SZGYN v Minister for Immigration
[2006] FMCA 1412
•6 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGYN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1412 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.03A, 16.05 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 65, 91X, 422B, 425, 425A, 426A, 441A, 441C, 483A United Nations Convention relating to the Status of Refugees 1951 |
| Applicant A135/2002 v Minister for Immigration [2003] FCA 708 Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 DEW v Victorian Railway Commissioner (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Lee v Minister for Immigration [2002] FMCA 279 SAAP v Minister for Immigration [2005] HCA 24 Salemi v Minister for Immigration (1976) 137 CLR 388 Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 SZBCS v Minister for Immigration [2005] FCA 1451 SZCIA v Minister for Immigration [2006] FCA 238 SZEZI v Minister for Immigration [2005] FCA 1195 VAF v Minister for Immigration (2004) 206 ALR 471 Walton v Lampard (1993) 177 CLR 378 Webster v Lampard (1993) 177 CLR 598 Xie v Minister for Immigration [1999] FCA 365 |
| Applicant: | SZGYN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2163 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms K Rose |
| Solicitors for the Respondents: | Phillips Fox Solicitors |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant pay the first respondent's cost of an incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2163 of 2005
| SZGYN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 12 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 21 June 2005 and handed down on 12 July 2005, affirming the decision of a delegate of the first respondent made on 3 February 2005, refusing to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGYN”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
On 18 May 2006, the first respondent filed a notice of motion seeking the following orders:
a)No reasonable cause of action is disclosed in relation to these proceedings; and
b)The proceedings or claim for relief is frivolous or vexatious; and
c)The proceeding or claims for relief is an abuse of process of the Court.
In support of that notice of motion the solicitor for the first respondent, Therese Quinn, filed an affidavit sworn on 16 May 2006.
Background
The decision of Tribunal member Dr Irene O'Connell, reference N05/50700, provides the following background material.
The applicant, who claims to be a citizen of the People's Republic of China (“the PRC”), arrived in Australia on 14 November 2004.
On 10 December 2004, he lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act.
On 3 February 2005, a delegate of the Minister refused to grant a protection visa and on 4 March 2005, the applicant applied to the Tribunal for review of the delegate's decision.(Court Book (“CB”) 59)
At the time of the protection visa application, the applicant was a
42-year-old married man from Heilongjiang City in the PRC.
He stated that he speaks, reads and writes Mandarin. He listed his ethnic group as Chinese and stated that he had no religion. He stated that his occupation prior to his arrival in Australia was that of a manager from 1994 to 2004. He had received nine years of education. Attached to his protection visa application is a statement of claim in which the applicant claims that he is a Falun Gong practitioner who has practised Falun Gong for a number of years. He stated:
…however, in the end of 1999, Falun Dafa was officially regarded as an illegal organisation. The police went everywhere to arrest Falun Dafa practitioners. All kinds of our activities had to be arranged and held secretly. Our human freedom was completely deprived. I have been sent to Falun Gong centre for many times. Last time I was told I will be sentenced to about ten years into prison if I were found practice Falun Gong. I do not think I can give up it because there is nothing wrong with Falun Dafa. Thus I decided to go out of my original country PRC China. On 14 November 2004 I arrived in Australia. I know that Australia is one of the most democratic countries in the world. Australian government always protects their people and looks after their people so I applied to Australian government to protect me as a refugee.
No additional claims were set out in the application to the Tribunal for review.(CB 62)
Tribunals’ Findings and Reasons
In the application to the Tribunal, the applicant set out his claims in a written statement.(CB 45) He said that the Tribunal wrote to him on
27 April 2005 inviting him to a hearing on 17 June 2005.(CB 48-49) The applicant did not reply to the letter nor did he attend the hearing.(CB 50-51) The Tribunal proceeded to make a decision on
21 June 2005 without taking any further action to enable the applicant to appear before it, pursuant to s.426A of the Act.(CB 58-64)
On 12 July 2005, the Tribunal sent a letter to the applicant notifying him of the outcome of its decision.(CB 54)
The Tribunal was not satisfied, on the vague and limited evidence before it, that the applicant practised Falun Gong, was threatened with imprisonment, or feared arrest on his return to the PRC.
