SZKCE v Minister for Immigration and Anor (No.2)
[2007] FMCA 1889
•12 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCE v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 1889 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no arguable case. PRACTICE AND PROCEDURE – Application to set aside interlocutory dismissal – no reasonable explanation for failure to attend previous hearing – no arguable case – application dismissed. |
| Migration Act 1958, s.91R Federal Magistrates Court Rules 2001, r.13.03A |
| SZKCE v Minister for Immigration & Anor [2007] FMCA 1764 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 |
| Applicant: | SZKCE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 251 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 November 2007 |
| Date of last submission: | 12 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application in a case filed on 5 November 2007 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application in a case fixed in the amount of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 251 of 2007
| SZKCE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a Falun Gong practitioner. The applicant claims to fear persecution in China because she is a Falun Gong practitioner.
After her arrival in Australia the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 26 July 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal’s decision.
On 12 October 2007 I dismissed the application pursuant to r.13.03A(c) of the Rules of Court because the applicant had failed to attend the hearing which had been listed for that day. The full details of my reasons for dismissing the application are recorded in SZKCE v Minister for Immigration & Anor [2007] FMCA 1764.
Application to set aside judgment
On 5 November 2007 the applicant filed an application in a case seeking, in effect, orders that the judgment of 12 October 2007 be set aside and for leave to continue the proceedings. It is that application which is before the Court today. In considering the application that the applicant be let in to prosecute her proceedings for judicial review, I must consider firstly whether she has an arguable case and also whether she has made out a satisfactory explanation for her failure to attend Court on 12 October 2007.
For the reasons which follow, the application will be dismissed.
Whether there is a satisfactory explanation for the applicant’s failure to attend Court
In her evidence today and in her affidavit filed on 5 November 2007 in support of her application in a case, the applicant says that she was not allowed time to get a paid lawyer or to appeal what she says was a refusal to supply legal aid and the Court required her to attend a hearing when she was sick and was without legal representation.
Dealing first with the question of legal representation, this is an issue which was raised for the first time in the affidavit of 5 November 2007. It was not raised on 11 October 2007 as being the basis for the applicant’s non-attendance, when the Court was contacted by the applicant’s friend to say that she would not be attending Court the next day. The basis of that non-attendance is set out in [8] to [12] of my reasons for judgment of 12 October 2007.
It is also apparent from the applicant’s evidence today that the real basis that she raises for her non-attendance on 12 October was that she was too ill to come. Want of legal representation is not a satisfactory excuse for completely failing to attend Court when a hearing is listed. Moreover, it is difficult to accept as a truthful explanation when, as is the case here, the day before the listed hearing somebody rings the Court on behalf of the applicant to say she will not be attending because of ill-health.
As to the applicant’s allegation that she was too ill to attend on 12 October, my reasons of 12 October 2007 make it clear that the applicant was perfectly well aware of what was required to be put before the Court to satisfy it that her claim of ill-health was legitimately made.
The history of these proceedings demonstrates that the applicant had made claims of ill-health justifying adjournments on more than one occasion and on each of those occasions, including 11 October 2007, none of the medical certificates supplied by the applicant said that she was actually too ill to attend Court. Therefore, on 13 August 2007, directions had been made requiring the applicant, should she have wished to vacate the hearing date of 12 October 2007, to provide the Court with a medical certificate saying that she was medically unfit to participate in the hearing listed for that day. The medical certificate which was faxed to the Court on 11 October 2007, and which is an exhibit in this application in a case, did not meet that criterion. In my reasons for judgment of 12 October 2007 I made explicit comment on that point and the deficiency of the medical certificate which had been placed before the Court on 11 October 2007.
Notwithstanding the orders which were made on 13 August 2007 and the contents of the reasons for judgment of 12 October 2007, no further medical certificates have been put before the Court today which substantiate the applicant’s allegation that she was too ill to attend when the matter was listed for hearing.
The applicant’s evidence today concerning her condition on 12 October 2007 was unresponsive, unsatisfactory and not sufficiently clear. The medical certificate supplied to the Court says that the applicant was suffering from influenza and in her evidence today the applicant said that her complaints included a very sore head, an inability to walk at all and pain all the time, which she thought might have come from psychological pressure. Although the applicant has said that she had a fever and said during cross-examination that she also had a sore throat, she does not actually say in her evidence that she had the flu and the intervention of psychological considerations is surprising in the circumstances.
I find the applicant’s evidence to be unconvincing and I am particularly concerned that notwithstanding the time available to have obtained a medical certificate supporting her inability to attend Court, none has been supplied.
Evidence was led from the applicant’s boyfriend, who was the person who faxed the medical certificate to the Court the day before the listed hearing. Significantly, he said that when he was told of the applicant’s illness he went to her home to collect the medical certificate to take it to his work so he could fax it from there to the Court and to the respondent’s solicitors, and yet although he expressed himself to have been “very, very worried” about the applicant’s condition, he was not so concerned that he went to the trouble of seeing her again before the following afternoon.
There is no evidence from the applicant’s boyfriend of her condition on the evening before the hearing nor during the course of the day of the hearing other than that when he saw her on the afternoon of the hearing day her fever had passed, her face was pale and she had said that she was very, very uncomfortable.
