SZEWY v Minister for Immigration - [2006] FMCA 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWY v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 216

MIGRATION – RRT decision – Chinese claiming persecution for religious belief – did not attend Tribunal hearing – false explanations in documents filed in the Court – no jurisdictional error.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules 2001, r.13.03A(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 426A, 426A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant:

SZEWY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2160 of 2004

Judgment of:

Smith FM

Hearing date:

7 February 2006

Delivered at:

Sydney

Delivered on:

7 February 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Mason

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500 in addition to the amount ordered on 14 November 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2160 of 2004

SZEWY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 13 July 2004, which seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 May 2004 and handed down on 15 June 2004. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant.
The hearing of the matter has been protracted both because of general delays affecting migration listings in this Court, and because the applicant did not attend a non‑compliance directions listing before me on 4 July 2005. I then dismissed the application under r.13.03A(c) of the Federal Magistrates Court Rules 2001. On 20 September 2005, after being taken into detention, the applicant applied to have that order set aside. On 14 November 2005 I set aside my previous order and listed the substantive application for a final hearing today.
Noting the factual contentions made in the amended application, I directed the applicant to file his evidence by way of affidavit, and gave him an opportunity to take out subpoenas by 23 December 2005. He took neither of those steps, but filed an unsworn statement on 28 November 2005, and has filed another unsworn statement today. Notwithstanding objections taken by counsel for the Minister, I gave him the opportunity to give sworn evidence today from the witness box, and I shall refer to this below.
The Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court has the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but this is subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa or any other permission to stay in Australia.
The applicant arrived in Australia in January 2004, and lodged an application for a protection visa on 26 February 2004. He presented two passports: a Chinese passport; and a United Kingdom passport issued in Hong Kong in a different name but also showing his photograph. He had entered Australia using the United Kingdom passport.
His application revealed no agent assisting him. However, the Department was aware that he was assisted by a person called Ms Billie Shi, and she was sent a copy of the decision made by the delegate.
The application attached a “Statement for Refugee Application”, which was not sworn. In it, the applicant claimed to have been following his parents in activities in an “underground” church in China. He claimed that following “the falungong affair” the local government “watched much closely to our activities and harassed us more than ever”. He was seen in company with a priest from Vietnam, and:
Two days afterwards eight policemen attacked my home. They didn’t ask any questions but detained all three of us. We were isolated from one another and given different investigations. Two weeks later my wife and I were released from the police station, but not [the priest]. Both my wife and I had known well how to deal with the police when such situation happened. We said nothing and show no opponent actions. While knowing that [the priest] was still kept in detention, we understood that we wouldn’t be able to get away with it this time.
The applicant claimed that he then went into hiding, and:
Under the help of the relatives of our church member who lived in [town], I was able to obtain a Chinese passport. However I find it too difficult for me to get a visa to other countries. Staying in China is impossible for me and I don’t have a ID and I do not have a stable residential address.
It was by the end of year 2003 I was introduced to Mr H who said he would like to give me some help. I followed him all the way to Hong Kong after checking out at Shenzhen custom and he organised me to the plane by giving me a passport which was not mine.
No greater details of his activities in the church or his claimed persecution were given. No corroborative evidence was provided.
A delegate refused the application on 3 March 2004. In his reasons, he noted that the applicant had provided “no evidence to support any of his claims to have been persecuted as a Christian in the PRC”. He was not satisfied as to the truth of the claims, and concluded that the applicant would not have a well‑founded fear of persecution.
On 6 April 2004 an application for review by the Refugee Review Tribunal was lodged by facsimile. The application did not reveal any agent assisting the applicant nor authorise a recipient for correspondence, but gave a Lidcombe address which was described as the applicant’s home and mailing address. A typed statement was attached which did not provide more evidence, but criticised the delegate’s reasoning.
By letter dated 19 April 2005 addressed to the applicant at his Lidcombe address, the Tribunal informed the applicant: “the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”. The letter invited the applicant to attend a hearing: “to give oral evidence and present arguments in support of your claims”. The hearing was appointed for 19 May 2004 at 2 pm at a building in Elizabeth Street, Sydney. The letter informed the applicant:
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.
If you have a passport you should bring it to the hearing.
According to the Tribunal’s reasons, it received no contact from, or on behalf of, the applicant in relation to the hearing invitation. The Tribunal said:
15.On 19 April 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 19 May 2004. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The invitation was sent to the applicant’s residential and address for service, and was not returned unclaimed. The applicant did not provide any other contact details. The Department and Tribunal’s files were checked for a more recent address and for contact details, but none were found.
