SZVEK v Minister for Immigration

[2015] FCCA 3230

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3230

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal due to non-appearance – application for reinstatement of judicial review application – whether applicant has given reasonable explanation for not appearing at scheduled hearing – whether the applicant has a reasonably arguable case – no reasonably arguable case demonstrated – reinstatement application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(a)

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: SZVEK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2705 of 2014

Judgment of: Judge Manousaridis

Hearing date: 24 November 2015

Delivered at: Sydney

Delivered on: 4 December 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms M Stone of

DLA Piper

ORDERS

1. The application in a case filed on 13 November 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2705 of 2014

SZVEK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 3 November 2015 I made an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing the application. I made that order because at 2.15 pm on that day, there was set down for hearing the applicant’s application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), and the applicant did not appear.

2. On 13 November 2015, the applicant, who is a citizen of the Peoples Republic of China, filed an application in a case seeking an order that the court “rehear” the applicant’s “appeal”. I have construed the application in a case as seeking an order pursuant to r.16.05(2)(a) of the FCC Rules that the orders I made on 3 November be set aside. That application came before me for hearing on 24 November 2015.

Principles

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530 at [7]

Reasons for non-appearance

1. In the affidavit the applicant filed with his application in a case, the applicant, who is not legally represented, deposed that he “did not show up to the court at 03/11/2015 due to my sickness”. The applicant did not in his affidavit refer to any medical certificate or other medical evidence to support the applicant’s assertion.

2. At the hearing before me, however, the applicant tendered into evidence a medical certificate dated 15 November 2015.[2] The certificate appears to be part of a motor accident personal injury claim form. The certificate refers to the applicant’s having been involved in an accident on 24 October 2015. It states the applicant suffered neck and lower pain and bilateral shoulder pain.

   [2] Exhibit A

3. The applicant gave evidence before me that he did not seek any medical attention in relation to the injuries he said he suffered as a result of the accident. He said he did not seek medical attention because he is not covered by Medicare and he had no money. He managed his pain by lying down and taking pain killers. The applicant said he did not attend the hearing on 3 November 2015 because of the pain he was suffering.

4. The applicant was cross-examined. It was put to him that he obtained for the medical certificate after he received notice of the orders I made on 3 November 2015; and that he did so in order to bolster his case for setting aside those orders. The applicant denies this; he said that he obtained the certificate after a friend informed him that he could apply for the covering of medical expenses for the injuries he suffered as a result of the car accident.

5. I accept the applicant was involved in an accident, and that he suffered the injuries he claims he suffered. I also accept that the applicant obtained the medical certificate for the purposes he stated he obtained it. As I have noted, the certificate is part of a motor accident personal injury claim. I also accept that the applicant was in pain, and that it was for that reason the applicant did not appear before the Court on 3 November 2015.

6. I am satisfied, therefore, that the applicant has provided an adequate explanation for not appearing at the hearing on 3 November 2015.

Reasonably arguable prospect of success

1. I next turn to whether the applicant would have reasonably arguable prospects of success of succeeding in his application if I were to set aside the orders I made on 3 November 2015. That requires me to set out the claims for protection the applicant made before the Tribunal, and the Tribunal’s reasons for rejecting those claims.

Claims for protection

1. In a statement that formed part of the applicant’s application for a Protection visa,[3] the applicant claimed he feared harm because he expressed opposition to the Chinese government after he was offered inadequate compensation following the demolition of his cardboard box factory.

   [3] CB30-33

2. According to his statement, the applicant was forced to leave middle school in July 1988 due to financial hardship. He worked as a driver until January 2007 when he decided to undertake further studies. The applicant enrolled at the Shijiazhuang City Yanhuang Acupuncture and Massage Institute and, after one year, attained a qualification as an acupuncture and massage therapist.

