SZHIJ v Minister for Immigration
[2006] FMCA 274
•6 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHIJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 274 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no review or error – application dismissed. |
| Migration Act 1958 (Cth), ss.91X, 424A, 483A Judiciary Act 1903 (Cth), s.39B |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 |
| Applicant: | SZHIJ |
| First Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2943 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondent: | Ms T Quinn of Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is 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 |
SYG2943 of 2005
| SZHIJ |
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) (“the Judiciary Act”), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 13 October 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 15 September 2005 and handed down on 6 October 2005, affirming the decision of the delegate of the first respondent (“the delegate”) made on 4 June 2005 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZHIJ”.
The applicant has not sought to join the Tribunal as a party, and given that is an exercise of the Tribunal’s jurisdiction that is under review, I make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].
Background
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 8 January 2005. On 11 February 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 4 June 2005 the delegate of the Minister refused to grant a protection visa and on 30 July 2005 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 76).
In support of the application for a protection visa, the applicant provided an undated Statement (CB 36-37) in which he claimed that:
a)He was born in China. He was persecuted in China because he went to the underground church. He has been a Catholic since childhood. His parents and brother are all Catholics and members of “our underground churches”. In his province, there are many underground churches.
b)In mid-2004, their priest died and there was a big gathering to farewell him. Information of the gathering was leaked to the public and on 4 June 2004 during prayers for the priest, thousands of police and military soldiers surrounded the participants. He was one of the main leaders in his village. About twenty participants including the applicant were separately detained by the police. The police questioned the applicant about the underground church and whether he held anti-authorities views. He did not disclose anything. He was beaten, subjected to electric bars and handcuffed.
c)Forty days later, he was released without charge but was warned. Four other detainees and the other fifteen were sentenced to life imprisonment.
d)He decided to leave China because as a sincere Catholic he would not stop himself from following God. His relatives made arrangements for him to leave China.
In the application for review by the Tribunal, the applicant claimed that his other name was “[a Japanese name], DOB dd/10/1969 Japan”, that his citizenship was Chinese and that his passport had been confiscated by the Department (CB 79).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Ms T Quinn and I adopt paragraph six of those submissions:
6.The Tribunal was not satisfied as to the applicant’s claims, because he had not provided any corroborative evidence in their support, or attended at the hearing despite being put on notice that the Tribunal was unable to make a favourable decision on the papers alone. It expressed confusion about whether the applicant was from China or Japan, noting that the applicant had not provided an explanation for his two identities. It also noted that it was satisfied that the applicant was not genuine about pursuing his case, as he had declined to attend the hearing.
6.1It found that it was not satisfied that the applicant was born in China, or that he was a Chinese citizen.
6.2It was not satisfied that the applicant or any family member was Catholic, or that they were involved in any underground church activities.
6.3It was not satisfied that the applicant had ever been detained because of his religion.
6.4It was not satisfied that the applicant had ever, or would ever, suffer any of the harm claimed.
Application for review of the tribunal’s dcecision
On 13 October 2005, the applicant filed an application for review under s.39B of the Judiciary Actsetting out the following grounds:
AI am a citizen of china who claim to have a well-founded fear of persecution for reason of my religious beliefs in china under the refugee convention as amended by the Refugee protocol.
BThe Tribunal committed a juristional error of law without the Applicant to attend the hearing day to give oral evidence and present arguments at a hearing on 6 Octor 2005.
CThe Tribunal member made a such statement decision on conclusion without the Applicant hasn’t provided any corroborative evidence supportive of my claims without having the opportunity to explore the claim with me at a hearing. The Tribunal Member reject the Applicant as a refugee. (Copied without amendment – errors included).
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the tribunal’s power: Craig v State of South Australia [1995] HCA 58 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs[2003] HCA 26.
Reasons
The applicant appeared self-represented with the aid of a Mandarin interpreter. He attended directions hearing on 16 November 2005 and consented to short minutes of order at that time which included the filing and serving of an amended application, together with any evidence which he proposed to rely upon at the hearing. However, this direction was not complied with by the applicant, nor were there any written submissions filed and served prior to the hearing. The applicant had been offered the opportunity to participate in the Federal Court’s “RRT Legal Advice Scheme”, which he accepted. A panel advisor attended the Villawood Detention Centre for a conference with the applicant in order to provide legal assistance.
The applicant indicated to the Court that he would rely on his original application which he would supplement by oral submissions. The applicant read from prepared notes which were translated to the Court. However this consisted of material previously provided to the Department in his written statement when applying for the original protection visa. In addition, the applicant traced the circumstances of his visa application to the Department, the refusal by the delegate, the subsequent application to the Tribunal for review of the delegate’s decision and his attendance at the Tribunal when the decision was delivered. The applicant made no submissions in respect of any error conveyed in the Tribunal decision other than the broad assertion that it was incorrect.
In his submissions, the applicant set out the circumstances leading to the authorities treating him as a person of interest, which resulted in his wife losing her job and the applicant the sole breadwinner for five people. This led to the decision to leave China and come to Australia. No explanation was provided as to why he maintained two identities when arriving in Australia. No reference was made to the Japanese passport that he was carrying on his arrival in Australia, which was retained by the Department.
