SZEOW v Minister for Immigration
[2005] FMCA 15
•31 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOW v MINISTER FOR IMMIGRATION | [2005] FMCA 15 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (866) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.427(1), 438
Judiciary Act 1903 (Cth), s.39B
SZAOG & Anor v Minister for Immigration [2004] FMCA 125
VCAI & Anor v Minister for Immigration [2004] FMCA 443
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEOW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3110 of 2004 |
| Delivered on: | 31 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 7 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Australian Government Solicitor |
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 |
SYG3110 of 2004
| SZEOW |
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 3 May 1999, affirming the decision of the delegate of the respondent (“the delegate”) made on
22 January 1998 to refuse to grant the applicant a protection (866) visa.
Background
The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 18 September 1997. On 23 October 1997 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 22 January 1998 the delegate refused to grant a protection visa and on 26 September 1998 the applicant sought review of that decision.
The applicant stated that he had finished his schooling after Year 9 and that his results were poor. He claimed that he lived in the country village of Changle in the Fujian Province and worked as an apprentice in a furniture factory.
The applicant said he received government notification in December 1995 to attend a medical examination prior to conscription as a soldier. The applicant attended this medical examination in January 1996 and received notification that he had passed the examination in March 1996. Initially he claimed he had not been concerned about national service but had not realised the government was planning war with Taiwan. The applicant claimed that he had been told that Taiwan may declare its independence and that the militia from Fujian would have to play a major part in any war because they spoke the same language as the Taiwanese. The applicant stated he did not agree with the policy of war and did not believe in Chinese fighting Chinese (Court Book p.50) (“CB”).
To avoid conscription the applicant claimed he had gone to a mountainous area of Guangdong Province where he initially found work in a restaurant for a period of five months. He later went to other cities of Guangdong but was detained by the People’s Security Bureau (“PSB”) during a check for violations of temporary residence permits. The applicant claimed he was detained for two weeks and then sent under escort to Changle where he was further detained for over four months. On his release, the applicant claimed he was denied the opportunity to work by the local authorities which led him to seek assistance from a Taiwanese agent in arranging his departure from China, flying to Vietnam and then on to Australia. The applicant’s passport and visa were arranged by the Taiwanese agent (CB p.51).
The Tribunal’s findings and reasons
In its decision, the Tribunal summarised the constituent elements of the definition of a refugee (CB pp.48-50), the claims and evidence before it (CB pp.50-54) including material concerning conscription in China (CB pp.52-54) and then set out the findings and reason for its decision (CB pp.54-59). In summary, the Tribunal found that:
a)the applicant was from the People’s Republic of China (CB p.54.10);
b)it noted it had doubts as to whether the applicant was called up for national service (CB p.55.2);
c)it noted that even had the applicant been called up the law was of general application and there was no indication it was applied differentially to any person for a Convention reason (CB p.55.4);
d)it did not accept that a war with Taiwan was likely to happen in the foreseeable future or that China was engaged in any war which “has the condemnation of the international community” (CB p.56.6);
e)it rejected the applicant had ever been punished for his actions in avoiding national service;
f)the applicant had been detained because he did not have the necessary temporary permit to move to another province and his detention was not related to any Convention reason (CB p.56.8);
g)it did not accept there had been any action by the authorities to forbid any factory or company from employing the applicant (CB p.57.1);
h)it did not accept that the applicant had been unable to get a passport in his own name because he had a political history (CB p.57.8); and
i)it did not accept the applicant’s claim that he would be punished as there was a circular out for him or that his parents had told him that the authorities are still after him (CB p.58.9).
Application for review of the Tribunal’s decision
On 18 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“I am Chinese citizen and came to Australia on 18 September 1997. I don’t support the Chinese fight to Taiwan. I didn’t agree with this policy. I detained for over four months and the authorities had forbidden any factory or company from employing me what they did all to me. It make me wanted to escape persecution from the Chinese. The Tribunal failed to consider and properly exercise its discretionary powers provided under s427(1) of the Migration Act 1958. In 3 May 1999 make a decision RRT ignored few fact and evidence from my side at the same time make an error in the decision. The Tribunal need to inquire from my evidence.” (Errors in original)
Submissions
The applicant appeared self represented with the aid of an interpreter before me on 29 October 2004 at a directions hearing. He consented to orders requiring him to file and serve an amended application giving complete particulars of each ground of review to be relied upon by 2 December 2004 and to file and serve any affidavit containing additional evidence to be relied upon, including a transcript of the Tribunal hearing, by the same date. The applicant was also required to file and serve written legal submissions and a list of any authorities fourteen days prior to the hearing. These orders were not complied with by the applicant. At the directions hearing the applicant also indicated that he wished to participate in the Panel Advice Scheme and a member of the New South Wales Bar was allocate to the applicant. Advice was subsequently provided to the applicant by the Panel member with the assistance of a Mandarin interpreter.
When the applicant was invited to make oral submissions at the hearing he indicated that he wished to clarify that he had not been in the army and that he was not a deserter. He claimed that the military force he was being recruited into was civilian as distinct from the regular army. The applicant stated that this civilian force was drawn predominantly from farm labourers and low skilled workers who were provided with a minimum of training. The applicant stated he objected strongly to this force being used to fight against the people of Taiwan. He claimed he did not fear recruitment as a soldier but strongly objected to being used in any force against the Taiwanese people. The applicant claimed he was able to avoid the conscription because his parents had spent a considerable sum of money financing his escape from China.
