SZEGK v Minister for Immigration
[2005] FMCA 245
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGK v MINISTER FOR IMMIGRATION | [2005] FMCA 245 |
| 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
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
NAVX x Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEGK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2631 of 2004 |
| Delivered on: | 9 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 28 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is 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 2631 of 2004
| SZEGK |
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 9 July 2004 and handed down on 4 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 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 “SZEGK”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 15 April 2004. On 27 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 30 April the delegate refused to grant a protection visa and on 31 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claimed he was born in May 1972 in the People’s Republic China and his ethnicity was Han. He stated he was a Christian and that all religions in China had to be registered by the Government and accept official supervision. The applicant claimed that unapproved organisations were illegal. He claimed he had been baptised in a bathing pond in the Dalian Bohai Ming Zhu Hotel on
28 March 2000 by Mr Feimen from Hong Kong and from that time he “became a real Christian” (Court Book p.17) (“CB”).
The applicant claimed that his church had to go underground as it could not get permission from the local government which took “extreme means to eradicate the underground church in their jurisdiction” and the church members had to do their “religious activities” in private houses (CB pp.17-18). On 13 November 2002 the applicant claimed he and others from his church were arrested for worshipping in secret. He stated he was detained for two months and all clergymen were forced to leave China and go back to U.S.A., Taiwan and Hong Kong (CB p.17). The applicant claimed the police destroyed all their bibles and other religious materials and confiscated the clergyman’s camera because it has photographs in it (CB p.20). He stated that after being released from detention, the group members were supervised by local government officials and they were not allowed to gather to observe their religious beliefs (CB p.17).
The applicant claimed that many Christian bishops, priests and members were arrested and detained, subjected to re-education through labour and in some cases were even sentenced to death (CB p.18). He claimed that if he returned to China and continued his Christian activities he would be arrested and the authorities would force him to give up his Christian beliefs. The applicant claimed that the persecution of Christians in China has been increasing since 2002 (CB p.19).
The Tribunal’s findings and reasons
On 9 June 2004 the Tribunal sent the applicant a letter, advising him that the Tribunal had considered the material before it, but was unable to reach a decision in his favour on that information alone (CB pp.48-49). It invited the applicant to a hearing on 9 June 2004 “to give oral evidence and present arguments in support of your claims”. The letter contained the statement:
“If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.”
The applicant was requested to send any documents or written arguments to the Tribunal for consideration and noted that any documents or arguments submitted by the applicant “should be in English or translated by a qualified translator” (CB p.48).
On 9 July 2004 the Tribunal received a completed response to hearing invitation form signed by the applicant indicating that he did not wish to attend the hearing (CB p.50). The Tribunal proceeded to make a decision without a hearing on 9 July 2004 (CB p.57). The Tribunal wrote to the applicant on 15 July 2004 indicating it would hand down its decision on 4 August 2004 (CB pp.51-52). The applicant did not contact the Tribunal at this point to seek to put any further material before the Tribunal. On 4 August 2004 the Tribunal’s decision was handed down, affirming the delegate’s decision to refuse to grant a protection visa (CB p.57). A copy of the Tribunal’s decision was sent to the applicant by registered post on that date (CB p.53).
In light of the applicant’s response indicating that he did not wish to attend a hearing, the Tribunal determined the application on the evidence available to it (CB p.60.9). The Tribunal accepted that the applicant was a Chinese citizen but found the applicant’s claims to be very vague and general in nature (CB p.63). The Tribunal found that the applicant did not provide any details of his religious practices in China and it was significant that he did not claim to have been attending church since his arrival in Australia (CB p.64). The applicant’s claim that he was arrested and detained for two months was not supported by any evidence or no details were provided about his treatment whilst detained. Based on independent country information regarding the nature of China’s passport controls, the applicant would not have been issued with a passport if his experience was of such a magnitude. Further, if the applicant was of adverse interest to the Chinese authorities, he would not have been able to leave China (CB p.65).
