SZEDP v Minister for Immigration
[2005] FMCA 102
•17 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDP v MINISTER FOR IMMIGRATION | [2005] FMCA 102 |
| 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, 425(1), 426A, 441A(4), 474, Part 7, Div 7A
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
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474
SZBBI & Anor v Minister for Immigration [2004] FMCA 946
S58 of 2003 v MIMIA [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: | SZEDP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2489 of 2004 |
| Delivered on: | 17 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 24 January 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by the applicant.
| 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 amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2489 of 2004
| SZEDP |
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 23 June 2004 and handed down on 14 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 10 March 2004 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to the provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEDP”.
The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 26 February 2004. On 5 March 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 10 March 2004 the delegate refused to grant a protection visa and on 8 April 2004 the applicant applied for a review of that decision.
The applicant stated he was born on 3 December 1959 and was a separated male from Tieling City, Liaoning Province, China. The applicant completed ten years of schooling, described his occupation as “Woodworker” and stated he had worked in a timber mill from 1978 to December 2002.
In his application for a protection visa, the applicant stated he had lived at the same address in Tieling City until March 2003. The applicant’s specific address in China after this date was not stated. The applicant became unemployed in January 2003 and subsequently left China in February 2004 to travel to Australia.
The applicant’s claims to protection are set out in a one and a half page type written statement which accompanied his visa application. He stated he left China because of the mistreatment he suffered as a Falun Gong practitioner. This mistreatment included his termination of employment at the timber mill in December 2002, imprisonment and harassment perpetrated by other employees. The applicant claimed his interest in Falun Gong started in 1996. He claimed he became interested in Falun Gong for health reasons as he suffered from asthma and found that the practice of Falun Gong alleviated this condition. The applicant claimed he became active in promoting Falun Gong to other people and soon became one of the “key group leaders” in Tieling (Court Book pp.14-15) (“CB”).
The applicant made the following specific claims in relation to his treatment by the Chinese authorities because of his adherence to Falun Gong:
a)On 16 November 1999, the applicant attended a meeting of Falun Gong group leaders from various provinces in a building in which he used to live. The police surrounded the building, dragged the group members to the ground and put their hands behind their back. The police kicked the applicant in his stomach, face, shoulders, legs and back. He lost consciousness and woke the next morning in a detention cell. The applicant was detained for two months and claimed he woke from a long period of unconsciousness in a hospital bed with his wife by his side. He was there for one month and returned home hardly able to work.
b)When the applicant recovered, he returned to work at the timber mill but was warned by his employer not to practice Falun Gong. Despite the warning, he continued to organise secret meetings with other leaders.
c)The applicant claimed there is a book written by a high ranking Chinese official which exposed reasons why the Government sought to suppress Falun Gong and detailed mistreatment of practitioners. He was sent thousands of copies from a friend in Australia, which he distributed in China.
d)The applicant was arrested and detained on a second occasion for 30 days in November. After his release he separated from his wife and his employer terminated his employment. The applicant continued Falun Gong practice when alone and unemployed and was arrested and detained several times.
e)As a result of his detentions, the applicant’s health deteriorated and a friend helped him apply for a passport and he came to Australia. In relation to his departure from the country, the applicant claimed he used different names when organising meetings and never disclosed his real identity.
f)After the applicant’s arrival in Australia he claimed he became a leader of Falun Gong and promoted it in Chinatown. He had been photographed by tourists and media many times and he stated it was common knowledge that Falun Gong had an association in Australia.
g)The applicant claimed to fear more serious punishment from the Chinese authorities as they target Falun Gong leaders overseas because they are unable to control their activities.
The Tribunal’s findings and reasons
On 23 April 2004 the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to his application but was unable to make a favourable decision based on the information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 22 June 2004. The Tribunal advised the applicant that if he did not attend the hearing and if a postponement was not granted it may make a decision on his case without further notice (CB pp.44-45). This letter was sent to the applicant at his home address as well as to his mailing address (Post Office Box) which he had indicated on his application for review form. On 17 May 2004 the letter sent to the applicant’s home address was returned to the Tribunal marked “Return to Sender – Unclaimed” (CB p.47). No reply was received in respect of the letter forwarded to the applicant’s mailing address and the letter was not returned to the Tribunal unclaimed.
