SZECI v Minister for Immigration
[2004] FMCA 976
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZECI v MINISTER FOR IMMIGRATION | [2004] FMCA 976 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.422B, 424A, 425, 425A, 426A, 427(1)(d), 441A, 441C(4)(a), 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 & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
WAGP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266
NAAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 582
Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407
NASH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 44
SMTB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 127
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 134
NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162
NADK of 2002v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZECI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2416 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 13 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Mandarin interpreter.
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2416 of 2004
| SZECI |
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 23 June 2004 and handed down on 30 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 25 March 2004 to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 11 March 2004. On 18 March 2004 he 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”). On 25 March 2004 the delegate refused to grant a protection visa. The delegate’s reasons are set out in the Court Book (“CB”) at pages 31-40. On 8 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant is a male born on 5 January 1961. He is married and comes from Tieling, Liaoning Province. The applicant completed ten years of schooling and described his usual occupation before coming to Australia as a factory director. He held the position of director in a food factory from 1984 to January 2004. In the applicant’s application for a protection visa, he disclosed that he had lived at the same address in Tieling from March 1985 until March 2004 when he left China and travelled to Australia. The applicant arrived in Australia on 11 March 2004 and applied for a protection visa one week after his arrival (CB pp.1-26).
The applicant’s claims for protection arise from his practice of Falun Gong. His claims for protection are contained in the short half page typed statement attached to the original application (CB p.29) and is again referred to in his application for review (CB p.49). The applicant stated he took up Falun Gong in 1998 to improve his health and as part of that activity and was involved in the distribution of leaflets about Falun Gong. The applicant stated that after the government banned Falun Gong activities in 1999 many members were persecuted. The applicant claimed to have been interrogated several times by the police and forced to write a confession that he would give up his Falun Gong beliefs. The applicant referred in general terms to the persecution of Falun Gong members and the confiscation of Falun Gong materials. He stated he became very scared when he heard some members of the movement had been persecuted and some had even died. The applicant sought protection so he did not have to return to China.
The Tribunal’s findings and reasons
The material before the Tribunal was limited to the applicant’s application and his supporting statement. No further material was provided in support of his claim for protection. No details were provided as to the specific extent and scope of the applicant’s practice and activities of Falun Gong. The applicant provided no details of his dealings with the Chinese authorities arising out of his Falun Gong practice and activities such as when these dealings occurred or simply what he feared might happen to him on his return to China. There was no indication from the applicant as to whether he continued his Falun Gong activities in Australia.
The Tribunal noted that the primary decision maker had referred to various matters including:
a)The applicant’s claims were of a general nature.
b)The lack of details in support of the applicant’s claims such as dates, times and places in respect of his Falun Gong activities in China which he claimed brought him to the attention of the authorities.
c)The lack of any supporting evidence to substantiate the applicant’s claims of being involved in Falun Gong in China or having rejoined Falun Gong or participating in these activities since arriving in Australia.
d)The stability of his residential and employment history suggested the applicant had not had any difficulties with the authorities as claimed (CB p.66).
In the applicant’s application to the Tribunal for review the applicant merely stated: “Please refer to the statement at DIMIA.” No new or additional details in support of his claim were made or advanced and he did not address the reasons contained in the primary decision to refuse him a protection visa.
The Tribunal wrote to the applicant on 8 April 2004 indicating his application for review had been received and setting out a number of matters that the applicant should address to ensure that the Tribunal had evidence before it to support his application (CB pp.51-52). A further letter was sent on 23 April 2004 inviting the applicant to a hearing on 23 June 2004 which indicated, along with other issues that if the applicant did not attend the hearing the Tribunal would not postpone the hearing and could make a decision on the applicant’s case without further notice (CB pp.53-54). The applicant responded by forwarding the response to hearing invitation stating that he wished to attend. This response was received by the Tribunal on 1 May 2004 (CB p.56). The hearing information form indicated the applicant did not attend the scheduled hearing on 23 June 2004 (CB p.57).
The Tribunal wrote to the applicant again on 23 June 2004 indicating that it had considered all the material relating to the applicant’s case and had made its decision. That decision was handed down on 30 June 2004 (CB pp.58-59).
