SZGDP v Minister for Immigration
[2008] FMCA 56
•22 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 56 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZGDP. |
| Migration Act 1958 (Cth), s.91X |
| Applicant A169/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCAFC 94 NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 |
| Applicant: | SZGDP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3209 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 2 November 2006 dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3209 of 2006
| SZGDP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a citizen of the People’s Republic of China and was born in 1966 in Fuqing. He states that he attended Yinxi Primary School from 1972 to 1978 and that he is currently unemployed but was a businessman before coming to Australia.
The applicant arrived in Australia on 11 September 2004 and applied for a Protection (Class XA) visa on 5 October 2004. A delegate of the first respondent decided to refuse to grant the visa on 17 December 2004 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. The Tribunal affirmed the delegate’s decision on 15 March 2005. That decision was set aside by the Federal Court of Australia on 10 May 2006 and the matter was remitted to the Tribunal.
The second Tribunal affirmed the decision not to grant the applicant a protection visa. This decision (reference number 060582907) is the subject of the application before this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into the evidence.
The amended application filed in this Court on 24 January 2007 contains three grounds:
1. The RRT ignored the fact that I was injured in the head and thus cannot fully remember some things.
2. I have not yet received some documents (Greenbook) and legal advice letter.
3. The RRT disregards the fact that I still practise Falun Gong and that this will threaten my safety if I go back to China.
None of these grounds are particularised and the applicant has not filed any affidavit evidence in support of these claims. Furthermore, the applicant has not filed a transcript or tapes of the hearing.
Consideration
At the first Court date, the applicant indicated that he wished to participate in the independent legal advice scheme for unrepresented applicants in refugee matters. He was allocated a panel adviser and granted leave to file an amended application giving complete particulars of each ground of review relied upon by 23 January 2007. The applicant received advice from the panel adviser and filed an unparticularised amended application. In ground two, the applicant complains that he had not received the Court Book or any correspondence from his panel adviser.
The applicant confirmed that he had not prepared brief written submissions or a list of authorities as required. When invited to make oral submissions, he claimed that he had not received any information from the panel advice scheme. The applicant responded affirmatively when asked whether he still resided at the same address as that provided in the panel advice form signed by him on 15 November 2006. A copy of a letter from the Court Registry sent to the confirmed correct address was then shown to the applicant.
This letter contains the proceedings number, the name, address and telephone number of the lawyer allocated and the following information:
This lawyer should contact you after they have received a copy of the documents held by the Minister (also known as the “Green Book”) and a tape recording of the RRT hearing. If you have not been contacted by the lawyer within three weeks after you received your copy of the Green Book, please phone the lawyer directly or Golda Dela Cruz at the Court on 9230 8602. If you change your address you must advise the Court and the lawyer of your new address and telephone number.
I confirm that the lawyer will not be charging you for the advice given on your application to the Federal Magistrates Court as these costs are being met under the advice scheme. This scheme, however, does not cover the costs of any other legal representation.
When the applicant was asked whether he received a copy of that letter, he said that he had problems with his memory and could not confirm receipt of the letter or any action he took to obtain the advice. In addition, the applicant was also unable to confirm receipt of the “Green Book” (Court Book). The applicant did not accept a further invitation to make any other submissions in support of his application.
Ground one
The RRT ignored the fact that I was injured in the head and thus cannot fully remember some things.
Ms. Sirtes, for the first respondent, submits that factual challenges by an applicant cannot establish grounds for jurisdictional error even if the Tribunal’s factual findings are incorrect: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [27]-[28] per Black CJ, Sundberg and Bennett JJ:
27 In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] a Full Court said:
"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason."
28 The relevant contention or issue before the Tribunal concerned the integration of the Guard Battalion with the Sri Lankan Army. That matter was squarely addressed. Assuming that the Tribunal overlooked the training evidence (which, as we have said, is a large and difficult assumption to make), that was but a failure to advert to evidence which, if accepted, might have led it to make a different finding of fact: cf WAEE above. It is not a jurisdictional error to make a wrong finding of fact. However, as we have said, we do not accept that the Tribunal overlooked the training evidence. It may well be that it did not dwell on it because it considered it irrelevant to the question whether the Guard Battalion was integrated into the Army in the relevant sense. If that is the reason, we think it well based.
Ms Sirtes also refers to ApplicantA169/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ:
31 A further aspect of the contentions should be observed about this issue. It was argued that it would amount to jurisdictional error if the Tribunal made a wrong finding of fact, namely that the ‘increased vigilance of the authorities [in the case of] revived hostilities would be sufficient to meet the appellant’s need for protection’. The argument ran that there was insufficient evidence to support that finding. The contention was based upon the observations of Lord Clyde in Reid v Secretary of State for Scotland [1998] UKHL 43; [1999] 2 AC 512 at 541 in which his Lordship indicated that jurisdictional error may be demonstrated through a legal deficiency including the absence of evidence or the insufficiency of evidence to support the decision. Kirby J in Re Minister for Immigration & Multicultural Affairs ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at 1193, [167] (Applicant S20/2002) suggested that the availability of constitutional writs in Australia should adapt to afford protection as comprehensive as that now regarded as available in England. We do not think the judgments of the other judges in Applicant S20/2002 support that proposition. There may appear circumstances in which a decision of an administrative decision-maker appears so unreasonable that no reasonable decision-maker could have come to it. In that circumstance, jurisdictional error may be established if such a conclusion is reached, because it is then inferred from the nature of the decision that the administrative decision-maker applied the wrong legal test in making the decision or was not, in reality, satisfied in respect of the correct legal test in making the decision: see e.g. Applicant S20/2002 per Gleeson CJ at 1168, [9], and per McHugh and Gummow JJ at 1171-1172, [35]-[36]. Indeed, it is plainly established by the High Court that there is no jurisdictional error simply in making a wrong finding of fact: see e.g. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. See also per Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 187.
