SZEDQ v Minister for Immigration
[2005] FMCA 129
•17 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDQ v MINISTER FOR IMMIGRATION | [2005] FMCA 129 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth),
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.11.08(2), 13.03A(d)
Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194
SFTB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 108
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
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEDQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2492 of 2004 |
| Delivered on: | 17 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 January 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of 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 sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2492 of 2004
| SZEDQ |
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 15 June 2004 and handed down on 8 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 March 2004 to refuse to grant the applicant a protection visa.
Litigation Guardian
Rule 11.08(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) provides that, unless the Court otherwise orders, a minor in the proceedings requires a litigation guardian. Unless the Court does otherwise order, the consequence is that a minor may, start, continue, respond to or seek to be included as a party to a proceedings only by his or her litigation guardian. At the commencement of the hearing no litigation guardian was appointed and no order had been made under Rule 11.08(2). The applicant appeared before me at a directions hearing on 25 August 2004 but at that time it was not immediately apparent that he was a minor and came within the parameters of this Rule. At the time of the directions hearing the applicant would have been 16 years of age, approaching his seventeenth birthday in November 2004. The problem became apparent prior to the hearing when I reviewed the contents of the Court Book.
The Tribunal’s decision, in the opening paragraph, indicates that the applicant was an unaccompanied minor and stated his date of birth as 13 November 1988. I note that it was not accepted by the delegate and it was questioned by the Tribunal that a 15 year old boy without adult assistance or any experience of travel outside his own country had the level of maturity and organisation skill to successfully arrange an overseas trip, to engineer his escape from a tour group in a foreign country and proceed to lodge a protection visa application in this country and pursue that objective. Despite a number of inconsistencies in the applicant’s story and his own claim that he had not had adult assistance since 2003, the applicant was able to apply for and was issued with a passport by the authorities in the People’s Republic of China in December 2003, was able to arrange a letter of authorisation from his school without difficulty, was able to produce sufficient money for his visa application fee and his air fare with a travel agent to fly to Australia.
Consequently, I make the order that the appointment of a litigation guardian in accordance with the Rules is dispensed with. In making this decision I am guided by the Full Court in Odhiambo v Minister for Immigration & Multicultural Affairs (“Odhiambo”); SFTB v Minister for Immigration & Multicultural & Indigenous Affairs.
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 “SZEDQ”.
The applicant, who was born on 13 November 1988, was an unaccompanied minor from the People’s Republic of China. He arrived in Australia on 20 January 2004. On 7 February 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 30 March 2004 the delegate refused to grant a protection visa and on 27 April 2004 the applicant applied for a review of that decision by the Tribunal.
In his application to the Department, the applicant claimed he was a student and his parents were ordinary Chinese citizens, however because of his mother’s involvement in the Falun Gong movement, he and the rest of his family had been subjected to persecution by the Government. The applicant claimed his mother was seriously affected by a mental illness in the early 1990’s and was admitted to a mental hospital in 1990 and again 1991 for a long period. When released from hospital, the applicant claimed his mother was still mentally unbalanced and as a result of this in the winter of 1998, his mother was introduced to the Falun Gong movement. After a few months of continuous exercise with Falun Gong practice, the applicant claimed his mother’s health improved considerably (Court Book pp.27-28) (“CB”). Following the Chinese Government’s crack down on the Falun Gong movement in 1999 the applicant claimed his mother was forced to stop practising Falun Gong and as a result her mental illness returned. In June 1999 his mother’s mental situation deteriorated very badly and this resulted in her re-admittance to the mental hospital. When released from hospital she was forced to take the practise of Falun Gong to save her health. The applicant claimed that persecution of the family started from this point onwards.
The applicant made three central claims relating to the persecution he and his family had suffered as a result of his mother’s association with Falun Gong:
a)That his father had been compelled to leave his job;
b)That he had been on his own without adult care for significant periods of time because his father had left the family and the Chinese authorities had removed his mother in order that she attend “re-education” classes; and
c)That he had suffered persecution at his school including been prevented from attending classes. (CB pp.28-29)
The Tribunal’s findings and reasons
On 12 May 2004 the Tribunal wrote to the applicant advising that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present argument at a scheduled hearing on 3 June 2004 (CB pp.57-58). The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his case without further notice (CB p.57). The applicant attended the hearing and gave oral evidence.
