SZFWS v Minister for Immigration - [2005] FMCA 1208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFWS v MINISTER FOR IMMIGRATION

[2005] FMCA 1208

MIGRATION – Application for review of a decision of the Refugee Review Tribunal – lack of particularity – application delayed without explanation – fraudulent claims – no jurisdictional error – application dismissed.

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Cohen (2001) 177 ALR 473
Bruce v Coles (1998) NSWLR 163
Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82

Applicant:

SZFWS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 628 of 2005

Judgment of:

Pascoe CFM

Hearing date:

23 August 2005

Delivered on:

31 August 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 628 of 2005

SZFWS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 April 1998. By that decision the Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.
In accordance with the decision of the High Court in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to these proceedings.
On 23 March 2005 the applicant was ordered to file an amended application giving complete particulars of each ground of review relied upon. On 10 May 2005 the applicant filed his amended application which contained the following grounds:
·The Tribunal earlier in the report in regard to independent evidence the Tribunal made such that my submitted no evidence yet.
·The Tribunal decision was unfair, unreasonable and that my evidence to it was truthful.
·The Tribunal was in error law, those findings were open to it from my side fact and evidence; and
·The Tribunal member is substituting her view this is no more than a personal judgmental view without any foundation in evidence.
The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 5 November 1996. On 13 November 1996 the applicant lodged with the then Department of Immigration and Multicultural Affairs (“the Department”) an application for a protection visa. On 3 April 1997 a delegate of the respondent refused to grant the applicant a protection visa and on 5 May 1997 he sought review of that decision with the Tribunal.
On 11 March 2005 some seven years later the applicant filed an application for review in this Court. There was no explanation for the delay.
The applicant did not attend the Tribunal hearing. On 9 March 1998 the Tribunal wrote to the applicant advising him that it had given consideration to all of the documents relating to his application and it was unable to make a decision in his favour on that material alone. The applicant was invited to give oral evidence to the Tribunal on

6 April 1998. The letter of 9 March also advised the applicant that if he did not contact the Tribunal within 14 days the Tribunal may proceed to make a decision in his absence based on the material it had before it. A copy of this letter was sent to both the applicant and his advisor. The Tribunal noted in its decision at page 4 of the Court Book that the applicant did not respond to the Tribunal’s letter until 5 minutes before the hearing of 6 April 1998, at which time the applicant’s advisor telephoned the Tribunal to say that he had received advice from the applicant that he had not received notice of the hearing until 2 April 1998 (although the letter was sent by registered post four weeks prior to the scheduled hearing). The Tribunal was advised that the address for service was an address of the applicant’s friend and this explained the delay in collection of the mail. The applicant requested an adjournment and the matter was re-listed on 8 April 1998 at 4.30pm. On 8 April the applicant’s advisor telephoned the Tribunal to advise that he had not been able to contact the applicant in the intervening 48 hours. The Tribunal considered that as it had no valid response from the applicant as to the delay, it would not grant a further adjournment of the matter.
The Tribunal found that in the circumstances it had discharged its obligations to provide the applicant with the opportunity to attend a hearing and give oral evidence in support of his claims and that the applicant had, in essence, declined the opportunity. Therefore, the Tribunal determined the applicant’s application on the evidence it had before it. I note that the Tribunal had before it both the Departmental and the Tribunal’s own files and the information the Tribunal had obtained from independent sources in relation to the matters raised in the application.
In a written statement dated 5 March 1997 provided to the Department the applicant claimed that he had been a farmer in Fujian province and that in 1992 he opened a restaurant business in partnership with the town director’s son. The applicant claimed that this arrangement was successful for approximately nine months until the applicant’s business partner insisted on taking 80 percent of the profits. When the applicant refused to accept this new arrangement, he says he was bashed by his business partner and five ‘thugs’. The applicant claimed that he was then forced to sign a new contract in relation to the distribution of the business profits. The applicant took his grievance to a district discipline inspection committee but was later informed that his grievance fell within the jurisdiction of the municipal public security bureau. That organisation detained the applicant for approximately one month after it was told by the applicant’s business partner that the applicant had breached his contract; he was then deprived of the restaurant business.
In having regard to this part of the evidence the Tribunal noted that this particular evidence had been transposed directly from an earlier case before a differently constituted Tribunal. The Tribunal further noted the evidence was identical but for two words (which were of no consequence). Both cases involved male applicants who were nationals of the PRC. The Tribunal also noted that the two applicants had arrived in Australia at the same time but six months apart, each applicant having been handled at the departmental stage by a different delegate. The Tribunal noted that on examination their written statements emanated from the same word processor and appeared to be dated in the same handwriting which seemed to be that of the same migration agent. In the other matter the Tribunal proceeded on the basis that the written statement represented the claims of that particular applicant, as he had lodged his claims six months earlier and the claims were not inconsistent with that applicant’s answer to questions on the departmental form.
In the present case, however, the Tribunal found that it could not make the same assumption. It noted the applicant’s claims were that he was a farmer and a restaurateur before leaving China.
The Tribunal commented that the applicant had written on his protection visa application that he had worked as a plasterer from the time he left school until he came to Australia. The Tribunal did not accept any of the allegations set out in the statement of claim. It found that the applicant had used (or even been given) a story that had previously been put forward by another applicant six months earlier. The Tribunal found that this story was inconsistent with the information given elsewhere by the applicant. Accordingly, the Tribunal was satisfied that the claim was fraudulent.
The Tribunal found that, in rejecting the applicant’s written claims, it was not in a position to assess the nature and extent of any harm the applicant had suffered in the past or any harm he may suffer in the future. It was not satisfied that the applicant had a well founded fear of persecution for a Convention reason. The Tribunal found that even if it had not rejected the applicant’s claims as fraudulent it still would not have been satisfied that the applicant was a person to whom Australia had protection obligations based on the written claims.
The Tribunal found that it was unable to make a decision favourable to the applicant based on the material it had before it. It found that the applicant had been given ample opportunity to attend the Tribunal hearing but that he chose not to. He did not give the Tribunal the opportunity to explore certain aspects of his claims with him.
The applicant’s amended application does not disclose to the Court that the Tribunal decision was in any way affected by jurisdictional error or error of law. The purported grounds are without particularity and are hard to comprehend even with the benefit of having heard the applicant further on the issue from the Bar table. Moreover, the application is excessively delayed without any explanation.
I am satisfied that the findings of fact reached by the Tribunal were clearly open to it (See Re:Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Cohen (2001) 177 ALR 473, per McHugh; Bruce v Coles (1998) NSWLR 163, per Spigelman CJ). The applicant has failed to show that the decision of the Tribunal was in any way affected by jurisdictional error or error of law. Nor can I see on examination any other error in the Tribunal’s reasoning in relation to this matter, let alone jurisdictional error.
Even if the there were jurisdictional error I am not satisfied that the Court should grant relief in view of the extremely lengthy and unexplained delay in bringing this action. In any event the applicant has not indicated to the Court that there are exceptional circumstances (See Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82).
Accordingly, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Associate:

Date: