SZTCQ & Anor v Minister for Immigration & Border Protection & Anor (No.2)

[2014] FCCA 2170

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCQ & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.2) [2014] FCCA 2170

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether earlier orders made pursuant to Rule 13.03C of the Federal Circuit Court Rules dismissing application for non- appearance should be set aside pursuant to Rule 16.05 of the Federal Circuit Court Rules – whether explanation for failure to appear is satisfactory – whether grounds of application have reasonable prospects of success – whether it is in the interests of justice to set aside dismissal of application – application refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.13.03C

SZTCQ & Anor v Minister for Immigration and Border Protection & Anor [2014] FCCA 1533

First Applicant: SZTCQ

Second Applicant: SZTCR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1701 of 2013

Judgment of: Judge Emmett

Hearing date: 27 August 2014

Date of Last Submission: 27 August 2014

Delivered at: Sydney

Delivered on: 27 August 2014

REPRESENTATION

There was no appearance by or on behalf of the First Applicant.

The Second Applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

Mr Andras Markus

(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1701 of 2013

SZTCQ

First Applicant

SZTCR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicants to set aside orders made by me on 16 July 2014. On that occasion, I made orders dismissing the proceeding commenced by way of application filed on 24 July 2013 seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 26 June 2013.

2. The proceeding was dismissed on 16 July 2014 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) by reason of the failure of the applicants to appear at the scheduled hearing. The procedural history of the matter is recorded in reasons given by me on that date (see SZTCQ & Anor v Minister for Immigration and Border Protection & Anor [2014] FCCA 1533). That history is as follows:

   “4. On 19 September 2013, the applicants attended a directions hearing before me. I explained to the applicants that this Court has no power to interfere with the decision of the Refugee Review Tribunal (“the RRT”), unless the Court is satisfied that the RRT’s decision, dated 26 June 2013, is affected by a mistake that goes to the jurisdiction of the RRT. I also explained to the applicants that the grounds of their application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

   5. At the directions hearing, the applicants were provided with a copy of the applicable costs schedule of the Court and I explained to them the consequences that would flow to them if a costs order was made against them.

   6. The applicants elected to participate in the Court’s then RRT legal advice scheme, and I note that the applicants received advice in accordance with that scheme on 11 November 2013.

   7. The applicants confirmed at the directions hearing, on 19 September 2013, that they wished to continue with their application for judicial review. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 31 October 2013, and were directed to file and serve submissions in support of their application two weeks before the scheduled hearing.

   8. At the directions hearing, on 19 September 2013, the matter was set down for final hearing on 17 July 2014 at 10:15am before me. The orders made on 19 September 2013 also informed the applicants that in the event there was no appearance by or on behalf of them at the time of any scheduled court event their application may be dismissed without further notice. There has been no document filed by or on behalf of the applicants, either in accordance with those directions, or otherwise.”

3. The application was supported by an affidavit affirmed by the first named applicant on 17 July 2014. The first named applicant did not appear at today’s hearing of the application in a case. On the basis that the first respondent’s solicitor, Mr Markus, wished to cross-examine the first named applicant on that affidavit and he was not available for cross-examination, the affidavit was objected to and rejected.

4. The second applicant (“the Applicant”), who appeared this morning without representation but with the assistance of an interpreter, was given leave to give sworn oral evidence in relation to the explanation of the applicants for their failure to appear at the scheduled hearing on 16 July 2014.

5. The substance of the Applicant’s explanation was that the applicants received a letter notifying them that the matter had been re-listed from 17 July 2014 to 16 July 2014 and that they did not receive that letter until the night of 16 July 2014. The further explanation was that the applicants now work and reside in Adelaide. The Applicant conceded that there had been no notification to the Court, or to the first respondent, of the new contact details of the applicants, despite being ordered in the directions given by me on 19 September 2013 to provide any change to such details immediately.

6. The Applicant gave inconsistent and at times incoherent evidence in relation to various questions put to her about the circumstances in which that letter came to the attention of the applicants. In any event, despite the entirely unsatisfactory nature of the Applicant’s evidence in cross-examination, the Applicant’s evidence at its highest being the explanation that they did not receive notification until the night before 17 July 2014, is entirely inadequate in circumstances where letters were sent to the applicant in February 2013 to both addresses provided by the applicant on the initiating application, being an address at 4 Langtry Avenue, Auburn and a post office box, also in Auburn. During the course of giving evidence, the Applicant informed the Court that the applicants have not lived or resided at that address since Christmas 2013.

7. At the commencement of today’s hearing, I explained to the Applicant that the two issues that were of particular significance in the Court’s consideration of the application were the applicants’ explanation for their failure to appear on 16 July 2014 and the prospects of success of the initiating application, filed on 24 July 2013, seeking judicial review of the decision of the RRT. I found the Applicant’s explanation to be entirely inadequate.

8. Each of the grounds of the application was interpreted for the Applicant and the Applicant was invited to say whatever she wished in support of those grounds. Those grounds are as follows:

   “1. RRT & DIAC didn’t give me chance to present oral argument.

