SZGCN v Minister for Immigration
[2005] FMCA 916
•22 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGCN v MINISTER FOR IMMIGRATION | [2005] FMCA 916 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 476
Federal Magistrates Act 1999 (Cth), ss.14, 15
Federal Magistrates Court Rules 2001 (Cth), r.13.10
Walton v Gardiner (1993) 177 CLR 378
General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 125
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959
Webster v Lampard (1993) 177 CLR 598
Xie v Immigration Department (1999) FCA 365
Applicant A175/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 829
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Miller v Wertheim & Anor [2001] FMCA 103
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Chung v University of Sydney [2001] FMCA 94
Yo Han Chung v University of Sydney [2002] FCA 186
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
VQAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1541
Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
| Applicant: | SZGCN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG973 of 2005 |
| Delivered on: | 22 July 2005 |
| Delivered at: | Sydney |
| Hearing dates: | 14 June 2005 and 5 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms S Burnett |
| 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 |
SYG973 of 2005
| SZGCN |
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) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 4 April 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 January 2001 and handed down on 30 January 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on
31 May 2000 to refuse to grant the applicant a protection visa.
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 “SZGCN”.
The applicant, who claims to be a citizen of the People’s Republic of China, claimed to have arrived in Australia on 6 January 2000. On
28 April 2000 she lodged an application for a protection (Class XA) visa with the Department of Immigration (“the Department”) under the Act (CB pp.1-30). On 31 May 2000 the delegate refused to grant a protection visa (CB pp.47-53) and on 3 July 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.54-57).
In the applicant’s original submission to the Department, she claimed she was married and her husband was in Australia but her son remained in China. She stated that her husband was not included in her application because he had a “different religion to her” (CB p.3). The applicant claimed she left China on 6 August 1999 and travelled to the Philippines where she remained until January 2000 at which point she came to Australia. She claimed she lived in a single address in Yong Chun, Fujian Province, China throughout her life until August 1999 and had been a worker at the Yong Chun Food and Drink Service Company Ltd from 1978 to 1999. The applicant claimed that she left China legally using a passport issued on 3 June 1999 which was issued to her through legal channels, as was her exit permit. An uncertified copy of the passport, which showed the applicant had extended her Philippines visa while in the Philippines was on the Department file. The applicant arrived in Australia on 6 January 2000, using a different passport in another name. The holder of that passport, an uncertified copy of which was on the Department’s file, was recorded as having been born in the Philippines (CB p.76).
Applicant’s claim
In a statement attached to her protection visa application, the applicant claimed she feared being harmed or mistreated by the Chinese government if she returned to China. The applicant claimed her fears were due to her membership of the Falungong and that she had participated in its activities. She stated that she had given public speeches in which she expressed support for Falungong and promoted it among her work colleagues. The applicant stated that Falungong had been classified as an illegal organisation. She claimed she was warned by police and she was worried that it would be “just like the 1989 democracy movement” during which time she had been questioned by police because she participated in pro-democracy demonstrations (CB p.18).
The applicant was interviewed by an officer of the Department on
26 May 2000. At the interview, the applicant stated that the above claims were not correct in that she had never been questioned by the police in China, she had never made public speeches, she had not been involved in the 1989 pro-democracy movement and she had not organised the practice of Falungong at her workplace. At that interview the applicant claimed she was a follower of Falungong and from December 1989, at the request of the Falungong leader, Chen Wan Quan, she had allowed members to use her home as a gathering place. She stated that Chen Wan Quan organised the gatherings at which 30-40 Falungong members met every 7-10 days. The applicant claimed that in August 1999 the authorities began to arrest Falungong members and she fled to the Philippines. She stated that after this time the Falungong meetings at her home were held irregularly and in April 2000 the applicant’s home was sealed off by the authorities. The applicant submitted a facsimile copy of a document she claimed was a Court Order, that was addressed to her husband, as proof that the house had been sealed off (CB p.77).