I find the evidence of the applicant’s boyfriend to be of no assistance to me in determining whether the applicant was fit enough to attend Court on the morning of 12 October 2007, given the lack of time he appears to have spent with the applicant around the time when the hearing was due to take place and the fact that his evidence really only repeats what the applicant said to him rather than expresses his own observations on the applicant’s alleged condition at the times when he did see her. Consequently, I find that the applicant has not demonstrated a satisfactory explanation for her failure to attend the hearing which was listed on 12 October 2007.
Arguable case
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 96 – 99). Relevantly they are, in summary:
a)the applicant began to practise Falun Gong in 1995 although during the Tribunal hearing she suggested it was either in the 1990s or the year 2000. She became a “fanatic” and practised the five sets of exercises every morning and evening. With a group of ten others she studied Master Li’s books and teachings and shared their experiences; and
b)after Falun Gong was banned she continued to practise but only in her own home and only after midnight so that no-one else would know she was practising. One night in January 2005 she was doing her usual practice when two neighbourhood committee officials and two policemen burst into her home. They found and seized her Falun Gong material and took her to the local police station where she was detained for ten days and subjected to anti-Falun Gong propaganda. Eventually she promised to renounce Falun Gong whereupon she was released. During the following six months to the end of July 2005 the applicant had to attend the neighbourhood committee every Friday morning for self-criticism, but notwithstanding this she continued to practise Falun Gong at midnight.
Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that she was a person to whom Australia owes protection obligations under the United Nations Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).
At the outset the Tribunal expressed its dissatisfaction with the applicant as a witness, saying this:
I found the applicant to be a highly unsatisfactory witness. For most of the hearing she appeared to be deliberately attempting to avoid answering my questions. Many questions had to be repeated several times before she gave a meaningful answer. From the outset, when I asked her when she started to practise Falun Gong, she provided contradictory and inconsistent answers… (CB 100).
Amongst the Tribunal’s other findings and reasons were the following:
a)while the applicant knew the name of the book Zhuan Falun she appeared not to know that this is the main Falun Gong text and the Tribunal attached great significance to the applicant’s lack of familiarity with this book;
b)the applicant did not at any stage of the hearing demonstrate any knowledge or understanding of the spiritual underpinnings of the practice of Falun Gong;
c)the applicant was unable to provide even the most basic and concrete information about Falun Gong and the Tribunal concluded that the deficiencies in her evidence arose because she was not providing a truthful account of her circumstances;
d)the Tribunal considered the oral evidence presented by the applicant at the hearing and was not satisfied that she was then or had been prior to her departure from China, a Falun Gong practitioner, concluding that the applicant did not display the level of knowledge of Falun Gong that could reasonably be expected of a practitioner of at least five years standing; and
e)the main Australia-based Falun Gong activity in which the applicant participated was the distribution of Falun Gong material. In light of the applicant’s lack of knowledge or understanding of the material she distributed or the purposes of the demonstrations in which she claimed to have participated, the Tribunal was satisfied that such activities as she had engaged in had not been done out of a genuine commitment to Falun Gong, but rather to strengthen her claim to be a refugee. Accordingly, that behaviour was disregarded by the Tribunal pursuant to s.91R(3) of the Migration Act 1958 (“Act”).
Proceedings in this Court
In the application filed on 29 January 2007 commencing these proceedings, the following grounds were pleaded:
(1) I am a Falun Gong practitioner from China.
(2) I have been detained by Chinese government for my Falun Gong activities.
(3) RRT ignored relevant material and give rise to jurisdictional error.
Each of the first two grounds pleaded in the application invites the Court to review findings of fact made by the Tribunal. The role of making findings of fact has been allocated to the Tribunal, not to this Court. In this case the findings of fact which the Tribunal made were open to it, in particular the credibility finding made by the Tribunal, which is a matter par excellence for the Tribunal as McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407. Were there to have been an error in relation to a jurisdictional fact then the situation would be different but that is not the case here.
In circumstances where the findings of fact were open to the Tribunal, it is not for this Court to substitute its own view of the facts should its view be different from that of the Tribunal. Consequently, neither of the first two grounds pleaded in the initiating application identified jurisdictional error on the part of the Tribunal.
The third ground is unparticularised. The applicant has not identified what material she says the Tribunal ignored. A consideration of the Tribunal’s decision indicates that the applicant’s claim was not a very detailed one and it is also clear that such factual allegations as she made were sufficiently well set out in the Tribunal’s decision to indicate that it turned its mind to the matters of substance which the applicant had raised. But, in any event, ignoring relevant material will only be of significance if it affects the exercise of the power reposed in the Tribunal and the Tribunal is not obliged in its reasons to identify matters which do not form the basis of the findings of fact which then form part of the basis of the ultimate conclusion.
In the absence of particularisation and given the content of the Tribunal’s decision record I cannot conclude that any jurisdictional error has been demonstrated as arising out of the third asserted ground of review.
Given that jurisdictional error is not apparent in relation to the Tribunal’s decision, I find that the applicant does not have an arguable case. In this regard it is to be noted that the Tribunal’s decision was based principally upon credit findings.
Conclusion
The application before the Court today is to set aside my judgment of 12 October 2007. The applicant has not given a satisfactory explanation for her failure to attend the hearing listed for that day and for the reasons already expressed, she does not have an arguable case.
Consequently, the application in a case will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 11 December 2007
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