SZEDY v Minister for Immigration
[2005] FMCA 246
•24 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDY v MINISTER FOR IMMIGRATION | [2005] FMCA 246 |
| 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, 474
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(d)
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 Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688
| Applicant: | SZEDY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2515 of 2004 |
| Delivered on: | 24 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Ms M Asimus of Blake Dawson Waldron |
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 $3,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2515 of 2004
| SZEDY |
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 1 July 2004 and handed down on 27 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 8 April 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 “SZEDY”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 27 March 2004. On 5 April 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 8 April 2004 the delegate refused to grant a protection visa and on 11 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant was born in October 1959 in Guangxi, China. He completed nine years of education and was employed from 1977 to 2004. The applicant resided at the same address in China from his birth until departing from China in March 2004. He was issued with a passport on 31 July 2003 and travelled to Australia on 9 March 2004 on a one month visa.
The applicant claimed he first commenced learning Falun Gong for health purposes. He stated that after a few months he realised the benefit in his improved health and thought he could not live without practising Falun Gong. The applicant stated that the practise of Falun Gong was outlawed by the government and he started to “live in horror” and was often called together with other company workers for “brain washing” sessions (Court Book p.24) (“CB”).
In April 1999 the applicant claimed he was in Zhong Nan Hai to present a petition to the Chinese government and in July 1999 he went with thousands of other Falun Gong members to Beijing where they were dispersed by the army. He claimed that when he returned to Guangxi because he was concerned about his safety and so that the government could not detect his activities in Beijing, he left his job and went into hiding for some weeks. The applicant claimed that several of his co-workers were detained and sentenced to imprisonment and it was only because he left his work on time that he was able to avoid persecution (CB p.24).
The applicant stated that the situation improved and he found another job at the Ding Jia Import and Export Company and started to re-establish his life. He claimed that he could not live without Falun Gong and continued to practise privately and eventually became the leader of his local area. The applicant claimed that in May 2003 when he and a group were practising Falun Gong, the police came and arrested people including his assistant. He stated he feared for his safety so he commenced preparations to leave China. The applicant claimed that if he were to return to China he would be arrested and persecuted by Chinese authorities (CB p.25).
The Tribunal’s findings and reasons
On 24 May 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone. He was invited to give oral evidence to present arguments at a hearing of the Tribunal on 24 June 2004 (CB pp.52-53). On 22 June 2004 the applicant advised the Tribunal in writing that he did not wish to give oral evidence and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it (CB p.56).
The Tribunal did not accept that the applicant held a genuine fear of persecution, or that any fear that he claimed to have was well-founded (CB p.68.5). The Tribunal was not satisfied that:
a)the applicant was a genuine and sincere practitioner of Falun Gong (CB p.69.2);
b)the applicant was compelled to leave his employment, was forced into hiding, was brainwashed by the company or persecuted in any way because of Falun Gong practice, or that he would have a well-founded fear of persecution should he return to China (CB p.69.3).
The Tribunal found that it could not accept that the applicant would have a well-founded fear of persecution for a Convention reason should he return to China, and was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention (CB pp.69.5-69.6). The Tribunal rejected the basic premise upon which the applicant’s claim was founded and therefore his claim to be a refugee fell away. The findings of fact made by the Tribunal were open on the materials before it.
Application for review of the Tribunal’s decision
On 11 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 was not given a proper opportunity to explain my case.
2.The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.”
On 10 September 2004 the applicant appeared at a directions hearing and consented to orders to file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court by 12 November 2004. On
11 November 2004 the applicant filed and served a document headed “Amended Application” but was presented in the form of a single page letter which contained the following statements:
“The Tribunal officer made mistakes when considering my application. He did not have any evidence or materials to justify the making of his decision. I believe that the officer had bias against me, and made the conclusion based on his bias against me.
Please refer to the decision letter from RRT. The Tribunal Officer mentioned: ‘There is no suggestion that he suffered any form of persecution at hands of the Chinese authorities but claims that he had to leave his bank position in order to hide because he feared for his safety’. I lost my job; I would not have left my job if I did not suffer persecution from the Chinese authorities.
I would not have to hide myself if the Chinese authorities did not pursue me.
The officer also mentioned: ‘As I find the applicant has not provided sufficient evidence to support his assertion that he is a Falun Gong practitioner, I am not satisfied that he is a genuine and sincerely practitioner of Falun Gong as claimed. Accordingly, I am not satisfied that the applicant was compelled to leave his bank position, was forced into hiding, brainwashed by the company or persecuted in any way because of Falun Gong practice, or that he would have a well founded fear of persecution should he return to the PRC’.
I believe that the above-mentioned statements are induced by actual bias of the officer and there is not any evidence or materials to justify the making of such statements. I believe that he made jurisdiction mistakes in considering my application.
Meanwhile, my main reason of leaving China was because my assistant had been detained as we practised Falun Gong together, his arrest became a major threat to me. He may have disclosed lots o details about my activities with Falun Gong and became evidence. I left China for protection mainly because of that. Otherwise I would have left earlier.” (Errors included)
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.
The hearing
The applicant did not appear at the hearing which was scheduled to commence at 2.15 p.m. The matter did not immediately proceed at that time and a fifteen minute period of grace was given should the applicant be in transit or experiencing difficulty in locating the Court. During the delay, Court staff attempted to locate the applicant on the telephone numbers provided by the applicant however there was no response. The respondent’s solicitor also advised the Court that their office had attempted to contact the applicant earlier in the day to ensure his attendance at the hearing but no contact was made.