The Tribunal’s findings and reasons
In its decision, the Tribunal made the following findings (CB pp.79, 91-92):
a)The applicant is a national of the People’s Republic of China.
b)Between December 1998 and July 1999 the applicant allowed her house to be used by Falungong members for the purpose of doing Falungong exercises.
c)The applicant was not a key member of Falungong, participating in no activities apart from doing her exercises in her own home.
d)In the context of its detailed analysis of the country information, the Tribunal was not satisfied that a person with this profile might be sought for arrest or harm amounting to persecution by the Chinese authorities.
e)The Tribunal did not accept that the Chinese authorities would consider that the applicant was a Falungong organiser or activist and therefore considered that her prospects of facing harm were remote. This was in the context of the applicant’s admission that she was not a key member. The Tribunal also noted that the applicant had had no problem getting clearance to leave the country at a time after arrests of Falungong organisers had commenced. The Tribunal did not accept that the documentary evidence of a sealing off order (allegedly made in respect of the applicant’s home) was genuine but noted that, even if it were, it did not accept that the order had been issued because the house had been used by Falungong members.
f)For the reasons stated, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution upon return to China.
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)On 6 January 2000 the applicant arrived in Australia (CB p.14).
b)On 28 April 2000 the applicant lodged an application for a protection visa (CB pp.1-25).
c)On 31 May 2000 the delegate refused to grant the applicant a protection visa (CB pp.47-53).
d)On 3 July 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.54-57).
e)On 30 January 2001 the Tribunal handed down its decision affirming the decision of the delegate (CB pp.73-93).
f)On 5 March 2001 the applicant filed an application for a review of the Tribunal’s decision with the Federal Court of Australia.
g)On 5 June 2001 His Honour Moore J dismissed the application to the Federal Court of Australia for non-appearance by the applicant under order 32 r.2(1)(c) of the Federal Court Rules.
h)On 4 April 2005 the applicant filed an application for a review of the Tribunal’s decision with the Federal Magistrates Court of Australia.
i)On 16 May 2005 the respondent applied for summary dismissal of the matter.
j)On 14 June 2005 the respondent’s application was heard before me and subsequently orders were issued that the matter be scheduled for final hearing on 5 July 2005.
Application for review of the Tribunal’s decision
On 4 April 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The applicant attended a directions hearing before Registrar McIllhatton on 5 May 2005 and consented to Short Minutes of Order requiring her to file and serve an amended application giving full particulars of each ground of review to be relied upon by 9 June 2005 and to file and serve any affidavit containing additional evidence to be relied upon, including a transcript of the Tribunal’s hearing to be filed on the same date. On 14 June 2005 the applicant filed an amended application containing the following grounds:
A.The Tribunal constructively failed to exercise its jurisdiction and to afford the applicant natural justice in circumstance where the Tribunal applied the incorrect test of persecution for convention purpose.
(a)The Tribunal did not accept that the applicant suffered persecution for convention reason of time of leaving China.
B.The Tribunal’s decision was infected with jurisdictional error in circumstance where it came to its conclusion about the lack of persecution upon refoulment on an improper and unreasonable basis.
(b)The Tribunal lacked probative evidential support for such conclusion and relied on irrelevant considerations and inappropriate application of independent country information.
C.The Tribunal failed to deal with the applicant’s surplace claim of persecution by reason of my Falungong practitioner. (Errors included)
On the 28 June 2005 the applicant filed a document headed “Additional grounds of application” which contained the following four grounds:
1.The Tribunal failed to determine the application before it.
2.The Tribunal in finding that the applicant “at the time she left the PRC in August 1999” (Green Book p.92) was of no interest to the authorities, failed to examine what would happen to the applicant if she returned to the PRC, particularly in view of the events that occurred in April 2000.
3.The grounds for rejecting the applicant (Green Book p.92) are circular: the applicant would be of no interest to the authorities and therefore her house was sealed for reasons unrelated to Falungong; but because the house was sealed for reasons unrelated to Falungong the applicant would not be of interest to the authorities.
4.The Tribunal failed to apply the “real chance” test and consider and determine what would happen to applicant if she returned to China.
Applicant’s submissions
At the hearing, the applicant appeared self represented with the aid of a Mandarin interpreter. The applicant had participated in the Pilot RRT Legal Advice Scheme (NSW) and has had the benefit of a meeting with a panel adviser who provided her with legal advice. When the applicant was invited to make oral submissions in support of her application, she indicated that she disagreed with the Tribunal’s decision in respect of a number of aspects. She claimed she departed the People’s Republic of China on her own passport and that she was not subjected to any questioning by Chinese customs in respect of the validity of the passport or the travel documents in her possession. At that stage the applicant was exiting China en route to the Philippines. The applicant stated that in June 1999 the Chinese authorities began cracking down on the practice of Falungong and by July of that year she became fearful of arrest due to her membership of the organisation and decided to escape to the Philippines.
