SZECS v Minister for Immigration
[2005] FMCA 108
•2 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZECS v MINISTER FOR IMMIGRATION | [2005] FMCA 108 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – Notice of Objection to Competency upheld and substantive application dismissed. |
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(b), (d)
Migration Act 1958 (Cth), ss.424A(3)(a), 425(1), 426(A)(1), 441G(2), 474, 477, 477(1A)
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
Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474
SZEBH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 932
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Guo & Ors (1997) 191 CLR 559
| Applicant: | SZECS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2447 of 2004 |
| Delivered on: | 2 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The self represented applicant did not appear at the hearing.
| Solicitors for the Respondent: | Mr J Bird of Phillips Fox |
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 $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2447 of 2004
| SZECS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The substantive application and Notice of Objection to Competency was listed for final hearing at 10.15 a.m. on 2 February 2005 before this Court. The applicant in the proceedings failed to appear. The respondent had complied with orders made at a directions hearing by preparing, filing and serving a Court Book and written submissions for the substantive hearing. The applicant has been given a period of grace to appear but has not responded to the matter being called approximately fifteen minutes after the scheduled hearing time and nothing has been heard from the applicant to indicate his inability to attend the hearing.
In accordance with Federal Magistrates Court Rules 2001 (Cth) Rule 13.03A(b) I intend to proceed with the hearing generally in the absence of the applicant. With the benefit of the contents of the Court Book and both written and oral submissions from the respondent, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 September 2003 and handed down on 28 October 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 23 January 2003 to refuse to grant the applicant a protection visa.
Background
The applicant, who claims to be a citizen and former resident of Indonesia, arrived in Australia on 17 November 2002. On 13 December 2002 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”). On 23 January 2003 the delegate refused to grant a protection visa and on 17 February 2003 the applicant applied for a review of that decision by the Tribunal (Court Book p.71) (“CB”).
The applicant was born on 20 November 1980 and is a single ethnic Chinese Christian female. She stated that her occupation was a “marketing/administration clerk” and that she resided with her parents in Tangerang, Jakarta. The applicant travelled to Australia on an Indonesian passport.
The applicant claimed she left Indonesia because she was being persecuted as an ethnic Chinese and as a Christian. She stated she completed High School in 1998 in the same year that her family home was attacked by Indonesians who entered the house and tied up the applicant and her parents, abused them, pulled the applicant’s hair and placed an iron bar against her neck. The house was robbed and the applicant was very scared and remained traumatised by the incident. Subsequently, the applicant moved to Bandung and lived there with her uncle. She enrolled and University from 1998 to 2000 but claimed she failed to complete her studies due to ongoing feelings of trauma. The applicant’s parents then asked her to return to Jakarta and she found full time employment from 2000 until she left Indonesia for Australia.
The applicant claimed that anti-Chinese riots still occur from time to time and there had been bomb explosions at churches in various cities throughout Indonesia. As a Christian, the applicant stated she felt threatened and believed that as Indonesia is a Muslim country the government seemed reluctant to deal with Muslim aggression. She claimed there was no safe place for her in Indonesia and if she were to return she would be killed because of the worsening situation with Chinese and Christians being targeted. The applicant claimed that as a young woman she was an easy target and could not protect herself and the Indonesian authorities could not provide protection because they did not care about community problems or the police came too late to offer any help.
The Tribunal’s findings and reasons
In reaching its decision, the Tribunal was limited by the lack of specific information on the applicant’s claim and the dearth of evidence regarding the degree to which the applicant or her family suffered persecution on account of their Chinese ethnicity.
The Tribunal accepted that the events which occurred in May 1998 would have been traumatic to many Chinese people in Indonesia and it accepted that the applicant’s claims regarding the attacks upon her family home were consistent with attacks against Chinese during these riots. However, the Tribunal rejected the applicant’s claims that she would face persecution in Indonesia if she were forced to return as no evidence had been provided to suggest that she was at risk between 1998 and her departure in 2002.
