SZSWT v Minister for Immigration and Border Protection
[2014] FCA 953
•3 September 2014
FEDERAL COURT OF AUSTRALIA
SZSWT v Minister for Immigration and Border Protection [2014] FCA 953
Citation: SZSWT v Minister for Immigration and Border Protection [2014] FCA 953 Appeal from: SZSWT v Minister for Immigration and Border Protection [2014] FCCA 848 Parties: SZSWT v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 472 of 2014 Judge: PERRY J Date of judgment: 3 September 2014 Catchwords: MIGRATION – No question of principle Legislation: Federal Court of Australia Act 1976 (Cth) ss 22(2B)(bb)(ii), 37M, 37N
Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65Cases cited: SZSWT v Minister for Immigration and Border Protection [2014] FCCA 848 Date of hearing: 3 September 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: The appellant did not appear Solicitor for the Respondents: Mr Z Chami, Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 472 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSWT
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
3 SEPTEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 472 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSWT
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE:
3 SEPTEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised From Transcript)
1. INTRODUCTION
The appellant is a citizen of the People’s Republic of China and applied for a Protection (Class XA) Visa (protection visa) on 29 November 2011. By notice of appeal filed on 14 May 2014, the appellant appeals the orders and reasons for judgment of the Federal Circuit Court of Australia (Court below) delivered on 28 April 2014: SZSWT v Minister for Immigration and Border Protection [2014] FCAA 848.
In this Court and in the Court below, the appellant was unrepresented, although he apparently had the assistance of Counsel before the Court below in preparing an amended application that the respondents show cause why a remedy should not be granted.
2. THE APPLICATION FOR DISMISSAL UNDER R 36.75
The appellant did not attend at the hearing of the appeal today and did not file any written submission. However, he advised the Registry this morning that he would not be attending Court because he was unwell and unable to obtain legal assistance.
The Minister applied to the Court for an order that the appeal be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) which permits an opposing party to apply for an order dismissing the appeal where a party is absent when the appeal is called on for hearing. The power to make such an order is conferred by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).
In the circumstances, I consider that any application for an adjournment by the appellant should be refused and that it is appropriate to make the order sought by the Minister.
First, the appeal has already been adjourned on two previous occasions at the appellant’s request. As noted in the orders made on 18 August 2014, the hearing of the appeal on 12 August 2014 was vacated by the Court upon receiving a medical certificate advising that the appellant was unwell, as was the hearing subsequently set down for 15 August 2014 upon the Court receiving a further medical certificate advising that the appellant had not yet recovered. The first medical certificate stated that the appellant “is suffering from a medical condition... and was/will be unfit to resume work/study for a period of 3 days from 11 August 2014.” The second medical certificate dated 14 August 2014 certified that the appellant “will be unfit to resume work/study for a period of 2 days from 14 August 2014.” In relisting the appeal for 3 September 2014, I took into account the fact that the medical practitioner anticipated that the appellant would have recovered by 16 August 2014 but intended to give the appellant more than ample time within which to recover.
Secondly, the solicitors for the Minister wrote to the appellant on 22 August 2014 enclosing, as directed, a letter from the Registrar advising that the appeal was listed for hearing today. The letter further advised the appellant that “[i]f you do not attend the hearing on 3 September 2014 at 10:15 AM, whether in person or by legal representative, we are instructed to ask the Court to dismiss your appeal with costs.” The appellant was clearly therefore on notice of the Minister’s application today and aware of the risks of non-attendance.
Thirdly, the appellant apparently telephoned the Court Registry at or around 10:35 am on the morning of the appeal but after it had been listed to commence, to advise that he would not be attending Court. As mentioned he apparently gave the reason for his absence that he could not obtain any legal assistance and was not feeling well. No reasons however were apparently given for his delay in contacting the Court as to his inability to attend. The Registry also advised him that a decision could be made in his absence.
Fourthly, no medical certificate or other material has been provided to the Court in support of any application for an adjournment. Nor was any material provided to support the suggestion that the appellant had been seeking legal representation but needed more time to do so.
In the fifth place, the Court is required by s 37M of the Federal Court of Australia Act 1976 (Cth), in the exercise of powers conferred on it, to have regard to the overarching purpose of facilitating the just resolution of disputes, relevantly, “as quickly, inexpensively and efficiently as possible.” Obligations are also imposed upon the parties to a civil proceeding to conduct the proceeding in a way that is consistent with this overarching purpose by s 37N. To accede to a further adjournment in all of the circumstances set out above would not, in my view, promote the overarching purpose.
Finally, I have considered carefully the judgment of the Court below and the material contained in the appeal book and supplementary appeal book, together with the submissions made on behalf of the Minister, and do not consider for the reasons set out below that there is any apparent merit in the appeal.
3. NO APPARENT MERIT IN THE APPEAL
3.1 The ground of appeal
In his notice of appeal to this Court, the appellant identifies one ground of appeal, namely:
1.THE REFUGEE REVIEW TRIBUNAL did not comply with procedural fairness in making the decision.
No further detail of the ground is provided and the appellant did not provide written submissions in support of his appeal.
By written submissions, the Minister submits that, in the absence of particulars, it is not apparent how the Refugee Review Tribunal (Tribunal) is alleged to have failed to comply with procedural fairness in making the decision. However, it is assumed that the appellant relies upon the same breach of procedural fairness as alleged below, namely, that the Tribunal overlooked the material annexed to an affidavit sworn by the appellant on 30 August 2013 and received as evidence in the Court below.
