SZVIT v Minister for Immigration

[2015] FCCA 3022

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3022

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – dismissal of show cause application on account of the non-appearance of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZVIT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2955 of 2014

Judgment of: Judge Driver

Hearing date: 10 November 2015

Delivered at: Sydney

Delivered on: 10 November 2015

REPRESENTATION

There was no appearance by or on behalf of the Applicant

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

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 2955 of 2014

SZVIT

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 seeking judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), made on 22 September 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China and had made claims for protection based upon his asserted practice of Falun Gong.  Background facts relating to those claims and the Tribunal decision on them are set out in the Minister’s outline of written submissions filed on 3 November 2015. 

3. The applicant is a male citizen of China born on 29 February 1980. He arrived in Australia on 11 August 2013.

4. The applicant applied for a protection (Class XA) visa on 4 November 2013.[1] The application was refused by a delegate of the Minister on 11 February 2014.[2]

   [1] Court Book (CB) 1

   [2] CB 51

5. The applicant applied to the Tribunal for review of the delegate's decision on 19 March 2014.[3]

   [3] CB 58

6. The applicant gave oral evidence before the Tribunal on 15 September 2014. The Tribunal made its decision on 22 September 2014.[4]

   [4] CB 111

7. The applicant set out claims in his protection visa application form and in a statement submitted to the Tribunal. In summary the applicant claimed that:

   a)he began practising Falun Gong in 1996 while he was at school, but he stopped practising in 1999 when it was banned at his school;

   b)he did not practice again until 2007;

   c)he resumed his practice of Falun Gong in 2007 after having sustained an injury. He would practise in private, however a co-worker saw him practising one day and shortly after he was approached by security guards;

   d)the applicant was detained in January 2008 for ten months, and during his detention he was tortured and humiliated;

   e)in September 2010 he was detained for another month and he was also detained in September 2012 for one month; and

   f)he got his passport in June 2013 and left China, but he had to pay two bribes;

The decision of the Tribunal

1. The Tribunal accepted that country information indicated that the Chinese government had banned Falun Gong as an illegal cult and that practitioners were still detained and subjected to serious mistreatment in China.[5] However the Tribunal found that the applicant was not a credible witness and rejected his claims in their entirety.

   [5] CB 118 at  [24]

2. The reasons the Tribunal found the applicant was not a credible witness in summary were:

   a)the Tribunal was concerned that the applicant's evidence at the hearing about his early involvement in Falun Gong activity was vague and, in important respects inconsistent with his written claims;[6]

   b)the Tribunal found the applicant's evidence about when he ceased practising Falun Gong vague and unconvincing;[7]

   c)the Tribunal acknowledged that the applicant's evidence about the three occasions on which he was detained in China was broadly consistent with his written claims, however it was concerned that his evidence about his claimed detention in China was vague and shifted over the course of the hearing;[8]

   [6] CB 118 – 119 at [25] - [27]

   [7] CB 119 at  [28]

   [8] CB 119 at [29]

3. The Tribunal found that the applicant’s knowledge of Falun Gong was inconsistent with his claim to have practised Falun Gong in China. As was put to the applicant, the Tribunal found it difficult to accept that the applicant practised Falun Gong in school from 1997 and continuously for ten to twenty days in 2008 and yet was unable to name any of the Falun Gong exercises and only performed one exercise.[9]

   [9] CB 119 – 121 at [30] - [33]

4. The Tribunal found unconvincing and not credible the applicant’s evidence that he has not practised Falun Gong in Australia because he needed to obtain protection from the Australian Government but he will practice once he acquires “legal” status.[10]

   [10] CB 121 at [34]

5. The Tribunal did not accept the applicant’s reasons for failing to attend the interview with the delegate.[11]

   [11] CB 121 – 122 at  [35] - [37]

6. The Tribunal considered the fact that the applicant was able to travel out of China on a valid passport issued in his own name suggested that he was not, at that time, of adverse interest to the Chinese authorities for any reason.[12]

   [12] CB 122 – 123 at [38] - [39]

7. The Tribunal found that the applicant's evidence that he was persecuted because of his involvement in Falun Gong activity in China was not credible and that his claims regarding detention were not otherwise credible by reference to corroborating documentation.[13]

   [13] CB 123 at [40]

8. The Tribunal rejected all of the applicant's claims and found that the applicant was never a Falun Gong practitioner.[14] The Tribunal found that the applicant fabricated his claims in their entirety and on the evidence before it the Tribunal was not satisfied that the applicant would face serious harm for the purposes of the Refugee Convention, either now or in the reasonably foreseeable future if he returned to China.[15]

   [14] CB 123 – 124 at [41]

   [15] CB 124 at [42]

9. On the basis of the Tribunal’s wholesale rejection of the applicant's claims, the Tribunal found that the applicant also did not satisfy the criteria for complementary protection.[16]

   [16] CB 124 at [43]

The present proceedings

1. These proceedings began with a show cause application filed on 24 October 2014.  The applicant has not taken up the opportunity I afforded him to file an amended application.

2. The applicant is unrepresented. His application contains three grounds:

   1. The Refugee Review Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information to the applicant to comment in accordance with the Migration Act 1958.

   2. The Tribunal breached the rules of natural justice in connection with the making of the decision.

   3. The Tribunal failed to consider the Chinese government persecute all Falun Gong Practitioners even their knowledge of Falun Gong is limited.

3. The applicant attended a directions hearing on 27 November 2014 with the assistance of a Mandarin interpreter. 

4. At that time, I made orders to prepare the matter for a show cause hearing today.  I am satisfied that the applicant understood that the matter would be heard on an interim basis today.  There was no appearance by or on behalf of the applicant when the matter was called today.  The matter has been called twice and on each occasion there was no answer to the call. 

5. Before I came on the bench, an attempt was made to contact the applicant on his nominated mobile telephone number with the assistance of the interpreter.  That attempt was unsuccessful.  The phone had been turned off.

6. I received into evidence the affidavit of Rachael Nadine Fresta made on 9 September 2015.  Ms Fresta is employed in the office of the Minister’s solicitors.  Annexure A to her affidavit is a letter dated 3 November 2015 to the applicant at his residential and postal addresses reminding him of the Court fixture today and warning him that a failure to attend may result in the matter being dismissed with costs.  Annexure B to the affidavit is a courier receipt indicating that the correspondence was left under the door at the residential address. 

7. There being no attendance by or on behalf of the applicant today, and there being no explanation for that non-attendance, the Court being unable to contact the applicant by telephone and in light of Ms Fresta’s affidavit, I have concluded that the appropriate course is to dismiss the application on account of the applicant’s non-attendance and I will so order.

8. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. 

9. 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 2001 (Cth).

10. I will direct 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).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 November 2015