SZDQE v Minister for Immigration
[2004] FMCA 1005
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDQE v MINISTER FOR IMMIGRATION | [2004] FMCA 1005 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
| Applicant: | SZDQE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1532 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms K Howey of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1532 of 2004
| SZDQE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 March 2004 and handed down on 27 April 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 10 December 2003 to refuse to grant the applicant a protection (Class XA) visa.
The applicant is a citizen of the People’s Republic of China and arrived in Australia on 28 September 2003. On 3 October 2003 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
At the Notice of Motion hearing on 2 November 2004 the respondent tendered and applied for an affidavit of Kirsty Howey sworn on
2 November 2004 (“the affidavit of Ms Howey”) to be admitted into evidence.
Background
The applicant is a female, born on 6 October 1956 from Shandong, the People’s Republic of China and is fluent in Mandarin. The applicant is married and prior to coming to Australia claimed her occupation was Vice General Manager. She claimed she commenced practicing Falun Gong in December 1998 as a result of her severe short sightedness. The applicant claimed she had to wear 400 degree glasses and without glasses she could not live in a normal way. She had tried many treatments and had numerous consultations with optometrists with little success. She was advised by an optician that her sight would continue to deteriorate. The applicant claimed she had a friend who practised Falun Gong to help her manage a stomach disease. The applicant claimed that after practising Falun Gong for a time she believed her body was improving both physically and mentally and her short sightedness had improved to the extent that she was only wearing 100 degree glasses (Court Book p.21) (“CB”).
The applicant provided no details whatsoever of ever suffering any harm or mistreatment in the People’s Republic of China of sufficient gravity as to constitute persecution in the term of the Convention. She made only an extremely vague claim that she was one of a number of Falun Gong practitioners who were detained and mistreated by the police for fifteen days from 20 May 2000 after they “went appealing to local government”. The delegate’s decision stated, however, as the applicant was released without any further penalty and without being charged with or convicted of committing any offence, that indicated she was not involved in any illegal activities and that the Chinese authorities did not view her as being of any real concern (Court Book p.33) (“CB”). The applicant does not claim to have any other Convention related difficulties, apart from this one isolated instance three and a half years before she left the People’s Republic of China.
The applicant provided no details whatsoever of facing any harm or mistreatment which would amount to persecution in Convention terms. She has made the extremely vague claim that “I will be imprisoned in China, my previous experiences tells me that I will be badly tortured till loss of my life”. The delegate noted, however, that the applicant had never suffered Convention-based persecution in the People’s Republic of China in the past and as she was not currently of any adverse interest to the Chinese authorities there was no reason at all to believe she would suffer any Convention-based persecution upon her return to the People’s Republic of China (CB p.33).
The Tribunal’s findings and reasons
The Tribunal found that on the basis of the available information the applicant’s claims were vague and lacking in important details. The applicant had not provided any details pertaining to her alleged practice of Falun Gong nor was she able to provide details about how, when and where she practised. The Tribunal formed the view, on the basis of the available material which was identical to another claim, that it could not be satisfied that the claims had not been fabricated. The Tribunal advised the applicant in writing that it considered the claim had been fabricated and invited the applicant to comment. (CB p.41). The applicant failed to respond to the invitation and provided no material and did not attend the Tribunal hearing.
The Tribunal made the following finding:
“Furthermore, the applicant has not provided any evidence supportive of her claims. The Tribunal is of the view that the applicant has been given ample opportunity to support her application both at the primary level as well as at the review stage. She has had an opportunity to put forward any supporting documentation. She was invited to attend a Tribunal hearing but there is not explanation for the applicant’s lack of attendance. The Tribunal has formed the view that the applicant is not serious about pursuing her application.” (CB p.53)
Because the Tribunal had very limited information before it and was unable to explore any of the claims further with the applicant in person, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner or that she had been detained or tortured by Chinese authorities. This led to the conclusion that the Tribunal could not be satisfied that the applicant had a well founded fear of persecution for Convention reasons (CB pp.53-54).
