SZUNR v Minister for Immigration

[2014] FCCA 2416

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2416

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision to refuse to grant applicant a Protection (Class XA) visa – Failure by applicant to attend hearing – Application set down for show cause hearing – No arguable case for relief raised – Application dismissed.

Legislation:

Migration Act 1958 (Cth), s.426A

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

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant: SZUNR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1666 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 21 October 2014

Delivered at: Sydney

Delivered on: 21 October 2014

REPRESENTATION

The Applicant: The applicant appeared in person with a Mandarin interpreter.

Solicitor for the First Respondent:	Ms Z Taylor of Clayton Utz
The Second Respondent:	The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 19 June 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1666 of 2014

SZUNR

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 19 June 2014 by the applicant, SZUNR, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal“), made by Member R. Wilson on 18 May 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.

2. 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.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representative.  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.

2. On 16 December 2012, the applicant, a citizen of China, arrived in Australia as the holder of a Student visa.

3. On 9 July 2013, the applicant applied for a Protection visa (CB 1 - 25).

4. On 6 December 2013, a delegate of the Minister refused to grant the Protection visa (CB 42 - 57).

5. On 9 January 2014, the applicant applied to the Tribunal for review of the delegate's decision (CB 58 - 63).

6. On 9 January 2014, the Tribunal sent correspondence to the applicant's mailing address which was not returned (CB 64 - 65).

7. By letter dated 2 April 2014 (the “hearing invitation letter”), the Tribunal advised the applicant that it was unable to make a favourable decision on the information before it alone and invited the applicant to appear at a hearing on 14 May 2014.

8. On 6 May 2014, upon receiving no response to the hearing invitation letter, the Tribunal rang the applicant to discuss his attendance at the scheduled hearing (CB 68).  On 8 May 2014, the Tribunal received the applicant's response to the hearing invitation form.

9. The applicant did not attend the hearing before the Tribunal on 14 May 2014. The Tribunal proceeded to make a decision on the review pursuant to s.426A of the Migration Act 1958 (Cth) (Act) and affirmed the delegate's decision.

10. On 19 June 2014, the applicant commenced the judicial review proceedings in this Court.

The applicant’s protection claims

1. The applicant claims that he will be harmed by Chinese authorities because he is a Christian. In support of this central claim the applicant asserted that:

   a)In March 2012, he started attending Sunday worship at a family church located in a pastor's house;

   b)On 9 September 2012, the local police raided the congregation and confiscated the bibles and attendees’ “contributions”. The police noted the names of those present and “took away” the pastor. The people present, including the applicant, were warned that they could be arrested if they were found congregating again;

   c)The applicant's employment was terminated because of his alleged membership of a “cult” and the applicant subsequently escaped from China to Australia with the help of his family;

   d)Since arriving in Australia, the applicant regularly attended the Church of Christ, in Melbourne, and thereafter the Grace Gospel church in Campsie;

   e)On 2 June 2013, the applicant was baptised by Pastor Huang of the Campsie church; and

   f)If he were to return to China, the Chinese government would create “trouble” for him in that he might be detained and sent to jail. The applicant also fears he may not be able to find work.

The Tribunal’s Decision

1. In its Decision Record (CB 75 - 80) the Tribunal outlined the various procedural steps it undertook with respect to the applicant's review proceedings. In light of the applicant's non-attendance at the hearing on 14 May 2014 the Tribunal proceeded to make a decision on the review without taking any further action to allow the applicant to appear before it, pursuant to s.426A of the Migration Act (CB 79 at [20]).

2. In doing so, the Tribunal concluded that the applicant's claims and credibility could not be tested (CB 80 at [24], [27]). It found that there was nothing to support the applicant's claims aside from unsubstantiated assertions (CB 80 at [26]). The Tribunal also noted that the applicant's claims regarding his church attendance in China and Australia lacked detail and were insufficiently particularised (CB 80 at [26]).

