SZVRY v Minister for Immigration

[2016] FCCA 1018

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1018

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in finding no well-founded fear of persecution – application seeks merits review of Tribunal decision – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.426A, 441C, 476

Cases cited:
AZAFB v The Minister for Immigration and Border Protection (2015) FCA 1383

First Applicant: SZVRY

Second Applicant: SZVRZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3252 of 2014

Judgment of: Judge Street

Hearing date: 2 May 2016

Date of Last Submission: 2 May 2016

Delivered at: Sydney

Delivered on: 2 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms N Maddocks
DLA Piper

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The first and second applicants pay the costs of the first respondent fixed in the amount of $5200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3252 of 2014

SZVRY

First Applicant

SZVRZ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Tribunal on 28 October 2014, affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.

2. The first applicant was found to be a citizen of China, and her claims were assessed against that country.  The first applicant applied for a visitor (FA-600) visa on 23 April 2013, which was approved on 13 May 2013.  The first applicant arrived in Australia on 27 May 2013.  It was not until 23 August 2013 that the first applicant lodged an application for protection. 

3. The first applicant claimed to fear harm in China, for the reason that she and her husband operated a printing shop in China, and agreed to carry Falun Gong material, or related materials, as a result of which she alleges she was detained and tortured.  The first applicant also claimed to fear harm because of her participation in Falun Gong activities in Australia.  The delegate found that the applicants’ claims about being arrested and having to report to the police station were fabricated.  The delegate did not accept that the first applicant was involved in printing and photocopying materials for Falun Gong, as claimed.  The delegate did not accept that the first applicant was a genuine Falun Gong practitioner. The second applicant made his claim for protection on the basis that he is a member of the same family unit as the first applicant.

4. The application for review was lodged on 21 June 2014. The application provided a residential address, as well as a mobile number and an email. Prior to the proposed hearing date of 27 October 2014, the Tribunal sent a letter to the residential address of the applicants, as identified on her review application. That letter included information about the Tribunal’s hearing, as well as a response to hearing invitation. There was no reply by the applicants to the response to hearing invitation.

5. Evidence was adduced on behalf of the first respondent as to the postal dispatch of the letter dated 26 September 2014, in light of the evidence of postal dispatch, the applicants were taken to have received the letter, pursuant to s.441C of the Migration Act 1958.

6. At the commencement of the hearing the Court explained to the first applicant that the nature of the hearing was to determine whether the decision of the Tribunal was affected by relevant legal error. 

7. The Court explained relevant legal error meant either an excess of statutory powers by the Tribunal, or a denial of procedural fairness.  The Court explained that he proposed to identify the evidence, and then hear from the first applicant, and then from the solicitor for the first respondent, and then to hear the first applicant in reply.  The first applicant confirmed that she understood the nature of the explanation given by the Court.  The second applicant was not present. 

8. On 4 February 2015 a Judge of the Court fixed the matter for hearing, and provided the applicant with an opportunity to file an amended application, affidavit evidence, and submissions.  No such documents were filed.  The grounds in the application are as follows:

   1. Now I am scared to return back to China because my husband and I are afraid to encounter further hit and persecution by Chinese government. In the past, my husband and I have experienced arrest by Chinese police and we lost the business license of operating a typing and copying shop since we printed materials related to Falun Gong which is illegal and treated as heresy in China. We had no other way out, so we came all the way down to Australia for seeking help. However, the delegate of the minister did not believe our true experience and suspected credibility of our personal statement. We feel very disappointed and unfair towards this decision.

   One of the reasons why RRT refused our application is because my husband and I failed to attend the interview. This is because we remembered the wrong time of the interview. Part of the reason is that our English is very limited and we do not have sufficient money to approach a lawyer or an agent. So we only can complete this application by ourselves. When we received letter from department of immigration, we had to ask friends who understand English to help us. Therefore, when we received the letter of interview from RRT, we had to ask one of our friends to help us. After all, our friends are not professional, so he made a mistake to tell us the wrong time. Of course, we believed our friend did not mean to make the mistake. When we realized that we missed the interview, we were so upset. So we decided to apply a review to Federal Court of Australia and hope that we can have one more chance to get justices.

   2. Another reason why our application was refused is because they suspect the genuineness of us becoming Falun Gong Practitioner. Although we got involved with Falun Gong in China because we helped print the relevant materials, we believe in Falun Gong and actively participate in practicing after we came to Australia because we experience the great spirit given by Falun Gong and our soul get purified. However, this makes us even more scared to be back to China which will persecute us if we practice. So it is unfair for the delegate denied that we are the real Falun Gong Practitioner.

   3. Besides, the reason why our application was refused is because we could not provide enough evidence verify our claim. Your honor, please consider our situation and background. In China, we were law-abiding citizens who operated a small business to maintain our life and form a happy family. However, we suddenly encountered persecution and hit which we have never thought before, so what we wanted to do just run away from China. Therefore, we tried to get rid of the trouble as soon as possible and did not prepare any evidence before we left China. Now, we do not dare ask our family and friends to send us any evidence because we are afraid they will get involved by this. So please consider our situation carefully and give us a fair judgement

   4. We hope that the Federal Court of Australia can consider our situation carefully.

9. I accept the first respondent’s submission that grounds 1 to 4 seek an impermissible merits review, and do not disclose any jurisdictional error by the Tribunal. From the bar table, the first applicant said she did not receive the letter. When the contents of the grounds in the application were drawn to the first applicant’s attention, the first applicant confirmed that she and her husband forgot, and that they had received the letter from the department. 

10. I accept the first respondent’s submissions that this case is clearly distinguishable from the decision in AZAFB v The Minister for Immigration and Border Protection (2015) FCA 1383, as, first, it is clear that the applicants received the notification letter in accordance with the statutory regime. Secondly, this is not a case where there was a response to the hearing invitation, or any level of engagement by the applicants in response to the communications from the department sent on 23 June 2014 to the applicants’ address.

11. I accept the first respondent’s submission that, in the circumstances of this case, the decision of the Tribunal to proceed to determine the matter, given the failure of the applicants to attend at the proposed hearing date, was reasonable, and a proper exercise of power within s.426A of the Migration Act 1958. 

12. The first applicant identified that she had provided her mobile telephone number in the original application for review.  That does not, in my opinion, in the facts of this case, give rise to any unreasonableness by the Tribunal in deciding to proceed with the determination of the applicant’s application.

13. The Tribunal found it was not satisfied the first applicant had a well-founded fear of persecution for a Convention reason, and found it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to China there was a real risk that she will suffer harm. The adverse findings by the Tribunal were open and the application fails to disclose any jurisdictional error. Nothing said by the applicant from the bar table identified any jurisdictional error.  The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 May 2016