SZVHT v Minister for Immigration and Border Protection
[2015] FCA 922
•24 August 2015
FEDERAL COURT OF AUSTRALIA
SZVHT v Minister for Immigration and Border Protection [2015] FCA 922
Citation: SZVHT v Minister for Immigration and Border Protection [2015] FCA 922 Appeal from: Application for leave to appeal: SZVHT v Minister for Immigration and Border Protection [2015] FCCA 1487 Parties: SZVHT and SZVHU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 693 of 2015 Judge: FARRELL J Date of judgment: 24 August 2015 Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) s 426A, Pt 7 Div 4Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
SZVHT v Minister for Immigration and Border Protection [2015] FCCA 1487Date of hearing: 24 August 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 27 Counsel for the First Applicant: The first applicant appeared in person with the assistance of an interpreter Counsel for the Second Applicant: The second applicant did not appear Solicitor for the First Respondent: Mr L Dennis of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 693 of 2015
BETWEEN: SZVHT
First ApplicantSZVHU
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
24 AUGUST 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.
2.The application be dismissed.
3.The applicants pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 693 of 2015
BETWEEN: SZVHT
First ApplicantSZVHU
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
24 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to appeal a judgment of Judge Emmett of the Federal Circuit Court of Australia delivered on 2 June 2015: see SZVHT v Minister for Immigration and Border Protection [2015] FCCA 1487 (“SZVHT”). Acting under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the applicants Protection (Class XA) visas. The decision is therefore interlocutory under r 44.12(2).
The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.
BACKGROUND
The applicants are citizens of the People’s Republic of China, and are husband and wife. The husband made the relevant protection claim; the wife was included as a member of the family unit.
The husband says that he is a devoted Christian who is persecuted by the Chinese government as a result of his efforts to establish a church with other Christians, which aroused the dissatisfaction of the local government. The basis for the husband’s claim for protection was set out in an attachment to his visa application and it is recorded at [5] of the Tribunal’s Statement of Decision and Reasons dated 22 September 2014 (“Decision Record”).
TRIBUNAL DECISION
The Decision Record at [4] states that on 5 August 2014, the applicants were invited to attend a hearing before the Tribunal scheduled for 16 September 2014. No response was received. On 11 September 2014, a Tribunal officer attempted to contact the applicants on the phone number they had provided to the Tribunal, but the number had been disconnected. The applicants did not appear at the Tribunal hearing. In the circumstances, the Tribunal decided to make its decision on the review pursuant to s 426A of the Migration Act 1958 (Cth) without taking any further action to enable the applicants to appear before it.
The Tribunal found that the husband’s claims set out in the attachment to his visa application were “unsubstantiated and without further detail amount[ed] to mere assertions”: Decision Record at [8]. The Tribunal noted that, if the husband had attended the hearing, it would have had the opportunity to discuss the claims in more detail.
The Tribunal concluded at [10] of the Decision Record:
The evidence before the tribunal is not sufficiently detailed for it to be satisfied the applicant was a practicing [sic] Christian who came to the adverse attention of the authorities in China, or that he was detained and threatened on that basis, or that the second named applicant was beaten by police. On the evidence before it the tribunal is not satisfied the applicant continues to practice [sic] any religious activity and it is not satisfied he will continue to do so if returned to China. In these circumstances, the tribunal has insufficient evidence to be satisfied that the events the applicant claims actually occurred. On the evidence before me, the tribunal does not accept the applicant’s claims.
In the result, the Tribunal was not satisfied that the husband was owed a protection obligation, either as a refugee or as a beneficiary of complementary protection: Decision Record at [12]-[13].
FEDERAL CIRCUIT COURT DECISION
The applicants filed an application in the Court below seeking judicial review of the Tribunal’s decision on 20 October 2014. Following a directions hearing on 5 March 2015, the matter was listed for a hearing pursuant to r 44.12 of the Federal Circuit Court Rules on 2 June 2015.
The application contained three grounds of review (as written):
1. I was not given a hearing.
2. I was not given fairness for my RRT application.
3. I should be given another chance to the hearing before RRT refused my application.
The husband did not file any written submissions, affidavit evidence or amend the application to provide particulars of the claim despite being invited to do so: SZVHT at [3] and [10]. The primary judge understood from oral submissions made by the husband at the hearing that the main complaint was that he had not been given the opportunity to attend a hearing, that that was unfair, and that he wanted another chance to attend a hearing: SZVHT at [13]. The primary judge explained that, if the Tribunal had complied with the statutory regime relating to the provision of notice of the hearing, then the husband’s non-receipt of the invitation to the hearing would not, by itself, disclose jurisdictional error: SZVHT at [14].
