Clu15 v Minister for Immigration

[2016] FCCA 709

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 709

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause – no arguable jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

PRACTICE AND PROCEDURE – Application for an adjournment – whether the applicant was able to meaningfully participate in the hearing – whether any utility in granting the adjournment – application for adjournment refused.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant: CLU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3197 of 2015

Judgment of: Judge Street

Hearing date: 1 April 2016

Date of Last Submission: 1 April 2016

Delivered at: Sydney

Delivered on: 1 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms S He
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3197 of 2015

CLU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Tribunal made on 29 October 2015, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Thailand, and her claims were assessed against that country.

2. The applicant lodged a Tourist (TR-676) Offshore visa on 26 January 2009, which was granted on 27 January 2009.  The applicant lodged a further application for a TR-676 Offshore visa on 8 February 2010, which was granted on 10 February 2010.  The applicant travelled to Australia, arriving on 9 March 2010 as the holder of a TR-676 visa, and departed Australia on 4 June 2010.  The applicant lodged a Tourist (TR-676) Offshore visa application on 20 August 2010, which was granted on 25 August 2010.  The applicant arrived in Australia on 11 October 2011 as the holder of a TR 676 visa, and departed Australia on 8 November 2010. 

3. The applicant lodged an application for a student independent ELICOS sector visa, TU-570 offshore, on 13 January 2011, which was granted on 26 January 2011.  The applicant arrived in Australia as the holder of a TU-570 visa on 14 March 2011.  The applicant’s TU-570 visa was cancelled, due to the non-attendance of the applicant in relation to the study, on 24 June 2011. 

4. The applicant lodged the application for a protection visa on 4 October 2013.  The applicant claimed to fear harm from the Red Shirt Group, and because of the political situation being unsettled, and because of the Red Shirts being in power.  The applicant claimed that they would kill her or make her work as a prostitute.  The applicant also feared that she would be sexually abused.  The applicant alleged that her father experienced physical and verbal assaults.

5. The applicant attended a hearing, in response to an invitation to give evidence and present arguments, on 4 November 2014 before the Tribunal, and again on 19 October 2015. On 28 January 2016, a registrar of the Court fixed the matter for hearing today as a show cause hearing under r.44.12 of the Federal Circuit Court Rules2001 of Australia.  At the commencement of the hearing, the Court explained to the applicant the nature of a show cause hearing, in that it was to determine whether the applicant had an arguable case. 

6. The Court explained that an arguable case turned on whether the Tribunal’s decision was affected by a legal error.  The Court explained that the legal error had to be of a kind that involved an excess of statutory power by the Tribunal, or a denial of procedural fairness to the applicant.  The applicant confirmed that she understood the nature of the hearing, as explained by the Court.

7. The orders made by the Registrar also provided an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

8. The grounds of the application are as follows:

   1. The tribunal had acted unreasonably in assessing the applicant's credibility, resulting in denial of her claims for protection, and failure to find that the applicant has a well-fear of being persecuted for her political opinion and that there is a real risk that she will suffer significant harm when she returns to Thailand.

   Particulars

   (i) The way tribunal assessed her claims of involvement with UDD (Red Shirts) and receiving financial support from them

   (ii) The way tribunal assessed the assaults occurred to her in June 2010

   (iii) The way tribunal assessed her reasons given for delay in applying for protection

   (iv) The way tribunal assessed her claims of harassment and threats to her parents since her departure

   (v) The way tribunal assessed her claims for fear of future harm

   2. The tribunal has not followed the principles in MIMA v Rajalingam (1993) FCR 220 in assessing the plausibility of the applicant's claims about her and her family's involvement and receipt of financial support from the UDO.

   Particulars

   Same as Ground 1

9. In the course of the hearing, the applicant sought an adjournment.  The applicant admitted that no earlier notice had been given to the first respondent, but said that she had been to the Department and that the Department had told her to hand the document up to the Court.  The document that the applicant referred to was a medical certificate, dated 30 March 2016, in which a doctor opines that the applicant is suffering from a medical illness and will not be fit for duty until Tuesday, 5 April 2016 inclusive.  Nothing in the medical certificate identified any inability by the applicant to attend Court. 

10. The applicant’s explanation for not giving any earlier notice to the solicitor for the first respondent is not satisfactory. The applicant was invited to put submissions in support of the adjournment application. Albeit it that the applicant contended that she was not 100 per cent fit, it was clear from the applicant’s ability to engage with the interpreter that she had the capacity to engage in a meaningful hearing in respect of the application. The application for an adjournment was opposed by the first respondent. I am satisfied that the applicant was able to participate meaningfully in the hearing. During the course of the hearing, the applicant requested a short adjournment, which the Court granted. When the matter resumed, the applicant was again able to participate in a meaningful manner in relation to the hearing of the application under r.44.12.

11. In refusing the application for an adjournment, the Court took into account the inadequate explanation of the applicant for the adjournment, and the matters referred herein.  The Court was satisfied that an adjournment would not have been of any utility and would only have unnecessarily increased the costs for the respective parties, and utilised limited Court time.  It was for these reasons that the adjournment was refused. 

12. Nothing said by the applicant from the bar table identified any arguable jurisdictional error by the Tribunal.  Ground 1 of the application is in substance an impermissible challenge to the adverse findings of credit made by the Tribunal.  Nothing in ground 1 identifies any arguable jurisdictional error. 

13. This is a case where the Tribunal found it was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future.  The Tribunal also found it was not satisfied there are substantial grounds for believing there is a real risk the applicant will suffer harm if she returns to Thailand now or in the reasonably foreseeable future. 

14. The adverse finding by the Tribunal in relation to the applicant’s fear in respect of the Red Shirts was open on the material before the Tribunal and cannot be said to lack evident and intelligible justification.  Equally, it was a matter for the Tribunal to make credit findings in relation to the applicant’s alleged assaults. 

15. Further, the delay in the applicant’s application for protection, given the applicant’s migration history, including her earlier history of travelling to other countries, were relevant matters for the Tribunal to deliberate upon.  It was open to the Tribunal to make adverse findings.  The adverse findings by the Tribunal in relation to the applicant’s parents was equally a matter for the Tribunal to determine, as was the applicant’s fear of future harm.  Nothing in ground 1 identifies any arguable jurisdictional error. 

16. In relation to ground 2, this is in substance a repetition of the impermissible challenge to the adverse findings of fact by the Tribunal.  This is not a case which in any way engaged principles of the kind identified in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. Ground 2 fails to identify any arguable jurisdictional error.

17. I am satisfied that the application fails to disclose any arguable case. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules2001. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016