SZUIL v Minister for Immigration & Border Protection & Anor (No.2)
[2014] FCCA 2694
•14 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUIL v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.2) | [2014] FCCA 2694 |
| Catchwords: PRACTICE & PROCEDURE – Applicant failed to attend scheduled hearing – whether orders made dismissing proceeding should be set aside – whether explanation for failure to appear satisfactory – whether prospects of success are sufficient such that it is necessary in the interests of justice to reinstate proceeding – application refused. |
| Legislation: Federal Circuit Rules 2001 (Cth) r.13.03 Migration Act 1958 (Cth) ss.36, 91R |
| SZUIL v Minister for Immigration and Border Protection [2014] FCCA 1878 |
| Applicant: | SZUIL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1300 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 14 November 2014 |
| Date of Last Submission: | 14 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter. |
| Solicitor for the Respondent: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1300 of 2014
| SZUIL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to an Application in a Case, filed on 16 October 2014, to set aside orders made by this court on 13 August 2014.
The applicant’s proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) on the basis that the applicant had failed to attend the scheduled Court event on that date. Reasons were given by me at that time in SZUIL v Minister for Immigration and Border Protection [2014] FCCA 1878. Those reasons address a medical certificate sent by the applicant which the Court found not to be sufficient to explain why the applicant was unable to participate effectively in the hearing on that day.
Relevantly, the medical certificate did not address the critical question of whether and if so, why the medical condition would prevent the applicant from travelling to the Court and participating effectively in the Court hearing. The medical certificate said no more than the applicant was suffering from a medical illness and was unfit for work. However, the medical certificate made no mention as to whether or not the applicant would be fit to attend court.
The applicant was unrepresented before me this morning, although had the assistance of an interpreter. The applicant confirmed that her reasons for failing to attend Court on 13 August 2014 were for the medical reasons reflected in the medical certificate provided to the Court on 12 August 2014. Those reasons remain inadequate for the reasons given by me on 13 August 2014. The applicant did not provide any further medical evidence in relation to any particular illness suffered by her on that day that would have prevented her attendance at Court.
In the circumstances, the applicant’s explanation for her failure to appear at the hearing on 13 August 2014 is unsatisfactory for the reasons given at that time.
I explained to the applicant that of further relevance to her application this morning would be the prospects of success of her application, filed on 15 May 2014, seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 15 April 2014. I explained to the applicant that the role of this Court is different to that of the RRT and that the only issue before this Court on a final hearing would be whether or not the decision of the RRT was made according to law.
The grounds of the applicant’s application for judicial review were interpreted for her and she was invited to say whatever she wished in support of those grounds. Those grounds are as follows:
“1. The cruel doing of China to members of Falun Dafa practices still goes on. A somewhat 600,000 people are being tortured everyday in the prisons, detention centres for brainwashing and mental facilities. Even more cruelly, between 2000 and 2008 about 65,000 members were killed taken organs out, sometimes even when they were alive. This was the crime that’s “never seen on Earth”. Statistics from Canada shown 52 records proved the action of organ taking while alive. Therefore the Communist Party in China is the humanity-damning cult throughout, every man with sense will charge against it and it has to be imperative taken action by Heavens to end the force. Therefore in Paragraph 45, RRT ignore the fact that I will be persecuted if I back to China.
2. RRT has no any knowledge of how the Chinese government persecutes Falun Dafa practices. So the decision made by RRT is unfair.”
In relation to Ground 1, the applicant had nothing further to say. The allegation in Ground 1 appears to be that the RRT ignored the fact that she would be persecuted if she went back to China. The first respondent read the affidavit of the applicant that annexed a copy of the RRT’s decision. That decision makes clear that the applicant applied for a protection visa on the basis that she feared harm if she was returned to China by reason of being a Falun Gong practitioner in China and by reason of having suffered harm on that basis in China.
The RRT’s decision record makes clear that the RRT understood the claims made by the applicant and explored them with her in some detail at a hearing. The RRT put to the applicant concerns it had about her claims and noted the applicant’s responses. The RRT found the applicant’s knowledge of Falun Gong to be very weak and that her lack of her knowledge and her inability to do exercises that she claimed to have been doing for 10 years indicated that her claims were not truthful.
The RRT put to the applicant that the weakness of her knowledge of Falun Gong may lead it find that she had fabricated her claims to be a Falun Gong practitioner had fabricated all her Falun Gong claims relating to the harm she suffered in China for that reason. The RRT noted the applicant’s response that she had not fabricated the claims and that she simply could not remember the information about Falun Gong or the exercises.
Ultimately, the RRT comprehensively rejected the applicant’s claims ever to have been a Falun Gong practitioner or ever to have suffered harm in China for that reason. Further, the RRT disregarded Falun Gong related activities in which the applicant engaged in Australia on the basis that they were engaged in for the sole purpose of strengthening her claim to be a refugee. The RRT noted that pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Act”) in those circumstances, those activities would be disregarded.
The RRT considered whether the applicant met the relevant criteria for a protection visa under both ss.36(2)(a) and 36(2)(aa) of the Act and concluded that she did not.
There is nothing on the face of the RRT’s decision record to suggest that its findings were not open to it on the evidence and material before it and for the reasons it gave. Certainly, the applicant’s allegation that the RRT ignored the fact that she would be persecuted if she was returned to China is not made out.
In Ground 2, the applicant asserts that the RRT had no knowledge of how the Chinese Government persecutes Falan Dafa practices and so the decision made by the RRT is unfair.
For the same reasons above, Ground 2 has no prospect of success. As stated above, the RRT summarised the applicant’s written statement of claims and summarised various discussions of those claims with the applicant at the hearing on 4 March 2014.
The RRT put to the applicant its concerns about her evidence and noted her responses. As stated above, the RRT’s reasons would appear to be open to it on the evidence and material before it and for the reasons it gave.
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Otherwise, the complaints made by the applicant in relation to the RRT’s decision are more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Whilst I make no final finding as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant.
Accordingly, the applicant’s application in a case, filed on 16 October 2014, is dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 19 November 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Civil Procedure
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Appeal
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