As a result of the Tribunal’s findings, it was not satisfied that the applicant was a Christian, a member of an underground church, or that he was detained for two months. It therefore did not accept any of his independent claims, namely that he left China because he could not ‘hear from God’ because he could not attend the underground church or that he would be re-arrested or forced to give up his religious beliefs. Overall, the Tribunal was not satisfied that, should the applicant return to China, there would be a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason, then or in the foreseeable future (CB p.65). In relation to the applicant’s claim that China was a dictatorship, the Tribunal noted that the applicant had not elaborated on why he feared persecution for this reason. Therefore, the Tribunal was not satisfied that the applicant had made out that claim (CB p.66).
Application for review of the Tribunal’s decision
On 25 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) which was accompanied by an affidavit of the same date. The applicant attended a directions hearing before a Registrar of this Court on 13 September 2004 and by consent to Short Minutes of Order agreed to file and serve an amended application giving full particulars of each ground of review relied upon by 22 November 2004. On 19 November 2004 the applicant filed an affidavit sworn on 15 November 2004 (“the affidavit of the applicant”) which contained the following statements:
“1.I am the applicant herein.
2.I came to Australia on 15 April 2004.
3.I applied to the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) for a protection visa as a refugee on 27 April 2004.
4.DIMIA refused the application on 30 April 2004.
5.I applied for review of DIMIA’s decision at the Refugee Review Tribunal (RRT) on 31 May 2004.
6.RRT affirmed DIMIA’s refusal of my refugee visa application on 9 July 2004.
7.I received RRT’s notification on 4 August 2004.
8.I filed an application for judicial review of both DIMIA and RRT (the respondents)’s decisions to the Federal Court on 4 August 2004.
9.My grounds of review are that:
I was deprived of the opportunity to explain my hard situation and impossibility to obtain documentation and written evidence.
10.On page 8 of RRT’s decision, 1st paragraph, it says: “However, he provides no evidence to support these claims such as baptism certificate or even a letter from Mr Feimen …”
11.The fact is that I did tell the Tribunal about my hard situation to obtain such information and documents. I called the Tribunal and explained that it was impossible for me to obtain those evidence in then hard time and life threatening environment.
I did not know I had to put in my request in writing. I thought I could do it orally.
12.I say that the respondents denied my claims as a refugee on the basis that I cold not submit enough evidence and their insufficient understanding of the persecution for Christianity in China.
13.I also say that the respondents denied my involvement in Christian activities because of my inability to submit some documents to support my claim. This is wrong because it was impossible for me to obtain such documentary evidence and keeping such sort of evidence in China will enable the authority to incriminate me.
14.There is a procedural error in the Tribunal’s decision constituting an absence of natural justice.
15.I say that such denial of natural justice has seriously deprived me of my chance of success to be recognized as a refugee that Australia has a duty to protect.”
The Court file contained a letter from the Barrister who had participated in the Pilot RRT Legal Advice Scheme (NSW) who was allocated to the applicant to provide advice under that Scheme. The letter indicated that there had been an unfortunate delay in the delivery of the Court Book to him and, as a consequence, the respondent solicitor had agreed for an extension of time for the filing of an amended application to 23 December 2004. There does not appear to have been anything filed in respect of those arrangements extending the time for the filing of an amended application.
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
Counsel for the respondent tendered and applied for an affidavit of Jonathan Christian Willoughby-Thomas, District Registrar, sworn on 25 February 2005 (the affidavit of Mr Willoughby-Thomas) to be admitted into evidence. The affidavit attests to procedures which are followed by the Tribunal, particularly in relation to a computerised case management system which records each application lodged.
A part of those procedures is a record of telephone communications between the applicant and Tribunal, where the applicant has identified himself or herself or the relevant case number, and where their communication is not generic in nature. The system also contains file notes of conversations between applicants and Tribunal staff members together with print outs from the case management system. The affidavit attests to the absence of certain material, which was the subject of cross examination of the applicant during this hearing. The applicant and the interpreter were both sworn in order to give testimony under oath. The applicant was referred to Item 11 of his sworn affidavit of 19 November 2004 which detailed a telephone conversation he claimed he made to the Tribunal to explain the problems he was having in obtaining evidence about his case to submit to the Tribunal. The applicant claimed he thought he was able to submit this evidence orally without the need to commit it to writing. Under oath, the applicant admitted that he had never seen the affidavit of 19 November 2004 in its completed and filed form. He also stated that he had signed a blank form and given it to a “friend” who was assisting him in the preparation of the application. The applicant stated that he made no telephone call to the Tribunal as he had understood that this task would be carried out by the “friend” and it was his belief that the “friend” had undertaken this task.
