SZEHX v Minister for Immigration
[2005] FMCA 401
•1 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHX v MINISTER FOR IMMIGRATION | [2005] FMCA 401 |
| 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, 426A, 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
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEHX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2733 of 2004 |
| Delivered on: | 1 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms S Koya 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 2733 of 2004
| SZEHX |
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 7 July 2004 and handed down on 2 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 15 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 “SZEHX”.
The applicant, who claims to be a citizen of the People’s Republic of China, most recently arrived in Australia on 28 March 2004. On
6 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 15 April 2004 the delegate refused to grant a protection visa and on 14 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
According to the information provided in his protection visa application, the applicant claimed to be a married man from Tianjin, China (Court Book p.12) (“CB”). His wife and adult son remain in China. The applicant stated he lived at the one address in Tianjin for at least ten years until he came to Australia and was employed in his trade by the one company from 1984 to October 2003 (CB pp.15, 17). The applicant stated that he had obtained a passport without difficulty in late 2003, was issued with a single entry Australian visa on 12 January 2004 and with a (multiple entry) visa in early March 2004. His passport showed that the applicant visited Australia from 13 to 19 March 2004, re-entered China on 20 March 2004 and departed for Australia on 27 March 2004 (CB pp.26-27).
Applicant’s claim
The applicant claimed to have experienced a terrible ordeal in China as a Falun Dafa practitioner. He referred to the banning of Falun Gong in 1999. The applicant claimed that on 20 July 2001 he and another practitioner went to “Tianjin government center” to distribute Dafa material, but someone “tempted by financial incentives” reported them (CB p.24). The applicant claimed they were then handcuffed and arrested in a public place where many people took turns beating them for over an hour. He claimed they were then hung up and repeatedly beaten until they lost consciousness. The applicant said they were then sent to the Tianjin Detention Centre for three months and immediately following this incident the applicant went to Shangdong Province to avoid persecution. Ten days later he stated that people from “the 610 Office” in Tianjin tracked him down and collaborated with the local police to monitor him. On 30 May 2003 the applicant claimed he was reported for practising Dafa exercises and arrested by people from “the 610 Office” and again put into the Tianjin Detention Centre for two months (CB p.24).
In September 2003 the applicant claimed that he was brutally beaten by police at his home and his family were unable to stop them. He stated that three hours after the police had left his home he was caught when he went out and beaten at the side of the road (CB p.24). The applicant claimed he suffered many injuries and bled severely from the attack (CB p.25). The applicant claimed his family sent him to hospital and he recovered one month later (CB p.25). He claimed that if he still lived in “his city” that he would face further punishment from the government. The applicant stated that he sold all of his belongings to raise money to bribe a powerful government official to issue him with a passport and visa to Australia (CB p.25).
The Tribunal’s findings and reasons
The Tribunal accepted that the applicant was a citizen of China and assessed his claims against that country. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention if he returned to China and gave the following reasons:
a)The applicant’s claims were unclear, lacked useful details and some claims were inconsistent.
b)There were no useful details regarding the applicant’s practice of Falun Dafa.
c)The applicant claimed to have lived and worked continuously in Tianjin but he also claimed to have moved to Shangdong Province in 2001. The Tribunal surmised that this may have been for a short period of time given his claim that he was detained in Tianjin in May 2003.
d)The applicant claimed to fear arrest and persecution if he returned to China. However, it was unclear why he would be arrested given he did not claim to have practised Falun Gong after his arrest in May 2003.
e)It was unclear why police went to the applicant’s home in September 2003 as he claimed and beat him.
f)The applicant claimed to have obtained a passport without difficulty but also claimed to have sold everything to bribe an official to get a passport and an Australian visa.
g)The applicant claimed to fear punishment if he returned to China, yet he returned after a few days in Australia in March 2004.
h)The applicant left China legally which does not suggest he was of adverse interest to the authorities (CB pp.63-64).
The Tribunal noted that the delegate had used country information which indicated that the authorities directed their actions towards leaders of Falun Gong rather than practitioners and that if the applicant had been of adverse interest to the authorities he would not have been able to obtain a passport and leave China legally twice (CB p.65).
Application for review of the Tribunal’s decision
On 9 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 am a practitioner of Falun Gong which is a particular social group.
2.I was arrested by Chinese Government because I am a Falun Gong practitioner.
3.I face a risk of being [jailed] if I go back to China – my original country.”
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 appeared self represented with the aid of a Mandarin interpreter. The applicant 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 the applicant proposed to rely on at the hearing by
17 January 2005. This direction was not complied with by the applicant nor were any written submissions filed prior to the hearing.
