SZFNW v Minister for Immigration

[2005] FMCA 1480

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFNW v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1480

MIGRATION – Refugee – religious belief – no reasonable cause of action – privative clause decision.

Migration Act 1958, ss.474(2), 424A, 91R
Federal Magistrates Court Rules 2001, rr.13.10(a), 21.02(2)(a)

Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 677
Xie v Immigration Department [1999] FCA 365
Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708
Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455
Applicant S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Yo Han Chung vUniversity of Sydney and Ors (2002) FCA 186
Kosi vMinister for Immigration [2003] FMCA 340
Minister for Immigration and Multicultural and Indigenous Affairsv SZANS [2005] FCAFC 41

Applicant: SZFNW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG 181 of 2005

Judgment of: Nicholls FM

Hearing date: 30 September 2005

Date of Last Submission: 20 September 2005

Delivered at: Sydney

Delivered on: 30 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. A. Cox

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent in these proceedings.

2. The application is dismissed upholding the respondents’ notice of motion for summary dismissal pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001.

3. The applicant to pay the first respondent’s costs set in the amount of $2700, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 181 of 2005

SZFNW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore/Revised from Transcript)

1. I have before me an application filed in this Court on 20 January 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 November 2004 and handed down on

   
   

   22 December 2004 to affirm the decision of a delegate of the respondent Minister made on 18 June 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The matter today came on before me by way of a Notice of Motion filed by the first respondent on 24 May 2005, seeking summary dismissal pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 on the basis that no reasonable cause of action is disclosed in relation to these proceedings.

   I also have before me an amended application filed by the applicant on 3 May 2005, an affidavit in support of the Notice of Motion affirmed by John Bird, a solicitor in the employ of the respondent’s solicitors, filed on 24 May 2005 and written submissions on the behalf of the respondents filed on

   
   

   20 September 2005.

3. The applicant is a national of the People's Republic of China who arrived in Australia on 14 May 2004 and lodged an application for a protection visa on 11 June 2004. This was refused by a delegate of the first respondent on 18 June 2004 and on 5 July 2004 the applicant applied for review of that decision by the Tribunal. The applicant's original claims for a protection visa are set out in an attachment reproduced at Court Book 43 to CB 45. The applicant made no additional claims in her application for review (CB 58 to CB 61).

   
   

   The Tribunal wrote to the applicant on 8 September 2004 and sought additional information from the applicant (CB 64) and the applicant's response is at CB 67. The applicant was invited to a hearing before the Tribunal and attended a hearing on 23 November 2004. The Tribunal's decision record is at CB 80 to CB 89. The Tribunal's account of what occurred at the hearing before the Tribunal is at CB 85.3 to CB 87.5. The Tribunal reported that at the hearing it held with the applicant, she disavowed her original claims relating to being a Christian and her worship at an illegal or underground church and presented as her claims that:

   1)She had been involved in a dispute with the supervisor of the building in which she lived, which had escalated into the “PSB” (Security agency) arresting the applicant on several occasions, her being fined and not receiving benefits after the birth of her child, and that these events happened after she photocopied and distributed some church pamphlets.

   2)

   During 1989, and during the currency of the Tiananmen Square events, she allowed two university students to stay with her.

   
   

   She was subsequently charged with a crime against the State and was fined.

   3)As a result of supporting a local superintendent of police, she obtained some notoriety, which reflected badly on her son whose academic performance was affected.

4. The applicant appeared before me today unrepresented. She was assisted by an interpreter in the Mandarin language. Mr. Cox appeared for the respondents. The applicant, after I explained to her the purpose of the proceedings today, made the following statements:

   1)That the Tribunal member's attitude towards her, at the hearing that it conducted with her, was “not good”. She explained this by saying that the Tribunal did not believe her.  I note in this regard that there is no evidence before me to contradict the Tribunal's account of what occurred at the hearing and that there is nothing in that account to support any inferred claim now made by the applicant that somehow the Tribunal dealt unfairly with her at the hearing. I will deal with this further when looking at the aspects of how the Tribunal proceeded to make its decision.

   2)That the applicant did not receive the letter from the Tribunal notifying her of its decision to refuse her application. However, she ultimately confirmed at the hearing before me that she did obtain a copy of that letter. In any event, this does not go to the issue of showing jurisdictional error on the part of the Tribunal. 

   3)The applicant claimed that she was still looking for a lawyer to represent her, but indicated that she did not have “enough money” to obtain the services of a lawyer.  In this regard I note that the applicant was provided with the opportunity to access the Court's Legal Advice Scheme, but on 8 February 2005, advised the Court that she did not wish to participate in that scheme.  I also note that the applicant has had at least eight months in which to obtain legal advice and has not done so. She explained her failure to do so by way of stating that she was in ill health, that she was confused and that she was expecting that the final hearing of this matter would be some time in 2006. 

5. None of the reasons above, together with an examination of the Tribunal's decision, in my view, for reasons that I will now give, discloses any jurisdictional error.  I did not feel it was necessary or appropriate to provide the applicant with any further time to obtain legal advice. I note particularly that the applicant has brought no evidence of any ill health before the Court by way of medical certificate or otherwise. Further, the applicant failed to explain how this ill health would have prevented her, in any event, from obtaining legal advice in the considerable period that has already been available to her. Nor, as I set out below, could I see any ground arising out of the circumstances of this case that would benefit from any argument by a legally qualified person acting on behalf of the applicant. Further, nor did the applicant put forward anything to show that there was any real prospect of her obtaining legal advice or assistance in the foreseeable future.

