SZFOT v Minister for Immigration
[2005] FMCA 1822
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOT v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1822 |
| MIGRATION – Review of Refugee Review Tribunal decision – Notice of Motion – Notice of Motion upheld – no jurisdictional error – application for judicial review dismissed. |
Migration Act 1958 (Cth), ss.91X, 424A, 474, 483A
Judiciary Act 1903 (Cth), s.39B
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
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZFOT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG209 of 2005 |
| Delivered on: | 16 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 18 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Mandarin interpreter.
| Advocate for the Respondent: | Mr P Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as second respondent in these proceedings.
The respondent’s interlocutory application filed on 26 September 2005 is upheld.
The application for judicial review filed on 24 June 2005 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 |
SYG209 of 2005
| SZFOT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an interlocutory application filed on 26 September 2005, the respondent seeks an order that the proceedings be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the basis that:
a)No reasonable cause of action and/or reasonable basis for the application is disclosed; and/or
b)Further or in the alternative, the proceeding or claim for relief is frivolous or vexatious.
c)Further or in the alternative, an order that the proceedings be dismissed pursuant to rule 13.03(2)(b) of the Rules.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), 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
13 December 2004 and handed down on 5 January 2005, affirming the decision of the delegate of the respondent (“the delegate”) made on
10 September 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
For the purpose of this interlocutory application, the respondent tendered and applied for the affidavit of Patrick David Reynolds sworn on 22 September 2005 (“the affidavit of Mr Reynolds”) to be admitted into evidence.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZFOT”.
Background
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 18 August 2004. On 26 August 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.1-26) (“CB”). On
10 September 2004 the delegate refused to grant a protection visa (CB pp.27-36) and on 12 October 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.38-41).
In his protection visa application, the applicant claimed he was “introduced to be a Falun Gong member in 1997” and practised it for his health which improved after six months. He claimed that gradually, together with other members, “we came to believe that Falun Gong is not only for health, but also it has become our religious belief” and they “got together every Sunday, just like other religious believers” and discussed and practised Falun Gong and “promoted Falun Gong to other colleagues in the factory and neighbourhood” and were very happy that they could practice it together (CB p.54).
The applicant claimed that in 1999, when the government banned Falun Gong, local police came to the member’s home and searched for evidence and he was found to have membership cards and other promotional leaflets and was detained for five days and was forced to disclose other members’ details and details about the membership. The applicant claimed that after he was released he was forced to leave the company he worked for and was paid only a third of his outstanding salary (CB p.54).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Mr Reynolds and I adopt paragraph 10 of those submissions for the purpose of this judgment:
[10]The RRT then set out its findings and reasons. By way of summary, the RRT made the following findings:
(a)the applicant’s claims contained in his protection visa application about being a Falun Gong practitioner were very vague and general, lacking many specific facts or details about his involvement in it such as key dates. The RRT was looking forward to discussing these matters with the applicant at the hearing in some depth, but this was not possible as he did not attend (CB 55.1-55.5);
(b)the applicant was not of any interest to the PRC authorities, detained for 5 days, forced to reveal the details of other Falun Gong practitioners or fired for being a Falun Gong practitioner. He had falsified his claims in order to obtain a protection visa and was not a credible witness (CB 58.1). The applicant’s claim that Falun Gong was a religious belief was not consistent with country information concerning the nature of Falun Gong. The RRT was accordingly not satisfied that the applicant was a Falun Gong practitioner and it did not accept this claim (CB 55.6-56.3). The applicant claims to have been detained for 5 days, but he provided no evidence to support this claim (CB 56.4) and he did not claim that he paid a bribe for his passport, that his passport was false or that he had bribed airport officials. This was not consistent with country information that indicated that passport and exit procedure controls were stringent and that persons of interest to the PRC government would be unlikely to be able to obtain a passport and be allowed to leave the country (CB 56.5-57.10);
(c)to the extent that the applicant was making an independent claim based on ‘anti-government’ political beliefs, the applicant had not provided any specific details and accordingly the applicant was unable to satisfy the RRT of this claim (CB 58.3-58.8).
