SZVHT v Minister for Immigration & Border Protection

[2015] FCCA 1487

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHT & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1487

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13
Migration Act 1958 (Cth), ss.36, 65, 411C, 425A, 426A, 441A

First Applicant: SZVHT

Second Applicant: SZVHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2898 of 2014

Judgment of: Judge Emmett

Hearing date: 2 June 2015

Date of Last Submission: 2 June 2015

Delivered at: Sydney

Delivered on: 2 June 2015

REPRESENTATION

The applicants appeared in person with the assistance of a Mandarin interpreter.

Solicitors for the Respondents: Mr Liam Dennis(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2898 of 2014

SZVHT

First Applicant

SZVHU

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 20 October 2014, the first applicant (“the Applicant”) filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 22 September 2014 (“the RRT”). The second named applicant is the wife of the Applicant and her claims are wholly dependent on those of the Applicant.

2. On 5 March 2015, the Applicant attended a directions hearing before a Registrar of the Court.

3. The Applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 26 May 2015. The applicants were also directed to file and serve written submissions in support of the grounds of his application by 26 May 2015.

4. At the directions hearing, the applicants were provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language, together with a copy of the relevant cost schedule under the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

5. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was also given to the applicant.

6. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

7. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

8. The first respondent, in written submissions, summarised the background of the applicants’ claims and the RRT’s decision, as follows:

   “Applicant’s claims

   4. The applicant claimed to fear persecution at the hands of the Chinese government because he is a devout Christian. In a statement attached to the applicant’s protection visa application (CB 34), the applicant recounted his experience in America and his introduction to Christianity. The applicant claimed that when he returned to China, he joined a government led church but when he discovered it was “under the surveillance and intervention” of the government, he left that church and started his own.

   5. The applicant claimed that the development of his church “aroused the dissatisfaction” of the government. He claimed that in 2007, he was taken to a police station by force, beaten and forced to admit he was working against the government. The applicant claimed he was detained for 15 days and released after he paid a fine. The applicant claimed his wife was also beaten by the police. One week after he was freed, the applicant claimed the police went to his house and “warned and threatened” him against developing his church and damaged his property. The applicant claimed this treatment continued “every week”.

   Tribunal's decision

   6. The Tribunal found that the applicant’s claims were “unsubstantiated and without further detail amount to mere assertions” (CB 81: [8]). The Tribunal set out various matters it would have put to the applicant to “test [the] veracity” of his claims (CB 81: [8]-[9]).

   7. The Tribunal found that the evidence before it was “not sufficiently detailed” to be satisfied that the applicant’s “claims actually occurred” (CB 82: [10]).

   8. For these reasons, the Tribunal dismissed all of the applicant’s claims and found that it was not satisfied there was “any basis” for the applicant to fear harm if he returned to China (CB 82 [10]-[12]).

   9. Accordingly, the Tribunal was not satisfied that the applicant met the refugee criterion under section 36(2)(a) of the Act (CB 82-83: [12], [14]). On the same bases, the Tribunal was not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm and accordingly found that he failed to satisfy the complementary protection criterion under section 36(2)(aa) of the Act (CB 82-83: [13], [14]).”

9. The Applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

10. The Applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise.

11. The application for judicial review, filed on 20 October 2014, stated the grounds of review as follows:

    “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.”

12. The grounds of the application were interpreted for the Applicant and the Applicant was invited to make submissions in support of the grounds.

13. I understood from the Applicant that the nub of his complaint was that he was not given an opportunity to attend a hearing, he considered that was not fair and he wished to have another chance to do so.

14. I explained to the Applicant that there was a statutory regime that the RRT is obliged to follow inviting him to come to a hearing, and if the RRT complied with that statutory regime then it may be that the fact that he did not receive the invitation for any reason would not, by itself, disclose a jurisdictional error on the part of the RRT.

15. The Applicant tendered a photocopy of an envelope addressed to “The Registry, New South Wales”, without any identifying indication that it was a letter intended to go to the Refugee Review Tribunal. It has no date on it.

16. The Applicant tendered with that envelope a copy of a medical account for 13 September 2014. The Applicant said that he sent that document to the RRT. They post-date the hearing invitation to which no response was ever received.

