SZGHX v Minister For Immigration and Anor (No.2)

Case •

[2005] FMCA 1516

•

7 October 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHX v MINISTER FOR IMMIGRATION & ANOR (No.2) [2005] FMCA 1516
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China – no reviewable error – privative clause decision – where Applicant did not attend RRT hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 475A.

SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668
SBBF v Minister for Immigration and Multicultural Affairs [2002] FCAFC 358
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1801
Abebe v the Commonwealth; Re Minister for Immigration and Multicultural Affairs [1999] HCA 14

Applicant: SZGHX
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 1253 of 2005
Delivered on: 7 October 2005
Delivered at: Sydney
Hearing date: 7 October 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Mr Chami
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. Leave to join Refugee Review Tribunal as a Second Respondent in these proceedings.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,250.00 plus Court costs of $288.00. I allow one (1) month to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1253 of 2005

SZGHX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application to set aside a judgment made on 17 August 2005. The Applicant relies on Rule 16.05A of the Federal Magistrates Court Rules 2001.This sub-rule permits the Court to vary or set aside its judgment or order after it has been entered, if the order is made in the absence of a party.

  2. In this case, the original application was listed for final hearing on


    17 August 2005 at 12:00pm.  The Applicant did not attend the hearing, nor did he send any message to the Court explaining his absence.  After waiting until 12:20pm to see if the Applicant had just been delayed, I commenced the hearing on an ex parte basis. I dismissed the application pursuant to Rule 13.03A (d) and in the alternative, pursuant to Rule13.03A(c), due to the absence of the Applicant from the hearing. The reasons for that decision are set out in full in the following paragraphs.

  3. “This is an application for the review of a decision of the Refugee Review Tribunal made on 29th March 2005 and handed down on 19 April 2005. The decision of the Tribunal was to affirm a decision that the delegate of the Minister made on 17 January 2005 refusing an application for a protection visa. The Applicant, a citizen of the People’s Republic of China, arrived in Australia on 3 November last year and lodged an application for a protection visa on 8 December.  The delegate of the Minister refused the application for a protection visa and on 1 February this year, the Applicant applied to the Refugee Review Tribunal for a review of that decision.

  4. The Tribunal wrote to the Applicant on 16 February informing him that it was unable to make a favourable decision on the material before it and invited the Applicant to attend a hearing. That hearing was to be held on 21 March this year. The Applicant did not respond to the invitation and the Refugee Review Tribunal took the decision to exercise its powers under s.426A of the Migration Act to proceed to decide the matter without giving the Applicant any further opportunity to attend the hearing.

  5. The Tribunal member read through the Applicant’s claims, which, as Mr Chami for the Respondent pointed out, were contained in a half page, typed statement submitted with his visa application. The Tribunal summarised those claims in its decision. Basically the Applicant claimed a well-founded fear of persecution because he was a member of the organisation known as Falun Gong and had been a member since 1997. The organisation was later banned by the Chinese authorities and the applicant complained that in May 2004 the police came to his home where he and other members were involved in the practice of Falun Gong and detained and tormented the parties physically.

  6. The Applicant was eventually released after representations by his family members. He obtained a temporary business visa in late October 2004 and he arrived in Australia by virtue of that visa. The Refugee Review Tribunal noted that the Applicant had not attended the hearing, despite being given an opportunity to do so, but did not decide the application on that basis

  7. The Refugee Review Tribunal based its decision on:

    a)The vagueness and incompleteness of the Applicant’s claim, which led to the Tribunal not being satisfied about:

    i)the Applicant’s relevant personal circumstances;

    ii)the genuineness and nature of his claimed adherence to Falun Gong;

    iii)particulars of his alleged arrest in May 2004;

    iv)the duration of his detention and what he had done between release from detention and the time he left China in November 2004;

    v)the reason why he obtained a passport in 2002 and a visa to enter Malaysia in 2003;

    vi)his intentions in relation to his practise of Falun Gong and what fears that he had if he returned to China;

    b)The Tribunal was not satisfied that he was a Falun Gong practitioner or that he had attracted the adverse attention of Chinese authorities in the past or that there were other past or current circumstances giving rise to a well founded fear of persecution within the meaning of the convention.