3. Accordingly, the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations under ss.36(2)(a) or 36(2)(aa) of the Migration Act (CB [29], [31]).

Current Proceedings

1. The applicant raises three grounds of review in the judicial review application. The grounds are reproduced verbatim below:

   1. In January 2014, I was hit by a car while I was crossing the street when the green light was on. The driver continued driving after hitting me. I was hit on my back.

   2. My back pain problem became more serious when the weather is bad. I sent an email to the RRT and explained that I could not attend the hearing two days before the hearing date.

   3. RRT ignored my email, RRT did not call me either."

2. The applicant expands on these grounds in the affidavit supporting his application for judicial review sworn on 19 June 2014 (the “Affidavit”). Paragraphs [1] - [10] of the Affidavit are a discursive restatement of his claims before the Tribunal. From paragraph [11] of the Affidavit, the applicant states:

   11. I sent a review application and received a invitation to attend a hearing at RRT on 14 May 2014. I filled the form and sent it back. I was preparing to appear before the RRT on 14 May 2014.

   12. However, my back pain problem became more serious. So I sent an email to RRT and reported that I would not be able to attend the hearing arranged on 4 May 2014.

   13. I did not receive a reply from RRT.

   14. One of the reasons that my review application was failed is that I did not attend the hearing.

   15. I do not think it is a fair decision.

   16. I would like to appeal the decision and wish to have my review application reassessed by the RRT.

3. Collectively, the applicant's “grounds” allege a breach of procedural fairness on the basis that the applicant informed the Tribunal by email that he could not attend on the scheduled date, and, having received no response to that email, was unfairly denied the opportunity to appear before the Tribunal.

Applicant’s Submissions

1. At the show cause hearing, the applicant indicated he had not prepared any written submissions, however, wanted to show the Court four photographs that were stored in his phone in support of his claim.

2. I indicated to the applicant the Court could not accept as evidence photos stored on a mobile phone and that he could attach the photographs to an email to be sent to my associate where they could then be printed to hard copy.  After an adjournment to allow this to occur, the show cause hearing resumed.

3. The applicant stated he was unable to attend the Tribunal hearing and these photographs prove that he had contacted the Tribunal in order to inform them that he would not be able to attend, however, he received no response from the Tribunal.

4. When questioned at the hearing, the applicant confirmed he had not telephoned the Tribunal about the sought adjournment and stated that he believed, on his evidence, he had successfully sent his request for an adjournment to the Tribunal, but no response was received.

5. The applicant otherwise indicated he had no oral submissions to make in chief or in response to the Minister’s oral and written submissions.

Minister’s submissions

Minister’s written submissions

1. The Minister submits that on 2 April 2014, the Tribunal wrote to the applicant by registered post to the applicant's residential address, inviting him to attend the hearing in accordance with s.425 of the Migration Act. By operation of s.441C(4) of the Migration Act, the applicant was deemed to have received the invitation to attend the hearing by 11 April 2014, being seven working days after dispatch of the hearing invitation letter. The applicant confirmed that he did in fact receive the invitation by telephone and eventually returned his response to the hearing invitation. Plainly, the hearing invitation letter was formally compliant with ss.425A and 441A(4) of the Migration Act. The invitation also provided proper notice of the hearing date in accordance with reg.4.35D of the Migration Regulations 1994 (Cth) for the purposes of s.425A(3) of the Migration Act.

2. Having complied with the requirements under ss.425 and 425A of the Migration Act, it is submitted that the Tribunal’s discretion under s.426A of the Migration Act was enlivened and it was entitled to proceed as it did.

3. The claim that the Tribunal unreasonably exercised its discretion under s.426A of the Migration Act is predicated on the assertion that the applicant notified the Tribunal that he could not attend the hearing for medical reasons. The Ministers submits that there was no material before the Tribunal to suggest that it was not within its rights to proceed to hear the application in the applicant's absence, given the applicant's failure to attend. Nor has the applicant, at the date of preparing these submissions, filed any evidence in support of his grounds of review.

