SZERP v Minister for Immigration
[2005] FMCA 1107
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZERP v MINISTER FOR IMMIGRATION | [2005] FMCA 1107 |
| 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, 425, 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
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
SZBBI & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 946
| Applicant: | SZERP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3319 of 2004 |
| Delivered on: | 12 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr J Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The hearing date of 28 November 2005 is vacated.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3319 of 2004
| SZERP |
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 11 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 September 2004 and handed down on
12 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 11 May 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs 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 “SZERP”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 2 May 2004. On 6 May 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.1-29) (“CB”). On 11 May 2004 the delegate refused to grant a protection visa (CB pp.30-42) and on
15 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.43-47).
The applicant is a married man born in 1962 and is from Tianjin in the People’s Republic of China. His wife and son reside in China. The applicant’s passport was issued in Tianjin on 7 April 2003 and a travel visa to Australia was issued on 14 April 2004.
Applicant’s claims
The applicant’s claims made in his protection visa application are set out in the Tribunal’s decision and are repeated as follows:
a)From August 1962 until May 2004 the applicant resided at the same address in Tianjin. From 1985 until 2003 he was employed as a driver for a Chinese-Australian cupboard company (CB pp.15, 17).
b)“I would like to apply for a protection visa in order to avoid a risk of being jailed in my original country. The following is my terrible experience in China.”
c)“I am a genuine Falun Dafa practitioner and I started to exercise it in December 1997. In July 1999, the Chinese government outlawed Falun Gong and thousands of practitioners were being prosecuted.”
d)“In October 2001, I went to Beijing to appeal for the end of the persecution of Falun Dafa. I was arrested and detained at Heping Detention Centre, Tianjin. I started a hunger strike then
I was released seven days later.”e)“In April 2003, several policemen from Heping police station arrested me and sent me into the Tianjin Number 2 Jail illegally. In the jail policeman Gao Lu ordered the criminal prisoners to persecute me. If I didn’t obey, they would punish me by forcing me to sit on a tiny plastic stool from 5:00 am until 9 or 10 at night. They used criminals to monitor me; if I wasn’t sitting up straight, they would hit me in the area of my kidneys. Policeman Yu Chan beat me at night. If I didn’t give in to the authorities’ demands, they would take me to the correction office. There, several team and assistant leaders would beat me, along with other officers. They put handcuffs on me and used electric batons to shock me. Sometimes I was forced to inject unknown drugs. If I refused the injection of unknown drugs, the police shackled all four of my limbs to a bed. I bit at the needle and wouldn’t let go. The police then tried hard to open my mouth, but they failed. Later the police used handcuffs to pry open my teeth, causing one of my teeth to break. I had blood all over her mouth. I was tortured there for half a year.”
f)“I understand that the authority would put me into jail again if
I still practice Falun Dafa. I have no way out in China and
I spent about 100,000 RMB to obtain a passport and a visa to Australia.” (CB pp.26-27)
The Tribunal’s findings and reasons
The Tribunal considered it was unable to make a decision in the applicant’s favour on the evidence contained in his application for review of the delegate’s decision, which was essentially a three paragraph statement (CB p.47). The Tribunal therefore invited the applicant to attend a hearing to provide further evidence in support of his claims (CB p.50). This letter of invitation was sent to the applicant by registered post to the residential and mailing addresses provided by the applicant in his review application (CB p.43). The applicant did not respond to the hearing invitation and the Tribunal recorded in its reasons for decision that he did not appear at the hearing scheduled for 10 September 2004. The applicant did not provide a telephone number nor did he make any further contact with the Tribunal (CB p.61). Pursuant to s.426A of the Act, the Tribunal then proceeded to make a decision without taking any further action to enable the applicant to appear.
The Tribunal found that there was insufficient evidence to support the applicant’s assertion that he had a well-founded fear of persecution. Without further evidence, the Tribunal could not accept that the applicant was indeed a Falun Gong practitioner or had been persecuted by the authorities in China for that reason (CB p.65).
Application for review of the Tribunal’s decision
On 11 November 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 refugee who meet the refugee criteria.