  8. The Applicant filed his Amended Application on 26th July 2005.


    It made claims of bias, of failing to assess the chance of persecution on the Applicant’s return to China, not providing a rational or logical foundation for refusing his application and failing to properly comply with the provisions of the Migration Act and failing to consider his claims.

  9. The fact is that the Applicant provides no evidence whatsoever of any of these matters, notwithstanding the fact that he claimed in his Amended Application that he would provide more information.  He has not done so.  In particular, it is difficult to see how he could claim that the member was biased when he did not even attend the hearing of the Tribunal and there is nothing from the decision that would indicate that there was any bias expressed.

  10. I have read through the decision of the Refugee Review Tribunal.  I am unable to discern any jurisdictional error and it appears to me regrettable that the Applicant did not attend the hearing of the Refugee Review Tribunal.  Had he done so, he may well have been able to give evidence to satisfy the Tribunal as to the genuineness of his claims. 
    He has provided no evidence to the hearing to indicate any reviewable error by the tribunal.

  11. I am satisfied that there is no reviewable error and that the decision of the Refugee Review Tribunal is a privative clause decision within the meaning of the Migration Act.”

  12. I indicated then that I proposed to dismiss the application, pursuant to Rules 13.03A (d) and in the alternative, pursuant to Rule 13.03A(c). 


    I ordered that the Applicant should pay the Respondent’s costs, which I fixed in the sum of $3,000.

The Application to set aside the Orders

  1. The Applicant filed an application on 12th September 2005 seeking that the orders of 17 August should be set aside. He states in his application that:

    I could not attend the hearing on that day and I could not change my hearing day.

  2. He has accompanied his application with an affidavit, in which he affirms:

    I lodged my application for review of my application for a protection visa to Federal Magistrates Court because I found some jurisdictional errors with the RRT decision.  The Tribunal Officer did not believe that I would face persecution on my return to China.  He had bias against me and refused to consider my application any further.  I could not attend the hearing and had special reasons which was beyond my control.  I believe that the decision of the Federal Magistrates Court should be set aside, so I have decided to lodge my application to set aside the order made on 17 August 2005.  There are jurisdictional mistakes with the way the Tribunal considered my application.  I lost the chance of attending the Court and I lost the chance of arguing about jurisdictional error made by RRT.  I sincerely hope that I can have a chance at getting my application reviewed at RRT as I cannot lodge another application to DIMIA and I believe that I meet the criterion for refugee status.

  3. The Applicant has attended Court today for the hearing of his application to set aside the earlier orders.  He is not legally represented.  He has had the assistance of an interpreter in Mandarin language. 


    Mr Chami, for the Respondent Minister, opposed the application to set aside the orders.

  4. I asked the Applicant why he did not attend the Court hearing on


    17 August this year.  He told the Court that he did not know the time of the hearing. I pointed out that he had attended the Court when the matter was listed for hearing by a Registrar. He replied that he had recorded the wrong date.  He went on to say that when he checked the date on the calendar, he saw that there was a notification on the calendar, so he thought it was a festival day that day.  Consequently, he did not attend Court.  The next day, 18 August he realised his mistake.  He told the Court that he knew that he had 28 days to decide whether he would appeal or not.  He said he prepared his application to set aside the orders himself, but asked somebody to translate it into English for him.

  5. When asked why he did not attend the hearing of the Refugee Review Tribunal, he told the Court that he did not feel very well that day.  He agreed that he did not attempt to contact the Refugee Review Tribunal to advise them of his illness. He said that he had only just come to Australia and didn’t know people and did not have many friends.

  6. I then proceeded to ask him about his substantive application for review of the decision of the Refugee Review Tribunal.  I referred him to the Amended Application and he told the Court that he believed the Refugee Review Tribunal had made a wrong decision because they did not believe he was a Falun Gong practitioner and a refugee.

  7. The Applicant set out five grounds in his application.  First, he claimed that the Tribunal had bias against him and failed to consider the chance of his persecution on his return to China.  In a reply to a question from the Court, the Applicant said that he believed that the Tribunal was biased because the Tribunal did not believe he was a Falun Gong practitioner. He believed that the material that he had provided to the Tribunal were sufficient to make out his case.

  8. The second ground in the Amended Application was this:

    The Tribunal failed to provide evidence to support its decision. 