The applicant did raise the claim that he was denied the opportunity to attend the Tribunal hearing and this denied him the opportunity to explain the circumstances of his situation. The applicant raised the issue of his agent responding to the Tribunal’s invitation to attend the hearing without informing the applicant. His agent advised the Tribunal that he did not wish to attend. The applicant was taken to the Court Book and the respective documents contained therein which indicated that all correspondence had been addressed to the applicant personally at his nominated residential address and that none of the correspondence between the applicant and the department disclosed the existence of an agent. The protective visa application (CB 1-26), the Tribunal application review (CB 57-60) and none of the correspondence forwarded by the Department or the Tribunal make any reference to the existence of an agent. The applicant was supplied with the Court Book on 30 November 2005, which contained that documentation but there is nothing in the Court file that indicates that an agent was involved. The response to hearing invitation (which was attached to the letter from the Tribunal dated 25 August 2005) was returned by the applicant to the Tribunal containing his name, address and signature, together with the election that he did not wish to attend the hearing.
The applicant claimed that he knew nothing of the letter or the associated response. He stated that the first correspondence received from the Tribunal was a letter dated 16 September 2005, which indicated that the decision would be handed down on 6 October 2005 at 2.30pm. The applicant in his oral submissions acknowledged that he had attended the handing down of the decision on 6 October 2005 and became aware of the decision at that time.
The Court Book revealed that the applicant initially recorded his residential address with an incorrect spelling. This was identified by the Department who corrected the error and all subsequent correspondence was sent to the correct address. When the applicant filed his application for review before the Tribunal, the response from the Tribunal was returned by the postal authority and marked “left address/unknown”. However, previous and subsequent correspondence appears to have been received by the applicant at that same address. Although attempts were made during this hearing to clarify this apparent problem, the applicant was unable to provide any explanation.
The letter dated 25 August 2005 from the Tribunal indicated that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone and extended an invitation to the applicant to attend a Tribunal hearing to give oral evidence and present arguments in support of his claim. The invitation was also extended to any other witness that the applicant wished to bring to the hearing to assist him in the presentation of his claims. The letter also contained a warning that if the applicant did not respond to the correspondence or failed to attend the hearing; in the absence of any request to postpone, the Tribunal could make its final decision without any further notice.
The response to hearing invitation which contains the applicant’s file number, name, address and signature dated 12 September 2005, is clearly marked that he did not want to attend the hearing. Given the fact that the applicant had not provided anything to back his claims and had decided not to attend the Tribunal hearing, the Tribunal decision that it could not be satisfied of the truth of his claim was inevitable.
In SJSB v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 per Ryan, Jacobson and Lander JJ at [15] – [16], concluded that a legislative regime which requires a positive state of satisfaction as to whether protection obligations are owed, mandated a refusal decision if that state of satisfaction is not reached. (See also NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 per Beaumont, Merkel and Healy JJ at [14] to [15]) As s.65 of the Act and Minister for Immigration Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction (also Minister for Immigration & Multicultural Affairs v VSAF [2005] FCAFC 73)
The applicant complained in his original application for review and in his oral submissions before this Court that the Tribunal did not give him an opportunity to attend the hearing. This was clearly not the case as the Tribunal correctly provided the applicant with an invitation to attend at hearing and fulfilled its obligation under s.425 of the Act. As the applicant had responded to the Tribunal, indicating that he did not wish to attend and that he consented to the Tribunal proceeding without taking any further action to enable him to appear before it, he was no longer entitled to appear before the Tribunal. The Tribunal was entitled to make its decision on the evidence before it.
In respect of the claim that his agent had responded to the hearing invitation without his knowledge, this allegation was not previously raised by the applicant prior to his submissions before this Court. The applicant was unable to identify the agent. He said that he had not received any correspondence, business cards or receipts from that person. The applicant was unable to indicate whether the agent had an office or any business premises. Neither was he able to say how he first contacted the agent or who had recommended him. The applicant did claim that the agent was cunning because he insisted that all correspondence and contact be through the applicant at his residential address. The applicant in turn was extremely evasive in respect of all aspects of the alleged agent’s identity.
I appreciate the practical difficulties which a person in the applicant’s position is confronted with because he is in a strange country, with a language he cannot speak and a legal system he cannot understand. Nonetheless, I have to say the matters he put to me are not such that would permit me to accept the claims promoted.
Where an applicant is self-represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. The oral submissions made by the applicant in support of his application are contrary to the information contained in the Court Book, which does not disclose the existence of an agent. The applicant may have been assisted by a friend or associate, however it does not appear to be possible that the response form to the Tribunal invitation was returned to the Tribunal without the knowledge of the applicant. All of the documents contained within the Court Book bear the same signature, although there are differences in the handwriting contained within those documents.
In the absence of particularised grounds of jurisdictional error, the remaining approach is to review the Tribunal decision and the supporting documentation contained in the Court Book. No other material has been made available to the Court. On a fair reading of those documents it is not apparent that the Tribunal has made any jurisdictional error.
Conclusion
For the reasons set out above, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Michael Lloyd-Jones FM
Associate:
Date: 3 March 2006
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