The Tribunal found that “police lateness” did not equate with inadequate state protection within the meaning of the Convention and it referred to country information which indicated that the discipline of the Indonesian police had improved since 1998. The Tribunal was unable to find reports of any contemporary violence, harassment or discrimination directed towards Chinese in Indonesia since Megawati Sukarnoputri became President.
The Tribunal considered and made findings in relation to the applicant’s fear of persecution on the basis of her religion. Whilst it acknowledged that country information referred to significant conflict between Moslems and Christians in some of the outlying provinces in recent years, it considered there was no evidence of a similar level of violence between the Moslems and the Christian communities in Jakarta. It also noted that President Sukarnoputri’s policies were not anti-Christian nor anti-Chinese and cited country information that noted that the President’s advisers were both Christian and Chinese.
On the basis of the limited information provided by the applicant, and with reference to an extensive body of country information, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution.
Application for review of the Tribunal’s decision
One 3 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 containing the following grounds:
“I believe I’m a person need international protection because:
Particulars
1)“WELL FOUNDED” fear being persecuted under one of convention reason as a Chinese as a victim during riots May 1998 they enter our house, robbed tie us up, pulled my hair and placed an iron bar against my neck. I was very scared and still remained traumatised by the incident (see attachment B).
2)The fear for one of convention reason is a race (as a Chinese descent) and the fear is objective not a subjective (see attachment B).
3)The authority in my home country was not able to protect us (see attachment B).
4)So I’m not willing (unwilling) to avail myself under the protection of my country authority.
5)Now I’m outside my home country, I’m in Australia now.
6)I made a valid application for protection visa already but has been refused.
NOW I apply to Federal Magistrate Court for consideration.” (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.
Notice of objection to competency
On 24 August 2004 the respondent’s solicitors filed a Notice of Objection to Competency on the grounds that s.477(1A) of the Act provides that an application for review must be lodged with a Registry of the Court within 28 days of the notification of the decision. On the same date the respondent solicitors filed an affidavit of John Bird, Solicitor in support of that Notice. At the hearing a revised affidavit to the same effect was tendered and admitted into evidence.
I note that the application for judicial review filed on 3August 2004 is in the vicinity of 250 days outside the time limited for the lodgement of such reviews. I also note that the solicitor retained by the applicant filed a Notice of Appearance on 6 September 2004. He has subsequently withdrawn by filing a Notice of Ceasing to Act on
15 November 2004 citing the reason he had been unable to receive instructions in order to file an amended application. The application filed in these proceedings does not demonstrate any involvement of a legal practitioner with his retention being subsequent to the initial filing of evidence by relevant Court filing dates. In Ngu v Minister for Immigration & Multicultural & Indigenous Affairs, the Full Court upheld the judgment of Nicholson J at first instance to the effect that an appeal against a privative clause decision, lodged outside the mandatory time limits in s.477, is incompetent if a ground of review cannot be made out.
In order to determine the outcome of this matter and in accordance with the Federal Magistrates Court Rules 2001 (Cth), r.13.03A(d) I intend to proceed with the hearing generally in the absence of the applicant. The applicant has failed to appear before this Court and the Tribunal to prosecute her case. The solicitor who was retained by the applicant for a brief period also withdrew because he was unable to receive adequate instructions. I do not believe a further adjournment of this matter will result in the applicant complying with Court Orders or actively prosecuting her application.
Respondent’s submissions
Mr J Bird, Solicitor, appearing for the respondent, filed written submissions prior to the hearing setting out the following contentions:
a)The applicant did not provide any documentary evidence to substantiate her claims. The Tribunal invited the applicant to a hearing to explore and properly assess her claims but the applicant failed to appear at the hearing. It was submitted that the applicant made no allegation that she did not become aware of the hearing invitation and, in any event, this would have had no consequence to the outcome of the application for review.
b)The Tribunal sent a letter to the applicant’s authorised recipient inviting the applicant to a hearing and a copy of this letter was also forwarded to the applicant. The applicant’s migration agent advised that the applicant was unable to be located.