Application for review of the Tribunal’s decision
On 24 January 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 8 April 2005 the applicant filed an amended application and again on 4 October 2005 filed another amended application. During the hearing I directed that the second amended application should be identified as the further amended application for ease of identification and that nomenclature has been adopted for the remainder of this decision. The further amended application of 4 October 2005 contained the following grounds:
That the RRT decision was affected by jurisdictional error:
(a)The RRT failed to comply with the requirements of s424A of the Migration Act as it failed to give notice to the applicant in writing that it considered that part of the reason for affirming the decision under review was that the RRT considered that the applicant’s claim to be a Falun Gong practitioner was fraudulent based on what he stated in his protection visa application.
Particulars
In his protection visa application he claimed that Falun Gong was his religious belief and that he practiced with other members and was found in possession of membership cards. The RRT considered these claims to be inconsistent with independent information about Falun Gong.
The respondent submitted that they had proceeded on the basis that the further amended application superseded the previous pleadings and was the only pleadings relied upon by the applicant.
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.
Respondent’s application
Mr Reynolds, Solicitor appearing for the respondent, provided written submissions in support of his application and I adopt paragraphs 15-26 of those submissions for the purpose of this judgment:
[15]The respondent submits that there is no reasonable basis to the application.
[16]Rule 13.10 of the FMC Rules provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of process of the Court.
[17]Rule 1.05 of the FMC Rules provides:
(1)It is intended that the practice and procedure of the Federal Magistrates Court can be governed principally by these Rules.
(2)However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984, in whole or in part and modified or dispensed with, as necessary.
[18]Order 20 Rule 2 of the Federal Court Rules (“FC Rules”) provides:
(1)Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of process of the Court;
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2)The Court may receive evidence on the hearing of an application for an order under subrule (1).
[19]Order 54B of the FC Rules provides:
In applying Order 20, rule 2 to applications to which this Order applies, that rule is to be construed as if paragraph (1)(a) reads “no reasonable basis for the application is disclosed”’.
[20]Accordingly it is submitted that, through the application of FMC Rule 1.05(2), Order 54B Rule 5 of the FC Rules applies such that Rule 13.10(a) of the FMC Rules reads “no reasonable basis for the application is disclosed”.
[21]The Court will exercise its discretion to summarily dismiss an application for judicial review on the grounds that no reasonable basis for the application is disclosed if:
(a)the applicant’s case is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236 at 129; SDAE v MIMIA [2003] FCA 959 at [19];
(b)were the case to go to trial in the ordinary way, it is “apparent that [the application] must fail”: Webster v Lampard (1993) 177 CLR 598; see also Xie v Immigration Department [1999] FCA 365 at [20];
(c)one can say without doubt, on the whole of the material, that there is “no real question to be tried”: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 10; Miller v Wertheim & Anor [2001] FMCA 103; Xie v Immigration Department [1999] FCA 365 at [20];
(d)the claim is “lacking in substance”: Chung v University of Sydney [2001] FMCA 94 at [18] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186); or
(e)there is “no factual substratum to support the claim made”: Applicant A135/2002 v MIMIA [2003] FCA 708 at [6]; see also Applicant A163/2002 v MIMIA [2003] FCA 677 generally.
The respondent submits that the grounds raised must fall within the tests set out above.
[22]It is noted that if the Court is minded to treat a “bare” assertion of a legal error as disclosing a reasonable basis for the application, the respondent submits that the proceedings are nevertheless frivolous – these bases for summary dismissal are separate and are not to be read conjunctively: NBGZ v Minister forImmigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 per Conti J at [47], [50] and per Allsop J at [60]-[65]. Despite using terminology of legal error, the ground raised is hopeless.
[23]It is noted that where an applicant is unrepresented, in considering whether or not to exercise its discretion to grant summary dismissal on the ground that no reasonable basis for the application is disclosed, the Court will not limit itself to the arguments put forward by the applicant but must independently consider whether an arguable case based on the material could be made out: Chung v University of Sydney [2001] FMCA 94 at [7] to [14] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186); Kosi v MIMIA [2003] FMCA 340. The respondent submits that no arguable case is apparent from the material.