The applicant referred the Court to the additional grounds in her application of 28 June 2005 and in particular points 3 and 4. The applicant referred to the Tribunal’s decision under the heading “Findings and Reasons” and in particular the following passage:
“… I am satisfied that, at the time she left the PRC in August 1999, the authorities either did not [know] of her links with Falungong or knew but did not have any intention of questioning or arresting her.” (CB p.92)
The applicant claimed that the argument used by the Tribunal was “circular”, as raised in the third additional ground, and relied on the extract produced above.
Respondent’s submissions
Ms Burnett, Solicitor appearing for the respondent, filed a revised outline of submissions prior to the hearing addressing the issues raised by the applicant in her amended application and further grounds. The revised submissions contained the following contentions:
Tribunal applied incorrect persecution test: Grounds A and (a)
a)The ground of review asserted the applicant suffered a denial of natural justice because the Tribunal applied the incorrect test when assessing whether she suffered persecution for a Convention reason when she left China.
b)The Tribunal made the following findings:
i)The applicant is a national of the People’s Republic of China.
ii)Between December 1998 and July 1999 the applicant allowed her house to be used by Falungong members for the purpose of doing Falungong exercises.
iii)The applicant was not a key member of Falungong, participating in no activities apart from doing her exercises in her own home.
iv)In the context of its detailed analysis of the country information, the Tribunal was not satisfied that a person with this profile might be sought for arrest or harm amounting to persecution by the Chinese authorities.
v)The Tribunal did not accept that the Chinese authorities would consider that the applicant was a Falungong organiser or activist and therefore considered that her prospects of facing harm were remote. This was in the context of the applicant’s admission that she was not a key member. The Tribunal also noted that the applicant had had no problem getting clearance to leave the country at a time after arrests of Falungong organisers had commenced.
vi)The Tribunal did not accept that the documentary evidence of a sealing off order (allegedly made in respect of the applicant’s home) was genuine but noted that, even if it were, it did not accept that the order had been issued because the house had been used by Falungong members. For the reasons stated, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution upon return to China
Tribunal’s finding of lack of persecution upon refoulement made on improper and unreasonable basis: Grounds B and (b) 2 and 4 of the additional grounds
c)This ground appeared to state that the Tribunal lacked evidence for its conclusion that the applicant would not suffer persecution upon her return to China and took into account irrelevant considerations and inappropriately applied independent country information in reaching that conclusion.
d)The respondent relied on the Tribunal’s findings (as set out in paragraph 15(b)(i)-(vi) above). The respondent submitted that no particulars were provided in relation to the no evidence ground. In any event, the Tribunal’s approach turned upon the ample evidence about the situation of Falungong in China and its assessment of the applicant’s profile that she was not an organiser or leader of the Falungong, which was consistent with the applicant’s own claims about her status. It was submitted that this was a case where any subjective fear that the applicant may have was not supported by the evidence that it could be found to be well-founded.
Tribunal’s failure to deal with the Applicant's persecution claim by reason of Falungong practice: Ground C
e)There was nothing in this ground as Tribunal devoted almost the whole of its decision towards examining this issue. In any event, the respondent relied the Tribunal’s findings as set out in paragraph 15(b)(i)-(vi) above.
Tribunal failed to determine the application before it: Ground 1 of additional grounds
f)This ground lacked particularisation and was impossible to consider further.
Circular grounds for rejecting application: Ground 3 of the additional grounds
g)As was stated in paragraph 15(b)(v) above, the Tribunal did not accept that a sealing-off order allegedly made in respect of the Applicant's home was genuine. It noted that even if it were, it did not accept that it had been issued because the house had been used by Falungong members. It used this as one of its bases for finding that a person with the applicant's profile would not suffer harm amounting to persecution upon her return. It was submitted that there was nothing circular in this logic.
Submissions to the Federal Court
h)The application was almost identical to the one brought by the applicant on 5 March 2001 although the applicant has abandoned her claims of bias but added the claim of circular logic. It was notable that Moore J, when he dismissed the applicant's application on 5 June 2001, observed that the applicant did not appear to have raised an issue of substance in her application. She has not done so in her current application.
