SZFOI v Minister for Immigration
[2005] FMCA 867
•24 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOI v MINISTER FOR IMMIGRATION | [2005] FMCA 867 |
| MIGRATION – Review of Refugee Review Tribunal decision – notice of motion – notice of motion upheld – no jurisdictional error – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth), r.13.10(a)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424A, 425, 425A, 426A
Fancourt v Mercantile Credit Ltd (1983) 48 ALR 1
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
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
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2000] FCA 668
| Applicant: | SZFOI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 198 of 2005 |
| Delivered on: | 24 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 24 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr J Bird of Phillips Fox |
ORDERS
The respondent’s Notice of Motion is upheld.
The application is dismissed pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) on the ground that no reasonable cause of action was disclosed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $1,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG198 of 2005
| SZFOI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 13 May 2005 the respondent moved the Court for an order that proceedings be dismissed pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) on the ground that no reasonable cause of action was disclosed.
The substantive 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 24 January 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 December 2004 and handed down on
23 December 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 21 July 2004 to refuse to grant the applicant a protection visa.
For the purposes of this Notice of Motion the respondent tendered and applied for an affidavit of John Bird sworn on 10 May 2005 (“the affidavit of Mr Bird”) to be admitted into evidence. A Court Book (“CB”), prepared by the respondent’s solicitors, was filed and served on 17 February 2005.
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 “SZFOI”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 7 July 2004. On 19 July 2004 she 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.1-30) (“CB”). On 21 July 2004 the delegate refused to grant a protection visa (CB pp.31-42) and on 19 August 2004 the applicant lodged an application to the Tribunal for a review of the delegate’s decision (CB pp.43-47).
In her visa application, the applicant stated she was born in Guangdong, China in October 1974. She stated she completed twelve years of education in 1992 and was self employed from 1994. The applicant entered Australia on a visitor’s visa issued in Guangzhou.
In support of her claim of refugee status, the applicant stated she left China because she was a Christian. She stated her activities were with a registered church in which she worshipped each Sunday and spread the gospel to ordinary people. The applicant claimed the authorities were concerned about the activities of her church which were considered to be illegal and evangelical. The applicant stated she needed the freedom to worship and comment on political issues which she was not able to do in China. The applicant claimed her church had no fixed address and services were held in various locations. She stated services were always interrupted by police who were sometimes harsh and other times tolerant.
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)
The original visa application was rejected by a delegate on
21 July 2004;
b)On 2 December 2004 the Tribunal constituted by Mr Andrew Jacovides made a decision to affirm the delegate’s to refuse to grant a protection visa;
c)On 24 January 2005 the applicant filed an application in the Federal Magistrates Court seeking a review of the Tribunal’s decision. Those proceedings were given the Federal Magistrates Court Proceedings No. SYG198 of 2005.
d)On 8 February 2005 the applicant appeared at a directions hearing before Registrar McIllhatton where consent orders were made requiring the applicant to file and serve any affidavit containing additional evidence to be relied upon, including transcript of the Tribunal hearing, by 3 May 2005. On the same date the applicant was required to file and serve an amended application giving complete particulars of each ground of review to be relied upon.
e)On 13 May 2005 the respondent filed a Notice of Motion seeking summary dismissal of the matter on the basis that no reasonable cause of action was disclosed in relation to the proceedings.
Respondent’s application
Mr J Bird, Solicitor for the respondent, filed an affidavit in support of his Notice of Motion on 13 May 2005 which contained the following information and supporting documentation:
a)On 13 October 2004 the Tribunal forwarded to the applicant a letter advising that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on this information alone. The applicant was invited to attend the Tribunal to give oral evidence and arguments in support of her claims on Tuesday, 13 November 2004 (CB pp.51-52).
b)The invitation was accepted by the applicant who completed a response to hearing invitation form (CB p.53).
c)The applicant did not attend the hearing due to illness. On the day prior to the hearing the applicant’s migration adviser informed the Tribunal that the applicant was ill and could not attend. The applicant was asked through her adviser to provide a medical certificate detailing her incapacity before the Tribunal would consent to a postponement. The applicant did not provide a medical certificate or attend the hearing (CB pp.54, 65).
