CJB15 v Minister for Immigration

[2016] FCCA 1514

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJB15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1514

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visa – interlocutory dismissal due to non-appearance of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.426A

Applicant: CJB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3040 of 2015

Judgment of: Judge Driver

Hearing date: 20 June 2016

Delivered at: Sydney

Delivered on: 20 June 2016

REPRESENTATION

No appearance by or on the behalf of the Applicant             

Solicitors for the Respondents: Mr T Galvin of Minter Ellison

ORDERS

1. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3040 of 2015

CJB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 October 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The background facts relating to the application for protection and the Tribunal’s decision on it are set out in the Minister’s outline of legal submissions filed on 14 June 2016.

Background

1. The applicant is a citizen of Malaysia, who arrived in Australia on 16 November 2000 on a visitor visa.[1]

   [1] Court Book (CB) 15.

2. The applicant applied for a Protection (Class XA) visa (protection visa) on 19 September 2014.[2]The applicant claimed that he was a construction worker in Malaysia and that, as a Malay Chinese, he was bullied by employers who preferred Indonesian and Malay workers.[3]  The applicant claimed that he was persuaded to join Islam, however he subsequently found that he could not behave like a Muslim and tried to quit the religion, but was not allowed.[4] As a result, the applicant claimed that he was hurt and detained in a Muslim temple, where he was beaten and tortured every day.[5]  They tried to get him to change his mind about Islam, but he refused.[6]  The applicant managed to escape Malaysia to Australia[7] and claimed that, if he returns to Malaysia, he will be put in jail, and will be tortured and killed by extreme Islamic groups and Islamic courts.[8]

   [2] CB 1-29.

   [3] CB 20.

   [4] CB 20.

   [5] CB 21.

   [6] CB 21.

   [7] CB 20.

   [8] CB 21-22.

3. The applicant was invited to attend an interview with a delegate of the Minister (the delegate) on 12 March 2015.[9]  The applicant did not attend that interview.[10]  On 17 March 2015, the delegate refused to grant the applicant a protection visa on the basis that he could not be satisfied of the applicant's claims in circumstances where the applicant did not attend the interview.[11]

   [9] CB 51-59.

   [10] CB 74.

   [11] CB 60-80.

4. On 15 April 2015, the applicant applied to the Tribunal for review of the delegate's decision.[12]  On that application, the applicant gave  (under the heading of "Correspondence details") a postal address his email address and his mobile phone number.[13]

   [12] CB 82-83.

   [13] CB 83.

5. On 28 September 2015, the Tribunal wrote to the applicant (via a letter sent to the email address) inviting him to appear before it, to give evidence and present argument, on 15 October 2015 (the hearing invitation letter).[14]

   [14] CB 92-100. 

6. The applicant did not reply to the hearing invitation letter, and did not otherwise contact the Tribunal.  

7. The applicant did not attend the hearing scheduled for 15 October 2015.[15]

   [15] CB 101.

Tribunal decision

1. On 16 October 2015, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s.426A(1A)(a) of the Migration Act1958 (Cth), and affirmed the decision not to grant the applicant a protection visa.[16] 

   [16] CB 108-112.

2. While the Tribunal was prepared to accept that the applicant is Malay Chinese[17] it found that, in the absence of any information from the applicant additional to that provided in his protection visa application, it could not be satisfied that any of his claimed experiences in Malaysia had actually occurred.[18]  The Tribunal was therefore not satisfied on the evidence before it that there was a real risk or chance of the applicant suffering serious or significant harm in Malaysia for any reason related to religion, race or ethnicity (or for any other reason).[19]

   [17] Tribunal Decision (TD) [27].

   [18] TD [23]-[25] and [27].

   [19] TD [26]-[30].

Current proceedings

1. The show cause application contains two grounds expressed in general terms:

   1.Lack of procedure fairness.

   2.My applications were not fairly assessed by AAT and DIBP.

   (errors in original)

2. The matter came before a registrar for directions on 17 December 2015.  The applicant attended in person at that time, and the Minister was represented by Mr Galvin.

3. The registrar made orders including an order listing the case for a show cause hearing today at 3.30 pm.  The applicant was given the opportunity to file and serve an amended application and additional evidence, as well as pre-hearing submissions.  He has not taken up any of those opportunities.

4. Exhibit R1 is a letter from the Minister’s solicitors dated 14 June 2016 addressed to the applicant at his nominated address for service.  The letter provided the applicant with the Minister’s submissions and reminded him of the hearing today at 3.30 pm in this Court at 80 William Street, Sydney.

5. The letter warned the applicant that if he did not appear the Minister may apply to have the matter dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (Federal Circuit Court Rules).

6. There has been no appearance by or on behalf of the applicant today.  The matter has been called twice and on each occasion there was no answer to the call.  There is no explanation for the applicant’s non-attendance.

7. Before I came on the bench an attempt was made by my Deputy Associate to contact the applicant on his nominated mobile telephone number.  That attempt was unsuccessful.  The call went through to a message bank facility.

8. In the circumstances, I have concluded that the appropriate course is to dismiss the application on account of the applicant’s non-attendance, and I so order.

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale as it applied at the time the application was filed. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.

10. I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served on the applicant at his last known address with service, together with a copy of rule 16.05 of the Federal Circuit Court Rules. That service may be effected by ordinary pre-paid post.

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

Date: 23 June 2016