[24]The RRT invited the applicant to a hearing before it, which the applicant did not attend. Accordingly the RRT was entitled to proceed without providing the applicant with a further opportunity to appear before it pursuant to s.426A which the RRT did. The RRT was not satisfied as to the applicant’s claims and it was accordingly obliged to refuse the application.
[25]The further amended application filed on 4 October 2005 raises a single ground of review. [Not reproduced - see paragraph 9 above].
[26]The respondent submits that this ground of review is incapable of succeeding and accordingly no reasonable basis for the application has been identified or the proceedings are otherwise frivolous. This follows on from SZDXC v MIMIA [2005] FCA 1306 in which his Honour the late Justice Hely, sitting as the Full Court, dismissed an appeal in circumstances where the applicant had failed to attend a hearing before the RRT and the RRT refused the application because of its consequent state of non-satisfaction. The RRT in that case went on and discussed various specific aspects of the protection visa application which it considered unsatisfactory and Hely J held that no breach of s.424A(1) was revealed by this approach. The ground raised by the applicant cannot succeed in light of this case.
Reasons
The Tribunal invited the applicant to a hearing before it which the applicant did not attend. On 9 November 2004 the Tribunal wrote to the applicant inviting him to a hearing before it on 13 December 2004 and indicated in that letter that it was unable to make a decision in his favour on the information that had previously been provided (CB pp.44-45). The letter was addressed to both the applicant’s residential and mailing address which had been provided by the applicant when he filed his application for review with the Tribunal. The letter forwarded to the applicant’s residential address was returned to the Tribunal on
5 January 2005. In the absence of any response from the applicant, the Tribunal made its decision on 13 December 2004.
In VAF v Minister for Immigration & Multicultural & Indigenous Affairs (“VAF”) their Honours Justices Finn and Stone at [33] and [41] stated:
It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a tribunal’s reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy — and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral.
Considered in the context of the tribunal’s reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).
The respondent submitted that the integral reason for the Tribunal’s decision was the failure by the applicant to satisfy the Tribunal of the veracity of his claims. Despite an invitation being extended to the applicant, he failed to supply any information as requested or to attend the hearing and offer an explanation. It is acknowledged that the Tribunal adverted to and expressed views on other matters in the context of the Tribunal’s reasoning process but the other issues were relatively minor and unimportant in respect of the substantive reason for the decision.
The respondent submitted that the integral reason was the applicant’s failure to either appear or provide sufficient evidence which resulted in the Tribunal’s consequent inability to be satisfied of the applicant’s claims. The submission was that this was due to four separate elements, namely:
a)as a matter of construction. This matter is dealt with at the commencement of the Tribunal’s findings, which indicates the importance of it to the Tribunal’s reasoning process;
b)as a matter of logic. The Tribunal sent a letter to the applicant inviting the applicant to a hearing, which stated:
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.
Where the Tribunal writes to an applicant stating that it is not satisfied based on the material before it and an applicant does not attend the hearing to which he is invited, it is logical, if not inevitable, that the Tribunal will conclude that it is not satisfied based on the material before it. This must be the integral reason;
c)as a matter of evidence, the letter appearing at CB pp.44-45 (particularly the passage quoted above) evidences that the integral matter to its decision was its inability to be satisfied by the materials before it; and
d)as a matter of authority, that failure to attend a hearing and the lack of satisfaction that flows from this may properly be regarded as a critical matter to the Tribunal is supported by NAVX v Minister for Immigration & Multicultural & Indigenous Affairs, in which their Honours French, Emmett and Dowsett JJ stated (at [5]):
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
Further, as stated by Hely J sitting as the Full Court in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs (“SZDXC”) at [16]:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application. Thus, even though the RRT adverted to matters (b) and (c) in its reasons, what was integral to the RRT’s reasoning process was the notified inadequacy of the information provided by the appellant in support of his claims, and his rejection of the invitation to appear at a hearing designed to afford him the opportunity to elaborate on that information.