    It did not provide me adequate particulars and independent information for its decision.

    I asked the Applicant to explain further about that ground. He told the Court that he thought, again, that the material that he had provided to the Department of Immigration and therefore to the Tribunal, was sufficient to establish that he was a refugee.  I pointed out to him that the Tribunal did not rely on any independent information in making its decision and he did not reply to that comment. At one stage the Applicant told the Court that he had not read the decision because he cannot read English, nor had he had it translated.  When pressed, he then said that he had asked somebody to translate the decision for him.

  9. The third ground in the Amended Application was this:

    The Tribunal did not provide a rational or logical foundation for refusing my application for a protection visa.

    The Applicant did not provide any further details about this ground to the Court.

  10. The fourth ground is this:

    The Tribunal did not observe Migration Act 1958 properly to making the decision.

    When asked in what way the Tribunal had not observed the Migration Act properly, the Applicant reiterated his claim that he believed that the reasons that he’d provided were sufficient.

  11. The fifth ground is this:

    The Tribunal failed to consider my claims.

    When asked to expand on this, the Applicant said that the decision does not contain a consideration of his claims and that the Tribunal did not consider his claims to be a Falun Gong practitioner and that he wanted a refugee visa. The Applicant did not wish to make any further submissions to the Court.

  12. I have considered the matters put to me by the Applicant today.  I am not satisfied that his reasons for not attending Court on 17 August 2005, when the matter was listed for hearing, are an adequate explanation for his failure to appear.  I note from the Court records that he had appeared before the Registrar on 31 May 2005, with the assistance of a Mandarin interpreter. It was on that day that the application was listed for final hearing at 12:00pm on 17 August 2005.  The Applicant had also prepared and filed an Amended Application on 26 July 2005 and it would appear that he was aware that his hearing was approaching.

  13. The Applicant did not produce the calendar which he claimed to have looked at to show how he could have believe that 17 August this year was a festival day or perhaps a public holiday.  My own reading of the calendar shows that 17 August was a Wednesday and there is nothing to distinguish it from any other Wednesdays that month.

  14. The Applicant did not attend the hearing of the Refugee Review Tribunal. He said that he was not well but he did not provide any certificate relating to his health nor did he attempt to contact the Tribunal. The Applicant’s stubborn insistence on the fact that the information that he had provided, both to the Department of Immigration and Multicultural and Indigenous Affairs and to the Tribunal was sufficient to establish his claim to refugee status, cannot be accepted.

  15. I commented when the matter was before the Court on 17 August that the Applicant’s claims were contained in a half page, typed statement submitted with his visa application.  The Applicant claims that that half page, typed statement was sufficient. He was aware that the Department of Immigration and Multicultural and Indigenous Affairs did not consider it to be sufficient and refused his application for a protection visa.

  16. He did not provide any further information to the Refugee Review Tribunal.  The Tribunal wrote to him on 16 February 2005, saying:

    The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

    It must have been clear to the Applicant by then that both the Department and the Refugee Review Tribunal had considered the half page of reasons that he had provided and did not find that information sufficient to decide that he was a refugee. That is why the Tribunal invited him to attend a hearing to give evidence. The Applicant chose not to provide any further information and did not attend the hearing because, as he said, he did not feel very well that day.  He did not seek a postponement of the hearing on the basis of his illness.  It was hardly surprising that the Tribunal refused his application.

  17. Nevertheless, I have considered the matters contained in the Applicant’s Amended Application filed on 26 July 2005 in which he sets out the grounds for relief. As far as bias is concerned, as the Applicant did not attend the hearing of the RRT, he relies solely on the Tribunal decision to establish his claim of bias.  It is well established in decisions of the Federal Court in SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 and particularly the Full Court of the Federal Court in SBBF v Minister for Immigration and Multicultural Affairs [2002] FCAFC 358 and SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, that an allegation of bias must be clearly alleged and particularised and strictly proved.

  18. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme and this is especially so where all that the Applicant relies upon is the written reasons for the decision under review. As I said on 17 August 2005 and I say again today, it is difficult to see how the Applicant could claim that the member was biased when he did not even attend the hearing of the Tribunal and there is nothing from the decision that would indicate that there was any bias expressed.