4. In circumstances where the Tribunal:

   a)sent a valid hearing invitation and, having received no response to that invitation, called the applicant to confirm his attendance;

   b)notified the applicant that “If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead,” and

   c)did not receive any correspondence from the applicant indicating that he could not attend the hearing;

   it is submitted the Tribunal's exercise of the discretion under s.426A of the Migration Act was reasonably exercised. Indeed, the various procedural steps taken by the Tribunal went beyond the requirements of Division 4 of Part 7 of the Migration Act, which are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in Migration proceedings of this kind. The applicant also claims that the Tribunal failed to call him about his email. In the Minister's submission, that there is no evidence of any such email being sent to or received by the Tribunal. As a consequence, the Tribunal had no obligation to make an inquiry about the failure of the applicant to appear.

5. For completeness, it is submitted that no error arises from the Tribunal's treatment of the applicant's claims. In circumstances where the applicant failed to appear before the Tribunal it is almost inevitable that the Delegate's decision would be affirmed. The Full Court's comments in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287, French (as he then was), Emmett and Dowsett JJ are instructive in this regard (at [5]) where their Honours stated:

   … [I]t must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

Minister’s Oral Submissions

1. At the hearing, Ms Taylor, appearing for the Minister, indicated she did not oppose the tender of the four photographs as sought by the applicant, on the basis she could then address them in oral submissions.

2. It was submitted that little evidentiary weight should be given to the photographs for the following reasons:

   a)First, the “Subject” fields of the emails address the renewal of a residence visa;

   b)Second, the emails are not determinative of the recipient; and

   c)Third, the one of the emails is dated two days before the date of the Tribunal hearing.

3. Ms Taylor also contended that the basis upon which the adjournment was sought of the Tribunal hearing in the photographs was on the basis of a “fall” where the application states the applicant could not attend as he had been hit by a car and was suffering back pain.

4. Ms Taylor also referred to the Court Book at CB 66, which is the Tribunal’s invitation sent to the applicant to appear before it.  In the invitation the Tribunal stated:

   If the Tribunal does not advise you that an adjournment has been granted, you must assume the hearing will go ahead.

   In those circumstances, it is submitted the applicant was in fact on notice that the adjournment request, if actually sent, had not been granted.  This, however, is giving the applicant the benefit of the doubt that such a request was sent, which the Minister submits is not the case.

Consideration

1. At the hearing the Court Book was marked as Exhibit “A” and the four photographs tendered by the applicant as Exhibit “B”.  These exhibits are the only evidence before the Court.

2. The applicant seeks to advance the argument that he informed the Tribunal by email that he was unwell and would not be able to attend the hearing scheduled on 14 May 2014.  In support of this are the statements reproduced above at [17]-[24] and Exhibit “B”.

3. I first turn to Exhibit “B”, being the four photographs tendered by the applicant.  These photographs appear to have been taken by a camera, presumably the applicant’s mobile phone, and appear to be of the screen of a computer. 

4. One of the photographs appears to be of a medical certificate prepared in respect of the applicant by a Dr D. Lin. The medical certificate states that the applicant, in the doctor’s opinion, will be unfit for duty/school between 26 January 2014 and 9 February 2014.  In any case, the Tribunal hearing was scheduled on 14 May 2014, which is more than three months after the end of the period during which the applicant was purported to be unfit for duty/school.  Accordingly, I give this evidence no weight.

5. The remaining three photographs appear to present photos of emails in an email account open in an internet browsing program, however, significant portions of these emails are written in Chinese characters.  Upon close inspection of these emails, however, noting the normal fashion in which emails are displayed in an internet browser, in my view, it becomes apparent that the email correspondence was not sent between the applicant and the Tribunal, but between the applicant and someone whom he had engaged to assist him with his visa application, though the nature of the type of visa application is unclear.