2.I am a genuine Falun Dafa practitioner and I started to exercise it in December 1997. In July 1999, the Chinese government outlawed Falun Gong and thousands of practitioners were being prosecuted. In October 2001,
I went to Beijing to appeal for the end of the persecution of Falun Dafa. I was arrested and detained at Heping Detention Centre, Tianjin. I started a hunger strike. Then
I was released seven days later. In April 2003, several policemen from Heping Police Station arrested me and sent me into the Tianjin No 2 Jail illegally. I was tortured there for half of a year.
Litigation history
On 26 November 2004, the applicant attended a directions hearing before Registrar McIllhatton. The applicant was ordered to file and serve an amended application, giving complete particulars of each ground of review to be relied upon by 17 February 2005. The applicant did not comply with this order.
On 24 February 2005, the respondent sent a letter to the applicant stating that if a fully particularised amended application was not filed and served before 4 March 2005, the respondent would seek to have the matter summarily dismissed for non compliance with an order of the Court. The applicant did not respondent to this letter.
The matter was listed before me on 7 June 2005 for a non compliance hearing. On that date I granted the applicant further time until 5 July 2005 to file and serve an amended application. The applicant again failed to file an amended application identifying the grounds by which he was challenging the Tribunal’s decision. The respondent again requested that the matter be dismissed for non compliance with an order of the Court. I declined this request and listed the matter for an expedited hearing on 2 August 2005.
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.
Submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. At the directions hearing on 26 November 2004 the applicant was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) but that invitation was declined. At the directions hearing the applicant consented to orders requiring him to file written submissions prior to this hearing. However, no submissions were received. The only written material before the Court was the applicant’s original application setting out a number of claims (see paragraph 8 above). The applicant was invited to address the Court in support of his application but he did not provide any particularisation to the pleaded grounds in his oral submissions. The applicant made the statement that he did not attend the Tribunal hearing because he did not understand the correspondence forwarded to him by the Tribunal. The Tribunal had written to the applicant on
13 August 2004 indicating it had considered the information before it in relation to his application but was unable to make a decision in his favour on the information alone (CB pp.50-51). Consequently, the letter invited the applicant to attend a Tribunal hearing on Friday,
10 September 2004 to give oral evidence and to present arguments in support of his claim. The applicant was also advised that he may bring other witnesses to the Tribunal hearing in order that they may give evidence in support of the applicant’s claim. There was no response to the hearing invitation and the Tribunal proceeded with its decision making process.
The applicant also indicated to the Court that he could not afford a solicitor and that the Tribunal decision was wrong. The applicant then stated that when he had been arrested he had been tortured which resulted in an injury to his right arm. He indicated to the Court from the bar table that it was not possible for him to straighten his arm due to the injury. The applicant held up his arm roughly horizontal to the floor and demonstrated that he was unable to fully straighten his arm. No other form of evidence in respect of this injury was provided. The injury was not referred to in any of the documentation supplied to the delegate or the Tribunal and there was no reference in the Tribunal’s decision as to the extent or nature of this alleged injury.
Mr Bird, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which were supported by oral presentation.
Reasons
This matter came before the Court on 7 June 2005 in a non compliance list at the request of the respondent because the applicant had failed to comply with orders made by a Registrar of this Court on 26 November 2004 to file and serve an amended application identifying the grounds of review of the Tribunal decision and giving complete particulars of each of those grounds. The original grounds did not disclose a cause of action and the applicant was provided with an opportunity to re-plead to clarify the grounds upon which he relied in his challenge of the Tribunal decision. When the applicant appeared before me on 7 June 2005 he indicated to the Court he wished to pursue his application and he was provided with an opportunity to file an amended application to achieve this objective. Since a period of almost five months had elapsed since the date the applicant was required to file his amended application according to the Registrar’s orders, I provided the applicant with one month to file and serve an amended application. When the applicant failed to comply with these orders, the matter was set down for final hearing.
The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to make out his own case: Minister for Immigration & Ethnic Affairs v Guo & Anor per Kirby J at 596. In this case the applicant has had the opportunity on a number of occasions to file an application and supporting documentation setting out his case. He has been provided with the opportunity to express to the Court the circumstances and reasons for his failure to comply with these orders. His response on each occasion has been to briefly repeat his very broad claims and indicate that he wishes the Court to consider his matter.
