BWF15 v Minister for Immigration and Border Protection

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is the hearing of an application which was filed as a notice of appeal from a decision of the Federal Circuit Court delivered on 7 April 2016. I will return to the nature of the application, but for the moment it is sufficient to note that it is a proceeding in which the appellant has sought to invoke the jurisdiction of this Court to appeal a decision of the Federal Circuit Court. The matter has been called on for hearing and there has been no appearance by the moving party. In those circumstances, the Minister has sought an order under r 36.75(1) of the Federal Court Rules 2011 (Cth) ("the Federal Court Rules") which permits the Court to dismiss a proceeding when it is called on for hearing in the absence of the appellant and the appellant is absent. 2 I have been shown three items of correspondence which occurred over a period of time in which the appellant was informed of the hearing of the matter today. The first is a letter from the registry of this Court dated 21 June 2016 to the appellant at two addresses she had given to the Court, informing her clearly of the time and place of the hearing of her application. The second is a letter from the solicitor of the Minister dated 24 June 2016 to the appellant, giving to her a copy of the letter from the Court and, amongst other things, informing the appellant, again, of the hearing of this proceeding today at this time and in this place. The third is a subsequent letter dated 29 July 2016 from the solicitor of the Minister enclosing the Minister's submissions and list of authorities. That letter also informs the appellant that the matter was listed to be heard today at this place at this time. 3 There has been, apparently, no response from the appellant to any of this correspondence. The matter has been called, and she has been called both by reference to the name of the proceeding and her name individually, but there has been no response. In those circumstances it is appropriate to make the order that is sought on behalf of the Minister. In doing so, however, I should indicate that I have had the opportunity to read the materials that had been filed in the proceeding and had formed a view that the proceeding lacked substance. The materials included the notice of appeal, an affidavit by the appellant dated 10 April 2016, the Minister's notice of objection to competency, the Minister's submissions, two decisions of the Federal Circuit Court and the Tribunal decision record. 4 The appeal was from a decision of the Federal Circuit Court delivered on 7 April 2016 which determined an application that had been made to set aside an order which had been made on 3 February 2016. On 3 February 2016, the Federal Circuit Court had dismissed an application by the applicant under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) ("the Federal Circuit Court Rules") on the basis that the applicant had failed to appear at the hearing on that day. The explanation she gave subsequently for the failure to have attended the hearing on 3 February 2016 was described by his Honour as being "entirely unsatisfactory" but his Honour considered also whether the applicant had identified any sufficiently arguable jurisdictional error by the Tribunal to warrant the making of any order setting aside the order which had been made on 3 February 2016. 5 The dismissal by the Federal Circuit Court of the applications on 3 February 2016 and 7 April 2016 are interlocutory and, therefore, any appeal to this Court requires leave: Federal Court of Australia Act 1976 (Cth), s 24(1A). The appellant did not apply for leave as required by r 35.12 of the Federal Court Rules but in an affidavit dated 10 April 2016 she purported to apply for leave to appeal from the judgment of the Federal Circuit Court on 7 April 2016. The Minister objected to the competency of the proceeding as an appeal but in the submissions did not submit that the proceeding ought not to be treated as an informal application for leave to appeal and not to dispense with the formal requirements. The Minister had submitted in writing, however, that a consideration of the merits of her appeal indicated that the decision from which the appeal was sought did not have about it sufficient doubt to justify considering the correctness of the decision doubtful or that there would be substantial injustice resulting if the appeal were not allowed to be pursued. 6 In deciding whether to grant leave to appeal it is relevant to consider whether there is sufficient doubt about the correctness of the decision sought to be appealed from, and whether substantial injustice would result if leave were refused supposing the decision to be wrong: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36, 38; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399. The party seeking leave has the onus of establishing the matters required to be shown for the grant of leave to be appropriate: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654, [56]; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105, [26]; and SZTKB v Minister for Immigration and Border Protection [2014] FCA 653, [7]-[8]. In that context the task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error and not to undertake for itself a review of the proceeding on its merits: see SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129, [11]. The task of the Federal Circuit Court in dealing with an application for judicial review brought by the appellant was to determine whether the decision of the Tribunal was affected by jurisdictional error: Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 7 The notice of appeal which was filed in these proceedings had five paragraphs which