SZEHW v Minister for Immigration
[2005] FMCA 372
•31 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHW v MINISTER FOR IMMIGRATION | [2005] FMCA 372 |
| 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, 425A, 425A(3), 426A, 426A(1)
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth)
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
SZBBH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 874
NASH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 44
SMTB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 127
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 134
NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEHW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2728 of 2004 |
| Delivered on: | 31 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 March 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, fixed in the sum of $3,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2728 of 2004
| SZEHW |
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 20 July 2004 and handed down on 12 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 “SZEHW”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 12 February 2004 travelling on a temporary business (Class UC) visa. On 2 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 29 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claimed he was born in Shen Yang in March 1957 and completed eleven years of education. He stated that from 1980 to December 2003 he was employed as an assistant accountant at a recycling company (Court Book p.16) (“CB”). The applicant claimed he resided at the same address from September 1992 until December 2003 in Shen Yang (CB p.14). The applicant obtained his passport on 12 November 2003 and a subclass 456 visa to Australia on 30 December 2003. The applicant claimed he had no difficulties obtaining his passport and left China legally.
The applicant claimed that in December 2003 he was dismissed from his position as assistant accountant with the recycling company because he would not accept a reduction in his salary. He stated he lodged a complaint with the workers’ union but they refused to help him. The applicant claimed “one weekend” a friend asked him to join a demonstration organised by the “Shen Yang Unemployed Workers Voice”. He stated that after he attended the demonstration he often joined gatherings at the home of leaders of the unemployed workers group. The applicant claimed he became involved in organising a large demonstration which was held in mid January 2004. His role was to contact unemployed workers and encourage them to join in demonstrations (CB p.25).
The applicant stated he visited thirty families and helped distribute propaganda materials. He claimed that on 7 January 2004 he was arrested at the home of one of the leaders of the unemployed workers group and was detained, beaten, interrogated and charged with “threatening the security of China”. If convicted, the applicant claimed he would have been sentenced to at least ten years of “reform through labour”. The applicant stated he was released on bail on 16 January 2004 and he and another member of the unemployed workers group travelled to Australia to avoid being sentenced (CB pp.25-26).
The Tribunal’s findings and reasons
On 29 April 2004 the Tribunal sent the applicant a letter at his nominated mailing address (CB p.50), detailing the procedure followed by the Tribunal in considering the applicant’s application for review (CB pp.52-53).
On 11 May 2004 the Tribunal sent the applicant a letter, at both his mailing and home addresses (CB p.50), 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. It invited the applicant to a hearing on 16 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 letter also requested that the applicant: “send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator” (CB pp.56-57).
The copy of the Tribunal’s letter which was sent to the applicant’s residential address was returned to the Tribunal unclaimed on 8 June 2004 (CB pp.58, 68). No other response was received to the letter (CB p.68). The Tribunal made its decision without a hearing on 20 July 2004 (CB p.65). On 26 July 2004 a letter was sent to the applicant at his mailing address, advising him that the Tribunal’s decision would be handed down on 12 August 2004 (CB pp.59-60). The Tribunal was not contacted by the applicant as a result of this letter. The decision was handed down on 12 August 2004 (CB p.65) and a copy was sent to the applicant under cover of a letter of that date (CB pp.61-63). The Tribunal’s decision affirmed the decision of the delegate to refuse to grant the applicant a protection visa (CB p.65).
After the applicant failed to respond to the Tribunal’s invitation to attend a hearing, the Tribunal determined the application without taking further action to enable the applicant to appear before it. In proceeding to its determination, the Tribunal was aware that its invitation to hearing letter sent to the applicant’s residential address had been returned (CB p.68).
The Tribunal reviewed at length the only material before it (CB pp.68-69) and it accepted that the applicant was a Chinese national. It found that the applicant’s claims were vague and lacking in detail and no specific details were provided as to when he attended the demonstration or where it was held. The applicant had not provided any specific details about the union, such as its structure, aims, how often members met or how many members it had. The applicant claimed to be a leader of the union, but provided no details of when or how he had become a leader. He had claimed that he had often joined union gatherings, but provided no details of when or how many gatherings he attended. The applicant did not provide any details as to how he contacted unemployed workers and did not provide any details as to when or where he distributed propaganda material. Although the applicant claimed he had been detained, he did not provide any details of where he had been detained. The applicant claimed to have been forced to write a confession, but did not provide any details of the questions he had been asked by police, or the confession. The applicant did not provide any details as to why he had been released on bail. The Tribunal also referred to the fact that there were inconsistencies in the applicant’s claims (CB pp.70-71).
