunal found that the applicant had provided, or caused to be provided, false or misleading information in her visitor visa application with regard to her employment and her purpose of travel to Australia. The Tribunal was not satisfied the applicant had provided truthful evidence regarding the nature of her relationship with her husband.  The Tribunal remained unsatisfied that the applicant was physically assaulted or threatened by her husband. The Tribunal was not satisfied that the applicant asked her husband for a divorce or was separated from him. The Tribunal was not satisfied the applicant’s husband threatened to kill her or that she travelled to escape him.  The Tribunal was not satisfied the applicant has a genuine fear of harm from her husband at the time of the departure from Indonesia. The Tribunal was not satisfied the applicant had a genuine fear of harm from her husband at the time of this decision.

7. The Tribunal was not satisfied that there is a real chance that the applicant would be seriously or significantly harmed by her husband should she return to Indonesia now or in the reasonably foreseeable future. The Tribunal found the applicant failed to meet the criteria for the grant of the visa under the Act and affirmed the decision under review.

Consideration of the merits

1. I accept the first respondent’s submissions that the grounds in the application fail to identify any arguable jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [54]-[60] to the effect that the power to refuse leave should be exercised with caution as the decision is not the subject of a right to appeal or a right to seek leave to appeal and brings finality to the proposed proceedings. Section 477 of the Act requires full weight to be given to the provision as a whole and requires an assessment of the prospects of success not a certain determination of the final outcome. I am not satisfied that there would be any utility in making an order setting aside the order made on 14 December 2017 as the grounds in the application have failed to identify any arguable case of jurisdictional error. The Tribunal’s reasons reflect an orthodox approach to the determination of the review and the merits of dispositive findings that were open for the reasons given by the Tribunal. Further, on the face of the material before the Court, the Tribunal complied with its statutory obligations and the obligations of procedural fairness.

The applicant’s submissions from the bar table

1. The applicant’s submissions from the bar table are in substance, an invitation to this Court to engage in impermissible merits review. This Court explained to the applicant that it does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any arguable case of jurisdiction error. 

Adjournment application raised from the bar table

1. In submissions in reply, the applicant indicated that she wanted an adjournment so that she could obtain legal representation or obtain further documents relating to her claims. These proceedings were commenced on 29 May 2017. The applicant has had ample time to obtain legal representation if she was able to do so. The applicant’s explanation identified that she made a deliberate decision to conduct the matter herself on the basis that she believed her explanation would be satisfactory. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the application for an adjournment is refused.

Conclusion

1. The Court accepts the first respondent’s submission that the setting aside of the order made by the Court would be futile as the applicant failed to disclose any arguable case of jurisdictional error. 

2. Accordingly, the application in a case is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2018