SZUIH v Minister for Immigration

[2015] FCCA 1047

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUIH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1047

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – dismissal due to non-appearance – application for reinstatement of judicial review application – whether the applicant has a reasonably arguable case – reinstatement application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.425(1), 426A, 441A(5)

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: SZUIH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

REFUGEE REVIEW TRIBUNAL

File Number: SYG 1284 of 2014

Judgment of: Judge Manousaridis

Hearing date: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms S. Burnett of
Clayton Utz

ORDERS

1. The application in a case filed on 25 March 2015 is dismissed.

2. The applicant pay the first respondent’s costs of that application set in the amount of $1,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1284 of 2014

SZUIH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 14 May 2014 the applicant filed an application for judicial review of a decision made by the second respondent (Tribunal), affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa. 

2. On 1 July 2014 I made directions for the further conduct of the proceedings and set the matter down for hearing on 3 March 2015. On that day the applicant did not appear. In light of the applicant’s failure to appear at the hearing, I made an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) dismissing the application. 

3. On 25 March 2015, the applicant filed an application in a case in which he seeks the following relief: 

   (1) An order that the decision of the tribunal or Minister be quashed.

   (2) A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law. 

   (3) A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.

4. The Court does not have jurisdiction to make the orders claimed in the application in a case unless I set aside the orders I made on 3 March 2015. The Court does have power under r.16.05(2)(a) of the Rules to set aside orders that have been made in the absence of a party. The applicant, who is not legally represented, informed me that what he was seeking was a review of the decision of the Tribunal and that he wished for me to set aside the orders I made on 3 March 2015. I therefore treated the application that was before me as an application pursuant to r.16.05(2)(a) to set aside the orders I made on 3 March 2015.

5. The principles that govern the Court’s exercise of the power under rule r.16.05(2)(a) of the Rules were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship.[1]  His Honour said:

   In circumstances where … a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530 at [7]

6. At the hearing before me today, I endeavoured to explain to the applicant these three factors.  I explained to the applicant that he needed to address each of these three issues in his application to have me set aside the orders I made on 3 March 2015.  I now turn to those factors. 

7. The only excuse the applicant gave before the hearing today for not attending the hearing on 3 March 2015 is the assertion contained in an affidavit that he missed the hearing “due to sickness”.  That assertion was the subject of no elaboration in the affidavit and was not supported by any medical evidence.  The explanation contained in the affidavit is entirely unsatisfactory.

8. Before me today, the applicant from the bar table said he did not attend the hearing because he had back pain, and that he still suffered from back pain, although the back pain today was better than what it was on the day of the hearing.  The applicant confirmed in answer to my question that he did not seek medical advice in relation to his back pain, but he said that his friend administered massage on his back to relieve him of his symptoms.  The applicant further said from the bar table that he meant to make a phone call to the court, but he could not speak English, and the place that he lived was too far away from the court.

9. Although the applicant said all this from the bar table, I will treat what he said as evidence having been given on oath, and will therefore have the status of evidence which has not been the subject of cross-examination.  The mere fact that evidence or testimony has not been the subject of any cross-examination does not mean, of course, that the court is bound to accept it.  And I do not accept the evidence of the applicant. 

10. In any event, even if I were to accept that evidence, it does not sufficiently explain why he did not appear before the Court.  The explanation is not supported by any medical evidence, and there is no evidence of the symptoms the applicant claims he suffered from and which he says prevented him from attending the hearing.  If I were to find, however, that the claims the applicant made in his application would have a reasonably arguable prospect of success if I were to reinstate the application, I would not give any weight to what I consider to be the inadequate explanation the applicant has given for not appearing before the Court on 3 March 2015.

11. I next turn, therefore, to whether the applicant would have any reasonably arguable prospects of success if I were to set aside the orders I made on 3 March 2015 and permit the applicant to go to a hearing on the claims he made in the application which he filed commencing the proceedings.  This requires me first to consider the claims for protection the applicant made and the Tribunal’s reasons for rejecting those claims. 

12. The applicant is a national of China.  He claimed that the government persecuted him because he has two children.  The authorities tried to seize the applicant and his wife many times.  The applicant was detained and, while detained, was beaten and deprived of food and water.  The applicant secured his release after giving the authorities money.  The applicant applied for a student visa after his wife gave birth to a second child.  A huge penalty was issued, which the applicant could not afford to pay.  The applicant fled China and arrived in Australia because he feared persecution.[2]

    [2] CB102-103

13. By letter dated 12 March 2014, the Tribunal invited the applicant to appear before it on 8 April 2014 to give evidence and present arguments to the Tribunal. The applicant did not appear at the appointed time, even though the Tribunal through its officers made inquiries on two occasions of the applicant’s agent about whether the applicant would appear before the Tribunal on the appointed day and time. The Tribunal in those circumstances decided pursuant to s.426A of the Migration Act 1958 (Cth) (Act) to make a decision on the review without taking any further action to enable the applicant to appear before it. 