Application for summary dismissal
On 16 May 2005 the respondent solicitors filed an application seeking an order that the application be dismissed pursuant to the jurisdiction conferred by Sections 14 and/or 15 of the Federal Magistrates Act 1999 (Cth). On the grounds stated in the accompanying affidavit the respondent claimed:
1.An order that the application filed 4 April 2005 be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“Rules”) on the basis that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief;
(b)further or in the alternative, the proceeding or claim for relief is frivolous or vexatious, and
(c)further or in the alternative, the proceeding or claim for relief is an abuse of process of the Court.
(a)The respondent submitted that the proceedings are an abuse of process and sought that the proceedings be dismissed as such under r.13.10(c) of the Rules.
In Walton v Gardiner, their Honours Mason CJ, Deane and Dawson JJ stated (at 393):
“… proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings …”
The respondent submitted that through the application, the applicant was attempting to re-litigate the same Tribunal decision that was previously dealt with by the Federal Court. It was submitted that the applicant has not:
a)attempted to point to any reason why the judgment of the Federal Court on 5 June 2001 was not sought to be set aside;
b)provided any reason, plausible or otherwise, as to why she failed to attend the hearing before Justice Moore on 5 June 2001;
c)advanced a reason for the four year delay in making this application, calculated from the date the matter was dismissed by his Honour Justice Moore.
The respondent submitted that, in light of the above facts, it was clear that the actuating reason for this application was the applicant’s detention which was effected on 23 February 2005.
It was submitted that there was no reasonable basis to the application. Pursuant to r.1.05 of the Rules and Order 54B Rule 5 of the Federal Court Rules, the words “no reasonable cause of action” contained in r.13.10(a) of the Rules must be construed to mean that “no reasonable basis for the application is disclosed”. No reasonable basis for an application will be disclosed where:
a)The case of the applicant is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commission for Railways NSW; SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs (“SZBWF”); SDAE v Minister for Immigration & Multicultural & Indigenous Affairs.
b)It is apparent that the application must fail if the case were to go to trial in the ordinary way: Webster v Lampard, Xie v Immigration Department; SZBWF, Applicant A175/2002 v Minister for Immigration & Multicultural & Indigenous Affairs.
c)One can say without doubt, on the whole of the material, that there was no real question to be tried: Fancourt v Mercantile Credits Ltd; Miller v Wertheim & Anor, Kosi v Minister for Immigration & Multicultural & Indigenous Affairs (“Kosi”).
The respondent submitted that where an applicant is unrepresented, and in considering whether or not to exercise its discretion to grant summary dismissal on the ground that no reasonable basis for the applicant was disclosed, the court would 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]-[14] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186); Kosi. It was submitted that the grounds raised in the application were formulaic, general, unparticularised and, at times, nonsensical and therefore could not possibly succeed. In the context of its detailed analysis of the country information, the Tribunal was not satisfied that a person of the applicant’s profile might be sought for arrest or harm amounting to persecution by the Chinese authorities (CB p.92). The Tribunal did not accept that the Chinese authorities would consider that the applicant was a Falungong organiser or activist given the applicant’s admission that she was not a key member (CB pp.92.2, 79.4). It was submitted that for these reasons, the Tribunal was not satisfied the applicant had a well-founded fear of persecution.
Further, or in the alternative, the respondent submitted that it was both frivolous and vexatious of an applicant to re-commence proceedings in which there was a judgment made four years earlier. This was particularly so in the circumstances of this case where the applicant failed to attend.
The respondent submitted that the applicant had not filed or served on the respondent an amended application giving full particulars of each ground of review to be relied upon despite the order of the Court that that the applicant do so by 9 June 2005. Accordingly, the respondent further submitted that the application should be dismissed pursuant to r.13.03(2)(b) of the Rules.
The applicant appeared before this Court on 14 June 2005 with the assistance of a Mandarin interpreter. The applicant indicated she had made serious attempts to prepare her application but was experiencing extreme difficulties because she was being held in detention and had insufficient funds to enable her to obtain assistance from a legal adviser. The applicant made a number of references to documents that did not appear on the file. She was unable to convey to the Court what steps she had taken in order to file the documents and it was difficult to determine their status and existence. The applicant attempted to make oral submissions in respect of her application with the assistance of some notes and the Court Book.