Finally, Ms Sirtes relies on NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ.
It is submitted that although the applicant is displeased that the Tribunal concluded that he was not a credible witness, this does not constitute a ground for jurisdictional error.
Ms Sirtes further submits that the Tribunal accurately stated that there was no medical evidence before it to corroborate the applicant’s assertion that he suffered from a head injury which caused forgetfulness. The assertion arose from the applicant’s response to the Tribunal which stated that “my memory became bad and the doctor said I got hypomnesia”. It is submitted that the Tribunal subsequently found:
On the basis of the available information and in the absence of any supporting medical evidence, the Tribunal does not accept that the applicant suffered from any clinical condition which the Tribunal needs to take into consideration in assessing his claims. (CB 122.8)
I agree with the submission made by Ms Sirtes that the Tribunal considered the evidence available and came to a measured and logical conclusion based on it. The claim in ground one cannot be sustained and should be rejected.
Ground two
I have not yet received some documents (Greenbook) and legal advice letter.
At the first Court date, the first respondent was ordered to file and serve a bundle of relevant documents (Court Book) by 4 December 2006. The Court Book was filed in the Court Registry on 5 January 2007. The Registry correspondence to the applicant and the panel adviser was dated 16 November 2006, a day after the first Court date. No explanation was given by Ms Sirtes for the delay. However, I note that at the directions hearing of 15 March 2007 this issue was not ventilated by either party or a request for alternative orders because of the delay. The applicant has stated that he cannot remember whether he received the correspondence or responded to it. A review of the Court file indicates that he neither filed further documents nor contacted the Registry about his copy of the Court Book or the panel advice.
Both sets of orders in respect of preparation for the final hearing granted the parties leave to request that the matter be listed on five days’ notice. In the circumstances, although the orders of this Court have not been strictly complied with, I am not satisfied that the applicant has been disadvantaged or denied the opportunity to seek relief regarding the delay in filing of the Court Book. The applicant was in possession of the Tribunal decision at the time he filed the Court application on 2 November 2006.
Ground three
The RRT disregards the fact that I still practise Falun Gong and that this will threaten my safety if I go back to China.
Ms Sirtes submits that the applicant’s claim that the Tribunal “disregards the fact that I still practise Falun Gong” factually misconceives the finding. The applicant gave oral evidence to the first Tribunal on 9 March 2005 where a range of issues in respect of his claimed adoption of Falun Gong in China and Australia was canvassed. This evidence included his alleged detention, discussion of the philosophy behind Falun Gong and the daily exercises. The applicant appeared before the second Tribunal on 28 August 2006 and gave oral evidence. At the second hearing, the Tribunal sought clarification in respect of a number of issues initially raised at the first Tribunal hearing and sought the applicant’s explanation for inconsistencies in that evidence.
Subsequent to the second Tribunal hearing, the Tribunal issued an “Invitation to Comment on Information” letter on 4 September 2006 which set out contradictions between his visa application and his evidence at both Tribunal hearings. The applicant’s response dated 8 September 2006 was received by the Tribunal on 21 September 2006. The Tribunal found that the applicant was not a credible witness and that he had fabricated some his claims in order to support his visa application. This was the overall finding of the Tribunal based on all the material before it.
The applicant’s third ground appears to isolate a single issue from a group of findings by the Tribunal. He claims that the Tribunal rejected his total claim because in the time between the first and second hearing, he acquired knowledge of Falun Gong in particular the five exercises, the title of its main text and its philosophical basis. However, the thrust of the Tribunal’s overall finding was that it did not accept that the applicant was a Falun Gong practitioner or that he had ever practised Falun Gong in China or Australia. The Tribunal also did not accept that the applicant was ever involved in Falun Gong activities in either China or Australia or that he was involved in a range of activities promoting Falun Gong philosophy to his relatives or fellow workers.
Ms Sirtes submits that the applicant’s allegation that s.91R(3) of the Migration Act 1958 (Cth) (“the Act”) would impact on his safety in China is neither relevant nor capable of constituting jurisdictional error. The person drafting the ground misunderstands the operation and purpose of this provision of the Act. I am satisfied that ground three is based on a misunderstanding of the Tribunal’s findings and cannot be sustained. This ground should be dismissed.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. It was clear that did not understand the issues before the Court or how he should present his case. He appeared to rely on material prepared by an unidentified third party with limited understanding of the operation of the Act. The applicant did not identify an authorised recipient in his review application. However, the post office box given as his mailing address is one commonly seen in many applications in this Court. The assistance of the unknown third party has not been of any practical assistance to the applicant. Ms Sirtes, appearing for the first respondent, assisted with written and oral submissions in response to the application and I am satisfied that all the issues identified in the application have been satisfactorily addressed in those written submissions. The Court is also obliged to independently consider whether any argument based on the material, that is the Court Book and in particular the Tribunal decision, can support a claim of jurisdictional error. It is not apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision making process. Consequently, the application should be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 January 2008
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