SZTUK v Minister for Immigration

[2015] FCCA 2506

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2506

Catchwords:
MIGRATION – Application dismissed summarily for non-appearance – application to set aside summary dismissal – relevant considerations.

Legislation:

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

Migration Act 1958, ss.36, 474

Federal Circuit Court Rules 2001, r.13.03C

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

Applicant: SZTUK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 138 of 2014

Judgment of: Judge Cameron

Hearing date: 20 August 2015

Date of Last Submission: 20 August 2015

Delivered at: Sydney

Delivered on: 20 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms R. Krishnan of Australian Government Solicitor

ORDERS

1. The name of the second respondent appearing in the Court’s record be amended to “Administrative Appeals Tribunal”.

2. The applicant’s application in a case filed on 29 July 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to that application in a case fixed in the amount of $910.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 138 of 2014

SZTUK

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 26 October 2011 on a student visa. On 7 September 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in China because of a land dispute. On 21 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and 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 was originally listed for hearing on 17 August 2015. However, by letter dated 27 April 2015, the applicant was advised by the Court that his hearing date had been moved to 9 June 2015. The applicant did not appear at the hearing on 9 June 2015 and on the application of the Minister the proceeding 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 29 July 2015 seeking an order reinstating his application.  In substance, what the applicant seeks is the setting aside of the order dismissing his application.

4. For the reasons which follow, the applicant’s application in a case will be dismissed.

Application for reinstatement

Satisfactory explanation

1. In considering whether to set aside a decision dismissing an application, the Court’s discretion is not fettered although a number of considerations are regularly taken into account. 

2. In this case, the considerations which I believe to be relevant are whether the applicant has a satisfactory explanation for his non-attendance at the hearing on 9 June 2015 at which his application was dismissed and whether, were the matter to be reinstated, the substantive application would have reasonable prospects of success, noting that under the Rules a proceeding which does not have reasonable prospects of success is liable to summary dismissal.

3. The applicant’s application in a case was supported by an affidavit affirmed on 29 July 2015.  In that affidavit the applicant deposed that he had not been notified of the change in hearing date.  In his address to the Court at the hearing of this application, the applicant reiterated the proposition that he had not received notification from the Court concerning the revised hearing date.

4. As the address for service identified on the applicant’s application in a case differs from the two addresses which he had given as his addresses for service in his originating application, I consider it not impossible that the applicant did indeed not receive the Court’s letter, and I am prepared to accept that to have been the fact. 

5. I am therefore satisfied that the applicant does have a satisfactory explanation for his non-attendance at the hearing on 9 June 2015.  However, as already indicated, that alone is not sufficient to justify the setting aside of the dismissal.  The Court must also be satisfied that, were the matter to be reinstated, the substantive application would have reasonable prospects of success.

Reasonable prospects of success

1. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying the Tribunal 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.

Proceedings before the Tribunal

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 made the following claims in a statement attached to his protection visa application:

   a)his house had been demolished by the Chinese authorities in November 2009 and a factory constructed in its place.  He had not been compensated for the demolition of his house;

   b)he had sought to commence proceedings with the courts but the courts would not register his case.  He appealed to the provincial capital and also went to Beijing to petition the authorities there.  While in Beijing he was kidnapped from his hotel room and held in a house for more than forty-five hours.  He was also held in a detention centre for seven days and in that period was mistreated, deprived of sleep and subjected to brainwashing sessions;

   c)after his release he faced ongoing unfair treatment and was unable to support himself.  He and his family were also monitored.  He lived with his parents in a small house after his house was demolished; and

   d)he decided to depart China and paid RMB200,000 to obtain his passport.

2. At his interview with the delegate the applicant relevantly claimed that after his arrival in Australia he had delayed lodging his protection visa application because he had held a valid student visa and had been earning money for his family.

3. At the Tribunal hearing on 14 November 2013 the applicant made the following additional claims:

   a)if he returned to China he would have nowhere to live because his family home had been demolished.  He feared that he would be imprisoned and would be threatened and intimidated by government authorities, in particular the land administration bureau of his home province.  He would also face harm from the Public Security Bureau, the police and possibly gangsters working for government officials.  He also feared harm from a group of property developers who had carried out the demolition and construction of new buildings on his land on behalf of the government;

   b)the land in question had been allocated to his father for a thirty-year tenure after which it was supposed to be transferred to him.  The land was transferred to him in 2008 because he was his father’s only son and had reached marriageable age;

   c)the demolition was carried out for the purposes of constructing new buildings for commercial purposes and the project was ongoing;

   d)his dispute with the authorities related to the quantum of compensation he had been offered which he considered to be too low.  He had not been paid any compensation because he had not agreed with the amount offered to him.  His parents continued to pursue his claims for compensation;

   e)he had tried to stop the acquisition of his land but it was taken by force at the end of 2009.  He and other families who were affected tried to delay the land acquisition by going to their city government but received no result.  In January or February 2010 they approached their provincial petition office but also received no result.  They then travelled to Beijing were they were kidnapped by persons working for the property developers;

   f)his family continued to face problems over the land dispute.  Some of the people affected had been forced out of town, had left the country or had been detained and re-educated in labour camps;

   g)he had left China using a passport issued in his name and had had no problems departing because he had been travelling on a student visa.  The issuance of his passport was delayed in an attempt to coerce him to sign over his rights to the land and his father had had to pay a RMB5,000 bribe for him to obtain a passport; and

   h)he lodged his protection visa application when his student visa was about to expire because he had been told by his migration agent that if he applied before the expiry of his student visa he would be allowed to work.

