SZFQQ v Minister for Immigration
[2006] FMCA 248
•22 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFQQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 248 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – non appearance of applicant at judicial review hearing – serious issue to be tried – refusal of leave for late notice of discontinuance. |
| Migration Act 1958 (Cth), s.424A, 426A |
| SZECF v Minister for Immigration [2005] FCA 1200 |
| Applicant: | SZFQQ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG307 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 22 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2006 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondent: | Ms C Gray Sparke Helmore |
INTERLOCUTORY ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
The Minister is to arrange to have these orders entered and the Minister is to serve a sealed copy of these orders on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG307 of 2005
| SZFQQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 5 January 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Relevant background is contained in paragraphs 2-7 and I adopt those paragraphs of the Minister's written submissions as background for the purposes of this judgment:
The applicant, a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 6 September 2004: court book, page 11. On 8 September 2004, the applicant lodged an application for a protection visa: court book, pages 1–22. On 29 September 2004, a delegate of the Minister refused to grant him a protection visa: court book, pages 31‑38. He applied for review of that decision to the RRT on 26 October 2004: court book, pages 39–42.
Applicant’s claims
The applicant claimed that he had a well founded fear of persecution because he was a key member of the underground Christian Church in the PRC: court book, pages 27.5, 44.9 and 59.9. He was sent by the Church to Chongqing city after he finished school to spread the gospel. He transported bibles and overseas religious propaganda within the PRC. He claimed that he was detained by the Public Security Bureau (“the PSB”), released after paying a bribe but thereafter followed by strangers and targeted by the PSB: court book, pages 27.9, 45.3 and 59.10. He claimed in his RRT review application that he was able to exit the PRC legally on his own passport because his role in the underground Church was only discovered by the authorities after he left the PRC: court book, pages 45.7 and 60.9.
RRT’s approach and findings
On 10 November 2004, the RRT sent a letter to the applicant (and his adviser) notifying that it had considered all the material before it but was unable to make a favourable decision on that information alone: court book, pages 48–49. The RRT invited the applicant to give oral evidence and present submissions at a hearing on 6 December 2004.
On 14 November 2004, a response to the hearing invitation was received indicating that the applicant wished to attend the RRT hearing: court book, page 50. However, the applicant failed to attend his hearing on the day and at the time and place at which he was scheduled to appear: court book, page 51. In these circumstances the RRT was specifically empowered to make its decision on the review without taking any further action to enable the applicant to appear before it: s.426A(1) of the Migration Act 1958 (Cth) (“the Migration Act”).
On 5 January 2005, the RRT handed down its decision affirming the decision of the delegate to refuse the applicant a protection visa: court book, pages 56-63.
The RRT found that:
i)the applicant’s claims of harm were untested assertions, unclear and lacking in detail. As such, it was not satisfied that he was a Christian, a key member in an underground Christian Church in the PRC or feared persecution in the PRC: court book, page 61.7;
ii)he did not provide details about what Christian Church he was involved in, how he came to be involved in that church, whether he is a practising Christian in Australia, and if so where he attends Church, and where he was allegedly detained: court book, page 61.9;
iii)it did not accept that the applicant worked as a secret liaison person of the underground Christian Church, he was detained for religious activities or that he was sent to Chongqing city in order to further the activities of the Church. The RRT considered it more likely that he went to Chongqing city to seek employment when he finished school: court book, page 62.1;
iv)the RRT did not accept that the applicant became the main target of the PSB. It found his claim to be followed by strangers after he was released from detention and targeted by the PSB was not consistent with his claim that he was able to leave the PRC legally using his own passport. It found that the explanation he gave for his ability to leave on his own passport, namely, that he was able to leave because the authorities at that time did not have evidence against him, was not consistent with his earlier claims that he was detained, followed after his release and came to the attention of the authorities: court book, page 62.2;
v)the applicant would have provided further details and clarification of his claims if they were genuine and could be sustained: court book, page 62.6; and
vi)there was no plausible evidence before it that the applicant would suffer serious harm because of his activities with the underground Christian church: court book, page 62.7.