6. The application to this Court filed on 20 January 2005 does not disclose any grounds of review and briefly makes reference to some of the claims that were before the Tribunal. The applicant's amended application filed on 3 May 2005, similarly puts forward no grounds to argue for judicial review of the Tribunal's decision. The applicant restates her claims of fear of returning to China, and the claims put forward appear to be a blend of claims in the application for a protection visa and the claims that she put before the Tribunal at the hearing before it. For the applicant's benefit, I note that an application for summary dismissal should be approached with some caution, and that an order summarily dismissing proceedings on the basis that the application for review fails to disclose a reasonable cause of action should only be made where there is no real question to be tried or where the claims are clearly untenable and cannot succeed: Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 677 at [1] per Selway J., Xie v Immigration Department [1999] FCA 365 at [20] per Carr J. and Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708 per Finn J. at [3]-[6]. I also note that the respondent's reference to Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 Drummond J., at 468:

   “A complainant must therefore have at the outset of the inquiry into his complaint sufficient material … to show that he has more than a remote possibility of a well-founded claim, if he is to defeat an application for the summary dismissal of the case that can be made at the start of the inquiry.”

7. For the applicant to succeed in her application, she would need to show that the Tribunal's decision is affected by jurisdictional error, such that it could not be said to be a privative clause decision as defined by s.474(2) of the Migration Act 1958 (“the Act”); (see Applicant S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).

   
   

   The applicant's originating application and amended application to this Court do not identify any grounds by which it could be said that the Tribunal decision was affected by jurisdictional error. The application is focused on the merits of the applicant's claims before the Tribunal. The Court does not have jurisdiction to conduct a review of the merits; (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

8. In circumstances where an applicant is unrepresented, it has been held that a Court should independently consider whether an arguable case, based on the material, could be made out by the applicant: Yo Han Chung vUniversity of Sydney and Ors (2002) FCA 186, also Kosi vMinister for Immigration [2003] FMCA 340. I accept the respondent’s submissions that no arguable case can be made out on the material before me. The applicant made claims in relation to her application for a protection visa when she attended a hearing before the Tribunal.

   
   

   She disavowed those claims previously presented, and made three other claims at this hearing. While the Tribunal noted inconsistencies between the claims in her protection visa application and the claims put in her application for review, a plain reading of the Tribunal's decision record reveals that no adverse inferences or conclusions were drawn from these inconsistencies in such a way as to involve an application of s.424A of the Migration Act. The applicant herself disavowed her earlier claims and the Tribunal dealt with the claims that she put to it at the hearing that it conducted with the applicant. Of the three claims made, the Tribunal found that the first and third claims, involving the dispute with the building supervisor and the claimed support of the local superintendent of police, lacked any Convention nexus to the feared harmed. The Tribunal clearly found that the events which it accepted had occurred and were not as a result of any of the reasons enumerated in the Convention definition of a Refugee (CB 88).

9. The applicant is reported as having acknowledged this at the hearing before the Tribunal:

   1)In relation to the one claim dealing with the dispute with the building supervisor and the incident, which it was said gave rise to this dispute, that is, the distribution of church pamphlets, that the applicant said, “That is right, I never claimed it was because of the church.” (CB 88.4)

   2)In relation to the third claim, concerning the superintendent of police, the applicant is reported as having told the Tribunal, when it discussed this issue with the applicant, that she stated, “that is why Helen (the applicant’s agent) said it does not constitute a claim. She told me not to come in … it's a waste of time.” (CB 89.1)

10. In relation to the applicant's claim concerning students at the time of the events in Tiananmen Square in 1989, and the applicant's claim that she had to pay money by way of a bond as a result of this incident, the Tribunal found that this did not amount to serious harm as required by s.91R of the Act. Whether conduct is sufficiently serious to amount to persecution is a matter of fact and degree for the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairsv SZANS [2005] FCAFC 41 at [50]-[53]. Further, the Tribunal also found that these events happened some time ago, and that it was not satisfied, that given the length of time and that they had been dealt with at that time, that they were such that the applicant faced a real chance of persecution in the future for a Convention reason should she return to China.

11. The applicant has put forward no evidence to contradict the Tribunal's account of what occurred at the hearing that it conducted with the applicant. Further, the applicant has not even made any assertion when she appeared before me that the Tribunal's account is not an accurate account of what occurred. The only complaint about the hearing was that the Tribunal did not believe her. The applicant has put forward no grounds to argue jurisdictional error in the Tribunal's decision.

    
    

    The applicant has had more than a reasonable time since filing her application, and more particularly since the filing of the respondent’s notice of motion, to do whatever was necessary to answer the respondent’s notice and put forward any grounds for review. Nor can I see any such grounds on what is before me. It is clear that if this matter were permitted to go to a final hearing in the ordinary way, it would fail. This is a hopeless case with no chance of success. On that basis I uphold the respondent's motion for summary dismissal. The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 14 October 2005