On 16 June 2004 an officer of the Tribunal attempted to contact the applicant on the mobile telephone number which he had provided on his application for review form. The officer was told by the person who answered the phone that she had the wrong number (CB p.48). No other contact details were provided by the applicant. The applicant did not appear before the Tribunal on the day at the time and place at which he was scheduled to appear. He did not contact the Tribunal to explain his non appearance or to seek a postponement. In these circumstances, and pursuant to s.426A of the Act, the Tribunal made its decision on review without taking any further action to allow the applicant to appear before it.
The Tribunal accepted that the applicant was a national from the People’s Republic of China and assessed his claim against that country. The Tribunal accepted that a person may face persecution due to their involvement in Falun Gong. However, the Tribunal did not accept that the applicant was such a person who would face persecution (CB p.62). It did not believe the applicant had faced persecution in the past, noting the applicant’s claims were a series of unsupported and vague assertions “lacking in detail in significant respects”:
a)The applicant claimed he was first detained in November 1999, and next detained in 2002. However, he did not explain how he was able to avoid having his activities noticed for the long period of time in between (CB p.63).
b)The applicant did not provide any details of how and where he received and distributed the thousands of copies of books (CB p.63).
c)The applicant gave no details about the duration, occurrence or location of the several other times he claimed to have been detained. He did not provide details as to how he was able to secure release from detention (CB p.63).
The Tribunal stated that the applicant’s contention that the Falun Gong is associated in Australia said nothing about his involvement or leadership within the movement. He provided no other information to support this contention. The Tribunal was also suspicious that the applicant’s claims indicated two different dates of when his employment at the timber mill was terminated (December 2002 and January 2003). As the applicant did not appear at the hearing, the Tribunal found it had insufficient information before it to conclude that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal concluded the applicant’s claim was unreliable and he had not suffered persecution (CB p.64).
Application for review of the Tribunal’s decision
On 9 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 however this application contained no grounds. The applicant appeared before me at a directions hearing on 25 August 2004 and by consent to Short Minutes of Order agreed to file and serve an amended application giving full particulars of each ground of review relied upon by 5 November 2004. On 5 November 2004 the applicant filed a document headed “Amended Application” which contained the following grounds:
“1.The DIMIA stated that it is an unreasonable scenario that I become Falungong Leader after arriving in Australia, however they did not provided reasons or Grounds to explain why it is unrealistic. It is a common fact that Falungong has its own association in Australia.
2.The DIMIA stated that the PRC border police check the identity of individuals against a movement alert list, therefore I won’t be able to leave China easily. I actually always use different names when organizing and leadering Falungong movements. I never disclose my real name and identity. Also the so-called movement alert list includes huge amounts of people, it is not hard to escape under the eyes of the border polices.
3.Errors of law in that processing by the DIMIA.
4.It is not easy to got evidence from China against my government, but I am trying to get some evidence to supporting me and send to the court before hearing date.” (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.
Hearing
The matter was listed for hearing this day and there was no appearance by the applicant. The matter was listed for hearing at 10.15 a.m. but did not immediately proceed at that time because of the absence of the applicant. The matter was finally called before me at 10.30 a.m. and the applicant was not present. The matter was called outside the Court and attempts were made to locate the applicant. However, there was no appearance by the applicant.
As the applicant had appeared before me at the directions hearing considerable time had been spent informing the applicant of the location of today’s hearing as well as providing him with a map detailing the location of this Court. When the applicant appeared at the directions hearing he had the assistance of a Mandarin interpreter who explained the various steps leading up to the hearing today, guided by the respondent’s solicitor and myself.
I am satisfied that the applicant had been informed of the time, location and significance of today’s hearing. In the circumstances, I decided to hear the submissions of the respondent in the substantial application.
