SZIAG v Minister for Immigration - [2008] FMCA 208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAG v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 208

MIGRATION – Application to set aside orders made in absence of applicant.

Federal Magistrates Court Rules 2001(Cth) rr.13.03A, 16.05

Migration Act 1958 (Cth)

Lee v Minister for Immigration and Multicultural Affairs [2001] FCA 1448
SCAR v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 198 ALR 293
SZIAG v Minister for Immigration & Citizenship [2007] FMCA 1903
Taylor v Taylor (1979) 143 CLR 1

Applicant:

SZIAG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 11 of 2006

Judgment of:

Barnes FM

Hearing date:

14 February 2008

Delivered at:

Sydney

Delivered on:

14 February 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application of 20 November 2007 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 11 of 2006

SZIAG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed by the applicant on 20 November 2007 to set aside orders made by this Court on 8 November 2007 dismissing an application for review of a decision of the Refugee Review Tribunal pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001. There was no appearance by or on behalf of the applicant at the hearing on 8 November 2007.
The background to these proceedings is that the applicant arrived in Australia in November 1994 and in September 1995 applied for a protection visa. That application was refused and the applicant sought review by the Tribunal. By decision of 20 December 2005 the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant sought review of the Tribunal decision by application filed in this Court on 3 January 2006.
There is nothing in the material before me to indicate that the applicant was represented in these proceedings at the time he filed the application or thereafter. The applicant attended a directions hearing on 31 January 2006. In cross-examination today he agreed that he attended the directions hearing, that he had the assistance of an interpreter, that short minutes of order that were made by consent were translated to him and that his signature appeared on those orders.
On 31 January 2006 orders were made by consent for the applicant to file and serve any affidavit containing additional evidence, including any transcript of the Tribunal hearing, by 1 May 2006. Any amended application with complete particulars of each ground of review was to be filed by 1 May 2006. The matter was listed for final hearing at 10.15 am on 8 November 2007. The orders stated that the hearing would be at the Law Courts Building, Queens Square, Sydney. However on 10 September 2007 the Court wrote to the applicant (at the correct address) advising him of a change of venue to John Maddison Tower in Goulburn Street. There is no suggestion by the applicant that he did not receive notification of the change of venue.
Orders were also made for the applicant to file and serve written legal submissions and a list of authorities five clear working days before the hearing. There is nothing in the file to indicate that the applicant filed further affidavit evidence, a transcript of the Tribunal hearing, any amended application or written legal submissions and there is no suggestion from the applicant that he did so.
On 8 November 2007 there was no appearance by the applicant and the Court being satisfied that he had been notified of the hearing (including by the solicitors for the first respondent sending him a copy of submissions and confirming the date, time and correct place for hearing of the application) dismissed the application under Rule 13.03A(c). (See SZIAG v Minister for Immigration & Citizenship [2007] FMCA 1903).
The applicant then filed the application presently before the Court. He seeks a “hearing day” and that the Tribunal decision be set aside and the matter remitted. While not expressed in those terms, I take this to be an application in the nature of an application under rule 16.05 of the Federal Magistrates Court Rules. Rule 16.05 relevantly provides that the Court may vary or set aside a judgment or order, inter alia, if the order is made in the absence of a party. The first respondent does not consent to the orders being set aside. It is therefore necessary for the Court to determine whether it is appropriate to exercise its jurisdiction. The discretion must be exercised judicially and with caution although it is not so narrow or exceptional as to be virtually non-existent. An order mat be set aside where it is in the interests of justice to do so (see Taylor v Taylor (1979) 143 CLR 1).
