SZVIT v Minister for Immigration & Anor (No.2)

[2015] FCCA 3219

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIT v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 3219

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – dismissal of show cause application on account of the applicant’s non appearance – application for reinstatement – unsatisfactory explanation for the applicant’s absence.

Legislation:

Migration Act 1958 (Cth), ss.424, 424A, 424AA, 425

SZVIT v Minister for Immigration & Anor [2015] FCCA 3022

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: 3 December 2015

Delivered at: Sydney

Delivered on: 3 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

1. The Application in a Case filed on 10 November 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs of and incidental to the Application in a Case, fixed in the sum of $1,100.

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 in a Case filed on 10 November 2015 seeking reinstatement of a show cause application relating to a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  On 10 November 2015 I dismissed the show cause application on account of the applicant’s non attendance[1].  The Application in a Case seeks to set aside the orders I made on that day.  The application in a case is supported by an affidavit made by the applicant on 10 November 2015.  That affidavit states, relevantly:

   1.I was noticed by Court and DLA Piper that my hearing court is court 6B, level 6 John Maddison Tower, 88 Goulburn St, Sydney.

   2.On 10/11/2015 at 2.15 pm, I went to court and no one was there.  I called court registry.  I was told that court location changed to 80 William St, Sydney.  My case was dismissed when I arrive there.

   [1] see SZVIT v Minister for Immigration & Anor [2015] FCCA 3022

2. The Minister’s solicitors contacted my associate, in my absence overseas on 20 November 2015, to advise that the Minister intended to consent to the application for reinstatement.  I had not seen that letter prior to coming on the bench today.  The Minister’s position was informed by a letter dated 28 November 2014, sent by the Minister’s solicitors to the applicant at his nominated postal and residential addresses, which told him that the location for his hearing was indeed court 6B, level 6, John Maddison Tower, 88 Goulburn Street, Sydney.  This letter was tendered and became exhibit R1.  The letter is significant because it conflicts with order 6 made by me on 27 November 2014, which specifically did not provide a venue for the hearing and specified that it was the responsibility of the parties to check the court list to confirm the location of the hearing.  The order was made in those terms because of my expectation that the Court was likely to move from Goulburn Street to William Street in the interim.

3. When the hearing today commenced, I drew to the applicant’s attention paragraph 1 of his affidavit and asked if he had the letter that he appeared to be referring to in that paragraph.  He appeared confused, and said that there was no letter.  He was then shown the letter which became exhibit R1.  He denied ever having seen it.  In view of that development, I formed the view that further exploration of the applicant’s reasons for seeking reinstatement was required.

4. The Minister’s solicitor indicated a change of position and sought the opportunity to test the applicant’s evidence.  He was cross-examined on his affidavit.  Several things emerged from the applicant’s evidence.  The first is that the applicant has not lived at his nominated residential address since this matter has been before the Court.  That address is occupied by a friend, Mr Lv.  Further, the postal address nominated by the applicant is also that of Mr Lv.  Mr Lv has been assisting the applicant with his application to the Court, but the applicant denies that he is a migration agent.

5. The applicant stated that on 10 November 2015 he attended court at Goulburn Street and, on finding no one there, contacted Mr Lv.  Mr Lv then located a letter sent from the Minister’s lawyers which advised correctly of the venue for the hearing at William Street.  The applicant was shown annexure A to the affidavit of Rachael Nadine Fresta, made on 9 September 2015.  That was a letter dated 3 November 2015, sent to the applicant at his nominated residential and postal addresses, which informed him correctly that the venue for the hearing was court 13.1, level 13, 80 William Street, Sydney.

6. The applicant denied having seen that letter, although he was willing to concede the likelihood that that was the letter Mr Lv had referred to when he spoke to him on the telephone.  Annexure B to the affidavit is a courier receipt for the hand delivery of the letter to the residential address.  That receipt indicates that the letter was put under the door.  The applicant conceded that it was entirely possible that Mr Lv had received the letter, and may have been at fault in not telling the applicant about it until 10 November.

7. The applicant is perfectly entitled to have a friend assist him with his application to the Court.  However, if he chooses to put his affairs in the hands of such a friend, he bears the risks that accompany such an arrangement.  The applicant represented at the first return date of his show cause application that at least the residential address he provided with his show cause application was his.  That was not correct.  Today the applicant advised a residential address in Canberra based upon his driver’s licence.  I accept that that is where he is currently living.  He claims that he has had no stable address, but admitted that he had been living at the Canberra address for a number of months. 

8. In my view, the applicant is substantially the author of his own misfortune in missing his court hearing on 10 November.  He was untruthful as to where he was living.  He did not make a reliable arrangement with his friend, Mr Lv, in order to find out where the hearing would be, before he attended the Court in Goulburn Street.  He did not comply with the order I had made requiring the parties to check the court list to determine the venue for the hearing.  He could not have been misled by the letter dated 28 November 2014 as he had not received it and knew nothing of it.

9. In the circumstances, I am not satisfied that the applicant has satisfactorily explained his absence from Court on 10 November. 

10. There are circumstances in which the legal merit of an application is so strong that it should outweigh any lack of substance in the explanation for non attendance.  This is not such a case.  I explored with the applicant, in oral argument, the grounds for review advanced in his show cause application.  He was not able to expand upon those grounds, except to make two simple points.

11. The first was that the Tribunal had simply relied upon the decision of the delegate.  The second was that the applicant needs more time to gather evidence to support his protection visa claims.  The first assertion is answered by a simple reading of the Tribunal decision; the Tribunal plainly reviewed independently the applicant’s claims.  The applicant was probably at some disadvantage because he had failed to attend the interview before the delegate to which he had been invited.  He was not able to persuade the Tribunal that his claims of past harm were true. 

12. As to the concern of the applicant that he needs more time to gather evidence to support his protection visa claims, that cannot bear on any assessment of the validity of the Tribunal decision. 

13. The Minister’s written submissions filed before the hearing on 10 November 2015 otherwise deal with the grounds of review advanced in the show cause application.  I agree with those submissions which, in my view, underscore the lack of merit in the show cause application.   

14. The first ground appears to allege a breach of s.424A of the Migration Act 1958 (Cth) (Migration Act). I do not consider that the Tribunal relied on any “information” that enlivened its obligations under s.424A.

15. The Tribunal’s findings were based on inconsistencies and implausibilities in the applicant's own evidence, given in his application form, his statement submitted to the Tribunal and at the Tribunal hearing. The only other information relied upon was country information.

16. Pursuant to s.424A(3)(b) and (ba) the Tribunal was not required to put information to the applicant that the applicant gave for the purpose of the application for review or that he gave during the process that led to the decision under review.

17. Pursuant to s.424(3)(a) the Tribunal was not required to put information that is not specifically about the applicant, but about a group of people, such as country information.

18. It is well established that the Tribunal is not required to put its thinking process to the applicant for comment pursuant to s.424A. Nevertheless, it is clear from the Tribunal decision that the Tribunal’s concerns with the applicant's evidence were discussed with him at the Tribunal hearing. In this respect, the Tribunal complied with its obligation under s.425, and the applicant was on notice of the issues on which the review would turn.

Ground 2

1. The second ground alleges a breach of natural justice. Without particulars it is unclear what the breach of natural justice asserted is.

2. I cannot discern any breach of the Tribunal’s statutory obligation during the review process.

3. Pursuant to s.425 of the Migration Act, the applicant was invited to a hearing as the Tribunal could not make a favourable decision on the material which was before it.

4. The Tribunal’s hearing invitation complied with all the statutory and regulatory requirements.

5. At the hearing the Tribunal raised with the applicant the issues dispositive of the review and as discussed above there was no “information” in the terms of ss.424A or 424AA requiring disclosure.

Ground 3

1. The third ground misunderstands the findings of the Tribunal.  It asserts that the Tribunal failed to consider that the Chinese government persecutes all Falun Gong practitioners, despite their level of knowledge of Falun Gong.

2. The Tribunal accepted at [24] that the Chinese government persecutes Falun Gong practitioners.  However, based on what the Tribunal considered to be an inadequate level of knowledge of Falun Gong, and other concerns with the applicant's evidence, the Tribunal found that the applicant was not a Falun Gong practitioner at all, and rejected all of his claims.

3. Accordingly, this ground cannot be made out.

4. I conclude that the interests of the administration of justice do not call for the reinstatement of the show cause application.

5. I will order that the Application in a Case filed on 10 November 2015 is dismissed.

6. In consequence of the dismissal of the application in a case, the Minister seeks an order for costs, fixed in the sum of $1,100.  The applicant observed that it seemed to him that the Minister’s delegate, the Tribunal and the Court were all of the same mind and that there was nothing further he could say.

7. I will order that the applicant is to pay the first respondent’s costs of and incidental to the Application in a Case, fixed in the sum of $1,100.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  7 December 2015