d)The applicant filed an application for judicial review in the Federal Magistrates Court on 24 January 2005.
e)The applicant elected to participate in the Pilot RRT Legal Advice Scheme (NSW). On 23 February 2004 the respondent sent a copy of the Court Book to the legal practitioner assigned to provide advice to the applicant under the Scheme. Annexed to the affidavit of Mr Bird and marked “A” was a copy of the letter enclosing the Court Book.
f)On 8 April 2004 the Panel Scheme Adviser contacted the office of the respondent’s solicitor stating that she would be returning the Court Book as the applicant had failed to attend at two separate meetings that had been scheduled. The Court Book was returned on 13 April 2005.
g)The applicant served upon the respondent’s solicitors what purported to be an amended application dated 2 May 2005. The document did not appear to have been filed in Court. Annexed to the affidavit of Mr Bird and marked with “B” was a copy of the document.
In the applicant’s original application dated 24 January 2005 the following two grounds were pleaded:
1.The Tribunal cannot determine from my evidence if indeed I was involved with an unregistered church in China or if I was a person of interest and concern to the PRC authorities. I believe that I have submitted my claims clearly, and have explained to the officer about my religious activities with an unregistered church. However, the officer had bias towards me and did not assess the claims provided. I believe that the officer made jurisdiction error because he failed to assess my claims in the right way.
2.I advised my migration agent to delay my hearing date, but I was told that I could not do so. When I called RRT, proper interpreting service was not available. I was not given chance to explain my application in details.
On 3 May 2005 the applicant filed an amended application which contained a new ground and a number of unconnected and vague statements purporting to be particulars:
1.That the RRT decision was effected to take into account a relevant consideration when it assessed [whether] the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars
The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China based on the believer of a[n] unregistered church, participating in proselytising, and expressing my views against the government. Members of the church were imprisoned.
The Tribunal failed to exercise its jurisdiction as it failed to have any finding in [whether] I would be persecuted if I attempted to practice unregister religious activities in China.
The Tribunal did not observe Migration Act 1958 properly in making the decision.
The Tribunal failed in considering my claims.
I will provide more details to support my judicial review application in my outline of submission.
Particulars
The Tribunal did not provide me an adequate opportunity to respond the substance of the information. (Errors included)
The respondent submitted that the application disclosed no reasonable cause of action in relation to the proceedings.
Applicant’s submissions
When the applicant was invited to respond to the Notice of Motion she made the following submissions:
a)She did not attend the Tribunal hearing because the Tribunal had made jurisdictional error and this error was in two parts. The applicant drew the Court’s attention to the contents of the Court Book (CB p.56) which contained a computer printout from the Tribunal’s case management system. The applicant made particular reference to the entries made on 29 and 30 November 2004 which related to the circumstances of her non attendance at the hearing due to illness.
b)She claimed that the Tribunal had not complied with s.424A of the Act in that it had not provided her with certain information in order for her to comment on the material prior to the Tribunal making its decision.
c)She also claimed that the Tribunal had failed to comply with s.425 in that the Tribunal had not given her an opportunity to appear at a hearing to give oral evidence regarding the adverse information held by the Tribunal.
Each of these issues was discussed with the applicant during the hearing in order to seek some clarity as to the point that the applicant was raising. I will refer to each of these issues in my Reasons below.
Reasons
The respondent’s Notice of Motion sought a summary dismissal of the application on the basis that the application disclosed no reasonable cause of action in relation to the proceedings. The exercise of the power of summary dismissal “should be exercised with great care and should never be exercised unless it is clear that there is no question to be tried”: Fancourt v Mercantile Credit Ltd per Mason, Murphy, Wilson, Deane and Dawson JJ at 99. A further complication in applications of this nature was that the applicant was a self represented litigant and the Court has the added obligation to independently consider whether an arguable case based on the material before it could be made out even though the applicant has been unable to identify or argue any issues relevant to a jurisdictional error: Yo Han Chung v University of Sydney & Ors.