  19. Turning to the second ground of failure to provide evidence to support its decision and not providing adequate particulars of independent information, I reject that ground as well.  It is well established that it is not the task of the Tribunal to make the Applicant’s case for him or her.  I refer to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1801 and also Abebe v The Commonwealth; Re Minister for Immigration & Multicultural & Indigenous Affairs [1999] HCA 14. It is up to the Applicant to provide evidence to support his or her claim.

  20. The Applicant’s claim that the Tribunal did not provide him with adequate particulars of independent information must be rejected as it is quite clear from the decision that the Tribunal did not rely on any independent information.  It based its decision wholly and solely on the information provided by the Applicant and found that information wanting.

  21. Turning to ground 3, the failure to provide a rational or logical foundation for refusing the application for a protection visa, which is a ground upon which the Applicant chose not to make any further submissions.  This ground must clearly be rejected because, as will be seen from pages 64 and 65 of the Court Book, in its findings and reasons, the Tribunal, in its letter of 16 February 2005, advised the Applicant that the available material was insufficient for it to make a favourable decision.  The Tribunal went on to say that what it had before it was little more than:

    A vague and incomplete account contained in the Applicant’s protection visa information. It has not had the opportunity through a hearing or other means, to obtain further information to determine the veracity of the applicant’s claims and their relevance to his application for refugee status.

    The Tribunal went on to set out seven different areas of information where it did not have sufficient information to satisfy itself.  It is quite clear from the decision that the Tribunal has provided rational, logical and obvious reasons for rejecting the Applicant’s claim.

  22. As to the Applicant’s ground number 4, “the Tribunal did not observe the Migration Act properly”, must be rejected as he has provided no evidence in support of that, other than to reiterate his claim that he believed that the reasons that he gave were sufficient.

  23. There is no evidence before me that the Tribunal was responsible for any breach or any failure to observe any provisions of the Migration Act. The Tribunal complied with s.425 of the Migration Act when it invited the Applicant to attend a hearing and the Tribunal was within its rights, under s.426A of the Act when it decided to make a decision on the basis of the material before it without giving the Applicant a further opportunity to attend. Where an applicant does not attend a hearing of the Refugee Review Tribunal without making any contact with the Tribunal to seek a postponement of the hearing for any valid reason – and in this case the Applicant did not contact the Tribunal at all – in my view, it is quite obvious that the Tribunal has every right to exercise its power under s.426A.

  1. Similarly, the Applicant’s fifth ground, that the Tribunal failed to consider his claim, cannot be sustained. The Applicant has described his claim as that he was a Falun Gong practitioner who sought a protection visa.  The Applicant insisted that the decision did not show any consideration of those basic facts.  In my view, the recital by the Tribunal of the Applicant’s claims and evidence at pages 62 and 63 of the Court Book and the Tribunal’s findings and reasons at page 64 and 65 of the Court Book indicate very clearly that the Tribunal considered those exact claims but was not satisfied that the Applicant (a) was an adherent to Falun Gong, or (b) that he had attracted the adverse attention of Chinese authorities in the past for that reason or any other reason, or (c) that there are any other past or current circumstances which would give rise to a well-founded fear of persecution within the meaning of the Refugees Convention.

  2. In my view, the Applicant’s claim for review of the decision of the Refugee Review Tribunal is entirely without merit. His application to set aside the orders of this Court of 17th August 2005 is entirely without merit.  The claim that he looked at the date on the calendar and formed the view that the day was some sort of a festival day or public holiday is an unconvincing claim, totally unsupported by anything remotely resembling any evidence whatsoever.

  3. I note that the Applicant has brought this application with the benefit of having his filing fee waived.  In my view, such a meritless application does not justify in retrospect the Applicant taking up the time of the Court, which has included the services of a Mandarin interpreter for a period of in excess of an hour, without having to pay for it.

  4. I dismiss the application.

  5. There is an application for costs to the sum of $1,250.00.  In my view, this is a reasonable amount sought by the Respondent’s solicitors. 


    I note too that the Applicant has been wholly unsuccessful in his claim and in my view the Respondent should be entitled to a costs order.

  6. I also note that when the Applicant lodged his application to set aside the order, that the filing fee of $288.00 was waived.  In my view, noting the lack of merit of the application, that waiver should be re-visited.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date: 14 October 2005

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