The submissions made by the respondents in respect of the application for summary dismissal indicated that the applicant had a number of difficult issues to overcome. However, there appeared to be issues that the applicant was attempting to articulate which she suggested were contained in written submissions to the Court. At that stage, I believed it was appropriate to adjourn the hearing to determine the existence of whereabouts of this additional material. This material was subsequently forwarded to my Chambers within twenty four hours and consisted of written submissions, further grounds and an affidavit of the applicant. Accordingly, I advised the parties that the matter should proceed to a final hearing on 5 July 2005.
Reasons
The applicant’s first pleaded ground of review was that the Tribunal failed to afford the applicant natural justice (Ground A and (a)). The two traditional rules of natural justice, the hearing rule and the bias rule, which in a broad sense are both procedural in that they address the manner in which a decision is made and not the merits of the decision itself, did not appear to be the thrust of the applicant’s pleadings. Rather, the applicant appeared to rely on a more recent line of authority being another requirement of natural justice which is not procedural. This is a requirement that the decision be based on logically probative and relevant material, which effectively imports into natural justice a level of review for factual error. It was submitted that this error was the Tribunal’s application of the incorrect test in determining whether the applicant was subject to persecution in Convention terms. The applicant’s written submissions highlighted the distinction between the current pleadings and the pleadings that were the subject of the application before his Honour Moore J. In the earlier proceedings the natural justice ground of bias was pleaded but this ground was abandoned in the current proceedings. The other distinction was that the earlier proceedings were an application under s.476 of the Act (in the legislative form that it was then). In the current proceedings relief was sought under s.39 of the Judiciary Act 1903 (Cth). I shall return to the significance of this distinction after I have dealt with the individually pleaded grounds.
The applicant in her pleadings provided no particulars in support of her allegation that the wrong test was used or any indication how that test was illogically or irrationally applied. In its decision under the heading “The Refugees Convention”, the Tribunal quoted Article 1A(2) of the Convention. The Tribunal then referred to a number of authorities where Article 1A(2) has been applied. Extracted from the case of Minister for Immigration & Ethnic Affairs v Guo & Anor the Tribunal noted the four key elements of the definition of a refugee. Each of the elements was explained in respect of their operation and the established way in which the elements are applied. The Tribunal’s decision then detailed the evidence it had available to it from the applicant and other sources, such as country information and finally the “Findings and Reasons” that the Tribunal drew from that material.
The Tribunal made three major findings as to the reason why the applicant did not meet the criteria set out in Article 1A(2) of the Convention. The Tribunal did not accept that the Chinese authorities considered the applicant was a Falungong organiser or activist and therefore considered that her prospects of facing harm were remote. The Tribunal set out its findings on these three issues and noted that the applicant had admitted that she was not a key member of the Falungong (CB p.92). She gave evidence to the Tribunal on
10 January 2001 and made the following admission during the hearing:
a)The applicant responded that the ban on Falungong practitioners had only been issued in Beijing (on 22 July 1999) at the time she left the country (on 6 August 1999). It had not reached Fujian. The Tribunal member put to her that this was difficult to believe. She agreed that the Fujian authorities were already arresting Falungong members in this period, but she was not a key member. They were only arresting leaders (CB p.79).
b)The applicant had no problem getting clearance to leave the country at a time after arrests of Falungong organisers had commenced. The Tribunal noted from DFAT material that people who left the country with their own passport and exit permit, as the applicant stated she did, were “thoroughly vetted” by the authorities (CB p.92).
c)The Tribunal did not accept that the sealing off order (allegedly made in respect of the applicant’s home) was genuine. However, the Tribunal noted that even if the order was genuine, it did not accept that it had been issued because the house had been used by Falungong members. The Tribunal noted that the reason for the property being “sealed” was not contained on the face of the document. A person named on the document was the applicant’s husband although the applicant claimed the property was in her name. The Tribunal concluded that the sealing document if genuine was probably issued for some reason other than the occasional practise of Falungong by a small number of practitioners.
In the absence of any particularisation as to which test should have been applied or alternatively how the current test was inappropriately considered, a fair reading of the Tribunal’s decision does not disclose any error in the Tribunal’s approach and this ground cannot be sustained.
