SZFQV v Minister for Immigration
[2005] FMCA 1405
•29 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFQV v MINISTER FOR IMMIGRATION | [2005] FMCA 1405 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 426A, 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
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZFQV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 322 of 2005 |
| Delivered on: | 29 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Ms L Clegg |
| 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 |
SYG 322 of 2005
| SZFQV |
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), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 7 February 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
7 December 2004 and handed down on 6 January 2005, affirming the decision of the delegate of the respondent (“the delegate”) made on
14 October 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 Act and has been given the pseudonym “SZFQV”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 11 September 2004. On 23 September 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.1-29) (“CB”). On 14 October 2004 the delegate refused to grant a protection visa (CB pp.35-45) and on 4 November 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.46-49).
Applicant’s claim
The relevant background facts of the applicant are set out in the written submissions prepared on behalf of the respondent by Ms Clegg.
I adopt paragraph 7 of those submissions for the purpose of this judgment:
The applicant’s claims are set out in her application for a protection visa at CB 26-27. She claims:
a)she was employed from 1980 as a clerk in the Tieling Food and Drink Company. The company did not value the work of the employees and the company managers bribed government officials to get contracts and cheap materials. The managers earned a lot of money and the employees did not benefit at all;
b)the applicant wrote a letter to the Disciplinary Inspection Commission to reveal the truth to the public and other employees. However the managers had connections in the Commission and she was fired;
c)in 1998, with 18 years experience in the food industry the applicant opened her own restaurant;
d)after a month of operation, government officials in charge of licensing taxation, fire brigade, epidemics and city administration all began to come to her restaurant to have meals. They brought their families and friends and did not pay her. When she insisted upon them paying they threatened to increase the administration fees charged to her. As she was scared, she did nothing about this;
e)after six years of operation and earning no money the restaurant closed down in March 2004. The applicant was in debt. This was due to the free meals she had provided to the officials. Further, the applicant was in debt to the government departments, whose officers came to her home and threatened her. They took all of the facilities from her restaurant and asked the public security police to come to her home to threaten her;
f)her life was in a total mess. The only way out was to flee the country;
g)she applied for a business visa and came to Australia in September 2004; and
h)she fears persecution from the government officials and public security police if she goes back to China.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s summary was contained in the respondent’s written submissions prepared by Ms Clegg and I adopt paragraphs 8, 9 and 10 of those submissions:
The Tribunal summarised the applicant’s claims at page 4.9 – 5.7 of its decision (CB 67-68).
The Tribunal:
a)accepted the applicant is a citizen of China (CB 68.9);
b)due to the insufficient detail provided, was not satisfied that the applicant invoked protection obligations in Australia (CB 69.1);
c)provided examples as to the lack of detail in the applicant’s claims (CB 69.2-3);
d)noted that it is for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out, and that the relevant facts of the individual case need to be supplied by the applicant themselves (CB 69.3-5);
e)concluded that the applicant had not made out the statutory elements of a grant of protection (CB 69.7);
f)did not accept that the applicant had a real chance of being subjected to harm amounting to persecution for the reasons claimed if she was to return to China (CB 69.8).
The Minister notes that the reason given by the applicant in her application for a protection visa which is said to found the basis for her fear of persecution is not a Convention related ground in any event. The applicant claims that she fears persecution for essentially economic reasons – because she is in debt to government departments. She does not fear persecution for reasons of race, religion, nationality, or membership of a particular social group or political opinion.
Application for review of the Tribunal’s decision
On 7 February 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). That application contained no grounds of judicial review of the Tribunal’s decision and was limited to a brief summary of the applicant’s original claims. The applicant attended a directions hearing on 15 February 2005 and consented to Short Minutes of Order requiring her to file and serve an amended application and evidence upon which she proposed to rely at the hearing. However, those orders were not complied with by the applicant. The matter was listed before me on 7 June 2005 for non compliance with those orders. At that hearing new orders were made requiring the applicant to file an amended application by 5 July 2005. This order was complied with but again the amended application filed on 29 June 2005 did not disclose any jurisdictional error claimed to exist in the Tribunal’s decision. The amended application was restricted to a complaint regarding the applicant’s migration agent and the advice she claimed was given to her by that agent.
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 indicated she had not filed written submissions in respect of the hearing and her oral submissions were limited to a complaint regarding the migration agent she had retained to prepare her visa application. This agent was alleged by the applicant to have been made bankrupt at some time after she had engaged him. However, the applicant was unable to be more specific and made only general statements relating to the issue. She also complained she had not received advice from the adviser under the Pilot RRT Legal Advice Scheme (NSW). This complaint was subsequently withdrawn when the applicant was shown a copy of correspondence on the Court file addressed to the applicant advising of contact details for the adviser. The applicant conceded she had met with the adviser for a conference.
Ms L Clegg of Counsel, appearing for the respondent, indicated two sets of written submissions had been filed in respect of this matter and the respondent relied on both sets of submissions. In respect of the submissions filed on 13 July 2005 I adopt paragraph 3 for the purpose of this judgment:
3.1The applicant’s claims are set out in the application filed on
7 February 2005. The claims are unparticularised and, on the whole, invite the Court to undertake a review of the merits. Without providing further particulars, the applicant also raises as a ground of review that her migration agent gave her wrong information and she missed an opportunity to provide further information to the RRT.3.2In accordance with the Court’s orders made on 7 June 2005, the applicant filed an amended application on 29 June 2005.
3.3The applicant states in her amended application that her migration agent misguided her and gave her wrong information. The applicant claims that she was not notified that her migration agent ceased operating and as a result she lost communication with the RRT. In support of her claims, the applicant attaches two documents to her amended application: a business card of Jack Meng, managing direction of Jack Meng Immigration & Pty Ltd; and a printout from the Migration Agents Registration Authority (“MARA”) website, which outlines a decision of MARA on 12 July 2004 barring Jack Meng from practising as a migration agent for 5 years.
