SZTMY v Minister for Immigration and BORDER Protection

[2014] FCCA 503

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMY v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 503

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) rr.13.03C, 44.12

Applicant: SZTMY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG 2799 of 2013

Judgment of: Judge Emmett

Hearing date: 14 March 2014

Date of Last Submission: 14 March 2014

Delivered at: Sydney

Delivered on: 14 March 2014

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondent: Ms Brooke Griffin
(Australian Government Solicitors)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2799 of 2013

SZTMY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

First Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 12 November 2013, be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), by reason of the failure of the applicant to appear at today’s scheduled hearing.  The applicant sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 17 October 2013. On 22 November 2013, the first respondent filed a response asserting that the decision of the RRT was not affected by jurisdictional error. 

2. The applicant appeared at a directions hearing before me on 24 February 2014 with the assistance of an interpreter.  On that occasion, I explained to the applicant that the grounds of his application made bare, unparticularised assertions and, by themselves, did not disclose a complaint capable of review by this court. I explained to the applicant that the rules of this Court provide that an application may be dismissed where the grounds of an application do not disclose an arguable case. 

3. I also explained to the applicant at the hearing the cost consequences that may flow if the applicant proceeded with his application and was unsuccessful. The applicant confirmed that he wished to continue with his application. Accordingly, at the request of the solicitor for the first respondent, the matter was set down for a show cause hearing today at 12pm, pursuant to r.44.12 of the Rules.

4. The applicant was given leave at the directions hearing to file and serve an amended application giving complete particulars of each ground of review relied upon by 6 March 2014, together with any further evidence and submissions in support of the application. No documents have been filed by the applicant, either in accordance with those directions or otherwise. 

5. There has been no communication received from the applicant, either by this Court or by the first respondent.

6. The matter was listed for hearing at 12pm. It is now 12:35pm. The matter has been called outside as recently as five minutes ago.

7. I am satisfied that the applicant is aware of today’s hearing and, for whatever reason, has chosen not to attend. 

8. The first respondent was also directed to file and serve submissions. On 5 March 2014, the first respondent filed and served its submissions in accordance with that Order. Inter alia, those submissions address the background of the matter, the applicant’s claims, the tribunal decision, a copy of which was annexed to an affidavit filed by the applicant on 12 November 2013 in support of his application, and submissions for a show cause hearing. For the sake of completeness, they are as follows: 

   “INTRODUCTION
   1. This is an application to the Federal Circuit Court for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal) made on 17 October 2013 and notified to the applicant on 18 October 2013. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa (the visa) under s 65 of the Migration Act 1958 (the Act).

2. The application to the Court was filed on 12 November 2013. The matter first came before the Court on 24 February 2014. On that day, orders were made, inter alia, listing the matter for a hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 on 14 March 2014.

BACKGROUND
3. The applicant arrived in Australia on 14 April 2008 on a student visa and on 17 August 2012 he applied to the then Department of Immigration and Citizenship for the visa.

4. On 17 December 2012, the delegate refused to grant the visa and on 11 January 2013 the applicant lodged an application for review with the Tribunal. The applicant attended an interview with the Tribunal on 16 October 2013 and on 17 October 2013 the Tribunal affirmed the decision under review.

APPLICANT’S CLAIMS
5. The applicant made the following claims:

5.1 The Chinese government appropriated his family’s land for development without adequate compensation. His family home was eventually demolished.
5.2 His parents petitioned the authorities against the appropriation. His father was arrested. His mother went to Beijing to protest against the appropriation by erecting a banner in Tiananmen Square. The authorities arrested his mother and put her in detention.
5.3 He attempted to post a video on the internet of his mother’s persecution in Beijing. The authorities discovered this attempt because they tapped his telephone. They confiscated the video. His family has told him not to return to China because he is now under investigation by the authorities.

TRIBUNAL DECISION
6. The Tribunal noted a number of problems with the applicant’s evidence: at [12]. These problems related to inconsistent evidence regarding dates (points a – c, e – f, h, j), the precise identities of the authorities to whom his parents petitioned against the acquisition (point g), and whether his father was arrested and detained or merely warned (point i). The Tribunal was also concerned with the applicant’s lack of knowledge about the compensation paid to his parents, considering that inadequate compensation was a key part of the applicant’s claims (point d).

7. The Tribunal also recorded that the applicant informed it (presumably at the hearing) that the claims made in his visa application were ‘fake’: at [14].  He maintained that the demolition of his parents’ home had occurred, but the remainder of his claims were false and exaggerated: at [14]. 

