SZVEU v Minister for Immigration

[2016] FCCA 1604

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1604

Catchwords:

ADMINISTRATIVE LAW – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 474

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

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

Applicant: SZVEU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2733 of 2014

Judgment of: Judge Cameron

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Sydney

Delivered on: 21 June 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C. Hillary of DLA Piper Australia

ORDERS

1. The applicant’s application in a case filed on 2 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application in a case filed on 2 June 2016 fixed in the amount of $1,900.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2733 of 2014

SZVEU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant commenced proceedings in this Court by an application filed on 1 October 2014 in which he sought judicial review of a decision made by the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, affirming an earlier decision made by a delegate of the first respondent (“Minister”) to refuse him a protection visa.  An amended application was filed on 1 October 2014.

2. The applicant’s application was listed for its first court date on 10 November 2014.  The applicant appeared in court on that day, at which time the matter was listed for callover on 3 March 2015.  At the callover the applicant also attended and the matter was listed for hearing on a date to be advised administratively.

3. On 6 April 2016 the Court wrote to the applicant and advised him that the matter was listed for callover on 16 May 2016. There was no appearance by or for the applicant on that occasion and, on the application of the Minister, the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”). These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules seeking to have the orders of 16 May 2016 set aside on the basis that they were made in his absence.

4. In deciding whether to grant the present application, consideration must be given to whether the applicant’s explanation for his non-attendance on 16 May 2016 is a satisfactory one and whether, nevertheless, his principal application for judicial review has reasonable prospects of success.

SATISFACTORY EXPLANATION

1. The applicant deposed in his affidavit in support of the present application that he did not receive the Court’s letter of 6 April 2016 notifying him of the callover on 16 May 2016 because he had changed address.  However, in a submission which was faxed to the Court on 15 June 2016, the applicant claimed that he had been experiencing problems with his residential letterbox, where the Court’s letter of 6 April 2016 was sent, and that letters were “delayed consequently”.  He claimed that he did not receive the Court’s letter “until later when it was already late”. 

2. At the hearing of this application, the applicant’s evidence on the question of his receipt of the Court’s letter was far from clear and some of it may reasonably be attributed to his lack of English language skills and, in particular, his ability to read English.  The essence of the applicant’s evidence was that he had moved from the address to which the Court had sent the letter and was living somewhere else, although he still received mail in an informal way at his previous address and that the way mail was dealt with at the previous address meant that he was not able to lay his hands on the Court’s letter until after the callover date. 

3. As I said, the applicant’s evidence on this issue was far from clear.  It was difficult to understand exactly where the applicant lived at which particular time or how the letterbox arrangements at his previous address operated.  It was also confusing to observe that the address which the applicant has identified in his most recent notice of address for service is the same address which he gave when commencing these proceedings two years ago.

4. The applicant was cross-examined to some considerable effect by the Minister’s solicitor, Ms Hillary, but she also found it difficult to elicit a coherent account on relevant matters from the applicant.  Nonetheless, I am willing to give the applicant the benefit of the doubt.  Although his account of the details of his residential addresses and mailing arrangements would best be described as chaotic, he nevertheless impressed me as a person who had no desire to not pursue his case.  In particular, I have regard to the fact that his application to reinstate the proceedings was filed quite quickly after the proceeding was dismissed. 

5. My willingness to give the applicant the benefit of the doubt on this issue is also significantly underpinned by my conclusion that his substantive application does not have reasonable prospects of success and, consequently, this issue is not decisive. 

REASONSABLE PROSPECTS OF SUCCESS

1. An application to reinstate a proceeding such as the present would not be granted unless the applicant had reasonable prospects of success on the principal application. In the absence of such prospects, the substantive application would be liable to be dismissed. It should be noted in this regard that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying its decision. 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 Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, an applicant in the present circumstances must demonstrate reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error.

2. As foreshadowed, I am not of the view that the applicant has made that out.  I have reached that conclusion for the following reasons.

