SZTPB v Minister for Immigration

[2014] FCCA 1580

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1580

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application on account of the non appearance of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZTPB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2965 of 2013

Judgment of: Judge Driver

Hearing date: 21 July 2014

Delivered at: Sydney

Delivered on: 21 July 2014

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms F Taah

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2965 of 2013

SZTPB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 28 November 2013, seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 14 November 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Nepal.  The background to his visa application and the decision of the Tribunal on it is set out in submissions filed on behalf of the Minister on 14 July 2014. 

2. The applicant is a citizen of Nepal. He arrived in Australia on 10 December 2007[1] on a student visa[2]. On 24 May 2012, he lodged an invalid application for a protection visa[3], and on 10 July 2012 he lodged a valid application[4].  On 29 August 2012, he attended an interview with a delegate of the Minister[5].  On 20 September 2012, the delegate refused the application[6]. On 23 October 2012, the applicant lodged an application for review with the Tribunal[7].  On 4 November 2013, the applicant appeared at a hearing before the Tribunal[8].

   [1] Relevant Documents (RD) 3.3

   [2] RD 98.2

   [3] RD 1

   [4] RD 52

   [5] RD 102.2

   [6] RD 111

   [7] RD 112

   [8] RD 130

Applicant’s claims

1. The applicant initially claimed in an unsigned statutory declaration[9] that he and his father were supporters of the Nepali King’s political party (RRP). The RRP was opposed to the Maoists. Maoists killed his father, seized his family’s land, tried to kill and tortured the applicant. The applicant had participated in “many demonstrations and processions” against the Maoists.

   [9] RD 29

2. The applicant later expanded on these claims, and changed them in significant respects. In his interview to the delegate, the applicant claimed that he had only attended three or four demonstrations in support of persons who had been killed by the Maoists[10].  He had only spoken out against the Maoists to his friends, not to society generally or the public[11].  He had never been captured, harmed or the subject of attempts at harm by the Maoists[12].  His father was a member/supporter of the RRP and a government contractor[13].  The Maoists tried to extort money from his father, which led to a stroke causing his father’s death[14].  The Maoist youth wing (YCL) was looking for him[15].  The perception that he is wealthy because he has travelled abroad, coupled with his father’s failure to pay the Maoists, would lead to extortion attempts against him if he were to return to Nepal[16].  If he did not meet those extortion demands, he would be tortured or killed[17].

   [10] RD 106.2

   [11] RD 105.9

   [12] RD 105.8

   [13] RD 105.7

   [14] RD 105.7

   [15] RD 90

   [16] RD 105.7

   [17] RD 105.7

3. The applicant wrote to the Tribunal on 23 October 2012.  He explained that the inconsistencies between his statutory declaration and his oral evidence to the delegate were due to another person writing his statutory declaration[18].

   [18] RD 118-119

4. In his interview with the Tribunal, the applicant claimed that he was neither a member nor active supporter of the RRP, and that he had never participated in any demonstrations[19].  His father had been tortured by the Maoists[20] and banks had seized the assets belonging to his father’s business[21].  In response to questioning by the Tribunal, the applicant stated that he had not been able to find out anything about his inheritance from his father, and that he had not tried to ascertain whether his father left a will[22].

   [19] RD 140.7

   [20] RD 143[41]

   [21] RD 143[43]

   [22] RD 143[43]-[44]

5. The applicant also provided two letters: one signed by his neighbours, the other issued by a human rights organisation in Nepal. These letters stated, among other matters, that the applicant’s father had died of a stroke due to torture and threats from the YCL[23] or that the applicant’s father was a victim of the Maoists[24].

   [23] RD 90

   [24] RD 122

Tribunal decision

1. On 14 November 2013, the Tribunal affirmed the decision under review[25].

   [25] RD 147

2. The Tribunal found that:

   a)the applicant’s delay of five years between arriving in Australia and applying for protection was significant[26]. It rejected the applicant’s explanation for this and found that he had travelled to Australia to study[27];

   b)the applicant was not a credible witness when discussing his claims and what happened to his father and family assets[28].  The Tribunal noted the confused nature of the applicant’s claims[29].  In respect of the statutory declaration, the Tribunal noted that it was unsigned, that someone else had been involved in its preparation, and that it contained untrue information[30];

   c)the applicant was not reliable when discussing his father’s business, the Maoists’ extortion demands, his lack of interest in obtaining his inheritance and the circumstances of his father’s death[31].  The Tribunal did not accept that extortion demands played any part in the collapse of his father’s business, or in the death of his father[32].  Although the letters provided by the applicant claimed otherwise, the Tribunal gave these letters little weight because they had been solicited by the applicant[33];

   d)the applicant’s comments regarding his profile with the YCL were self-serving and designed to strengthen his case[34].  Given its concerns about the applicant’s overall credibility, the Tribunal did not accept that the applicant was of any interest to the YCL[35].

   [26] RD 142[37]

   [27] RD 142[37]

   [28] RD 141[33]

   [29] RD 141[32]

   [30] RD 141[32]

   [31] RD 144[49]

   [32] RD 144[50], [51]

   [33] RD 144[51]

   [34] RD 144[52]

   [35] RD 144[52]

3. The Tribunal considered country information to find that even if the applicant were to become a target for extortion, he could access state protection[36].

   [36] RD 144-145[54]

4. The Tribunal went on to reject the applicant’s Convention claims[37].  It also found that the applicant was not entitled to complementary protection[38].

   [37] RD 145[55]

   [38] RD 146[63]

The present application

1. This matter came before me for first court date directions on 20 December 2013.  At that time the applicant attended in person with the assistance of a Nepali interpreter.  I made orders for the further conduct in the matter including an order listing the matter for a show cause hearing today at 2.15pm.  I was satisfied that the applicant understood the need to attend court at this time. 

2. Exhibit R1 is a letter dated 14 July 2014 from the Minister’s solicitors to the applicant at his nominated address for service.  The letter reminds the applicant of the court fixture today.  When the matter was called there was no appearance by or on behalf of the applicant.  The matter has been called twice and on each occasion there was no answer to the call.  There is no explanation for the applicant’s non-attendance.  An attempt by my deputy associate to contact the applicant by telephone was unsuccessful.

3. I will order that the application be dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

5. I will direct that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

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

Associate: 

Date: 24 July 2014