Application for review of the Tribunal’s decision
On 12 August 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act, setting out the following grounds:
a)I was tortured and persecuted by my original government because I belong to a particular group - Falun Gong. I am a genuine Falun Gong follower.
b)I face a risk of being jailed if I would go back to my original country.
On 23 November 2005, at the direction of the Court the applicant filed an amended application which does not identify any ground of review, but merely restates the applicant's claims which are set out at [10] above.
Reasons
The applicant appeared self-represented with the aid of a Mandarin interpreter. He was invited to address the Court with any submissions in support of his application. The applicant indicated that he would rely upon his amended application and that he did not have any oral or written submissions to present to the Court. I appreciate the practical difficulties a person in the position of the applicant faces because he is in a strange country whose language he cannot speak and whose legal system he cannot understand. However, as an unrepresented litigant the applicant was offered the opportunity to participate in the Court’s free Legal Advice Scheme and a panel lawyer was allocated to him.
On 14 December 2005, the applicant was required to attend Court for a directions hearing but failed to appear. After a period of grace of approximately 15 minutes, the application was dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) due to the failure of the applicant to appear. The respondent was ordered to provide the applicant with written notice of the orders made on that date and inform the applicant of the applicant's rights under r.16.05(2)(a) of the Rules. On 9 January 2006, the applicant filed an application seeking to have the orders of 14 December 2005 set aside. In support of that application, the applicant filed an affidavit indicating that he had failed to reach the Court at the designated time because he had been caught in a traffic jam and did not arrive until approximately 11.00am. The applicant's late arrival was not brought to the attention of any Court staff and was not revealed until the affidavit was filed on 9 January 2006. The orders of 14 December 2005 were set aside and a new hearing scheduled.
On 27 April 2005, the Tribunal wrote to the applicant indicating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. That letter extended an invitation to the applicant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The "Response to Hearing Invitation" form attached to that letter was not returned to the Tribunal, to indicate whether the applicant did or did not wish to attend the hearing. There was no appearance by the applicant at the hearing on 17 June 2005 at the scheduled start time. There is no record in the Court Book which indicates that the applicant contacted or attempted to contact the Tribunal explaining his absence or requesting a further opportunity to appear.
Part 7, Division 4 of the Act contains provisions for the conduct a review by the Tribunal. Section 422B(1) states:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Section 425(1) of the Act states:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 425A of the Act states:
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 441A(4) of the Act states:
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
The Tribunal letter of 27 April 2005 was addressed to the applicant. Attached to this letter is the registered mail reference number 21951782.(CB 48) There is no evidence that the applicant changed addresses between the date of filing the Tribunal application and the dispatch of the relevant letters.
Section 441C(4) of the Act states:
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document;
Section 426A of the Act states:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
As the applicant did not attend the scheduled Tribunal hearing, the application was decided on the papers before the Tribunal. Based on the material before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason: United Nations Convention relating to the Status of Refugees 1951.
The Tribunal member was unable to be satisfied from the evidence before her that the applicant faces a real chance of persecution should he return to China now or in the foreseeable future.
The circumstances of this case are similar to those in SZEZI v Minister for Immigration [2005] FCA 1195 (“SZEZI”). In SZEZI at [8] and [29], Allsop J found that the applicant did not attend the Tribunal hearing and His Honour then recorded the relevant reasons from the Tribunal decision:
8. The relevant reasons of the Tribunal were as follows:
The applicant [name provided] has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case…how he was able to leave Bangladesh unharmed if, as he claims, he is a risk of [sic] being killed or crippled because of his sexual preference, why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known to others given his claim that his sexual preference would be known if he returned there now.
29.On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s424A (1) by s424A (3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
In SZCIA v Minister for Immigration [2006] FCA 238, another matter in which an applicant did not attend the Tribunal hearing, the Federal Court emphasised the need to make an evaluation of the Tribunal’s reasons. Justice Allsop stated at [9], [11] and [12]:
9.The Tribunal after dealing with the legislation and applicable law referred to the departmental file, which was before the Tribunal. It is clear from the cases dealt with up to and including SZEEU v Minister for Immigration and Multicultural and Indigenous [2006] FCAFC 2 that the departmental file may well contain information the subject of section 424A and within the meaning of that section. However, as I sought to make clear in SZEEU at [208] – [216], and in [216], whether information is the reason or a part of the reason depends upon a judgmental analysis of the reasons of the Tribunal for why the Tribunal came to the view it did.
