SZVQW v Minister for Immigration & Border Protection

[2015] FCCA 1360

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVQW v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1360

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.65, 426A

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: SZVQW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3182 of 2014

Judgment of: Judge Emmett

Hearing date: 22 May 2015

Date of Last Submission: 22 May 2015

Delivered at: Sydney

Delivered on: 22 May 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Ms Nicole Maddocks (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3182 of 2014

SZVQW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 17 November 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 22 October 2014 and handed down on 23 October 2014 (“the RRT”).

2. On 12 March 2015, the applicant attended a directions hearing before a Registrar of the Court at which time the applicant was given leave to file and serve an amended application, further evidence and written submissions in support of his application by 15 May 2015.

3. The matter was otherwise set down for a show cause hearing this morning pursuant to r.44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”).

4. 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.”

5. 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.”

6. The background to this matter and the RRT’s decision are set out in the first respondent’s written submissions as follows:

   “Background

   3. The applicant is a male citizen of China born on 27 September 1969.[1] He arrived in Australia on 13 May 2013.[2]

   [1] CB 1, 28

   [2] CB 29, 43

   4. The applicant applied for a Protection (Class XA) visa on 21 August 2013.[3] His claims were set out in a statement accompanying the application.[4]

   [3] CB 1-25

   [4] CB 26-27

   4.1 The applicant claimed to fear persecution by the Chinese government as a result of a land dispute.  He claimed that he purchased a bungalow in Gucheng County in July 2007, and that he was notified by the Office of Urban House Dismantling and Relocation that a developer intended to build some residential buildings on his land in October 2009. 

   4.2 The applicant claimed that he refused to leave after finding out that the compensation payments to those affected by the proposed development were uneven.  He also claimed that the Office of Urban House Dismantling and Relocation had contacted his brother's company and ordered the company to temporarily suspend his brother's employment until the applicant signed the dismantling and relocation agreement. 

   4.3 The applicant claimed that he was forced to move and sign the agreement in February 2010, following which he petitioned to the Hengshui Municipal Government in 2010 and to the Hebei Provincial Government in Shijazhuang in August 2012. 

   4.4 The applicant claimed that his petition letter submitted to the Hebei Provincial government fell into the hands of the local Gucheng Country government, and that on 3 January 2013, he was forcibly taken to the police station.  He claimed that he was questioned and held in custody for 7 days for not signing an affidavit which stated that he would never again report the Gucheng Government to the higher authorities.  

   5. The applicant failed to attend his interview scheduled with a delegate of the first respondent for 14 February 2014 (see [10]).

   6. The application was refused on 17 February 2014.[5]

   6.1 The delegate refused the application on the basis that there were a number of unresolved matters arising from the applicant's written claims (which were set out in detail[6]), there had been no opportunity to discuss these with the applicant, and for reason that the applicant had not provided any reason as to why he could not attend the scheduled interview. 

   [5] CB 42-50

   [6] CB 46-47

   7. The applicant applied to the RRT for review of the delegate's decision on 12 March 2014.[7] The applicant attached a copy of the delegate's decision to his application for review.[8]

   8. The RRT wrote to the applicant on 29 July 2014 inviting the applicant to attend a hearing on 21 October 2014.[9]  The letter was sent by registered post to the mailing address given by the applicant on his 'Application for Review'.[10]

   9. The applicant did not reply to the letter and the letter was not returned to sender (see [15]).

   10. The applicant did not attend the hearing on 21 October 2014.[11]

   11. The RRT proceeded to make its decision on 22 October 2014[12], without taking further action to enable the applicant to appear before it, pursuant to section 426A of the Act (see [16]).

   12. By email dated 23 October 2014[13], the RRT sent a letter to the applicant notifying him of the outcome of its decision on 23 October 2014.[14]

   [7] CB 51-52

   [8] CB 55-63

   [9] CB 66-67

   [10] CB 52; affidavit of Nicole Marie Maddocks affirmed on 1 April 2015 (Maddocks Affidavit) at Annexure A

   [11] CB 73-75

   [12] CB 78-84

   [13] CB 76

   [14] CB 77

   The RRT's decision

   13. The RRT found that the information provided in the applicant's written claims was not sufficiently detailed to enable it to be satisfied that the applicant faced a real chance of persecution for a Convention reason or that there were substantial grounds for believing that the applicant would face a real risk of significant harm as a result of being removed from Australia to China (see [19]).  Specifically, the RRT found that there was insufficient information before it in relation to the claimed development of the applicant's property by a developer and the claimed appropriation of the land (see [21]). 

