SZVBW v Minister for Immigration

[2015] FCCA 150

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVBW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 150

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – non appearance of the applicant at show cause hearing.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.426A

Applicant: SZVBW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2571 of 2014

Judgment of: Judge Driver

Hearing date: 27 January 2015

Delivered at: Sydney

Delivered on: 27 January 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms S Wende of Sparke Helmore

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 in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

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 her 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 2571 of 2014

SZVBW

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 a show cause application seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 19 August 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is set out in written submissions filed on behalf of the Minister on 20 January 2015. 

2. The applicant, a citizen of China, arrived in Australia on 18 July 2013 as the holder of a Visitor (Class FA) visa[1]. On 15 October 2013, the applicant applied for a protection (Class XA) visa[2]. On 19 February 2014, a delegate of the Minister refused to grant the protection visa[3].

   [1] Court Book (CB) 43

   [2] CB 1

   [3] CB 42

3. On 18 March 2014, the Tribunal received an application for review of the delegate’s decision[4]. By letter dated 14 July 2014, the Tribunal invited the applicant to a hearing to give evidence and present arguments, scheduled for 12 August 2014[5]. The applicant did not appear at the hearing[6]. Pursuant to s.426A of the Migration Act 1958 (Cth) (Migration Act), the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it[7].

   [4] CB 52

   [5] CB 64

   [6] CB 66

   [7] CB 72: [12]

Applicant’s claims

1. The applicant claimed to fear harm in China because of her alleged practise of Falun Gong[8].

   [8] CB 71: [5]

Tribunal decision

1. The Tribunal noted that it invited the applicant to appear before it and that the applicant failed to appear at the hearing[9]. In those circumstances, pursuant to s.426A of the Migration Act, the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it[10].

   [9] CB 71: [6]-[8]

   [10] CB 72: [12]

2. The Tribunal listed a number of relevant matters upon which the review applicant “did not provide much if any detail”[11]. On the basis of these concerns, the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason, or that there were substantial grounds for believing there was a real risk she would suffer significant harm in China[12].

   [11] CB 72: [11]

   [12] CB 72‑73: [14], [16]

The present application

1. These proceedings began with a show cause application filed on 17 September 2014.  The applicant appears to continue to rely upon that application.  The grounds in the application are:

   1. I was very sick so I didn’t attend the interview.

   2. I didn’t receive the letter from RRT on time.  When I found out the letter, it was too late.  I hope the Court can ask RRT to give me another chance.

2. The matter came before me for first Court date directions on 29 October 2014 at which time I gave the applicant the opportunity to amend the application and file and serve evidence in support of it.  The applicant has not taken up those opportunities.  Since that time the Minister has filed a Court book on 20 November 2014, an affidavit on 18 December 2014 and the Minister’s submissions and list of authorities filed on 20 January 2015.  I am told that those have been forwarded to the applicant at the nominated address for service and none of the correspondence has been returned.  Exhibit R1 is a letter dated 20 January 2015 sent to the applicant at the nominated address for service enclosing the Minister’s submissions.  That letter in the third paragraph puts the applicant on notice that, if the applicant failed to attend today’s hearing, the Minister would seek dismissal of the application with costs.

3. The applicant has failed to attend today’s show cause hearing. The matter has been called twice and on each occasion there has been no answer to the call. There is no explanation for the applicant’s non-attendance. An attempt by my deputy associate to contact the applicant by telephone was unsuccessful. In the circumstances I have decided 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.

4. I will further order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

5. 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 her last known address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 January 2015