The Tribunal concluded that it was unable to be satisfied on the evidence before it that the applicant was a leader or was actively involved in an employed workers group, or that he was arrested, detained and charged as a result of his involvement in such a group. The Tribunal was unable to be satisfied that the applicant had a well founded fear of persecution for any Convention reason if he returned to China then or in the reasonably foreseeable future (CB p.71).
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.The Refugee Review Tribunal did not deal with my case in due care.
I have well-founded fear to be a refugee.”
No supporting affidavit nor subsequent amended application were filed by the applicant.
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
At the hearing, 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 Order 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. The applicant was further ordered to file and serve written submissions seven days prior to the final hearing. However, these orders were not complied with and no further material was filed by the applicant.
When the applicant was invited to make oral submissions he stated he had not received any correspondence from the Court Registry in respect of free legal advice under the RRT Pilot Legal Advice Scheme (NSW). The applicant was shown a copy of the form he completed at the directions hearing when he indicated he did not wish to participate in the Scheme. The applicant then provided an explanation for his action in that he did not understand what he was being told by the respondent solicitor at the directions hearing. When it was explained to him that he had had the aid of a Mandarin interpreter at the directions hearing and when he finally appeared before me on that day he was again asked whether he wished to participate in the Scheme and he indicated he did not wish to avail himself of the service.
The applicant then indicated he was waiting for the arrival of printed material from China in support of his claims but due to a crack down by Chinese authorities his contacts in China were having great difficulty dispatching the material. The applicant then gave the Court a general summary as to his circumstances concerning his application for a protection visa and recounted a number of personal circumstances going to the merits of his application.
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:
Ground 1 – the Tribunal did not deal with the case with due care
a)The respondent submitted that it was difficult to understand precisely what was meant by this ground of review. To the extent that it was suggested that the Tribunal failed to conduct a proper review as it was obliged to do because of some want of care or negligence on its part, this allegation must be rejected. The Tribunal reviewed with some care and at length the claims before it. It considered them in the proper statutory context and with an eye to the correct issues. It was unable to be satisfied, as it was obliged to be in order to grant a protection visa, on the scant evidence before it that the applicant met the Convention definition of refugee. The Tribunal committed no error in the way in which it conducted the review and this ground of review should be rejected.
Ground 2 – the applicant’s well-founded fear to be a refugee
a)It was submitted that this was not a proper ground of review and, at best, it invited merits review.
Reviewable Error
a)The respondent submitted that the Tribunal’s decision did not otherwise disclose any reviewable error. The Tribunal committed no error by proceeding to determine the applicant’s application for review based only on the material to hand when the applicant failed to respond to the invitation for hearing. Section 426A(1) of the Act expressly permitted the Tribunal to make a decision in such circumstances without taking any further action to allow or enable the applicant to appear before it.
b)A notice of hearing pursuant to ss.425 and 425A was sent to the applicant at both his mailing and residential addresses (CB pp.56-57). That notice clearly warned the applicant that: “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 notice was dated 11 May 2004, sent by registered post and was deemed to have been received by applicant seven working days after the date of the document, which in this case meant that it was deemed to have been received on 20 May 2004. The prescribed period of notice under s.425A(3) is fourteen days after the day on which the notice is received, which means that the prescribed period in this case expired on 31 May 2004, which was well in advance of the hearing date of 16 June 2004. The fact that the invitation to hearing letter sent to the applicant’s residential address was returned does not affect the deemed receipt of the letter under the provisions of the Act and the Migration Regulations 1994 (Cth): SZBBH v Minister for Immigration & Multicultural & Indigenous Affairs at [2]-[4].
c)The applicant was then advised by letter dated 26 July 2004 that the Tribunal had made a decision which would be handed down on 12 August 2004 (CB pp.59-60). The applicant did not, at this point, seek to put forward any further material or a further hearing. Having complied with ss.425 and 425A the Tribunal was entitled to rely upon s.426A as it did and to proceed to determine the application without taking further action to allow the applicant to appear: NASH v Minister for Immigration & Multicultural & Indigenous Affairs at [7] and [19]; SMTB v Minister for Immigration & Multicultural & Indigenous Affairs at [5]-[12]; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs at [9] and [15]-[16]; NASF v Minister for Immigration & Multicultural & Indigenous Affairs at [16]; and NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [16]. The Tribunal committed no error by proceeding in this way. The applicant had 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: R v Hickman; Ex parte Fox and Clinton. The applicant did not therefore demonstrate any entitlement to relief.
