SZEAY v Minister for Immigration
[2005] FMCA 1432
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAY v MINISTER FOR IMMIGRATION | [2005] FMCA 1432 |
| 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, 474, 483A
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEAY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2309 of 2004 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms A Radich |
| Solicitors for the Respondent: | 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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2309 of 2004
| SZEAY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
15 June 2004 and handed down on 8 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 16 March 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
For the purpose of this hearing the respondent tendered and applied for the affidavit of Sonia Sarah Harris affirmed on 14 September 2005 (“the affidavit of Ms Harris”) to be admitted into evidence.
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 “SZEAY”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 21 January 2004. On 4 February 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-28) (“CB”). On
16 March 2004 the delegate refused to grant a protection visa (CB pp.31-40) and on 6 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.41-44).
Applicant’s claim
The relevant background facts of the applicant are set out in the written submissions prepared on behalf of the respondent and I adopt paragraph 3 of those submissions for the purpose of this judgment:
3.The applicant claimed to have experienced persecution in China due to his religion (Christianity). He made the following claims in his protection visa application:
(a)As one of a small number of Christians in Fuqing City in Fujian Province, he was harassed by Buddhists who formed the majority. On one occasion he was beaten by Buddhists because he passed through an avenue near a Buddhist temple.
(b)He sought help from the local authorities, however they said that conflicts between religions were none of their business. He was also asked by the authorities: “why don’t you change your religion and get absorbed to the majority?”. From that time he had to practise his religious activities underground.
(c)A development application by Christians to build a church in 1999 was hindered by Buddhists and ultimately rejected by the local government. He attended a demonstration against the refusal of the development application, which was dispelled by police. Two people were detained.
(d)He lost his religious freedom following the enactment of the Anti-Evil Religion Act which forbade Christian activities.
(e)He paid a Chinese agent for a passport and an Australian visa. The agent altered his household registration so that he could obtain a passport.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons are contained in the respondent’s written submissions and I adopt paragraphs 4-7 of those submissions as follows:
4.The Tribunal sent the applicant a letter dated 17 May 2004 advising him that it had considered the material before it but was unable to make a decision in his favour on that information alone (CB 48). The Tribunal invited the applicant to attend a hearing scheduled for 10.00 a.m. on 15 June 2004 to give oral evidence and to present arguments in support of his claims.
5.The Tribunal contacted the applicant by telephone on 3 June 2004, at which time the applicant advised that he would attend the hearing and that he required a Mandarin interpreter. The applicant also said that he would fax the Tribunal a copy of the Response to Hearing Invitation Form in a day or two to confirm. On 9 June 2004 the Tribunal again contacted the applicant by telephone. On that date the applicant said that the Response to Hearing Invitation Form would be returned “tomorrow”.
No Response to Hearing Invitation Form was received by the Tribunal.6.The applicant did not attend the Tribunal hearing, so the Tribunal proceeded to determine the application without taking any further action to enable him to appear, pursuant to s.426A of the Act.
7.The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal said that the applicant’s claims were not supported by any evidence, not even evidence he himself could have given. It was therefore not satisfied that the applicant’s claims were true. It did not accept that he is a Christian, that he had trouble in China because of his religion, that he had any difficulty obtaining a passport or leaving China or that he is at risk of being persecuted should he return to China (CB 58).
Application for review of the Tribunal’s decision
On 22 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The application contained no grounds of judicial review of the Tribunal’s decision and was limited to a statement that the applicant was not provided with an opportunity to explain his case, the Tribunal decision was wrong and a copy of the Tribunal’s decision was attached. The applicant attended a directions hearing on 22 October 2004 and consented to Short Minutes of Order requiring him to file and serve an amended application and evidence upon which he proposed to rely at the hearing. The applicant filed a document headed “Amended Application” although the document was not in the normal Court format. The amended application stated:
“My application for a protection visa was considered by DIMIA, I was not offered an opportunity for interview and was refused by DIMIA. I then lodged a review application with RRT. The officer made jurisdiction mistakes when considering my application. The officer did not explain to me why he refused my application. He did not give me any chance to explain my application in more details. I believe that the officer had bias against me, and made the conclusion based on some wrong information, he did not have any evidence to justify his decision. He assumed that I would not be persecuted on my return to China. He simply did not believe that I am a Christian, nor I had any trouble with the Chinese authorities because of my religion. Please refer to the RRT decision letter: “I do not accept that he is unwilling to return to China because he fears persecution. I do not accept that he is a Christian. I do not accept that he has had trouble with the Chinse authorities because of his religion. I do not accept that he had any difficulty in obtaining a passport or leaving China.” Because of his bias against he does not accept my claims. I believe that he could not justify the making of his decision. When the officer considered my application, he assumed that I was not a Christian; I did not have any problem in China. He blamed me that I had made my claims up and refused my application.
