FEDERAL COURT OF AUSTRALIA

CEK15 v Minister for Immigration and Border Protection [2017] FCA 227

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 15 December 2016 by the applicant be dismissed.

2.    The costs of the first respondent be paid by the applicant, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an interlocutory application filed on 15 December 2016 and brought in accordance with s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) and r 35.33(2)(a) of the Federal Court Rules 2011 (Cth). The applicant seeks to set aside previous orders of this Court made on 16 November 2016, and to reinstate an appeal against the decision of the Federal Circuit Court in CEK15 v Minister for Immigration & Anor [2016] FCCA 1366. The orders of this Court the applicant seeks set aside are:

1.    The matter be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.    Costs be awarded to the first respondent fixed in the amount of $1,750.00.

3.    …

Background

2    In CEK15 v Minister for Immigration & Anor [2016] FCCA 1366 a Judge of the Federal Circuit Court dismissed an application by the applicant for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), in which the Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa under the Migration Act 1958 (Cth).

3    The applicant is a citizen of the People’s Republic of China who arrived in Australia on 8 February 2014 holding a subclass 600 visitor visa. The applicant claimed that she and her husband wished to have a second child, and that in 2013 while still in China she and other women were taken to a hospital for a pregnancy screening. She said that the hospital informed her that she was two months pregnant. After an unsuccessful attempt to escape the hospital, she suffered a miscarriage. The Tribunal identified the applicant’s principal claim as being that, if she returned to China, she would suffer serious or significant harm because of the application of China’s “one-child” policy, and in particular that if she became pregnant she would be forced to undergo an abortion.

4    Materially, the Tribunal found that because the applicant had a “rural hukou” and because her first and only child was a girl, the applicant would be unlikely to experience the difficulties from the planning authorities in China that she claimed to fear. It followed that the Tribunal was not satisfied that the applicant would suffer harm in the manner she claimed. Further, the Tribunal considered that because the applicant was not pregnant at the time of her application or appearance before the Tribunal, her claim to fear harm in China rested entirely on the assumption that she would fall pregnant once more.

5    The grounds of the application for judicial review of the Tribunal’s decision in the Federal Circuit Court were as follows:

We had a daughter in 2000. But according the Chinese tradition, we must have a son. In Dec. 2013, our local family planning officials took me and other women to hospital for pregnancy screening. I was found to be two months pregnant, after an unsuccessful attempt to escape, suffered a miscarriage.

My husband and me still want to have a son. It would not be possible to do so in China and so we planned for me to go to democratic countries that protect human right. After which my husband would win down our business and join me with our daughter. Then we would be free to have one son or even more. With the agent assistance, I got to Australia.

I can’t return to China as I have no right to have a child in China. I request that the Australian government to grant me a humanitarian visa to let me stay in Australia.

Unfortunately the Tribunal member didn’t know the China real fact of depriving of women’s tights of having more than one child.

The fact was I was ever forced to hospital for abortion in Dec. 2013. But the office didn’t pay attention to it. The Tribunal member made jurisdictional error while making his decision of refusing my application.

(Errors in original.)

6    The primary Judge accepted the Minister’s submission that, in substance, the applicant sought impermissible merits review of the Tribunal’s decision. His Honour continued:

15.    On the material before the Court the findings of the Tribunal were open and the applicant had a genuine hearing. There was nothing before the Court to establish that the Tribunal’s decision was not carried out and made in accordance with the statutory regime. There was no material before the Court to establish that the applicant was denied any procedural fairness. It was a matter for the Tribunal to determine the dispositive issue that was clearly raised by the applicant at the hearing in relation to China’s family planning policy.

7    His Honour dismissed the application for judicial review, with costs.

8    The applicant appealed from the decision of the Federal Circuit Court on the following grounds:

We have a daughter in 2000. My husband and I all wanted having a son. In December 2013, I was taken to hospital for a pregnancy screening. I was found to be two months pregnant and after an unsuccessful escape, suffered a miscarriage.

We all still wanted to have a son. But in china it isn’t possible to do so in. So my husband planned for me to united states or Australia. At last, I got an Australian visa and came here I applied protection visa, But the Tribunal member didn’t believe that if I returned to China I would suffer significant ham. The fact is that if I returned to China and I want to have a son, the authorities will take me to hospital for pregnancy screening any time. As soon as they find I am pregnant, they will force me for abortion again. They continue depriving of my right of having son. I think the Tribunal member made jurisdictional error while making his decision of refusal.

Unfortunately, the Federal Circuit Court affirmed the Tribunal member’ decision.

(Errors in original.)

9    The hearing of the appeal was listed for hearing on 8 November 2016. Due to my unavailability on that day the hearing was vacated and relisted for 3 pm on 16 November 2016. At the relisted hearing on 16 November 2016 the applicant failed to appear. I made orders dismissing the appeal and costs, which the applicant now seeks to have set aside, and an order granting the applicant liberty to apply.

10    On 19 December 2016, after the applicant filed her interlocutory application, I made programming orders directing the parties to file submissions in respect of that application. I further ordered that the interlocutory application be listed for hearing on 6 March 2017, and that the final appeal be heard on that date if the interlocutory application were successful.

Hearing of the interlocutory application

11    Notwithstanding the programming orders of 19 December 2016 the applicant filed no written submissions in support of her interlocutory application.

12    At the hearing the applicant appeared in person with the aid of an interpreter. Through the interpreter the applicant made oral submissions explaining her failure to attend the hearing of the appeal of 16 November 2016. However notwithstanding my invitation that she do so, the applicant made no oral submissions in support of her claim that the decision of the primary Judge was infected by error and should be set aside.

13    I note that no written submissions have been filed at any time by the applicant referable to the substantive appeal in this matter.

14    The Minister opposed the reinstatement of the appeal, primarily on the basis that the grounds of appeal disclosed no merit.

Consideration

15    As the Full Court explained in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 250 at [13], in circumstances where an appeal has been dismissed for want of appearance of the appellant, for the appellant to successfully argue reinstatement of the appeal it is necessary to show that:

    there is a satisfactory explanation for the appellant’s absence at the original hearing; and

    there is an arguable case in the principal proceeding.

16    In support of her interlocutory application the applicant filed an affidavit deposing that she was not notified of the relisted Court date for the hearing of the appeal on 16 November 2016.

17    The Minister does not contend otherwise. Correspondence on the Court file is not conclusive that the applicant was so notified. To that extent, I accept the applicant’s evidence that her failure to appear on 16 November 2016 was because she had not been notified of the relisted date of the appeal.

18    However, while the applicant may have a satisfactory explanation for failing to appear at the relevant hearing, this does not mean that there is an arguable case in the principal proceeding. Considering the material before me, I am not satisfied that even were the appeal to be reinstated, the applicant has demonstrated that she would have an arguable case in her appeal. In this respect I note that:

    the grounds of appeal to this Court are vague, unparticularised, identify no error (other than the applicant’s assertion that “the Tribunal member made a jurisdictional error”) and invite impermissible merits review of the decision of the Tribunal;

    the applicant has filed no written submissions identifying error of any kind made by either the primary Judge or the Tribunal;

    at the hearing I asked the applicant to make oral submissions identifying errors in the decision below. The applicant was unable to do so; and

    no errors in the decision of his Honour below are apparent to me.

19    It follows that the proper order is to dismiss the interlocutory application, with costs.

Associate:

Dated:    8 March 2017