SZEDM v Minister for Immigration
[2005] FMCA 128
•17 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDM v MINISTER FOR IMMIGRATION | [2005] FMCA 128 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.91X, 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
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEDM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2478 of 2004 |
| Delivered on: | 17 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 January 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Mandarin interpreter.
| 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 $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2478 of 2004
| SZEDM |
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 16 June 2004 and handed down on 8 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 31 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 “SZEDM”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 18 February 2004. On 25 February 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 31 March 2004 the delegate refused to grant a protection visa and on 30 April 2004 the applicant applied for a review of that decision.
The applicant, in her protection visa application, indicated she was born on 1 June 1955 and is a Chinese national. She entered Australia legally, travelling on a passport issued on 11 December 2003. Her Australian visa was issued on 3 February 2004 and she stated had no difficulty obtaining a passport or visa.
The applicant lived at the same address in Haerbin City, Heilong Jiang from January 1994 to January 2004. She has completed twelve years of education and worked as the Vice President of the College of Law and Politics from 1975 to 1988 and Vice President of the Institute of Manage Education from 1989 to December 2003 (Court Book pp.14-16) (“CB”).
In her protection visa application, the applicant made the following claims:
a)She learned about Falun Gong in 1995.
b)In the winter of 2001 she was illegally sentenced to labour education because of her practice of Falun Gong.
c)In August 2002 a police woman got drug addicts to beat her savagely on many occasions. Her clothes were stripped off at night and she was thrown into a pig pen. In addition, her head was covered and she was given electric shocks, she was forced to lie on cold cement boards and she was threatened with a dog.
d)She went on a hunger strike.
e)The torture she suffered caused her great physical and mental damage and she was on the verge of dying.
f)She was sent home from the labour camp at the end of 2002.
g)She recovered three months later.
h)She still practised Falun Gong.
i)Her husband and parents were afraid that the police would put her in jail again, so they helped her go overseas.
The Tribunal’s findings and reasons
The Tribunal wrote to the applicant on 19 May 2004 inviting her to attend a hearing on 15 June 2004 (CB pp.50-51). The letter advised the applicant that it was unable to make a favourable decision based on the material before it and if she did not attend the scheduled hearing and a postponement was not granted, the Tribunal might make a decision without further notice. The Tribunal received no written response. The applicant had not provided a contact telephone number and did not have an adviser.
On 2 June 2004 the applicant’s “friend” contacted the Tribunal “to find out what would happen if the applicant did not attend the hearing”. The applicant’s friend was advised that the Minister would make a decision on the papers (CB p.66). The applicant did not appear on the day of the hearing and the Tribunal made a decision without taking further action to enable the applicant to appear before it, pursuant to s.426A of the Act.
The Tribunal affirmed the decision of the delegate and refused to grant a protection visa to the applicant. It accepted that the applicant was a national of the People’s Republic of China and assessed her claim against that country (CB p.64). The decision was based on written statements provided by the applicant in her initial application and her application for review. The applicant provided no other documentary evidence of her claims (other than a copy of her passport).
The applicant claimed she was a Falun Gong practitioner and as a result had been detained and tortured by Chinese authorities in the past and would, if she returned to China, face such persecution again. The Tribunal’s findings in relation to the applicant’s claims regarding Falun Gong were:
a)The applicant had not provided any details of the nature or extent of her practice of Falun Gong. The Tribunal was therefore unable to be satisfied that the applicant was or is currently a Falun Gong practitioner. The Tribunal also found that it was unable to be satisfied that the applicant had been detained or physically mistreated for this reason (CB p.64).
b)The applicant did not provide sufficient detail regarding her illegal detention of twelve months nor did she provide details about the conduct which led to her detention. The Tribunal considered that the employment history provided by the applicant did not suggest there were breaks in that employment consistent with such detention (CB p.64)
c)The applicant did not indicate whether she practises Falun Gong in Australia so the Tribunal could not be satisfied that she would continue to practise on her return to China (CB p.64).
