SZFPX v Minister for Immigration
[2007] FMCA 228
•20 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFPX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 228 |
| MIGRATION – Refugee – application for reinstatement. |
| Migration Act 1958, s.417 |
| Applicant: | SZFPX & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 264 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 February 2007 |
| Date of Last Submission: | 25 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. N. Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
In relation to the application made on 25 January 2007 the Refugee Review Tribunal is joined as the second respondent.
The application made on 25 January 2007 is dismissed.
The first and second named applicants pay the first Respondent's costs set in the amount of $1000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 264 of 2005
| SZFPX & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed in this Court on 25 January 2007 seeking, pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (“the Rules”), that orders made on 6 October 2006, in relation to an earlier application filed by the same applicants, be set aside.
The relevant history in this matter is:
(1)The applicants are husband (“the applicant”), wife (“the applicant’s wife”) and their child (“the applicant’s child”), who are citizens of Indonesia. They arrived in Australia on 23 June 1996.
(2)On 6 September 1996 the applicants lodged an application for protection visas with the first respondent’s Department which was refused on 25 February 1997. The applicants were notified by letter on that date.
(3)The applicant applied for review by the Refugee Review Tribunal (“the Tribunal”) on 21 March 1997. The applicant was invited to a hearing before the Tribunal by letter dated
26 November 1997 and attended on 14 January 1998 to give oral evidence and present arguments in support of his application.(4)On 16 January 1998 the Tribunal affirmed the decision of the delegate of the respondent Minister and notified the applicant on 19 January 1998.
(5)On 31 July 1998 the applicant joined the “Lie” class action and ultimately on 20 February 2004 Emmett J. of the Federal Court of Australia made orders refusing to grant the applicants an order nisi.
(6)On 1 February 2005 the applicants filed an application for judicial review in this Court.
(7)At the first Court date in this matter on 14 February 2005 the applicants were represented by solicitors (who subsequently filed a Notice of Ceasing to Act). The matter was set down for final hearing on 8 June 2006. This was later rescheduled to
26 June 2006 at 2:15 p.m.(8)On 26 June 2006, by facsimile transmission, the applicant sent a letter to the Court attaching a medical certificate advising that he would be unable to attend and requesting that the matter be adjourned. The respondent consented to the Court granting an adjournment of the hearing until 25 September 2006 at 2:15 p.m.
(9)On 25 September 2006, just before the scheduled hearing time, the Court received another facsimile communication from the applicant advising that he was unable to attend, enclosing a medical certificate, and written submissions in support of his complaint about the Tribunal’s decision.
(10)On this day, given that the applicant had not made an express request for any further adjournment, or postponement, and provided written submissions, the Court proceeded with the hearing pursuant to Rule 13.03A(e) of the Rules.
(11)Judgment was handed down dismissing the application with costs (see SZFPX & Ors v Minister for Immigration & Anor [2006] FMCA 1468). (“the earlier Judgement”). Subsequently, orders were made on 6 October 2004 that were engrossed and entered on that date which were consistent with this or the earlier Judgement.
On 25 January 2007 the applicant filed an application for reinstatement of this matter seeking:
“Set aside a decision on 25/09/2006, I did not come to the court for hearing because I was sick I enclose Doctor Certificate.
Set aside decision on 25-09-2006.
To have matter re instates to federal Magistrate Court File NO: SYG 264 of 2005,
RRT decision fail to afford applicant procedure fairness, (relevant evidence will be submit letter on.
To remit my case to RRT.”
Also on 25 January 2007 the applicant also filed an affidavit made on 24 January 2007. The affidavit asserts that:
(a) The applicant was not able to attend the hearing on 25 September 2006 because he was sick.
(b) Copies of medical certificates for that date and for 23 to 27 June 2006 are attached.
(c) The Tribunal failed to afford “procedural fairness and did not take into account the evidence and relied on reports from “Indonesian Authorities and “news only”.
When the matter came on for hearing on 20 February 2007. No interpreter had been provided and the applicant who appeared on his own indicated he was not willing to continue without an interpreter. On that basis the matter was adjourned to today when both the first and second named applicant appeared.
On 20 February 2007 the Court also granted the first named applicant leave to file written submissions. However in substance they raise, and to a large extent, in identical language, the same allegations contained in the written submissions sent by the applicant by facsimile on
25 September 2006. In fact, I note the applicant’s grounds in this later submission correlate in the following way to the grounds put in the earlier written submission. In reading the first paragraph in the latest written submissions, paragraph (a) is equivalent to paragraph (a) in the earlier submissions; paragraph (b) is equivalent to paragraph (b) in the earlier submissions; paragraph (c) is identical to paragraph (e) in the earlier submissions; paragraph (d) is equivalent to paragraph (f) in the earlier submissions; and paragraph (e) is equivalent to old paragraph (g).
The importance here is that the applicant’s written submissions have put forth nothing new that was not already before the Court when the earlier Judgment was given.
The first and second named applicants appeared before the Court today. Both were legally unrepresented. The third named applicant is a child in respect of whom orders relating to a litigation guardian have already been made. The first and second named applicants were assisted by an interpreter in the Indonesian language. Ms. N. Johnson appeared for the respondents.
Essentially, the applicants put a number of matters to the Court today and the Court took the opportunity to explain to the applicants the difference in the role and powers of the Tribunal and the Court, and explained that to succeed ultimately before the Court, the Court would need to be satisfied that the Tribunal’s decision was affected by jurisdictional error.