3. Following the establishment of his own successful acupuncture and massage shop in early 2008, the applicant met Mr L in February 2009 who offered him a job at a massage shop he owned in Poland. The applicant agreed and moved to Poland and began working for Mr L.  Despite being “welcomed by customers because of [his] excellent skills” the applicant missed his family in China and decided to return in October 2012.[4]

   [4] CB30

4. When he returned to Gaocheng the applicant decided to invest YUAN650,000 to open a cardboard box factory in Qinjiazhuang Village Nanmeng Town. The factory began operating in the start of 2013 and with many orders received the applicant felt “happy and held confidence” in the future of the business.[5] Everything changed however in June 2013 when the applicant received a demolition notice from the District government. The notice demanded he evacuate the factory in one month’s time due to the planned construction of a highway which would run through the area in which the factory was located.

   [5] CB30

5. A few days later the applicant attended the District City Land Planning Bureau Land Requisition and Compensation office for the purpose of seeking further information about the demolition and compensation available to him. Officer W met with the applicant and explained that in accordance with the depreciation calculated by the authority he would receive YUAN120,000 in compensation. Given that the applicant had spent YUAN400,000 in equipment, plant repair and maintenance, this amount was not satisfactory. Despite this Officer W said the decision was final and told the applicant that he must evacuate the factory before 15 July 2013, or it would be evacuated by the government. The applicant returned to the office on two further occasions, again speaking with Officer W, seeking further compensation but was unsuccessful.

6. In June 2013 the applicant decided to petition the District government Petition Bureau.  On attending the bureau, the applicant met with Officer Z and explained his situation. The officer said he would investigate the applicant’s complaint about the unfair compensation offered for his factory and would provide a response within one week. A week passed and the applicant heard no response. The applicant then telephoned Officer Z who informed him that his complaint was still under investigation and he had to wait until further notice.  On 20 June 2013 the applicant received a call from the Bureau. He was told the government would reassess his compensation plan and his factory would not be evacuated before a final decision was made.[6]

   [6] CB31

7. On 7 July 2013 the applicant left China for Australia and New Zealand; after the stress of the petition process, he felt exhausted and in need of a holiday. After visiting “many famous sites” in Sydney, Brisbane and New Zealand, the applicant received a telephone call from his wife in China who informed him that ten people from the local government had attended his factory and evacuated it. Angry at the government’s actions, the applicant returned to China on 18 July 2013.

8. On his arrival the applicant went to his factory and found it “completely evacuated”. The applicant attended the District government City Land Planning Bureau Land Requisition and Compensation office on 22 July 2013 to make further enquiries, where he was told that a notice had been sent to him “in advance and the demolition was followed by legal procedures”. Despite informing the bureau that he had not signed any agreements for the demolition, the officer explained that as they had informed the applicant about the compensation and date of demolition, they had the right to demolish the factory. The applicant did not agree and again attended the Petition Bureau to lodge further complaints.  Over the next two weeks, the applicant attended the bureau “several” times to check on the status of the investigation but received no news.

9. On 5 August 2013, frustrated with the process, the applicant attended City Hall to protest. The applicant tried to enter the building and see the Mayor but was stopped by guards. While sitting outside the building the police arrived and the applicant was taken to the “police office”. From there he was transferred to a detention centre where he was held for 7 days for disturbing the public order. Whilst detained, police informed the applicant that if he were to continue to petition he would be detained again and the consequences would be severe.

10. With no factory to fulfil orders, the applicant was forced to pay “huge amounts” due to his breach of contract. Unable to continue petitioning for fear of the consequences, the applicant fled China on 25 August 2013. In his absence he instructed his family to hire a lawyer to continue the negotiations with the government for reasonable compensation.

11. Before the Tribunal the applicant raised additional claims in support of his application for protection. He claimed that he and his wife, who still resides in China, are being sought by gangsters over debts the applicant owes following the demolition of his factory.[7]

    [7] CB99, [13]

Tribunal’s decision

1. The Tribunal was not satisfied the applicant was a witness of truth, finding the applicant’s evidence to be “vague, inconsistent and lacking in credibility in relation to important issues”.[8]

   [8] CB99, [14]