Applicant’s submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. When the applicant was invited to make any oral submissions this was limited to a statement that he now had in his possession a number of photographs which evidenced his baptism, but he had failed to bring them to Court for the hearing. The applicant also indicated he had been deprived of the opportunity to explain his hard situation and the difficulties he was having obtaining documents and photographs which supported his application. It was pointed out to the applicant that he had been invited by the Tribunal to attend an oral hearing on 9 July 2004 but had completed the “Response to Hearing Invitation” indicating “No” that he did not wish to attend the hearing. The applicant denied knowledge of the invitation letter. The reference in the Court Book (CB p.50) was shown to the applicant and he confirmed that the signature appearing on the invitation letter was his, but claimed he has signed a blank document and the “friend” assisting him in the preparation of his application had not indicated the purpose of the form. Although the relationship between the “Response to Hearing Invitation” and the letter of 9 June 2004 inviting the applicant to the hearing were explained, the applicant chose to persist with the explanation that he had signed the form when it was blank because at that time he was going to Brisbane and would be absent from Sydney. The applicant also made statements as to the fact that he was in Brisbane and was therefore prevented from dealing with or responding to the Tribunal. However, the applicant was unable to provide details of the relevant periods of his absence in Brisbane.
Respondent’s submissions
Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The applicant filed an affidavit, sub-titled “amended application” on 19 November 2004 (“the amended application”) purporting to supersede the original application filed on 25 August 2004 seeking judicial review of the Tribunal’s decision. The grounds of review articulated in the amended application appear to be:
i)“I was deprived of the opportunity to explain my hard situation and impossibility to obtain documentation and written evidence”;
ii)“The fact is that I did tell the Tribunal about my hard situation to obtain such information and documents.
I called the Tribunal and explained that it was impossible for me to obtain those evidence in then hard time and life threatening environment. I did not know I had to put in my request in writing. I thought I could do it orally.”iii)“The respondents denied my involvement in Christian activities because of my inability to submit some documents to support my claim. This is wrong because it was impossible for me to obtain such documentary evidence and keeping such sort of evidence in China will enable the authority to incriminate me.”
The respondent has not received any written submissions in support of the applicant’s claims.
b)The applicant was given every opportunity to explain his case. However, he chose not to do so. In its letter of 31 May 2004, the Tribunal explained to the applicant the procedure involved in the review and asked him to “immediately send us any documents, information or other evidence you want the Tribunal to consider” (CB pp.58-59). The applicant was invited but declined to attend the Tribunal hearing. As stated by Allsop J in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs at [12]:
“The Tribunal made perfectly plain to the applicant in its letter that it was unable to make a favourable decision in support of his claims without hearing from him. He did not attend. That was his choice.”
c)The Tribunal did not deprive the applicant of a proper opportunity to put his case and this ground of review must be rejected.
d)The applicant claimed he told the Tribunal of his difficulties by calling the Tribunal and conveying the information referred to in the second ground. Even if the Court accepts that a call was made, the information allegedly conveyed by the applicant in this call would not have altered the Tribunal’s decision. The Tribunal’s decision ultimately turned on the insufficiency of information before it to satisfy it that the applicant was a refugee. The applicant’s explanation that he could not obtain evidence would not have remedied this deficiency. The applicant could have possibly remedied this deficiency by attending the hearing and giving evidence on his behalf.
e)The Tribunal did not affirm the decision under review because the applicant had failed to submit documentary evidence. The applicant could have given oral evidence if he had chosen to do so.
f)The Tribunal’s decision does not otherwise disclose any reviewable error. The applicant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction or that it breached any of the provisos in R v Hickman; Ex parte Fox and Clinton. The applicant has not therefore demonstrated any entitlement to relief.
