SZELH v Minister for Immigration
[2005] FMCA 708
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZELH v MINISTER FOR IMMIGRATION | [2005] FMCA 708 |
| 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, 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
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZELH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2898 of 2004 |
| Delivered on: | 31 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 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 Alex of Phillips Fox |
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 2898 of 2004
| SZELH |
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 22 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 July 2004 and handed down on 19 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 7 May 2004 to refuse to grant the applicant a protection visa. The applicant seeks unstated relief against the decision of the Tribunal.
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 “SZELH”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 18 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 (Court Book pp.1-30) (“CB”). On 7 May 2004 the delegate refused to grant a protection visa (CB pp.33-42) and on 7 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.43-47).
According to his visa application, the applicant was born in August 1975 and is a Chinese national. He claimed that he lived at the same address in Fushun City, Liaoning, China from 1994 until June 2001 and he lived in Perak, Malaysia from July 2001 until July 2003 (CB p.15). The applicant stated he was self employed as a taxi driver in Liaoning from 1995 to 2001 (CB p.17). In Part C of the visa application, the applicant indicated that he had never been convicted of a crime or an offence in any country and had not been charged with any offence that was currently awaiting legal action (CB p.25). According to the information provided by the applicant his passport was issued to him in Liaoning in January 2001 and his visitor’s visa to travel to Australia was issued in Shanghai on 7 April 2004 (CB p.14).
Applicant’s claim
In a statement which accompanied his visa application, the applicant outlined his claims as follows:
a)He started to practise Falun Dafa in the beginning of 1998. He experienced terrible ordeals in China because he is a genuine practitioner of Falun Dafa.
b)In January 2000 police from the Fushun City police station ransacked his home. He was sentenced to one year in Fushun City forced labour camp because he was a Falun Gong practitioner. At the end of January 2000 he was subjected to forced brainwashing classes at the camp. He was harmed and mistreated during this time.
c)An investigation into his harsh treatment was undertaken but none of the policemen was held responsible for the matter.
d)The treatment to which he was subjected caused severe injury to his lungs.
e)He was not released until January 2001.
f)If he lives in his city he will face more severe punishment from his government. For this reason he sold all of his belongings to raise 100,000 RMB in order to bribe a powerful government official to issue a passport and apply for a student visa for Malaysia. He returned to China in July 2003 and he found that nothing had changed in relation to the persecution of Falun Gong practitioners. He applied for a visitor visa for Australia (CB pp.26-27, 63)
The Tribunal’s findings and reasons
Ms A Alex, Solicitor appearing for the respondent, prepared written submissions prior to the hearing which contained the following summary of the decision of the Tribunal:
a)The Tribunal found that it could not be satisfied that the applicant was a genuine Falun Gong practitioner as:
i)there was nothing in the applicant's claims indicating that he knew anything of the Falun Gong movement. He did not give particulars of his practice of Falun Gong in China, nor whether he continued its practice after leaving China; and
ii)the applicant did not give details of the charges that were brought against him. The claim conflicted with other information given by the applicant on his visa application that he had never been convicted or charged with an offence and that he had lived at the same address during the period of his claimed detention. The Tribunal was not satisfied that the applicant had been detained.
b)The Tribunal did not accept that the applicant would have returned to China from Malaysia if he had a genuine fear of persecution. It noted that there was ample information available around the world about the situation for Falun Gong practitioners in China (CB pp.64-65).
Application for review of the Tribunal’s decision
On 22 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.there is unfairness in the tribunal decision
2.the tribunal only referred to the country information unfavourable for the protection visa applicant
3.the member of the Tribunal embraced group information not applicable for individual applicant
4.the member of the Tribunal acted in a way that affects the exercise of power by making an error of law
5.the member of the Tribunal determined questions of law not in accordance with the law (Errors in original)
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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 appeared before me at a directions hearing directions hearing on 8 October 2004 and by consent to Short Minutes of Order agreed to file and serve any affidavit containing additional evidence to be relied upon including a transcript of the Tribunal hearing by 30 January 2005. By that date the applicant was also required to file and serve an amended application giving complete particulars of each ground of review. The applicant was also required to file and serve any legal written submissions and a list of authorities fourteen days prior to this hearing. The applicant failed to comply with any of these orders.
At the final hearing when the applicant was invited to make any oral submissions in support of his original application this was limited to some general statements indicating that he was a Falun Gong practitioner and qualified as a refugee and should be granted a protection visa by the Department. The applicant was not familiar with the pleadings in his original application and indicated he did not understand their meaning as he was unable to speak the language nor did he understand the operation of the legal system in Australia. The interpreter allocated to assist the applicant during the hearing translated the contents of the pleadings but the applicant was unable to indicate which issues he was challenging in the Tribunal’s decision.
