SZSQQ v Minister for Immigration

[2013] FCCA 1030

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1030

Catchwords:
MIGRATION – Review of the decision of the Refugee Review Tribunal – no appearance by the applicant – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:
Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.13.03, 44.12

Applicant: SZSQQ

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 475 of 2013

Judgment of: Judge Nicholls

Hearing date: 31 July 2013

Date of Last Submission: 31 July 2013

Delivered at: Sydney

Delivered on: 31 July 2013

REPRESENTATION

The applicant: No appearance

Appearing for the Respondents: Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 12 March 2013 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3239.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 475 of 2013

SZSQQ

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 12 March 2013 pursuant to s.476 of the Migration Act 1958 (Cth) which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 February 2013 affirming the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

2. I also have before me today a bundle of relevant documents (Court Book – “CB”) filed by the Minister’s solicitors.

3. The applicant is a citizen of the People’s Republic of China (“China”) (CB 2).  She arrived in Australia on 26 December 2011 (CB 3) and applied for a protection visa on 13 March 2012 (CB 1 to CB 36, including attachments). She was assisted in that application by a migration agent, Ms Jie Yu of Eternity International (CB 23 and CB 26 to CB 27).

4. Her claims to protection, as set out in a “Personal Statement”, were that she feared persecutory harm for the reason of being a Falun Gong practitioner in China (CB 31 to CB 36).

5. That application was refused by the Minister’s delegate, following an interview with the applicant, on 6 August 2012 (CB 49 to CB 61).

6. The applicant then applied for review by the Tribunal on 28 August 2012 (CB 62 to CB 67).  She submitted various documents to the Tribunal in support of her application (CB 88 to CB 89 and CB 91 to CB 97).

7. The Tribunal affirmed the delegate’s decision and notified the applicant by letter on 8 February 2013 (CB 99). Essentially, the Tribunal found that the applicant “…was not a truthful witness and that she [had] fabricated her claims” and as a consequence it refused the application for a protection visa ([81] at CB 117).

8. When the matter was first before the Court on 29 April 2013, the applicant appeared in person and was assisted by an interpreter in the Mandarin language.

9. The applicant was referred to a lawyer on the panel of the court’s “RRT Legal Advice Scheme”. A Certificate on the Court’s file from Mr D. Godwin of counsel certifies that he met with the applicant and provided written advice to her. 

10. At that time, the Minister sought that the matter be set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”). I agreed to that request and set the matter down for show cause hearing on 26 July 2013.

11. On that occasion the applicant did appear. However, an interpreter, whose presence had been arranged by the Court’s Registry, did not attend on that occasion and the matter was adjourned until today. I note that an interpreter using the “Telephone Interpreting Service” was used to provide this information to the applicant on that day.

12. When the matter was called today there was no appearance by the applicant. The Minister has applied for the matter to be dismissed pursuant to r.13.03C(1)(c) of the Rules.

13. I rely on the evidence of Mr Baird (the Minister’s solicitor), given to the Court today under oath, as to a telephone conversation that he had with a person who he believed to be the applicant using the services of an interpreter in the Mandarin language. This was a conversation which was interpreted from English to Mandarin and then Mandarin to English by that interpreter.

14. I am satisfied, on that evidence, that the applicant had notice of the Court event today and that her absence from Court is explained by her statement to Mr Baird that she did not wish to attend today and nor did she wish to attend on any future occasion. 

15. In those circumstances, I am satisfied she had reasonable notice. I am also satisfied that it is not appropriate to further adjourn this matter given the applicant’s statement to Mr Baird that she did not wish to attend at any further opportunity.

16. In all the circumstances it is appropriate that I make the order sought by the Minister. 

17. It is also appropriate that a costs order be made in this matter.  There is no argument that I can see to argue against it.  The applicant’s absence today is explained. As to the amount, I am satisfied that the amount sought is reasonable in the circumstances given the work that has actually been done by the Minister’s solicitors.  I will make the order in the amount sought.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 August 2013