Submissions
Mr J Bird, Solicitor of Phillips Fox, appearing for the respondent, filed written submissions prior to the hearing. It was submitted that:
a)The applicant did not provide any documentary evidence to substantiate his claims. The applicant declined his invitation to appear at a hearing meaning that the Tribunal was unable to explore and properly assess the veracity of his claims. The Tribunal attempted to contact the applicant by telephone but the mobile phone number provided by the applicant was incorrect.
b)There is no suggestion that the applicant did not receive the invitation to attend his Tribunal hearing. In any event, Part 7 Division 7A of the Act “Giving and Receiving Review Documents” sets out a scheme for when a person is taken to have received documents from the Tribunal. If an invitation to a hearing is duly given to the applicant in accordance with Part 7 Division 7A, it follows that the applicant was invited to appear as required by s.425(1). Failure to appear allows the Tribunal under s.426A(1) to make a decision on the application in the absence of the applicant.
c)The Tribunal’s file indicates that it sent the hearing invitation to the addresses nominated by the applicant by registered post within three working days of the date of the letter, in accordance with s 441A(4) of the Act. The fact, if this is indeed the case that an applicant did not become aware of the invitation to a Tribunal hearing, does not displace the conclusion mandated by Part 7 Division 7A that the invitation was duly given to them. See VNAA v Minister for Immigration & Multicultural & Indigenous Affairs at [15].
d)The respondent submits that in the present circumstances, where an applicant fails to appear at a hearing to assist the Tribunal assess the veracity of his claims, it is hardly surprising that the Tribunal could not be satisfied that the applicant has a well-founded fear of persecution. This approach was recently endorsed by this Court in SZBBI & Anor v Minister for Immigration where Driver FM noted at [5]:
“The first applicant elected not to attend a hearing before the RRT and, in the circumstances, the RRT had very limited material upon which to base its decision. The decision by the first applicant not to attend a hearing before the RRT rendered the outcome of his protection visa application inevitable.”
e)In S58 of 2003 v MIMIA 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".
f)Further, in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs, the Full Court, at [15]-[16], concluded that a legislative regime which 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.
g)This conclusion is supported by another Full Court decision: see NAST v Minister for Immigration & Multicultural & Indigenous Affairs at [5] where it is observed:
"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, has made no written submissions and failed to attend the hearing to make supporting oral submissions. The grounds on the original application were absent and the amended application does not identify or particularise any grounds for review. 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.
I accept the approach taken by the respondent’s solicitor, Mr Bird, and have reproduced his submissions that I believe assist me in the resolution of this matter. I have read the Tribunal’s decision and acknowledge the problem that the Tribunal member had in this review in that the only information placed before the Tribunal was the applicant’s type written statement which was attached to his original application. The applicant had not submitted any further information in support of his claim despite being invited to do so and he failed to attend the Tribunal hearing.
The Tribunal member had extensive country information before her which detailed the operation of the Falun Gong movement in China. The Tribunal member made the following observation in the Tribunal decision under the heading of “Findings and Reasons”:
“The applicant has been put on notice by the primary decision as to the reasons why the primary decision maker was not satisfied he was a refugee and that the material he had provided did not support a finding that he had a well-founded fear of Convention persecution. He has also been put on notice that the Tribunal had been unable to make a decision in his favour on the information provided. Notwithstanding these matters he has not provided any additional written or oral information to the Tribunal which would enable me to be satisfied that he has a well-founded fear of persecution for Convention purposes.” (CB p.64)
The Tribunal member referred to the relevant authorities brought into contention that a decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any or all of the allegations made by the applicant (CB p.64).
I am satisfied that the applicant in this matter has simply failed to provide the delegate and the Tribunal sufficient information to support his claim. He has then failed to prosecute the matter further by not identifying or particularising the nature of his claim against the Tribunal’s decision. I am satisfied that the applicant was provided with the opportunity to obtain free legal advice offered in the RRT Pilot Advice Scheme (NSW). However, this offer was declined. On two key occasions when the applicant was required to attend the Tribunal hearing and the matter in this Court, there was non appearance without explanation or any subsequent request to be given an opportunity for a new hearing.
Conclusion
I have not been able to identify any ground that the Tribunal has committed any 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-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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