The Tribunal found that independent evidence indicated that, depending on the circumstances, a person may face serious harm in China amounting to persecution within the meaning of the Convention, on account of their practice of Falun Gong. However, the Tribunal did not accept that the applicant fell into this category. The Tribunal noted that the material before it was very limited and the applicant did not attend the hearing to give oral evidence. Consequently, the Tribunal was unable to explore aspects of the applicant’s claim with him. The Tribunal came to the following conclusion:
“There is simply insufficient information before me for which I could be satisfied that the applicant has a well founded fear of persecution for Convention purposes.” (CB p.68)
Application for review of the Tribunal’s decision
On 29 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. The applicant attended a directions hearing on 30 August 2004 and agreed by consent to Short Minutes of Order requiring the applicant to file and serve an amended application giving full particulars of each ground of review relied upon by 11 October 2004. Further, the applicant was required to file and serve any written submissions on or before seven working days prior to the hearing date. On 5 October 2004 the applicant filed an amended application containing the following grounds:
1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error
Particulars
a)The Tribunal failed to send its correspondence to my correct residential and post address. As a matter of fact, I have already informed the Tribunal my new address before the hearing.
b)The Tribunal failed to consider the fact that I have apparently misled by my previous migration agent (Mr Shiu Lun Peter Wong from Jack Meng Immigration Pty Ltd) who has never ever notified me any procedures or proceedings of the Tribunal, and never ever given me any legal advise.
c)The Tribunal failed to give me the complete Independent Country Information which has been used as the reason, for affirming the unfair decision of the Delegate of Minister. The Tribunal failed to ensure that I have fully and complete understand the information that the Tribunal would be used its decision before and during the hearing.
d)Particularly, the Tribunal did not give me any opportunities to comment the Independent Country Information or other relevant information before the Tribunal made its decision.
2.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
a)I have been wrongly advised by my previous migration agent (Mr Shiu Lun Peter Wong from Jack Meng Immigration Pty Ltd) who has provided complete incorrect information and claims for me to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”); and particularly he has never explained to me about relevant legal information, such a the Definition of Refugee or the criteria of Protection Visa or processing procedures for the application, in relation to my application. In addition, he strongly advised me not to attend the hearing arranged by the Tribunal.
b)The Tribunal failed to consider the fact that I have, in fact, misled by my previous migration agent, and the Tribunal failed to verify, with me, those claims in the application.
c)The Tribunal failed to consider the fact that:-
·In China, I have actively participated in the movement for seeking basic human rights of our unemployed people, and I have been regarded one of main leaders to organize several large demonstrations in Tieling City of Liaoning Province, China. As a result, I have been in great dangers, and I have to leave the country before the Public Security Bureau came to arrest me.
·Shortly after my departure from China, many of friends, who have jointly participated in those demonstrations together with me in Tieling City, have been subjected to investigation by the Public Security Bureau, and some of them have even been arrested by the Chinese government.
·Even my wife, who is currently still in China, has been subjected to investigation by the Public Security Bureau, because she has been implicated by my political activities against the Chinese government.
d)The Tribunal failed to consider the fact that:-
·It is impossible for me to survive if I have been sent back to China, because it is impossible for me to find any jobs and my livelihood will be threatened from time to time.
·It is impossible for me to have any third countries to resident.
e)In conclusion, the Tribunal should re-consider my application, because its decision is based on incorrect information provided by my previous migration agent. (Errors in original)
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 attended a directions hearing on 30 August 2004 and complied with Short Minutes of Order requiring the applicant to file an amended application. However, the direction to file and serve written submissions was not complied with by the applicant. On the day of the hearing the applicant attended with written submissions in Mandarin which were read by the interpreter from the bar table. These oral submissions made a number of references to the amended application and raised a number of new issues.
Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing. I will adopt the approach taken by Mr Potts in responding to the two broad grounds, firstly error of law and secondly denial of justice. I will deal with each particularisation as a separate issue under those two broad headings.
