SZTNA v Minister for Immigration and Anor

[2016] FCCA 952

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 952

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Tribunals Amalgamation Act 2015 (Cth), item 15AG of sch.9

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 13.10, 16.05

Migration Act 1958 (Cth), ss.36, 474

Cases cited:

SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTNA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2825 of 2013

Judgment of: Judge Cameron

Hearing date: 10 and 29 March 2016

Date of Last Submission: 29 March 2016

Delivered at: Sydney

Delivered on: 29 March 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Cohen

Solicitors for the Applicant: Cambridge Lawyers

Solicitors for the Respondents: Ms M. Stone of DLA Piper Australia

ORDERS

1. The applicant’s amended application in a case filed on 19 February 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2825 of 2013

SZTNA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of China who arrived in Australia on 16 November 2003. On 28 March 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection. That application was refused by a delegate of the first respondent (“Minister”) on 12 December 2012. The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. She was unsuccessful before the Tribunal and on 14 November 2013 she applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The applicant’s application for judicial review was listed for its first court date on 2 December 2013. The applicant appeared on that day and the matter was listed for callover on 19 March 2014. The applicant also appeared on that day, at which time her application was listed for hearing on 3 February 2015. There was no appearance by the applicant on 3 February 2015 and, on the application of the Minister, the applicant’s application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).

3. These reasons concern an application in a case filed by the applicant on 12 January 2016 seeking to set aside the orders made on 3 February 2015 pursuant to r.16.05 of the Court’s Rules on the basis that those orders were made in her absence. An amended application in a case has subsequently been filed.

4. In light of a concession by the Minister that he would not be prejudiced were the Court to set aside the orders made on 3 February 2015, the considerations which in my view are relevant to the decision whether to grant the present application in a case are whether the applicant’s explanation for her non-attendance on 3 February 2015 is a satisfactory one and whether her application for judicial review of the Tribunal’s decision has reasonable prospects of success.

5. For the reasons which follow, her application will be dismissed.

SATISFACTORY EXPLANATION

1. In her affidavit sworn on 19 February 2016 the applicant deposed that she did not attend the hearing on 3 February 2015 because she had been told by her adviser, a Mr Zhang, that he would appear on her behalf and “take care of everything”.  She deposed that Mr Zhang advised her that she did not need to appear in court on 3 February 2015 and that, having paid him $5,000 to assist her with her visa application, she trusted that he would attend to all court proceedings on her behalf.  When informed that her matter had been dismissed for non-appearance, she was shocked and upset.  The applicant deposed that she spoke to Mr Zhang shortly afterwards and that he told her not to worry about it as he would be applying for Ministerial intervention.  She deposed that that request was refused on 11 September 2015.  She deposed that she went to see Mr Zhang at his home the following day and overheard him say that he was neither a lawyer nor a registered migration agent.  The applicant deposed that on or about 22 December 2015 she engaged her current solicitors to see if her matter could be reinstated.  

2. The Minister has not sought to cross-examine the applicant on her affidavit and I accept her evidence.  I find that the applicant has provided a satisfactory explanation for her non-attendance on 3 February 2015.  On the face of it, Mr Zhang practised a fraud on the Court in the same fashion as the adviser in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 practised a fraud on the Tribunal. However, notwithstanding that circumstance, there would be no point in reinstating the proceeding if the outcome would be no different from that of 3 February 2015.

REASONABLE PROSPECTS OF SUCCESS

1. The application to reinstate the proceeding ought not be granted unless the substantive case for judicial review would have reasonable prospects of success if permitted to proceed because, without such prospects, it would be liable to be summarily dismissed pursuant to r.13.10. It should also be noted in this connection that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, the applicant needed to show that she would have reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error were the order dismissing the proceeding to be set aside.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly claimed in her protection visa application that she was a Christian and had been a member of a house church in China.  She claimed that her house church had been raided by the authorities in December 2001 and that she had been detained for a day and fined 2000 Yuan.  The applicant claimed that if she returned to China she would not be able to practise her religion freely and safely.  She also claimed that she had attended churches in Australia.