The applicant’s complaints to the Court today were:
(i) The Tribunal only assessed the matter from “their side”;
(ii) That rich Chinese give money to the Government in Indonesia but that the applicants were not in a position to do so;
(iii) That Christians were killed and murdered in Indonesia;
(iv) Both applicants raised the issue, not only of their eldest child who is an applicant before the Court, but of two other children subsequently born in Australia, and raised with the Court their concern of the difficulty that such children would face after so many years in Australia if they were returned to Indonesia, that is, if the first (eldest) child was returned and the other two children were to accompany their parents, not having been to Indonesia and having been born in Australia.
In relation to his inability to attend at the hearing on 25 September 2006, the applicants have not put forward anything further before the Court than was already before the Court at that time.
The medical certificates relating to June 2006 were accepted by the Court and an adjournment of the hearing to September 2006 was granted on that basis.
The medical certificate relating to 25 September 2006 which states relevantly that the applicant was:
“unable to attend work… from 25/9/06 only” ‘
is identical to what was before the Court, and what was considered by the Court, in September 2006. (See the earlier Judgement at [10] to [12]).
The second applicant’s absence on that day remained unexplained until today, when what the Court understood from the second applicant was that she was unable to attend at that time because she was attending at the offices of the Department.
In all, the applicants have not put anything before the Court now to cause to it set aside the orders made on 6 October 2006. I gave the applicants the opportunity today, and explained the situation to them to add what had been put in their written submissions of 25 September 2006 and 20 February 2007 and to support the complaints referred to in the affidavit of 24 January 2007.
The Court remains of the view, after having heard the applicants today, that neither the first, nor the second named applicant, have provided an adequate or acceptable explanation for their failure to attend the hearing that had been scheduled for 25 September 2006. However, even if I were to accept those explanations I agree with the respondent’s submission that it would be futile for the Court to set aside its orders, because the applicants have failed to raise anything further in their matter which would reveal jurisdictional error in the Tribunal’s decision. Nor have the applicants raised anything further to what was essentially before the Court at that earlier time which would go to the issue of jurisdictional error.
The claim that the Tribunal failed to afford procedural fairness remains unsupported by any specificity but, in any event, as referred to in the Court’s earlier Judgment, the applicants were given the opportunity to put forward material in support of their claims. Additionally, the Tribunal provided the applicants with an opportunity at a hearing where the first named applicant gave evidence and from the Tribunal’s unchallenged account in its decision record, it accepted the applicants as “broadly credible witnesses”. Nor do the complaints that the Tribunal did not take into account evidence and relied only on Indonesian authorities and news reports provide anything further to what was already before the Court in September 2006. In particular the Court considered these issues at [15] “A”, “D”, “E”. Nor did the either of the applicants today indicate what further evidence was being referred to in their current application to the Court.
The complaint was raised today by the applicant that the Tribunal only assessed the matter from “their side”. The applicant explained this by stating that the Tribunal did not see how things were in Indonesia, with particular reference to historical events dating back to at least the early 1970’s, and in particular, the impact on children.
To the extent this is an allegation that the Tribunal did not bring an open mind to its task, this constitutes a complaint of bias. Such complaints of bias must be supported by evidence. Beyond mere assertion the applicants have put no evidence whatsoever to support any such claim.
In relation to events in Indonesia, the Tribunal accepted that their evidence was broadly credible and accepted that with reference to the decision record (See CB 69 and CB 74). In relation to the applicant’s complaints, the Tribunal however found that adequate and effective state protection was available to the applicants in Indonesia. Therefore the applicant’s complaint about Christians being killed and murdered in Indonesia and the general circumstances affecting ethnic Chinese in Indonesia were all matters that were plainly considered by the Tribunal, on a plain reading of a decision record, but in a conclusion that was open by the Tribunal, it was not persuaded that effective state protection was not available to the applicants. There is ample High Court and Federal Court authority to support the proposition that the standard to be applied to issues such as this is whether the conclusion of the Tribunal is open to it.
The applicants' complaints that rich Chinese are able to give money to the government in Indonesia, but that they could not, presumably is an explanation as to why some Chinese are able to live in Indonesia and an explanation as to why the applicants are not able to do so. Again this goes to the merits of the applicants' claims and on very clear authority, particularly the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the Court is not able to engage in merits review.
In all therefore, the applicants’ complaints, if indeed that is what they were seeking to do today, was to raise a complaint of bias on the part of the Tribunal. This complaint was not made out and the remainder of their statements today do not amount to anything more than a request for impermissible merits review.
I should also note, as emphasised in the course of the hearing, the events subsequent to the Tribunal’s decision will not in the circumstances assist the applicants to show jurisdictional error on the part of the Tribunal’s decision made in 1998 and those particularly, although not exclusively, relate to the situation of the applicant’s three children who have grown up in Australia. As I explained to the applicants, these are not matters that go to show jurisdictional error on the part of the Tribunal, but may be matters that the first respondent may consider pursuant to s.417 of the Act. The Court makes no finding or direction in this regard and indeed it would not be proper for it to do so.
Therefore there is nothing before the Court now to cause the Court to set aside the orders made last year, even if it were to accept the applicants’ explanations for the failure to attend at the time those orders made, that is, the failure to attend at the hearing which subsequently led to those orders being made. In the absence of anything before the Court to show jurisdictional error on the part of the Tribunal, it would, even in those circumstances, be futile to set aside orders made by the Court to re-hear the applicants’ complaints, which do not reveal jurisdictional error.
The Court has fully considered what the applicants have put to it and there is nothing, for all those reasons that I have set out, that would cause the Court to set aside the orders already made. On this basis the application made to the Court on 25 January 2007 is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Dawnie Lam
Date: 12 March 2007
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