In respect of ground 1(a), which is complaint regarding the addressing of correspondence to the applicant, it was submitted by Counsel that only one address was provided by the applicant in his application to the Tribunal which was in Berala, New South Wales (CB p.47.9). The applicant noted that his mailing address was “as above” which referred to the Berala address. The applicant did not nominate any other address to which the Tribunal could forward correspondence (CB p.48.5). All Tribunal correspondence was duly sent to the Berala address (CB pp.51, 53). There was no evidence to indicate that the Tribunal was notified of any change of address by the applicant. It was submitted that the Tribunal committed no error in the manner in which it addressed correspondence to the applicant.
Ground 1(b) is that the Tribunal failed to consider that the applicant was misled by his migration agent. It was submitted that there was no evidence to support this claim. If it is accepted that the applicant was misled as he claimed, the Tribunal was not aware of that fact, nor any assertion of it. The Tribunal committed no error by failing to consider something of which it had no knowledge.
Grounds 1(c) and 1(d) claim that the Tribunal failed to provide country information and other information to the applicant. It was submitted that the only country information relied upon by the Tribunal was information that was relied upon in a way that was favourable to the applicant (CB p.67.7). In addition, it was submitted, this was a proceeding in which s.422B applied. As such, s.424A addressed the Tribunal’s obligation to provide information to the applicant and seek his comments. Section 424A did not apply to country information of the kind used by the Tribunal in this case, as it was not specifically about the applicant or another person, and was just about a class of persons, and therefore fell within s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW per Beaumont, Merkel and Hely JJ.
It was submitted that the only other material used by the Tribunal in coming to its decision was information that the applicant supplied. In his application to the Tribunal, the applicant stated “Please refer to the statement in DIMIA” (CB.p.49.3). By including this statement in his application to the Tribunal, the applicant effectively gave this statement to the Tribunal, albeit only by reference. The Tribunal did not however use that information as the reason, or part of the reason, for refusing his application. Rather it was the absence of information that was determinative. Therefore, there was no obligation pursuant to s.424A to disclose to the applicant the information comprised in his statement by one of the methods prescribed in s.441A.
It was submitted alternatively, that the information in the applicant’s statement was not information to which s.424A applied because it fell within s.424A(3)(b). It was submitted that this case is distinguishable from the situation in Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (“Al Shamry”) at [17] and [35]. In Al Shamry the Full Court held that information given to the Department was distinct from information given for the purposes of the application, “application” being properly construed as the application to the Tribunal. In Al Shamry the information in question had come from an interview conducted by the Department at the airport on the applicant’s arrival, and was held to fall outside s.424A(3)(b). It was submitted in this matter the applicant effectively gave the Tribunal his statement by including it by reference in his application to the Tribunal. It was submitted that information supplied by the applicant in this case therefore fell within s.424A(3)(b): WAGP v Minister for Immigration & Multicultural & Indigenous Affairs at [35]; NAAL v Minister for Immigration & Multicultural & Indigenous Affairs at [11].
It was further submitted that if it was found that there was some breach of s.424A in relation to the applicant’s statement, it did not, in the circumstances, constitute jurisdictional error. Counsel submitted that the applicant was, by virtue of the statement in his application to the Tribunal, clearly aware of the fact that the Tribunal would refer and use his statement to the Department and, in the circumstances, he was not denied natural justice and any breach of s.424A was purely technical and did not constitute jurisdictional error. It was submitted that cases such as Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [25]-[27] demonstrate that not every breach of the Act constitutes jurisdictional error.
Ground 2(a) claimed that the applicant was wrongly advised by his migration agent, who supplied incorrect information to the Tribunal. It was submitted that the Tribunal knew nothing of the advice supplied to the applicant by his migration agent. Counsel submitted also that this Court knows nothing of any advice, as it has no evidence before it. The same is true of the allegations that the migration agent supplied incorrect material to the Tribunal. The Tribunal could not have erred due to anything the migration agent allegedly did or did not do, in circumstances where the Tribunal had no knowledge of such matters.
In ground 2(b) the applicant claimed he was misled by his migration agent and the Tribunal failed to verify his claims. Counsel submitted that the Tribunal knew nothing of what had transpired between the applicant and his migration agent and it could not have erred in this respect. Further, it was submitted, that the Tribunal was under no obligation to verify or investigate the applicant’s claims and the Tribunal had no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate: (s.427(1)(d)): VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [27]; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs at [21], [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs at [74]-[78].
