Jing Shu Li v Minister for Immigration & Multicultural Affairs

[1997] FCA 448

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No. NG 872 of 1996
)
GENERAL DIVISION	)

BETWEEN:		JING SHU LI Applicant
AND:		MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
CORAM:	EMMETT J
PLACE:	SYDNEY
DATED:	17 APRIL 1997

EX TEMPORE REASONS FOR JUDGMENT

This is an application brought under Division 2 of the Migration Act 1958 (Cth)(“the Act”). Section 486 of that Act confers on the Federal Court jurisdiction with respect to judicially reviewable decisions. The application is brought for review of a decision of the Refugee Review Tribunal given on 30 September 1996. There does not appear to be any doubt that the decision is a judicially reviewable decision within the meaning of section 475 of the Act.

When the matter was called on for hearing this morning there was no appearance for the applicant. That is consistent with correspondence which was exchanged between the applicant and the registry.  I will deal with that shortly when I outline the history of the proceedings.

The application was filed on 5 November 1996. No question appears to arise as to whether or not it was filed within the time limited by the Act. The proceedings were listed for direction on 5 December 1996 when there was no appearance by the applicant. An interpreter appeared on that occasion and indicated that he had been engaged to assist the applicant at the directions hearing but that the applicant was detained and was still “at the train station”. However, the applicant did not appear notwithstanding that the proceedings were stood down on that occasion..

On 12 December 1996 the Australian Government Solicitor wrote to the applicant at the address shown in the application referring to her failure to appear at the directions hearing on 5 December 1996 and informing her that the proceedings had been listed on 19 December 1996. They were listed for directions again on 19 December 1996. Once again there was no appearance from the applicant.  On 14 January 1997, the Australian Government Solicitor wrote again to the applicant informing her that the case had been listed for another directions hearing on 6 February.  The applicant was by that letter informed that the Minister would be asking the court to dismiss the application.  There was served with that letter a notice of motion seeking dismissal of the proceedings for want of prosecution pursuant to Order 30 rule 5 of the Federal Court Rules or alternatively on the basis that no reasonable basis of the application was disclosed pursuant to Order 20 rule 2 as amended by order 54B rule 5.

The court file shows that on 6 February 1997 the applicant appeared in person at the directions hearing.  Davies J granted leave to the respondent to file an affidavit of Gregory James Peek of 31 January 1997 and directed that the respondent file within three weeks any material that was before the decision-maker.  The application for summary dismissal was adjourned to the hearing date.

By letter of 12 February 1997 the registry notified the applicant at the address shown on the application of the hearing date fixed for today at 9.00 am.  The registry subsequently received a letter dated 26 March 1997 which appears to have come from the applicant which said as follows:

I wish to withdraw my application for court hearing of the matter, Ms Jing Shu Li v Minister for Immigration and Multicultural Affairs.

The only reason of my withdrawal is due to the expensive court fee which I am not able to pay as I have no mean to pay for it.  I believe I have been unfairly treated by the Immigration Department and the Tribunal.  Only the expensive court fee exclude me to obtain a fair judgment from your court.  The notification for hearing and the information sent by you was received only a few days ago.  Unfortunately I do not fall within the 4 categories of exemption of fees.

Since I am a refugee applicant I am not entitled to any social security benefits and to government subsidies.  I had attempted legal aid grant by consulting the legal aid office. I was told that the grant won't be available to me as the funding is tighten up. 

As the reasons mentioned above, I will not get a justice judgment from your court.  I am regret that I have to withdraw my application and that I have waste the court resources. Thank you very much for attending to my application.

Following receipt of that letter a deputy district registrar of the court wrote to the applicant referring to her letter of 26 March 1997 which was received in the registry on 3 April 1997 and drew the applicant's attention to the fact that there is provision to waive the fee if payment of the fee would cause financial hardship.  The letter enclosed a fresh form highlighted at the relevant part. It went on to say that, if the applicant was claiming waiver of the fee due to financial hardship, she was required to complete the remaining part of the enclosed form and return it to the registry where a registrar would consider the application.

Nothing appears in the file to indicate that the registry heard further from the applicant and I am informed by Mr Peek, the solicitor for the respondent, that there has been no communication on that subject received by the Minister.

Having considered the material before me this morning, I directed that the respondent endeavour to communicate with the applicant to inform her that the matter had been stood down to 2.15 today, to serve on her a further affidavit which had been sworn on 16 April 1997 and to inform her that the proceedings may be disposed of today by being dismissed.

On resumption at 2.15 this afternoon, a further affidavit of Gregory James Peek sworn today was filed in court and read.  Mr Peek deposed to have arranged for the dispatch by courier to the applicant at her notified address of a letter intended to comply with my direction.  The letter informed the applicant that the matter had been stood down until 2 pm this afternoon.  Mr Peek has informed me that he was in court at 2 pm and that there was no appearance from the applicant.