c)It was submitted that Part 7, Division 7A of the Act provides a scheme when a person is taken to have received documents from the Tribunal. Further, it was submitted, s.441G(2) provides that if the Tribunal gives a document to the applicant’s authorised recipient, the Tribunal is taken to have given the document to the applicant. Accordingly, since such an invitation is taken to have been duly given to the applicant, it follows that the applicant was invited to appear as required by s.425(1) of the Act. It was submitted that the applicant’s failure to appear allowed the Tribunal to make a decision on the application in the absence of the applicant under s.426(A)(1). Further, it was submitted, that if the applicant was not aware of the invitation this fact did not displace the conclusion mandated by Part 7, Division 7A that it was duly given to her: VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (“VNAA”) at [15]; and SZEBH v Minister for Immigration & Multicultural & Indigenous Affairs at [10].
d)In reaching its decision, the Tribunal was limited by a lack of evidence and specific information relating to the applicant’s fear of persecution. It was submitted that the fact that the applicant failed to appear at the scheduled hearing meant that the Tribunal was unable to obtain further information to explore and assess the veracity of the applicant’s claims. In S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court held at [26]:
“In our view, the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.”
e)In any event, it was submitted, that the Tribunal considered and dealt with the applicant’s claims in a systematic and logical manner. The Tribunal placed a heavy reliance on country information to conclude that the applicant would not face persecution if returned to China. The respondent solicitor submitted that no natural justice issues arose primarily for the following two reasons:
i)Firstly, the country information used by the Tribunal was of the same or similar nature to that used by the delegate and the applicant must have been aware of the critical issues affecting her case if she were to be successful in making out her claim.
ii)Secondly, the same and other similar country information was considered in VNAA, a case involving very similar circumstances to the present matter. In VNAA, it was submitted, that the Tribunal also placed significant reliance on the same DFAT report on Indonesia’s attitudes to ethnic Chinese and religious minorities. The Federal Court found that the country information was plainly information which is “just about a class of persons which the applicant or other person is a member” and so came within the s.424A(3)(a) exception as not having to be given to the applicant for comment.
f)It was submitted that the applicant did not identify any error in the Tribunal’s conduct or reasoning process and no error, jurisdictional or otherwise, was evident on the fact of the decision.
Reasons
On 13 August 2003 the Tribunal issued an invitation to the applicant to attend a hearing on 5 September 2003. That letter contained an important notice which highlighted that if the applicant did not attend the hearing on that date or seek a postponement the Tribunal would proceed without further notice to make a decision in the matter.
A copy of that letter was forwarded to the applicant’s migration agent who responded by sending a letter to the Tribunal indicating that he had been unable to obtain any response from the applicant regarding the hearing. Consequently, the Tribunal’s decision was based predominantly on country information and the very limited material contained in the initial visa application. The pleadings in the application do not identify the alleged jurisdictional error and are merely a restatement in a very short and abbreviated manner that the applicant claimed to be a refugee.
In the case of the self represented litigant I am aware of the Court’s responsibility to independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. On a fair reading of the initial application, the decision of the delegate and of the Tribunal, no error is apparent. Having regard to the fact that the Tribunal only had before it the facts as alleged by the applicant that were contained in the original application it was the only material upon which it could proceed. The relevant facts pertaining to the application needed to be supplied by the applicant in as much detail to enable the applicant to establish the facts. It is for the applicant to make out her case: Minister for Immigration & Ethnic Affairs v Guo & Ors per Kirby J at 596. The applicant had an opportunity to attend the hearing and furnish additional facts. However, the applicant failed to respond to this invitation and on the one exception where the applicant was represented by a solicitor at a directions hearing, the applicant has failed to comply with any Court Orders or attend Court.
I am satisfied that the decision of the Tribunal which is the subject of these proceedings is not infected by jurisdictional error. Consequently, the substantial matter should be dismissed. Further the mandatory time limit in s.477 of the Act is clearly exceeded and the Notice of Objection to Competency should be upheld.
Conclusion
For the reasons set out above, the matter 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: 18 February 2005
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