14. The Tribunal was not satisfied the applicant was detained or mistreated by the Chinese authorities as the applicant claimed, or that the applicant suffered any harm because he may have had a second child.  The Tribunal, on the evidence before it, was not satisfied there was any basis to conclude there is a real chance the applicant will be subject to any type of harm in China, including serious harm, for any reason.[3]  One important factor, no doubt, was the inability of the Tribunal to explore with the applicant the claims he made.  The matters the Tribunal would have explored with the applicant had the applicant appeared before the Tribunal are described in some detail in paragraph 21 of the Tribunal’s reasons for decision.

    [3] CB105

15. The grounds stated in the application for review are as follows:

    (i)RRT have discrimination on me.  Failed to consider my real situation and decision are subjective.

    (ii)RRT failed to comply with the procedure fairness [sic] and erred in their reasoning.

16. The first ground contains three allegations.  One is that the Tribunal was actually biased against the applicant.  Before me, the applicant repeated that submission, and he also submitted that he did not think the Tribunal or the delegate considered these claims seriously. 

17. There is nothing in the Tribunal’s reasons for decision which could raise an arguable case of actual bias, and there is nothing on the material before me to support such a claim.  There is also nothing to suggest that there is any basis for arguing there was a reasonable apprehension of bias arising from the manner in which the Tribunal dealt with the applicant's claims. 

18. The second allegation made in ground one is that the Tribunal failed to consider the applicant's real situation.  There is no substance to that allegation.  It is apparent from its reasons for decision that the Tribunal considered the evidence that was before it that bore on the applicant's case.  If the Tribunal failed to do any more than what it actually did, it was due to the applicant's not submitting any further material to the Tribunal than he did, and his not appearing before the Tribunal on the day the Tribunal appointed for him to appear to give evidence and present arguments.

19. And there is no substance to the third allegation made in ground one, namely that the Tribunal’s decision was subjective, if by that the applicant intended to claim that the Tribunal’s findings were not reasonably open to it.  The findings it made were plainly reasonably open to the Tribunal to find. 

20. The applicant made an additional submission in relation to ground one, and that was a submission to the effect that his family was persecuted during the Cultural Revolution, and that an investigation ought to have been conducted into the claims the applicant made about his being persecuted.  This discloses no arguable case of jurisdictional error on the part of the Tribunal.  Quite apart from my not being able to find a reference in the material before me[4] to a claim that the applicant's parents were persecuted in the Cultural Revolution, it is clear that it is for an applicant to make out a case before the Tribunal that the applicant is entitled to a protection visa.  And, as a general proposition, the Tribunal is not obliged to undertake its own independent investigations in response to an application for review made to it.

    [4] Since delivering my reasons, I have become aware that at CB104, [17], the Tribunal refers to the delegate having noted that the applicant told the delegate his family were persecuted in the Cultural Revolution and that, as a consequence, the applicant had to look after his uncles and that the delegate did not accept this amounted to persecution.

21. I turn to the second ground.  That ground appears to be directed to the Tribunal’s having decided to determine the review after the applicant failed to appear at the appointed time before the Tribunal, without taking any further action to enable the applicant to appear before it. 

22. The Tribunal was entitled to decide the review without taking any further action. The Tribunal sent its letter dated 12 March 2014 inviting the applicant to appear before it to the fax number of the applicant's representative specified in the application for review the applicant lodged with the Tribunal. That was an available method under s.441A(5) of the Act for notifying the applicant of an invitation made under s.425(1) of the Act to appear before the Tribunal. There was nothing unreasonable in the Tribunal deciding to decide the review as it did, particularly given that the Tribunal had contacted the applicant's representative to enquire whether the applicant intended to appear at the hearing.

23. For these reasons, the applicant would have no reasonable prospects of successfully prosecuting the claims for relief made in the application the applicant filed on 14 May 2014 if I were to set aside the orders I made on 3 March 2015. 

24. Finally, I turn to prejudice.  Given I have found the applicant would have no reasonable prospects of success if I set aside the orders that I made on 3 March 2015, and permitted the applicant to prosecute the claims made in his application, the applicant would suffer no prejudice if I do not set aside the orders I made on 3 March 2015.  On the other hand, if the orders were set aside, the Minister would be prejudiced to the extent that he would incur costs, which he would be at risk of not being able to recover even if a costs order were made against the applicant. 

25. For those reasons, I propose to order that the application in a case filed on 25 March 2015 be dismissed and that the applicant pay the Minister’s costs. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  24 April 2015