SZEFL v Minister for Immigration
[2005] FMCA 631
•17 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEFL v MINISTER FOR IMMIGRATION | [2005] FMCA 631 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 425, 426A, 474
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
| Applicant: | SZEFL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 585 of 2004 |
| Delivered on: | 17 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 5 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms A Nanson of Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2585 of 2004
| SZEFL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 May 2004 and handed down on 16 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
3 February 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 “SZEFL”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 14 January 2004. On 22 January 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-29) (“CB”). On
3 February 2004 the delegate refused to grant a protection visa (CB pp.30-41) and on 2 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.42-45).
In his visa application, the applicant claimed he was born in March 1963 in Shijiazhuang in the People’s Republic of China. He stated he is married and worked as an office clerk in a factory from 1985 to 1999. The applicant claimed that he and other workers were made redundant in 1999 as a result of problems faced by the company due to poor management and corruption. He stated that he was not paid proper compensation and in 2001 he participated with others in a protest against government policy. The applicant claimed there was a fight between the demonstrators and the security staff of the government office outside where they were demonstrating. He stated that the police came and the applicant and three others, who were seen as organisers, were arrested and beaten. The applicant claimed that he and his associates continued their struggle for better treatment of redundant workers over the next 18 months without achieving anything and eventually the government denounced their activities as disruptive to public order and the applicant was blacklisted. As a consequence, he claimed that he was unable to find another job (CB p.59).
The Tribunal’s findings and reasons
Ms Nanson, Solicitor appearing for the respondent, prepared a summary of the Tribunal’s decision, which I have adopted and reproduced in the following paragraphs.
a)On 14 May 2004 the Tribunal wrote to the applicant pursuant to s.425 of the Act informing him that it was unable to make a decision in his favour on the material before it (CB pp.48-49).
b)On 23 May 2004 the applicant’s response was received by the Tribunal declining the invitation to appear at the Tribunal hearing (CB p.50). Accordingly, on 26 May 2004, pursuant to s.426A of the Act, the Tribunal proceeded to make a decision.
c)Due to the paucity of evidence before it, the Tribunal was unable to be satisfied that the matters set out in the applicant’s statement were Convention related and therefore was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee Convention.
Application for review of the Tribunal’s decision
On 19 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 25 February 2005 the applicant filed an amended application setting out the following grounds:
“1.RRT and DIMIA made a mistake by not addressing the applicant’s specific claim of persecution due to his constant participation in protest against government policy.
2.RRT and DIMIA failed to look at the fact fairly and reasonably and ignored the truth that the applicant would face a real chance of persecution upon returning to China.
3.RRT and DIMIA’s ground for rejection is neither sufficient nor serious, which disregarded the whole evidence provided by the applicant regarding to the current situation in China.”
Notice of Objection to Competency
On 25 August 2004 the solicitors for the respondent filed a Notice of Objection to Competency which contained the following grounds:
a.the decision is a privative clause decision; and
b. contrary to s477(1A) of the Migration Act 1958 (Cth) (“the Act”) the application has not been lodged within 28 days of the applicant being notified of the decision of the Refugee Review Tribunal; and
c. by virtue of s477(2) of the Act, the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s477(1A).
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.
Applicant’s submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. The applicant confirmed that he had not filed written submissions prior to the hearing. At the directions hearing on
24 September 2004 the applicant indicated that he wished to participate in the Pilot RRT Legal Advice Scheme (NSW). The Court records indicated the applicant attended a conference with the nominated adviser and received advice under that Scheme. When the applicant was invited to make oral submissions this was limited to a request for further time in order to locate a legal adviser to assist in the preparation of his case. At the directions hearing on 24 September 2004 the applicant consented to Short Minutes of Order setting out a timetable for the management of his application. At that time the significance of the respective filing dates was explained to the applicant and the date scheduled for the final hearing of this matter was set down at which time the applicant was required to be in a position for his application to be presented either by himself or a representative on his behalf.