The applicant claimed she was denied the opportunity to appear before the Tribunal to give oral evidence and present arguments in support of her case. By letter dated 13 October 2004 the Tribunal invited the applicant to attend a hearing on Tuesday, 13 November 2004 in order to give oral evidence and present arguments in support of her claims (CB pp.51-52). That invitation was extended to the extent that other person or persons could also appear before the Tribunal to give oral evidence in support of the applicant’s position. The applicant responded to the invitation positively and indicated that she wished to attend the hearing and completed the response to hearing invitation form (CB p.53).
At the time of lodging her application for review with the Tribunal, the applicant completed an authorised recipient form appointing Lixing Liang of Ausfeng Migration and Education Centre as her authorised recipient who was entitled to receive all documents in relation to the applicant’s Tribunal application (CB p.50). The Tribunal complied with this instruction and forwarded a copy of all relevant documents to the agent.
The computerised records retained by the Tribunal, which records all activities in respect of the file associated with this application, noted that on 29 November 2004 the Tribunal received a facsimile from the applicant’s agent indicating that the applicant was ill and would not be able to attend the Tribunal hearing scheduled for 30 November 2004
(CB p.54). The relevant entries (CB p.56) are noted as follows:
29.11.04Fax received from AR seeking postponement of Hearing. Forwarded to Case Team by fax
G. Connolly.
29.11.04Contacted adviser (Mr Liang) at Member’s request to ask for a medical cert. explaining the reason why the applicant cannot attend tomorrow’s hearing.
I informed the adviser that failure to provide a certificate may result in the initial hearing going ahead and the postponement request being refused. The adviser said he would contact the applicant and get back to me. A Jouana
30.11.04Called adviser (10.40 am) to follow up yesterday’s call re applicant’s med cert. Adviser was not in office, so I left a message to call me back. Adviser phoned back (11.05 am). He said he contacted the applicant and she said if she could, she would send a med cert to the adviser. I told the adviser if he receives the med cert from the applicant to fax it through to the Tribunal asap. AJouana
In the Tribunal’s decision under the heading “Claims and Evidence”, the Tribunal member recorded the circumstances surrounding the non appearance of the applicant at the scheduled Tribunal hearing on
30 November 2004. The Tribunal noted that the applicant did not provide a medical certificate or attend the hearing. Consequently, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it (CB p.65). These circumstances were considered by the Full Federal Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs per Ryan, Merkel and Conti JJ at [26]:
“The Full Court also observed at [46]:
‘There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.’
In our view, the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.”
The matter was also considered in SZBBI & Anor v Minister for Immigration & Multicultural & Indigenous Affairs per Driver FM at [5]:
“The first applicant elected not to attend a hearing before the RRT and, in the circumstances, the RRT had very limited material upon which to base its decision. The decision by the first applicant not to attend a hearing before the RRT rendered the outcome of his protection visa application inevitable.”
The issue of the applicant’s failure to attend the Tribunal hearing was also considered by the Full Federal Court in NAST v Minister for Immigration & Multicultural & Indigenous Affairs per Beaumont, Merkel and Hely JJ at [5]:
“In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.”
In the applicant’s oral submissions from the bar table she complained that the Tribunal had failed to comply with s.425A of the Act in that the Tribunal failed to supply her with information in order that she may comment on that material. The Tribunal had various pieces of information before it, the first of which were the submissions made by the applicant herself in her original visa application. This was a typed statement attached to the application form in answer to questions raised in the application form (CB pp.23-26). As the applicant supplied this material herself the question does not arise in respect of s.424A. In the Tribunal’s hearing invitation letter forwarded to the applicant on
13 October 2004, the Tribunal indicated that it had considered the material before it in relation to her application but it was unable to make a decision in her favour on the information alone. This was a reference to the material supplied by the applicant, the contents of which she would have been fully aware. In the Tribunal’s decision reference was made to some independent country information which was identified as US Department of State 2004 Report on International Religious Freedom 2004 “China” dated 15 Septermber 2004. This was general information not specific to the applicant herself and was exempt by the operation of s.424A(3) (CB p.67).At a directions hearing before Registrar McIllhatton on 8 February 2005 the applicant was provided with an opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW), which was an offer the applicant accepted. Subsequently, an adviser was allocated and correspondence was forwarded to the applicant indicating the name of the adviser and inviting her to contact the adviser to make arrangements for a conference in order to discuss the preparation of this matter and the further carriage of it. No contact was made with the adviser who ultimately returned a copy of the Court Book and associated documentation to the respondent’s solicitors (the affidavit of Mr Bird).