In respect of ground 2(c) the applicant claimed the Tribunal failed to consider specific factual matters. It was submitted that the matters that the Tribunal was said to have failed to consider were not matters put before the Tribunal by the applicant. The Tribunal could not have erred by failing to consider matters that were not before it.
Mr Potts of Counsel then made some general submissions that the Tribunal’s decision did not disclose any reviewable error and the Tribunal committed no error by proceeding to determine the applicant’s application for review based only on the material at hand when the applicant failed to appear at the hearing. It was contended that s.426A(1) of the Act expressly permits the Tribunal to make a decision in such circumstances without taking any further action to allow or enable the applicant to appear before it. It was submitted that a notice of hearing pursuant to ss.425 and 425A was sent to the applicant at the only address available to the Tribunal (CB pp.53-54). The notice clearly warned the applicant that:
“If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.”
The Tribunal notice dated 23 April 2004 was sent by registered post (CB p.54.5) and would have been deemed to have been received by the applicant seven working days after the date of that document (s.441C(4)(a)), which in this case, it was submitted, would have been deemed to have been received on 4 May 2004. Counsel submitted that the notice was actually received by no later than 30 April 2004, which is the date noted on the response to hearing invitation form by the applicant (CB p.56.10) The response to hearing invitation form was enclosed with 23 April 2004 letter (CB p.54.5). It was submitted that the prescribed period of notice under s.425A(3) is fourteen days after the day on which notice is received (Regulation 4.35D(b)), meaning that the prescribed period in this case expired on 14 May 2004 being well in advance of the hearing date of 23 June 2004.
The applicant and his adviser were then advised by letter of 23 June 2004 that the Tribunal had made a decision which would be handed down on 30 June 2004 (CB pp.58, 59). It was submitted that the applicant did not, at this point, seek to put forward any further material or to seek a further hearing.
It was submitted that having complied with ss.425 and 425A the Tribunal was entitled to rely on s.426A as it did, and to proceed to determine the application without taking further action to allow the applicant to appear: NASH v Minister for Immigration & Multicultural & Indigenous Affairs at [7] and [19]; SMTB v Minister for Immigration & Multicultural & Indigenous Affairs at [5]-[12]; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs at [9] and [15]-[16]; NASF v Minister for Immigration & Multicultural & Indigenous Affairs at [16]; and NADK of 2002v Minister for Immigration & Multicultural & Indigenous Affairs at [16]. Counsel submitted that the Tribunal committed no error by proceeding in this way.
It was submitted that the findings made by the Tribunal were open to it on the evidence and to engage in fact finding about the merits of the applicant’s case is not part of the function of the Court in dealing with an application for relief under s.39B of the Judiciary Act 1903. It was further submitted that it was necessary for the applicant to establish jurisdictional error and whatever the boundaries of jurisdictional error, they did not comprehend errors of fact as to the merits of the case put to the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs at [10].
Conclusion
The applicant in these proceedings was representing himself and although not strictly complying with orders made at the directions hearing in respect of filing written submissions, he did make a number of oral submissions from the bar table by his interpreter reading from a prepared statement in his own language. The applicant appeared to be attempting to emphasise the key points in his pleaded grounds for review. In addition, the applicant raised a number of additional points that were new but these points were, in effect, further examples of the exiting structure of his pleadings and did not raise new issues under the category of grounds for review. I am cognisant of the obligations of this Court in respect of self represented litigants to independently consider whether any arguable case on the material before the Court could be made out as a legitimate ground: Yo Han Chung v University of Sydney & Ors.
I accept the approach taken by Mr Potts of Counsel and have reproduced his submissions above as I believe they assist me in the resolution of this matter. I accept the arguments submitted by Mr Potts in that the grounds, identified as 1(a)-(d) and 2(a)-(c) inclusive, cannot be sustained and must be rejected. I also accept the general submissions of reviewable error that none has been identified.
There was an allegation contained within the application that the applicant was misled by his migration agent. This was repeated from the bar table but there is no evidence submitted to the Court supporting this allegation. The applicant indicated that he had dispensed with the services of this particular agent and had retained a new adviser. Despite this appointment, there is no material before the Court seeking to change the pleadings or in the form of revised submissions supporting the applicant’s case.
I have not been able 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 thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
0