The second ground was that the Tribunal’s finding of lack of persecution upon refoulment was made on an improper and unreasonable basis (Ground B, (b), 2 and 4 of the additional grounds). The ground appeared to state that the Tribunal lacked evidence for its conclusion that the applicant would not suffer persecution upon her return to China and took into account irrelevant considerations and inappropriately applied independent country information in reaching its conclusion. In the Tribunal’s decision a considerable volume of material was referred to in respect of the background, structure, organisation, leadership and treatment of followers of Falungong in China. The Tribunal also considered the material available in relation to the activities of the Falungong in Australia and particularly, in Sydney.
While the independent country information detailed the large number of arrests, detention, jailing and re-education programmes implemented by the Chinese authorities to discourage the public participation in Falungong activities, some of the reports indicated that private individuals were allowed to continue to practice their exercises provided they did not publicly acknowledge Falungong and perform its exercises in public. The authorities’ emphasis was on the crackdown of the public participation in Falungong exercise and expressions of support for the group. The individuals targeted were the ones that played a leadership or organisation role in Falungong. The ordinary member was generally able to practise Falungong exercises in private. The China Daily on 23 July 1999 published articles promising not to punish ordinary Falungong practitioners as long as they broke ties with the Falungong organisation and ceased to participate in Falungong activities. Another Chinese Government announcement on the same day emphasised that ordinary Falungong practitioners would be treated differently to organisers and key members of Falungong (CB p.88). On the applicant’s own admission she was not a key member of the organisation (CB p.79.4). The Tribunal’s finding of lack of persecution upon refoulment was made on a proper and sound basis from the extensive range of independent country information available to it. This consideration may have been different without the concession made by the applicant herself during the interview with the Tribunal member on 10 January 2001. In the absence of any particularisation of this claim and on a fair reading of the Tribunal’s decision this ground cannot be sustained.
The third ground (Ground C of the applicant’s amended application) claimed that the Tribunal failed to deal with the applicant’s persecution claims by reason of Falungong practise. I accepted the respondent’s submissions that the Tribunal devoted almost the whole of its decision towards examining this issue. This ground did not raise any new or further issue that has not been previously addressed under Grounds 1 and 2.
Ground 4 (Ground 1 of the additional grounds filed on 28 June 2005) claimed that the Tribunal failed to determine the application before it. Again no particulars were pleaded in respect of this ground. The applicant filed an application for review with the Tribunal on 3 July 2000. Under Section D of that application was the inquiry: “Your reasons for making this application”. This was followed by the instruction: “Please tell us why you disagree with the Tribunal’s decision. Please remember that any person included in this application may send a separate statement, if they want to.” A typed statement was stapled to the application form which contained the following statements:
“I disagree with the Department’s decision. Please refer to the letter from DIMA on the decision of my application, at page 4, at the last two paragraph, the officer mentioned: “The applicant stated the “sealed off” house was in her own name. However, the Court Order for sealing the house was addressed to the applicant’s husband. This indicates that even if the house was “sealed off”, the authorities were interested in the applicant’s husband, not the applicant. Furthermore, there is no indication of the reason for the Court Order, and that the applicant’s husband was involved in Falungong, it is therefore reasonable to suspect that the “sealed off” the house is not related to the Falungong meeting.” I disagree with the officer. The couple owns the same house, so if the house was sealed, they must be notified. In China, it is always the man who should be the first to be contacted for any family matters. So that is why my husband was notified about the “sealed off” of the house, and I am the wife, I can’t see why the officer can conclude that the authorities was interested in my husband but not me and my husband was not involved in Falungong and therefore, the “sealed off” of the house is not related to the Falungong meeting. It is ridiculous.