Respondent’s submissions
Ms A Nanson, Solicitor appearing for the respondent, prepared and filed written submissions prior to the hearing which contained the following contentions:
a)The decision of the Tribunal is one which falls within the statutory description of “privative clause decision” in s.474 of the Act unless the applicant establishes a jurisdictional error of the kind identified in S157/2002 (that is, that the decision was not a decision made under the Act).
b)The applicant was clearly on notice from the content of the delegate’s decision that his claims were insufficient and lacked evidence.
c)The history of the proceedings does not disclose any defect or unfairness in the Tribunal’s decision making process and demonstrates that the applicant was given a proper opportunity to attend the hearing and provide evidence:
i)On 2 March 2004 the applicant lodged his application for review with the Tribunal. The application did not provide any grounds but referred to the statement already provided to the delegate (CB p.44).
ii)On 3 March 2004 the Tribunal wrote to the applicant confirming the receipt of his application for review and directing him to immediately send further information relevant to his case. The letter also referred to the procedures for being invited to a hearing and emphasised the importance of the hearing in the review process (CB pp.46-47).
iii)On 14 May 2004 the Tribunal wrote to the applicant inviting him to attend a hearing to give oral evidence and present arguments in support of his claims.
d)In dealing with the merits of the application before it, the Tribunal acknowledged explicitly the effect of the absence of information from the applicant upon its consideration of the matter and noted:
“If he had attended the hearing, it would have been possible to investigate his claims more fully in order to determine whether he genuinely fears persecution for a Convention reason.” (CB p.60)
e)In the circumstances, the Tribunal was authorised by s.426A of the Act to proceed to determine the matter, the applicant having been invited to attend but having declined to do so. There is no factual basis for any suggestion it acted improperly in so doing.
Reasons
The applicant in these proceedings was self represented appearing with the assistance of a Mandarin interpreter and made no oral or written submissions. The grounds in his amended application were vague and unparticularised. Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
In this matter, the material presented to the Department for consideration by the delegate and subsequently by the Tribunal was minimal. In the applicant’s original visa application there was a single typed page statement dated 15 January 2004 (CB p.26) which set out the applicant’s history and the circumstances leading to his dispute with the Chinese authorities, his subsequent arrival in Australia and the application for a protection visa. On 14 May 2004 the applicant was invited to attend a Tribunal hearing because the material in the Tribunal’s possession relating to his application was insufficient to enable the Tribunal to make a favourable decision in the absence of further material or oral evidence. The applicant completed a Response to Hearing Invitation on 22 May 2004 indicating that he did not wish to attend the hearing and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow the applicant to appear before it (CB p.50).
In the Tribunal’s findings, it noted that the applicant had provided only a brief account of the circumstances of his application and, as a result of his declining to appear before the Tribunal, the Tribunal was denied the opportunity to further enquire into the substance of the applicant’s claim. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much details as is 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. The Tribunal only had before it the facts alleged by the applicant that were contained in the single page statement attached to his original visa application which were minimal in content. The applicant had an opportunity to attend a hearing and furnish additional facts. This invitation was declined and the applicant cannot now complain that other facts that may exist were not taken into account in the Tribunal’s decision. The Tribunal accurately summed up the nature of the applicant’s claim and all matters were taken into account by the Tribunal in arriving at its conclusion.
While acknowledging that the self represented litigant is faced with considerable difficulties due to language differences and a lack of understanding of the legal requirements of the system, I am satisfied that the applicant was provided with assistance in order to prosecute his case. The energy exerted in this pursuit appeared to be minimal and the only assertion made to this Court was a request for further time in order to locate a lawyer to assist in the preparation of his case. This request was not supported by any submission despite a period in excess of eight months since the timetable set down at the directions hearing.
In respect of the Notice of Objection to Competency, the time limit for filing of the proceedings in this Court was not complied with by the applicant as the application to this Court was not completed within the prescribed time period. The Objection should be upheld.
Conclusion
The pleadings in this application did not identify appropriate grounds and, on a fair reading of the Tribunal’s decision, no jurisdictional error was identified on the face of that decision. The Court Book contained supporting material which confirmed the applicant was given the appropriate notices and provided with an opportunity to supplement his initial application and I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. Therefore, 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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 May 2005
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