I believe that the officer made jurisdiction mistakes when considering my application. He did not consider all the information provided and refused my application because of his bias. He failed to find any evidence to justify that I would not be persecuted in China if I attempted to attend religious activities in China.”
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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. He indicated he had not filed written submissions in respect of the hearing. When invited to make oral submissions in support of his application, the applicant’s statement was limited to a brief review of his claims and was an invitation to the Court to consider a merits review.
Ms Radich, Solicitor appearing for the respondent, indicated that she relied on her written submissions. In respect of the submissions filed on 14 September 2005, I adopt paragraphs 8-17 for the purpose of this judgment:
The following submissions address the complaints, to the extent that the respondent understands those complaints, contained in the amended application filed by the applicant on 3 February 2005.
Actual bias
The applicant claims that the Tribunal was biased because it did not accept his claims. A party asserting actual bias on the part of a decision-maker carries a heavy onus as the allegation must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [69] and [127]. The applicant has not provided any particulars or evidence in support of his claim that the Tribunal was biased.
As stated by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]:
“[I]t will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.”
There is no evidence that the Tribunal was biased and accordingly this ground of review should be rejected.
Failure to provide an opportunity to explain application
The applicant alleges that the Tribunal did not give him an opportunity to explain his application in more detail.
The applicant was invited to attend a Tribunal hearing to give oral evidence and to present arguments in support of his claims. The invitation was sent to the address for service provided by him in a change of address form received by the Tribunal on 15 April 2004 and was also sent to his residential address as set out in the review application. The invitation was not returned to the Tribunal. The invitation also advised the applicant that if he did not attend the hearing, and the Tribunal did not postpone it, the Tribunal may make a decision on his case without further notice. The applicant failed to attend the scheduled Tribunal hearing.
In these circumstances, the Tribunal was entitled to proceed, without further action to allow or enable the applicant to appear, to make a decision on the applicant’s application (s.426A of the Act). This ground of review must fail.
Failure to explain why application refused
It is not clear how this complaint could amount to jurisdictional error. In any event, the Tribunal invited the applicant to the handing down of its decision, which the applicant did not attend. The Tribunal’s reasons were sent to the applicant by registered post on 8 July 2004 (CB 50). The Tribunal’s reasons clearly explain why the applicant’s application was refused. This ground must also fail.
Failure to consider information properly
The applicant’s claims that the Tribunal’s decision was based on wrong information, that it failed to consider all of the information he provided and that there was no evidence to justify its decision.
The Tribunal’s decision was not based on any information that was contrary to the applicant’s claims. Rather, the Tribunal was simply not satisfied that the applicant had established the factual basis for his claims as he had not provided evidence in support. This conclusion was clearly open to the Tribunal on the material before it. This ground should be rejected.
Reasons
The applicant in these proceedings was self represented with the aid of an interpreter. He has made no oral or written submissions addressing the issue of the Tribunal’s decision made on 15 June 2004 or alleging jurisdictional error contained therein. The grounds in the original and amended applications were vague and unparticularised.
I accept the respondent’s submissions contained in the outline of submissions filed on 14 September 2005 in respect of the Tribunal’s approach to its decision in this matter in that it did not fall into any jurisdictional error as a result of proceeding to make a decision and that the Tribunal complied with the Act and observed the requirements of procedural fairness.
However, where 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 order to make that assessment, I have reviewed all the material contained in the Court Book prepared for these proceedings and have re-read the decision of the Tribunal made on 15 June 2004. On the face of that document and the supporting material, I am satisfied that no jurisdictional error is apparent. The applicant provided a typed statement of one page setting out his claim which was very limited in detail.On 17 May 2004 the Tribunal wrote to the applicant indicating that it 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. The applicant was invited to attend a Tribunal hearing on 15 June 2004 to which he could bring any witnesses to give oral evidence in support of his application. He was also invited to provide any new documents or written arguments to the Tribunal that would support his application. Nothing was forthcoming and the applicant did not attend the scheduled Tribunal hearing. In the absence of any supporting documentation from the applicant, the Tribunal proceeded to make its decision on the limited material available to it. The Tribunal formed the view that the applicant’s claim was not supported by any evidence and in the circumstance was not satisfied that the applicant’s claims were true. It did not accept the applicant was a Christian or that the Chinese authorities were pursuing him because of his religious beliefs. The Tribunal did not accept he had any difficulty in obtaining a passport or that he was hindered in any way from leaving China. On the limited evidence available, the Tribunal did not accept that the applicant was at any risk of being persecuted should he return to China. Nothing on the face of the Tribunal’s decision discloses a jurisdictional error.
Conclusion
In the absence of any particularised grounds, written or oral submissions, I have not been able to identify any ground that the Tribunal committed 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005
0
2
0