The applicant in these proceedings was self represented and has made no oral or written submissions other than to make the statement that he is a refugee, meets the refugee criteria and to give a very brief account of his adherence to Falun Gong. The grounds in the original application are vague and unparticularised. However, where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out:
Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted do not identify any error in the Tribunal’s decision nor any error in the process adopted by the Tribunal during its decision making process. This effectively reduces the review process to a reading of the decision to determine whether there is any error identified on the face of the document itself. I have undertaken this task and on a fair reading of the Tribunal’s decision and, in the absence of any contrary material, the Tribunal accurately summed up the nature of the applicant’s claim. All the matters taken into account by the Tribunal in arriving at its conclusion were probative of the issues before it. An examination of the Court Book revealed that the applicant attached to his original application a typed statement of one and a half pages set out in a double-spaced format. Attached to the applicant’s review application was a further statement which contained the same information as the visa application with some of the information of the visa application excised. The Tribunal was supplied with no further information from the applicant despite an invitation to attend an oral haring and a request to supply any further information in support of his claims. The Tribunal concluded that it was not provided with sufficient evidence to support the applicant’s assertion in respect of his activities in relation to his practice of Falun Gong, the circumstances of his detention or that he has a well-founded fear of persecution.
The applicant, in his oral submissions from the bar table in support of his application, raised the issue regarding his failure to attend the Tribunal hearing on 10 September 2004. The applicant conceded that he received the Tribunal’s letter dated 13 August 2004 which contained the invitation to attend an oral hearing on 10 September 2004. The applicant’s explanation for his non appearance was that he did not understand the content of the letter and consequently took no action.
I note that since the applicant filed his original application for a protection visa he has received various correspondence from the Department, the Tribunal and this Court. On a number of occasions he has responded to that correspondence by attending the Court on the correct day, time and location which was information that had been conveyed to him by that respective correspondence. The applicant has also lodged in the Court Registry his original application in English and substantially in the form required by the Court. The applicant claimed he had received correspondence requesting him to undertake certain actions and because the correspondence was not translated to him he was unable to respond in the manner in which he had responded to other Court documentation.
The applicant, in his oral submissions, also advised the Court that he had been unable to comply with the Court orders because he could not retain the services of a solicitor or agent because he was unable to pay their respective fees. However, when the offer was made to the applicant for the services of a panel adviser through the Pilot RRT Legal Advice Scheme (NSW), he indicated he did not wish to participate in that Scheme. When this offer was made to the applicant the Scheme was explained to him by a Court appointed interpreter retained to assist self represented litigants at the first court date directions hearing. The applicant signed the form indicating that he did not wish to participate in the Scheme. It is normal practice of the Court Registrars when collecting documents submitted by self represented litigants, to ask whether the documents do reflect their election.
The applicant then demonstrated to the Court that it was not possible to straighten his right arm because of the injury he had suffered when he was arrested by the police during a Falun Gong supporters rally. The applicant submitted no medical evidence in support of this claim and the claim had not been previously mentioned to the delegate, the Tribunal or in the pleadings in this Court.
The Tribunal had limited information before it on which to make a decision on the applicant’s claims. The Tribunal could not grant the applicant’s application unless it was satisfied that the criteria for the grant of a protection visa had been met: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs at [15]-[16]; NAST v Minister for Immigration & Multicultural & Indigenous Affairs at [4]-[5]; and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003.
The Tribunal was required to notify the applicant if it could not make a finding in his favour on the documents before it and invite him to attend a hearing: s.425 of the Act. The Tribunal complied with that obligation and sent him an invitation by registered post to the address for service nominated by the applicant. The applicant provided his explanation for his non appearance in oral submissions before this Court. However, when the applicant failed to appear before the Tribunal, it was entitled to make a decision without taking any further action to enable him to appear: s.426A. The applicant “cannot complain if [his] application was rejected because, amongst other reasons [he] failed to take up that opportunity”: S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs at [26]. Indeed, the decision by the applicant not to attend a hearing before the Tribunal rendered the outcome of his protection visa application inevitable: SZBBI & Anor v Minister for Immigration & Multicultural & Indigenous Affairs.
Conclusion
The applicant in these proceedings has failed to identify any ground for review in the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any error in the decision making process. As there is no evidence of 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-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 12 August 2005
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