At the original directions hearing the applicant was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) and a panel member was allocated to the applicant. The Court file contained a letter from the adviser indicating that he had not received any contact from the applicant and had subsequently forwarded his written advice to the applicant’s last known address.
Respondent’s submissions
Ms A Alex, Solicitor appearing for the respondent, prepared written submissions prior to the hearing which contained the following contentions:
a)There was no issue arising in the Tribunal’s decision which would lead to a finding of jurisdictional error. The primary finding made by the Tribunal, on the evidence before it, was that it could not be satisfied that the applicant was a genuine Falun Gong practitioner. The Tribunal could not be satisfied on the evidence before it that the applicant had a well founded fear of persecution for a Convention reason.
i)In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs, the Full Court, at [15]-[16], concluded that a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision (in a matter such as this) if that state of satisfaction is not reached.
b)The Tribunal complied with its obligations under the Act. The Tribunal invited the applicant to attend the hearing, it received no response and the applicant did not appear at the hearing. The applicant's failure to attend his hearing, denied the Tribunal the opportunity to explore his claims with him. Further, the applicant provided vague details in support of his claim and presented no further evidence to support his claims despite the invitation to do so.
i)In S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (5 November 2004) the Full Court at [26] 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)The Tribunal complied with its obligation under s.426A of the Act and proceeded to determine the matter on the papers.
i)In NAST v Minister for Immigration & Multicultural & Indigenous Affairs at [4]- [5] the Tribunal noted that, in view of the first appellant’s failure to attend the hearing, the Tribunal 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 Tribunal 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.
Reasons
The applicant in these proceedings was self represented and appeared with the assistance of a Mandarin interpreter. He filed no written submissions prior to hearing and made only limited, general statements from the bar table in support of his original application. The grounds in his application were vague and unparticularised and would appear to have been prepared by some unidentified third party as the applicant demonstrated that had no knowledge or understanding of their contents and was unable to indicate to the Court the issues that he was attempting to challenge in the Tribunal’s decision.
Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The grounds pleaded were no more than general, bald statements that reflected no specific relationship with the Tribunal’s decision. Two of the pleadings were directed at country information subject to which the Tribunal made no reference in its decision. The three remaining pleadings were directed at the decision making process of the Tribunal as not being within the requirements of the Act and more generally within the parameters of administrative decision making. I did not believe there was any purpose in spending any further time attempting to identify from those pleadings an issue in the Tribunal’s decision that could be characterised as a jurisdictional error. The findings of the Tribunal were effectively summarised in the following passage:
“On the evidence available to me, or rather lack of it, I cannot be satisfied that the applicant has any knowledge of the Falun Gong movement, its philosophy or its exercise regime or has ever practised Falun Gong. On the information provided by the applicant it is even impossible for me to be satisfied that any of his claims with respect to Falun Gong are true. As I cannot accept the applicant’s claims on the facts, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason.” (CB p.65)
To evaluate that decision I have read the contents of the Court Book including the decision and have come to a similar conclusion to that of the Tribunal member. The applicant in his original application attached a typed double spaced statement of one and a half pages which set out his experiences in the city of Fushun where he claimed he was detained for practising Falun Gong. When the applicant filed his application for review before the Tribunal that statement was again submitted in a typed format of single line spacing which amounted to a half page document (CB p.47).
The Tribunal wrote to the applicant on 21 June 2004 advising him that it had considered the material before it relating to his application but was unable to make a decision in his favour on the information alone (CB pp.50-51). Consequently, he was invited to attend a Tribunal hearing on 23 July 2004 to give oral evidence and present arguments in support of his claim. The applicant was advised that if he failed to attend the hearing or did not arrange for an adjournment and alternative hearing date the Tribunal would proceed to make its decision without further notice. The applicant was also advised that he may bring witnesses with him to the Tribunal hearing to give oral evidence to support the applicant’s case should such witnesses be available. The applicant was requested to complete a “Response to hearing invitation” or to contact a Tribunal staff member should he require assistance. The Tribunal forwarded its letter to the applicant at both his postal and residential addresses as supplied to the Tribunal in his review application. No response was received from the applicant nor was the correspondence returned to the Tribunal.
The applicant failed to appear before the Tribunal on the scheduled hearing date and nothing was heard by the Tribunal from the applicant to indicate his inability to attend the hearing. I accepted the submissions made by the respondent and the authorities quoted as being appropriate to the circumstances in this matter. The Tribunal had before it very limited information in respect of the applicant’s claims and the applicant declined an invitation to supplement or augment the material contained in his original application by providing further written submissions or attending the Tribunal hearing to give oral submissions in respect of his application. On a fair reading of the decision and in consideration of the limited material attached to the original application no jurisdictional error was apparent on the face of the Tribunal’s decision.
Conclusion
I have not been able to identify any ground that the Tribunal 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 (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 May 2005
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