SZVFD v Minister for Immigration

[2015] FCCA 2746

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2746

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – dismissal of show cause application – non attendance by the applicant or their solicitor.

Legislation:

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 476

Applicant S146 of 2003 v Minister of Immigration [2006] FCA 502
Minister for Immigration & Anor v SZFHC (2006) 150 FCR 439
SJSB vMinister for Immigration [2004] FCAFC 225

SZDXC v Minister for Immigration [2005] FCA 1306

SZIGQ & Anor v Minister for Immigration [2007] FCA 328

First Applicant: SZVFD

Second Applicant: SZVFE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2758 of 2014

Judgment of: Judge Driver

Hearing date: 8 October 2015

Delivered at: Sydney

Delivered on: 8 October 2015

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondents: Mr R White of Mills Oakley Lawyers

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The first and second applicants are 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).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2758 of 2014

SZVFD

First Applicant

SZVFE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 8 September 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants who are from South Korea.  The protection claims were made by the male applicant, the first applicant. 

2. The background facts relating to the matter are conveniently set out in the Minister’s outline of legal submissions filed on 1 October 2015. 

3. The applicants are husband and wife and citizens of South Korea[1].  The first applicant arrived in Australia on 20 January 2002. He unsuccessfully applied for two Subclass 457 visas and a student visa before applying for a protection visa on 15 July 2013[2].  Essentially, the first applicant claimed he would suffer significant harm if he returned to South Korea because of his lack of economic, social and family ties and the humiliation he would suffer as a result[3].  The second applicant did not make any claims of her own but relied on the claims of her husband as a member of his family unit[4].

   [1] Court Book (CB) 15; CB 30

   [2] CB 1; CB 4-29

   [3] CB 2-3

   [4] CB 30-34

4. Both applicants provided the Department with completed Form 80s[5] and appointed a representative to assist them in connection with their application[6].

   [5] CB 38-73

   [6] CB 35-37

5. On 19 July 2013, the applicants were invited to an interview before the Minister’s delegate[7] but failed to attend.  They did not contact the Department to explain their non-attendance or otherwise provide the delegate with any further information or materials in support of their claims for protection[8].

   [7] CB 74-79

   [8] CB 91

6. On 30 January 2014, the delegate refused to grant the applicants protection visas[9]. In light of the “very limited” information provided by the applicants in their application[10], the delegate was not satisfied that they had a well-founded fear of persecution or that there were substantial reasons for believing there was a real risk that they would suffer significant harm in South Korea[11].

   [9] CB 84-97

   [10] CB 92

   [11] CB 93-97

The Tribunal’s decision

1. On 5 March 2014, the applicants lodged an application for review of the delegate’s decision[12]. They appointed the same representative to assist them in connection with the review[13].

   [12] CB 98-104

   [13] CB 101

2. On 23 July 2014, the Tribunal wrote to the applicants inviting them to appear at a hearing scheduled on 8 September 2014[14]. The hearing invitation was validly sent by facsimile to the applicants’ authorised recipient in accordance with s.441A(5) and it complied with the requirements of ss.425 and 425A of the Migration Act 1958 (Cth) (Migration Act).

   [14] CB 111-115

3. The applicants did not respond to this invitation or attend the scheduled hearing[15]. In these circumstances, the Tribunal exercised its discretion to proceed pursuant to s.426A to make a decision on the review without taking any further action to enable the applicants to appear before it. The Minister submits that there was nothing unreasonable or capricious in the Tribunal’s exercise of this discretion[16].

   [15] CB 116-118; CB 124 at [11]

   [16] SZIGQ & Anor v Minister for Immigration [2007] FCA 328 at [5]; Minister for Immigration & Anor v SZFHC (2006) 150 FCR 439 at [39]

4. In its decision dated 8 September 2014, the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas[17].  The Tribunal found that the first applicant’s claims were “lacking in detail in significant respects” and, in the absence of further evidence or supporting materials, it was unable to be satisfied that the applicant’s claims were factually correct[18].  On the evidence before it, the Tribunal was therefore not satisfied that the applicant had lost his economic, social and family ties in South Korea or that he would suffer any humiliation as a result[19].  For these reasons, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution or that there were substantial grounds for believing that there was a real risk that they would suffer any significant harm[20].

   [17] CB 122-130

   [18] CB 125 at [15]

   [19] CB 125-126 [16]

   [20] CB 126 at [17]-[18]

5. The Minister submits that there is no jurisdictional error on the part of a Tribunal where it finds there is a lack of evidence due to an applicant’s non attendance at the hearing[21].  The facts put forward by the first applicant in his protection visa application simply did not cause the Tribunal to be satisfied as to the applicable criteria[22].  The rejection of the application is thus said to be an “inevitable consequence” of their non-attendance at the scheduled hearing.

   [21] Applicant S146 of 2003 v Minister of Immigration [2006] FCA 502; SZDXC v Minister for Immigration [2005] FCA 1306

   [22] SJSB vMinister for Immigration [2004] FCAFC 225

The present application

1. These proceedings began with a show cause application filed on 3 October 2014. I should note that from the outset the applicants were legally represented by Mr Ryan Yoon of El Khan Legal. As is noted in the Minister’s submissions and as was apparent from the outset, that application is deficient in that it fails properly to invoke the Court’s jurisdiction under s.476(1) of the Migration Act as the application does not seek a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth. The parties had some discussion following the filing of the application and they agreed on consent orders which I made in chambers on 14 November 2014. Those orders provided for an amended application to be filed and served by 13 January 2015 together with any additional evidence. The matter was listed for a show cause hearing today, and I also required the preparation of written submissions.

2. No amended application has been prepared, and neither have any written submissions been prepared on behalf of the applicant.  No additional evidence was filed. 

3. The solicitor for the Minister tendered several documents this afternoon which became collectively exhibit R1.  They establish that the Minister has attempted on several occasions to obtain information from the applicants’ solicitor about the progress in the matter.  A telephone conversation on 29 September 2015 indicates that the applicants’ solicitor advised at that stage that he did not propose to put on any submissions as his client was minded to discontinue.  That prompted a follow up email from the Minister’s solicitors to which there was no reply.

4. No notice of discontinuance has been filed.  The Rules of Court require leave for a notice of discontinuance before a final hearing, but as yet no final hearing has been fixed.  There was no appearance by or on behalf of the applicant when the matter was called this afternoon.  The matter has been called twice and on each occasion there was no answer to the call.  The only possible explanation for that non-attendance is what can be surmised from the communications comprising exhibit R1.  It may be that the applicants’ solicitor lacks instructions in relation to today’s hearing.  Even so, he should have attended Court to inform the Court of the circumstances.  A situation where an applicant is left unrepresented and solicitors are on the record is unsatisfactory. 

5. Given the failure of the applicants to attend in person or by their solicitor this afternoon and given the lack of an acceptable explanation for that non-attendance, I have decided that the appropriate course is to dismiss the application on account of that non-attendance, and I so order. 

6. The Minister seeks an order for costs fixed in the sum of $3,416.  I have no difficulty in accepting that costs of at least that amount have been properly and reasonably incurred on behalf of the Minister, and I will order that the applicant pay the Minister’s costs fixed in that amount.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 October 2015