FEDERAL COURT OF AUSTRALIA

SZTLI v Minister for Immigration and Border Protection [2014] FCA 1181

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The appellant to pay the minister’s costs of the application, fixed in the sum of $2500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for an extension of time and for leave to appeal against orders made by the Federal Circuit Court (Judge Driver) on 12 May 2014. His Honour in those orders summarily dismissed an application for review of a decision of the Refugee Review Tribunal dated 27 September 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The appellant is a citizen of the People’s Republic of China. He entered Australia on 23 April 2011. His visa expired on 18 October 2011 and the appellant thereafter remained in Australia as an unlawful non-citizen. He made an application for a protection (Class XA) visa on 16 July 2012.

2    The appellant claimed in his statement in support of his application that he had a well-founded fear of persecution on political grounds by reason of his involvement in protests against steps taken by local government officials to acquire land in his home town. He claimed to have been arrested and tortured by the police. The Tribunal wrote to the appellant on 15 August 2013 advising him that it had considered all of the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal therefore invited the appellant to give oral evidence and present arguments at a hearing on 27 October 2013.

3    That invitation was to attend a hearing pursuant to s 425 of the Migration Act 1958 (Cth), but the appellant failed to attend. The Tribunal then proceeded to deal with the application in the appellant’s absence. The essence of the Tribunal’s reasons may be found at [13]-[15] of the decision record. The Tribunal found the appellant’s claims to be vague and lacking in detail. The Tribunal stated that the appellant provided only minimal information about the acquisition of land and his dealings with the local authorities. He provided information about the protest activities which the Tribunal regarded as minimal and inadequate.

4    The Tribunal also considered that the evidence provided by the appellant as to how the protest activities were organised and about his own involvement in the activities to be lacking in detail. The Tribunal was also concerned that the appellant had not provided any documentary evidence to support his claims. It considered that, while acknowledging that documentary evidence of such claims may not always be available, the circumstances in the present case were such that the appellant may have been expected to possess relevant documentary evidence.

5    Accordingly, the Tribunal observed at [15] of its reasons that, on the basis of “the very limited information available to the Tribunal”, it did not accept the appellant’s claims.

6    The appellant sought judicial review of the Tribunal’s decision on two grounds which the Circuit Court Judge described in [3] of his reasons as “template grounds”. When the matter came before the Circuit Court Judge, the appellant initially appeared on the application which was a show cause application and his Honour adjourned that application until 12 May 2014.

7    At that time the appellant apparently appeared by telephone and the Judge expressly warned him that, if he failed to attend the adjourned hearing, he should expect his application to be dismissed. Importantly, his Honour observed at [7] of his reasons that the appellant told him through an interpreter that he understood this to be the consequence. Notwithstanding that warning the appellant nonetheless failed to attend the adjourned hearing and his Honour exercised his power to dismiss the application on account of the appellant’s failure to attend.

8    The appellant lodged an application for an extension of time and leave to appeal on 20 June 2014. The application was supported by an affidavit sworn by the appellant in which he attempts to explain the reasons for delay in bringing the application. In his affidavit the appellant says that he was told by an officer of the Court that he could lodge his application within 28 days. That information, if given, was incorrect. But even if it was, nothing turns on this because the application for an extension of time and for leave to appeal was not lodged until 20 June 2014, some 20 days after the date which the appellant contends was given to him by the Court.

9    It seems to me, therefore, that the appellant has failed to provide a sufficient explanation for his delay. However, I would not be inclined to dismiss the application solely on that ground. Rather, the application should be dismissed on grounds which are substantive, namely, that nothing has been put before me to suggest that there is any possible argument that the decision of the Circuit Court Judge was attended by any doubt, nor, in my opinion, is there anything to suggest any jurisdictional error on the part of the Tribunal.

10    The grounds of review on which the appellant relies are stated in very vague and imprecise terms. He says first that the Tribunal member discriminated against him or failed to take all his evidence, real situation and claims into account and the Tribunal member was not fair to him.

11    The second ground is that the Federal Circuit Court did not “point out the Tribunal member’s error” and dismissed his application.

12    The first ground appears to be an attempt to rely upon an allegation of bias. That contention is entirely without substance. This is plain from all of the leading authorities on that question including the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127].

13    The second ground upon which the appellant relies does not raise any discernible ground of review capable of consideration by the Court.

14    The short answer to the whole of the matters upon which the appellant relies may be stated very briefly. I should mention first that the appellant appeared this morning without legal representation but he was assisted by a Mandarin interpreter. He submitted, from the bar table, that he did not know of the hearing time and missed the hearing. That seems to be a reference to the hearing before the Circuit Court Judge. The effect of what he told me seems to be that he informed the Circuit Court Judge that he needed time to obtain evidence to establish fraud on the part of his migration agent. However, he said that he did not have sufficient funds to be able to obtain legal representation or other assistance in order to obtain the evidence and appear before the Circuit Court Judge at the adjourned hearing.

15    Whether or not this is so, it is plain that the Circuit Court Judge expressly warned the appellant that, if he failed to appear on the adjourned hearing, his application would be dismissed. There was no reason why the appellant could not have attended the hearing before the Circuit Court Judge to explain any difficulties that he may have had in obtaining evidence. Nothing was put before me to suggest any answer to this fundamental point.

16    I can therefore see no error in the approach that was taken by the Circuit Court Judge in dismissing the application for review by reason of the appellant’s failure to attend. Nor is there any jurisdictional error in the approach taken by the Tribunal in proceeding to deal with the application in the appellant’s absence. This is clear from a number of authorities of the court. The reasons why this is so are succinctly stated in the reasons of Sundberg J and Hely J in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [15] to [16].

17    As their Honours there observed the statutory scheme under the Migration Act expressly contemplates that in particular circumstances an appellant will not attend a hearing including cases involving no fault on the part of the appellant. As their Honours said (at [16]):

“[n]otwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence”.

18    That is what occurred in the present case: (see [3] – [6]) above. For these reasons, as I said above, it seems to me, that no arguable grounds exist to suggest that the orders of the Federal Circuit Court Judge were attended by sufficient doubt. I therefore propose to make an order dismissing the application.

Associate:

Dated:    3 November 2014