SZECV v Minister for Immigration
[2005] FMCA 12
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZECV v MINISTER FOR IMMIGRATION | [2005] FMCA 12 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.426A, 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 & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZECV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2455 of 2004 |
| Delivered on: | 28 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
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 |
SYG2455 of 2004
| SZECV |
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 10 June 2004 and handed down on 5 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 2 April 2004 to refuse to grant the applicant a protection visa.
Background
The applicant, who claimed to be a citizen of the People’s Republic of China, arrived in Australia on 10 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 2 April 2004 the delegate refused to grant a protection visa and on 3 May 2004 the applicant applied for a review of that decision.
The applicant claimed to be a Falun Gong practitioner. He claimed that he started practising Falun Gong in October 1997 and was detained and tortured in August 2003. The applicant claimed he was injected with drugs which damaged his nervous system and almost died however he escaped from hospital with the help of a doctor (Court Book p.25) (“CB”). The applicant stated on his application he had worked with the Huai Yun Company from 1981 to 2003 (CB p.16). The applicant obtained a passport in late September 2003 and shows that he travelled to Malaysia in late 2003 and then returned to China (CB pp.27-29).
On 12 May 2004 the Tribunal wrote to the applicant that they had considered all the material before it relating to his application, but they were not able to make a favourable decision on that information alone. The Tribunal invited the applicant to attend a hearing on 9 June 2004 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice (CB p.51). No response was received from the applicant. The Tribunal letter to his postal address was returned. A copy of the letter sent to the applicant’s home address was not returned. The usual checks by the Tribunal for a “no reply to hearing invitation” was completed by the Tribunal staff (CB p.53).
The applicant did not appear before the Tribunal on the day of the scheduled hearing. In the circumstances, and pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking further action to enable the applicant to appear before it.
The Tribunal’s findings and reasons
In the applicant’s statement attached to his application, he claimed that in August 2003 he was abducted by police officers from the Tianjin City Riot Control Group and the Hendong District Police Department. He claimed he was taken from his home, placed in custody and tortured cruelly by police and he stated that at the Tianjin No. 3 Detention Centre he was tortured for holding a hunger strike. The applicant claimed he was then taken to the 101 Hospital where he was forcibly injected with poisonous drugs that damaged his central nervous system. He claimed he was injected daily with two doses of valium and one dose of an unknown drug. The applicant claimed that the strong tranquilizer and the psychotropic drugs used on him were the same medication used for psychiatric patients. He also made the claim that he had constant body aches, muddle headedness and muscle weakness. The applicant claimed that he was helped to escape from the hospital by a doctor in December 2003 and then he escaped custody in China (CB p.25).
The applicant was able to leave China on two occasions with a passport issued in his own name. He travelled to Malaysia in late 2003 and then returned to China. The Tribunal was not satisfied without further explanation that this would have been possible if he was a wanted escapee (CB p.61).
It was noted by the Tribunal that the applicant had not taken the opportunity to present evidence to the Tribunal, either by attending the hearing or forwarding documents to demonstrate his involvement in the Falun Gong. He has not provided any evidence with his involvement with the Falun Gong organisation in Australia where he is free to practise. As a consequence, the Tribunal was not satisfied that he was a Falun Gong practitioner (CB p.61).
The applicant’s claims of being tortured are serious. However, the Tribunal was not satisfied, on the evidence before it, that he had been mistreated as he claimed. The Tribunal concluded that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention (CB p.62).
Application for review of the Tribunal’s decision
On 4 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“1.I am a member of a particular social group – Falun Gong in PR China. I was tortured by the Chinese Government when I was in China.
2.I fear persecution because I am a Falun Gong practitioner and the fear is well-founded.”
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 an interpreter. The applicant had previously attended a directions hearing on 6 September 2004 and consented to Short Minutes of Order which included the filing and serving of an amended application and any evidence upon which he proposed to rely at the hearing. However, this direction was not complied with by the applicant nor were there any written submissions filed and served prior to the hearing.
When the applicant was invited to make oral submissions this was limited to making brief statements that he was a Falun Gong practitioner and he had been arrested and tortured by government officials when in China. At the original directions hearing, the applicant had been offered the opportunity to participate in the Pilot RRT Legal Advice Scheme however the applicant failed to attend the scheduled meeting. The advice was prepared and forwarded by mail on 29 September 2004.
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing. It was submitted that the applicant claimed to fear persecution due to the practise of his religion in China. It was submitted that the Tribunal was not satisfied that the applicant’s fear was well-founded or indeed genuine, noting that he had not attended the hearing where the Tribunal would have been able to ascertain more details, and that his passport indicated that he had travelled to Malaysia twice in November 2003, after the incident when he claimed to have been detained by the Chinese police (CB pp.28-29).
It was submitted that it was apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts and in particular the assessment that his claimed fears were not well founded. It was submitted that the applicant did not properly particularise any errors in the Tribunal’s decision and that his application appears to seek a merits review. Further, Counsel submitted that the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang. It was further submitted that any wrong findings of fact by the Tribunal did not amount to an error of law that was sufficient to be considered a jurisdictional error: Abebe v Commonwealth of Australia at [137].
Conclusion
The applicant in these proceedings was self represented and has made a vague, unparticularised pleaded ground of review, consisting of two sentences which substantially address the same issue. The applicant did not avail himself of the opportunity to participate in the free independent Pilot RRT Legal Advice Scheme (NSW) nor did he attend the Tribunal hearing. He has failed to comply with directions to file an amended application supported by affidavit evidence upon which he would rely at the substantive hearing. Nor has he made any written submissions in support of his application. The applicant’s submissions from the bar table did not address his application or identify any alleged jurisdictional errors by the Tribunal in its decision. Despite these apparent failings, 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 grounds have been drafted make it difficult to identify any issue which may be characterised as jurisdictional error.
The only issue that I have identified was that the applicant was dissatisfied with the outcome of the Tribunal’s decision and sought to have that outcome reviewed on the grounds of merit. The authorities clearly prevent this Court from embarking on that procedure.
A fair reading of the Tribunal’s decision demonstrated that it was placed with the minimum of information contained in the original application, unsupported by any further written or oral submissions. The applicant did not respond to the Tribunal hearing invitation nor did he attend the Tribunal hearing. The Tribunal did not accept that the applicant was a person to whom protection should be provided under the provisions of the Convention. There was no evidence available that that decision making process was flawed in any way that would give rise to a jurisdictional error. The application 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 (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 January 2005
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