I hope my application can be reassessed at RRT. Thank you!” (CB p.56)
That is the only issue raised by the applicant in respect of the delegate’s decision handed down on 30 May 2000. At the Tribunal hearing held on 10 January 2001 the Tribunal member discussed with the applicant the circumstances surrounding the sealing of the house. In April 2000 the applicant indicated that her house was sealed off by the authorities and she submitted a facsimile copy of a document she claimed was a court order which was addressed to her husband as proof that her house had been sealed off. The Tribunal decision detailed the discussion concerning the ownership of the house, why her husband’s name appeared on the documentation, the reasons for the authorities sealing the residence and the two shops, the absence of reasons on the notice for the sealing of the residence and the circumstances in which the documentation became available to the applicant (CB p.77-80). In the “Findings and Reasons” of the Tribunal’s decision, the Tribunal specifically referred to the sealing of the premises and the reasons why it did not accept the applicant’s evidence in respect of this claim. The Tribunal stated as follows:
I have some doubts that the documentary evidence submitted by [the applicant] in support of her claim that her home has since been “sealed” is genuine. It is inexplicable that the name of a fellow Falungong practitioner (as was claimed by [the applicant]) is contained in it as the “enforcement applicant”. Further, her belated claim that he was a Falungong follower is not convincing.
However, even if the document is genuine, in the sense that it was issued by the authorities, there is nothing in its wording from which I might infer that it was issued because the property had been used for Falungong practice. [The applicant] herself has done no more than speculate as to the reason for its issue. Further, it is difficult to understand the logic behind the closure of a property which was used from time to time for Falungong gatherings, given that the same activities could readily continue elsewhere. Consistent with my view that the document may have been issued for some other reason is the fact that, despite her claim that the property is in her name, only her husband is named on the document. This indicates that, even if the document is genuine, it was issued for some reason other than that the house had been used by herself and other Falungong followers, an activity in which she claims her husband was not involved at all.” (CB p.92)
The applicant raised a single ground of objection to the delegate’s decision which was specifically addressed by the Tribunal in its reasons for the rejection of the applicant’s evidence. The claim that the Tribunal failed to determine the application on foot cannot be sustained.
The applicant’s sixth ground (Ground 3 of the additional grounds) made the claim that the argument adopted by the Tribunal in respect of the sealing of the house was circular in nature. The applicant disputed the argument structure that she was of no interest to the authorities and therefore her house was sealed for reasons unrelated to Falungong and because her house was sealed for reasons unrelated to Falungong the applicant would not be of interest to the authorities. The Tribunal did not accept that the claim that the applicant’s house had been sealed was genuine. It had reservations as to the authenticity of the documents upon which this claim was based. The document did not state reasons for the property being sealed and the applicant was merely speculating as to the reason for the issue of the court order. The Tribunal also had a problem with the logic of the forced closure of a property that had been used on a casual and intermittent basis for some Falungong gatherings. The Tribunal was willing to accept that if the closure document was genuine, then the purpose of its issue was unlikely to be related to activities of the Falungong. It was also noted that the notice was issued against the applicant’s husband who was not involved in Falungong activities. The Tribunal used these findings to support the view that a person with a profile of the applicant would not suffer persecution as a Falungong practitioner should she return to China.
On 16 May 2005 the respondent filed an application in these proceedings seeking an order that the application be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Act 1999 (Cth). As I have indicated above, on the day of that scheduled hearing, I was not satisfied that all the documentation that the applicant had prepared for these proceedings was before the Court. Nor was the applicant in a position to address the Court in respect of her substantive application. Subsequently this material became available although it appeared to have been filed on the same day that the applicant appeared before the Court. This may have been due to the applicant being in detention but ultimately had no significance in respect of the substantive matter before this Court. However, the issues raised in the respondent’s application of 16 May 2005 still need to be addressed. The respondent submitted that the proceedings are an abuse of process and relied on the authority of Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 393:
“… proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings …”
In the current proceedings the applicant was attempting to re-litigate the same Tribunal decision (N00/34072 decision of Ms Philippa McIntosh dated 12 January 2001 handed down on 30 January 2001) that was previously dealt with by the Federal Court (Orders of his Honour Moore J of 5 June 2001 where the application was dismissed for non appearance by the applicant – decision [2001] FCA 720). No explanation was provided by the applicant for her failure to appear at the Federal Court hearing on 5 June 2001. However, the applicant attended the directions hearing herself on 10 April 2001 and was assisted by a Mandarin interpreter. Accordingly, she was aware of the date of the Federal Court hearing which was eight weeks after the directions hearing.