2. First, the applicant’s evidence before the Tribunal was inconsistent with his written claims. In his statement, the applicant claimed to have attended the District government Land Planning Bureau on 7 June 2013, where he met with Officer W who told him that the amount and date had been “decided”.[9]  Before the Tribunal, on the other hand, the applicant claimed Officer W informed him that he would report to his supervisors and then notify the applicant of any changes to the compensation payable.  The Tribunal did not accept the applicant’s explanation that he had “got the impression” that a decision had not been made and that his words were not “absolute”.[10] In addition, in his statement, the applicant said he went to City Hall to protest and sat outside the building as he was stopped by guards from entering. Before the Tribunal, on the other hand, the applicant claimed he had sat on the street, a “large” crowd gathered, whom he told what happened and that he had “lost several thousand dollars”.[11]  When asked for additional details, the applicant said that the crowd consisted of 7 to 8 people, “but there were many people on the street” and that he believed “some of the crowd may have been taken away by security guards”.[12] When told by the Tribunal that he had not included this aspect in his written claim, the applicant responded “he should have mentioned it”.[13]

   [9] CB99, [15]

   [10] CB99, [15]

   [11] CB100, [16]

   [12] CB100, [16]

   [13] CB100, [16]

3. Second, the applicant relied before the Tribunal on a claim he did not include in his application for a Protection visa, namely, creditors having hired gangsters who had threatened his wife.[14]

   [14] CB100, [17]

4. Third, the Tribunal considered it “extremely adverse” to the applicant’s claims that he applied for a Visitor visa and subsequent holiday to Australia and New Zealand while he claims he was aware that his property and livelihood were at risk.[15] The applicant asserted, in response to the Tribunal’s concerns, that he was unaware that the visa application was lodged; that “a friend prepared it all on his behalf”; and that his friend asked if he would like to go on a holiday, which he did, and he gave him his passport. The Tribunal found it not credible that the applicant would leave China at a time when his business was the subject of a demolition order; nor did the Tribunal find it credible the applicant would give his passport to a friend for the purpose of organising a holiday at a time when such an order was in place. On this basis the Tribunal did also not accept the applicant’s explanation for his travel to Australia and New Zealand in 2013.

   [15] CB100, [19]

5. The Tribunal was not satisfied that the applicant had given a truthful account of his reasons for leaving China and found the applicant manufactured his claims in support of his application for a Protection visa. While the Tribunal accepted the applicant was an owner of a cardboard box factory, and found that his evidence in relation to the purchase and establishment of that factory to be credible, it did not accept that the applicant gave a persuasive account of the proposed and subsequent demolition of that property or of the actions he claims to have taken both before he departed China and after he returned to China. The Tribunal did not accept there was a proposal for the demolition of the applicant’s factory or that inadequate compensation was offered, or that the factory was demolished or that he protested and petitioned the government in relation to the demolition. Nor did the Tribunal accept the applicant or his wife have been sought by creditors or gangsters hired by creditors.

6. The Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Migration Act 1958 (Cth) (Act). Because the Tribunal was not satisfied that the applicant’s property was demolished, that he subsequently petitioned, that he was detained or that the applicant was sought after by creditors or gangsters hired by creditors, it found the applicant did not satisfy s.36(2)(aa) of the Act and was not a person to whom Australia has protection obligations.

Grounds of application

1. The applicant raises three grounds. The first is:

   I am scared to return back to China because I am under persecution. If I go back to China, I will be sought by the creditors because I cannot afford the huge amount of penalty.  So I had to petition the government. But if I do so, I have to encounter the illegal imprisonment.  So I have no other way out in China. However, RRT did not accept my application and suspect the truthfulness of the statement. I think this is very unfair.

   One of the reasons why RRT refuse my application is because travelling with tourist group to Australia and New Zealand on 7.7.2013 is not reasonable, especially when my life was in danger and I was facing demolition. But I think this judgment is a mistake. Because on 20.6.2013, the officials from petition department told me that the government would reconsider to offer a more reasonable compensation and promised not to demolish my factory without my permission. At that time, I believed them and was glad that the petition would help me.  Therefore, at that moment, I thought that my problem could be solved and I did not think my life was in danger, so I went travel with relief.

