SZUIE v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The Applicant in this proceeding is a citizen of China. 2 He arrived in Australia in November 2011. 3 In July 2013 he applied to the Department of Immigration and Citizenship (as it was then known) for a Protection (Class XA) Visa. An interview with a delegate of the Minister was apparently organised but the Applicant did not attend. The application was refused in December 2013. 4 An application for review of the delegate's decision was then filed with the Refugee Review Tribunal. Again, the Applicant was invited to appear before the Tribunal. Again the Applicant failed to appear. In April 2014 the Tribunal published its reasons for affirming the delegate's decision to not grant the Protection Visa. Those reasons recorded, in relevant part that: … The Tribunal has considered the applicant's claims in his statement to the Department. Had the Applicant availed himself of the opportunity to attend a hearing, the Tribunal would have explored with the applicant his claims relating to his practise of Falun Gong in China and whether he has engaged in any Falun Gong activities in Australia. The Tribunal would have also sought to explore why the applicant came to Australia on a Student visa, whether he studied in Australia and why he delayed lodging the application for protection for some 18 months following his arrival in Australia if he had been detained and severely mistreated in China as he has claimed. Without the opportunity to explore the applicant's claims in significantly greater detail at a hearing, the Tribunal is not satisfied on the basis of the applicant's statement to the Department that he is a Falun Gong practitioner or that he has been harmed and mistreated, shunned by neighbours/friends or lost the contract for his land as a result of his practise of Falun gong in China. The Tribunal is not satisfied, therefore, that the applicant has practised or intends to practise Falun gong in Australia or that he will seek to do so if he returns to China. The Tribunal is not satisfied, therefore, that the applicant has practised or intends to practise Falun Gong in Australia or that he will seek to do so if he returns to China. The tribunal is not satisfied, therefore, that there is a real chance that the applicant will suffer harm if he returns to China now or in the reasonably foreseeable future as a result of any association with Falun Gong. The reasons for the Tribunal not being "satisfied" do not fail to "disclose any material by reference to which a rational decision-maker could have evaluated" the claims being made: cf. Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [72], (2010) 187 FCR 362 at 384 per Kenny J. The Tribunal's lack of satisfaction was linked back to the Applicant's failure to attend an interview and assist the Tribunal in its review functions regarding areas of concern that it had identified. 5 On 13 May 2014 an Application for judicial review was filed in the Federal Circuit Court of Australia. The grounds upon which judicial review was sought were expressed (without alteration) as follows: 1. RRT HAS DESCRIMINATIO ON ME, FAILED TO CONSIDER MY REAL SITUATION. 2. RRT AND DIAC ARE UNFAIR TO ME. That Court called upon the Applicant to "show cause" why his Application should not be dismissed. The Applicant's explanation for failing to attend either the interview before the delegate or the Tribunal was that "he could not afford to". The Court proceeded to dismiss the Application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): SZUIE v Minister for Immigration & Anor [2014] FCCA 1701. 6 On 15 August 2014 the Applicant then filed an Application for extension of time and leave to appeal in this Court. The grounds of application were as follows (without alteration): 1. Reason for judgement Letter was received only on the 5th August 2014, and 28 days was assumed by me for the timeframe to appeal to Federal Cout. 2. Supporting documents for exemption of court fees was not gathered enough. It was supported by an Affidavit sworn by the Applicant which simply stated (without alteration): 1. I am the applicant of this application. I am a witness of all my experience of being persecuted in China. 2. All my evidence given in RRT interview and in front of Magistrate is true on my own knowledge and the best of my information and true belief on my inquiries. 7 The Applicant also failed to attend the hearing before this Court on 14 November 2014. He could not be contacted. He had been reminded of the time and place for hearing by the solicitors for the Respondent Minister by a letter dated 7 November 2014. The proceeding was stood down for a short period of time and the matter was then called outside the Court room. There was still no appearance. 8 The solicitor for the Respondent Minister asked for the application to be dismissed by reason of the Applicant's failure to attend. Rule 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules") confers power to do so. Dismissing an order under that power does not require any investigation of the merits of the claims being made: Pham v University of Queensland [2002] FCA 203 at [26] per Drummond J (Marshall and Finkelstein JJ agreeing); Randell v Minister for Immigration and Citizenship [2012] FCA 50 at [8] per Collier J. 9 Submissions had, however, been filed on behalf of the Respondent Minister in advance of the hearing. Rather than dismissing the Application pursuant to r 30.21(1)(a)(i), it has been considered more prudent to resolve it on its merits. If the Court considers the merits of the Application for extension of time and leave to appeal, the Applicant may at least have some satisfaction that his case has been properly considered. 10 Leave to appeal is required because the Federal Circuit Court Judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules. As r 44.12(2) makes clear, such a decision is an interlocutory decision: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7]. 11 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal to this Court is not to be "brought from ... an interlocutory judgment unless the Court or a Judge gives leave to appeal". An extension of time in which to seek leave to appeal is also required because r 35.13 of the Federal Court Rules requires an application for leave to appeal to be filed "within 14 days after the date on which the judgment was pronounced or the order was made…". 12 Some reservation is expressed as to whether satisfactory reasons have been provided for the failure to file an application for leave to appeal within time. Although the grounds of the Application for extension of time and leave to appeal claim that the Applicant apparently did not receive a "reason for judgment letter" until 5 August 2014, there is no reference to that fact in the Applicant's Affidavit. More importantly, the Applicant was present in Court when the Federal Circuit Court Judge dismissed his Application. Irrespective of any such reservation, however, the Application for extension of time and leave to appeal before this Court should be refused because the exercise of the discretion by the Federal Circuit Court Judge does not expose sufficient error to warrant leave to appeal being granted. 13 The Applicant failed to avail himself of the opportunity to attend an interview both before the Minister's delegate and the Tribunal. The Tribunal committed no error in proceeding to hear and determine the application for review upon the basis of such materials as it then had available to it. In the face of the Appellant's failure to attend, the Tribunal clearly had power to "make a decision on the review without taking any further action to allow or enable the applicant to appear before it": Migration Act 1958 (Cth) s 426A(1). Furthermore, the Tribunal properly explained its reasons for affirming the delegate's decision. 14 As the Federal Circuit Court Judge correctly pointed out (relying upon the observations of Reeves J in SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [21]) the Applicant had "passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims". 15 The Federal Circuit Court Judge did not err in exercising the discretion to dismiss the Application before him.