SZUIE v Minister for Immigration
[2014] FCCA 1701
•22 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUIE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1701 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision of delegate of Minister for Immigration and Border Protection refusing to grant applicant a Protection (Class XA) visa – applicant failed to attend hearing before Tribunal – no arguable case for relief raised – application dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.36, 426A Federal Circuit Court Rules 2001 (Cth), rr.44.11(a), 44.12(1)(a) |
| SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 |
| Applicant: | SZUIE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1270 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 22 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitor for the First Respondent: | Ms Taah of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application be set down for an immediate hearing pursuant to reg.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,331.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1270 of 2014
| SZUIE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Federal Circuit Court on 13 May 2014 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), affirming the decision of a 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 solicitors for the Minister filed a folder on 18 June 2014 which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a citizen of the People’s Republic of China (“China”) aged in his early 30s who arrived in Australia in November 2011 as the hold of a Student visa (CB 3).
He applied to the Department of Immigration for a Protection visa on 1 July 2013(CB 1-25). This application was accompanied by a typed statement of the applicant’s claims (CB 26-27)
The applicant’s claims were, essentially, that he started practicing Falun Gong as a result of his weak physique and strenuous work. He was detained by police in June 2011 for 15 days and was beaten, severely mistreated and forced to sign a confession letter. After his release the applicant was forced to report to police every fortnight and lost his lease on his farmland. The applicant became disappointed by the Chinese Government and applied to study in Australia. When he became aware of human rights in Australia he decided he should “muster up” the courage to apply for a Protection visa.
The applicant failed to attend the interview scheduled with the Minister’s delegate on 4 December 2013 (CB 43). On 16 December 2013 the Minister’s delegate refused to grant the applicant a Protection visa (CB 34-49).
The applicant then lodged an application for review of the delegate’s decision with the Tribunal on 12 January 2014 (CB 50-55). No further evidence was attached to this application.
The Tribunal invited the applicant to a hearing before it on 2 April 2014 by letter faxed to the applicant’s nominated facsimile number on 3 March 2014 (CB 66-67). On 2 April 2014 the applicant provided the Tribunal by fax with a handwritten letter stating he had moved to Shepparton from Sydney and wished for the hearing to be rescheduled as he was now close to Melbourne (CB 68). The Tribunal wrote to the applicant on the same day (also sent by facsimile) and informed him the hearing had been rescheduled to 9 April 2014 by video-link between Melbourne and Sydney (CB 76-77). An officer of the Tribunal also telephoned the applicant’s nominated representative to inform him accordingly, and the representative indicated he would pass the information on to the applicant.
The applicant failed to appear at the hearing before the Tribunal on 9 April 2014 (CB 88). Neither the applicant nor his representative contacted the Tribunal to explain the applicant’s failure to appear or to request a further postponement of the hearing. The Tribunal, pursuant to s.426A of the Migration Act, decided to make its decision on the review without taking any further applicant to allow or enable the applicant to appear before it.
The Tribunal in its Decision Record (CB 88-91) stated it would have attempted to explore with the applicant at [12]:
a)His claims relating to his Falun Gong practice and whether he has engaged in Falun Gong practice in Australia; and
b)Why he came to Australia on a Student visa, whether he studied and why he delayed lodging his Protection visa application for 18 months since his arrival if he was detained and mistreated as he claimed.
The Tribunal did not accept any of the applicant’s claims as set out in his statement regarding Falun Gong, mistreatment, shunning by neighbours and friends or losing the contract for his land. It was not satisfied there was a real chance the applicant would suffer harm if he were to return to China now or in the reasonably foreseeable future as a result of any association with Falun Gong (CB 90 at [13]-[14]).
The Tribunal, after satisfying itself the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(a) of the Migration Act, also found the applicant was not a person to whom Australia had protection obligations under s.36(2)(aa) (the complementary protection criterion) (CB 90 at [15]-[17]).
Current Proceedings
The application filed on 13 May 2014 pleads the following grounds:
1. RRT has descriminatio (sic) on me, failed to consider my real situation.
2. RRT and DIAC are unfair to me.
At the first court date directions hearing on 22 July 2014 I indicated to the parties I would set the proceedings down for an immediate show cause hearing pursuant to reg.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).
Applicant’s Submissions
When asked at the show cause hearing if he had any oral submissions to make in support of his grounds of review, the applicant indicated he did not understand his grounds of review. He also indicated his reason for not attending the hearing before the Tribunal on 9 April 2014 was because he could not afford to.
Minister’s Submissions
The Minister’s representative contends there is no jurisdictional error raised in either of the grounds of review pleaded in the application and no error in the Tribunal’s decision. Accordingly, the application should be dismissed with costs.
Consideration
I indicated at the hearing that I had read the contents of the application and Court Book and was of the view that this matter was appropriately dealt with by way of show cause hearing.
The applicant has failed to elaborate on either ground of review in his application. Ground 1 is unparticularised and, on a fair reading of the Decision Record and Court Book, I can see no evidence of discrimination against the applicant by the Tribunal. Further, the Tribunal in its Decision Record considered the evidence before it and was unable to find in the applicant’s favour. This finding, in my view, was open to the Tribunal on the evidence before it, particularly given the applicant failed to appear at both hearings before the Tribunal.
I note Ground 2 of the application appears to raise a claim of a denial of procedural fairness on the part of the Tribunal and Department of Immigration. However, this Court is limited to reviewing in these circumstances the Tribunal’s decision. Accordingly, I have had regard to the provision of the Migration Act, particularly ss.425, 425A, 441A. The applicant was validly invited to appear before the Tribunal on two occasions, but failed to. On the second occasion the Tribunal made allowances for the applicant’s location near Melbourne, however, the applicant failed to appear on that occasion. I am satisfied the Tribunal discharged its obligations under those sections of the Migration Act and was consequently entitled to make a decision under s.426A.
His Honour Reeves J in SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 stated in respect of s.426A of the Migration Act at [21]-[22]:
21. The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application”.
22. There can be no doubt the Tribunal clearly had the power to proceed under s 426A(1) in the appellant’s absence. While that power must be exercised reasonably and cannot be exercised capriciously, the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 ; [2006] FCA 1045 per Greenwood J at [20]–[21]. Nor is there any obligation on the Tribunal to make any inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
I am of a similar view in respect of these proceedings. The applicant was afforded two opportunities to appear before the Tribunal, however, failed to. The Tribunal found it was unable to make a decision favourable to the applicant in his absence. I am further satisfied the Tribunal discharged its obligations under s.36(2)(a) and s.36(2)(aa) of the Migration Act in considering the applicant’s claims.
The application raises no arguable case for relief and should be dismissed with costs pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 22 July 2014
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