Cuj16 v Minister for Immigration

[2019] FCCA 3657

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUJ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3657

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – application in a case for reinstatement – whether a satisfactory explanation for the applicant’s failure to appear at the hearing – whether there is any utility in reinstating the application by reason of there being a reasonably arguable case – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03, 16.05
Migration Act 1958 (Cth), ss.424A, 476

Applicant: CUJ16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2633 of 2016

Judgment of: Judge Street

Hearing date: 13 December 2019

Date of Last Submission: 13 December 2019

Delivered at: Sydney

Delivered on: 13 December 2019

REPRESENTATION

Solicitors for the Applicant: Mr R Yousif
Aussie Legal Professionals

Solicitors for the Respondents: Ms M Donald
Sparke Helmore

ORDERS

1. The application in case dated 3 December 2019 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $1,700.00.

DATE ENTERED: 13 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2633 of 2016

CUJ16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 August 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“Protection visa”).

2. The applicant was found to be a citizen of China and his claims were assessed against that country. On 24 September 2007, the applicant applied for a Student (Offshore) Schools Sector (TU 571) visa which was granted on 12 February 2008. On 15 March 2008, the applicant arrived in Australia. It was not until 17 April 2014 that the applicant lodged an application for a Protection visa and was granted a Bridging visa C (030).

3. The applicant claimed to fear harm by reason of his involvement in Christianity and that of his parents in the local church and by reason of his activities in Australia. The application for a Protection visa was one in respect of which there was an identified agent, whose name was Ms Zheng.

4. On 17 December 2014, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. On 14 January 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. In relation to the application for review, the applicant had a migration agent whose name was Ms Fu.

6. By letter dated 26 April 2016, the Tribunal invited the applicant through their migration agent, Ms Fu, to attend a hearing on 20 May 2016. The hearing date was rescheduled to 3 August 2016. The applicant appeared on that date to give evidence and present arguments.

7. On 31 August 2016, the Tribunal affirmed the decision not to grant the applicant a Protection visa.

8. The proceedings in this Court were commenced on 28 September 2016. On that occasion, the applicant identified his email address on the initiating application. The applicant attended the first return date and completed and signed the first return date form, which confirmed the applicant’s email address being identical to that on the initiating application.

9. The applicant was notified by email dated 19 February 2019 of the hearing date on 21 November 2019 and reminded of that hearing date by email on 14 November 2019 which was sent to the applicant’s email address.

10. The applicant failed to appear at the hearing. Consequently, on 21 November 2019, this Court made orders dismissing the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to appear at the hearing.

11. On 3 December 2019, the applicant filed an application in the case for reinstatement of the proceedings pursuant to r.16.05(2)(a) of the Rules. The applicant read in support of that application an affidavit in which the applicant suggested that he had been the subject of a migration agent fraud and referred to a newspaper article in respect of a person bearing a different name to that of the applicant’s migration agents.

12. There is no basis to find that the applicant was the subject of any migration agent fraud let alone a fraud upon the Tribunal or an arguable case of fraud upon the Tribunal.

13. The applicant asserted that he had not received any documents in relation to an address at Auburn.

14. Nowhere in the applicant’s affidavit did he explain why he had not received the emails sent to his email address. When that was raised with the applicant in the witness box, the applicant offered two different explanations in relation to why he had not received his emails. The first was that he did not use it anymore and the second was that he could not obtain the password in relation to accessing the email because it was set up with the assistance of the migration agent.

15. Neither explanation was credible. The applicant gave evidence that was entirely implausible in respect of his attempted explanation as to why he had not received the email notifications.

16. Given the applicant’s evidence not being plausible, the Court finds that the applicant was aware of the hearing date and deliberately failed to attend. In these circumstances, nothing in the applicant’s affidavit provides a satisfactory explanation for the applicant’s failure to appear. On these grounds alone, the Court would dismiss the application for reinstatement.

17. There are two grounds on the application seeking to advance an argument of jurisdictional error. Neither of the grounds identifies any arguable case of relevant error by the Tribunal.

18. The first ground reflects a disagreement with the Tribunal’s adverse findings in relation to the merits of the application and it does not identify any reasonably arguable case of relevant error. The Tribunal correctly identified the relevant law and its reasons were open. The issue of why the applicant had not applied for a Protection visa earlier was a logical and rational matter for the Tribunal to take into account, as were the questions concerning the applicant’s activities in Australia.

19. There is nothing to suggest that the applicant raised any difficulties with the Tribunal in the course of the hearing. On the face of the Tribunal’s reasons, which identify raising the issues of concern with the applicant, there is nothing to suggest that the applicant had other than a real and meaningful hearing before the Tribunal.

20. The credibility of the applicant was an obvious matter for the Tribunal to take into account. The Tribunal made comprehensive adverse credibility findings. The Tribunal did not accept that the applicant was a Christian or had practiced as a Christian in China. There is no basis to find that the Tribunal failed to take into account country information in the context of the adverse findings. Those adverse findings were open to the Tribunal due to the inconsistencies and the implausibilities in the applicant’s evidence.

21. In relation to ground 2, there is no information identified of the kind which might give rise to an obligation under s.424A of the Act. It is apparent that the Tribunal raised its issues of concern with the applicant in the course of the hearing. The Tribunal was not required to put its adverse credibility findings to the applicant under s.424A of the Act.

22. No arguable case of jurisdictional error is disclosed by either ground 1 or ground 2.

23. Mr Yousif, solicitor for the applicant, properly conceded that there was a difficulty identifying an arguable case of relevant error.

24. In the circumstances of the present case, where the application does not disclose on its face any reasonably arguable case of relevant error, the merits of the application for reinstatement are wanting and the Court finds that there would be no utility in reinstating the proceedings.

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

I certify that the preceding twenty-five (25) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 13 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:

Date:  26 February 2020