SZUAC v Minister for Immigration

[2014] FCCA 2163

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2163

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal refusing to grant the applicant a Protection (Class XA) visa – application referred for show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) – failure of applicant to attend hearing before Tribunal – application dismissed pursuant to r.44.12(1)(a).

Legislation:

Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A, 476

Federal Circuit Court Rules 2001 (Cth), rr.44.11(b), 44.12(1)(a)

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

Applicant: SZUAC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 635 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 16 September 2014

Delivered at: Sydney

Delivered on: 16 September 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the First  Respondent: Mr L D’Avigdor of Clayton Utz

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 14 March 2014 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 635 of 2014

SZUAC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 14 March 2014 by the applicant, SZUAC, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal“), made by Member M. McAdam on 14 February 2014, affirming the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister“), to refuse to grant the applicant a Protection (Class XA) visa.

2. The applicant, pursuant to s.91R of the Migration Act 1958 (Cth) (the “Migration Act“) has been granted a pseudonym and cannot be identified by name.

3. On 29 April 2014, the application was set down for a show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth).

4. The applicant was granted leave 29 April 2014 to file and serve any written submissions and list of authorities upon which he sought to rely by 2 September 2014.  The applicant failed to file any written submissions.

Background

1. In setting out the following background material I have quoted directly from the written submissions prepared by the Minister’s representatives and the Tribunal’s Decision Record (DR) which is annexed to the applicant’s affidavit sworn 10 March 2014.  I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a citizen of China who arrived in Australia on 16 September 2006 as the holder of a Student (Schools Sector) subclass 571 visa.  Upon cessation of that visa, the applicant held a number of other student visas, the last of which expired on 28 December 2012.  The applicant remained in Australia unlawfully until he was granted a Bridging E visa on 18 April 2013.  On 26 April 2013, the applicant applied for a Protection visa.

3. On 8 November 2013, a delegate of the Minister refused the Protection visa application.

4. The applicant applied to the Tribunal for review of the delegate’s decision on 6 December 2013.  At that time, the applicant was represented by a registered migration agent for the purposes of that application.

5. On 13 January 2014, the Tribunal informed the applicant that it was unable to make a favourable decision for the applicant on the material before it and invited him to appear before the Tribunal to give evidence and present arguments.  The hearing before the Tribunal was scheduled on 13 February 2014.  An invitation inviting the applicant to appear was sent to the applicant’s migration agent by facsimile.

6. On 13 January 2014, the Tribunal received a response to the hearing invitation directly from the applicant, indicating that he did not want to take part in the hearing before it.

7. On 30 January 2014, the Tribunal contacted the applicant’s migration agent to confirm that the applicant did not wish to attend the scheduled hearing.  The migration agent informed the Tribunal that the applicant had told her the previous day that he did wish to attend the hearing and that the migration agent would send a written notice to the Tribunal informing it accordingly.  However, nothing further was received by the Tribunal from either the migration agent or the applicant.

8. The applicant did not attend the scheduled Tribunal hearing on 13 February 2014. The Tribunal proceeded to make a decision on the review without taking further action to enable the applicant to appear before it, pursuant to s.426A of the Migration Act.

9. On 14 February 2014, the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a Protection visa.

Applicant’s claims

1. The applicant’s claims are contained in a written statement that was attached to his Protection visa application and have been reproduced in detail at DR [8(a)-(e)]. 

2. Essentially, the applicant fears persecution in China on account of his religion.  He claims that he and his family are members of an unregistered Christian congregation that has come to the adverse attention of the Chinese authorities.  The applicant was arrested and detained following a police raid at his family home (where a religious meeting was being held).  Following the raid, the applicant was summonsed to a police interrogation which he did not attend.

Tribunal’s decision

1. The Tribunal’s Decision Record notes that, on 13 February 2014, the applicant did not attend the scheduled hearing and that he did not contact the Tribunal to explain his failure to attend. In these circumstances, and pursuant to s.426A of the Migration Act, the Tribunal proceeded to make a decision on the review without taking further action to enable the applicant to appear before it.

2. The Tribunal’s Decision Record sets out what the Tribunal would have asked the applicant if he had attended the hearing and the manner in which it would have tested the applicant’s claims (DR [17]-[20]).  Absent that opportunity, the Tribunal considered the material before it and made the following findings:

   a)The applicant’s claims were lacking in detail such that the Tribunal was not persuaded that the applicant was Christian and or a member of an unregistered congregation in China (DR [14] and [23]); and

   b)On the material provided, the Tribunal could not satisfy itself as to the credibility of the applicant’s claims.  Accordingly, those claims were not capable of substantiating a well-founded fear of persecution or a real risk of significant harm in China (DR [21]).

3. Consequently, the Tribunal rejected the applicant’s claims in their entirety. The Tribunal ultimately was not satisfied that the applicant was a person to whom Australia owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act, respectively.