8. For the reasons above, the Tribunal found that the applicant was not a truthful witness: at [13]. Consistent with the applicant’s retraction, it found that the demolition of his parent’s home had occurred. However, it rejected the remainder of the applicant’s claims: at [15]. It concluded that there was no real chance that the applicant would be persecuted for any Convention reason if he were to return to China: at [17]. It also concluded that the applicant did not meet the complementary protection criterion under s 36(2)(aa) of the Act: at [20].

SUBMISSIONS FOR SHOW CAUSE HEARING
9. The orders made by the Court on 24 February 2014 granted the applicant leave to file and serve an amended application and affidavit evidence on or before 6 March 2014. As at the time of preparation of these submissions, no such documents have been served on the first respondent. The orders of the Court also provided that the applicant file and serve written submissions by 6 March 2014. Again, as at the time of preparation of these submissions, no such document has been served on the first respondent.

10. Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 provides that:

(1)   At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application;…

11. The first respondent submits that dismissal pursuant to rule 44.12(1)(a) is appropriate in this case.

12. The application filed on 12 November 2013 sets out 7 paragraphs (referred to below as grounds) under the headings ‘Orders sought by Applicant’ and ‘The Grounds of the Application are’. There are no particulars.

13. The first ground complains that the Tribunal ignored the applicant’s background and ‘actual persecution’ in China. Contrary to this complaint, the Tribunal accurately summarise the applicant’s key claims (at [10]), and in any event, the applicant retracted most of his claims at the Tribunal hearing (see para 7 above). Only the claim that his family home had been demolished remained after that retraction, which was considered and accepted by the Tribunal: at [15]. This ground does not disclose any arguable case of jurisdictional error.

14. The second ground appears to complain that the Tribunal failed to ‘prudently’ consider the risk of harm to the applicant should he return to China. It is unclear what jurisdictional error is asserted by a claimed failure to give ‘prudent’ consideration. As submitted in the above paragraph, the Tribunal did not commit any failure to consider the applicant’s claims. This ground does not disclose any arguable case of jurisdictional error.

15. The third ground contains a bare assertion that the Tribunal failed to consider the applicant’s evidence. The applicant does not identify what item of evidence the Tribunal failed to consider. However, a failure to refer to a piece of evidence does not mean that the evidence has been overlooked: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]. Furthermore, a failure to refer to evidence does not, by itself, amount to jurisdictional error: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 75 ALD 630 at [46].

16. In any event, it is apparent from the Tribunal’s summary of the applicant’s claims (see para 10 of the Tribunal’s reasons) and its explicit references to particular items of evidence provided by the applicant (see para 12, points c, d, h), that the Tribunal considered all of the evidence before it. Again, it is noted that the applicant’s retraction of evidence (see para 6 above) which the Tribunal accepted. Because of that retraction, most of the applicant’s evidence was irrelevant to the ultimate outcome. This ground does not disclose any arguable case of jurisdictional error.

17. The fourth and fifth grounds are merely high-level statements of the applicant’s claim for protection.

18. The sixth ground appears to complain that the Tribunal was unreasonable because it did not accept the truthfulness of the applicant’s factual claims. It is submitted that it was open to the Tribunal to reject most of the applicant’s factual claims. The problems the Tribunal identified with the applicant’s evidence (see para 12 of the Tribunal’s reasons) and the applicant’s retraction (see para 14 of the Tribunal’s reasons) provided a sufficient basis for it to do so. There is nothing to suggest that the Tribunal’s reasoning was defective in a way that might support a finding of irrationality: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]. For these reasons this ground does not disclose any arguable case of jurisdictional error.

19. The seventh ground complains that the Tribunal was ‘over objective’ in its assessment of the applicant’s evidence at the Tribunal hearing.  It is not clear what jurisdictional error is asserted by the term ‘over objective’. In the absence of such clarity or any further particulars, this ground cannot raise an arguable case of jurisdictional error.

CONCLUSION
20. The first respondent submits that the applicant has put nothing before the Court that could establish that the Tribunal fell into jurisdictional error. As such, he cannot make out his claim for relief.

21. The application should be dismissed pursuant to rule 44.12(1)(a) with costs.”

1. In the circumstances, the orders sought by the solicitor of the first respondent are appropriate, and the application commenced by way of application filed on 12 November 2013, should be dismissed with costs, pursuant to rule 13.03C(1)(c) of the Rules, by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date:              27 March 2014