SZUEH v Minister for Immigration

[2014] FCCA 1205

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUEH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1205

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

Legislation:

Migration Act 1958 (Cth), ss.425, 425A, 441A

Federal Circuit Court Rules 2001 (Cth), reg.44.12(1)(a)

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: SZUEH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 953 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 10 June 2014

Delivered at: Sydney

Delivered on: 10 June 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 of appearance.

ORDERS

1. The application filed on 8 April 2014 is dismissed pursuant to reg.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.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 953 of 2014

SZUEH

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 8 April 2014 by the applicant, SZUEH, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member D. Connolly on 7 March 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. 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.

2. The applicant arrived in Australia on 24 January 2012 as the holder of a tourist visa which expired on 24 April 2012.  She first applied to the Department of Immigration and Border Protection (at that time the Department of Immigration and Citizenship) on 17 October 2012, however, on 22 November 2012, that application was deemed to be invalid.  In the invalid application the applicant claimed, amongst other things:

   a)Her house in China had been demolished in 2009 and the authorities constructed a factory and warehouse on their property;

   b)She was not compensated of provided with alternative living arrangements;

   c)She attempted to file law suits but the courts would not accept them;

   d)She was taken hostage, detained and threatened by police; and

   e)She and her neighbours were kidnapped and detained for 45 hours while petitioning in Haikou City.

3. The applicant then made a valid visa application on 15 May 2013.  In the application the applicant claimed she left China because she was under threat of mistreatment and persecution by the local government and she would be harmed and tortured by the local authorities and those working for them if she returned.  On 15 August 2013 the Minister’s delegate refused to grant the applicant a Protection visa.

4. The applicant lodged her application for review of the delegate’s decision with the Tribunal on 13 September 2013 and provided the Tribunal with a copy of the delegate’s decision record. The Tribunal wrote to the applicant on 29 January 2014 advising it had considered all the material before it relating to her application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear at a hearing on 3 March 2014, however, the applicant did not appear nor did she contact the Tribunal to explain her failure to attend. The Tribunal, pursuant to s.426A of the Migration Act, made its decision without taking any further action to enable the applicant to attend.

5. The Tribunal in its Decision Record:

   a)Found the applicant’s claims scant and lacking in detail;

   b)Noted from the delegate’s decision the applicant was invited to elaborate on those claims but did not provide the delegate with any further information before the decision was made;

   c)Noted it had invited the applicant to appear before it to discuss these issues but the applicant did not avail herself of the opportunity; and

   d)Considered the written statement provided by the applicant to the Department in the invalid Protection visa application and, given the applicant had not provided these particulars in the second visa application, wished to discuss with the applicant if she continued to rely on those claims.

6. The Tribunal found the applicant’s claims in the visa application of 15 May 2013 scant and lacking in detail. The Tribunal also considered the claims made in the applicant’s written statement of October 2012, but was not satisfied that any of the events referred to therein actually occurred. The Tribunal found that, if the applicant’s claims were true, the applicant would have provided further detail to the Department and she would have attended her hearing at the Tribunal. On that basis, it found the applicant’s claims to have been manufactured. The Tribunal rejected the entirety of the applicant’s claims and found there was no real chance she would be persecuted for any Convention reason now or in the reasonably foreseeable future and that the applicant did not have a well-founded fear of persecution, thus did not meet the refugee criterion in s.36(2)(a) of the Migration Act. The Tribunal further found, given the rejection of the entirety of the applicant’s claims, she did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act. The Tribunal affirmed the decision not to grant the applicant a Protection visa.

Current Proceedings

1. The application has been listed for a first court date directions hearing on today’s date, being 10 June 2014, and referred for an immediate show cause hearing pursuant to reg.44.11 of the Federal Circuit Court Rules 2001 (Cth).

2. The application pleads three grounds, being:

   1.  RRT failed to examine my evidence.

   2.  I was not given an interview.

   3.  I need to present experience and my suffering in my country.

Consideration

1. The first ground appears to plead a failure on the part of the Tribunal to examine some or all of the applicant’s evidence before it.  This ground has not been particularised, however, the Tribunal’s Decision Record at [13]-[14] makes clear the Tribunal considered all of the applicant’s written material in support of both the valid and invalid Protection visa applications.  No further evidence was provided by the applicant and, accordingly, I am satisfied this ground cannot be sustained and should be dismissed.

2. The second ground of the application alleges the applicant was not given an interview. The Decision Record states at [7] the applicant was invited by letter dated 29 January 2014 to appear at a hearing before the Tribunal on 3 March 2014, but did not attend. Section 425 of the Migration Act states the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in the decision under review, except in limited circumstances. Section 425A states that if an applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear by one of the methods stated in s.441A of the Migration Act. The Minister’s representative provided to the Court at the hearing a copy of the invitation letter sent by the Tribunal to the applicant as well as a copy of the applicant’s application for a Protection visa and I am satisfied the Tribunal validly notified the applicant of the hearing before it for the purposes of s.425A of the Migration Act. Accordingly, this ground cannot be sustained.

3. The third ground of the application appears to seek the Court to engage in impermissible merits review and, accordingly, cannot be sustained (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 at [10]).

4. Consequently, none of the grounds pleaded in the application can be sustained and no arguable case for relief has been raised. Accordingly, the application should be dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with costs awarded to the Minister.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 10 June 2014