SZVIL v Minister for Immigration

[2015] FCCA 3090

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3090

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no appearance by the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.36

Applicant: SZVIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2939 of 2014

Judgment of: Judge Driver

Hearing date: 18 November 2015

Delivered at: Sydney

Delivered on: 18 November 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms N Johnson 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 applicant is 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).

4. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2939 of 2014

SZVIL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 23 October 2014 to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  That decision was made on 24 September 2014. The Tribunal affirmed a decision not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the tribunal on them are set out in the Minister’s outline of submissions, filed on 22 October 2015.

2. The applicant is a citizen of Mongolia who applied for a protection (Class XA) visa on 20 September 2013[1]. He outlined brief written claims to fear harm in Mongolia in his protection visa application[2]. The applicant claimed to fear harm for reasons of his membership of, and support for, the Mongolian People’s Revolutionary Party (MPRP). He claimed that he came to the adverse attention of the Mongolian authorities in April 2012 following a rally. He was later issued with a summons and warned by the police that he would be taken before the court if he continued to support the leader of the MPRP. After the applicant participated in a further rally in May 2012, he was taken to the police station and beaten. He subsequently left Mongolia fearing for his safety and arrived in Australia in August 2012 on a student visa.

   [1] Court Book (CB) 1-26

   [2] CB 18-21

3. The only documents that the applicant provided to the Department in support of his visa application were copies of some pages from his passport[3] and an untranslated membership card[4].

   [3] CB 27-42

   [4] CB 52

The delegate

1. The applicant attended an interview with a delegate of the Minister on 13 February 2014[5]. On 26 February 2014, the delegate made a decision refusing to grant the applicant a protection visa[6]. On the basis of adverse credibility findings, the delegate found that the applicant was not a member of the MPRP and rejected his claims to have suffered harm in the past[7]. The delegate was therefore not satisfied that the applicant faced a real chance of serious or significant harm in Mongolia[8].

   [5] CB 60.4

   [6] CB 57-68

   [7] CB 63.4

   [8] CB 66, 68

The Tribunal

1. On 18 March 2014, the applicant lodged an application for review of the delegate’s decision[9].

   [9] CB 69-74

2. By a letter dated 12 August 2014, the Tribunal invited the applicant to appear before it at a hearing scheduled on 23 September 2014[10]. The applicant attended the scheduled hearing[11] and provided the Tribunal with copies of pages from his passport[12]. At the Tribunal hearing, the applicant raised new claims that he was arrested and detained three times prior to 2012 because he was a youth leader of the MPRP and participated in political rallies. 

   [10] CB 77-78

   [11] CB 79

   [12] CB 80

3. By a decision dated 24 September 2014, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa[13]. Whilst the Tribunal was prepared to accept that the applicant was a member of the MPRP, it rejected the remainder of his claims on the basis of comprehensive adverse credibility findings.

   [13] CB 87-95

4. The Tribunal found that the applicant was not a person of credit[14] and had “been entirely untruthful in his claims”[15]. To support its conclusion the Tribunal identified numerous concerns with the applicant’s evidence[16] and found that his description of events and activities at the Tribunal hearing was “extremely vague”, he was unable to provide details of events, could not recall many key dates, his oral evidence before the Tribunal was “substantially inconsistent” with his written claims and he advanced a number of significant new claims for the first time at the Tribunal hearing[17].

   [14] CB 89 at [13]

   [15] CB 94 at [14]

   [16] CB 89-94 at [13a]-[13m]

   [17] CB 89 at [13]

5. Whilst the Tribunal was prepared to accept on the basis of his MPRP membership card that the applicant joined the MPRP in 2004, it identified numerous concerns with his evidence and found that the remainder of his claims for protection had been fabricated and rejected them on that basis[18]. In these circumstances, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under either s.36(a) or s.36(2)(aa) of the Migration Act 1958 (Cth)[19].

   [18] CB 94-95 at [16]

   [19] CB 95 [20]-[22]

6. The applicant has not taken up the opportunity I afforded him on 26 November 2014 to file an amended application and additional evidence.  There are three grounds in the show cause application:

   1. I was denied procedural fairness

   2. The decision maker made a jurisdictional error by not considering all relevant claims and relevant documents provided.

   3. The Tribunal decision was affected by non-compliance with the procedural requirements.

7. This matter had been listed for hearing on 5 November 2015 but the parties were notified by my associate of a change of time to 2.30pm today.  There is no indication that the applicant attended court on 5 November.  The applicant did not arrive at the scheduled time for today’s hearing.  Before I came on the bench, my deputy associate attempted to contact him on his nominated telephone number with the assistance of the Mongolian interpreter. 

8. That attempt was not successful. The call was not answered. The matter has since been called twice and on each occasion there was no answer to the call. There is no explanation for the applicant’s non-attendance.

9. In the circumstances, I will order that the application be dismissed on account of the applicant’s non-attendance, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

10. In consequence of that dismissal, the Minister seeks an order for costs in accordance with the Court’s scale. I will order that the applicant is 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.

11. I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served on the applicant by ordinary pre-paid post to his last known address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

12. I will further order that the name of the second respondent be amended to the Administrative Appeals Tribunal.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 November 2015