3.4The respondent submits that on the face of the material before the Court, the applicant’s allegations have no basis.
3.5There was no indication in the applicant’s protection visa application or her review application that she authorised a migration agent to act on her behalf in relation to her application. The only mention of a migration agent appears in the applicant’s response to hearing invitation dated 26 November 2004 where she elected not to attend the hearing. No address was provided for the migration agent on that form.
3.6The applicant on both her protection visa application and review application recorded her residential address as [residential address]. This address was also recorded as her current postal address. Accordingly, all correspondences from the RRT to the applicant were sent to her residential address. On 3 December 2004 the RRT received notification of the applicant’s change of address, which was confirmed by the RRT by way of letter dated 7 December 2004. All correspondence from the RRT to the applicant from that point was sent to the mailing address nominated by the applicant.
3.7Therefore, despite the applicant’s claims that she lost communication with the RRT as a result of the bar placed on her migration agent, the documents before the Court reveal that the migration agent had not been authorised as the applicant’s adviser, and all correspondence from the RRT had been sent to the applicant directly.
3.8Further, in respect of the applicant’s claim that she was given wrong information by her migration agent in relation to her response to hearing invitation, the respondent notes that the applicant signed and dated the document.
3.9Finally, we note that the RRT’s decision primarily rested upon its lack of satisfaction that the applicant held a well-founded fear of persecution for a Convention related reason. In circumstances where the applicant fails to attend an RRT hearing, despite being put on notice of the inability of the RRT to be satisfied of her claims, there is arguably no error in the RRT’s approach: see MIMIA v VSAF [2005] FCAFC 73; SZDXC v MIMIA [2005] FMCA 887 and NAVX v MIMIA [2004] FCA 346.
On 15 September 2005 the respondent filed further outline of submissions and I adopt paragraphs 11-16 for the purpose of this judgment:
The amended application complains that the applicant was provided “wrong information” by a migration agent, which resulted in her losing communication with the Tribunal. The applicant complains that the Tribunal should have advised her to ring a “help telephone number” as she couldn’t speak English or read English.
The Minster has provided the Court with written submissions filed
13 July 2005 in relation to this matter. The Minister relies on those submissions.The Minister reiterates that the allegations made by the applicant in the amended application have no evidentiary basis. Further, the evidence before the Court (the failure of the applicant to appoint a migration agent (CB 47), the applicant personally signing the response to hearing invitation (CB 54), and later personally notifying the Tribunal of her change of address (CB 56)) suggests that the allegations are untrue in any event. It appears that the applicant was aware of the hearing time and date, and elected not to appear before the Tribunal.
Finally, even if the applicant had lost touch with the Tribunal through no fault of her own (which is not conceded) this is not a proper ground for judicial review. The Tribunal can not fall into jurisdictional error as a result of proceeding to make a decision under section 426A if it has compiled with the Act and observed the rules of procedural fairness.
It is clear that the Tribunal has committed no error, jurisdictional or otherwise. It had before it only the facts as alleged by the applicant that were contained in the protection visa application. The applicant simply failed to make out her case: MIEA v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. In this case, the applicant had an opportunity to attend the hearing and furnish additional facts. Yet she did not do so. No jurisdictional error can be established in such circumstances: MIMIA v VSAF [2005] FCAFC 73.
Reasons
The applicant in these proceedings was self represented with the aid of an interpreter in the Mandarin-English medium and has made no oral or written submissions addressing the issue of the Tribunal’s decision made on 7 December 2004 or any alleged jurisdictional error contained therein. The grounds in the original and amended applications were vague and unparticularised. The only issue raised by the applicant concerned the migration agent. This issue was addressed in the submissions filed by the respondent on 13 July 2005. I accept those submissions. I note particularly that Mr Jack Meng of Jack Meng Immigration & Pty Ltd had been disqualified from practising as a migration agent on 12 July 2004, which was a full two months prior to the applicant arriving in Australia. Further, none of the documentation filed by the applicant contained any reference to a migration agent or an address for service of any one other than the applicant’s own residential address. The details of the migration agent as recounted by the applicant from the bar table during the hearing contained a number of inconsistencies in respect of the migration agent and the applicant’s involvement and various aspects of the carriage of this matter.
Further, I accept the respondent’s submissions contained in the outline of submissions filed on 15 September 2005 in respect to the Tribunal’s approach to its decision in this matter in that it did not fall into any jurisdictional error as a result of proceeding to make a decision under s.426A of the Act and that the Tribunal complied with the Act and observed the requirements of procedural fairness.
However, 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 order to make that assessment, I reviewed all of the material contained in the Court Book prepared for these proceedings and re-read the decision of the Tribunal dated 7 December 2004 (CB pp.64-70). On the face of that document and the supporting material, I am satisfied that no jurisdictional error is apparent. The Tribunal was faced with the problem that the applicant had provided a typed statement of approximately one and a half pages in length setting out her claim (CB pp.26-27). The applicant was advised by letter that the Tribunal had considered the material before it but was unable to make a decision in her favour on the material alone (CB pp.52-53). The letter invited the applicant to attend a hearing on 20 December 2004 together with an invitation to supply additional documents and written arguments to the Tribunal and the opportunity to bring witnesses to give oral evidence at the hearing. That invitation was declined (CB p.54) which resulted in the Tribunal having insufficient details in order to satisfy itself that the applicant had suffered persecution for a Convention reason. Nothing on the face of the Tribunal’s decision discloses a jurisdictional error.
Conclusion
In the absence of any pleaded grounds, written or oral submissions,
I have not been able to identify any ground that the Tribunal 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 September 2005
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