It is relevant to take into account first the reasons for non-appearance and whether the applicant can show that by accident and without fault on his part the order was made in circumstances that warrant the exercise of the discretion. Secondly, it is relevant to have regard to whether or not there is an arguable case or question raised by the applicant. In the present context this involves a consideration of whether there is any prospect of the applicant establishing any grounds for review of the Tribunal decision or whether it would be futile to set aside the orders dismissing the application for review (see Lee v Minister for Immigration and Multicultural Affairs [2001] FCA 1448).
The only evidence provided by the applicant in support of this application is a two paragraph affidavit sworn by him on 20 November 2007 which asked the Court to set aside the dismissal and stated:
I thought the lawyer will attend the final hearing on my behalf. That's why I did not turn up for hearing.
There was no identification of any particular lawyer. Nor is there any indication in the original application of 31 January 2006 or supporting affidavit that the applicant had a lawyer acting for him in relation to the proceedings in this Court.
In cross-examination the applicant clarified that the “lawyer” was the lawyer to whom he was referred under the court's legal advice scheme although he was not able to remember his name. He indicated that he had met that lawyer in the company of a friend who had engaged in conversation with the lawyer in English and translated on occasion.
The applicant's evidence in relation to precisely what occurred in such consultation and what the lawyer said was somewhat less than satisfactory. While I accept that to some extent the passage of time and the applicant's lack of English may have contributed to this, at its highest the applicant's evidence is that while the lawyer did not say that he would appear for him at the final hearing of this application for review of the Tribunal decision, the applicant understood or assumed that that would happen because he had seen the lawyer and perhaps, although I can put it no higher than that, because he expected some further contact from the lawyer. His evidence as to whether he expected the lawyer to contact his friend or himself was not entirely clear. It appears that he expected that either he would receive a letter or that his friend would receive a telephone call from the lawyer. At one point he indicated that he was not sure whether he had seen the lawyer once or twice.
The legal representative for the first respondent put to the applicant on a number of occasions that he had not been told he did not need to attend the final hearing and that the lawyer had not said that the lawyer would attend the final hearing. The applicant's responses varied. He cited lack of recollection. Giving the applicant the benefit of the doubt allowing for his lack of English ability, I accept that it may be that the applicant had some expectation that the lawyer would provide him with some form of representation. However he did not state that he was told that the lawyer would appear for him at the hearing and on the evidence before me I am not satisfied that the lawyer stated that he would represent the applicant at the hearing.
It is relevant that there is no suggestion from the applicant that he received the further expected contact from the lawyer, whether by way of letter to him or telephone contact with the friend. He did not explain why he continued to expect that the lawyer would appear at the hearing, despite the fact that the lawyer had not contacted him as he had expected. There is no suggestion by the applicant that he sought to contact the lawyer after failing to receive written advice, despite the fact that he had told the Court that he had the assistance of a friend who was able to communicate in English and who been helped him in his meeting with the lawyer.
Taking the applicant's evidence at its highest and accepting that he may have been mistaken and in spite of the fact that there was no suggestion by the applicant that the lawyer did contact him again as he had expected, I am prepared for the present purposes to accept that the applicant may have mistakenly assumed that the nature of assistance that would be provided may have included representation at the hearing.
However I have some concern about the suggestion that that such a mistaken expectation would amount to a reasonable explanation for the applicant’s failure to appear at the hearing, as it would suggest that an applicant need take no responsibility at all for ensuring that in fact he had representation or someone to put his case at the final hearing. For the applicant simply to proceed on the assumption that a lawyer who had not made promised contact with him would nonetheless appear at the hearing, despite not having told the applicant that he would do so, would not be a reasonable understanding on the part of the applicant.
Nonetheless, it is not necessary for me to finally determine whether the reasons for non-appearance are such as to warrant the exercise of my discretion because even if this were a reasonable satisfactory explanation, it would be futile to reinstate the review application as there is nothing in the material before me and (despite being given the opportunity to do so today) nothing that the applicant has said that has satisfied me that there is an arguable case that the Tribunal fell into jurisdictional error in its decision or procedures such as to warrant setting aside the orders dismissing the application of 3 January 2006.
It is necessary to refer to the applicant's claims for protection, the Tribunal decision, the grounds of review in the original application and also the matters that the applicant raised in oral submissions today. Initially the applicant's claims were set out in a written statement provided in connection with his protection visa application and were based on what was described in that statement as his involvement in pro‑democratic activities arising out his family background and experiences under the government at the time of the period of cultural revolution in China. The applicant claimed that in 1989, while he was at school, he organised a strike of classmates, led and participated in protest activity on a number of occasions. He claimed that he was forced to attend a political class, deprived of the right to continue to study, questioned and interrogated by the Public Security Bureau, forced to report on others and that he was dismissed by the school authorities. The applicant also claimed that in 1993 he had started pro‑democratic activities again. He joined a society called the “June 4 Society”, recruited members, distributed material and organised meetings and was a leader. He claimed that the activities had been discovered and that friends had been arrested.
The application was refused by a delegate of the first respondent who found that as the applicant had not attended a requested interview it could not be satisfied as to the facts. In connection with the review application the applicant wrote to the Tribunal indicating that he would like to make some amendments to his claims. In particular he claimed he had had the assistance of a migration agent who had put some incorrect details in his application. He reiterated that he had participated in pro-democracy activities in 1989, claimed that he had not given up his political views, that he had difficulty obtaining a passport but had paid money for it and that he had a well-founded fear because of his family's background. He claimed to fear persecution on return to China as he would speak out about Chinese politics. He also claimed that he had become a Christian in Australia, that he would continue to practice his religion and that he would organise people to join in church meetings.
The Tribunal wrote to the applicant inviting him to attend a hearing. The applicant provided a further written submission to the Tribunal, reiterating his claims about democratic activities while at school and the consequences and that since arriving in Australia he had become a Christian and would continue to practice as a Christian in China. In the response to hearing invitation form under the question “Do you have any special needs for the hearing?” he indicated “Yes, female interpreter”.
The Tribunal reasons for decision record that the applicant attended a hearing. It set out the claims made by him at the various times. It described the applicant's evidence at the Tribunal hearing. It is relevant to note that the Tribunal referred to the applicant's demeanour at the hearing as being “rather odd”. It observed that questions were frequently met by long periods of silence, during which the applicant “looked at the ceiling or his fingers”. His answers to the questions were said to be “generally extremely brief and very vague”. The Tribunal also observed: “From time to time he smiled or laughed inappropriately”.
The Tribunal went on to state that it had asked the applicant whether he had any health problems or was taking medication and that he “denied either”. It stated:
“There is nothing to indicate that the applicant is not competent to give evidence, and he appeared to understand the interpreter, having asked her at the beginning of the hearing to speak slowly”.
The Tribunal recounted the evidence the applicant gave at the hearing, including the fact that it put to him that his oral evidence differed from his written claims and that he had not mentioned in his letters to the Tribunal his oral claims that he was a member of an underground church in China and that he had been arrested because of this. It recorded his explanation and that it put to him that it did not believe he was telling the truth in his oral evidence. It gave him an opportunity to think about his claims during an adjournment and address stated concerns of the Tribunal.
In its findings and reasons the Tribunal stated that it left aside the claims made in the protection visa application, which the applicant said were “made up” on his behalf by his agent. It then found that he had given different accounts in his two letters to the Tribunal and in his oral evidence. Most significantly he had not claimed at any time prior to the hearing that he was persecuted by reason of his membership of an underground church in China, the only mention of religious persecution in the letters to the Tribunal of 5 and 19 September 2005 being a claim that he had “become a Christian since being in Australia”. The Tribunal recorded the applicant's evidence at the hearing about his activities in Australia, included his claimed limited attendance at church some 10 times over 10 years, that he did not know the name of the church or apparently understand the services, that he was not able to explain anything about Christianity or about the beliefs and doctrines of his underground church or his own personal religious beliefs.
The Tribunal considered that a person who was a genuine believer in Christianity and who attended regular church services “would be able to provide at least some details of fundamental aspects of the Christian religion”. It did not accept that the applicant had become a genuine practising Christian since he had been in Australia. Nor did it accept his explanation for not having mentioned his fear of persecution arising from his membership of an underground church in China in his letters to the Tribunal. While it accepted that the letters were written by a friend, it did not accept that the applicant would have omitted the very events which he then claimed occurred immediately before his departure and which caused him to take the decision to leave, while going into great detail about what appeared to be extraneous matters.
The Tribunal did not accept these claims. It had regard to the late mention of the claims as to membership of an underground church, arrest and that the applicant had fled because he heard he was to be arrested again. It also noted the vagueness and lack of detail in his evidence. It referred to the fact that his testimony was “marked by long silences as he answers the most straight forward questions.” It was of the view that the applicant want not recalling events from his own experience.
The Tribunal also found that the applicant was not a genuine practising Christian in Australia and knew virtually nothing about Christianity. In those circumstances it did not accept that the applicant had a well-founded fear of persecution in the People's Republic of China by reason of his religion, either because of his attendance at an underground church or his religious beliefs. It noted that if the applicant did wish to attend church in China, there was no reason arising from the evidence why he would not be able to attend one of the official registered churches.
The Tribunal also considered the applicant's evidence about his claimed political activities. It found it unimpressive, vague and marked by long silences and that his oral evidence was inconsistent with his written claims to the Tribunal in a number of specified respects on significant matters. Based on the applicant’s evidence the Tribunal was unable to be satisfied that he was, in fact, involved in pro‑democracy protests in 1989 in any significant way. Hence was not satisfied that he was punished or detained for one month (given his inconsistent claims), dismissed from school or established a profile as a political activist. Noting that the applicant did not claim in his oral evidence to have been involved in such activities after 1989, the Tribunal was not satisfied that he faced a real chance of persecution in the reasonably foreseeable future in connection with his past activities.
The Tribunal also noted that the applicant did not press in his oral evidence any claim that he had faced persecution because of family background. His evidence was that his father had always been a farmer. Nor did he claim to fear persecution in connection with the manner in which he departed China.
As the Tribunal did not accept that he had faced arrest at the time of his departure because of his religious activity and did not accept that he had a profile as a political activist which might have prevented him from being issued a passport, it was not satisfied that he would face any repercussions amounting to any persecution for a Convention reason flowing from his departure.
The Tribunal found that if the applicant did leave China using fraudulent documents, there was no evidence to suggest that this would be dealt with other than under relevant criminal law provisions applicable to the population generally on a non‑discriminatory basis. The Tribunal concluded that there was no credible evidence to support a finding of past persecution for political opinion, religious beliefs or practices or that there was a well-founded fear of persecution for any Convention reason.

