SZTWA v Minister for Immigration

[2014] FCCA 2297

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2297

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

First Applicant: SZTWA

Second Applicant: SZTWB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 301 of 2014

Judgment of: Judge Driver

Hearing date: 7 October 2014

Delivered at: Brisbane, via videolink to Sydney

Delivered on: 7 October 2014

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondents:

Ms E Warner Knight

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 applicants are 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 applicants by ordinary pre-paid post at their nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

4. The Court directs that the address disclosed during argument is not to appear on the transcript of proceedings.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYG 301 of 2014

SZTWA

First Applicant

SZTWA

Second 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 an application filed on 11 February 2014 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 15 January 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants, who are husband and wife, protection visas.  The background facts in relation to this matter are summarised in the Minister’s outline of submissions. 

2. The applicants are a married couple from China who arrived in Australia on 18 October 2012 as visitors[1]. Only the first applicant submitted a claim for protection[2]. The second applicant applied for a protection visa as a member of the first applicant’s family unit[3]. On 18 March 2013, a delegate of the Minister refused the first and second applicants’ protection visa applications[4].  On 11 April 2013, the Tribunal received the first applicant’s application for review of the delegate’s decision[5].

   [1] Relevant Documents (RD 3, 42, 46, 53, 82 [3], 83 [11])

   [2] RD 1, 31, 83 [10], 88 [33]

   [3] RD 31

   [4] RD 47, 66

   [5] RD 67

3. The first applicant claimed that she became a Falun Gong practitioner when she went to work in Japan in 2008[6].  She said that police came to her house in China on 5 April 2012 when she was not home, that they engaged her child in conversation and discovered that she was a Falun Gong practitioner[7].  As a result of this incident, the first applicant was sent to prison for two weeks, where she was forced to attend brainwashing classes and was physically harmed[8].

   [6] RD 16, 83 [10]

   [7] RD 16, 83 [13]

   [8] RD 16, 83 [13]

4. The first applicant further claimed that police came to her house on 6 July 2012 and asked her to report on a former colleague[9].  After this incident the first applicant felt that her life was in danger and decided to travel to Australia with her husband[10].  After they arrived, the first applicant “contacted home” and learned that the police had come looking for her, and that her colleague from Japan had been arrested[11]. Her parents were fearful, and told her not to return home[12].

   [9] RD 17, 83 [14]

   [10] RD 17, 83 [14]

   [11] RD 17, 84 [15]

   [12] RD 17, 84 [15]

Tribunal’s decision

1. In its decision, the Tribunal affirmed the delegate’s decision[13]. It found that the first applicant was “neither a truthful nor reliable witness”[14]. Her written evidence was inconsistent with both her evidence to the delegate and to the Tribunal[15].  Her evidence to the delegate was “constantly revised when her responses were questioned or challenged”, and her evidence before the Tribunal was “internally inconsistent and unconvincing”[16].

   [13] RD 81

   [14] RD 87 [28]

   [15] RD 87 [28]

   [16] RD 87 [28]

2. The Tribunal found that the first applicant was not a genuine Falun Gong practitioner[17]. It did not accept that the first applicant suffered serious harm in China because she was, or was believed to be, a Falun Gong practitioner, nor because she was associated with Falun Gong practitioners[18]. It followed that the Tribunal did not accept that the first applicant “was ever questioned or detained in China for any reason related to Falun Gong”[19]. In short, “her inconsistent evidence to the delegate and the tribunal and her revision of her responses when questioned or challenged on inconsistencies cause[d] the tribunal to conclude that she was not describing actual events in her life and personal experiences”[20].

   [17] RD 87 [29]

   [18] RD 87 [29]

   [19] RD 87 [29]

   [20] RD 87 [29]

3. Apart from her oral evidence to the Tribunal, the first applicant did not provide “other evidence to support her claim that she practises Falun Gong in Australia”[21]. Having regard to the absence of such evidence and the Tribunal’s “concerns relating to the first applicant’s credibility overall”, the Tribunal did not accept that she practises Falun Gong in Australia[22].

   [21] RD 87 [31]

   [22] RD 87 [31]

4. Since the Tribunal did not accept that the first applicant is, or had previously been, a genuine Falun Gong practitioner, it did not accept that she would practise Falun Gong if she returns to China. On that basis, it did not accept that she would “come to the adverse attention of the authorities in China for this reason”[23].

   [23] RD 88 [32]

5. The Tribunal ultimately found that the first applicant did not satisfy the refugee criterion set out in s.36(2)(a) of the Migration Act 1958 (Migration Act) or the complementary protection criterion in s.36(2)(aa)[24].  Since the second applicant did not advance his “own separate claims”[25], it followed that his application for a protection visa also failed[26].

   [24] RD 88 [34], [35]

   [25] RD 88 [33]

   [26] Section 36(2)(b), (c)

6. This matter came before me for first court date directions on 26 March 2014.  At that time the first applicant appeared in person with the assistance of a Mandarin interpreter.  I made orders by consent and listed the matter for a show cause hearing today at 2.15pm at John Maddison Tower, Sydney.  I satisfied myself that the applicant understood the orders that had been made. 

7. There was no appearance by or on behalf of the applicants when the matter was called this afternoon.  The matter has been called twice and, on each occasion, there was no answer to the call.  There is no explanation for the applicants’ non-attendance.  Before I came on the bench my associate attempted to contact the applicants on their nominated mobile phone number.  That attempt was unsuccessful.  The phone was turned off and went to voicemail.  I received, as an exhibit[27] a letter dated 26 September 2014 from the Minister’s solicitors to the applicants at their nominated address for service which warned the applicants of the consequences should they fail to attend court today. 

   [27] exhibit R1

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

9. I will further order that the applicants are 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.

10. 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 applicants by ordinary pre-paid post at their nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

11. I will further direct that the Court directs that the address disclosed during argument is not to appear on the transcript of proceedings.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  9 October 2014