SZVBS v Minister for Immigration

[2017] FCCA 930

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVBS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 930

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no issue of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 425, 426A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZVBS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2560 of 2014

Judgment of: Judge Cameron

Hearing date: 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,000.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2560 of 2014

SZVBS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 10 November 2012. On 29 October 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in China because of his political opinion. On 12 March 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The applicant’s claims for protection were made in his application and at an interview with the delegate on 5 March 2014. As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   …the applicant claimed that in early 2011 the county government expropriated village land for industrial development and construction, and promised, but failed, to provide compensation within 18 months.  The applicant claimed that his father clashed with the government in relation to the land acquisition, and led the villagers against the government.  His father led a protest in August 2012 resulting in an attack on the villagers by the authorities.  The applicant and his father hid at a relative’s house following the attack.  On 15 January 2013 heavily armed men surrounded his parents’ home and stormed the house, beating his parents and threatening that if they petitioned again, they would kill them and their family.  The father continued his activities and was eventually sent to prison.  The applicant’s family made arrangements for him to obtain a passport and student visa to come to Australia.

The Tribunal’s decision and reasons

1. On 24 July 2014 the Tribunal wrote to the applicant pursuant to s.425 of the Act to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 27 August 2014 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. It should be noted that the letter of 24 July 2014 was sent to the applicant care of his authorised representative, a person identified in the applicant’s review application made to the Tribunal on 7 April 2014.

2. On 25 July 2014 the Tribunal received a “Response to Hearing Invitation” form signed by the applicant in which he indicated that he wished to attend Tribunal hearing on 27 August 2014. However, the applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear and neither he nor his authorised representative contacted the Tribunal to explain his absence or to request a postponement of the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

3. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

4. The Tribunal noted that due to the applicant’s failure to attend its hearing, it was unable to explore his claims in greater detail and could not be satisfied that his claims were truthful.  The Tribunal was therefore not satisfied that there was a real chance that the applicant would face serious harm or a real risk that he would face significant harm if he returned to China.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.I was unable to attend the RRT interview on 27/8/2014 since I was sick.  On the same day, RRT made the decision.  Though I did not attend the interview, if RRT reviewed my case carefully, it was impossible that RRT could make the decision within one day.  Therefore, I doubt the fairness of the decision.  The officer was in a hurry to make the decision, so there was no significance to the officer’s consideration.  It was just a procedure, but no significant effect.

   2.Since the land was forcibly expropriated, my father went to protest, but he was persecuted by the police. Therefore, I was disappointed with the government.  I am against the unjust role of government.  I am against the Communist rule for China.  I will continue to protest after I return China.  I have different political opinion, so I meet the refugee criterion.

   3.The Tribunal underestimated my risk of being persecuted by the Chinese authority.  This was a judicial error since the Tribunal failed to properly make the well-founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559. It was not a rare case that land acquisition causing protest and persecution in China. The persecution was happened to my father, since we belong to ‘the same family unit’, in my case, the Tribunal should have considered his situation with fair and justice.

2. The applicant also made additional submissions in addresses at the hearing of this application.

Ground 1

1. At the outset it should be recorded that at the hearing of this application the applicant said that he did not allege that the Tribunal erred in proceeding to make a decision on the review even though he had not attended the hearing.  This position reflects the burden of the first ground of the application, which was that the speed with which the Tribunal reached its decision betokened prejudgement. 

2. However, it is incorrect to believe that the Tribunal only turned its mind to this matter on the day the hearing was listed to take place, 27 August 2014.  As noted earlier in these reasons, on 24 July 2014 the Tribunal had invited the applicant to its hearing because, as it said in that letter, “the Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone”.  Plainly the Tribunal had already considered the information which was then available to it.  Because the applicant did not attend the hearing there was nothing more for the Tribunal to take into account.  It is hardly surprising therefore that the Tribunal was able to reach its decision quickly. 

3. It might also be inferred from the first ground of the application that the applicant alleged that it was unreasonable of the Tribunal to proceed to a decision without inquiring into his absence.  However, the Tribunal has no general duty to inquire and, given that the applicant was at the time represented or assisted by another person who was his authorised recipient and no contact was made by that person, or the applicant for that matter, to explain the applicant’s absence, there was no reason for the Tribunal to infer anything more than that the applicant had chosen not to attend. 

4. I note in this connection that there can be no reasonable doubt that the applicant was aware of the hearing because he or his authorised recipient returned a response to hearing invitation to the Tribunal as recorded at pp.69 and 70 of the Court Book, which was exhibit A. I am not of the view that it was unreasonable of the Tribunal to proceed to a decision pursuant to s.426A of the Act.

Grounds 2 and 3

1. Although the second and third grounds of the application are expressed at some length, neither of them raises any issue of jurisdictional error on the part of the Tribunal.  Both of the allegations invite the Court to undertake impermissible merits review and so do not disclose upon which the Tribunal’s decision might be set aside.

Submissions at hearing

1. In his address to the Court the applicant said that the information contained in his statement was true even if he had not expressed himself clearly.  He told the Court that he still had a vivid memory of the relevant events.  However, those submissions suffer from the same deficiency as the second and third grounds of the application, namely that they invite the Court to review the correctness of the Tribunal’s decision on the merits of his application.  The Court has no power to do that. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  10 May 2017