The applicant filed an affidavit dated 14 June 2005 which detailed the circumstances of her original application, her review of the delegate’s decision by the Tribunal and the subsequent appeal to the Federal Court. This affidavit contained references to a migration agent that was assisting the applicant and an oblique reference that he allowed her to “wait for the final hearing”. This did not address the reason for her non appearance on the day of the Federal Court hearing or any subsequent action seeking to have the decision of the Federal Court set aside. The respondent’s argument was that this case was one in which the Court should refuse to entertain the application on discretionary grounds as the applicant comes to the Court with unclean hands due to a failure to prosecute her initial proceedings before the Federal Court: see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) at [80] where McHugh J emphasises that the issuing of writs under s.75(v) of the Constitution and s.39B of the Judiciary Act 1903 (Cth) is discretionary and such relief may be refused because of delay on the part of the applicant and if the applicant does not come with clean hands; F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry at 320 per Lord Denning MR.
The respondent argued that the applicant should not be permitted to proceed in this Court in circumstances where she has already utilised her opportunity to challenge the Tribunal’s decision in the Federal Court. It was submitted that when considering a discretionary matter to which the Court must have regard in this matter the present application should be treated no differently in principle than if it were the same proceedings initiated in the Federal Court. The fact that the substantive merits of the application in the initial proceedings were not finally determined is entirely due to the applicant’s own conduct. On the two occasions that the applicant appeared in this Court when invited to make oral submissions in support of her application, the applicant gave no reference or explanation as to the reasons for her failure to appear before the Federal Court or any subsequent action to set aside those orders based on the explanation for her failure to appear. When asked to comment on this issue the applicant declined to make any submissions.
The other discretionary ground submitted to the Court was the inordinate delay on the part of the applicant to file the application for review after the time limitation had expired. It was submitted that where delays are so inordinate and unexplained there are sound reasons for refusing relief before the Court considers the substantive application: Re Refugee Review Tribunal; Ex parte Aala; VQAN v Minister for Immigration & Multicultural & Indigenous Affairs per Heerey J at [1]-[23] and SAAP. I note that the applicant was placed in immigration detention on 23 February 2005 and that the current application seeking review of the Tribunal’s decision was filed on
4 April 2005. There was nothing before the Court either in the form of affidavit material or oral submissions to explain the delay nor was there any explanation as to why the orders of the Court were not sought to be set aside.
Submissions were also made that the applicant has failed to comply with Court orders made by the Court on 5 May 2005. As I have indicated above, documents were filed although they failed to comply with the Court’s timetable. Various documents were prepared and dated although considerable time had elapsed prior to those documents being filed in the Court Registry. As the applicant was in detention and there did not appear to be any explanation for the delay, I am not willing to consider there was any significance in this failure as it may have been for reasons beyond the applicant’s control by either the operation of the system that operates at the detention centre or lack of assistance available to the applicant.
In the written submissions filed by the applicant in response to the respondent’s application of 16 May 2005, the issue was raised that the proceedings before the Federal Court (N203/2001) sought relief under s.476 of the Act and the particular ground identified in support of that application was bias. As discussed above, those proceedings were dismissed on 5 June 2001 ([2001] FCA 720). It was submitted that the current proceedings did not involve either a claim of bias or a claim for relief under the Act. The claim in the current proceedings before this Court was made under s.39B of the Judiciary Act 1903 (Cth) on the basis that the Tribunal’s decision was null and void. The submissions referred to the authority of Somanader v Minister for Immigration & Multicultural Affairs per Merkel J at [35]. In that case, the first application to the Court was dismissed but seven of the grounds of that application were couched in “very wide terms” [54]. Accordingly, the dismissal of those proceedings decided that none of the grounds gave rise to judicial review [55]. These submissions appeared to have been prepared for the applicant to argue at the summary dismissal hearing as neither party made oral submissions on this issue. As the applicant was provided with additional time and an opportunity to present argument in support of her application before this Court, I did not believe it was necessary to consider these submissions in the changed circumstances. The Court is not considering summary dismissal of the application on any of the grounds sought by the respondent in relation to the application filed on 16 May 2005.
Conclusion
I have had the benefit of written and oral submissions from both parties. However, in respect of the grounds raised in the application filed by the applicant on 4 April 2005, I accepted the submissions by the respondent’s advocate and, as I have indicated in the reasons above, I do not believe that the applicant’s claim can be sustained. Consequently, the application 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 forty-four (44) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 July 2005
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