The applicant relies upon an application filed on 4 February 2005 which asserts a want of natural justice in the decision of the RRT. The particulars include an allegation that the RRT failed to comply with s.424A of the Migration Act.
The applicant has failed to appear at today's hearing. The applicant attended a directions hearing in this matter before Registrar McIllhatton on 15 February 2005 at which time orders were made by consent, including an order listing the matter for final hearing before me today at 10.15am. The applicant had the assistance of a Mandarin interpreter and should have been left in no doubt as to his need to attend court today.
Exhibit R1 is a letter from the Minister's solicitors to the applicant at his address for service providing him with a copy of the Minister's written submissions and reminding him that the matter was listed for hearing today at 10.15am before me in the Law Courts Building at Queens Square. The applicant was specifically reminded that he was required to attend.
The matter has been called three times and there has been no appearance by or on behalf of the applicant. On the third occasion the applicant was called by name. There is no explanation for his non‑attendance. The Minister seeks the dismissal of the application on account of that non-attendance, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth). I agree and will so order.
If, in the future, the applicant is able to provide a sufficient explanation for his non-attendance at court I wish to make clear that, in my view, there is a serious question to be tried.
In the course of giving reasons for her decision the presiding member said (court book, page 62):
It would be expected that some further details and clarification of the above matters [those being issues relating to the applicant's protection visa claims] would be forthcoming from the applicant, either in writing in the applications or orally at a hearing, if his claims were genuine and could be substantiated.
This appears to be an adverse credibility finding based upon the form and content of both the review application and the earlier protection visa application and also based upon the failure of the applicant to attend a hearing before the RRT to which he had been invited and which application he had accepted.
There is Federal Court authority binding upon me[1] to the effect that if a reason or a part of a reason for a tribunal decision is the form and content of a protection visa application that has not been specifically adopted for the purposes of a review application, written notice of the significance of the form and content of the visa application is required pursuant to s.424A(1) of the Migration Act.
[1] SZECF v Minister for Immigration [2005] FCA 1200
Secondly, in purporting to make an adverse credibility finding based upon the failure of the applicant to attend a hearing, the presiding member was venturing where angels fear to tread. Section 426A of the Migration Act entitles but does not require the RRT to proceed in the absence of an applicant who is properly invited to a hearing and who fails to attend. It does not entitle the RRT to base an adverse credibility finding on that failure to attend without any opportunity being given to the applicant to explain that non-attendance.
The applicant had accepted the invitation to attend and there is nothing to indicate that any reason for non-attendance was available to the RRT. There may have been any number of reasons why the applicant failed to attend. If the RRT wishes to base an adverse credibility finding upon the failure of an applicant to attend a hearing, in my view, written notice of that information, being the failure of the applicant to attend, and the significance of that information is required to be given pursuant to s.424A.
I make no finding at this stage for the purposes of this proceeding but if the matter does proceed to a final hearing that would, in my view, be a serious issue requiring a trial.
Costs should follow the event based upon the failure of the applicant to attend the hearing. The Minister seeks an order for costs fixed in the sum of $3,500. I have no difficulty in accepting that costs of at least that amount have been reasonably and properly incurred by the Minister when assessed on a party and party basis having regard to the court book, the Minister's written submissions and the two attendances at court hearings that have been required.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.
I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of the orders to be served upon the applicant by ordinary prepaid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.
Addendum
Since giving judgment in this matter it has come to my attention that the applicant attempted to file a notice of discontinuance shortly after the hearing on 22 February 2006. Leave was required for the filing of the notice of discontinuance pursuant to rule 13.01(2)(b) of the Federal Magistrates Court Rules. I declined to grant leave as I had already dismissed the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 March 2006
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