SZEHV v Minister for Immigration
[2005] FMCA 399
•1 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHV v MINISTER FOR IMMIGRATION | [2005] FMCA 399 |
| 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, 425(1), 426A, 426(A)(1), 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
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474
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: | SZEHV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2725 of 2004 |
| Delivered on: | 1 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr A Cox 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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2725 of 2004
| SZEHV |
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 19 July 2004 and handed down on 10 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 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 “SZEHV”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 12 February 2004. On 22 March 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 March 2004 the delegate refused to grant a protection visa and on 28 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant stated he was born in Liaoning in May 1964. He claimed he completed fifteen years of education and from 1984 until October 2003 he was employed as an engineer at the Shen Yang Heavy Duty Machine Factory. From December 1993 to October 2003 the applicant resided at the same address in Shen Yang city. The applicant claimed he obtained his passport on 12 November 2003 and a temporary business visa to Australia on 30 December 2003. He stated he had no difficulty obtaining his passport and left China legally.
The applicant claimed that in November 2003 he was dismissed from his position at the Shen Yang Heavy Duty Machine Factory and as a result his family suffered economic difficulties. He claimed he sought financial and employment assistance from the Workers Union that was organised by the Government but they did not provide him with any assistance (Court Book p.24) (“CB”).
The applicant stated that in early December 2003 a former workmate invited him to attend a demonstration to require the Chinese Government to respect and protect workers and unemployed people. The applicant claimed he received propaganda material that had been prepared by leaders of the demonstration. After the demonstration the applicant claimed he joined others at the leaders’ home for discussion. He claimed he became involved in organising a large demonstration that was held in mid-January 2004. His role in the organisation was to distribute propaganda material in Shen Yang city. This distribution was initially through a fruit store however, when he found that was too dangerous the applicant established small groups to distribute the propaganda material. On 7 January 2004 the applicant stated he was arrested by police, detained and interrogated. He stated he confessed “everything” and claimed he was charged with “threatening the security of China”. The applicant claimed that if he had been convicted he would have been sentenced to at least ten years of “reform through labour”. He claimed he was released on bail on
16 January 2004 and a relative helped him to arrange to travel to Australia (CB p.25).
The Tribunal’s findings and reasons
On 28 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision. On 11 May 2004 the applicant was invited to attend a Tribunal hearing however the letter was returned to the Tribunal on 14 May 2004 marked “unknown at this address” (CB pp.55, 69). On 26 May 2004 the Tribunal attempted to contact the applicant on the mobile telephone number he had provided on his application for review. However, the person who answered and owned the mobile number was not the applicant. The applicant did not attend the Tribunal hearing (CB p.69). On 19 July 2004 the Tribunal made a decision to affirm the delegate’s decision and subsequently the Tribunal’s decision was handed down on 10 August 2004 (CB p.66).
Pursuant to s.426A of the Act the Tribunal proceeded to make a decision without the applicant being heard (CB p.69). The Tribunal had considered the applicant’s claims in the material before it. The Tribunal noted that the applicant had claimed persecution as a result of membership of a worker’s group and had stated the following in his initial visa application:
a)After being fired from his position at the Shen Yang Heavy Duty Machine Factory, the applicant attended a demonstration to require the Chinese Government to respect workers and unemployed people. He received propaganda and joined gatherings of the leaders (CB p.24).
b)The applicant was involved in organising a large demonstration to be held in mid-January 2004 and his role was to distribute propaganda in Shen Yang city, which he initially did through a fruit store. When the applicant found this was too dangerous he distributed the propaganda through small groups which he established (CB p.25).
c)
On 7 January 2004 he was arrested by police, detained, interrogated and later confessed everything. He was subsequently charged with threatening the security of China and if convicted would have been sentenced to at least ten years of “reform through labour”. The applicant was released on bail on
16 January 2004 and a relative helped him to travel to Australia.
The Tribunal did not explicitly deal with the applicant’s claims made in the review application. Those were general claims in regard to the human rights situation in China and the applicant stated: “I agreed that I am not the person who was persecuted very severe by the Chinese Government”.
The Tribunal accepted the applicant was a citizen of the People’s Republic of China (CB p.70). The Tribunal was not satisfied that the applicant was an active member of a worker’s group or that he was arrested, detained and charged because of his activities in the worker’s group and it set out its reasons as follows:
a)The applicant was put on notice by the Tribunal that it was unable to make a favourable decision on the information before it. The applicant did not provide any further information to support his claims nor did he give the Tribunal an opportunity to explore the aspects of his claims with him.
b)The applicant’s claims were vague and lacking in detail in that:
i)he did not provide specific details of the demonstration, when he attended, where it was held or how many people attended;
ii)he did not provide specific details about the group, its name, aim, structure or members;
iii)he did not provide specific details of how many gatherings he attended;
iv)he did not provide specific details of the material he claimed to have distributed;
v)he did not provide specific details of why it was too dangerous to distribute material from the fruit store;
vi)he did not provide specific details of the small groups he claimed to have established, when they were established or where the groups met;
vii)he did not provide specific details of where he was detained;
viii)he did not provide specific details of what questions he was asked by the police or of his confession;
ix)he did not provide specific details of why he was released on bail; and
x)he did not provide specific details of how the relative helped him to organise the trip to Australia (CB pp.71-72).
