SZUXS v Minister for Immigration

[2015] FCCA 1267

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1267

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no appearance of the applicant at show cause hearing.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZUXS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2277 of 2014

Judgment of: Judge Driver

Hearing date: 14 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms E Alexander 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 last known postal or residential address, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2277 of 2014

SZUXS

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 filed on 14 August 2014 seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 24 July 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from India and had made claims of political persecution.  Background facts relating to those claims and the decision of the Tribunal on them are set out in written submissions prepared on behalf of the Minister and filed on 7 May 2015. 

3. The applicant is a national of the Republic of India, who applied for the protection visa on 29 March 2012.[1]

   [1] Court Book (CB) 1-26.

4. On 20 November 2012, the delegate refused the application.[2]  The applicant applied to the Tribunal for review of the delegate's decision.[3]  The Tribunal affirmed the delegate's decision on 24 July 2014.[4]  The applicant commenced the current proceedings on 14 August 2014.

   [2] CB 57-74.

   [3] CB 75-81.

   [4] CB 130-142.

Applicant's claims

1. The applicant's claims were made in a written statement,[5] and through oral submissions to the delegate[6] and the Tribunal.[7]  The applicant claimed to fear harm for the following reasons:

   a)the applicant was a successful finance broker in India, and was elected as President of a finance association that had the backing of certain local politicians.  Due to his success as a finance broker, supporters of the opposing political party (Congress Party) arranged for him to be arrested in relation to a business deal involving another finance broker (Bamba);

   b)Bamba was associated with the Congress Party, which threatened and defamed the applicant, damaged his business, beat his employee, and thwarted one of his business deals.  On one occasion, the applicant was hit with a brick while walking along the road;

   c)the applicant's name was subsequently put forward as a candidate for the Legislative Assembly.  Following publication of his name, harassment from the Congress Party increased and the applicant was forced to quit politics;

   d)the applicant's son was abducted, and only returned after payment of a ransom.  The applicant was continuously threatened by police and gangsters.  On one occasion he ignored a threat to close his business and subsequently a gang attacked his staff at a restaurant shortly after his family had left, killing one member of staff.  On another occasion, 200 people attended and destroyed his office; and

   e)the authorities will not protect him because the local police and state government are involved.   

   [5] CB 27-29.

   [6] CB 62-64.

   [7] CB 134-140 [15]-[28].

Tribunal's findings

1. The Tribunal found that the applicant was not a credible witness.[8]  The Tribunal identified the following issues with respect to the applicant's credibility:

   a)there were significant inconsistencies in the applicant's account of the kidnapping of his child,  the attack on his family and staff  and his involvement in politics;[9]

   b)the applicant had stayed in India for some time after the alleged incidents. It considered this behaviour to be inconsistent with someone who genuinely feared harm;[10]

   c)the applicant made a number of new claims at hearing.  The Tribunal considered that if those claims were true, the applicant would have made them in his initial statement;[11]  and

   d)the Tribunal was unable to locate any public information about the applicant, which was inconsistent with the applicant's claims to have a significant public profile.[12]

   [8] CB 135 [18].

   [9] CB 135-138 [19]-[22]-26].

   [10] CB 136 [22].

   [11] CB 137 [24].

   [12] CB 139-140 [27]-[29].

2. Regarding the applicant's documentary evidence, the Tribunal considered that while some of the documents indicated that the applicant had been involved in finance in 2007 or 2008, the Tribunal was not persuaded as to the balance of the applicant's claims.  The Tribunal was not satisfied that the other documents provided by the applicant relating to legal proceedings and his involvement in politics were genuine.  The Tribunal reached this conclusion in light of:

   a)concerns about the applicant's credibility;

   b)country information indicating that document fraud is prevalent in India; and

   c)inconsistencies between the documents and the applicant's other evidence.[13]

   [13] CB 137-138 [24]-[25], 139 [28], 140 [30]-[31].

3. For the above reasons, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.

The current application

1. The grounds in the show cause application are reproduced verbatim at [9] of the Minister’s submissions:

   1. RRT didn't give me a chance to put my side properly.

   2. The Proof I have submitted in RRT, they are not ready to consider it genuine, which I want to present in Federal Circuit Court to support my side.

2. I have before me as evidence the court book filed on 8 October 2014.  I also received as an exhibit[14] a letter dated 7 May 2015 addressed to the applicant at his nominated address for service.  The second paragraph of that letter reminds the applicant of today’s hearing at 2.15pm at John Maddison Tower and warns him that if he does not attend the hearing either in person or by legal representative, the Minister’s solicitors are instructed to seek to have the matter dismissed with costs. 

   [14] Exhibit R1.

3. I note that the applicant attended the first court date directions hearing in this matter on 17 September 2014 with the assistance of a Hindi interpreter.  At that time, I made procedural orders, including an order listing the matter today for a show cause hearing.  I satisfied myself at that time that the applicant understood the orders that I had made, and left in no doubt that the applicant understood the need for him to attend court today.

4. There was no appearance by or on behalf of the applicant when the matter was called this afternoon.  Before I came on the bench, the Minister’s solicitor, with the assistance of the interpreter booked for today’s hearing, attempted to contact him on his nominated telephone number.  There was no answer, but it appears that the applicant rang back shortly after and told the Minister’s solicitor he was sick.  The call was then terminated.  My associate attempted to contact the applicant by telephone with the assistance of the interpreter a very short time thereafter.  There was no answer to the call.

5. In the circumstances, I have decided that the appropriate course is to dismiss the application on account of the applicant's non-attendance, and I so order. 

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the scale as it applied when the show cause application was filed. 

7. 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 $3,326.

8. I will direct 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 postal or residential address, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  18 May 2015