Current Proceedings

1. The application before this Court pleads the following two grounds of review:

   1.  DIAC and RRT have [discriminated against] me, failed to consider my real situation.

   2.. DIAC and DIAC are unfair to me.

Applicant’s submissions

1. The applicant indicated he had not prepared any written submissions prior to the hearing. 

2. When asked if he wanted to make any oral submissions in chief, the applicant stated that he did not.  The applicant also indicated he had read and understood the Minister’s written submissions, but had no comments to make in reply.

3. The applicant was asked why he did not attend the hearing before the Tribunal.  He indicated he did not have enough money to go to the hearing on the day as he had just paid rent and was unable to borrow enough money to go.

Minister’s written submissions

1. The Minister submits that Ground 1 of the application is unparticularised and the applicant has not sought to establish which aspect of his “situation” the Tribunal failed to consider.  In the absence of such particulars the assertion is arid and the claim must fail.

2. If however, the applicant’s true contention is that he was denied a real and meaningful invitation to attend the hearing as required by s.425 of the Migration Act, the result being that the Tribunal “failed to consider the applicant’s situation” and thereby committed jurisdictional error, then, in the Minister’s submissions, Ground 1 must fail for the following reasons:

   a)The s.425 invitation was sent by facsimile to the applicant’s migration agent. A transaction report confirms that the facsimile was sent on 13 January 2014 at “16:06” to the facsimile number of the applicant’s then migration agent (being the same number given in the application to the Tribunal) and that the transmissions proceeded “OK”;

   b)Having regard to the above, the s.425 invitation was taken to have been received by the applicant on 13 January 2014. It follows that hearing on 13 February 2014 occurred after the prescribed notice period in accordance with s.425A(3) of the Migration Act; and

   c)The applicant returned to the Tribunal his response to hearing invitation on 21 January 2014 indicating that he did not wish to give oral evidence. Whilst the applicant’s migration agent later indicated that the applicant did in fact wish to attend the hearing, she stated she would write to the Tribunal. No such correspondence was received either before the scheduled hearing or after it.

3. It is submitted that the s.425 invitation complied with legislative requirements (in terms of its content) and was dispatched in accordance with s.425A of the Migration Act, such that the applicant was issued a real and meaningful invitation to attend a hearing.

4. In light of the applicant’s failure to attend the hearing, the Tribunal’s s.426A discretion was enlivened. The Minister submits that the Tribunal complied with its procedural fairness obligations in accordance with the requirements of Division 4 of Part 7 of the Migration Act, which are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the conduct of the Tribunal’s review (see s.422B(1) of the Migration Act).

5. If, contrary to the above, a complaint of “discrimination” is pressed, it is submitted that such a complaint must fail.  Ground 1 is merely asserted and the applicant has not sought to establish how the Tribunal discriminated against him.  The allegation of discrimination is conceptually wed to that of apprehended bias – both complaints suggest that the Tribunal approached the applicant’s claims with a mind foreclosed to persuasion.  Relevantly, an allegation of bias must be “clearly alleged and proved” and only in “rare and extreme” cases with actual bias be disclosed by the Tribunal’s written reasons alone: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Jacobson J at [43]-[44]. Ground 1 does not meet this strict evidentiary threshold.

6. It is submitted that Ground 1 of the application does not establish jurisdictional error and ought to be dismissed.

7. In respect of Ground 2, the Minister submits this ground takes issue with the actions of “DIAC”. It is respectfully submitted that this Court has no jurisdiction in relation to a primary decision in accordance with s.476 of the Migration Act.

8. The Minister submits the application’s grounds of review fail to establish jurisdictional error and ought to be dismissed with costs.

Consideration

Ground 1

1. In respect of Ground 1 of the application, I accept that the Minister’s submissions (reproduced above at [23]-[28]) accurately address that ground, however, I wish to make my own comments.

2. To the extent that this ground alleges that the Tribunal failed to consider an integer of his claim and/or failed take into account the whole of the evidence in determining whether the applicant feared the persecution claimed, this submission cannot be sustained.  The applicant has failed to identify any integer of the claim that was not addressed by the Tribunal.  The Tribunal gave reasons for its findings in respect of the applicant’s claims, but was only able to do so on the basis of the applicant’s written statement as the applicant failed to attend the Tribunal hearing to give oral evidence.

3. Consequently, this ground must fail.

Ground 2

1. In respect of Ground 2 of the application, pursuant to s.476(2) of the Migration Act this Court has no jurisdiction in relation to the applicant’s original Protection visa application that was refused by the Minister’s delegate.

2. To the extent that this ground pleads a lack of procedural fairness on the part of the Tribunal, this has been dealt with adequately in the Minister’s submissions above at [24]-[28].

3. Consequently, this ground must also fail.

Conclusion

1. I have read the Tribunal’s Decision Record and, on a fair reading thereof, no error on the Tribunal’s part is apparent. Accordingly, for the reasons outlined above, the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and the applicant ordered to pay the Minister’s costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 16 September 2014