SZBEW v Minister for Immigration
[2005] FMCA 999
•18 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBEW v MINISTER FOR IMMIGRATION | [2005] FMCA 999 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – application dismissed for non attendance at hearing – application for reinstatement based on alleged sickness – applicant not believed – reinstatement application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425, 425A, 426A |
| Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v Yusuf (2001) 206 CLR 323 NACB v Minister for Immigration [2003] FCAFC 235 Paul v Minister for Immigration (2001) 113 FCR 396 VWST v Minister for Immigration [2004] FCAFC 286 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicant: | SZBEW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1604 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 18 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr B Cramer Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The Court directs that the applicant’s name is not to appear on the transcript of proceedings.
The reinstatement application filed on 19 April 2005 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the reinstatement application, fixed in the sum of $750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1604 of 2003
| SZBEW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 19 April 2005 seeking to set aside orders made by me on 15 February 2005. In those orders I dismissed an application to review a decision of the Refugee Review Tribunal (“the RRT”) with costs. The background to this matter is set out in written submissions prepared for what was intended to be a final hearing of the judicial review application prepared by Mr Johnson on behalf of the Minister. I adopt as background paragraphs 2-7 of those written submissions:
The applicant is a national of China, who claimed a protection visa on the basis that he feared persecution in China upon the basis of his involvement in Falun Gong.
There are no written submissions from the applicant. The application to the Court is very general and uses a feminine pronoun to describe the applicant – as though it has been uplifted from elsewhere. It asserts that the RRT ignored parts of the applicant’s claims, ignored relevant considerations, reached a decision that could not reasonably have been reached and reached a decision without reasonable or rational foundation – but makes no attempt to relate any of those broad claims to the RRT’s decision or reasons in this particular case. Ultimately, though partly clad in the language of jurisdictional error, it probably would only seek to cavil with the merits of the decision.
The RRT’s reasoning
It is convenient to first state how the RRT reached its decision.
The RRT noted (top court book, page 68) that the applicant did not attend the hearing. A letter had been sent to the applicant as envisaged by sections 425 and 425A of the Migration Act 1958 (“the Migration Act”) (court book, pages 55-56), but, despite indication that he would attend the hearing (court book, page 57), he subsequently did not do so – and there was no advice in that respect given to the RRT by the applicant or his agent (court book, page 68). In the circumstances, the RRT proceeded, as it was expressly entitled by section 426A of the Act, to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”. There was no application for an adjournment. The applicant makes no complaint about any of that; nor could he. The consequence was, however, that the RRT made its decision upon the written material that it already had before it and the country information that it referred to at court book, pages 68 and at pages 69-72 respectively.
The RRT simply was not satisfied that the applicant had a well‑founded fear of persecution, now or in the foreseeable future, upon return to China. That conclusion was based upon the following findings of fact within the domain of the RRT:
a)The RRT simply was not satisfied that the applicant “is a person with a record of activity in China which would make him a person of interest to the Chinese authorities upon his return” (court book, page 72.9). That was based upon the RRT’s view of the evidence available;
b)Nor was the RRT satisfied that the applicant continued to be a practitioner of Falun Gong after 1999 (when he signed a statement not to practise Falun Gong). The RRT further found that the applicant had not provided any evidence that he continued to practice Falun Gong activities in Australia (court book, pages 72.9-80.2). The applicant had been in Australia since 26 October 2002 (court book, page 65.1);
c)The RRT accepted that the applicant had been detained and tortured some three years before his departure from China and that this had been for Falun Gong activity (he then being released upon signing a statement renouncing Falun Gong practices and teachings)[1]. The RRT also assumed in the applicant’s favour that he had been dismissed by his employer for being a Falun Gong leader in the organization in which he worked[2]. The RRT observed, however, that there was no claim of further harm until the applicant left China some three years later. That length of time without further harm was found by the RRT to lead to the conclusion that, when he left China, the applicant “was not a person of critical interest to the authorities”;
d)Further, the RRT found that, were that last finding not correct, “it would have been virtually impossible for the applicant to obtain a valid Chinese passport and the necessary exit documentation from the Chinese authorities, which he obtained in October 2000, well after his detention and alleged dismissal and two years before he actually left China;
e)The delay in leaving China was another reason why the RRT found that the applicant did not have a well-founded fear at the time he left (court book, pages 73.9-74.1)
The RRT appears to have accepted that the applicant thought that he had a well-founded fear (court book, page 73.2 – “the applicant has subjectively a well-founded fear of persecution”), but it is clear from the Tribunal’s reasons at court book, pages 73-74 that it did not accept that the applicant’s fear was in fact well-founded. Also, the RRT found (court book, pages 73.9-74.1), though it was not in any way essential to its disposal of the matter, that the applicant’s delay in leaving China caused it to conclude that the applicant “did not fear serious harm or mistreatment” at that time.
[1] court book, pages 73.3-73.5
[2] court book, pages 73.5-73.7
The applicant did not attend the final hearing of his application on
15 February 2005. I dismissed his application with costs on account of that non-attendance pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
The application for reinstatement is supported by an affidavit filed on the same day by the applicant. In that affidavit the applicant states that he failed to attend the hearing on 15 February 2005 because he was unwell. He states that he stayed in bed for four days because he was running a temperature of 39 degrees celsius. I asked the applicant to give evidence in relation to his affidavit and I asked him a number of questions about it. The applicant told me that a friend wrote the affidavit on the basis of what he had dictated in the Chinese language. He conceded that the affidavit is not correct in stating that he was in bed for four days. The applicant confirmed that he was in bed for only one day, although he felt unwell for about three days beforehand.
