SZUFZ v Minister for Immigration and BORDER Protection and Anor

[2014] FCCA 1188

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUFZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1188

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 426A
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Applicant: SZUFZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1087 of 2014

Judgment of: Judge Emmett

Hearing date: 30 May 2014

Date of Last Submission: 30 May 2014

Delivered at: Sydney

Delivered on: 30 May 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondents: Ms Freda Taah
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1087 of 2014

SZUFZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 19 March 2014 (“the RRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 22 April 2014, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.

3. Relevantly, rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application;

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

2. On 15 May 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

4. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5. The applicant confirmed that she wished to continue with the application for judicial review of the RRT’s decision.

6. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 22 May 2014. The applicant was also directed to file and serve written submissions in support of the grounds of her application by 22 May 2014.

7. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

8. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy with which the applicant was also provided.

9. The applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with my directions or otherwise. 

10. In support of the application to have the matter dismissed pursuant to r.44.12 of the Rules, the solicitor for the first respondent, Ms Freda Taah, read her affidavit, sworn 26 May 2014. Ms Taah’s affidavit annexed a copy of the applicant’s protection visa application, lodged 21 August 2013. That application clearly states the address to which correspondence was to be sent.

11. Ms Taah’s affidavit also annexes a copy of a letter, dated 30 January 2014. This letter was sent from the RRT to the applicant inviting her to appear before it to give evidence and present arguments relating to the issues arising in her case. The letter was addressed to the applicant at the address identified by her in her application for correspondence. The letter provided the date, time, and location of the hearing, and informed the applicant that if she did not attend the scheduled hearing, the RRT may make a decision without taking any further action to allow or enable the applicant to appear before it. 

12. Ms Taah also read the affidavit of the applicant, sworn 15 April 2014, which annexed a copy of the RRT’s decision record. 

13. The applicant confirmed that she relied on the grounds stated in her application for judicial review, filed on 22 April 2014, as follows:

    “Grounds of Application:

    1. RRT failed to give me procedural fairness

    2. RRT didn’t treat me with fairness

    3. RRT has bias against me with no reason to refuse my application.”

14. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

15. The only submission made by the applicant in support of her application was that she did not receive the letter. From that assertion, I understand the applicant to mean that she did not receive the RRT’s letter, dated 30 January 2014, inviting her to attend a hearing before it on 18 March 2014.

16. In its decision record, the RRT noted the applicant’s claims, and noted that it sent the applicant a letter, dated 30 January 2014, inviting her to appear before it on 18 March 2014. The RRT found that the letter was sent to the applicant’s last identified address for correspondences, and that it informed the applicant that if she did not attend the scheduled hearing, the RRT may make a decision without taking any further action to allow or enable her to appear.

17. The RRT noted that the applicant neither responded to that invitation nor attempted make any contact with the RRT in respect of her scheduled appearance. 

18. The RRT found that the hearing invitation was sent to the last address for service provided in connection the RRT review, and in the circumstances, proceeded to make its decision of the review without taking any further action to enable the applicant to appear before it, pursuant to s.426A of the Act. There is no evidence before me and nothing on the face of the RRT’s decision record to suggest that the RRT failed to comply with s.425 and s.425A of the Act in inviting the applicant to appear before it. On the evidence before me, I am satisfied that the RRT’s letter was dispatched to the applicant by pre-paid post to the last address provided to the RRT.

19. The RRT then considered the applicant’s claims and whether or not it was satisfied that the applicant met the refugee criterion provided at s.36(2)(a) of the Act, or the complementary criterion provided at s.36(2)(aa) of the Act.

20. The RRT found that on the evidence before it, it could not be satisfied about significant aspects of the applicant’s circumstances, which it identified in particular. Accordingly, the RRT was not satisfied that the applicant faced a real chance of persecution involving serious harm in China for a Convention reason now or in the reasonably foreseeable future, and was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that the applicant would suffer significant harm for the purposes of s.36(2A) of the Act.

21. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.

22. As stated above, there is no evidence before this Court to suggest that the RRT’s letter of invitation to attend a hearing, dated 30 January 2014, was sent otherwise than in accordance with the legislative regime.

23. The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.

24. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 22 April 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  26 June 2014