SZDVU v Minister for Immigration
[2005] FMCA 439
•5 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDVU v MINISTER FOR IMMIGRATION | [2005] FMCA 439 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with an order of the Court. |
Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
| Applicant: | SZDVU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1853 of 2004 |
| Delivered on: | 5 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 5 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms K Crawley of Clayton Utz |
ORDERS
The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 23 September 2004.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1853 of 2004
| SZDVU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the respondent in a non compliance list seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). Both parties appeared before me. The applicant was a self represented litigant and appeared with the assistance of a Mandarin interpreter. The respondent’s solicitor filed an affidavit and made oral submissions in support of the application. A Court Book had been prepared, filed and served.
As the substantive hearing of this matter was listed for hearing on 27 April 2005 and there were serious deficiencies in the proceedings in that there had been orders to file an amended pleadings and the orders had not been complied with, I believed it was in both parties’ interest to know with some certainty the future of the progress of the matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 June 2004 seeking a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 May 2004 and handed down on 3 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 9 March 2004 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 “SZDVU”.
In a short statement attached to his visa application, the applicant claimed he was a devoted follower of Falun Gong. He claimed he started practising in 1997 and was often caught and interrogated by police in China, which negatively affected his life and career. The applicant claimed he was engaged in supporting the Falun Gong movement while in Australia (Court Book p.25) (“CB”).
The applicant claimed he was the manager of a business development company from 1992 to 2004 (CB p.16). He stated was able to leave China with a passport issued in October 2003 under the applicant’s name. The applicant did not provide any supporting documentation concerning his involvement with the Falun Gong or his problems with the authorities in China or any evidence in support of his claim to be involved with the Falun Gong in Australia.
Chronology
A brief chronology of this matter is as follows:
a)The applicant arrived in Australia on 11 January 2004.
b)The initial application for a protection visa was lodged with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) on 10 February 2004.
c)The application was rejected by the delegate on 9 March 2004.
d)The applicant sought a review of the delegate’s decision and filed a review application with the Tribunal on 8 April 2004.
e)On 13 May 2004 the Tribunal, constituted by Mr Peter Thomson, made a decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa. That decision was handed down on 3 June 2004.
f)On 17 June 2004 the applicant lodged an application with the Federal Magistrates Court of Australia seeking a review of the Tribunal’s decision. Those proceedings were given the Federal Magistrates Court proceedings number SYG1853 of 2004.
g)On 23 September 2004 the applicant appeared before Registrar McIllhatton at a directions hearing and consented to Short Minutes of Order requiring the applicant to file an amended application, giving full particulars of each ground of review to be relied upon by 14 December 2004.
h)At that directions hearing a final hearing date of 27 April 2004 was allocated to the applicant. The applicant declined the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW).
The hearing
The respondent’s solicitor tendered and applied for the affidavit of Kathleen Mary Crawley sworn 1 April 2005 (“the affidavit of Ms Crawley”) to be admitted into evidence. In the affidavit of Ms Crawley, she indicated that on 23 September 2004 she attended the directions hearing in this matter and the applicant appeared in person with the assistance of a Mandarin interpreter. At that time, Registrar McIllhatton made orders which required the applicant to file and serve an amended application, giving full particulars of each ground of review to be relied upon, by 14 December 2004. On 14 December 2004 the respondent’s solicitor received a facsimile to which was attached a document headed “Amended Application”. This document was set out in the form of a half page typed letter containing the applicant’s name, file number and pseudonym together with a brief statement which indicated the Tribunal made various errors, accusing the Tribunal member of bias and stating that the reason the visa application had been rejected was because the Tribunal member did not understand the activities of the Falun Gong. The letter (amended application) was signed by the applicant in the bottom left hand corner and this was later confirmed by the applicant during the hearing.