Background facts

1. The applicant is a citizen of China who arrived in Australia on 10 August 2013.  On 18 October 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection.  That application was accompanied by a written statement which was summarised by the Tribunal in para.5 of its decision record.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)he worked in his local village committee from 1982 to December 2010, becoming the deputy dean of the committee;

   b)in April 2010 a new dean of the committee was elected.  The new dean monopolised all the resources in the village and conducted illegal land transactions, cheating and bullying villagers;

   c)he was dismissed in December 2010 because he refused to co-operate, after which he kept detailed records of the embezzlement and illegal behaviour;

   d)he wrote a letter and attended the Zhangjiagang Petition Bureau on 6 May 2013 in relation to the village’s unfair treatment and corruption;

   e)he was arrested and imprisoned for seven days.  The police also threatened him with further imprisonment if he petitioned again;

   f)he sent another petition letter to the Suzhou Petition Bureau; and

   g)he was afraid of being harmed by the Chinese authorities.

2. The Minister’s delegate refused the applicant’s application for a protection visa on 27 February 2014.  The applicant then sought a review of that decision with the Tribunal and, at a hearing on 28 August 2014, also claimed that on a number of occasions the leaders in his village had asked his wife for his address and mobile number.  He claimed that there were many corrupt and vindictive officers in China who would probably kill someone for reporting them, or perhaps their whole family.

3. After discussing the claims made by the applicant and the evidence before it, the Tribunal 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. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found that the applicant’s failure to provide any documentary evidence in support of his claims reflected poorly on his credibility.  The Tribunal did not accept that the circumstances outlined by the applicant – namely, that it had not occurred to him to bring anything to Australia, that he had left China in a hurry and that he had wanted to stay in Australia so he did not bring any documents with him – adequately explained why he did not provide any documents in support of his claims.  The Tribunal noted in this regard that the applicant had had a career in administration and experience in record keeping and that someone with that background could be expected to appreciate the importance of documentary evidence;

   b)the Tribunal was concerned by the changes in the applicant’s oral evidence during the course of the hearing and about the plausibility of the sequence of events:

   i)the applicant initially told the Tribunal that after he had sent the letter of complaint to Suzhou, his wife and his friend became concerned about revenge and so made arrangements for him to depart China.  However, the applicant said later that he had been aware, prior to sending the letter to Suzhou, of his wife’s plan to get him to Australia.  The applicant then said, when the Tribunal raised this inconsistency with him, that he had been aware of his wife’s plan but had not been granted a visa at the time that he sent the letter; and

   ii)the applicant told the Tribunal that he decided to deliver the letter to Suzhou before he had his visa to Australia because he had been certain that he would be granted a visa.  The Tribunal was not persuaded by this explanation, given the risks he claimed were involved, and found the applicant’s claimed sequence of events implausible; and

   c)the Tribunal noted that the applicant arrived in Australia on 10 August 2013 and lodged his application for a protection visa on 18 October 2013.  When questioned about the delay in lodging his claim, the applicant told the Tribunal that he had had language difficulties, that he had been too tired from work and that he had not had the time or energy to think about it.  In the Tribunal’s view, if the applicant had genuinely held fears about returning to China, he would have given priority to the matter and made his application earlier.  His failure to do so suggested to the Tribunal that he had fabricated his claims as a means of remaining in Australia.

4. For these reasons, the Tribunal found that the applicant was not a witness of truth and so did not accept any of his material claims. 

Proceedings in this Court

1. The applicant’s amended application alleged:

   1.     Now I am very scared to return back to China because I did not comply with what police told me, sending the petition letter to the Letters and Visits Office in Suzhou instead.  So if I go back now, I definitely will encounter the persecution of imprisonment for at least half year.  However, RRT members could not consider my situation and suspect the credibility of my personal statement, which makes me feel very unfair.

   One of the reasons why RRT refuse my application is that I could not provide sufficient evidence.  Although I had a career in administration and experience in record keeping, I flee from China to Australia, which means that preparation for going abroad was in rush and hasty and I did not have enough to collect evidence.  Besides, I was in panic at that time, so all I knew was to stay away from China.  Before I went abroad, I sent the original copy of petition letter to Letters and Visits Office in Suzhou and I was afraid those evidence would become the barrier to prevent me from going through the Chinese custom safely, so I did not bring them with me.  Now I seldom contact with my family because I am afraid they will get involved if Chinese government know we have contact, not even mention asking them to send me written evidence.  I think the RRT members should consider my situation thoroughly.