Mr R Beech-Jones of Counsel, appearing for the respondent, filed written submissions and a list of authorities prior to the hearing. It was submitted that the application did not particularise any proper grounds of review nor had there been any submissions filed. It was further submitted there was no error disclosed by the Tribunal’s reasons and the Tribunal had comprehensively considered the applicant’s claims. To the extent that the applicant claimed that he had been subjected to a call-up for national service, Counsel submitted that the Tribunal did not accept that there was any causal connection between that call-up and any Convention reason and its approach was entirely consistent with the authorities of SZAOG & Anor v Minister for Immigration (“SZAOG & Anor”) and VCAI & Anor v Minister for Immigration (“VCAI & Anor”). It was submitted that the Tribunal did not accept that the applicant had been or would be punished for avoidance of his national service responsibilities and this was a finding of fact open to the Tribunal on the material before it.
The applicant’s current application was filed on 18 October 2004 after he had been apprehended and placed in detention. Previously he joined the class action of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (“Muin/Lie”) on 11 February 2000 and was removed from it on 13 June 2003. There was therefore an unexplained delay of nine months after the Tribunal’s decision and a further sixteen months between leaving the class action and filing the application for review. In those circumstances, Counsel submitted that irrespective of whether the Court considered there was jurisdictional error, the delay was inexcusable and that the Court should, as a matter of discretion, not entertain the application: see Re Refugee Tribunal; Ex parte Aala (“Aala”) per Gaudron and Gummow JJ at [53] and [82], per Kirby J at [145] to [150], per Hayne J at [172] and per Callinan J at [217].
Reasons
The applicant in these proceedings was self represented and made no written submissions to this Court. The grounds in his original application were vague and unparticularised. The applicant’s oral submissions from the bar table were that the Tribunal had made a number of errors in relation to the facts of his situation in that he was a deserter and the armed forces for which he was being recruited was the regular army as opposed to the civilian army. No evidence was submitted in support of these claims.
Where an applicant is self represented the Court must independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. In the material submitted by the applicant there was nothing that pointed to or suggested that the process or the decision of the Tribunal was infected by jurisdictional error.
The applicant claimed in the grounds pleaded that:
“The Tribunal failed to consider any properly exercise its discretionary powers provided under s427(1) of the Migration Act 1958.”
That section of the Act states as follows:
1.For the purpose of the review of a decision, the Tribunal may:
(a)take evidence on oath or affirmation; or
(b)adjourn the review from time to time; or
(c)subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
There was no further particularisation of this claim. However, in the absence of this material the only assumption that could be drawn from this basic pleading was that it was a reference to s.438 of the Act which required the Tribunal to disclose certain information to the applicant. Again there was no particularisation as to what material the Tribunal did not disclose to the applicant during its hearing on 17 February 1999. The Tribunal did have before it a considerable body of material relating to conscription in the People’s Republic of China including the provisions for punishment for avoidance of national service as contained in the military service law. Due to the absence of particularisation, it was not apparent that anything contained in this material was adverse to the applicant. The applicant did state in his address from the bar table that there had been a misapprehension that he was enlisted and a deserter from the army. On a fair reading of the Tribunal’s decision there was no evidence that it formed this view or was working upon this misapprehension.
The applicant’s other oral submission from the bar table was that the body that was attempting to recruit him was a civilian army. If there was such a distinction between the various branches of the army that issue was not raised in the Tribunal’s decision or supporting documentation considered by it. Regardless of the command structure of the force that was recruiting the applicant, his concern was that he would be engaged in warfare with Taiwanese troops. In the absence of any contrary material, it had to be assumed that the troops undertaking such tasks would be controlled by military service law of the People’s Republic of China’s which was the material provided to the Tribunal.
The Tribunal did not accept that there was any causal connection between the applicant being called up to perform national service and any form of persecution that flowed from that call up that would fall within the concept of persecution within the Convention. The approach taken by the Tribunal was consistent with recent authorities in SZAOG & Anor and VCAI & Anor.
The Tribunal expressed some doubt as to whether the applicant was in fact called up for national service. However, on the assumption that he was requested to attend a medical examination to determine his eligibility for call up, that requirement applied universally to all Chinese males of a certain age. There was no indication that this law was applied differentially to a person for any Convention reason being that of race, religion, nationality or membership of a particular social group or political opinion.
The evidence before the Tribunal by the applicant indicated that he had been initially detained and punished for breaches of provincial temporary work permits which were civil or criminal offences relating to military service and with no Convention nexus. On a fair reading of the Tribunal’s decision the applicant had not suffered persecution associated with the requirements to participate in military service.
I note that the applicant had two unexplained delays in filing his application for review. There was a nine month delay between the Tribunal’s decision and his joining the Muin/Lie class action and a further period of sixteen months between the period when he withdrew from the Muin/Lie proceedings and lodged his current application before this Court. Counsel for the respondent referred me to the authority in Aala in the absence of any explanation for these two periods of delay where there did not appear to be any attempt by the applicant to re-invigorate a review of the original Tribunal’s decision. As the application fails to sustain the main grounds pleaded in the application, I do not believe it is necessary to pursue this issue.
Conclusion
As the grounds in the application are general and without particularisation I have not been able to identify that the Tribunal has committed a 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-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 January 2005
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