were repeated as grounds of appeal in the affidavit seeking leave to appeal. The five paragraphs were: 1. When I was 18 years old, my mother started practicing Falun Gong and she told me that practicing Falun Gong is good for health and when I had time I also practicing it. From 2013, my mother asked our restaurant as their Falun Gong gathering place for Falun Gong followers. I feared if our local police found it, I and my husband would be persecuted. But finally, my husband and I agreed to it. We closed our restaurant early every Sunday for the practicing Falun Gong. 2. On 2 March 2013, the police came to our restaurant I, my mother and 8 others were taken to the police station where the police beat and detained us. I was fined 10,000 Yuan and our restaurant licence was revoked as a penalty. Even we paid the fine, they still didn't allow our restaurant to open. We lost livelihood. I was forced to report to the police station every weekend. 3. My human rights and religious freedom had been forcibly deprived by the Chinese authorities. 4. The Tribunal member said: "The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that is a "well-found" or that is for the reason claimed. [No.19 of green book] Is it not significant harm that I was beaten and detained in China police station? The Tribunal member ignored the true fact of my being beaten and detained. I believe the Tribunal member was biased against me, making jurisdictional error. 5. The Federal Circuit Court affirmed the Tribunal decision. None of these grounds taken individually or together identified reviewable error by the Federal Circuit Court or by the Tribunal. The grounds, rather, are complaints about the facts found by the Tribunal which were within the power of the Tribunal to find on the material before it. What the grounds sought was impermissible review by this Court of the merits of the case which it was for the Tribunal to undertake and determine. 8 The grounds of appeal to this Court are not the same as, but some overlap, those which had been raised in the application to the Federal Circuit Court for review of the decision by the Tribunal. At [8] his Honour had set out the grounds which were identified in the application as being: 1. I am scared to return back to China, because there really exists the persecution targeted towards the followers of Falun Gong Cult in China. If I returned to China, I would certainly be monitored by the staff from the Chinese governmental department due to my pratcticing Falun Gong. Even I could be arrested and detained without any freedom or human rights in China. 2. I did not contact any institution that support practicing Falun Gong Cult because I was so afraid there are Chinese spies to supervise Falun Gong practitioners in Australia as well. I can only practice it at home, alone. 3. My ex-husband left me because I was detained in jail and practice Falun Gong. In china it is a shame that somebody have stayed in jail for even one second. My ex-husband cannot tolerate to live with a Falun Gong practitioner as well. 4. AAT failed to consider my actual living condition in China and the risk I return there. 5. I hope the Federal Circuit Court of Australia could consider my situation back to China and do justice for me. His Honour dealt with those grounds at [11]-[15] of his decision finding that none of them amounted to an arguable jurisdictional error. There appears to be no error in his Honour's reasoning or conclusions. His Honour noted also that the appellant had maintained from the Bar table that she could not go back to China and concluded at [16] by noting that nothing that had been said from the Bar table identified any arguable jurisdictional error. 9 The five matters raised in the grounds of appeal to this Court similarly failed to disclose any error that would justify the grant of leave to appeal. The first three grounds repeat facts and conclusions which the Tribunal did not accept and which the Court cannot review on the merits: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. The fourth ground was not one which had been raised before the Federal Circuit Court but is also sought to challenge the findings made by the Tribunal which were for the Tribunal to make on the material available to it. 10 The fourth ground also claims that the Tribunal member was biased but contains no evidence or other material to establish the claim. Bias is a serious allegation which must be firmly and distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531. A party would ordinarily need to show some conduct on the part of the Tribunal member that would indicate that he or she was guilty of prejudgment or was in some way biased in order for a claim of bias to be established: see SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749, [44]. There is no basis or evidence upon which a claim for bias can be made and no inference to that effect can be drawn from the mere fact of adverse findings in the Tribunal in its reasons: see VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, [21]. The fifth ground in the notice of appeal states only that the Federal Circuit Court affirmed the decision and is of itself not a claim of any error. 11 His Honour correctly identified the principles which govern the exercise of power under r 16.05 of the Federal Circuit Court Rules as those established in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, [7]. The appellant has not demonstrated that the judge made any error of the kind identified in House v The King (1936) 55 CLR 499, 505 in the exercise of the discretion. Accordingly, the appeal did not have about it significant prospects of success to have warranted the grant of leave. 12 Accordingly, the application will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.