SZEYF v Minister for Immigration
[2005] FMCA 1192
•31 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYF v MINISTER FOR IMMIGRATION | [2005] FMCA 1192 |
| 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
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346.
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEYF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2247 of 2004 |
| Delivered on: | 31 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 10 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr Z Chami |
| Solicitors for the Respondent: | Clayton Utz |
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 |
SYG2247 of 2004
| SZEYF |
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 16 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 May 2004 and handed down on 16 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
20 February 2004 to refuse to grant the applicant a protection (Class XA) 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 “SZEYF”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 5 February 2004. On 13 February 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.1-31) (“CB”). On
20 February 2004 the delegate refused to grant a protection visa (CB pp.33-45) and on 23 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.46-51).
In his application for a protection visa, the applicant claimed to have been born in Tianjin, China in 1958. He stated he had received twelve years of formal education in Tianjin and worked as a farmer, a manager and marketing manager over the past ten years. The applicant claimed he is married but provided no details of his wife or any other family members (CB p.62).
Applicant’s claims
The applicant outlined his claims (CB p.62) as follows:
a)He is a member of Falun Dafa and was illegally jailed because he determinedly kept up his Falun Dafa cultivation practice. He went to Beijing to appeal many times and was caught by police in March 2002. He unfurled a banner and loudly exclaimed “Falun Dafa is good”. He was sent to the No. 2 labour camp in Tianjin where he was tortured for six days and nights by a prison police officer named Jun Geng from the fifth prison section. He suffered various forms of abuse and became so weak that he was sent home to avoid responsibility for his death.
b)He decided that there was no way out in China so he decided to go overseas to avoid further prosecution. He sold all his belongings and property to raise money to bribe a government official to issue him with a passport and apply for an Australian visa.
The Tribunal’s findings and reasons
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 26 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. The letter was sent to the home address and a copy sent to the mailing address provided by the applicant in his application for review. The applicant did not provide details of an authorised recipient in his application for review and provided no telephone contact number. No response was received and the letter was not returned unclaimed. On 18 May 2004 the Tribunal checked the Department’s file and its own for a more recent address and telephone number for the application and checked the Department’s movements database to confirm that the applicant was still in Australia. 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 made its decision on the review without taking any further action to enable the applicant to appear before it.
With respect to the applicant’s claims that he was involved with Falun Gong, the Tribunal stated that the applicant provided no substantiation for his claims from any source within China (CB p.63). The Tribunal also noted that the applicant’s account was devoid of detail. In particular, the applicant failed to provide sufficient detail as to:
a)when he was introduced to Falun Gong;
b)the applicant’s knowledge of the practice of Falun Gong or circumstances in which he came to join the group;
c)the beliefs or philosophy of the Falun Gong movement;
d)his own observance and practice of Falun Gong; and
e)his involvement in Falun Gong in Australia, if any.
The Tribunal noted that it would have expected the applicant to have provided more than the minimal details that he did in his written statements as his claimed significant involvement in Falun Gong and his resulting imprisonment and persecution would have represented a “most significant element in his life experience” (CB p.64). The Tribunal also noted that it would have liked to explore issues with the applicant at the hearing but the applicant’s failure to appear meant that it only had the information before it upon which to make a determination. The Tribunal noted:
“The applicant’s vague and unsubstantiated claims in this important area do not provide a sufficient basis for the Tribunal to be satisfied that he has ever been a Falun Dafa practitioner or has ever had any significant involvement with the Falun Dafa movement”. CB p.64
In respect of the harm the applicant claimed he suffered in detention, the Tribunal again noted that although they were marginally more detailed than his claims of being involved in the Falun Gong, they were unsubstantiated. The Tribunal specifically noted that the applicant failed to provide sufficient details as to:
a)the length of detention;
b)the charges and accusations he was under;
c)whether he faced any form of judicial process;
d)his recovery from his alleged injuries;
e)any condition which was attached to his release; and
f)whether he actually continued with his Falun Gong practice following his release.
The Tribunal was not satisfied that the applicant had been a member of the Falun Gong or, if he was involved, that he had a substantial involvement with the Falun Gong movement or had ever been harmed because of it (CB p.65).
Application for review of the Tribunal’s decision
On 16 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.There was no evidence or the other materials to justify the making of the decision.
2.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
3.The Tribunal member Mr Andrew Mullin not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.
4.I really fear the persecution from my original country P R China.
5.I face a risk of being jailed because I belong to a particular social group – Falun Gong.
On 14 October 2004 the applicant appeared before Registrar McIllhatton at a first Court date directions hearing and by consent the following order was made:
2.The applicant file and serve an amended application giving complete particulars of each ground of review relied upon and any affidavit containing additional evidence relied upon including transcript of a tribunal hearing, by 9 December 2004.
The applicant did not comply with this order and no amended application or additional evidence was provided.
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. The applicant confirmed that he had not complied with the orders of Registrar McIllhatton in that he had not filed an amended application or written submissions in accordance with those orders. When the applicant was invited to make oral submissions, he indicated he did not agree with the decisions of the Department or the Tribunal because he believed he is a refugee. The applicant stated he believed the Tribunal member over used his power in rejecting his application. He stated that the Tribunal member rejected his visa application without considering further the material the applicant had submitted. The applicant claimed that in China he practised Falun Gong and suffered torture.
