SZUPY v Minister for Immigration

[2015] FCCA 606

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 606

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of application – non appearance of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.91R

Applicant: SZUPY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1817 of 2014

Judgment of: Judge Driver

Hearing date: 18 March 2015

Delivered at: Sydney

Delivered on: 18 March 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms A Carr of DLA Piper

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 $3,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1817 of 2014

SZUPY

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 to review a decision of the Refugee Review Tribunal (Tribunal) made on 4 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There were two visa applicants, who are a father and son from China.  Background facts relating to the applicant’s protection visa claims and the decision of the Tribunal on them are set out in written submissions filed on behalf of the Minister on 6 March 2015. 

2. The applicant is a male citizen of China.[1]  He arrived in Australia on 22 April 2008 as the holder of a student visa.  He was granted a further student visa in May 2008, which was subsequently cancelled.  The applicant became unlawful on 16 March 2011.[2]  He applied for a protection visa on 15 April 2013.[3]

   [1] CB 36.

   [2] CB 72.

   [3] CB 1-32.

3. The applicant's infant son was included on his application for a protection visa as a member of the family unit, and was a party to the Tribunal decision.  However, the son has not been included as an applicant in the present proceedings. 

4. The application was refused by a delegate of the Minister on 18 November 2013.[4]  The applicant applied to the Tribunal for review of the delegate's decision on 10 December 2013.[5]  He attended two hearings before the Tribunal, on 15 May 2014 and 21 May 2014.  The Tribunal made its decision on 4 June 2014, affirming the decision under review.[6]

   [4] CB 71-97.

   [5] CB 98-104.

   [6] CB 196-216.

The applicant's claims

1. The applicant claimed to fear harm in China due to his Catholic religion and membership of the underground Church in China.  He claimed that in February 2012 (being some years after his arrival in Australia) his father was arrested by the Chinese authorities due to his religious activities, and that he was detained in a labour camp.   The applicant also claimed that his son was born out of wedlock and would be a “black child” as the applicant and the child's mother could not pay the compensation fee to have him registered. 

2. In support of his application the applicant provided documents showing his paternity of the child,[7] and a letter from Father Paul McGee attesting to the applicant's attendance at Church in Australia since June 2008 (the letter stated that this date was provided to the author by the applicant).[8]  The applicant's migration agent also submitted country information to the Tribunal.[9]

   [7] CB 57-58 and CB 61-63.

   [8] CB 55.

   [9] CB 175-192.

The decision of the Tribunal

1. The Tribunal found that the applicant was not a credible or reliable witness.[10] The Tribunal explained at [46] that it had observed the applicant at the two hearings before it, and considered his evidence to be vague and general and that when asked to give more detail his responses were hesitant and evasive. The Tribunal found that the applicant's evidence was inconsistent and contradictory, and set out the instances of this at [47]-[49]. The Tribunal also had regard to the applicant's lack of knowledge of Catholicism at [50].

   [10] see [44].

2. The Tribunal considered the applicant's attendance at Church in Australia, and had regard at [51]-[53] to the inconsistency between the applicant's oral evidence that he started attending in October 2008, the information in the letter from Father McGee that the applicant started attending in June 2008, and his written statement which said that he had been attending since April 2008. 

3. The Tribunal placed weight on the fact that the applicant was not aware of the Pope's visit to Sydney in July 2008 for World Youth Day.  The Tribunal considered that a young Catholic in Australia who was in contact with a Church would have known of the visit and attended World Youth Day events.[11]  The Tribunal found that the applicant's lack of knowledge about these events indicated that he was not a genuine Catholic at the time of his arrival in Australia in April 2008.

   [11] see [53].

4. The Tribunal formed the view at [46] that the applicant's evidence of past events in China and past religious practice were not based on his personal experience and had been fabricated to strengthen his claims for protection. These findings were repeated at [53]. On the basis of the basis of these findings the Tribunal found at [55] that it did not accept that the applicant was a Catholic when he arrived in Australia, or that he was baptised into the Church in China, or that his parents are or were Catholic, that he had ever attended any Catholic or Christian activity or gathering in China, or that his father was arrested and detained as claimed.

