SZEEA v Minister for Immigration
[2005] FMCA 319
•2 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEEA v MINISTER FOR IMMIGRATION | [2005] FMCA 319 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Part 13, 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
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEEA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2517 of 2004 |
| Delivered on: | 2 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 A Alex 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 $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2517 of 2004
| SZEEA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The substantive application was listed for 10.15 a.m. on 2 March 2005 before this Court. The applicant in the proceedings failed to appear. The respondent had complied with orders made at the directions hearing by preparing, filing and serving a Court Book and written submissions for the substantive hearing. The applicant had been given a period of grace to appear but did not respond to the matter being called approximately twenty minutes after the scheduled hearing time. Nothing was heard from the applicant to indicate her inability to attend the hearing.
In accordance with the Federal Magistrates Court Rules 2001 (Cth), Rule 13.03A(d), I proceeded with the hearing generally in the absence of the applicant. With the benefit of the contents of the Court Book and both written and oral submissions from the respondent, I made orders at the completion of the hearing and indicated that I would publish my written reasons for those orders.
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 June 2004 and handed down on 8 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 2 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 “SZEEA”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 17 February 2004. On 24 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 2 March 2004 the delegate refused to grant a protection visa and on 6 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claimed she was born in Jilin, Liaoning Province, People’s Republic of China in 1965. She resided at the same address continuously from 1993 until 2004. She is a married woman and claimed she worked from 1987 as a manager and then a “private owner” of a small business until she departed for Australia. The applicant was issued a Chinese passport in October 2002 and granted a visa to Australia on 30 December 2003. She departed China on
16 February 2004 and claimed she had no difficulty obtaining her travel documents and left China legally. The applicant’s application indicated she has no charges or investigations pending or any convictions against her (Court Book p.25) (“CB”).
The applicant’s claim is that she started practising Falun Gong for her health in 1995. In September 1999, after Falun Gong was banned by the Chinese Government, she went to Beijing “to appeal” and to tell the Government of the benefits of Falun Gong. She claimed she was arrested and detained for three weeks and then “sent to the Jilin Labor Camp for three years of forced labor” (CB p.26). In the camp she practised Falun Gong exercises and informed the guards and inmates about Falun Gong, for which she was punished. The applicant claimed she was released from detention in October 2002. She stated that she feared if she continued to live in her home city she would face more severe punishment. The applicant stated that she sold all her belongings and raised 175,000 yuan in order to bribe a “powerful government official to issue a passport” and applied for an Australian tourist visa (CB p.27).
The Tribunal’s findings and reasons
As the applicant did not attend her hearing, the Tribunal proceeded to determine the matter on the written information before it (CB p.63) and made the following findings in its decision:
a)The Tribunal found the applicant’s claims to be vague and lacking in detail in many important respects. As such, it could not be satisfied that the applicant had ever been a Falun Gong practitioner due to the lack of evidence provided (CB pp.64-65).
b)In addition, the Tribunal was unable to accept that the applicant went to Beijing to protest on behalf of Falun Gong or that she was detained and went to a labour camp (pp.64-65).
The Tribunal found an inconsistency between details given in Form C of the applicant’s primary application and her statement of claims. In particular, it found her statement that she had been in prison for three years to be inconsistent with her claims that she lived at the same address from 1993 until her departure and also that she worked continuously from 1987 until her departure (CB p.64).
A further inconsistency was found between the claim that the applicant legally left China with no difficulty obtaining her travel documents and the claim that she obtained her passport by bribing “a powerful government official”. The Tribunal also noted that no explanation was given for the inconsistency and it did not accept that the applicant had used bribery to obtain her passport (CB p.64).
The Tribunal noted that the applicant received her passport in October 2003 but did not apply for her Australian visa until December 2003. No explanation was provided for the delay in applying for an Australian visa when she allegedly feared persecution. Similarly, the Tribunal noted that no explanation was given for the applicant’s departure some six weeks after the receipt of her Australian visa (CB p.64).
The Tribunal noted the applicant provided no explanation as to her inability to relocate to another part of China (CB p.64).
The applicant did not attend the Tribunal hearing and as such it did not have an opportunity to obtain more specific and detailed information from her in respect of her claims.
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 meet the refugee criteria as I belong to a particular social group – Falun Gong. And I face persecution from my original country – China.
2.My fear is well-founded as I was arrested by Chinese Government.”
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, who was a self represented litigant, failed to appear at the hearing at the scheduled time. A period of grace of a further twenty minutes was allowed given that the applicant may have had difficulty locating the Court. No communication had been received from the applicant to indicate she was not going to attend or was delayed. When the hearing commenced, the matter was called outside the Court. However, the applicant was clearly not in attendance in the Court or in the precincts of the Court.
