DQR24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 194
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQR24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 194
File number(s): PEG 197 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 24 January 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – where applicant absent from the hearing – application dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 – applicant ordered to pay the first respondent’s fixed costs Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021 r 13.06(1)(c), Part 2 Division 1 Schedule 2 Item 3
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 24 January 2025 Place: Perth For the Applicant: The Applicant did not appear Counsel for the First Respondent: Ms Ismailjee For the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 197 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQR24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of Second Respondent be amended to “Administrative Review Tribunal”.
3.The Application filed 9 June 2024 be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021.
4.The Applicant pay the Respondent’s costs fixed in the sum of $6,500.
NOTATION
A.In accordance with rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the applicant has liberty to apply to set aside the orders made today on filing and serving an application and affidavit setting out his reasons for wanting the orders set aside and explaining his non-attendance at court today.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant filed proceedings in this Court on 9 June 2024, seeking judicial review of a decision of the Administrative Appeals Tribunal dated 20 May 2024, which affirmed a decision of the Minister’s delegate on 21 May 2019 to refuse to grant him a Protection (Class XA) (Subclass 866) visa.
The applicant is a citizen of China. He last arrived in Australia on 24 December 2017 as a visitor. On 7 January 2018, the applicant applied for the protection visa. In the protection visa application, the applicant provided lengthy written responses which can be summarised as a claim to be a Christian and that the government tortures and imprisons Christians. He claimed he was detained by the Chinese Public Security Bureau and was put in a labour reform camp, and he feared returning to a labour reform camp or being arrested by the Chinese authorities.
The delegate invited the applicant to attend an interview on 15 April 2019, but he did not attend. On 21 May 2019, the delegate refused to grant the visa. On 29 May 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 27 February 2024, the Tribunal emailed the applicant a pre-hearing information form. The applicant did not respond. On 9 April 2024, the Tribunal invited the applicant to attend a hearing on 30 April 2024 to give evidence to present arguments relating to the issues arising in his case, explaining that it was unable to make a favourable decision on the information before it alone.
On 25 April 2024, the applicant wrote the Tribunal an email stating, “I won’t go to the hearing. Please rule directly. Thank you very much”.
On 20 May 2024, the Tribunal affirmed the delegate’s decision. The Tribunal set out the claims made by the applicant in the protection visa application. The Tribunal noted that the applicant was invited to an interview with the delegate that he did not attend.
The Tribunal noted that although the applicant provided lengthy responses to the questions in the protection visa application and in his statement accompanying it, much of the information was general in nature about the experiences of Christians in China, and only limited references made to his own circumstances. The Tribunal observed that had the applicant attended a hearing, he would have had an opportunity to clarify his claims and concerns and provide further detailed information. The Tribunal considered that the applicant had not provided sufficient relevant detail about his protection claims to be satisfied of them.
The Tribunal observed that it is not required to accept uncritically any and all of the allegations made by an applicant, and the mere fact that a person claims persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.
On the limited available material before it, the Tribunal was not satisfied that the applicant was a member of a house church in China or that he suffered as claimed, including numerous detentions by the authorities. It was not satisfied that he would face a real chance of harm, whether because of his religious beliefs, or otherwise, if he were to return to China. The Tribunal was also not satisfied that there was a real chance the applicant would face serious harm for reason of his religious beliefs, if he returned to China, now or in the reasonably foreseeable future.
Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant has not appeared at the hearing today at the scheduled time.
On 30 August 2024, orders were made by Registrar Downing that included for the applicant to file and serve written submissions, any amended application with proper particulars of the ground in his application, and any additional evidence on which he seeks to rely at least 14 days before the hearing. Nothing was filed within time, or has been filed.
On 12 September 2024, the applicant was sent a court book by email and express post by the Minister’s lawyers, and on 12 December 2024, the parties were given notice of the listing of this hearing by email. I am satisfied that the applicant was given notice of the hearing today.
On 10 January 2025, the applicant sent an ex parte email to our chambers requesting an adjournment of the hearing. The email was effectively sent in reply to the notice of listing. The matters that the applicant pointed to included that due to his personal circumstances he was not able to obtain a lawyer, but that he was actively seeking to engage one.
Our chambers brought the Minister’s lawyers into that communication on the same day. In short, the Minister’s lawyers did not consent to the adjournment application, and it was confirmed by our chambers that the matter remains listed for hearing today in those circumstances, but that any further oral application for an adjournment may be made today.
On 13 January 2025, the applicant was sent a letter by the Minister’s lawyers that served him with the Minister’s written outline of submissions. It also confirmed with him that the matter remains listed for hearing today at 10.00 am, and it provided him with the details of the court location and venue. The letter also gave notice to the applicant that:
If you do not attend on this occasion, the first respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.
The next day, 14 January 2025, the applicant sent another email to our chambers, copied to the Minister’s lawyers, requesting an adjournment of the hearing for an additional three months. He said in a lengthy email, effectively that due to the sensitive nature of his case, many lawyers are not willing to take on refugee-related matters. He said he has contacted multiple lawyers, but due to the complexity of the case and its sensitive nature, many lawyers were unwilling to take on his case.
In reply to that email, on 15 January 2025 our chambers confirmed that, in the absence of consent, the matter remains listed today. The email again told the applicant that it is open for him to make an oral application for an adjournment on the day of the hearing, and it was pointed out and qualified that the decision to adjourn the hearing or not is a matter for the judge on the day, and that he should be prepared, attend Court, and prepared to argue the matter as a final hearing in the event that any application for adjournment is refused.
As I have said, the applicant has not appeared in Court today in person. He did not answer his mobile telephone when the Court attempted to call him. It is now nearly 10.20 am and there has still been no appearance by or on behalf of the applicant. He has not supplied evidence in support of his application to adjourn the hearing. Even taking his emails at their highest, he the applicant has not provided details of the multiple lawyers that he has claimed to have contacted, who he has contacted, when he contacted them, how he contacted them and what the reasons that he has not been able to retain a lawyer are.
Had he appeared today in person or by audio-visual link - and I note that his email on 14 January 2015 recognised the ability to appear by AVL – I could have asked him to elaborate on these matters. I could have sworn him in to give evidence, further to the remarks made in his email. His failure to attend has meant that that has not been possible.
In the circumstances, I am satisfied that the applicant was notified of today’s hearing. He has engaged with the Court about it. I am also satisfied that he was put on notice by the Minister’s lawyers, not only of the hearing details, but that a failure to attend would result in the application that has been made today, that is, that his application be dismissed and that he pay the Minister’s costs of the legal proceedings.
In the circumstances, I consider it is appropriate to dismiss the proceedings pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021.
I will also order the applicant pay the Minister’s costs fixed in the sum of $6,500. In fixing that sum, I note that it is below the maximum amount that is specified in Sch 2, Pt 2, Div 1 of the GFL Rules for migration proceedings that have concluded at a final hearing, and I consider the amount sought is reasonable.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 17 February 2025
0
0
2