The letter went on to say that, if the applicant did not appear this afternoon, the application to the court may be decided in her absence and may be dismissed.  The letter otherwise appears to have complied with the direction which I gave this morning.

In the circumstances, notwithstanding the absence of appearance from the applicant, I consider that it is appropriate to deal with the proceedings.  Mr Peek has asked me either to dismiss the proceedings summarily or alternatively, to proceed to deal with the proceedings as on final hearing, notwithstanding the absence of the applicant.  In support of that second alternative, I have been provided with a written outline of the respondent's submissions on the merits of the application.  Those submissions are relevant not only for the application under Order 20 rule 2 but also for final disposition.

The application filed in the court specifies two grounds. The first is that the Tribunal did not observe procedures that were required by the Act and the regulations in connection with the making of the decision. That is a ground which would be permitted under section 476(1)(a) of the Act. However, the particulars of the ground to which I will return shortly do not indicate that the grounds are likely to be made out.

The second ground specified is that the Tribunal reached the decision by actual bias thereby suggesting section 476(1)(f) of the Act. Again the particulars of bias are less than adequate in that they do not appear to demonstrate actual bias, even if the facts alleged were made out. In considering the application, I have had regard to the affidavit of Mr Peek sworn on 16 April 1997 to which was annexed material indicating the course of the applicant's dispute with the Minister.

I had regard to that material to see whether there was any substance in the ground of alleged of failure to observe procedures required by the Act or the regulations. One matter which caused me some concern, although it is not a matter which is raised by the application itself, was the manner in which the Tribunal purported to satisfy the requirements of section 426(1) of the Act. Section 424(1) provides that if, after considering the material contained in documents given to the Registrar of the Tribunal under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.

Section 426(1) then provides that, where section 424 does not apply, the Tribunal must notify the applicant, (a) that he or she is entitled to appear before the Tribunal to give evidence and (b) of the effect of section 426(2).

Section 426(2) provides that the applicant may, within seven days after being notified under subsection 426(1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. 

I have read an affidavit of Mr Tuong Van Dang of 17 April 1997 in which it is said that a letter of 19 August 1996 was sent to the applicant by him on 20 August 1996.  That letter relevantly said as follows:

I refer to your application for the review of a decision refusing your refugee status.

The Tribunal has considered all the papers relating to your case but it is unable to make a favourable decision on this information alone.  Therefore you and any other person included in your application have a right to attend a hearing of the Tribunal to give oral evidence. 

A  hearing has been arranged for you and for any person included in your application who wishes to give oral evidence to the Tribunal:....

Reference was then made to the particulars of the time fixed.  The letter went on to say:

You must now do two things immediately:

1.TELEPHONE Tuong Van Dang on (O3) 9607 9181 to say whether you wish to have a hearing and to ask any questions you have.

2.  COMPLETE and RETURN the enclosed form to this office within seven (7) days of             the date on this letter.

After referring to the fact that the applicant may have an adviser, relative or friend attend a hearing, the letter went on to say:

You may also name any person you would like to give evidence to the Tribunal about your case. If you do this, you must also complete on the enclosed form a written statement outlining the evidence which the witness intends to give. The Tribunal will consider this statement but it does not have to take evidence from any of the witnesses named by you.

Please Note: Any new material that has become available must be provided to the Tribunal no later than seven (7) days before your hearing.

There was attached to the letter a form headed “Request for Hearing” which contained three items as follows:

Request for a hearing

I do not think it is necessary for the Tribunal to hold a hearing

I would like the Tribunal to hold a hearing to take oral evidence from myself

I would like the Tribunal to take oral evidence from the following witnesses at  a      hearing.

There then followed space for particulars of witnesses to be included, including the nature of the evidence that the witness would provide. 

I have some significant doubt as to whether that material strictly satisfies the requirements of section 426(1)(b). However, that is not a ground raised by the applicant. Further, section 426(3) provides that if the Tribunal is notified by an applicant under section 426(2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence, orally or otherwise, from a person named in the applicant's notice.

Thus, while there may be an argument that there has not been strict compliance with the requirements, the terms of the letter of 19 August 1996 and the enclosed form in substance draw the applicant's attention to the fact that there is provision for the applicant to give an indication to the Tribunal that the applicant would like some other person to give evidence.  However, while I am troubled by the failure to notify the applicant expressly that the applicant may give the Tribunal notice that the applicant wants the Tribunal to obtain oral evidence, the fact that the Tribunal is not required to obtain that evidence to some extent assuages my concern.

Apart from that question, the particulars of the ground as to failure to comply with the procedures of the Act and the regulations could not justify the making of any order favourable to the applicant. The assertion is that the Tribunal conducted the hearing in a very abrupt subjective and ignoring manner and it had no intention to believe anything the applicant stated, refusing to believe the fear an applicant had of being persecuted. There was in fact no hearing and therefore that assertion could not possibly be made out. There was evidence before me that applications in a similar form have been filed in other proceedings, thereby suggesting that the applicant employed a pro forma application which had no relevance at all to her case. There is no other indication of any procedures required by the Act or the regulations which were not complied with.