The husband tendered a photocopy of an envelope addressed to “The Registry, New South Wales”; there was no reference to the Tribunal or the date on the envelope. The husband also tendered a copy of a medical account for 13 September 2014. The husband said that he sent the document to the Tribunal. The Court Book tendered by the Minister’s representative did not show that the document was ever received by the Tribunal. The Minister’s representative objected to the tender of these documents on the grounds of relevance; the primary judge rejected the documents on that basis: SZVHT at [17].
The primary judge noted that the letter inviting the applicant to attend the hearing on 16 September 2014 was in fact dated 4 August 2014, but had a handwritten endorsement indicating that it was sent on 5 August 2014: SZVHT at [18]. The primary judge determined that there was nothing before the Court to suggest that the Tribunal did otherwise than comply with the statutory regime relating to sending the letter inviting the applicant to the Tribunal hearing: SZVHT at [25]. The primary judge also held that the Tribunal’s exercise of its discretion to proceed to make its decision on the review without taking any further action to enable the applicants to appear before it was open to it and proper in all the circumstances: SZVHT at [27].
The primary judge observed that the Tribunal found the evidence before it to be not sufficiently detailed for it to be satisfied that the husband was a practising Christian who had come to the adverse attention of authorities in China or that he was detained and threatened on that basis, or that the wife was beaten by police: SZVHT at [29]. On that basis, the Tribunal was not satisfied that the husband was owed a protection obligation, and therefore it was bound to affirm the decision under review: SZVHT at [30]. The primary judge found that the Tribunal’s findings and conclusions appeared to be open to it on the evidence and material before it and for the reasons it gave: SZVHT at [31].
In the result, the primary judge dismissed the application because the husband had not identified any error on the part of the Tribunal capable of establishing jurisdictional error, and none was apparent on the face of the Decision Record: SZVHT at [32].
APPLICATION TO THIS COURT
The applicants list four grounds in their application (as written):
1. RRT did not provide a heading and didn’t give me fairness.
2. I was sick during the interview, I should be provided another chance.
3. Federal Circuit Court didn’t accept my evidence which is true.
4. The Federal Circuit Court also didn’t accept that the Immigration Department made a mistake that my interview recording CD was mixed with others.
The application appends a draft notice of appeal which repeats the first three grounds of the application. The husband has also filed an affidavit in this Court which substantially repeats the information contained in the application.
As the primary judge’s judgment is interlocutory in nature, the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth).
To justify a grant of leave to appeal, the applicant must show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
CONSIDERATION
The Minister opposes the grant of leave to appeal on the basis that the primary judge’s decision is not attended by doubt.
At the hearing today, the husband appeared in person with the assistance of an interpreter. He said that he sent a medical certificate, not a “medical account” or bill, to the Tribunal but acknowledged that the Tribunal did not receive it. He said it was lower back pain which prevented him from getting out of bed from which he suffered on 16 September 2014. It became clear that he intended the same thing by grounds three and four, that is, the Court failed to take into account that the CD recording of his interview with the delegate was mixed up because he received a CD recording of someone else’s interview.
The Minister characterises ground one as a re-agitation of the grounds pleaded in the Court below. The Minister submits that the primary judge was correct to conclude that the applicants were not denied procedural fairness; the Tribunal complied with Division 4 of Part 7 of the Migration Act 1958 (Cth) as it was enacted at the relevant time, and the Tribunal’s decision to proceed under s 426A was not an unreasonable exercise of power. I accept that submission.
As to ground two, the Minister notes that the reference to illness is likely an explanation for the husband’s non-attendance at the Tribunal hearing. The Minister submits that there is no evidence to support the assertion such that it could be said that the Tribunal acted unreasonably, or that the husband was denied a real and meaningful opportunity to present his claims and evidence. I accept that submission.
The Minister submits that ground three should be dismissed because it invites the Court to revisit the merits of the application. As the ground is stated, I accept that submission.
Finally, in respect of ground four (which the husband confirmed was the basis of ground three), the Minister submits that there is no evidence a CD recording of the husband’s interview with the delegate of the Minister was mixed with others, and there is no explanation as to why it would be of any consequence even if that were the case. I also accept this submission; the fact that the applicant received the wrong CD may well undermine his confidence in the process, and such an error is therefore unfortunate, it is nonetheless not an error which goes to the jurisdiction of the Tribunal to make a decision under s 426A nor does it disclose appellable error by the primary judge. The Decision Record at [3] indicates that the Tribunal took into account the decision record made by the delegate which was provided to the Tribunal by the applicants. The husband made no complaint about the content of that record.
The applicants’ grounds of appeal lack merit; I perceive no jurisdictional error on the part of the Tribunal or error in the primary judge’s approach to the applicants’ grounds of review in the Court below.
I will dismiss the application and order that the applicants pay the first respondent’s costs, as agreed or taxed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 24 August 2015
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