10. …
11.The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.
12.In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.
As in SZEZI, this was not the reason or part of the reason for the Tribunal’s decision. It was referred to by the Tribunal merely as another piece of information which it considered crucial and intended to discuss with the applicant, had he chosen to attend the hearing.
The reasoning of Allsop J in SZEZI and SZCIA v Minister for Immigration applies to the present case. This Tribunal did not make positive findings of fact about the position of the applicant, but rather rejected his claims because of its inability to be satisfied, on the lack of information before it, that Australia owed protection obligations to him under the Convention. This proposition is clear from the Tribunal’s findings and reasons.(CB 62).
In the written submissions filed by the first respondent and on which Ms Rose indicated that she would rely, the first respondent submits that the claims raised in the application and amended application are so clearly untenable that they cannot possibly succeed. They are entirely merits-related and do not reveal any ground of jurisdictional error. They therefore disclose no reasonable cause of action. The first respondent submits that on the facts, there is plainly no error in the Tribunal decision for the following reasons:
a)The Tribunal invited the applicant to attend the hearing pursuant to s.425(1) of the Act. A letter inviting the applicant to attend was correctly sent to the applicant's address for service with sufficient notice of the hearing.
b)When the applicant did not attend the hearing, the Tribunal decided pursuant to s.426A(1) of the Act to make a decision without taking any further action to enable the applicant to appear before it. There was no error in this approach.
c)The Tribunal found, that given the limited evidence before it, it could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason in the PRC. The first respondent claims that as the application and the amended application disclose no reasonable cause of action, there is no jurisdictional error in the Tribunal decision. The application should be summarily dismissed in accordance with r.13.10 of the Rules.
The first respondent submits that it accepts, as a matter of principle, that a summary order which prevents a party from pursuing a claim according to the ordinary procedural course should be made only in a very clear case: DEW v Victorian Railway Commissioner (1949) 78 CLR 62 at 91, Salemi v Minister for Immigration (1976) 137 CLR 388; Walton v Lampard (1993) 177 CLR 378. The first respondent also drew the Court's attention to Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 which states “an exceptional power which ought to be sparingly exercised and only in exceptional circumstances”. The power to summarily dismiss an application on the basis that no reasonable cause of action is disclosed is appropriate when the claim is "so clearly untenable that it cannot possibly succeed": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Webster v Lampard (1993) 177 CLR 598; Lee v Minister for Immigration [2002] FMCA 279; Applicant A135/2002 v Minister for Immigration [2003] FCA 708; Applicant A163 of 2002 v MIMIA & Ors [2003] FCA 677; Xie v Minister for Immigration [1999] FCA 365.
The Tribunal decision under the heading “Findings and Reasons” clearly articulates the reason for not accepting the applicant's claims:
The tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted. On the very limited, vague and unreliable evidence available the Tribunal cannot be satisfied about the Applicant's claim that he participated in Falun Gong activities in China and that he was threatened with imprisonment by the Chinese authorities and that he feared arrest on his return to China.
Accordingly the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meanings of the Convention. (CB 62)
The relevant statutory regime requires a decision maker to reach a level of satisfaction before a visa can be granted: s.65 of the Act. In the case of a protection visa, at least one criterion to be met is that contained in s.36(2) of the Act which is a reference to Article 1A(2) of the Convention. The Tribunal decision shows that the Tribunal member understood the applicant's claim in this regard, but could not be satisfied to the level necessary, that the applicant met the relevant statutory requirement.
SZBCS v Minister for Immigration [2005] FCA 1451 is an appeal from the Federal Magistrates Court to the Federal Court. That applicant, as in this case, did not attend the Tribunal hearing. Again, there was insufficient information to enable the Tribunal to reach a level of satisfaction that the applicant fell within Australia’s protection obligations under the Convention. In this case, I am satisfied that there was insufficient information for the Tribunal to reach a level of satisfaction required by the Act.
Conclusion
As the applicant is a self-represented litigant, I acknowledge the additional obligation placed on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I have reviewed the contents of the Court Book and reconsidered the Tribunal's decision in light of that obligation.
I am satisfied that the Tribunal undertook its role correctly and that no jurisdictional error is identified on the face of the documents before me. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 29 September 2006
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