SZEDW v Minister for Immigration
[2005] FMCA 103
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDW v MINISTER FOR IMMIGRATION | [2005] FMCA 103 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa. |
Migration Act 1958 (Cth), ss.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: | SZEDW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2505 of 2004 |
| Delivered on: | 24 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 24 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 |
SYG2505 of 2004
| SZEDW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These are the published reasons for judgment in this matter.
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 9 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 the provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEDW”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 12 February 2004. On 25 March 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 that she was born on 24 March 1958 and is a Chinese national. She stated she had eleven years of education and worked in a shoe factory in Putian City, Fujian Province, China from 1977 until July 2003 and in an import/export company in Pretoria, South Africa from August 2003 to January 2004 (Court Book p.19) (“CB”).
The applicant travelled to Australia legally using a passport issued in Pretoria, South Africa on 17 October 2003. Her Australian visa was issued in Pretoria on 16 January 2004. The applicant claimed she had no difficulty obtaining a passport (CB p.24).
In the visa application and supporting typed statement of one and a half pages, the applicant claimed that:
a)She began practising Falun Gong in 1997.
b)The police detained and beat her for this reason on several occasions.
c)To avoid further persecution she had to leave China and work in South Africa.
d)In September 2001 she was detained for twenty days. The stress triggered a recurrence of her epilepsy.
e)In November 2002 she went to Beijing to appeal for Falun Dafa. When she admitted to being a Falun Gong practitioner police pushed her to the ground and kicked her. She was arrested and detained for a month.
f)When the police tried to force her to sign a statement stating that she would not practice Falun Gong, she wrote “Falun Dafa is good”, which led to her being detained for a further month.
g)Her husband asked a government official friend of his to help her apply for a South African work visa in August 2003.
h)On 16 January 2004 she was granted an Australian Temporary Business Visa.
i)She left South Africa on 11 February 2004 to see her family in China and found that she was still at risk of being jailed in that country.
j)She came to Australia on 12 February 2004. (CB pp.12-13)
The Tribunal’s findings and reasons
On 19 May 2004 the Tribunal wrote to the applicant advising that it had considered all the material relating to her 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 hearing on 15 June 2004. The applicant was advised that if she did not attend the hearing and a postponement was not granted the Tribunal might make a decision on her case without further notice (CB pp.54-55). No response was received to the Tribunal’s letter. On the applicant’s application for review she did not provide a telephone number at which she could be contacted nor did she nominate an adviser. The applicant failed to appear before the Tribunal at the scheduled hearing. In these circumstances and pursuant to s.426A of the Act, the Tribunal member decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal accepted that the applicant was a national of the People’s Republic of China and assessed her claims against that country. The decision was based on the written statements provided by the applicant in her initial application and her application for review. The applicant had provided no other documentary evidence of her claims.
The applicant claimed that due to her beliefs she was detained and beaten by police on several occasions and to avoid further persecution she fled to South Africa and worked for five months. In September 2001 the applicant returned to China and claimed she was detained for twenty days. In November 2002 she went to Beijing “to appeal for Falun Dafa” and as a result of her admission, she claimed she was pushed and kicked by police. She stated she was then arrested and detained for a month and when the police tried to force her to sign a statement that she would not practice Falun Gong she wrote “Falun Dafa is good” which led to a further month’s detainment. The applicant claimed her husband asked “his old friend”, a government official, to help her apply for a South African work visa in August 2003. On 11 February 2004 she left South Africa to visit her family in China and stated that she was still at risk of being jailed in that country.
The Tribunal noted its concern at the lack of detail provided by the applicant in her protection visa application (CB p.66). With regard to the applicant’s claim that she went to South Africa to avoid further persecution, the Tribunal noted that the applicant had not indicated whether she had applied for protection in that country and if she had not the Tribunal questioned why she failed to do so (CB p.68).
The Tribunal was not satisfied on the evidence that the applicant was a Falun Gong practitioner in China or Australia. Consequently, the Tribunal could not be satisfied that the applicant suffered mistreatment or detention for this reason. Nor was the Tribunal satisfied that the applicant would suffer persecution in the reasonably foreseeable future if she returned to China (CB pp.68-69).
Application for review of the Tribunal’s decision
On 10 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 was tortured and prosecuted by my original government because I belong to a particular social group – Falun Gong.
2.I face a risk of being jailed if I went back to my original country.”
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 1 November 2004, together with other Orders requiring written submissions 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.
Submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. When she was invited to make oral submissions this was limited to a request that the Court make its decision as to the outcome of these proceedings as quickly as possible. Despite being encouraged 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 supported by oral submissions during the hearing itself.
The respondent submitted that the applicant’s claim failed due to a lack of detail and she did not provide any documentary evidence to substantiate her claims. It was submitted that the Tribunal had invited the applicant to a hearing to explore and properly assess her claims but no response was received to the Tribunal’s hearing invitation and the applicant was not able to be contacted as she did not provide the Tribunal with a telephone number.
It was submitted that the Tribunal proceeded appropriately and consistently with s.426A of the Act in making its decision in these circumstances and this approach was recently endorsed by the Full 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 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.
The respondent submitted that this conclusion was 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 and made no written submissions and only a limited oral submission during the hearing concerning the timing of the outcome of the Court’s deliberations. The grounds of the original application are vague and unparticularised and 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 accept the approach taken by the respondent’s solicitor, Mr Bird, and have reproduced his submissions which I believe assist me in the resolution of this matter. This Court is faced with the same dilemma as that of the delegate and the Tribunal in that the applicant has only provided the absolute minimal material in stating her case as a refugee. All attempts to obtain further information from the applicant, either by lodging documentary evidence or appearing at the hearing to give oral evidence, have been declined.
I note that the applicant indicated at the directions hearing her desire to participate in the RRT Pilot Advice Scheme (NSW). However, despite making arrangements with the legal adviser, the applicant failed to attend the arranged meeting. Written advice was then provided by the adviser to the applicant however the opportunity to attend a face to face conference was not taken by the applicant and no explanation was provided to the adviser for the failure to attend. Subsequent to that abandoned meeting, there has been no attempt by the applicant to contact or seek a further conference with the adviser.
In the section headed “Findings and Reasons” of the decision, the Tribunal sets out the authority that the decision maker is not required to make out the applicant’s case for him or her. Nor is it the obligation of the decision maker to accept uncritically any or all of the allegations made by the applicant (CB p.68).
On a reading of the Tribunal decision, it is clear that it was made with an absolute minimum of material and no supporting oral evidence despite the invitation being extended to the applicant. I am satisfied that all procedures required by the decision maker have been pursued during this process. I am satisfied that on the date of the directions hearing when the applicant appeared before me to obtain a hearing date efforts were 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 advice and assistance in order to prepare for this matter before this Court today. Further, when invited and encouraged to make oral submissions from the bar table, that invitation was also declined.
Conclusion
I have not been able to identify that the Tribunal has committed 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-nine (29) 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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