4. 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 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal had concerns about the credibility of the applicant’s claims because of his ability to depart China, his delay in seeking protection, questions about the genuineness of the documents he had produced and multiple inconsistencies in his evidence.  In particular, the Tribunal found that the applicant’s delay in lodging his protection visa application was inconsistent with him having a subjective fear of persecution.  It did not accept his explanations for the delay and concluded that he did not have a subjective fear of persecution in China;

   b)the Tribunal noted that the applicant did not dispute the purpose of the expropriation of his land and demolition of the buildings on it.  Rather his objection concerned the level of compensation he was offered, which he considered less that the true market value of the property.  The Tribunal therefore found that any possible harm which would befall the applicant in relation to his grievance would not be because of his actual or imputed political opinion.  It found that the evidence before it did not indicate that there was a link between the grant by the authorities of the original tenure to the land and its ultimate expropriation and demolition and concluded that the applicant’s dissatisfaction with the level of compensation offered was not related to any Convention ground.  The Tribunal found that there was no suggestion that the land had been expropriated for illegitimate purposes or evidence that corruption had been involved in the development.  It also found that there was no evidence that a political opinion had been attributed to the applicant because he had sought redress for the expropriation of the land and demolition of his home;

   c)the Tribunal noted that the applicant had remained in China after his return from Beijing without facing serious harm.  It found that given the passage of time since the dispute arose and given that the applicant’s family had not faced serious harm as a result of the land dispute since his departure from China, his fear of persecution was not well-founded and there was no real chance that he would face persecution or a real risk that he would suffer significant harm in China.  The Tribunal also noted that the applicant had left China on a valid passport and had not faced any hindrance in exiting China.  In those circumstances, and having regard to information before it on China’s entry and exit procedures, the Tribunal found that the Chinese authorities had no interest in the applicant; and

   d)the Tribunal found that given that there was a dispute resolution mechanism for land disputes in China and, given its finding that the applicant’s fear of persecution was not well-founded, even if the applicant was entitled to pursue the land dispute in his own right, there was no real chance that he would face persecution if he did so.

Consideration

1. In the application commencing these proceedings the applicant alleged:

   1.RRT failed to prepare the hearing.

   2.RRT seems surprising when I attended the hearing.

   3.RRT simply repeated all the questions by the Immigration Department.

2. None of the three grounds of the application commencing this proceeding alleged any recognisable jurisdictional error on the part of the Tribunal.  Further, even taking as evidence what the applicant said unsworn from the bar table at the hearing of this application, they have not been made out on the facts. 

3. Because the Tribunal asked him a number of questions which the delegate had already asked him, and appeared surprised that he had attended in circumstances where he had not returned to it a completed Invitation to Hearing form, the applicant may have gained the impression that the Tribunal had not done any preparation for his hearing.  However, the fact that the applicant may have gained such an impression does not mean that his impression was accurate.  The Tribunal may have considered it appropriate to ask questions similar to those asked of the applicant by the delegate and the fact that some of the questions were repeated does not necessarily suggest a lack of preparation on the part of the Tribunal.  Further, the fact that the Tribunal member may have been surprised that the applicant attended the Tribunal hearing in circumstances where he had not indicated that he was going to attend does not indicate that the Tribunal member had not prepared for the applicant’s hearing.  Something more than the applicant’s simple impressions of the Tribunal’s demeanour and the manner in which it carried out the hearing would be required in order to make out the applicant’s allegations. 

4. But in any event, such matters would not amount to jurisdictional error even if proved.  Relevantly, the Tribunal’s duty was to give the applicant procedural fairness in connection with his review and to apply the law correctly in the disposition of the review.  How it discharged those duties was, subject to statutory and common law requirements, a matter for it. 

5. What the applicant was really saying emerged in his final comments to the Court, in reply.  He said that the Tribunal was just trying to get rid of him.

6. I apprehend that the substance of the applicant’s allegations is that the Tribunal did not conduct a bona fide review and did not consider the arguments and evidence before it.  However, the applicant did not point to any arguments or evidence which the Tribunal should have considered but did not, and it is not apparent that the Tribunal was guilty of such a failure.  Further, the applicant did not point to any flaws in the Tribunal’s reasoning which might point to a failure to conduct a proper review.  It should not be forgotten in this regard that the applicant’s claims were quite straightforward.  The Tribunal’s decision record discloses that it considered those claims and the evidence advanced in support of them. 

Conclusion

1. The evidence does not support a conclusion that the applicant would have reasonable prospects of success in arguing that the Tribunal’s review was anything other than conscientious and sufficient, were the orders made on 9 June 2015 to be set aside.  Consequently, although I have found that the applicant has provided a satisfactory explanation for his failure to attend the hearing listed for 9 June 2015, I am not persuaded that it is appropriate to exercise the discretion to set aside the orders made on that occasion. 

2. The applicant’s application in a case filed on 29 July 2015 will therefore be dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 17 September 2015