   14. The RRT concluded that the applicant did not satisfy the criteria for grant of the visa in section 36(2)(a) or in section 36(2)(aa) of the Act (see [23], [24]).”

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

8. The applicant confirmed that he had not filed any further documents in support of his application, and confirmed that he relied on the grounds of his initiating application filed on 17 November 2014, which are as follows:

   “1. I am scared to return back to China because I am afraid to encounter further persecution from Chinese authority. The reason why I failed to attend the Tribunal hearing was because I remembered the wrong time. Therefore, on the hearing date, I was not in Sydney. When I realised the mistake I have made, I decide to apply for a review to Federal Court of Australia and hope that I can have another chance to seek fair justices.

   2. One of the reasons why RRT refused my application was because RRT Member believed Chinese citizens are allowed to write letters of complaint at special petition bureaus under China’s petition system. This is not true and it is a lie. If RRT believes that official documents can be forged in China, why don’t they believe we are not allowed to make legal petition regarding the decisions we unsatisfied although it is legal according to official saying. Just like what I explained in my personal statement, after I lodged my petition letter to Shijazhuang City Hall, I was detained by the local police station for 7-day and monitored by the local committee. Where is the justice? If RRT member really believes it is legal for us to petition in China, how come I still encounter the detainment and restricted freedom after I was released! So please let the Federal Circuit Court considers my application carefully and gives me a fair judgment.

   3. Another reason why RRT refused my application was because I could not provide sufficient evidence to support my claim. My defence is that those petition materials were confiscated by the local police after I was arrested by them. Besides, my family and I were monitored after I was released, so I could not have chance to recollect the evidences. I secretly manage my escape to Australia with many difficulties, not even mention recollecting the evidences RRT should consider my situation carefully not just base on the evidence that I can’t provide.

   4. I hope that the Federal Circuit Court of Australia could consider my situation.”

9. Those grounds were interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds. The applicant had nothing further to say in support of those grounds.

10. The solicitor for the first respondent, Ms Maddocks, tended a bundle of documents identified at “Court Book” and filed on 11 March 2015, which was marked exhibit 1R. Exhibit 1R contains, inter alia, a copy of the RRT decision record.

11. In addition, Ms Maddocks read her affidavit, affirmed 1 April 2015, annexing documents which I accept show that on 29 July 2014, documents were sent to the applicant at the post office box identified by the applicant as his address for service in Australia. The RRT noted that the applicant failed to appear at the hearing and that the hearing invitation was not returned to sender.

12. The RRT also noted that there was no further communication received from the applicant by the RRT. The RRT noted that it carefully considered the circumstances of the case. In the absence of reasons for the applicant’s failure to appear at his scheduled hearing, in accordance with section 426A of the Act, the RRT decided to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.

13. There is nothing to suggest that the RRT did otherwise than comply with the statutory obligations in inviting the applicant to attend a hearing before it, and the applicant does not, himself, make any such allegation. Indeed, the applicant, in the grounds of his application, states that he failed to attend the RRT hearing because he remembered the wrong time and was not in Sydney at the time of the hearing.

14. In the circumstances, I am satisfied that the RRT complied with the statutory regime in inviting the applicant to attend a hearing, and that the applicant failed to attend that hearing. I am also satisfied that the RRT properly exercised its discretion under s.426A of the Act in deciding to proceed on the review without taking any further action to enable the applicant to appear before it.

15. The RRT identified with specificity the claims made by the applicant in his protection visa application, and also identified with specificity the country information to which it had regard in considering those claims.

16. Ultimately the RRT found that despite the written claims in the applicant’s protection visa application, the information provided was not sufficiently detailed to enable the RRT to be satisfied that the applicant faces a real chance of persecution for a Convention reason in China. Further, the RRT found that there are not substantial grounds for believing that is a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he would suffer significant harm.

17. Section 65 of the Act makes clear that if the applicant does not satisfy the relevant decision maker that he meets the criteria for a protection visa then the decision maker must refuse to grant the applicant a protection visa. The RRT found that it was not so satisfied. Those findings would appear to be open to it on the evidence and material before it, and for the reasons it gave.

18. To the extent that the applicant complains about country information to which the RRT had regard, it is well established that the country information that a Tribunal considers is a matter for the RRT and as is the weight it gives that information (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

19. The applicant’s other complaint is that he was unable to provide sufficient evidence to support his claim. While that may be so, it does not reflect in any jurisdictional error on the part of the RRT. The evidence and material that the applicant put before the RRT in support of his claims was a matter for the applicant.

20. 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.

21. 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 17 November 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:              2 June 2015