At the directions hearing the applicant had been offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW). However, the applicant declined that offer. During the hearing before this Court the applicant was invited to make oral submissions in support of his application but this was limited to a brief statement that he was a Falun Gong practitioner and that he would be killed if he were returned to China.
Respondent’s submissions
The respondent filed and served written submissions which contained the following contentions:
a)The Tribunal found that it had discharged its statutory duty to provide the applicant with an opportunity to give oral evidence and present arguments and the applicant failed to take that opportunity.
b)The Tribunal then proceeded appropriately and consistently with s.426A of the Act to make a decision without taking further evidence from the applicant. This approach was endorsed by the Full Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs at [26] where their Honours held that:
“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)In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs at [15]-[16] 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 if that state of satisfaction is not reached.
d)This conclusion was supported by the Full Court decision in NAST v Minister for Immigration & Multicultural & Indigenous Affairs (“NAST”). In that case the applicant had 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. Their Honours observed at [3]-[5]
“… That was a course which the RRT was entitled to adopt.
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 the Full Court in NAST saw no error in the Tribunal proceeding as it did. That is essentially the same was as the Tribunal proceeded in this case.
e)The applicant’s application to the Court recited his claims to be a Falun Gong practitioner and stated he was entitled to a protection visa. However, the applicant did not provide any evidence whatsoever to substantiate his claims. The Tribunal invited the applicant to attend a hearing to explore and properly assess his claims but the applicant failed to avail himself of this opportunity. The Tribunal’s decision being challenged is a privative clause decision and there was no error of the kind alleged in the unparticularised application for review and no error was apparent on a fair reading of the Tribunal’s decision.
Reasons
Attached to the applicant’s application for a protection visa was a typed statement of one and a half pages giving a brief history of his adherence to the practice of Falun Gong, the fact that it was outlawed in 1999 and the suffering he had experienced since that date at the hands of the local authorities for participating in the practice of Falun Gong. The applicant briefly outlined a number of experiences in May and September 2003 when he was beaten by police which resulted firstly in his arrest and secondly his hospitalisation as a result of those encounters (CB pp.24-25).
The delegate’s decision of 15 April 2004 rejected the applicant’s application on the grounds that the applicant submitted no evidence to support his claims in regard to his claimed Falun Gong alliance and concluded that the application did not represent the reality of the applicant’s situation.
In the application to the Tribunal for review of the delegate’s decision the applicant reproduced his original statement in a more condensed form in a document which was approximately half a typed page containing similar statements as that of the original application (CB p.45). No additional information was provided to the Tribunal by the applicant with the application for review. On 21 May 2004 the applicant was invited to attend a hearing of the Tribunal on 25 June 2004 (CB pp.48-49). That letter indicated that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in his favour on that information alone. The Tribunal also indicated that if the applicant did not attend the hearing or seek an adjournment it would make a decision in his case without further notice. The applicant did not respond to the invitation and did not appear at the hearing on the scheduled date. Attempts by the Tribunal to contact the applicant to ensure that he was aware of the time, date and place of the scheduled hearing were unsuccessful. The invitation sent to the applicant’s residential address was returned to the Tribunal because he was no longer resident at that address. However, the correspondence forwarded to the applicant’s postal address was not returned (CB pp.50-53).
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 together with any evidence and written submissions prior to the hearing. These orders were not complied with. The applicant also declined to participate in the free Pilot RRT Legal Advice Scheme (NSW). At the time of the directions hearing some time was spent by the respondent’s solicitor and again during the brief hearing before me explaining to the applicant, with the aid of an interpreter, the purpose of the Legal Advice Scheme and the jurisdiction of the Court in respect of the final hearing. Despite this advice the applicant declined the offer to participate in the Legal Advice Scheme. I accept the respondent’s submissions in respect of the operation of s.426A of the Act and the supporting authorities in respect of this provision.
In the case of a self represented applicant 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 pleadings in the original application did not identify any area of the Tribunal’s decision was infected by jurisdictional error. A fair reading of the Tribunal’s decision does not disclose on its face any jurisdictional error. The Tribunal and the delegate before it were provided with the minimum of information by the applicant in his documents that were lodged with the respective bodies and no supplementary written or oral submissions were provided in support of those original applications. I believe that the applicant has been provided with every possibility to participate in the review with the offer of free advice to aid him in this task but nothing has been forthcoming from the applicant to augment his original claim. On the information available, the Tribunal was not satisfied the applicant had a well-founded fear of persecution within the meaning of the Convention.
Conclusion
I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s 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-one (21) 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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