SZUOM v Minister for Immigration

[2015] FCCA 490

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 490

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application – no appearance by the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91R, 425, 426A

Applicant: SZUOM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1722 of 2014

Judgment of: Judge Driver

Hearing date: 4 March 2015

Delivered at: Sydney

Delivered on: 4 March 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms S Brooks of Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1722 of 2014

SZUOM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 20 May 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China, Hebei province.  Background facts relating to his protection claims and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of written submissions filed on 25 February 2015. 

2. The applicant is a national of the People's Republic of China.  On 19 June 2013, the applicant applied for a protection (Class XA) visa (protection visa).[1]

   [1] Court Book (CB) 1-30.

3. On 6 December 2013, a delegate of the Minister (Delegate) refused the application.[2] 

   [2] CB 42-58.

4. The applicant applied to the Tribunal for review of the Delegate's decision.[3]  On 20 May 2014, the Tribunal affirmed the Delegate's decision.[4]  

   [3] CB 59-64.

   [4] CB 78-84.

5. The applicant commenced the current proceedings on 24 June 2014.

Applicant's claims

1. In a statement accompanying his visa application,[5] the applicant made the following claims:

   a)in October 2011, village controllers came to his family's house claiming that it was an illegal construction that should be demolished.  When the family refused to move, the village leader (Mr Wang) accused the applicant of failing to support the government and making trouble for national construction;

   b)on 6 March 2012, a group of men came to the family's grocery store and smashed everything.  The applicant's mother was injured when they pushed her to the ground.  The applicant took photos of his mother's injuries and wrote a petition letter.  When he did not receive a response, he went to take another letter to the petition office.  However, on the way there he was beaten by a group of men and told not to petition again;

   c)the applicant's children were often warned and threatened on their way home.  As the applicant was concerned for their welfare, he decided to move.  However, he was subsequently apprehended and detained for three days by Mr Wang's associate, who accused him of breaching the one child policy and of not supporting government construction.  The applicant was only released after his wife paid 20,000 RMB for bail; and

   d)the applicant was ordered to report to the police weekly and they “reserved their right to sue” him.  After he escaped to Australia, his wife told him not to return as the police claimed that he had fled to escape punishment and had to report to them when he returned.  His family has had to move to another place.

   [5] CB 27-28.

Tribunal's decision

1. By letter dated 14 April 2014, the Tribunal invited the applicant to a hearing in accordance with s.425 of the Migration Act 1958 (Cth) (Migration Act).[6] The letter noted that the Tribunal had considered the information before it, but was unable to make a favourable decision on that information alone. Although the applicant responded on 16 April 2014 indicating that he would attend, there was no appearance by the applicant at the scheduled hearing. The Tribunal proceeded to make a decision pursuant to s.426A of the Migration Act.

   [6] CB 68-70.

2. The Tribunal considered that the applicant's claims were not sufficiently detailed to satisfy the Tribunal as to their veracity.[7]

   [7] CB 83 [16].

3. The Tribunal found that there were “relevant and important questions regarding the applicant's claims that remain(ed) unanswered” on the material before it, including:

   a)the circumstances in which the applicant's house was deemed an illegal construction and slated for demolition;

   b)what compensation the applicant sought;

   c)details regarding his alleged attackers and how they knew he was planning to petition;

   d)how and when he breached family planning laws;

   e)details about the situation of his family remaining in China;

   f)further details about how and when he was detained;

   g)details of his interactions with the authorities after his release;

   h)what inquiries, if any, were made about him by the local authorities; and

   i)how and when he applied for his student visa. 

4. The Tribunal also identified concerns regarding the applicant's delay in applying for the protection visa, and the applicant's apparent ability to depart the country legally despite claiming to be of adverse interest to the authorities. The Tribunal noted that it would have sought further evidence from the applicant on these issues had he attended the hearing. [8]  

   [8] CB 83 [15]-[16].

5. Without further evidence or elaboration, the Tribunal was not prepared to accept the applicant's factual claims. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.[9]

   [9] CB 83-84 [15]-[23].

The present application

1. The grounds of review in the show cause application filed on 24 June 2014 are:

   1. If I return to China, I will be accused of fleeing the country after committing the crime of interfering with the government and I will be arrested and detained for life.

   2. The Tribunal failed to consider my application according to S91 R of the Migration Act 1958 because of the [Tribunal]'s bias against me.

2. The matter came before me for first Court date directions on 22 July 2014.  The applicant attended in person with the assistance of a Mandarin interpreter.  I made orders by consent giving the applicant the opportunity to file and serve affidavit evidence, including any transcript of the Tribunal hearing, and an amended application.

3. I listed the matter for a show cause hearing today.  I satisfied myself at that time that the applicant understood and had agreed to the orders which were made by consent.  There has been no further contact from the applicant and nothing further has been filed. 

4. The Minister filed a Court book on 5 August 2014 as well as written submissions as indicated on 25 February 2015.  Those submissions were sent to the applicant at his nominated postal and street addresses by letters dated 25 February 2015.  I received those letters as an exhibit.[10]  Both letters remind the applicant of the Court hearing today and warn him that if he failed to attend the Minister would seek to have the matter dismissed with costs. 

   [10] Exhibit R1.

5. When the matter was called today there was no appearance by or on behalf of the applicant.  The matter was called twice.  There is no explanation for the applicant’s nonattendance.  An attempt to contact the applicant by telephone was unsuccessful.  The call went through to a voicemail facility.

6. I will order that the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

7. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

8. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  6 March 2015