Application for review of the Tribunal’s decision
On 24 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“1.I fear persecution from my home country, People’s Republic of China, because I am a member of a particular social group – Falun Gong.
2.I believe I have a well-founded fear of persecution if I have to return [to] my original country. I have been practising Falun Gong since December 1998. After a period of practising my physical and mental health improved a lot. I was detained on 20 May 2000. I was tortured, beaten and denied food and water for a day. After I was released I continued organising Falun Gong practice sessions and distributing material. I would be imprisoned and badly tortured if I return to China.”
On 31 August 2004 the applicant appeared at a directions hearing before Registrar McIllhatton where she signed by consent Short Minutes of Order. The orders required the applicant to file and serve an amended application giving full particulars of each ground of review relied upon by 15 October 2004. Orders were also made for the applicant to file and serve any written submissions on or before seven working days prior to the hearing date which was set at 15 December 2004. The applicant failed to comply with these orders and was advised by the respondent’s solicitors by letter on 20 October 2004 that the matter was to be referred to the Federal Magistrates Court to be listed in the non compliance list. The matter came before me on
2 November 2004 at 12.30 p.m. The applicant appeared and indicated she wished to pursue the matter.
I informed the applicant that the April application, as drafted, did not contain grounds which this Court could take into consideration. The grounds did not identify any Tribunal error. If applicant wished to proceed she must file an amended application with relevant grounds and that must be done by 26 November 2004. The applicant agreed to comply with that order.
On 16 November 2004 the applicant filed and served a document headed “Additional Information” which contained the following statement:
“I believe that I meet the refugee criteria for the following reasons:
1.I belong to a particular social group – Falun Gong and I was persecuted by Chinese government.
2.My fear of being jailed by the Chinese government is well-founded because currently the Chinese authority still suppress Falun Gong.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. As noted above, the applicant attended both a directions hearing and a non compliance hearing and at both hearings was instructed to file submissions in support of her application. It is noted the applicant did file additional information, presumably in response to the order to file an amended application. This additional information did not contain any new material that was not contained in the original application. When invited to make any oral submissions from the bar table, the applicant declined. She was informed that it was her application seeking review of the Tribunal’s decision and it was her obligation to present to the Court that material on which she relied in her claim that the Tribunal had made a jurisdictional error when reviewing the delegate’s decision declining to grant her a protection visa.
The respondent was represented by Ms K Howey, Solicitor, who filed written submissions prior to the hearing. It was submitted that the applicant’s claim in the original application that she met the refugee criteria, raised the merits of her claim to be a refugee, stating that she feared persecution in China because she was a member of a particular social group, being Falun Gong practitioners. The additional information submitted does no more than raise the merits of the applicant’s claim.
It was submitted that no grounds were raised in the application that would give rise to a reviewable error and no grounds that are apparent from the Tribunal’s decision. It was submitted that the Court cannot review the merits of the Tribunal’s decision and that the Tribunal’s decision is not infected by jurisdictional error and is a privative clause decision.
Reasons
This Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 272:
“…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”.
The original application is devoid of detail and has not been supplemented by the applicant at any stage during the process. Despite invitations being extended by the Tribunal to either submit further information or make oral submissions to it, these invitations were not accepted. Throughout the life of the current application before this Court, the applicant has taken the same attitude and has failed to make any submissions or supplement the claim in any way to support her position. This is also apparent in the proceedings before me, both in the non compliance list and again at the substantive hearing, in that the invitation to make submissions received no response. During the non compliance application, I gave the applicant the benefit of the doubt because there was an indication that she wished to pursue her application.
When I reviewed the decision of the Tribunal, it was immediately apparent that it was faced with the same problem of a very limited claim which was not supported or substantiated in any respect by the applicant despite invitations to do so. I have been unable to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
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