The applicant was referred to the letter forwarded by the Tribunal on 19 April 2004 indicating that the Tribunal had considered the material before it in relation to his application and was unable to make a decision in his favour on that information alone (CB pp.54-55). The applicant indicated he did not recall receiving the letter despite it being sent to both his residential address and to a post office box in Haymarket which the applicant indicated belonged to a friend. The applicant also indicated that his residential address had changed but he could not recall whether he had notified the Department of the change. The applicant declined to make any further statements to the Court in support of his application.
Mr Chami, Solicitor for the respondent, filed written submissions prior to the hearing, which contained the following contentions:
a)The decision of the Tribunal is a “privative clause decision” within the meaning of s.474(2) of the Act. Thus, the Tribunal’s decision can only be set aside in circumstances where the Tribunal has fallen into jurisdictional error, for example, where there has been “a failure to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’”: see Plaintiff S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
b)The applicant only provided a limited statement of his involvement in Falun Gong, without sufficient detail regarding the circumstances in which he became involved, the extent of his practice and knowledge regarding the Falun Gong or details of his alleged detention. The applicant was given numerous opportunities to support his application with additional evidence, both by the delegate and subsequently by the Tribunal. The applicant failed to take advantage of these opportunities and, in particular, failed to attend a hearing before the Tribunal. The Tribunal’s determination that the applicant had failed to establish a genuine claim of persecution was a conclusion open to it, being based on the Tribunal’s inability to be satisfied of the relevant facts on the limited evidence presented by the applicant. In those circumstances, there can be no arguable jurisdictional error in the Tribunal’s approach and decision: see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs (“NAVX”).
c)The respondent submitted in relation to the applicant’s grounds (see paragraph 11 – Grounds 1 to 5) the following:
i)Ground 1 is untenable and should be dismissed. As the Tribunal noted, the basis of its findings was drawn entirely from the evidence and materials which the applicant himself supplied to the Tribunal (or lack thereof);
ii)Grounds 2 and 3 are not meaningful nor proper grounds of judicial review and should be dismissed; and
iii)Grounds 4 and 5 should be rejected as they seek nothing more than to engage the Court in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”).
Reasons
Attached to the applicant’s original application was a short, typed statement of one and a half pages in length in a double spaced format which set out the applicant’s history and the details of his claim (CB pp.28-29). When the applicant lodged his application for review of the delegate’s decision with the Tribunal he stated that he strongly disagreed with the delegate’s decision and repeated the claims made in his primary application (CB p.51).
The Tribunal considered the applicant’s claim of his involvement in the Falun Dafa movement and noted that his account of his involvement was extremely brief and almost completely devoid of details. The Tribunal noted that the applicant claimed he determinedly pursued this practice of the movement and was involved in many appeals to the central administration in Beijing seeking greater freedom for the movement and its adherents. However, the applicant provided no details as to his introduction of Falun Dafa, its beliefs, philosophy, basic texts, basic principles, origins or recent history. He made no reference to the movement founder or details of his own personal observance of the philosophy and whether that is public or private. The Tribunal also noted the applicant made no reference relating to his involvement in the movement since arriving in Australia. The Tribunal indicated that it would have been particularly interested to explore these issues with the applicant during an oral hearing but the applicant failed to appear. The Tribunal also noted that the details provided by the applicant in respect of the harm suffered when detained by the authorities because of his association or involvement with Falun Dafa were equally marginal in detail and lacking any substantiation.
The applicant failed to take the opportunity to advance his claim before the Tribunal particularly by not responding or attending the Tribunal hearing. When this issue was raised with the applicant during the hearing, his responses were vague as to when he changed his postal address and whether he did in fact receive any of the correspondence forwarded by the Tribunal. Letters were forwarded to the applicant on 24 March 2004, 19 April 2004, 27 May 2004 and 16 June 2004 (CB pp.52-58) to both the residential and mailing address nominated on his application for review documentation filed on 23 March 2004. On
18 May 2004, prior to the Tribunal making a decision pursuant to s.426A of the Act, the Tribunal checked the Department’s files and its own files for a more recent address and telephone number for the applicant and checked the Department’s movements database to confirm the applicant was still in Australia. The Tribunal was unable to satisfy itself on the material provided by the applicant that a genuine claim was established. In those circumstances, there can be no jurisdictional error in the Tribunal’s approach and decision making process: NAVX.
The applicant’s pleaded grounds are extremely vague and he did not provide any particularisation of those grounds either by way of written submissions or oral submissions made during the hearing. The fourth and fifth grounds appear to be seeking the Court to engage in a merits review, which is impermissible: Wu Shan Liang. 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. In the absence of any pleaded ground, the only avenue remaining for the Court is to consider the Tribunal’s decision and determine whether it discloses any jurisdictional error on its face. Having considered the Tribunal’s decision, in conjunction with the supporting documentation in the Court Book, no jurisdictional error is apparent. In the absence of any submissions to the contrary, there is no evidence that the Tribunal did not conduct its decision making process in accordance with the provisions of the Act.
Conclusion
I have not been able to identify any ground that the Tribunal has committed 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-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 August 2005
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