   2. RRT failed to understand my evidence.

   3. RRT confused itself with inconsistencies during the interview.”

9. In relation to ground 1, the Applicant’s answer was that she had nothing to say.

10. In relation to ground 2, the Applicant said she could not answer the question posed by me which was, “In what way did the tribunal fail to understand the evidence?”

11. In relation to ground 3, when the Applicant was asked how the RRT confused itself with inconsistencies during the hearing, she responded that she did not know.

12. Plainly, those grounds make bare assertions that do not disclose an error capable of review by this Court. That was explained to the applicants by me at the directions hearing on 19 September 2013 and is referred to in the reasons given by me on 16 July 2014 dismissing the application.

13. There has been no document filed by or on behalf of the applicants in this proceeding since that directions hearing, other than the application in a case and the supporting affidavit.

14. The first respondent filed written submissions on 10 July 2014 opposing the relief sought by the applicants in their initiating application. Those submissions set out the background of the proceeding, the applicants’ claims, the RRT decisions, the grounds of the application and the first respondent’s submissions in respect of the grounds:

    “1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal), dated 26 June 2013, which affirmed a decision of a delegate first respondent, now correctly titled ‘Minister for Immigration and Border Protection’, not to grant the applicants Protection (Class XA) visas under section 65 of the Migration Act 1958 (the Act).

    BACKGROUND

    2. The applicants are husband and wife. The first applicant, (the applicant) arrived in Australia on 25 August 2012 on a visitor visa which expired on 10 September 2012.  On 31 August 2012, the applicant lodged an application for a Protection visa, with the second applicant included in the application as member of his family unit.  On 25 October 2012, a delegate of the first respondent refused to grant the applicants Protection visas.

    3. On 19 November 2012, the applicants sought review by the Tribunal.  On 22 May 2013, the applicant appeared before the Tribunal for a hearing without the second applicant.  On 26 June 2013, the Tribunal affirmed the decision not to grant the applicants Protection visas.

    APPLICANTS’ CLAIMS

    4. The applicants’ protection claims were set out in a statement of the applicant which was lodged with the application for Protection visas.  The applicant stated that he came from a poor family and, as a third child, was discriminated against and experienced hardship due to China’s one child policy. He stated that he began a shoe sales business in May 2001 but had to shut it down because, as a third child, he was not granted an operation licence. He then travelled to Israel in September 2001, where he worked in construction, and returned to China in September 2009 with $US100,000. He then started a straw processing factory as an investment project after being approached by government officials on many occasions to do so. However, he did not receive the support promised by the officials, but rather had to pay bribes to them and he eventually closed the factory after the officials stopped issuing him business licences. He claimed that he was beaten up many times by the government officials.

    5. When the applicant was interviewed by the Minister’s delegate,  he claimed that he had executed a 15 year contract which stated that he would receive a subsidy of one million RMB if he successfully set up the straw processing business. As he did not receive any such subsidy he attempted to close the business. The local officials, however, were opposed to the closing of the business and detained him in October 2011 for five days. He was released after signing an agreement to keep the business in operation. After his release, he fled to Nanjing, obtained a passport and travelled to Australia. He claimed that he reported the bribery to higher authorities but the local officials found out and threatened to burn down the factory.

    6. As noted above, following the decision of the delegate, the applicants sought review by the Tribunal and the applicant attended a hearing at which he gave evidence and presented arguments.  The applicant’s evidence before the Tribunal, which is summarised at [8]-[13] of the decision,  differed in important respects from his evidence before the delegate.

    TRIBUNAL DECISION

    7. The Tribunal accepted certain aspects of the applicant’s claims, in particular his family background, the difficulties he faced in China as a third child, his travel to Israel, and the circumstances that led to him commencing the straw recycling business. 

    8. The Tribunal, however, rejected the applicant’s claims for protection, in part on the basis of internal inconsistencies and contradictions between the applicant’s oral evidence before the delegate and the Tribunal, respectively.

    9. In particular, the Tribunal noted differences in the applicant’s evidence regarding the subsidies he was allegedly promised by the government for his straw business and concluded that the applicant himself was unsure of the basis for the subsidy. 

    10. The Tribunal also noted that the applicant had given inconsistent evidence about whether or not he had paid bribes. Before the delegate the applicant claimed that he refused to pay bribes, while he gave evidence to the Tribunal to the effect that he had paid bribes for four to five months. 

    11. The Tribunal also did not accept that the applicant had been physically harmed by government officials at any time. In his evidence to the Tribunal, he maintained he had not been physically harmed, only to change his evidence after the Tribunal reminded him of his written statement where he stated that he had been beaten. 

    12. The Tribunal did not accept that the applicant had been detained, had to sign an agreement to keep the straw factory open or that he went into hiding after his release.

    13. In light of these findings, the Tribunal did not accept that the applicant would be seriously harmed by the authorities if he was returned to China, and rejected that he would either be monitored, harassed or forced to reopen the straw factory. Nor did the Tribunal accept that the applicant had an adverse profile, such that he would be arrested, noting that the applicant had obtained a passport and departed China with no adverse attention from the authorities. 