The decision of the Tribunal does make reference to a number of other issues but these are not central to the decision of the Tribunal that it could not reach a level of satisfaction to accept the applicant’s claims. The setting aside or removal of these issues would not result in a different outcome and should not be considered as integral elements of the decision: SZECF v Minister for Immigration & Multicultural & Indigenous Affairs per Allsop J at [26] and [29].
The second important issue is whether the information that the Tribunal relied upon was of the category that would enliven the operation of s.424A. The material contained in the applicant’s protection visa application and the country information is clearly information. However, does that material enliven the provision that requires the material to be provided in the method specified within the Act? If the material identified as information was not used by the Tribunal as the “reason or part of the reason” for the decision, the Tribunal was not obliged to disclose that material to the applicant as required by the provisions of s.424A. The material falls into three categories which are:
a)the fact that the applicant claimed to have practised with other members and was found in possession of a Falun Gong membership card was not used adversely by the Tribunal;
b)the country information need not be disclosed pursuant to provision of s.424A(3); and
c)the inconsistency between the applicant’s claim that Falun Gong was his religious belief and the independent country information which described Falun Gong as a philosophy other than a religion does not require disclosure. Due to the applicant failing to provide either written or oral explanation of this inconsistency this remained unresolved for the Tribunal. An absence of an explanation is not information within the meaning of s.424A(1) because it falls within the third proposition identified by their Honours Finn and Stone JJ in VAF at [24]; SZDXC per Hely J at [11]. The resulting inconsistency is not information by virtue of WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per Marshall, Weinberg and Jacobson JJ at [33]:
A conclusion on the part of the RRT that there is an inconsistency between two pieces of information is not, of itself, “information” for the purposes of s424A(1). It is no more than an observation made by the RRT in dealing with a conflict between information given by the appellant (ie. the provision of the green card to the RRT apparently legitimising the holder’s presence in Iran, at a time when most Iraqis in that country were, according to DFAT, unable to obtain such cards), and a claim made by him in support of his application (ie. his assertion that he had received repeated ultimatums to leave Iran).
The Tribunal’s “lack of satisfaction” finding was an independent basis for the decision therefore any error in respect of the matters identified by the applicant cannot constitute jurisdictional error: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per North J at [32]-[33]:
It was argued on behalf of the appellant that if a breach of s 424A of the Act in this respect had been shown, then as a result of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 15; (2005) 215 ALR 162 (SAAP), the decision of the Tribunal must be set aside. I cannot accept this submission.
As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.
The applicant appeared as a self represented litigant assisted by an interpreter. The applicant confirmed that he had received legal advice from a panel adviser under the Pilot RRT Legal Advice Scheme (NSW) and as a consequence had filed an amended application which is now identified as the further amended application. The applicant confirmed that it was that document that he wished to rely upon and that it superseded the previous documents. When the applicant was invited to make any oral submissions in response to the respondent’s Notice of Motion or the grounds pleaded in his substantive application he indicated that he would rely upon the document filed and did not wish to make any further submission.
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 applicant’s original application and the amended application do not raise an issue which is more correctly formulated and pleaded in the further amended application. The further amended application effectively supersedes the preceding two documents and allows those documents to be set aside requiring no further consideration.
In the absence of any written or oral submissions on behalf of the applicant, in order to satisfy the requirement to independently consider whether an arguable case can be made out, I have reviewed the pleadings together with the content of the Court Book and the decision itself. Having reconsidered that material, there is nothing within those documents or on the face of the decision which would lead me to the conclusion that a jurisdictional error exists. The Court Book also contains the US Department of State Report on China in respect of human rights practices released in February 2004 which provided the Tribunal with a comprehensive analysis of many of the areas the applicant claimed to be the reasons for his persecution and therefore preventing him returning to China. This and earlier reports were at the disposal of the Tribunal in forming the view that it was not satisfied in respect of the claims made by the applicant.
Conclusion
I accept the respondent’s submissions and I have independently considered the material available to the Court and have been unable 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-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 December 2005
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