6. First, two of the photographs appear to be of the same email sent/received on 5 January 2014 (“Email A”).  Noting that the applicant provided his email address to my associate at the show cause hearing when sending the photographs he sought to tender and this email appears on the photographs, Email A appears to be an email sent by someone assisting the applicant with a residence visa renewal.  Both email addresses are hosted by “qq.com”, which is not the domain of the Tribunal. 

7. Further, Email A states the following in the body:

   January 2014 a new visa information has been published in the Immigration Department, will be fo … check-related news!  In order to avoid losses.

   …: my view, this content is not consistent with any email correspondence that would be sent by the Tribunal.  Further, the email was sent on 5 January 2014 and the applicant did not lodge his application for review of the delegate’s decision until 9 January 2014.

8. The photograph of the second email appears to be the email that the applicant relies upon to substantiate his claim he contacted the Tribunal to inform them he was too unwell to attend the hearing and was sent on 12 May 2014 (“Email B”).  Importantly, this email bears the same “Subject or “Title”, being “Residence visa renewal”.  Further, the sender and recipient are the inverse of Email A, being the applicant’s email address and the other address also having the host “qq.com”.

9. The body of Email B states:

   Immigration officer: hello! I am [SZUNR]

   I’m sorry Sir, I can’t go on 14/5/2014 to immigration court, because I accidentally fell into the waist … sedentary.  Can’t go to court.  I hope the immigration officer can understand! Thank you very much! … open proof!

10. None of the documents sent by the Tribunal to the applicant before the hearing, sent to the Tribunal by the applicant or the delegate’s decision contain an email contact address for the Tribunal (see CB 43-80).  Further, the Tribunal’s website states that the contact email for the Tribunal is “[email protected]”.  This address is not found in any of the evidence tendered by the applicant, particularly the photographs of emails he either sent or received.  The host of the Tribunal’s email is also not the host of the email addresses in either Email A or Email B.

11. Having regard to the above, I find that the applicant did not in fact send any email to the Tribunal to attempt to postpone the hearing because he was unwell, he simply attempted to contact the person whom he had engaged to assist him with his visa application.

12. Noting the above finding, I otherwise accept that the Minister’s written and oral submissions otherwise address the applicant’s pleaded grounds.

13. In this case, the applicant’s sole ground of review (despite three being pleaded) revolves around his claim that he sent an email to the Tribunal informing it that he would be unable to attend the hearing before it as a result of pain occurring from some form of back injury.  On his own admission, he did nothing to follow up any such purported communication. 

14. The applicant’s own evidence tendered at the show cause hearing is at odds with the claim he seeks to propound.  The medical certificate expired three months before the date of the Tribunal hearing, and Email A and Email B, as found above, were sent between the applicant and a person whom he had engaged to assist him with a visa application, not the Tribunal.

15. Further, the applicant was on notice from the wording of the Tribunal’s invitation (see CB 66) that he should assume the hearing would proceed unless he was informed otherwise.  Indeed, the applicant, subsequent to receiving the hearing invitation, completed and returned the “Response To Hearing Invitation” (CB 69-70) which was sent back to the Tribunal on 8 May 2014 and indicated the applicant would take part in the hearing.

1. Accordingly, in my view, no arguable case for the relief claimed has been raised by the applicant in his application, supporting affidavit, or evidence tendered at the hearing.

2. Further, on a fair reading of the Court Book and, particularly, the Decision Record, the Tribunal has addressed all of the claims put forward by the applicant in his review application and supporting documents and made findings that were reasonably open to it on the material before it.  No error is apparent from a fair reading of the Decision Record.

3. I am satisfied the Tribunal was entitled to proceed to make its decision without taking any further action to enable the applicant to appear before it (see s.426A of the Migration Act) and that it also complied with its various obligations as addressed by the Minister noted at [25] above.

4. Accordingly, as the application raises no arguable case for the relief claimed, the application should be dismissed with costs awarded to the Minister.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 21 October 2014