16.The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In its “Findings and Reasons”, the Tribunal referred to the presentation by the applicant of two passports in different names, both with appropriate identifying photographs of him. It noted that it did not have access to the original passports, and that only some pages from them had been supplied as copies to the Department. It said: “In light of this evidence, I am unable to make a finding as to the true identity of the applicant”.
The Tribunal also said that it had “serious doubts about the claims made by the applicant”. It said:
His accounts were so vague and generalised with respect to his adherence of the church he claimed to have belonged to that I am unable to establish the facts of his case. There were also a number of factual inconsistencies with regard to his claims.
The Tribunal referred to several such inconsistencies in the original visa application and statement. The Tribunal said:
In light of the applicant’s evidence, I am unable to accept that the applicant is, or ever was, a member or adherent of an underground church in China.
The Tribunal expressed the opinion that “the applicant fabricated his claims to provide for himself the profile of a refugee”. Its conclusion was:
Accordingly, I am not satisfied that the applicant had a well founded fear of persecution for his political opinion or for any other Convention reason in China, or that he has a well founded fear of persecution in the foreseeable future if he returns to China for his political opinion or for any other Convention reason.
I have considered the reasoning of the Tribunal and consider that it was open to it on the material that was before it. Its essential reason for affirming the delegate’s decision was that, due to the absence of the applicant from the hearing, it was unable to confirm his identity and satisfy itself as to his claims. I do not consider that that reasoning reveals any jurisdictional error. I also do not consider that it reveals the use by the Tribunal of any information requiring service of a notice under s.424A(1).
In relation to the Tribunal’s decision to proceed under s.426A(1), I allowed the applicant to give evidence concerning his failure to attend the Tribunal’s hearing. There were some inconsistencies in what he said, and some of his answers to questions were not responsive. However, I generally accept the evidence given by the applicant to me under oath.
The applicant said that he had been using an adviser, Billie Shi, to help him bring his application to the Tribunal. He had learnt from her of the hearing date of 19 May 2004, and remembered that he was told it was at 2 pm or 2.30 pm. His account of being told by her of the hearing date is not, in my opinion, inconsistent with the sending of the invitation to the applicant’s residential address, since I understood his evidence to be that he had been told by her of the date after taking a paper to her office to have it explained to him. I think he was referring to the hearing invitation.
Whatever happened in relation to the hearing invitation, it was clear on his evidence that he had advance notice of the hearing and of its date, time and place. He said that he discussed with his agent whether she would attend with him, and that she had told him that she would not do so because she would require more money. He was clearly of the understanding that his agent would not be attending.
On the relevant day, he was working on a construction site at Dee Why. He said he had hoped to be able to leave work in time to get to the hearing, but was not able to. He left Dee Why about 3 pm and did not arrive at the Tribunal premises until about 4 pm. He said he went to the door and looked in but it appeared to have finished. He did not speak to anyone at the Tribunal on that day or subsequently. His friends who had driven him into the city had difficulty parking, and, as I understood his account, he joined them in a parking station and then was driven home. He said he telephoned his adviser later that night, and told her that he had missed the hearing. She told him that he should not worry, and that he should wait for an opportunity to appeal to the Federal Court.
Under cross‑examination, he disclaimed making any attempt to telephone the Tribunal to seek a rescheduling of the hearing, and he did not claim that anyone attempted to do this on his behalf. This is contrary to assertions made in a document headed, “Amended Application” which was sent by facsimile to the Court on 25 May 2005, and which I allowed to be filed as an amended application on 14 November 2005. The applicant disclaimed knowledge of the contents of that document until recent days, and was unsure whether the signature on it was his. He said it had been prepared by Billie Shi, who was helping him in the Federal Magistrates Court matter until he was taken into detention.
His two written submissions contain versions of events which, in my view, are not substantially inconsistent with his evidence given under oath. On his evidence, it is clear that the Tribunal was at all relevant times unaware of any reasons for the applicant’s non‑attendance, that no request was made to the Tribunal for a rescheduled hearing, and that the applicant took no action at all to obtain a rescheduled hearing.
In those circumstances, in my opinion the Tribunal made no error in proceeding under s.426A(1). The preconditions for that power were, in my opinion, complied with in relation to the service of the invitation, and the Tribunal’s discretion not to appoint a rescheduled hearing has not miscarried.
The originating application filed in this Court contains an assertion, which I find to be untrue, that the RRT did not give the applicant “an opportunity for interview”. It also repeats the applicant’s claims to be a refugee, but these cannot provide grounds for sending the case back to the Tribunal.
The document I have received as an amended application is, as I have indicated above, now disclaimed by the applicant. Its assertions: “I had an accident on the way to the tribunal”, and: “I tried to contact the tribunal via the interpreting line”, I find to be quite untrue.
No other contentions were made nor, in my opinion, are able to be made by the applicant to establish jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 20 February 2006