SZSBL v Minister for Immigration and Citizenship

[2013] FCCA 762

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSBL v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR [2013] FCCA 762

Catchwords:
MIGRATION – Migration Review Tribunal.
PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation: 
Federal Circuit Court Rules 2001(Cth), r.13.03C(1)(c).

Migration Act 1958 (Cth) ss.36, 65, 426A.

Applicant: SZSBL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2383 of 2012

Judgment of: Judge Emmett

Hearing date: 9 July 2013

Date of Last Submission: 9 July 2013

Delivered at: Sydney

Delivered on: 9 July 2013

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Mr Julian Pinder (Minter Ellison)

Solicitors for the Second Respondent: Minter Ellison

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2383 of 2012

SZSBL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 22 October 2012, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. In support of that application, the first respondent’s solicitor, Mr Pinder, tendered two letters dated 28 June 2013 and 4 July 2013 from the first respondent’s solicitors to the applicant.  Those letters were marked exhibit 1R and exhibit 2R respectively. 

3. Exhibit 1R enclosed the first respondent’s Outline of Submissions and advised the applicant as to the location of the court room for today’s hearing, and informed the applicant that if she did not appear at the scheduled hearing, the first respondent may apply to have the matter dismissed pursuant to rule 13.03C(1)(c) with costs. Exhibit 2R enclosed by way of service the first respondent’s list of authorities and, again, repeated the information referred to. I also note on 27 June 2013 the Court wrote to the applicant at the only address provided by the applicant informing her of the location of the court room for today’s hearing in circumstances where it differed from the location of the court room identified in the order made by the Court on 18 December 2012.

4. On 18 December 2012 the applicant attended a hearing before me. On that occasion the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon by the 15 February 2013, and to file and serve any evidence in support by way of affidavit by 15 February 2013. The applicant was also directed to file and serve written submissions in support of her application 14 days before the hearing, and the matter was set down for final hearing today before me. I note that the address provided at that time at 80 William Street, Sydney is incorrect and, hence, the relisting letter from the Court was sent on 27 June 2013. 

5. I do note, however, that the applicant was also informed on that order that it is the responsibility of each party to ensure that they know the location of the court room where their matter is to be heard.  At that directions hearing the applicant elected to participate in the Court’s legal advice scheme.  I note that the certificate by the panel member states that, “No meeting.  No response to my letter and her mobile did not answer”. The panel adviser provided written advice to the applicant.

6. I further note that at the directions hearing the applicant was provided with the contact details of legal service providers and translating and interpreting services in documents headed in her own language, and that she had the assistance of a Mandarin interpreter to assist her at that directions hearing. On 20 February 2013 the Court made orders extending time to the applicant to 15 March to file any amended application or additional evidence by way of affidavit. I note that there has been no document filed by or on behalf of the applicant, either in accordance with the Court’s directions or otherwise.

7. The matter has been called on at least three occasions outside this morning.  The matter was always listed today at 10.15.  It is now 10.33 and there has been no appearance by the applicant.

8. I further note that the grounds relied on by the applicant in her Application filed on 22 October 2012 do not disclose any error capable of review by this Court. They are bare assertions, wholly unparticularised and unsupported by evidence or submissions. The grounds of the application appear to be identified under the headings Final Orders Sought By Applicant and The Grounds Of The Application.  They are as follows:

   “Final Orders Sought by Applicant

   1. I disagree with Immigration and the RRT’s decision. They did not consider that I will be in danger if I return.

   2. RRT did not consider that I will be persecuted and in big trouble if I return home.

   3. Immigration questioned me at the interview made me feel very up sad. They did not trusted me and I do not think they had the right attitude to my application. Immigration should grant my application.

   The Grounds of the Application

   1. I am a Chinese citizen and FalunGong practitioner who has been persecuted by Chinese government. I had been arrested by the corrupted government and police.

   2. I can not go back to China since I am very scared to be sentenced.

   3. The Chinese government still looks for me if I return. My friends told me not to go back since the police are still looking for me.”

9. I note that the first respondent’s written submissions filed on 28 June 2013 make clear that the applicant failed to appear at the hearing before the Refugee Review Tribunal (“RRT”). The first respondent contends that the applicant was invited to attend a hearing before the RRT in accordance with the legislative regime, and that in the absence of the appearance of the applicant the tribunal exercised its discretion under s.426A of the Migration Act 1958 (Cth) (“the Act”) to proceed to make its decision without taking any further steps to allow or enable the applicant to appear before it.

10. I note the first respondent’s submissions that in circumstances where the applicant failed to attend the hearing before the RRT, there is no error in the RRT’s failure to reach a state of satisfaction required for the grant of a protection visa. I note that in circumstances where the RRT is not satisfied that the applicant meets the criteria for a protection visa, s.65(2) of the Act mandates that the applicant must be refused a protection visa. I further note that the first respondent contends that the RRT properly considered whether the applicant was entitled to protection under the alternative criteria in section 36(2)(aa) and that it did so without error.

11. There has been no communication received by the first respondent’s solicitors or this Court from the applicant, either seeking an adjournment of today’s hearing or for any other reason.

12. In the circumstances I am satisfied that the orders sought by the first respondent are appropriate, and that the proceeding before this Court, commenced by way of application filed on 22 October 2012, should be dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  23 July 2013