c)The Tribunal found parts of the applicant’s story to be inconsistent. The applicant claimed that after his release from detention a relative helped him to arrange the trip to Australia. However, this claim appeared to be inconsistent with the statement the applicant made in his initial application to the Department that he had obtained his passport on 12 November 2003 and obtained his Australian business visa on 30 December 2004 before his alleged arrest in January 2004 (CB p.72).
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason if he returned to China now or in the reasonably foreseeable future (CB p.73).
Application for review of the Tribunal’s decision
On 2 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“1.I have well-founded fear that I am a refugee.
The RRT did not deal my case with due care.”
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. He attended a directions hearing before me on
17 September 2004 and consented to Short Minutes of Orders at that time which included the filing and serving of an amended application and any evidence upon which he proposed to rely at the final hearing by 28 January 2005. However, the applicant did not comply with this order nor did he file and serve any written submissions prior to the hearing.
When the applicant was invited to make oral submissions, this was limited to making a statement that he had not received any correspondence from the Tribunal or the Court in relation to his matter. This statement was subsequently modified to the extent that he admitted he had received some correspondence from the Court. The applicant confirmed that he had not changed his residential or postal address from those provided on his original application documents. However, it did emerge that the mobile telephone number originally provided was incorrect. This became apparent when the Tribunal endeavoured to contact the applicant when one of the registered letters forwarded to his postal address in Haymarket was returned with the notification that the applicant was not known at that address. This was difficult to rationalise because the Form C application had been completed to include a rubber stamped impression of the current postal address, containing the post office box number (CB p.13), whereas the remainder of the form was completed by hand. It also became apparent during the hearing that the application filed in these proceedings contained different addresses and telephone numbers, both of which were clearly incorrect.
The applicant also made oral submissions indicating he was waiting for further material to be provided from China in support of his application. This issue was not pursued when the role of the hearing was explained to the applicant. He then indicated he had not been made aware of the Tribunal hearing on 21 June 2004 as he had not received any of the correspondence forwarded to him. When it was pointed out to the applicant that this argument was hard to sustain in light of the fact that the Tribunal had posted to the applicant the Tribunal decision soon after the hearing and the applicant had responded by filing an application within the Federal Magistrates Court within the time limit specified in that notification, the applicant declined to pursue the issue any further.
Respondent’s submissions
Mr A Cox, Solicitor of Phillips Fox, appearing for the respondent, filed written submissions prior to the hearing upon which he relied. The submissions contained the following contentions:
a)The application does not provide any grounds that point to error in the Tribunal’s decision. No breach of procedure arises in relation to the Tribunal’s communications with the applicant. The Tribunal attempted to communicate with the applicant by its letter dated 11 May 2004 (CB p.53). However, the letter was returned to the Tribunal, the applicant did not attend the Tribunal hearing on the scheduled date and the Tribunal proceeded to make its decision.
b)Pursuant to s.426A of the Act, the Tribunal proceeded to make a decision without taking any further action to enable the applicant to appear before it. This approach was endorsed by the Full Federal Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs at [26] where their Honours 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.”
c)
Part 7, Division 7A of the Act provides a scheme for when a person is taken to have received documents from the Tribunal. If an invitation to a hearing is duly given to the applicant in accordance with Part 7, Division 7A, it follows that the applicant was invited to appear as required by s.425(1) of the Act.
A failure to appear allows the Tribunal under s.426(A)(1) to make a decision on the application in the absence of the applicant. The fact that an applicant did not become aware of the Tribunal’s invitation to attend a hearing does not displace the conclusion mandated by Part 7, Division 7A that the invitation was duly given: VNAA v Minister for Immigration & Multicultural & Indigenous Affairs at [15].
d)Further, in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs, the Full Court upheld the decision in which the Tribunal found that the claims were made at “such a general and vague level that the Tribunal cannot establish the relevant facts”. The Full Court concluded that a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed, mandated a refusal decision of that state of satisfaction is not reached.
e)This conclusion is supported by the Full Court decision of NAST v Minister for Immigration & Multicultural & Indigenous Affairs. In that case the applicant, having been invited to attend a hearing, failed to attend and the Tribunal proceeded to make its decision on the review without taking any further action to enable the appellants to appear before it. The Full Court observed at [3]:
“That was a course which the RRT was entitled to adopt.”
Further, the Full Court observed at [4]-[5]:
“In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
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.”