In his application for judicial review the applicant claimed first that the Tribunal had constructively failed to exercise its jurisdiction and to afford him natural justice in circumstances where it applied the incorrect test of persecution for Convention purposes. He did not elaborate on this claim and there is nothing in the material before me to support an arguable claim of jurisdictional error on this basis. The Tribunal correctly stated the applicable test and no arguable jurisdictional error has been demonstrated in the manner in which it applied that test.
In so far as the applicant's contention that he should have had a further Tribunal hearing was intended to raise issues of natural justice or perhaps failure to comply with procedures under the Migration Act 1958 (Cth), he told the Court that he was under some psychological pressure that explained his demeanour at the hearing. There is no evidence before the Court in this respect, despite the fact that the applicant had the opportunity, pursuant to the consent orders made at the directions hearing, to file further evidence including a transcript of the Tribunal hearing before the date fixed for hearing of his application. He did not do so. The only evidence of what occurred in the hearing is the Tribunal reasons for decision.
However the Tribunal's finding was not simply based on the applicant's “demeanour” as distinct from the whole of his oral evidence including inconsistencies in his answers, long silences in response to straightforward questions, vagueness and lack of detail.
Moreover there is nothing to suggest that there was anything to indicate to the Tribunal that the applicant was in the state he now claims, such that he was not able to effectively participate in the Tribunal hearing or to raise the sort of concerns considered in SCAR v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 198 ALR 293. The Tribunal asked the applicant whether he had any health problems or was taking any medication. He denied that and the Tribunal considered the issue, but found that there was nothing to indicate that the applicant was not competent to give evidence. It also found that he appeared to understand the interpreter.
I note that the issue was not expressly raised in the application of 3 January 2006. It was raised for the first time today in oral submissions. This contention does not establish any arguable case of jurisdictional error on the material before the Court.
The second ground in the application is that the Tribunal failed to deal with the applicant's sur place claim of persecution by reason of religious beliefs.
In so far as the applicant seeks merits review, that clearly does not establish an arguable claim of jurisdictional error. The Tribunal expressly dealt with the applicant's claim to fear persecution on the basis that he had become a Christian since arriving in Australia. There is no arguable claim that the Tribunal failed to deal with any sur place claim. The Tribunal made a number of relevant findings, including that the applicant had attended church in Australia 10 times over 10 years, that he did not know the name of the church or understand the service and that he was not able to explain anything about Christianity or his own personal religious beliefs. In such circumstances the Tribunal did not accept that the applicant had become a genuine practising Christian since he been in Australia. It was open to the Tribunal on that basis to find that the applicant did not have a well‑founded fear of persecution in the People's Republic of China for reason of religion, including his claims as to what had occurred in Australia. The Tribunal observed that if he did wish to attend church in China there was no reason from the evidence why he could not attend one of the official registered churches. No arguable claim of jurisdictional error is established on that basis.
Finally, in ground 3 the applicant complained of error of law in circumstances where the Tribunal unreasonably and without probative evidence found that the applicant “were a one-off culmination of particular social and political factor”. This generally expressed ground was not clarified by the applicant or particularised. It is not clear which aspect of the Tribunal decision is intended to be addressed.
Insofar as the applicant takes issue with the Tribunal's finding that he was not recalling events from his own experience and that his evidence was unimpressive, such findings were open to the Tribunal on the material before it. I note again that the applicant did not file a transcript of the Tribunal's hearing despite having had the opportunity to do so before the hearing date of 8 November 2007. The only evidence as to what occurred in the hearing is the Tribunal's reasons for decision. Findings by a Tribunal as to an applicant's lack of credibility are matters for the Tribunal. There is nothing to indicate any arguable case of illogicality or unreasonableness, let alone illogicality or unreasonableness such as might arguably amount to jurisdictional error.
The only other matter raised by the applicant was a contention that related to the fact that the Tribunal had put to him that his oral evidence was quite different to his written claims. He claimed that he would have expected the Tribunal to have written to him after the hearing. It appears that this may be a contention that there was a failure to comply with s.424 of the Act. Insofar as this contends that the Tribunal's should have put its reasoning process to the applicant, it is well established that gaps, defects, lack of detail or lack of specificity in evidence are not information within s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 and the reference to VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [18).
Moreover the information to which the Tribunal referred was information which the applicant provided to the Tribunal. The Tribunal put to one side and did not have regard to those aspects of the claims made in the protection visa application that the applicant disowned. Both the oral evidence and the two written statements were information that the applicant provided to the Tribunal within the exception in s.424A(3).
Nothing the applicant said or in the material before the Court raises on this or any other basis an arguable contention that the Tribunal fell into jurisdictional error.
In such circumstances as no arguable case is apparent or has been established and thee is nothing on the material before the Court to demonstrate any prospect of the applicant establishing any ground for review of the Tribunal decision it would be futile and hence not in the interests of justice to set aside the orders made by this Court on 8 November 2007. Accordingly the application of 20 November 2007 must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant having been unsuccessful, there is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent in relation to the application to set aside the court’s orders. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 February 2008