CKJ19 v Minister for Immigration

[2020] FCCA 94

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKJ19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 94

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – dismissal of show cause application – failure by the applicant to appear in person.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5J, 36, 426A

Applicant: CKJ19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1505 of 2019

Judgment of: Judge Driver

Hearing date: 20 January 2020

Delivered at: Sydney

Delivered on: 20 January 2020

REPRESENTATION

The Applicant attended by telephone

Solicitors for the Respondents: Ms A Zinn of Mills Oakley

INTERLOCUTORY 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 $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1505 of 2019

CKJ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me an application lodged on 19 June 2019.  The application seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  That decision was made on 30 May 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 10 December 2019. 

2. The applicant is a female citizen of China who arrived in Australia on 10 February 2015 as the holder of a tourist (subclass 600) visa.[1]

   [1] Court Book (CB) 76

3. On 28 April 2015, the applicant applied for a protection visa.[2] In a statement provided with her visa application, the applicant claimed that her company received a letter from the Bureau of Safety Supervision (Bureau) that informed it that if it did not pass a safety check, the company would be shut down. The applicant’s boss asked her to go for dinner with the Chief of the Bureau (Chief) to “make the leaders happy”. The Chief agreed to help the company, but also wanted to form a relationship with the applicant.

   [2] CB 1-38

4. The applicant tried to avoid the Chief and asked her boss for help. The applicant’s boss arranged for the applicant to move to Cambodia, but the Chief found her. The applicant occasionally travelled back to China for “business and family reasons” and the Chief told her that he had divorced his wife and wanted to marry her. The Chief told the applicant’s husband that she had ruined his family and asked for RMB1,000,000. The applicant claimed the Chief also asked the police to harass her family and had told her mother that the applicant had bribed a public official and was trying to get away. The applicant feared returning to China as she would be tortured by the Chief and claimed she was also wanted by the local government as a “fugitive”.[3]

   [3] CB 37-38

5. On 26 September 2016, the applicant was invited to attend an interview before the delegate scheduled for 11 October 2016,[4] which was subsequently rescheduled for 13 October 2016.[5] The applicant failed to attend the interview.[6]

   [4] CB 59-69

   [5] CB 70-71

   [6] CB 81

6. On 21 October 2016, the delegate refused to grant the applicant a protection visa.[7] The delegate was not satisfied that the feared harm involved serious harm under s.5J(4)(b) or significant harm within the meaning of s.36(2A) of the Migration Act 1958 (Cth) (Migration Act).[8]

   [7] CB 72-85

   [8] CB 80-85

The Tribunal

1. On 4 November 2016, the applicant applied to the Tribunal to review the delegate’s decision.[9]

   [9] CB 86-87

2. On 16 April 2019, the applicant was invited to attend a hearing scheduled for 22 May 2019.[10]

   [10] CB 101-107

3. On 22 May 2019, the applicant requested an adjournment of the hearing on the basis that she was unwell.[11]  She provided a medical certificate that indicated she had a “medical condition” and was unfit for work from 22 May 2019 to 24 May 2019.[12]  The Tribunal granted the adjournment request and invited the applicant to a rescheduled hearing on 30 May 2019.[13]

   [11] CB 111-116

   [12] CB 116

   [13] CB 117-119

4. The applicant failed to attend the re-scheduled hearing[14] and the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear pursuant to s.426A(1A)(a) of the Migration Act.[15]

   [14] CB 128-131

   [15] CB 132-145

5. The Tribunal noted that the only information before it was the applicant’s own brief assertion of the facts. The Tribunal found it was unable to establish from this information whether she experienced the claimed past harm in China.[16]

   [16] CB 141, [26]

6. The Tribunal found that without more evidence from the applicant, it could not be satisfied about why she left China or whether she could not return to China because of the harm she claimed. If the applicant had attended the hearing, the Tribunal found it would have had the opportunity to discuss and test the veracity of her claims. The Tribunal found it was not possible to discuss these issues with her because, despite being advised by the Tribunal in letters dated 16 April 2019 and 22 May 2019 that it had considered all the material before it but was unable to make a favourable decision on that information alone, the applicant did not attend a hearing and provided no further information or evidence in support of her claims. The Tribunal found it had insufficient evidence to be satisfied that the events and circumstances the applicant raised were factual and it was unable to accept her claims.[17]

   [17] CB 131, [27]

7. The Tribunal was not prepared to accept that the applicant was the business manager for Haian Guoqiang Company or that she was required to meet with the Chief over the potential shut down of the company. The Tribunal did not accept that:[18]

   a)the applicant was pursued by the Chief;

   b)the applicant accused of bribing a public official when she refused his advances;

   c)the applicant went to Cambodia to avoid the situation with the Chief; or

   d)the applicant’s family was harassed by the police.

   [18] CB 131, [28]

8. The Tribunal was not satisfied there was a real chance of serious harm and was not satisfied that the applicant met s.36(2)(a) of the Migration Act.[19]

   [19] CB 131, [29]

9. The Tribunal also considered the complementary protection criterion in s.36(2)(aa) of the Migration Act and for the same reasons identified in connection with the refugee criterion, was not satisfied that the available evidence supported that there were reasonable grounds for believing the applicant faced a real risk of significant harm.[20]

   [20] CB 131, [30]

10. Following her application to this Court, the applicant consented to orders made by a registrar on 11 July 2019. 

11. Those orders provided the applicant with the opportunity to file further material. She has not taken up that opportunity. The orders made by the registrar included an order listing the matter for a show cause hearing on 18 December 2019. The applicant failed to attend that hearing in person, but the Court was successful in contacting her by telephone. The applicant claimed to be unwell. I gave the applicant the benefit of the doubt and provided her with an opportunity to provide a medical certificate in order to obtain an adjournment of the show cause hearing. The applicant provided a medical certificate from the Auburn Health Care Centre on the same day.

12. The medical certificate stated that the applicant had an unspecified medical condition and was unfit for work from 18 December to 20 December.  I decided that while the certificate was not informative, it was sufficient to trigger the order for an adjournment of the show cause hearing.  Accordingly, the show cause hearing was adjourned until today.  Yesterday, the applicant sent an email to my associate attaching a further medical certificate from the Auburn Health Care Centre.  Again, the medical certificate states that the applicant has an unspecified medical condition and will be unfit for work from 19 to 21 January. 

13. The applicant failed to attend today’s show cause hearing in person.  Once again, however, the Court was successful in contacting her on her nominated mobile telephone number.  She once again claims to be unwell.  I told her that I was not satisfied with the medical certificate she had provided.  In particular, the certificate says nothing about the applicant’s fitness to attend court.  The applicant offered to provide another medical certificate.  I declined that offer because I have no confidence that any further medical certificate would be more informative than the two previously provided.  I have formed the view that the applicant is malingering.  She is using asserted illness strategically in order to avoid attending significant hearings.  The appropriate course in these circumstances is for the Court to dismiss the application on account of the applicant’s non-attendance.

14. I will order that, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

15. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister claimed $4,400 including costs thrown away by reason of the adjournment of the hearing on 18 December.  In my view, a fair and reasonable figure for party/party costs in the circumstances of this case is $4,000.  The applicant indicated that she may have some difficulty paying the costs.  Impecuniosity is, however, not a reason for the Court to refrain from making a costs order. 

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  21 January 2020