The letter (amended application) suggested the Tribunal member made a number of mistakes in not believing the applicant’s claim and the material that he lodged in support of his claim. The supporting material was a form of statement attached to the original visa application dated 14 January 2004 being a half page typed statement which stated as follows:
“My name is [Applicant], and I am a devoted Falun Gong practitioner and advocator. I started practicing Falun Gong in 1997. I donated money to Falun Gong organizations in support of the Falun Gong activities. Because of this I was often caught and interrogated by police in China and my life and my personal business were also affected to a serious extent. I need a peaceful environment for my life and business. It is not likely that I will be able to get it in China, therefore I can only ask the Australian government for it so that I can practice Falun Gong without any fear. I would appreciate if the Australian Department of Immigration could accept my application.
I will be continuously engaged in Falun Gong activities and will provide financial and emotional support to Falun Gong organizations in Australia and underground Falun Gong practitioners in China.
I fear if I return to China, I will again be persecuted by the Chinese government. So I seek to remain in Australia where people could ensure their human rights and I can go on practicing Falun Gong.
Signature
[Applicant]
14/1/2004” (CB p.25)The applicant was advised by letter dated 27 April 2004 that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on the information alone and he was invited to appear before the Tribunal on 25 May 2004. However, the applicant declined the invitation to appear. At the final hearing the applicant raised objection to this submission and claimed he was ill and could not attend the hearing. He later withdrew that comment when the Response to Hearing Invitation (CB p.58) was shown to him and his signature was verified. The respondent’s solicitor submitted that the letter (amended application) other than claiming bias, did not identify any jurisdictional error made by the Tribunal and contained no particularisation or details to support that claim.
When the applicant was invited to respond to the respondent’s submissions he made a number of statements in respect of his position, Falun Gong and the Tribunal’s rejection of his claims. The applicant was asked to confirm to the Court that it was his signature which appeared on the statement attached to his original application, the Response to Hearing Invitation and the letter (amended application). He confirmed it was his signature that appeared on all the documents and he submitted they had been prepared by different migration agents he had retained at various times who had asked him to execute the documents.
Reasons
The Tribunal’s decision under the heading of “Findings and Reasons” effectively summarised its findings as follows:
“The applicant claims that he suffered in his career because of his involvement with the Falun Gong. There are several pieces of evidence that go against this claim. His application shows that he has been a manager for 12 years with the same company. The applicant was able to leave the country with a passport which has been recently issued and issued in his own name. The applicant has not provided any supporting documentation concerning either his involvement with the Falun Gong or his problems with the authorities in China. The applicant has not provided any evidence in support of his claims to be involved with the Falun Gong in Australia. The applicant is free to participate with the organisation in Australia but has not provided any information of his association of his attendance at their meetings and demonstrations.” (CB p.69)
The applicant was provided with an opportunity to explain his position to the Tribunal but he declined to do so. He was also given an opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) provided by the Court Registry but again failed to do so. The documents he filed with the assistance of migration agents did not disclose any grounds for review.
When an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
In this matter the respondent’s solicitors filed and served on 14 October 2004 a Court Book which contained the limited amount of material provided by the applicant together with the documents served on the applicant inviting him to the Tribunal hearing to provide an explanation of his situation and finally the Tribunal’s decision. The amount of material provided was scant and gave the Tribunal very little information in respect of the applicant to form any conclusion as to his claim as a refugee. The material filed as a result of the orders of the Court, disclosed nothing new other than a broad allegation of bias on behalf of the Tribunal member. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. The applicant’s allegation of bias was nothing more than a bald statement without any supporting evidence. A fair reading of the Tribunal’s decision and the supporting material contained in the original application, including the applicant’s statement reproduced in paragraph 7 above, did not disclose any error on the part of the Tribunal in its decision making process.
Conclusion
The pleadings in this application disclosed no jurisdictional error and contained no supporting material. The applicant was given opportunities to prosecute his matter but these were not pursued. He has had the assistance of migration agents however, the matter would not proceed if it advanced to final hearing. I uphold the respondent’s application and dismiss the substantive application filed on 17 June 2004.
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: 15 April 2005
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