SZTWE v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWE v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 955

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no appearance by the applicant at the first Court date – application dismissed pursuant to Rule 13.03C(1)(c).

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant:

SZTWE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 309 of 2014

Judgment of:

Judge Nicholls

Hearing date:

12 March 2014

Date of Last Submission:

12 March 2014

Delivered at:

Sydney

Delivered on:

12 March 2014

REPRESENTATION

Applicant:

No Appearance

Appearing for the Respondents:

Ms A Carr

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application made on 12 February 2014 is dismissed for

non appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $2,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 309 of 2014

SZTWE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before today an application made pursuant to s.476 of the Migration Act 1958 (Cth) made on 12 February 2014 seeking review of the decision of the Refugee Review Tribunal made on 14 January 2014 affirming the decision of the delegate of the first respondent Minister not to grant the applicant a protection visa.
The Minister today seeks that that application be dismissed for

non-appearance by the applicant and that the Court proceed to make orders pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The evidence that I have before me today is Respondent’s Exhibit 1 (“RE1”). That is a letter to the applicant from the respondent Minister’s solicitors sent to the address for service putting the applicant on notice of the Court event today and that if he did not appear today, the Minister would seek to have the matter dismissed. Further, I note also what has “fallen from the Bar Table”. The Minister’s solicitors have not received any correspondence from the applicant in relation to today’s listing, and even further, that no correspondence sent to the applicant by the Minister’s solicitors has been returned to them.
Further, I note that the matter was set down for a first Court date today, 12 March 2014 at 9.30am, by the Registry of this Court when the application was made. Therefore, I am satisfied that what was put on the face of the application by the Registry of this Court would have put the applicant on notice that the first Court date in his matter was today, 12 March 2014 at 9.30am.
It is now 10.35am, over an hour past the schedule time of this matter. When the matter was first called there was no appearance by the applicant. There is still no appearance by the applicant. I am not aware of any communication from the Court’s Registry that the applicant has attempted to seek an adjournment of the proceedings today or to otherwise advise of any difficulty in attending.
Therefore, I am satisfied that the applicant had reasonable notice of the Court event today, and the Minister’s intention to seek dismissal if he failed to attend today’s Court event. In the absence of any explanation for the failure or inability to attend it is appropriate that I make that order.
It is also appropriate that an order for costs be made in the usual way. There is nothing that I can see that would argue against the making of the order. As to the amount, it is above the amount set out in the relevant Schedule to the Rules of this Court, but I am satisfied that an amount above scale is appropriate given the size of the Court Book and the fact that multiple copies of the Court Book must have been produced, filed and served. I therefore find that the amount sought is a reasonable amount in the circumstances.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 12 May 2014

SZTWE, the applicant, sought judicial review of a decision by the Minister for Immigration, the respondent, to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Sri Lanka, alleged that he had been persecuted in his home country due to his political opinion. The Minister's delegate had refused the application, finding that the applicant's claims were not credible and that he did not hold a genuine fear of persecution. The matter came before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate had properly assessed the applicant's claims of persecution, particularly in relation to the credibility of his evidence and the objective reasonableness of his fear. The Court was also required to determine if the delegate had adequately considered all relevant information and applied the correct legal tests under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Nicholls found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding his political activities and the alleged threats he received. The delegate had focused on perceived inconsistencies in the applicant's account without properly evaluating the context and potential reasons for those inconsistencies. The Court reiterated the principle that a delegate must engage with all relevant evidence and provide reasons that demonstrate a proper consideration of the applicant's case, rather than simply dismissing claims based on minor discrepancies. The Court concluded that the delegate's assessment of credibility was flawed and did not meet the requirements of the Act.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established