In the original application filed on 24 January 2005, the applicant raised the issue of bias but the claim contained no particularisation.
A party asserting actual bias on the part of the decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural & Indigenous Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. There was nothing in the pleadings that gave any indication in support of the allegation of bias. This allegation was not carried through to the amended proceedings and, in the absence of any information to the contrary, it appeared to be the applicant’s disagreement with the Tribunal’s overall findings in respect of her application.
The other issue raised in the original pleadings related to the applicant failing to attend the scheduled Tribunal hearing with an allegation that, although she advised her migration agent of her illness prior to the hearing, she claimed she could not seek an adjournment. There was evidence of both a letter forwarded to the applicant dated 13 October 2004 inviting her to the Tribunal hearing and the contents of the Department’s files which recorded discussions between the Tribunal and the applicant’s migration agent on 29 November 2004. In the Tribunal’s letter dated 13 October 2004 centred in a box on the front page under the heading “Important information about your hearing” was the following warning:
“The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. 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.”
(CB p.51)The applicant’s migration agent, Ausfeng Education and Migration Centre forwarded a facsimile dated 29 November 2004 advising the Tribunal of the applicant’s illness and inability to attend the hearing scheduled for 30 November 2004 (CB p.54). The Tribunal notes recorded quite clearly that a member of the Tribunal staff contacted the applicant’s agent advising him that a medical certificate stating the reasons why the applicant could not attend the hearing was required. The agent was also advised that the failure to provide such a certificate may result in the initial hearing going ahead and the postponement request being refused. The Tribunal file note recorded that the agent acknowledged that requirement and indicated he would advise the applicant of such a requirement (CB pp.54-56). The Tribunal’s decision recorded that no medical certificate was received and the applicant did not appear at the hearing. This claim contained in the original application did not reappear in the amended application.
The amended application filed by the applicant appeared to have been prepared with the assistance of someone with limited knowledge of the requirements for pleadings prepared for this Court. However, the pleading and the statements purported to be the particulars were extremely broad generalisations with no specific reference to the applicant’s situation other than an oblique reference to the unregistered church of which the applicant claimed to be a member. These references appeared to be an attempt to invigorate a merits review as they appeared to be a disagreement with the Tribunal’s factual findings.
The other issue raised was that the Tribunal did not provide the applicant with an adequate opportunity to respond to information considered by the Tribunal in its decision making process. This allegation overlooked the contents of the letter forwarded to the applicant on 13 October 2004 where the Tribunal indicated it had considered the material before it in relation to the applicant’s claim but was unable to make a decision in her favour on that information alone. The Tribunal’s invitation extended to the presentation of further written material, to any witnesses that the applicant may wish to call and an opportunity to present arguments in support of her case. Nothing was lodged in response to this invitation other than the indication that the applicant was going to attend the hearing and subsequently did not appear.
At various times during the applicant’s pursuit of her application she had been represented by a qualified migration agent. She was provided with the opportunity to participate in the free Pilot RRT Legal Advice Scheme (NSW), a service which she did not avail herself of although an adviser was appointed and contact details were provided to the applicant in order for this advice scheme to operate. The applicant filed two sets of pleadings, neither of which identified any cause of action. Even if the most generous interpretation was given to any of the pleadings, no cause of action was identified that would succeed should the matter proceed further.
Conclusion
The substantive application did not raise any issue that indicated the Tribunal’s decision was infected by jurisdictional error. Consequently, I uphold the Notice of Motion brought by the respondent and dismiss the applicant’s substantive application.
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 thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 June 2005
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