Reasons
When the applicant was invited to make oral submissions at the hearing he initially complained that he had not received any correspondence from the Court and was unaware of what was happening in relation to the proceedings. He also had indicated that he had not yet received any correspondence regarding the free legal advice scheme provided by the Court. When the applicant was shown the document he had completed and signed at the directions hearing, he then claimed he did not have any understanding of what was being said to him at the time and he signed the document because he believed he was directed to do so.
It was pointed out to the applicant that he had had the assistance of a Mandarin interpreter on that occasion who explained to him the contents of the document he was completing. The applicant then appeared before me for the allocation of a final hearing date and a review of the various documentation and orders were made at that time. I reminded the applicant of the procedures I had adopted during that directions hearing in relation to the significance of the various forms and the material and directions that each form contained. I also raised with the applicant, through the interpreter, his decision not to participate in the Pilot RRT Legal Advice Scheme (NSW) provided by the Court at no charge to the applicant and that he had confirmed he did not wish to participate in the Scheme.
Despite the applicant’s denial in relation to the receipt of documentation forwarded to him, he appeared to be aware of the requirement to attend Court on various days when he was advised to do so yet denied the receipt of correspondence requiring him to attend or alternatively supply material requested of him. When the Tribunal invited him to attend a hearing prior to determine their decision, the Tribunal forwarded the invitation to his residential address and to a Post Office Box in Haymarket, New South Wales. The letter forwarded to the applicant’s residential address in Croydon Park was returned, indicating the applicant had left that address. The letter forwarded to his Post Office Box was not returned.
The Tribunal’s letter of 7 May 2004, which was sent to both the applicant’s mailing address and his residential address, advised that the Tribunal had considered the material before it but was unable to reach a decision in his favour on that information alone. The letter invited the applicant to a hearing on 16 June 2004 “to give oral evidence and present arguments in support of your claim”. The Tribunal’s 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 Tribunal’s letter requested the applicant to: “send us any new documents or written arguments you want the Tribunal to consider; please note that any documents and arguments you send should be in English or translated by a qualified translator.” As stated above, the letter forwarded to the applicant’s residential address was returned unclaimed on 8 June 2004 and no other response was received to the letter. The Tribunal made its decision without a hearing on 20 July 2004. It then advised the applicant by letter to his mailing address that its decision would be handed down on 12 August 2004. The Tribunal was not contacted by the applicant as a result of this letter. The Tribunal’s decision was handed down on 12 August 2004 and a copy was sent to the applicant under cover of a letter of that date.
Despite claims that he had not received correspondence, the applicant was able to file an application in this Court by 2 September 2004 which was within the deadline set for the filing of appeals. He subsequently attended a directions hearing and final hearing in the matter without any apparent difficulty. The applicant did have a bundle of documents with him at the bar table which he conceded had been received from the Court Registry after the directions hearing. However, the applicant insisted that it was the only correspondence he had received.
I accepted the respondent Counsel’s submissions in respect of Grounds 1 and 2 of the original application. After reading the Tribunal’s decision I also accepted the respondent’s submissions that no reviewable error was disclosed in that decision.
Conclusion
The applicant in these proceedings was representing himself and made no oral or written submissions. The grounds in the original application were vague and unparticularised. 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 pleaded grounds do not make any reference to errors of the Tribunal and are no more than broad assertions addressed to the applicant’s displeasure with the Tribunal for not finding in his favour. The applicant was given the opportunity to raise any issue he wished during the final hearing but his explanations, as to the failures in the Court notification and correspondence systems, were less than honest with the claims being changed as the applicant’s untruthfulness was exposed. The remainder of the applicant’s comments was a request for a merits review.
As the grounds in the application are general and without particularisation 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 thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 March 2005
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