The applicant's response to the letter of 19 August 1996 was a letter received by the Tribunal on 27 September, 1996 relevantly saying as follows:

Thank you very much for your letter informing that an interview has been arranged for me on Monday, 30 September 1996.

However I am not prepared to attend this interview.  The reason is very simple. I am really scared. 

In the previous interview I answered a lot of questions.  Because of nervousness, I was unable to answer every question in a very clear way.  In my application for refugee status I stress that I fear that I will be persecuted should I return to China, however as for how I will be persecuted I would explain it as follows.

Then followed a number of assertions concerning the position in China.  There is no indication that the Tribunal failed to have regard to that letter, and indeed in the reasons for its decision the Tribunal referred to the receipt of that letter from the applicant. 

In the circumstances I am satisfied on the evidence before me at present that the ground in section 476(1)(a) has not been made out.

The particulars in the application of the ground of actual bias again referred to the conduct of "the hearing" and said that the hearing was conducted "in a very indiscreet manner, which was based upon actual bias of the Applicant."  Once again, it appears likely that the particulars were borrowed from some other application. In circumstances where there was no hearing, the particulars are of no relevance at all to the applicant's case.

The grounds in the application also said that the Tribunal “completely ignored the cumulative effect of the Applicant's experiences arranging (sic) from the Cultural Revolution to the 1989 pro-democracy movement”.  An examination of the reasons for the Tribunal's decision indicate that that is not so.  The reasons include the following. 

The Tribunal recognises that the appropriate test to be applied is whether the applicant faces a real chance of persecution for a Convention reason if she were to be returned to China.  A relevant consideration in determining that question, however, is what the country information shows to be circumstances that arouse the adverse interest of the Chinese authorities such that the applicant would face a real chance of persecution for reason of political opinion or for some other Convention ground.

The reasons say also:

Although it is palpable that the Chinese government remains seriously in breach of fundamental human rights it is also apparent from the evidence before the Tribunal that the pursuit of persons who were low profile activists in 1989 ceased some time ago...... there is no evidence of the authorities continuing to punish persons with a “low profile” who actively supported the pro democracy movement......

There is no material that would indicate however, that persons having a profile or history of activity such as the applicant’s would now face a real chance of persecution at the hands of the Chinese authorities. 

In reviewing all the evidence before it the Tribunal is not satisfied that the applicant encountered any employment difficulties at least due to her political opinion or to her alleged breach of China's “one child policy”.  Correspondingly the Tribunal is not satisfied that the applicant would encounter any difficulty in the future in employment for a convention reason.

In assessing the information available to it, in the light of the applicant's own profile, the Tribunal also finds there is not a real chance that she would encounter serious harm in China due to her support of the pro democracy movement.......

The reasons went on:

While accepting that the applicant may have encountered some discrimination due to her Korean ethnicity there is no material before the Tribunal that would indicate she encountered consequences that amount to persecution.  All the available material indicates that ethnic Koreans in China are well integrated and do not suffer serious discrimination.  The Tribunal notes that both the applicant's children have received a tertiary education. 

Reference is also made to notes contained in the International Migration Review in an article by Pyong Gap Min entitled “A Comparison of the Korean Minorities in China & Japan” (CIS 4092) saying that:

Koreans in China have maintained high levels of ethnic autonomy and positive ethnic identity.

The reasons concluded that:

In considering all of the circumstances of this case, including cumulatively, the Tribunal finds that there is not a real chance, as defined by the High Court in Chan's case that the applicant would face persecution for any convention reason if she were now to be returned to her country of origin.

There is nothing in the face of the reasons to suggest any bias on the part of the Tribunal and in the absence of any further evidence from the applicant a ground based on section 476(1)(f) is not made out.

In the circumstances I am prepared to dismiss the proceedings.  It may not matter whether I am acting under Order 20 rule 2, or whether I am treating the matter as having been dealt with on a final basis.  On the material before me I would dismiss the proceedings on either basis.  However, I would also order that the Minister notify the applicant of the court's decision that her application be dismissed and also draw the applicant's attention to the provisions of Order 35 rule 7(2)(a) in so far as that rule provides that the court may if it thinks fit set aside an order, even after the order has been entered, where the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order.

I will direct that that notification be effected by a communication which also draws attention to the contents of the deputy district registrars letter of 8 April 1997.  The orders that I propose are that the respondent notify the applicant in the terms I have just indicated by registered mail, that the proceedings be otherwise dismissed and that the applicant pay the respondent's costs of the proceedings.

I certify that this and the preceding ten pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Date:              17 April 1997

Appearances:

There was no appearance by the applicant.

Solicitor for the Respondent:  Australian Government Solicitor

Heard:            17 April 1997

Place:              Sydney

Decision:        17 April 1997