CRL15 v Minister for Immigration

[2016] FCCA 430

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 430

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – application for reinstatement – whether the applicant had sufficient reasons for non-attendance at the first court date – whether the applicant has a sufficiently arguable case – no arguable case – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 477

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

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35

Applicant: CRL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3387 of 2015

Judgment of: Judge Street

Hearing date: 2 March 2016

Date of Last Submission: 2 March 2016

Delivered at: Sydney

Delivered on: 2 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms A Wong
DLA Piper

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $480.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3387 of 2015

CRL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside an order made by the Registrar of 18 February 2016 dismissing the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 due to the failure of the applicant to appear. The principles to be applied in relation to r.16.05 in the circumstances of the present case are whether there is a satisfactory explanation for the failure to appear, as well as whether the application discloses an arguable case. The overriding consideration is the interests of the administration of justice.

2. The applicant’s explanation for the failure to appear is that he was sick during the night with diarrhoea and overslept, so that he did not attend the Court date.  Provided with the affidavit by the applicant was a medical certificate that identified the applicant was suffering from a stomach problem but did not identify any inability by the applicant to have attended Court.  The explanation by the applicant in relation to his failure to appear was the subject of cross-examination. 

3. The applicant did not satisfactorily explain the circumstances in which he set his alarm at such a late hour that his attendance at the Court was unlikely to be achieved. Nor did the applicant satisfactorily explain why he failed to make any contact with the Court or the first respondent on that day. I do not regard the applicant’s explanation as satisfactory, and on that ground alone I refuse the application to set aside the order under r.16.05 of the Federal Circuit Court Rules. 

4. The Court has further considered whether the application discloses an arguable case.  The grounds in the application are as follows:

   1. AAT didn’t treat me with fairness and justice.

   2. AAT made me unreasonable assumption of my honesty.

   3. AAT didn’t consider the fact that I could not survive in Australia but assumed that I should know how my children are living arrangement in China. \

   4. AAT was also unreasonable for the question of my redibility. (sic) Because I was away from my family for many years, I have been hardly survive in Australia and I haven’t contacted my family for so long and I didn’t know anything about my family.  AAT said I’m not credible because I didn’t remember everything.  

5. The applicant requires an extension of time under s.477 of the Migration Act1958 in relation to his application for a Constitutional writ in respect of the decision of the Tribunal made on 20 October 2015 affirming a decision of the delegate not to grant the applicant a protection visa. 

6. An application for an extension of time under s.477 requires in principle a satisfactory explanation for the delay, as well as a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. The applicant’s explanation for the delay in filing the application for the substantive relief was that he was incorrectly informed of the decision. No further detail has been provided in respect of that delay, and on its face the explanation is insufficient.

7. Turning to the grounds of the application, this was the applicant’s second application for a protection visa.  The applicant arrived in Australia in July 2008 as the holder of a visitor visa.  The applicant’s first application for protection was refused by the delegate on 3 October 2008.  A different Tribunal affirmed the delegate’s decision in that regard on 5 February 2009.  The first applicant remained unlawfully present in Australia from 16 March 2009 until 3 January 2011, when he was granted a bridging visa. 

8. Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35, the applicant applied for a protection visa on the grounds of complementary protection on 21 November 2013. The applicant was found to be a citizen of China, and his claim for complementary protection was assessed against that country. The applicant feared return to China because of threats from moneylenders and by reason of being homeless since his house was demolished.

9. The Tribunal made adverse credibility findings in relation to the applicant and found the applicant not to be a credible, truthful or reliable witness in relation to matters central to and related to his claims. The Tribunal identified reasons for the adverse credibility findings that appear open on the material before the Tribunal. It was in light of those adverse credibility findings that the Tribunal found there was no basis for the applicant’s claims to fear of significant harm and found that the applicant did not satisfy the criteria under s.36(2)(aa) of the Migration Act. 

10. It is clear from para.53 that the Tribunal took into account the applicant’s claims in relation to his ability to sustain himself in China.  The ground 1 of the application is a generalised allegation that does not identify any basis for the alleged assertion of unfairness.  From the Tribunal’s decision, it is apparent that the applicant appeared before the Tribunal on 15 October 2015 to give evidence and present arguments, and there is nothing in the Tribunal’s reasons to support any arguable case of a want of fairness or injustice.  Ground 1 fails to identify any arguable jurisdictional error. 

11. In relation to ground 2, the adverse credibility findings by the Tribunal cannot be said to be unreasonable, and ground 2 accordingly fails to make out any arguable jurisdictional error. 

12. Ground 3 appears to be an endeavour to cavil with the merits of the findings by the Tribunal, which is not permissible and does not disclose any arguable jurisdictional error. 

13. As referred to above, the Tribunal took into account the applicant’s concerns as to his ability to sustain himself in China.  Ground 3 fails to identify any arguable jurisdictional error. 

14. Ground 4 is a further challenge to the adverse findings of credit by the Tribunal.  The adverse credibility findings by the Tribunal were supported by reasons that cannot be said to be unreasonable or illogical.  Ground 4 fails to make out any arguable jurisdictional error. 

15. I accept the first respondent’s submission that the application fails to disclose any arguable case of jurisdictional error, and on the face of the application for substantive relief there is not an arguable case for an extension of time under s.477 of the Migration Act. In the circumstances, I am not satisfied that the interests of the administration of justice warrant the court exercising its power under r.16.05 of the Federal Circuit Court Rules. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 March 2016