SZVXN v Minister for Immigration & Border Protection

[2015] FCCA 1737

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1737

Catchwords:
MIGRATION – Refugee Review Tribunal

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 44.12
Migration Act 1958 (Cth) ss.36, 426A.

Applicant: SZVXN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3626 of 2014

Judgment of: Judge Emmett

Hearing date: 24 June 2015

Date of Last Submission: 24 June 2015

Delivered at: Sydney

Delivered on: 24 June 2015

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondents: Ms Ada Wong
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3626 of 2014

SZVXN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an Order pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application filed on 24 December 2014, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support, the solicitor for the first respondent, Ms Wong, read the affidavit of Vanessa Sarah Page, affirmed 23 June 2015. Ms Page’s affidavit annexes a letter, dated 19 June 2015, from the solicitors for the first respondent addressed to the applicant at both addresses identified by the applicant on her initiating application. That letter enclosed by way of service a copy of the first respondent’s outline of submissions and provided for the applicant the date, time and location of today’s hearing. The letter also informed the applicant that if the applicant did not attend the hearing, the matter may be dismissed with costs for non‑appearance.

3. On 19 March 2015, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the Registrar made various procedural orders and the matter was listed for a hearing pursuant to r.44.12 of the Rules, today at 9.30 before me.

4. Those Orders also inform the applicant that if there is no appearance by or on behalf of the applicant at the time of any scheduled court event, the application may be dismissed without further notice. The Orders noted that the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.

5. There has been no communication received from the applicant either seeking an adjournment of today’s hearing or for any other reason.

6. It is now 10:39am. The matter has been called on at least two occasions outside, the most recent being less than five minutes ago.

7. In the circumstances, I am satisfied that the applicant is aware of today’s scheduled hearing and, for whatever reason, has chosen not to attend.

8. In considering whether to dismiss the application, I also have regard to the grounds of the initiating application, which are as follows:

   “I encountered persecution from Chinese government since I believe in Christian. I had no other way out. So I run away from China coming to Australia where I can feel religious freedom. I was informed by other Christian friends that lam entitled to apply refugee protection visa since because of my miserable experience ill China. So 1 submitted the application with my friends' help on 13/02/2014. However, my English is limited and I am not familiar with the legal system of Australia. In the meantime, I moved to different places, so I missed the interview letter from Department of Immigration. Besides, I do not have enough money to engage a lawyer or migration agent to help me apply the visa, so I do not know which forms I should fill in when I changed the address. Although some of my friends understand English, they are not professional after all. I am so regret that I missed two interviews. But I do not want to give up my right to fight for my religious freedom and chance to serve God.

   Therefore, I hope that the Federal Court of Australia can give me another chance to seek justices. Your honour, please consider my situation carefully. It is not easy for a woman coming all the way down to Australia with miserable backgrounds and experience. I also feel disappointed when I was told that one of the reasons that RRT rejected my application was that they suspected my credibility of personal statement and experience. When I encountered persecution on, all I had to do was escape away from China as soon as possible. So I did not have enough time to bring relevant materials to support my claim. Besides, I do not dare to ask my family and friends in China to send me any evidence because I am afraid they would get involved for that. Thereby, Your honour, please consider my situation and background carefully and give me a fair judgement”

9. Those grounds do not identify an error capable of review by this Court. They instead seek to explain why the applicant did not attend a hearing before the Refugee Review Tribunal (“the RRT”).

10. A copy of the RRT’s decision record was attached to an affidavit of the applicant, affirmed on 8 August 2014 and filed in support of her initiating application on 24 December 2014. The RRT’s decision record discloses that the RRT purported to exercise its discretion pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”) to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it, having been satisfied that the applicant was duly invited to attend such a hearing.

11. The RRT’s decision record then discloses the various matters that the RRT would have discussed with the applicant in relation to her claims in more detail and states that, on the evidence, the RRT found the applicant’s claims to be vague as they presently stood.

12. In the circumstances, the RRT was not satisfied that the applicant met the criteria for protection either under s.36(2)(a) or s.36(2)(aa) of the Act. The RRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.

13. In all the circumstances, I am satisfied that the Order sought by the first respondent is appropriate.

14. Accordingly, the proceedings before this Court, commenced by way of application filed on 24 December 2014, is dismissed pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 7 July 2015