2. This ground was interpreted to the applicant; but he made no submission in relation to this ground.

3. Ground 1 raises no arguable case of jurisdictional error and, therefore, the applicant would have no reasonable prospects of success on this ground if I were to set aside the orders of 3 November 2015. The ground repeats the claims for protection the applicant made before the Tribunal, and expresses disagreement with the Tribunal’s relying on the applicant’s having travelled to Australia and New Zealand at a time when there was in place a demolition order for the applicant’s factory. There can be no reasonably arguable case that it was not reasonably open to the Tribunal to regard the applicant’s having visited Australia and New Zealand under a tourist visa when there was in place a demolition order as a reason for the Tribunal’s not accepting the applicant’s claims.

4. The second ground stated in the application is:

   Another reason why RRT refused my application was because I provided many details during the interview but not in the statement, so they considered my claim was lacking in credibility.  I think that tribunal member could not judge the truthfulness of my claim in the interview simply depends on my personal statement.  When I drafted my personal statement, I thought it was okay.  If I just wrote down the gist of the persecuted incident, so I did not pay a lot of attention on detailed description.  In the meanwhile, I think the supporting oral evidence I provided was consistent with the statement, including content and time. But also because at that day, I was in an intensive circumstance with encountering many tribunal members, I was under a great stress.  So I could not remember some details and I think it is human nature. 

5. This ground was also interpreted to the applicant. As with ground 1, however, the applicant made no submission in relation to this ground.

6. Ground 2 also raises no arguable case of jurisdictional error and, therefore, the applicant has no reasonable prospects of succeeding on this ground if I were to set aside the orders I made on 3 November 2015. It expresses disagreement with the Tribunal’s drawing inferences adverse to the applicant because the applicant made a claim before the Tribunal that the applicant had not included in his written application for a Protection visa. There can be no reasonably arguable case that it was not reasonably open to the Tribunal to draw an adverse inference against the credibility of the applicant’s claims for the reason that the applicant made a claim for protection before the Tribunal which he did not make in his written application for protection.

1. The third ground

   I wish the Federal Circuit Court of Australia could consider my situation.

2. This does not state any ground and, by itself, therefore, can give rise to no arguable case for the relief the applicant would seek if I were to set aside the orders of 3 November 2015.

Other matters

1. The applicant did make submissions before me in relation to the claims he would advance if I were to set aside the orders I made on 3 November 2015. First, the applicant explained why it was that he went on holiday to Australia and New Zealand. This, however, only amounted to a repetition of what the applicant had put to the Tribunal, and which the Tribunal did not accept. It is a matter that goes to the merits of the applicant’s claims for protection, and raises no arguable case of jurisdictional error.

2. Second, the applicant submitted that he was asked by the Tribunal whether there had been any changes in his family circumstances. The applicant submitted that “the changes that were back then were not present at the time of application”. By this I understood the applicant to have intended to say that circumstances had changed from the time he applied for protection to the time he appeared before the Tribunal, and it was for that reason that he stated to the Tribunal matters which the applicant did not include in his written application. He gave as an example that when he left China his wife was taking care of their child, but after he left she had to go to work to survive. The applicant said that these matters were not put in his written application.

3. This submission appears to have been intended to explain why the applicant included claims before the Tribunal which the applicant did not include in his written application. Whether or not the applicant has any explanation, reasonable or otherwise, for raising claims before the Tribunal that were not included in his written application does not by itself give rise to any reasonably arguable case of jurisdictional error. In any event, the example the applicant gave, namely, his wife having to seek work after the applicant had left China, is not a matter the Tribunal referred to in its decision and on which it relied. As I have noted earlier, the claim the Tribunal found the applicant made before the Tribunal which the applicant did not include in his written application was that gangsters had recently come looking for him.

Conclusion and disposition

1. Although I am satisfied the applicant has given a reasonable explanation for not having appeared at the scheduled hearing of 3 November 2015, I am not satisfied that, if I were to set aside the orders I made on 3 November 2015, the applicant would have reasonable prospects of success on the claims he made in his application. I propose, therefore, to dismiss the application in a case.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 4 December 2015