The Tribunal considered the applicant’s claims in his original application and review application and his oral evidence at the hearing. The Tribunal accepted that the applicant was a citizen of the People’s Republic of China and assessed his claim against that country. It noted that the applicant was a 16 year old unaccompanied minor and it did not refer to any country information in its decision. The Tribunal found generally that the applicant was not a credible witness (CB p.76) and found there was a significant number of inconsistencies between his oral and written statements and it considered the key elements of his claims to be implausible.
In his application, the applicant claimed that his father was compelled to leave his job in 2003 and take refuge in a village to escape interrogation from the Public Security Bureau section of his employer. However, in oral evidence the applicant stated his father had left home in 2000 and had not been heard from since that time. When questioned by the Tribunal about the discrepancy in dates, the applicant attempted to explain by saying he had heard about his father’s troubles from his aunt. The Tribunal did not accept this explanation and found that, even if the applicant had heard of his father through his aunt, it was highly implausible that his father could have been compelled to leave his employment because of his wife’s involvement in Falun Gong some three years after he had left home because his wife was a Falun Gong practitioner (CB p.77).
The applicant claimed in his application that his mother was forced to attend re-education classes in Zhen Zhou city whilst in his oral evidence he said he lived in Zhen Zhou city. The Tribunal found that this raised significant doubts as to whether the applicant was in fact left on his own without adult care. The Tribunal found that even if the applicant’s mother was detained for classes the applicant had admitted during the hearing that:
a)His mother returned from re-education classes in 2002 and was in the family home with the applicant immediately prior to his departure from China; and
b)The applicant had discussed his plans to leave China with his mother (CB p.77).
The Tribunal found these admissions indicated that the applicant had not been on his own without adult care as he had claimed in his application. The applicant attempted to explain the discrepancy by stating that there had been some fault in the interpreting however the Tribunal did not accept this explanation. The Tribunal noted the delegate’s finding that a minor on his own would be extremely unlikely to have been able to obtain a passport and student status certificate if the applicant did not have adult care. The Tribunal found that the review application had re-stated that the applicant had indeed been on his own prior to his departure from China and his explanation of the inconsistency between his application and his oral evidence was not accepted as credible (CB pp.77-78).
In finding that the applicant was not on his own prior to his departure from China, the Tribunal also considered that the applicant took only twenty days to plan his departure and was able to raise the equivalent of $AU4,600 at that time. The Tribunal considered that the applicant’s explanation that he had borrowed small sums from friends and relatives to be implausible (CB p.78).
The applicant claimed that six months prior to his departure from China he was compelling to stop attending school and was forced to study anti-Falun Gong propaganda at his home. When the Tribunal asked him why he could not transfer to another school, the applicant said the school system was very rigid and included requirements that he attend school in his immediate neighbourhood. The applicant’s trip to Australia was an organised trip for school students and in order to participate he was required to obtain a certificate indicating his student status. The Tribunal found that it was unlikely that a student who was persecuted in the manner described by the applicant would be able to obtain such a certificate from his school. The applicant then claimed his aunt had obtained the certificate from a different school within the twenty days in which he organised the trip. However, the Tribunal found the applicant’s claim regarding this issue to be implausible (CB pp.78-79).
The Tribunal asked the applicant why he had chosen to come to Australia rather than relocating to another Chinese city. The applicant claimed he could not move because the Public Security Bureau (PSB) and the police were looking for him and would find him anywhere in China. The Tribunal considered, however, that it was necessary for the applicant to present his student status certificate to the PSB for an exit approval and it found it incredible that the applicant would be unwilling to take refuge in a large city such as Beijing because of fears the PSB might find him, but was willing to present his student status certificate to the PSB. The Tribunal found that contrary to the applicant’s claims, the applicant was not a person to whom either the PSB or the educational authorities had an adverse interest (CB p.79).
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 setting out the following grounds:
“1.I had explained to the RRT officer about the disasters my mother and I had been through, he just simply didn’t believe me. As I am here in Australia, my mother is in the detention cell of Public Security Bureau in China, I have no relatives to help me obtaining documentation. I pledged the officer giving me more time to provide him evidence. He denied my request and made a decision without waiting.