He stated that he was too sick to work for four days and spent
15 February 2005 in bed with a fever. I asked the applicant why he failed to contact the Court to advise that he was unwell in advance of the hearing. He stated that he did not do so because he only speaks Chinese. It did not occur to him to seek assistance from the Telephone Interpreter Service. I also asked the applicant if he consulted a doctor about his illness. He said that he did not because he does not have a Medicare card. I inferred from that that he did not want to spend money on medical assistance. Instead a friend went to a chemist to get him medicine. The applicant said that the medicine was big, white round tablets but he could not recall what they were. He also said that he used some Chinese herbs that he had at home.
I asked the applicant when he became aware that his judicial review application had been dismissed. He thought that this was two or three weeks after 15 February 2005. I asked him why he had delayed a significant period after that time before filing his reinstatement application. The applicant did not think that he had delayed significantly. I asked the applicant if he had anything to add. He said no and that he had put before the Court everything that he wished in relation to his principal judicial review application.
In submissions, after completing his evidence, the applicant said that he would like to stay in Australia and that he fears harm as a Falun Gong practitioner should he return to China. He stated frankly that he was never a person of prominence within the Falun Gong movement in China but simply a practitioner. He had no evidence that he could use to verify his practice of Falun Gong on China. He nevertheless is concerned that his practise of Falun Gong will be a problem for him if he is required to return to China.
The reinstatement of an application following dismissal for non appearance should not occur as a matter of course. The authorities indicate that exceptional reasons need to be advanced. I would need at least to be satisfied that there was a sufficient explanation for the non attendance of the applicant at court on 15 February 2005. I would also need to be satisfied that there would be some useful purpose to be served in reinstating the application.
I am not satisfied that the applicant has properly explained his non attendance at court on 15 February 2005. A court fixture is not an invitation to a tea party. It is a very important matter and the applicant knew that he needed to attend. He made no effort to contact the Court. He could, if he wished, have contacted the Court using the assistance of the Telephone Interpreter Service. If the applicant was able to have friend go to a chemist to buy him medicine, he could surely have arranged for a friend to contact the Court. He made no attempt to contact the Court. Neither did he take the precaution of seeking a medical opinion about his condition which might have enabled him to produce some expert evidence of illness. The Court is left simply with the applicant's assertion that he was too sick to attend.
I am also concerned that the applicant delayed for at least one month after he became aware of the dismissal of his judicial review application before seeking to reinstate it. He was advised of that dismissal by letter from the Minister's solicitors dated 7 March 2005.
Even if I had been persuaded that the applicant had advanced a sufficient explanation for his non attendance on 15 February 2005, I would still not have reinstated the judicial review application. As is apparent from what the applicant told me this afternoon from the bar table, he is concerned about the merits of the decision of the RRT. The Court has no jurisdiction to decide whether or not the applicant should receive a protection visa. That is a matter for the Minister and the RRT. The applicant could have only succeeded in his judicial review application if he had been able to point to some jurisdictional error in the decision of the RRT.
For the reasons set out in paragraphs 8-14 of Mr Johnson's earlier written submissions, there was no jurisdictional error:
The merits of the application are for the Tribunal alone; the role of the Court is confined to jurisdictional error (e.g. WAJW v MIMIA [2004] FCAFC 330 at [27], noting also that general findings may encompass all of the evidence before the Tribunal and observing, with reference to MIMA v Yusuf (2001) 206 CLR 323 at [67]-[68], that the Tribunal is not obliged to cite each piece of evidence before it.).
Here, there is no legal error in the Tribunal’s disposal of the matter – jurisdictional or otherwise.
There was no failure to deal with the applicant’s claims. They were fairly summarised by the Tribunal at [court book, page] 68 and later dealt with as explained above. Nor was there a failure to deal with a relevant consideration – that being some integer required by the legislation itself to be dealt with (not merely some item of evidence). Here, having made the findings that it did make, nothing further was required from the Tribunal to lawfully complete its exercise of jurisdiction.
In Paul v MIMIA (2001) 113 FCR 396, Allsop J at [78]-[79] (Heerey J agreeing at [1]), described a ‘relevant consideration” as “a consideration made compulsorily relevant by the Act or regulations” (referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24) and proceeded to say: “…Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction…they do not…encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed”.
Allsop J made similar comment in Htun v MIMIA (2001) 194 ALR 244 at [42] (Spender J agreeing at [1]), where his Honour spoke of a “failure merely to attend to evidence, even probative evidence”, as opposed to an integer of a claim for asylum (such as a separate Convention basis) was a mere “factual error”.
It clearly cannot be said that the Tribunal’s decision was one that no reasonable person could reach, as the above analysis shows.
Nor were the Tribunal’s reasons illogical or irrational. In any event, on the authorities as they stand, illogicality would not amount to jurisdictional error (VWST v MIMIA [2004] FCAFC 286 at [15]-[18] per Kiefel, Marshall and Downes JJ, applying NACB v MIMIA [2003] FCAFC 235 at [24]-[30])
No useful purpose would be served by reinstating the judicial review application because the judicial review application would in any event have been dismissed.
Accordingly, I dismiss the reinstatement application filed on 19 April 2005.
Mr Cramer seeks an order for costs fixed in the sum of $750 in respect of the reinstatement application. I agree that that is a reasonable sum. The applicant said that he would pay the costs but might need time to pay. As I have indicated to the applicant, that is a matter that he can discuss with the Minister's legal advisers.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the reinstatement application, which I fix in the sum of $750.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 July 2005
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