The applicant appeared before me on 10 September 2004 at a directions hearing at which time he was provided with a copy of the consent orders which detailed the date, time and location of the hearing. This was supplemented by a diagram which indicated the location of the Court. The only material which the applicant had placed before the Court is set out above in paragraph 12. The Court Book also contains documentation which indicated that the applicant had declined the invitation to attend the Tribunal hearing. The orders made on 10 September 2004 requiring the applicant to file submissions fourteen days prior to the hearing had not been complied with. In the circumstances, I decided to proceed with the hearing generally pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth).
Reasons
The obligation is on the applicant to make out his own case. Having regard to the fact that the Tribunal only had before it the facts set out by the applicant in his one and a half page typed statement attached to his original application for a protection visa, this was the only material on which it could proceed. The relevant facts pertaining to the applicant need to be supplied by him in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out: Minister for Immigration & Ethnic Affairs v Guo & Anor per Kirby J at 596.
In this case the applicant had the opportunity to attend the Tribunal hearing and furnish additional facts. In the Tribunal’s letter dated
24 May 2004 inviting the applicant to attend the hearing on 24 June 2004, it clearly states the Tribunal was unable to make a decision in his favour based on the material before it (CB pp.52-53). The letter also explained that beside giving oral evidence and presenting arguments in support of his case, the applicant was also invited to obtain oral evidence from any other person or persons that could support his claim. The letter also highlighted that, in the circumstance of the applicant failing to attend the hearing or seeking an adjournment of the hearing, the Tribunal would not postpone the hearing and could proceed to make a decision on the applicant’s case without further notice.
The delegate was not provided with any evidence to substantiate the applicant’s claim of an association with the Falun Gong movement in either China or more recently in Australia (CB p.38). The Tribunal observed that the applicant’s claims were vague, general and lacking in detail and summarised its findings as follows:
“As I find the Applicant has not provided sufficient evidence to support his assertion that he is a Falun Gong practitioner, I am not satisfied that he is a genuine and sincere practitioner of Falun Gong as claimed. Accordingly, I am not satisfied that the Applicant was compelled to leave his bank position, was forced into hiding, brainwashed by the company or persecuted in any way because of Falun Gong practice, or that he would have a well founded fear of persecution should he return to the PRC.”
The applicant has made little effort to prosecute his claim by failing to provide the delegate or the Tribunal with sufficient information to support his situation and when invited to attend a hearing to make oral submissions or furnish any further material, the offer was declined.
A number of new issues were raised by the applicant in the document headed “Amended Application”. The first of these claims was that the Tribunal member did not have any evidence or material before it to justify its decision. Part of this allegation may be true to the extent that the applicant has failed to supply sufficient material to the Tribunal to satisfy it of the applicant’s claims. However, the Tribunal did have at its disposal a range of relevant country information which addressed issues in respect of Falun Gong and the procedures adopted by the Chinese authorities in respect of the issuing of passports and the movement of Chinese citizens through their exit permit processing. The most recent of these reports indicated that the Falun Gong practitioner who participates in these activities in his private home is unlikely to come to the attention of the authorities. The applicant on his own admission indicated that he adopted a low profile after his return from Beijing to avoid detection by the authorities due to his adherence to the Falun Gong practice and philosophies.
The other issue raised in the amended application was bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. The applicant referred to two passages from the Tribunal’s decision which he claimed illustrated the Tribunal officer was induced to make these statements by actual bias. In the absence of further evidence in support of this claim of bias the likelihood of the applicant’s ability to sustain the issue is extremely difficult. In SCAA v Minister for Immigration & Multicultural & Indigenous Affairs per von Doussa J at [38]:
“In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.”
As the applicant declined to attend the hearing and had not met the Tribunal member, there was an absence of evidence in support of any claim that the Tribunal member approached the task demonstrating bias.
The applicant then raised the issue of the arrest and detention of his assistant. This issue was raised in the applicant’s original statement in the very brief one sentence reference:
“The government has arrested my assistant if I go back, I will be detained and persecuted.” (CB p.25)
In the amended application, this issue was given a much more significant emphasis in that the claim of the major threat to the applicant was the arrest and detention of the assistant whom the applicant feared may disclose details of the applicant’s activities in respect of his observance of Falun Gong. This allegation was untested. The applicant declined the opportunity to appear at the oral hearing and supplement the various matters that may have warranted more weight by the applicant’s argument. From the limited information provided in the statement, it would appear that the applicant travelled to Beijing in 1999 to protest about the treatment of Falun Gong practitioners. The retirement from his employment in the bank was claimed to have taken place shortly after to allow the applicant to adopt a low profile and avoid detection. The arrest of the assistant appears to have taken place in May 2003 presumably when the applicant had adopted this low profile and was practising his Falun Gong covertly or secretly. Presumably, the arrest in May 2003 of the assistant that was aware of this private adherence to Falun Gong would have immediately raised concerns with the applicant in respect of his well being and the possibility of apprehension by the authorities. However, the applicant’s departure from China took place 11 months after this incident of his assistant’s arrest which raised the question as to the extent of the applicant’s fear of persecution.
The final statement of the amended application made an even more curious contention in that, except for the arrest of the assistant, the applicant “would have left [China] earlier”. This proposition does not fit comfortably with the balance of his claim.
Conclusion
The applicant in these proceedings has failed to identify any grounds of review of the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any errors in the decision making process. The applicant has not prosecuted his claim nor has he availed himself of the opportunities provided by the Tribunal to augment the material before the Tribunal to make its decision. As there was no evidence of 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-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 March 2005
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