Application for review of the Tribunal’s decision
On 6 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following two grounds:
“1.I am a Falun Gong practitioner and Falun Gong is a particular social group in China which is persecuted by Chinese Government.
2.I face a risk of being jailed if I return to China.”
On 25 August 2004 the applicant appeared before me at a directions hearing where, by consent, Short Minutes of Order were made requiring the applicant to file and serve an amended application giving complete particulars of each ground of review being relied upon in this application to the Court by 17 November 2004. The applicant also consented to other orders requiring written submissions prior to the hearing. Neither of these orders was complied with.
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. When the applicant was invited to make oral submissions this invitation was declined. Despite explaining to the applicant the operation of these proceedings and encouraging her to make further submissions in support of her application before the Court, the applicant indicated that she did not wish to say anything further.
The respondent was represented by Mr J Bird, Solicitor, who provided written submissions prior to the hearing and supported by oral submissions during the hearing itself.
It was submitted that the applicant did not provide any documentary evidence to substantiate her claims and had been invited by the Tribunal to attend a hearing to explore and properly assess her claims. It was submitted that the invitation letter was sent by registered post and clearly advised the applicant that the Tribunal was unable to make a decision in her favour on the material alone (CB pp.50-51). The Tribunal received no response to the hearing invitation and the applicant had not provided a telephone number. It was submitted that a file note of a conversation between a Tribunal staff member and the applicant’s “friend” revealed that the applicant was aware of the hearing date but chose not to attend (CB p.66).
The respondent submitted that the Tribunal proceeded, appropriately and consistently with s.426A of the Act, to make an adverse decision without taking any further evidence from the applicant. It was contended that this approach was recently endorsed by the Full Federal Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs where their Honours 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.”
Further, it was submitted, that in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs, the Full Court at [15]-[16] concluded that a legislative regime that required a positive state of satisfaction as to whether protection obligations are owed, mandated a refusal decision if that state of satisfaction is not reached. It was contended that this conclusion is supported by another Full Court decision in NAST v Minister for Immigration & Multicultural & Indigenous Affairs at [4]-[5] where it is observed:
“In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.”
Reasons
The applicant in these proceedings was self represented and made no written or oral submissions to the Court. The pleaded grounds in the original application merely assert the applicant’s claim for refugee status. Where an applicant is self represented 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 do not identify any area where the Tribunal is alleged to have made a jurisdictional error.
I note that at the directions hearing that the applicant indicated her desire to participate in the RRT Pilot Advice Scheme (NSW). A member of the bar had been allocated to provide advice to the applicant and the applicant was advised of the arrangement. This offer of advice does not appear to have been accepted by the applicant.
Many applications made by protection visa applicants from the People’s Republic of China are limited to a bland statement that they are Falun Gong adherents but provide no further details as to the circumstances of their personal involvement with the movement or any details of the nature of the persecution they claimed they suffered at the hands of the authorities.
I am satisfied that the applicant has been given every opportunity to prosecute her case but has declined to appear at the Tribunal hearing and make any submissions to this Court, either written or oral, in support of her claim. I am satisfied that on the date of the directions hearing when the applicant appeared before me to obtain a hearing date, every effort was made to emphasise to the applicant the necessary steps that had to be pursued in order for the applicant to prosecute her case. The applicant declined the various offers of assistance and advice in order to prepare the matter before the Court today. Further, when invited and encouraged to make oral submissions from the bar table, that invitation was also declined. On a reading of the Tribunal’s decision, it is clear that it was made with an absolute minimum of material and no supporting oral evidence was provided despite the invitation being extended to the applicant. I do not believe it is necessary to analyse the Tribunal’s decision making process any further as the applicant has clearly failed to prosecute her claim.
Conclusion
I have not been able to identify that the Tribunal has made 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 twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 February 2005
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