2.Some claims I put forward was either ignored or not given weight.
3.I hold strong fear of return to China. My father has dumped my mother and me because of my mother’s involvement with Falun Gong. My mother is currently at detention office. I have no brothers or sisters in China. What is facing me should I return to China is obvious – jail. My home has been sealed off by police. I have no home to return.” (Errors included)
The applicant has not drawn any distinction between the relief sought and the grounds but has provided a number of statements in support of his refugee status. 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 full particulars of each ground of review relied upon by 17 November 2004, together with other orders requiring written submissions to be filed prior to the hearing. No amended application or written submissions were received.
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 self represented litigant failed to appear at the hearing. The hearing was deferred by 20 minutes to allow for late arrival should the applicant have been delayed in attending Court. The matter was called and attempts were made to locate the applicant outside the Court. However, there was no appearance by the applicant and nothing has been heard from the applicant regarding his non appearance.
I am satisfied that at the directions hearing the applicant was provided with material which indicated the location of the Court where the hearing was to be held and that correspondence had been issued subsequent to those directions hearing which indicated the time, date and location of the hearing. Consequently, I directed that in accordance with Rule 13.03A(d) of the Rules, the hearing be proceeded with generally although the applicant had failed to attend.
The respondent was represented by Mr J Bird, Solicitor, who provided written submissions prior to the hearing supported by oral submissions during the hearing itself.
Respondent’s submissions
It was submitted that the Tribunal dealt extensively with the applicant’s claims, finding that the applicant did not face persecution nor would be likely to face persecution if he were to return to China. The respondent submitted that the application before the Tribunal failed because the applicant’s claims were inconsistent and implausible and the Tribunal noted that it found the applicant “far from credible” (CB p.76). It was submitted that it was clear from the Tribunal’s decision that it put all its doubts about his credibility to the applicant and afforded him an opportunity to explain the inconsistencies in his story (CB pp.8.3, 9.4, 10.3, 13-15).
The respondent submitted that findings of adverse credibility, where such findings are reasonably open on the evidence before it, are properly the function of the decision-maker and generally not susceptible to judicial review by the Court: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham at [67]. It was submitted that the Tribunal’s adverse credibility findings were clearly reasonably open to it on the evidence and should not be disturbed by the Court.
It was submitted that the applicant sought more time to corroborate his claims but there is no evidence of this in the Tribunal’s decision and the applicant did not adduce evidence of a hearing transcript to substantiate this claim. In any event, the respondent submits, the applicant was not disbelieved on his mother’s association with Falun Gong but rather the Tribunal’s decision turned on a range of internal inconsistencies in the applicant’s own story. It was submitted that it was difficult to see what new information could have done other than to change the applicant’s situation and again raise the same credibility issues.
The respondent accepted that a minor fleeing his country and arriving in Australia unaccompanied and seeking protection raises a considerable degree of concern. However, it was submitted, the applicant’s status as a minor cannot, on its own, ground a failure in the Tribunal’s decision making process: Odhiambo where the Full Court concluded at [101] that the statutory regime governing the review process must be allowed to operate on its own terms without the need to engraft additional rules and processes.
Reasons
The applicant in these proceedings was self represented but failed to appear at the hearing although I am satisfied that he had been provided with sufficient materials to enable him to locate the Court and that the time, date and location had been provided to him when he attended a directions hearing before me. The applicant has failed to comply with the orders of the Court in respect of filing documentation to enable him to prosecute any claim he may have regarding the Tribunal’s decision.
Where an applicant is self represented the Court must independently consider whether any arguable case based on the material before it could have been made out: Yo Han Chung v University of Sydney & Ors. As the pleadings do not identify any ground for review of the Tribunal’s decision, the Court is obliged to determine whether any jurisdictional error has been made.
On a fair reading of the decision I am satisfied that the Tribunal member discharged his obligation in accordance with the Act. The Tribunal’s decision hinged on the applicant’s credibility particularly in respect of the inconsistencies within his own story. The submissions made by Mr Bird, Solicitor for the respondent, are helpful and address the issues such as the applicant being a minor.
Conclusion
The applicant has not identified any grounds that the Tribunal made jurisdictional error in its deliberations nor is there any evidence on the face of the document determined by a fair reading. 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 thirty-two (32) 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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