Reasons
The applicant in these proceedings is a self represented litigant and has made no substantive oral or written submissions. His sworn evidence claims that he has no understanding or knowledge of the English language and had relied upon a person identified as a “friend” to file all the material in relation to these proceedings. This transfer included the signing of blank forms enabling the “friend” to subsequently complete and lodge documents without further referral to the applicant. It became apparent, under cross examination, that he had no idea of the content of the affidavit of the applicant filed on 19 November 2004 in response to orders of the Court to file and serve an amended application.
The statement in paragraph 11 of the affidavit of the applicant which states that he telephoned the Tribunal was conceded to be incorrect with the admission that it had been agreed with the “friend” that the “friend” would contact the Tribunal by telephone to explain the difficulty in obtaining information and documents in support of the applicant’s case. The affidavit of Mr Willoughby-Thomas established that there was no telephone call to the Tribunal either by the applicant or by the applicant’s representative as set out in the applicant’s affidavit.
The affidavit of the applicant was allegedly sworn on 15 November 2004 at Sydney before a person claiming to be a Justice of the Peace and identifying themselves by the number 0000601. This attestation is contrary to the sworn evidence given in this Court and I will refer this matter to the appropriate State authority. In separate proceedings before this Court on the same day documentation was tendered that contained the same attestation performed under strikingly similar circumstances.
Where a applicant 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. In the absence of formal pleadings filed in accordance with orders of this Court, I have accepted the submissions of Mr Potts, representing the respondent, and the affidavit of the applicant originally sworn on
15 November 2004 and filed on 19 November 2004 which contained the amended grounds at paragraphs 9, 11 and 13 respectively.
The applicant was taken to the Tribunal’s invitation letter issued on
9 June 2004 (CB pp.48-49) and to the response to hearing invitation signed and returned by the applicant on 6 July 2004 and received by the Tribunal on 9 July 2004 (CB p.50). The applicant claimed that he also signed this form when it was blank, as detailed in the evidence noted in paragraph 16 above. It was explained to the applicant that it was difficult to maintain an argument that he was denied the opportunity to attend a Tribunal hearing and explain his situation, when the Court had before it a document executed by him declining the hearing invitation. It was also explained to the applicant the probability that he was provided with the form in blank to execute prior to the Tribunal issuing the hearing invitation was extremely low. The respondent’s submissions in respect of this ground are accepted as it is not possible to sustain the argument that the Tribunal deprived the applicant of a proper opportunity to put his case.
The second ground is characterised as a failure to consider the relevant material. The suggestion that the applicant told the Tribunal of his difficulties during a telephone discussion is not sustainable on the evidence given by the applicant during cross examination. The material that the applicant claimed he instructed his “friend” to convey to the Tribunal had been insufficient to change the Tribunal’s decision making process as the Tribunal’s decision was based on the absence of material from any source to support the applicant’s case. The respondent’s submissions that this ground should fail is accepted.
The third ground is a mischaracterisation of the Tribunal’s decision in that the adverse decision was not due to the absence of written material or documentation but the absence of any material. This situation could have possibly been rectified by oral submissions provided that they were plausible and the Tribunal was satisfied that they supported the application. The applicant failed to provide this information because he declined to attend the oral hearing. No explanation was given by the applicant as to his non attendance. The applicant and the person assisting the applicant were given advice in the letter from the Tribunal which, in its opening paragraph stated:
“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”
The applicant and his “friend” were therefore on notice that the outcome of the Tribunal’s deliberations would be adverse if additional information was not supplied. The mechanism for the supply of additional information was clearly set out in the Tribunal’s letter. The invitation clearly states that oral evidence would be accepted and, in addition, written material would also be accepted if it was available. The objective of the advice from the “friend” is unclear because it is immediately apparent on the reading of the Tribunal letter, that the Tribunal hearing was critical to the outcome of the decision making process. As the Tribunal only conducts hearings when the outcome of an application at that stage of its deliberations is unfavourable, it defies logic that the applicant would be requested to file a blank response form or that he was advised it was unnecessary to attend the Tribunal hearing. This ground cannot be sustained.
Conclusion
The Tribunal’s decision does not disclose any reviewable error. The applicant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction or that it breached any of the Hickman provisos. The applicant has not demonstrated any entitlement to relief and the application filed on 25 August 2004 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-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 March 2005
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