   2.Another reason why RRT refuse my application is that I delayed to apply for refugee protection visa.  The language barrier is the most important reason to stop me from doing so.  What’s more, when I just came to Australia, I did not know anyone here and no one told me how to apply such visa in Australia; the money I brought from China was limited, so I had to work to support myself financially; at that time, I was homesick and I had no one to talk to, I had been in a very low mood for a period of time, so I barely talked to anyone and did not even want to see people as well.  These are the reasons why stops my gaining the information of applying refugee protection visa.  Later on, when I was stable physically and emotionally, and I started to know more people here, I processed my application immediately.

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

2. In large part, the grounds of the amended application do no more than invite the Court to undertake a review of the merits of the visa application.  As indicated to the applicant at the hearing of this application and as noted earlier in these reasons, the Court has no power to undertake such a review.  Its jurisdiction is relevantly limited to considering whether the Tribunal’s decision is affected by jurisdictional error.  Consequently, to the extent that the grounds of the amended application sought merits review, they did not disclose any basis upon which the Tribunal’s decision should be set aside.

3. However, there were other matters raised in the grounds pleaded in the amended application and in the applicant’s address to the Court which require separate consideration. 

Ground 1

1. In the first ground of the amended application, the applicant alleged that the Tribunal did not consider his situation.  The facts of the applicant’s case were quite straightforward and essentially limited to the material included in the statement he lodged with his visa application.  To the extent that the applicant elaborated on or added to those matters at the Tribunal hearing, he did so only to a very limited extent.  The Tribunal’s decision record indicates that to the extent that the applicant did make factual claims, they were considered by the Tribunal and, consequently, this element of the first ground of the amended application is not made out. 

2. The first ground of the amended application next suggested that the Tribunal’s  finding as to the applicant’s credibility was an unreasonable one.  Matters of credibility are factual matters par excellence for determination by the Tribunal and there was sufficient material before the Tribunal for it to reasonably draw a conclusion that the applicant’s credibility was wanting.

3. The first ground of the amended application then, again, implied that the Tribunal had not considered the applicant’s situation thoroughly.  For the reasons given earlier at [19], this allegation is not made out. 

4. The remainder of the first ground of the amended application was concerned with the Tribunal’s conclusions concerning the paucity of evidence provided by the applicant and, as already noted, that invited merits review. 

Ground 2

1. In the second ground of the amended application, merits review was impermissibly sought in connection with the applicant’s delay in lodging his protection visa application. 

Ground 3

1. Ground 3 of the application did not make any allegations. 

Written submissions

1. In a document provided to the Minister, which the Minister then subsequently provided to the Court, the applicant stated that the Tribunal’s decision was unreasonable.  The applicant did not indicate in what way the Tribunal’s decision was unreasonable and so that assertion lacks any meaningful content.  However, it can be noted that the Tribunal set out the facts which were before it and no challenge has been made to that summary.

2. The Tribunal did not, in my view, reach any conclusion which no reasonable decision maker would have made on the material before it.  Nor is it apparent that the Tribunal’s ultimate decision on the review was unreasonable and not open to it based on its intermediate findings of fact and credit.

Addresses

1. In his address to the Court, the applicant alleged that the Tribunal had asked the wrong questions and implied that his ability to provide an account of his circumstances to the Tribunal was compromised as a consequence.  However, the Tribunal is not obliged to ask any particular questions.  Rather, it is incumbent on review applicants to satisfy the Tribunal that they are entitled to the visa which they seek or that the delegate’s decision is in some way flawed.  Consequently, this submission did not disclose a basis upon which the Tribunal’s decision should be set aside.  

2. In his address to the Court, the applicant also referred to the purported fact that he had submitted documents to the Tribunal.  The only document which the applicant appears to have provided to the Tribunal was his review application and, in fact, an important basis of the Tribunal’s rejection of the applicant’s claims was his failure to provide material to it.

3. The applicant advanced yet further contentions in his address to the Court but these were not clear at all and appeared to invite merits review.  For the reasons already given, such matters do not provide a basis for setting the Tribunal’s decision aside. 

CONCLUSION

1. None of the matters which the applicant raised in connection with his substantive application have led me to the conclusion that the substantive application would have reasonable prospects of success were the orders made on the last occasion to be set aside.

2. In those circumstances, and notwithstanding that I have given the applicant the benefit of the doubt concerning his explanation for failing to attend on the last occasion, the application to set aside the orders made on 16 May 2016 will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 4 July 2016