Furthermore, while the ground of appeal does not identify any error in the decision by the Court below, I consider it fair to read that ground as if it alleges error on behalf of the Court below in failing to find that the decision of the Tribunal was invalid by reason of a breach of procedural fairness.
The Minister contends that the Court below rightly dismissed the application on the ground that the material in question was never received by the Tribunal.
3.2 Background
The appellant first arrived in Australia on 6 August 2001 on a student visa.
He applied for a protection visa on 29 November 2011. He claimed to fear harm by the Chinese authorities because of his actual or imputed political opinion by reason of his involvement with privately published military history in China. His claims can be summarized as follows.
a) He is an amateur military historian and he contributed copies of publicly available material to a private military magazine in 2007 to 2009.
b) The magazine was the subject of adverse attention by the Chinese authorities in 2011 – 2012 when a number of people involved with the magazine, including an editor and a contributor, were arrested and sentenced to imprisonment. The contributor who had been arrested and sentenced was said to be responsible for providing material considered anti-government or critical of the government.
c) Officials from the local council had sought his whereabouts from his parents in June 2011 and January 2012 using the national census as a “cover” for the inquiry as to his location and when he would return.
The appellant’s application for a protection visa was refused on 16 April 2012 under s 65 of the Migration Act 1958 (Cth) (Act) by a delegate of the Minister.
The appellant sought review of that decision by an application filed on 14 May 2012 in the Refugee Review Tribunal (Tribunal).
On 2 May 2013 the Tribunal affirmed the decision on the basis that the documents provided by the appellant were not directly corroborative of his claims and that the independent country information indicated that the information he claimed to have provided to the magazine was “too anodyne, non-political and uncontroversial” to attract adverse interest by the Chinese authorities. As such, the Tribunal did not consider that there was any official interest in the appellant when the owners and employees of the magazine were investigated, arrested or sentenced. Nor did the Tribunal consider that anything had occurred since then to indicate any interest, adverse or otherwise, by the Chinese authorities in the appellant. His whereabouts were a matter of record, as he travelled out of China on his own passport on a number of occasions and renewed his passport in 2006 at the Chinese Consulate General in Sydney. The Tribunal concluded that:
… the chance of the applicant being harmed in China is so remote as to be insubstantial and farfetched. I make this finding on the basis of the independent information available to me, such that the material the applicant says he was posting back to China is not of the type to attract averse attention, and on the basis that if the magazine to which he says he provide [sic] this material was raided and persons connected were arrested and sentenced, those events do not have a connection with the type of material the applicant provided. I find that the applicant was not then, and in the intervening two years since the owner’s arrest has not become, of such a political profile as to attract any attention from the Chinese authorities.
For those reasons, the Tribunal found that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Act as he did not have a well-founded fear of persecution. Nor was the Tribunal satisfied that the appellant satisfied the criteria for a protection visa under the complementary protection provision, s 36(2)(aa).
3.3 Consideration of the merits of the appeal
The appellant appeared on the substantive hearing in the Court below unrepresented. The sole ground in the amended application in the Court below alleged a constructive failure to exercise jurisdiction on the basis that the Tribunal had failed to consider material sent to it following the hearing which comprised an integer of the appellant’s claims for protection. The material in question comprised the cover and two pages of “The Black Bats – CIA Spy Flights over China from Taiwan: 1951 – 1969” by Chris Pocock.
The Court below accepted that there was no reason to disbelieve the appellant’s explanation from the bar table that he gave the material to his migration agent, but it found there was no evidence that the appellant’s migration agent had sent the material in question to the Tribunal. In this regard, the Court below stated at [24] that “[t]he applicant told me from the bar table that [his migration agent] had searched for the relevant material and evidence of it being sent to the Tribunal, but had not been able to find it. I have no reason to disbelieve what the applicant told me”. Furthermore the Court below accepted the evidence of the Registry Manager of the NSW Registry of the Tribunal of non-receipt of the documents. Specifically, the Registry Manager gave uncontested evidence that the documents in question had not been placed on the appellant’s file with the Tribunal and that this led him to believe that the Tribunal never received those documents because, if they had been received, the documents would have been placed on the file in accordance with the Registry’s practice. The Court below expressed the view that the failure by the migration agent to send the material to the Tribunal appeared to have occurred by way of an oversight. The Court below concluded at [26] that “the material in issue was not received by the Tribunal, and it must follow that the Tribunal did not commit any legal error in failing to take material into account.” I am unable to find any error in that conclusion.
Nor is any other failure to accord procedural fairness apparent from the Tribunal’s decision. The appellant attended a Tribunal hearing on 8 October 2012 and gave evidence and presented arguments. Previous hearings had been vacated twice at the appellant’s request. The Tribunal hearing was conducted with the assistance of an interpreter in Mandarin and English although the appellant stated that he did not require the interpreter and the hearing was conducted in English. The appellant was represented on the review by his registered migration agent. The detailed description of the hearing in the Tribunal’s reasons indicates that the Tribunal fairly put its concerns about the appellant’s claims to him and gave him an opportunity to address them. Furthermore, the Tribunal gave the appellant the opportunity to submit any further information on which he wished to rely after the hearing in writing, and where necessary, translated. Some days after the hearing the appellant’s migration agent provided a number of documents in two separate letters, some of which were either partially translated or not translated. These documents were considered in the Tribunal reasons at [15]. In these circumstances, there is no other aspect of the decision indicating a breach of the statutory (or, to the extent that they may have any relevance, the common law) rules of procedural fairness.
4. ORDERS
For these reasons, the appeal must be dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 4 September 2014
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