SZDSZ v Minister for Immigration
[2005] FMCA 175
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDSZ v MINISTER FOR IMMIGRATION | [2005] FMCA 175 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 426A(1), 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
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Guo & Ors (1997) 191 CLR 559
| Applicant: | SZDSZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 706 of 2004 |
| Delivered on: | 9 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Mandarin interpreter.
| Solicitors for the Respondent: | Ms B Rayment of Sparke Helmore |
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 sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1706 of 2004
| SZDSZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a 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 29 October 2003 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDSZ”.
The applicant, who claimed to be a citizen of the People’s Republic of China, arrived in Australia on 29 September 2003. On 24 October 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 29 October 2003 the delegate refused to grant a protection visa and on 24 November 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claims are contained in a statement attached to his original visa application and are summarised as follows:
a)the applicant started learning Falun Gong in December 1998;
b)the reason the applicant started practising Falun Gong was to improve his eyesight, which at the time required him to wear 400 degree glasses and was deteriorating;
c)after a period of practising Falun Gong, the applicant’s eyesight improved;
d)the national authorities started suppressing Falun Gong in 1999 and persecuting Falun Gong members;
e)the applicant soon became the leader of his local area;
f)on 20 May 2000 he was detained by Shandong police and was one of 20 people arrested out of 1,000;
g)the applicant was detained for 15 days during which time he was badly tortured;
h)after his release from detention, the applicant continued to organise practice sessions for Falun Gong members practising and distribute materials;
i)the applicant was not against the Government or the Party or the Nation, but against Falun Gong being persecuted;
j)according to the current law, the applicant will be imprisoned in China and, according to his previous experiences, he will be tortured to death; and
k)in Australia the applicant can practise Falun Gong freely and continue promoting it (Court Book pp.25-26, 37) (“CB”).
The Tribunal’s findings and reasons
On 11 February 2004 the Tribunal sent a letter to the applicant advising him that it had received an “identical claim” and that the information was relevant “because it may suggest that each claim had been fabricated” (CB p.46). The Tribunal invited the applicant to comment on the information by 5 March 2004. No response to the Tribunal’s letter was received. On 12 February 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present argument at a hearing on 29 March 2004. The applicant did not attend the Tribunal hearing and the Tribunal received no information regarding the applicant’s non attendance.
The Tribunal made the following findings:
a)On the information available the applicant’s claims were vague and lacked important details.
b)The applicant did not provide any details pertaining to his alleged practice of Falun Gong.
c)The applicant had not provided any details of when, how and where he practised Falun Gong.
d)The Tribunal had received an identical claim from another applicant which led the Tribunal to consider the claim may have been fabricated.
e)The Tribunal put the applicant on notice that such a finding might be made and the applicant did not respond to the Tribunal’s letter.
f)The applicant was invited to attend the Tribunal hearing and there is no explanation to the applicant’s non appearance, leaving the Tribunal to form the view that the applicant was not serious about pursuing his application.
g)The Tribunal could not be satisfied that the applicant had been detained or tortured. (CB pp.57-58)
Application for review of the Tribunal’s decision
On 3 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“1.I believe that I meet the refugee criteria.
2.I fear persecution from my original country because I am a membership of a particular social group – Falun Gong.
3.I am a Falun Gong practitioner and a leader of the local area.
I was detained by our Government in May 2000, and was tortured badly in the detention.” (Errors included)
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. The applicant appeared at a directions hearing on
10 September 2004 and consented to Short Minutes of Order at that time which included the filing and serving of an amended application and any evidence upon which he proposed to rely at the hearing by
22 October 2004. The application did not comply with this direction nor were any written submissions filed and served prior to the hearing.
When the applicant was invited to make any oral submissions in support of his application, this was limited to some comments that the applicant did not have the services of a legal adviser when he was required to file and serve an amended application so this order could not be complied. It was noted that at the directions hearing the applicant had been offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) but had declined. No submissions in support of the applicant’s case were made and he relied on his original submission (reproduced above in paragraph 7).
Ms Rayment, Solicitor appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The applicant, a citizen of the People’s Republic of China (“PRC”), sought a protection visa on the ground that he had a well founded fear of persecution by the PRC authorities. He claimed that he was a Falun Gong practitioner who continued to practice despite the banning of Falun Gong in 1999. He claimed that he was the leader of his local area, was detained and tortured on 20 May 2000 and that after his release, he continued to organise Falun Gong practice sessions and distributed material.
b)The applicant did not attend the Tribunal hearing on 29 March 2004. The Tribunal found that:
i)the applicant’s claims were vague and lacking in important details (CB p.57);
ii)the applicant had not provided any details pertaining to his alleged practice of Falun Gong (CB p.57);
iii)his claims were identical to another set of claims received by the Tribunal. Consequently, it could not be satisfied that the applicant had not fabricated his claims (CB p.57);
iv)the applicant had not provided any evidence in support of his claims; (CB p.58) and
v)on the basis of the available information, it could not be satisfied that the applicant was a Falun Gong practitioner or that he was detained and tortured (CB p.58).
c)The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia owed protection obligations (CB p.58).
d)On 11 February 2004, the Tribunal sent a letter to the applicant at his address for service informing him that the Tribunal had received an identical claim and that this information was relevant because it suggested that his claims had been fabricated (CB p.46). The Tribunal invited the applicant to comment on this information by 5 March 2004. The Tribunal did not receive a response from the applicant (CB p.55).
e)On 12 February 2004, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone (CB p.47). The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 29 March 2004. No response was received and the applicant subsequently failed to appear on the scheduled date and time. He also provided no explanation for his absence. The Tribunal was therefore entitled to make a decision on the papers pursuant to s.426A(1) of the Act.
f)In circumstances where the applicant failed to attend his hearing, it was open to the Tribunal to infer that, had he attended a hearing and given oral evidence, the applicant would not have improved his case for the grant of a protection visa: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs at [25]. The Tribunal was not obliged to accept at face value the applicant’s brief outline of his claims, and when he failed to attend the hearing, the inevitable consequence was the rejection of his application: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs at [5].
g)No error has been established and there is no jurisdictional error on the part of the Tribunal. The Tribunal’s decision is a ‘privative clause decision’ within s.474 of the Act.
Reasons
The applicant in these proceedings was self represented and has made no oral or written submissions. The grounds in his original application are vague and unparticularised. Although the applicant was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) available to self represented litigants, this offer was declined and despite orders being issued requiring the filing of subsequent documents this has not been complied with. However, where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The manner in which the original grounds were drafted produce nothing more than a re-statement of the applicant’s initial claim.
Having regard to the fact that the Tribunal had before it only a brief one and a half page typed statement from the applicant, this was the extent of the material upon which it had to rely. Evidence of the relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the facts. It is the applicant’s responsibility to make out his own case: Minister for Immigration & Ethnic Affairs v Guo & Ors per Kirby J at 596. In this case the applicant had an opportunity to attend the Tribunal hearing and furnish additional facts. However, the applicant failed to respond to the invitation. The Tribunal also wrote to the applicant recanting that the statement supplied with his application was in identical terms to that made by another applicant. The applicant failed to respond to the Tribunal’s letter of enquiry.
The material contained in this application provides only very limited details of the applicant and his claims. This is further tarnished by the fact that the claim is in identical terms provided by a different individual at approximately the same time. This leads to the suspicion that the applicant’s claim may be fabricated. The applicant did not make himself available to the Tribunal to address these questions or to supply any additional information in support of his claim.
Conclusion
The pleadings in this application do not identify any error nor does a fair reading of the Tribunal’s decision reveal any jurisdictional error. Consequently, 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 March 2005
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