SZSGD v Minister for Immigration & Anor (No.1)

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSGD v MINISTER FOR IMMIGRATION & ANOR (No.1)

[2013] FCCA 714

Catchwords:
MIGRATION –Refugee 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), Reg.13.03C

Applicant:

SZSGD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2724 of 2012

Judgment of:

Judge Emmett

Hearing date:

26 June 2013

Date of Last Submission:

26 June 2013

Delivered at:

Sydney

Delivered on:

26 June 2013

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitor for the Respondent:

Ms Nicola Johnson

(Sparke Helmore Laweyers)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2724 of 2012

SZSGD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 22 November 2012, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing. The applicant’s initiating application seeks a determination of the issue of whether a decision of the Refugee Review Tribunal (“the RRT”), dated 24 October 2012, is affected by jurisdictional error.
The first respondent’s application this morning is made pursuant to rule 13.03C of the Federal Circuit Court Rules2001 (Cth).
In support, the solicitor for the first respondent, Ms Johnson, tendered a letter, dated 18 June 2013, from the first respondent’s solicitors addressed to the applicant at her last notice of address for service filed with the court on 1 May 2013. That letter was marked ‘Exhibit 1R’.
Exhibit 1R enclosed, by way of service, a copy of the first respondent’s submissions and also informed the applicant that the matter was listed for hearing today at 10.15am before me and provided the location of the court room for today’s hearing. The letter also advised the applicant that if the applicant did not attend, the first respondent may seek to have the matter dismissed with costs.
The applicant’s initiating application, filed on 22 November 2012, provided for a first directions hearing on 22 February 2013.
On 22 February 2013, the applicant attended a directions hearing with the assistance of an interpreter and was given leave to file and serve an amended application, any affidavit evidence in support and submissions in support of her application.
I further note that on 22 February 2013, the matter was set down for hearing today at 10.15am. I also note that the address of the court room provided on the occasion was incorrect. However, the Court’s orders made on 22 February 2013 do note that it is the responsibility of each party to ensure that they know the location of the court room where the matter is to be heard. I also note that Exhibit 1R advises the applicant of the correct location of today’s hearing.
It is now 10.44am. The applicant has been called outside on at least three occasions and there has been no appearance by or on behalf of the applicant. Further, there has been no communication received either by the first respondent’s solicitors or the Court from the applicant seeking an adjournment of today’s hearing or for any other reason.
Further, I note that the grounds of the application make bare assertions, are unsupported by particulars, evidence or submissions and do not disclose an error capable of review by this Court.
However, on 11 June 2013, the applicant filed three affidavits. One affidavit appears to be in the nature of submissions. A further affidavit annexes material that appears to post-dates the RRT’s hearing. The third affidavit annexes further information that appears to have been in the nature of country information in relation to the treatment of failed asylum seekers returning to Sri Lanka and to have been accessed from the internet.
Having regard to the failure of the applicant to appear at today’s scheduled hearing, the orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court commenced by way of application filed on 22 November 2012 should be dismissed with costs pursuant to rule 13.03C of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled hearing.

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

Associate:

Date: 9 July 2013

The applicant, SZSGD, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant, who is of Iranian nationality, claimed to have been persecuted in Iran due to his membership of a religious minority and his political opinions. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be at risk of persecution if returned to Iran. The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was asked to consider whether the delegate had failed to properly consider the applicant's claims of persecution, particularly in relation to his membership of a religious minority and his political opinions. The applicant argued that the delegate had made findings of fact that were not supported by the evidence and had failed to apply the correct legal principles in assessing the risk of persecution.

Emmett J found that the delegate had made a number of errors in assessing the applicant's claims. His Honour noted that the delegate had failed to adequately consider the evidence relating to the applicant's religious beliefs and practices, and had made unsubstantiated findings about the applicant's political opinions. Furthermore, the delegate had applied an incorrect standard in assessing the risk of persecution, requiring the applicant to prove that he would be persecuted rather than establishing that there was a real chance of persecution. Consequently, Emmett J concluded that the delegate's decision was affected by jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established