17. The first respondent tendered a bundle of relevant documents identified as “Court Book” and filed on 26 March 2015. Those documents were marked Exhibit 1R. There was nothing in Exhibit 1R to suggest that the documents identified by the Applicant this morning were ever received by the RRT and, as stated above, the envelope clearly has no reference to the Refugee Review Tribunal. The documents were objected to by the solicitor for the first respondent on the grounds of relevance, and rejected by me on that basis.

18. The RRT’s decision record recounts that on 5 August 2014, the RRT wrote to the applicants advising that it had considered all the material before it relating to their application, but was unable to make a favourable decision on that information alone, and went on to invite the applicants to a hearing to give oral evidence and present arguments on 16 September 2014. That letter is, in fact, dated 4 August 2014, and has a handwritten note on it, “posted on 5 August 2014”.

19. The RRT’s letter informs the Applicant that if he was not able to attend the hearing, he should advise the RRT as soon as possible, and that if the RRT did not advise that an adjournment had been granted, the Applicant must assume the hearing will go ahead. The letter also informed the applicants that if the applicants did not attend the scheduled hearing, the RRT may make a decision without taking any further action to allow or enable them to appear before it.

20. The letter clearly states the name of the author of the letter and identifies the author as a tribunal officer. The letter further provides a contact telephone number and the address. The letter states that if there are questions to contact the identified tribunal officer. The contact details of translating and interpreting services are also provided in the letter.

21. The statutory scheme is set out in Part 7 of Division 4 of the Migration Act 1958 (Cth) (“the Act”), and requires the RRT to invite an applicant to appear before to give evidence and to present arguments relating to the issues arising in relation to the decision under review.

22. Section 425A of the Act requires the RRT to include in that letter various information, and I am satisfied that the letter dated 4 August 2014 from the RRT is a letter that contains the required information.

23. Division 7A of Part 7 of the Act relates to the giving and receiving of documents and, in particular, the methods by which the RRT must give a document to an applicant. The RRT is required to post the letter within three days of the date of the letter pursuant to s.441A(4)(a) of the Act. Section 411C(4)(a) states that where the letter is sent by prepaid post, the applicant is deemed to have received that letter 7 days after the date of the letter.

24. In the absence of any evidence to the contrary, I accept from the handwritten note on the letter, dated 4 August 2014, stating “posted on 5 August 2014”, that the letter was posted on that date and was in compliance with s.441A(4)(a).

25. There is nothing before this Court to suggest that the RRT did otherwise than comply with the regime in the giving of that letter to the applicant. The RRT does not identify any concern that it had about compliance with the statutory regime, and none has been suggested by the Applicant.

26. The RRT noted that there was no response received from the Applicant in relation to the invitation to attend a hearing. The RRT noted that on 11 September 2014 a tribunal officer tried to contact the applicants on the telephone number provided on their review application, but the number had been disconnected. I note that there is a file note in Exhibit 1R to that effect.

27. The applicants did not appear before the RRT on the day and at the time and place at which they were scheduled to appear. Accordingly, the RRT purported to proceed to make its decision on the review without taking any further action to enable the applicants to appear before it in accordance with s.426A of the Act. There is nothing before this Court to suggest that the RRT’s exercise of its discretion in those circumstances was other than open to it and proper in all the circumstances.

28. The RRT went on to consider the Applicant’s claims, which it found to be unsubstantiated and without further detail amounted to mere assertions. The RRT noted that if the Applicant had attended the hearing, the RRT would have had the opportunity to discuss his claims with him in more detail and to test their veracity. The RRT then identified various matters that it may have taken up with the Applicant at a hearing.

29. The RRT found the evidence before it was not sufficiently detailed for it to be satisfied that the Applicant 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 second named applicant was beaten by police. On the evidence before it, the RRT was not satisfied that the Applicant continues to practise any religious activity, and was not satisfied that he would continue to do so if he returned to China. In the circumstances, the RRT found that there was insufficient evidence for it to be satisfied that the events the applicants claimed had actually occurred.

30. Section 65 of the Act mandates that in the event that the decision-maker, in this case the RRT, is not satisfied that an applicant meets the relevant criteria for protection, then it must refuse the protection visa application. The RRT considered whether the Applicant met the criteria under both s.36(2)(a) and s.36(2)(aa) of the Act, and was not satisfied that the Applicant met any of the relevant criteria. In those circumstances, the RRT was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations, and accordingly affirmed the decision under review.

31. The RRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.

32. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the Applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.

33. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 20 October 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  25 June 2015