5. The Tribunal accepted that the applicant had attended Church in Australia. It did not accept that this began in 2008 as claimed, and did not accept that he began attending Church as a genuine expression of religious beliefs. The Tribunal found at [56] that the applicant had attended Church in Australia for the sole purpose of supporting his claims for protection and at [57] disregarded that conduct for the purposes of assessing the applicant's claims to be a refugee in accordance with s.91R(3) of the Migration Act 1958 (Cth). In considering complementary protection, the Tribunal correctly acknowledged that s.91R(3) had no application. The Tribunal found that the applicant would not, and would not wish to, practice as a Catholic on return to China and that there were not substantial grounds to believe that the applicant's Church attendance in Australia would bring him to the adverse attention of the authorities.

6. The Tribunal accepted that the child applicant was born out of wedlock, although the applicant and the child's mother had since married.  The Tribunal accepted that the applicant would need to pay a social compensation fee to register the child.  The Tribunal relied on country information to find at [61] that the amount payable was between $1,021 and $1,708.  The Tribunal found at [63]-[65] that the applicant would be able to pay the fine and that the child would be registered thereafter.  The Tribunal therefore did not accept that the child would suffer harm as a black child.  The Tribunal found that the payment of the fine by the applicant arose from a law of general application, did not accept that the payment of the fine amounted to serious harm or persecution, and did not accept that the payment of the fine would cause the applicant to suffer financial hardship amounting to serious harm.[12]  In considering complementary protection the Tribunal did not accept that there was a real risk of the applicant suffering significant harm due to the payment of the fine.

   [12] see [66].

The present proceedings

1. The current proceedings began with a show cause application filed on 1 July 2014.  The matter came before me for first court date directions on 24 July 2014.  At that time the applicant was legally represented and I approved consent orders preparing the matter for a final hearing today.  The applicant’s lawyers filed a Notice of Intention to Withdraw on 24 February 2015.  On 3 March 2015 the applicant’s lawyers filed a Notice of Withdrawal.  I am satisfied that that complies sufficiently with the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. I received in evidence this morning the affidavit of Dalyna Kong made on 17 March 2015.  Ms Kong provides evidence that on 6 March 2015 the Minister’s outline of submissions was delivered to the applicant by courier and received.  This morning my associate received an email from the applicant’s former lawyers advising that they had received, apparently through the agency of the applicants’ migration agent, Mr Harry Huang, a Notice of Discontinuance, but were unsure whether it had been filed.  My associate checked the electronic court record and determined that the Notice of Discontinuance had not been filed.  It bears a postal number, indicating that it may have been sent by post by the applicant to his former lawyers.

3. The Notice of Discontinuance appears to have been signed by the applicant on 8 March 2015, that is, after receipt of the Minister’s outline of legal submissions.  There was no appearance by or on behalf of the applicant when the matter was called this morning.  The matter has been called twice and on each occasion there was no answer to the call.  My associate attempted with the assistance of the Mandarin interpreter engaged for today’s hearing to contact the applicant on his nominated mobile telephone number.  That was unsuccessful.  The telephone was turned off.

4. In the circumstances, the solicitor for the Minister presses for the dismissal of the application on account of the applicant’s non-attendance. Because the Notice of Discontinuance has not been filed at all, let alone outside the period of 14 days prior to today’s hearing, as prescribed in the Federal Circuit Court Rules, the applicant requires leave to discontinue. I am not minded to grant that leave for several reasons. First, the applicant has not made himself available to discuss with the Court the issues relating to the Notice of Discontinuance. Secondly, if the matter were discontinued by leave the Minister might be disadvantaged in relation to costs in circumstances where the Minister has prepared fully for a contested hearing.

5. It is apparent that the applicant does not wish to continue with the challenge to the Tribunal decision.  Given the timing of the Notice of Discontinuance it is likely that he has been influenced in that decision by the Minister’s legal submissions.  In all the circumstances, I have formed the view that the proceedings should be terminated with finality.

6. I will, therefore, order that the application be dismissed on account of the applicant’s non-appearance, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules.

7. I will order that costs be fixed in the sum of $3,600 against the applicant.

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

Associate: 

Date:  31 March 2015