2. The applicant relevantly made the following additional claims at a Tribunal hearing on 30 October 2013:

   a)she attended church in Australia three times a week and had been baptised in 2007;

   b)she could not recall stories from the Bible because of her advanced age, her deteriorating memory and because she suffered from insomnia;

   c)she had not known about protection visas until she was told about them by someone from her church in 2012; and

   d)if she returned to China she would be unable to practise her religion and if she attended a house church she would be persecuted by the Chinese authorities.  She had attended an officially registered church but had been told by a friend that they were not real churches because the government interfered with them.

3. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 or s.36(2)(aa) of the Act. The Tribunal’s decision was relevantly based on the following findings and reasons:

   a)the Tribunal was not satisfied that the applicant’s account of her circumstances was entirely credible.  It did not accept that the applicant had suffered the harm she claimed or that she had been of interest to the authorities when she left China in 2003 and found that she had fabricated those claims.  In that connection, the Tribunal found that if the applicant had been arrested in 2001 and had been fearful of returning to China, she would have applied for a protection visa when she arrived in Australia or soon thereafter.  It was not satisfied that her explanation that she had not known about protection visas adequately accounted for her eight year delay in seeking protection and found that she had not applied for a protection visa earlier because she had not required protection; and

   b)the Tribunal found that while the applicant had a broad understanding of Christianity, she did not demonstrate that she was familiar with the Bible or that she had any interest in the details of the religion.  Nevertheless, it accepted that she attended a church in Australia and considered herself to be a Christian.  The Tribunal went on to consider whether the applicant’s fear of harm was well-founded and concluded that it was not.  In that regard, the Tribunal referred to country information which indicated that most Chinese citizens who wanted to participate in unregistered churches were able to do so without suffering adverse interest from the authorities.  It also noted that that information indicated that political activists, religious leaders and organisers of unregistered churches faced an elevated risk of harm but formed the view that there were many opportunities for the applicant, who was not a political activist, religious leader or organiser of an unregistered church, to express her religious beliefs in a church of her choice without attracting the attention of the authorities.

Application to this Court

1. The application which commenced these proceedings was not the basis of the applicant’s claim to have reasonable prospects of demonstrating jurisdictional error on the part of the Tribunal.  The applicant relied instead on a proposed amended application which was exhibit 1 in the present application in a case.  In that application the following grounds were relevantly set out:

   1.The second respondent has taken into account irrelevant consideration [sic] and therefore has made a jurisdictional error.

   2.The second respondent has failed to take into account a relevant consideration and therefore has made an error of law.

   3.[Not pressed]

2. The applicant’s claim was to fear persecution in China because, if returned, she would wish to practise her Christianity in a house church rather than in a registered church and faced a real chance of persecution on that account.  In support of her claim for a protection visa, the applicant alleged that she had suffered religious persecution in China before coming to Australia.  For the reasons that it gave, the Tribunal did not believe those claims.  In this proceeding the applicant has sought to impugn the Tribunal’s conclusions on this question by submitting that the Tribunal had wrongly had regard to the applicant’s inability to articulate meaningful knowledge of Christianity and to the period of time it took her to lodge her protection visa application.

3. However, these issues were ultimately red herrings because the applicant had not claimed to fear persecution because of her alleged prior practice of Christianity in China.  Her claims were based on what she said she feared would happen to her if she practised in China the Christianity which the Tribunal accepted she believed in and practised in Australia.  The Tribunal found on the information before it, as it was entitled to do, that the applicant’s fears in this regard were not well-founded. 

4. The applicant also submitted that the Tribunal placed too much weight on the independent information which provided the basis for this determinative finding.  However, the weight which the Tribunal gives to material before it is a matter for it and not the Court. 

CONCLUSION

1. On the grounds which the applicant would wish to raise, she has no realistic prospect of proving that the Tribunal’s decision is affected by jurisdictional error.  In those circumstances, the application to set aside the orders made on 3 February 2015 will be dismissed. 

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

Date: 26 April 2016