SZUUK v Minister for Immigration
[2015] FCCA 1024
•23 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUUK v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1024 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application – non appearance of the applicant. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 425,426A |
| Gauchan v Minister for Immigration & Anor [2013] FCCA 385 K.C. v Minister for Immigration & Anor [2013] FCCA 294 Minister for Immigration v SZFML (2006) 154 FCR 572 Nadesan v Minister for Immigration & Anor [2013] FMCA 152 SZIMG v Minister for Immigration & Anor [2007] FMCA 1724 SZIMG v Minister for Immigration [2008] FCA 368 |
| Applicant: | SZUUK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2049 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2015 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr M Alderton of Mills Oakley |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.
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 last known 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 2049 of 2014
| SZUUK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 22 July 2014 seeking review of a decision of the Refugee Review Tribunal (Tribunal). The Tribunal decision was made on 16 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims and the Tribunal decision on them are set out in the Minister’s outline of legal submissions filed on 16 April 2015.
The applicant is a citizen of China who applied for a protection (Class XA) visa on 13 June 2013[1]. He outlined brief written claims to fear harm in China in his protection visa application[2]. The applicant claimed that he worked as a farmer and was the sole income earner for his family. He was allegedly fined RMB5000 for breaching the family planning rules and it took him two years to repay the fine, which caused him significant financial hardship.
[1] Court Book (CB) 1-26
[2] CB 18-21
During 2010 the applicant’s land was allegedly appropriated by the local government. Although he was entitled to receive RMB80,000 in compensation, he was only paid RMB20,000 in 2011 and the local government refused to pay any further compensation. He claimed his family became involved in a dispute with the local government and his letters to the Civil Administration Bureau were never answered.
In March 2012 the applicant was involved in a physical altercation with a local government officer in charge of the land compensation issue. The next day the police came to the applicant’s home and detained him for two days at the police station before he escaped and hid at his cousin’s house. The applicant obtained a tourist visa and travelled to Australia on 19 August 2012, which expired on 19 November 2012. The applicant claimed he and his family would suffer severe poverty because he had lost his sole source of income and feared mistreatment by the local government because of his previous conflict.
The only documents that the applicant provided to the Department in support of his visa application were copies of some pages from his passport[3].
[3] CB 27-29
The delegate
By a letter dated 13 November 2013, the applicant was invited to attend an interview before the Minister’s delegate on 3 December 2013[4] but he failed to attend[5]. On 17 December 2013, the delegate made a decision refusing to grant the applicant a protection visa[6]. The delegate had credibility concerns about the applicant’s unsubstantiated claims because they lacked any supporting documentation, the applicant was able to legally depart China and he delayed 10 months in applying for protection after arriving in Australia[7]. The delegate also relied on country information that indicated legal avenues for complaint were available to those who wanted to challenge land seizures and inadequate compensation[8]. In addition, the delegate found the applicant’s claim about breaching China’s family planning laws was associated with a law of general application that was not applied in discriminatory manner and, although he had claimed that he was fined, there was nothing to indicate that this would result in a real chance of future harm[9]. The delegate was therefore not satisfied that the applicant faced a real chance of serious or significant harm in China[10].
[4] CB 35-37
[5] CB 45.7; CB 48.2
[6] CB 45-59
[7] CB 48.4; CB 53-55
[8] CB 54.2
[9] CB 52.5
[10] CB 56, 58
The Tribunal
On 28 January 2014, the applicant lodged an application for review of the delegate’s decision[11] and appointed an authorised recipient to receive correspondence on his behalf[12].
[11] CB 61-66
[12] CB 64
By a letter dated 28 April 2014, the Tribunal invited the applicant to appear before it at a hearing scheduled on 17 June 2014[13]. The applicant’s authorised recipient sent a letter to the Tribunal dated 13 June 2014 confirming that the applicant did not want to attend the hearing and requesting that a decision be made on the papers[14]. The letter also enclosed a completed response to hearing invitation form signed by the applicant, which confirmed he would not be attending the scheduled hearing[15].
[13] CB 71-72
[14] CB 73
[15] CB 74-75
The applicant provided no other documents in support of his claims to the Tribunal.
By a decision dated 16 June 2014, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa[16]. The Tribunal accurately set out the applicant’s personal history and claims to fear harm in China[17] and correctly identified that he had declined his hearing invitation and requested that a decision be made on the papers[18].
[16] CB 78-81
[17] CB 79-80, [3]-[4]
[18] CB 80, [6]
Once the applicant consented to the Tribunal deciding the review without him appearing before it, the Tribunal could proceed under ss.425(2)(b) and (3) of the Migration Act 1958 (Cth) (Migration Act) to determine the application for review on the basis of the consent[19]. The combined effect of ss.425(2)(b) and (3) is that the applicant was not entitled to appear before the Tribunal. In these circumstances, it is of no consequence that the Tribunal proceeded to purportedly exercise its discretion under s.426A[20]. The applicant’s consent to the Tribunal to proceed without enabling him to appear at a hearing, meant that the obligation to give the applicant the opportunity of appearing at a hearing under s.425(1) ceased at the time the applicant gave his consent pursuant to s.425(2)(b) of the Migration Act. The Tribunal therefore acted within its jurisdiction in proceeding to make a decision[21].
[19] Minister for Immigration v SZFML (2006) 154 FCR 572 at 587 [64]; SZIMG v Minister for Immigration [2008] FCA 368 at [21]
[20] CB 80, [7]
[21] SZIMG v Minister for Immigration & Anor [2007] FMCA 1724 per Judge Nicholls at [86], upheld on appeal in SZIMG v Minister for Immigration op. cit., Nadesan v Minister for Immigration & Anor [2013] FMCA 152; K.C. v Minister for Immigration & Anor [2013] FCCA 294; Gauchan v Minister for Immigration & Anor [2013] FCCA 385
Given the limited information before it, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a protection visa. It noted several issues on which it required more detailed evidence. These included how the applicant was able to exit China legally in August 2012 if he had escaped from the local police station in March 2012, how he was able to fund his travel to Australia and why he delayed ten months in applying for protection after arriving in Australia[22]. In these circumstances, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under either s.36(a) or s.36(2)(aa) of the Migration Act[23].
[22] CB 81, [14]
[23] CB 81, [16]
The present proceedings
The matter came before me for first court date directions on 21 August 2014. At that time the applicant attended in person with the assistance of a Mandarin interpreter. I made orders by consent and satisfied myself that the applicant understood the orders that had been made. Those orders included an opportunity for the applicant to file and serve an amended application and affidavit evidence. He has not taken up those opportunities.
An issue arose at that hearing concerning the applicant’s address for service. The solicitor for the Minister reported that correspondence sent to the applicant at his nominated address for service had been returned to sender. The applicant, however, declined to provide any alternative address and asked for correspondence to continue to be sent to his nominated address for service. Unfortunately, it appears that the Minister’s solicitors have been unable to correspond with the applicant at that address and further correspondence directed to him at that address has been returned to sender.
Among the orders I made on 21 August 2014 was an order listing the matter for a show cause hearing today at 10.15am. When the matter was called today there was no appearance by or on behalf of the applicant. There was no explanation for that non-attendance. The matter has been called twice and there was no answer to the call.
In the circumstances, and taking into account the history of this present litigation and also the history of the review before the Tribunal, I have concluded that the appropriate course is to dismiss the application on account of the applicant’s non-attendance, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), and I so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.
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 last known 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: 27 April 2015
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