The applicant had previously appeared before me at a directions hearing on 3 September 2004 aided by a Mandarin interpreter. Orders were made that the applicant was to file and serve an amended application giving complete particulars of his grounds of review being relied upon by the applicant in her application by 24 November 2004. A further order was made for the applicant to file any written submissions fourteen days prior to the hearing. At the directions hearing, the applicant was informed of the time and date of the final hearing and was given a map which indicated the location of the Court.
At the hearing before me was a copy of the Court Book filed in the Court Registry on 25 August 2004 together with a written outline of submissions filed by the respondent on 23 February 2005. No documents had been lodged by the applicant in response to the orders made by the Court at the directions hearing. Pursuant to Part 13, Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth) I proceeded with the matter generally.
Respondent’s submissions
Ms Alex, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The primary finding made by the Tribunal on the evidence before it was that the applicant was not a Falun Gong practitioner and it could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 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 (in a matter such as this) if that state of satisfaction was not reached.
b)The Tribunal complied with its obligations under the Act. It sent a letter to the applicant, both at her address for service and her home address, inviting her to attend a hearing. The letter to the applicant’s home address was returned to the Tribunal marked “unclaimed” however the letter to the applicant’s service address was not returned.
c)The Tribunal checked the Department file for a more recent address for the applicant but was unable to find one. The Tribunal also checked the Department movements data record which did not indicate the applicant had left Australia.
d)The applicant’s failure to attend the Tribunal hearing denied it an opportunity to explore her claims. Further, the applicant provided vague details in support of her claim and presented no further supporting evidence before the Tribunal despite an invitation to do so. In S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court at [26] held:
“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.”
e)The Tribunal complied with its obligation under s.426A of the Act and proceeded to determine the matter on the papers: NAST v Minister for Immigration & Multicultural & Indigenous Affairs (“NAST”) at [4]-[5]. In this case the Tribunal said that, in view of the first appellant’s failure to attend the hearing, it was unable to satisfy itself that the third 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). In NAST, as the Tribunal was not satisfied that the first appellant faced a real chance of persecution for a Convention reason if returned to Bangladesh, it would bound to affirm the delegate’s decision to refuse to grant him a protection visa.
Reasons
Having regard to the fact that the Tribunal only had before it the facts as alleged by the applicant that were contained in her original application, it was the only material on which it could proceed. The relevant facts pertaining to the application need to be supplied by the applicant in as much detail as necessary to enable the applicant to establish those facts. It is for the applicant to persuade the Tribunal that all of the elements are made out: Minister for Immigration & Ethnic Affairs v Guo & Anor per Kirby J at 596. The original application contained a page and a half typed double spaced statement which provided a brief outline of the applicant’s involvement with Falun Dafa and the adherence to that philosophy which allegedly lead to her detention and subsequent imprisonment in a forced labour camp (CB pp.26-27). Subsequent to that original application, the applicant failed to attend the Tribunal hearing, and although she attended the directions hearing of this Court, she failed to comply with its orders.
The Tribunal’s letter of 21 April 2004 (CB pp.49-50), forwarded to the applicant, indicated it considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. She was invited to attend a Tribunal hearing on
15 June 2004 and copies of the letter were forwarded to both the address of service and residential address provided in her original application. The letter addressed to the applicant’s residential address was returned to the Tribunal (CB p.51), however, the letter forwarded to the address for service was not. The applicant did not provide the Tribunal with any contact telephone numbers. In the Tribunal letter she was also invited to provide any new documents or written arguments that she wished the Tribunal to consider. Nothing was received from the applicant and she failed to attend the Tribunal hearing.
The applicant had also failed to respond to the orders of this Court made on 3 September 2004 requiring her to file an amended application and written submissions prior to the final hearing. However, 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 did not disclose any issue that could be characterised as a jurisdictional error in the Tribunal’s decision. Similarly, a fair reading of the Tribunal’s decision, did not disclose any error made by the Tribunal that could lead to a jurisdictional error.
I accepted the written submissions made by the respondent. I also note that the applicant has been accorded procedural fairness as set out under the Act and had been provided with every opportunity to prosecute this matter in Court but failed to do so. The applicant indicated she wished to participate in the Pilot RRT Legal Advice Scheme (NSW), a practitioner was allocated to the applicant and advice was prepared and given. The applicant attended the conference with an Australian friend, acting as an interpreter.
Conclusion
In the absence of any ground that the Tribunal has committed a 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-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 March 2005
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