    14. The Tribunal considered the treatment the applicant claimed he was subjected to as a third child of his parents, but did not accept that any social stigma or ostracism would be sufficiently serious to constitute ‘serious harm’.

    15. In all the circumstances, the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason.

    16. The Tribunal then considered whether the applicant satisfied the complementary protection criterion, in particular, by considering the applicant’s claims about the discrimination he suffered as a third child. While the Tribunal accepted that the applicant may face some social stigma or ostracism for this reason, it did not accept that any such social stigma or ostracism would constitute significant harm as defined in ss 36(2A) and 5(1) of the Act.  The Tribunal therefore was not satisfied that the applicant met the complementary protection criterion.

    17. The Tribunal concluded that neither of the applicants satisfied the criteria set out in ss 36(2)(a) or 36(2)(aa) of the Act and, accordingly, affirmed the delegate’s decision not to grant the applicants Protection visas.

    GROUNDS OF APPLICATION

    18. The application to the Federal Circuit Court commenced by way of an application filed on 24 July 2013. The grounds of the application are:

    1) RRT & DIAC didn’t give me chance to present oral arguments.

    2) RRT failed to understand my evidence.

    3) RRT confused itself with inconsistencies during the interview.

    19. On 19 September 2013, the applicants attended a directions hearing when orders were made affording them the opportunity to file and serve an amended application and affidavit evidence, and requiring them to file and serve written submissions.

    20. As at the date of these submissions, no amended application, evidence or written submissions have been filed by or on behalf of the applicants.

    SUBMISSIONS

    Ground 1

    21. This ground appears to be allegation of a breach of s 425 of the Act. The ground is not supported by any particulars.

    22. Subject to some exceptions, s 425 of the Act imposes an obligation upon the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    23. Insofar as the allegation may relate to the applicant, there appears to be no factual basis for the proposition that he was not able to present oral arguments. He attended the Tribunal hearing, and on the basis of the decision of the Tribunal, it appears that he was given every opportunity to present oral arguments in support of his claims.

    24. Insofar as this ground may relate to the second applicant, the ground is also misconceived.

    25. By letter dated 19 April 2013, the Tribunal invited both applicants to attend a hearing on 22 May 2013.  As already noted, the applicant appeared before the Tribunal, but the second applicant did not attend.

    26. The Tribunal records at [7] of its decision that it gave the second applicant an opportunity to attend the hearing, however, she indicated that she would not be able to attend at that time.  The applicant also asserted that she relied on his claims, and had no claims of her own.   

    27. The Tribunal then wrote to the applicants and specifically invited the second applicant to ‘advise urgently if she would like the Tribunal to hold another hearing’, and gave her an opportunity to provide any written evidence by 5 June 2013. 

    28. No response has been received by the Tribunal to this invitation, and the Tribunal’s decision was made three weeks after the deadline nominated.

    29. This ground lacks any merit and should be dismissed.

    Grounds 2 and 3

    30. These grounds are mere assertions concerning the Tribunal’s treatment of the applicant’s evidence, once again unsupported by particulars.  Neither of the grounds, in its present form, alleges any legal, let alone jurisdictional, error in the Tribunal’s decision.

    31. In any event, the assertions in these grounds are baseless.

    32. The applicants’ claims for protection were contained in the written statement of the applicant, which he elaborated upon at the interview with the delegate. Those claims were then discussed at the hearing before the Tribunal. There is nothing in the Tribunal’s reasons suggesting that the Tribunal failed to understand the evidence given by the applicant. Neither is there any evidence before the Court indicating that the Tribunal misunderstood any of the applicant’s claims or evidence.

    33. In considering the claims for protection, the Tribunal referred to various inconsistencies which arose from the evidence given in the applicant’s written statement, his oral evidence to the delegate, and his oral evidence to the Tribunal. At the hearing, the Tribunal drew the inconsistencies in the evidence to the applicant’s attention.  The applicant offered explanations for some of the inconsistencies, however the Tribunal did not accept the truthfulness of the claims and evidence.

    34. The Tribunal was not required to uncritically accept any and all of the applicant’s claims (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). There is nothing in the Tribunal’s reasons to suggest that the Tribunal was confused by the evidence or by the inconsistencies in the evidence. It simply did not accept the evidence on the basis of those inconsistencies.

    CONCLUSION

    35. There is no jurisdictional error established by the applicants in any of the grounds nor is any such error apparent.

    36. The application should be dismissed, with costs.”

15. Whilst I make no final decision as to whether or not the decision of the RRT is affected by jurisdictional error, no error has been identified, either in the grounds of the applicants’ application, or anything said by the Applicant to the Court this morning.

16. The first respondent’s submissions make clear the reasons why the first respondent is of the view that the RRT’s decision is not affected by jurisdictional error. Coupled with the entirely inadequate explanation provided by the Applicant today in relation to the failure of the applicants to appear at the scheduled hearing on 16 July 2014, and the complete lack of utility in granting any extension of time to the applicants, the orders sought by the applicants in the application in a case filed on 17 July 2014 are refused.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 18 September 2014