It is apparent that the Full Court saw no error in the Tribunal proceeding as it did. The Tribunal in that case proceeded in a similar manner as the Tribunal did in the present case.
f)The decision being challenged is a privative clause decision and there is no error of the kind alleged in the unparticularised application for review and no other error is apparent on a fair reading of the Tribunal’s decision. The applicant seeks a declaration that he is a refugee and an order prohibiting the Department from removing him from Australia. However, there is no tenable basis for either declaratory or injunctive relief shown.
Reasons
The only material provided by the applicant prior to this hearing are the two vague and unparticularised statements contained within the original application filed on 2 September 2004. The applicant appeared before me at a directions hearing on 17 September 2004 at which time he consented to Short Minutes of Order requiring him to file and serve an amended application by 28 January 2005 and written submissions seven days prior to the hearing. Neither of these orders was complied with. At the directions hearing the application was also offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) available to applicants within this jurisdiction. However, the applicant declined the invitation.
The applicant maintained that he had been unable to submit further material to the Tribunal because he had not been invited to attend a hearing. When this allegation was further explored, the applicant modified his story to the extent that he claimed he had received some correspondence from the Tribunal and the Court but continued to deny that he had received notification of the Tribunal hearing to be held on 21 June 2004. There were a number of inconsistencies in the applicant’s story as one piece of correspondence forwarded by the Tribunal to the applicant’s postal address was returned indicating that he was not known at that address although subsequent material forwarded in respect of the Tribunal’s decision was not returned. The applicant stated he had not changed his address since lodging his original visa application and those details were verified during the hearing to be correct.
The applicant’s relatively quick response to the adverse decision of the Tribunal by way of the subsequent lodging of an appeal in the Federal Magistrates Court, was not consistent with his denial of receiving any notification of the prior Tribunal hearing. When these inconsistencies were put to the applicant he declined to offer any explanation.
I accept the respondent's submissions set out in paragraph 18 above and the line of authority quoted in support of those submissions. During the hearing the applicant claimed that he had not received a copy of the respondent's submissions. Mr Cox stated that the respondent had relied on the address for service that appeared on the applicant's application to the Federal Magistrates Court filed on
2 September 2004 and had sent the respondent's submissions by express post to that address. The applicant claimed that this was not his address and should not have appeared on his application. He stated that his application had been completed by a friend and claimed to be unaware of the inclusion of the incorrect address for service. The address for service that appeared on the application was different from the address which was at issue in respect of the service of the Tribunal's notices and the applicant claimed he had not changed his address. It also became apparent during the hearing that the contact telephone number provided on the application was also incorrect.In order that the applicant be given an opportunity to respond to the submissions made by the respondent I adjourned the hearing for
45 minutes to allow the interpreter to translate the document for the applicant so he could respond to any issue raised in those submissions. After the adjournment, when the applicant was provided with the opportunity to reply to the respondent’s submissions, the only issue he wished to pursue related to the Tribunal’s notification of the oral hearing scheduled for 21 June 2004.
I am unable to determine with any certainty the apparent inconsistencies in the addresses, despite the applicant’s insistence that he has not changed his contact details during the period of the lodgment of the initial visa application with the Department and the hearing before this Court. Despite this, the applicant denied receiving any correspondence from the Tribunal or the Court during this period. This statement is inconsistent with the rapid response to the adverse finding of the Tribunal’s decision handed down on 10 August 2004 and the subsequent appeal to the Federal Magistrates Court. An inspection of the Court file revealed that all documents filed by the applicant that required an address for service contained the address the applicant claimed to be incorrect. This is the only address the applicant had provided to the Court and the respondent was therefore correct to assume that this was the applicant's current address for service. However, I accept that the incorrect details on the application may have been a genuine mistake and the applicant has been provided with an opportunity for the non receipt of the respondent’s submissions to be rectified. I do not believe that any substantial issue hinges on this error.
Where an applicant is self represented this 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 order to address this issue, I have reviewed the material in the Court Book which was prepared, filed and served on 29 September 2004 by the respondent solicitors and I have read the Tribunal’s decision in order to determine whether any error is apparent on the face of the decision.
I believe that the Tribunal was faced with the same issue before this Court in that the application was void of any detail and any subsequent supplementary material was minimal. There was a two paged typed statement from the applicant, headed “My reasons for claiming to be a refugee” which was general in nature and devoid of detail. It is noted in the delegate’s decision that despite the applicant having the assistance of a migration agent, the amount of information submitted in support of his applicant was scant.
Although the applicant was provided with the opportunity to attend the Tribunal hearing in order to provide supplementary material in support of his application, the explanation given by the applicant for his failure to attend lacks credibility. This was re-enforced when the applicant was asked at the bar table the reasons as to why he did not enquire why the Tribunal had not contacted him prior to its decision which he became aware of when he received a copy of the decision forwarded to the same postal address at which the applicant claims the Tribunal’s invitation was not received. The applicant responded that it was the Tribunal’s obligation to contact him and it was not for him to contact or make any enquiry of the Tribunal as to why he had not been invited to give oral further submissions.
Conclusion
I have not been able to identify any ground 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-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 1 April 2005
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