SZSTM v Minister for Immigration and Anor (No.2)

[2013] FCCA 1476

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTM v MINISTER FOR IMMIGRATION & ANOR (NO.2) [2013] FCCA 1476

Catchwords:
MIGRATION – Application to set aside dismissal in absence of applicant – relevant test – where applicant seeks to bring further evidence – where applicant misunderstands role of court in migration matters.

Legislation:  

Federal Circuit Court Rules 2001, r.16.05

Applicant: SZSTM

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 784 of 2013

Judgment of: Judge Raphael

Hearing date: 18 September 2013

Date of Last Submission: 18 September 2013

Delivered at: Sydney

Delivered on: 18 September 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $485.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 784 of 2013

SZSTM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant filed an Application on 16 April 2013 seeking a review of a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister not to grant him a protection visa.  The matter was set down for a first court date on 1 August 2013 at 9.30a.m.  The applicant did not attend.  On that day Ms Carr, who appears for the Minister, telephoned the applicant to find out why he had not attended.  This was done with the assistance of a Mandarin speaking interpreter.  The applicant advised that he had forgotten.  Although the Minister pressed for the Court to dismiss the application on that day it did not.  It put the matter over for a further directions hearing on 22 August. 

2. A letter was sent to the applicant at his address for service which is still his current address. He did not attend on 22 August. On 5 September 2013 the applicant filed an Application in a Case seeking to have the decision made on 22 August to dismiss the application set aside. The applicant is entitled to do that pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001.

3. In order to be successful in an application such as the one currently before me, the applicant must do two things.  Firstly, he must satisfy the court that there was good reason why he did not attend in the first place and secondly, he must demonstrate to the court that he has, at the very least, an arguable case on the merits.  In regard to the first matter the applicant’s excuse for not attending on the first occasion was that he had forgotten and his excuse for not attending on the second occasion was that he did not receive a copy of the letter.  However, the letter was sent to the address that he is living at and he clearly must have received letters there before.  The excuse he has made in regard to this is unimpressive.

4. The attitude taken by the court to these matters is that notwithstanding poor excuses for non-attendance, if there really is an indication of an arguable case that the Tribunal fell into jurisdictional error in the manner in which it reached its decision the court would be inclined to grant the relief sought.  This is because of the very serious nature of the claims being made by a person such as the applicant.

5. The court has looked at the decision record in this particular case.  The applicant claims that his well founded fear of persecution for Convention reasons arises out of the suggestion that he might be sterilised because his wife became pregnant with their third child in Hebei Province.  He tells that his wife has forcibly aborted.  For reasons which it expressed and which appear to the court to have been available to it on the evidence, the Tribunal found that the applicant’s claims in this regard are not credible.  In particular, it found no evidence whatsoever to support the proposition that males would be sterilised in Hubei Province in circumstances such as the one claimed. 

6. Decisions on the matters of credit are for the Tribunal to make and it is not for this court to interfere with them.  In his application, there are two grounds.  The first tells the story that I have just rehearsed.  The second says that his story is absolutely true and that the Tribunal failed to take his claims into account.  What the applicant appears to mean by this is that he disagrees with the Tribunal’s view of his credibility because the whole issue in the hearing before the Tribunal was the applicant’s story.

7. When the applicant appeared before me today he told me that if I reinstated the matter he would be able to obtain the information from China.  This indicates that he does not understand the nature of the proceedings in this court which is not an appeal against the decision of the Tribunal but a judicial review of it.  The court will not be able to receive additional evidence from China even if it contradicted the evidence given to the Tribunal or referred to by the Tribunal in its independent country information.

8. In the court’s view the applicant has failed to satisfy it of either of the matters which it had to consider in making its decision.  In those circumstances the application is dismissed.  The applicant shall pay the first respondent’s costs which I assess in the sum of $485.00.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  26 September 2013