SZKUO v Minister for Immigration & Anor

[2007] FMCA 2073

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2073

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s failure to call the applicant into the hearing notwithstanding that he was waiting at the Tribunal for his hearing amounted to a breach of s.425 – Tribunal erred by proceeding to decide the review pursuant to s.426A – near 6 year delay lacked adequate explanation – delay unwarrantable – relief refused in the exercise of the Court’s discretion.

Migration Act 1958, ss.424, 424A, 425, 426, 426A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

Applicant: SZKUO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1948 of 2007

Judgment of: Cameron FM

Hearing date: 23 November 2007

Date of Last Submission: 23 November 2007

Delivered at: Sydney

Delivered on: 21 December 2007

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1948 of 2007

SZKUO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China where, he claims, he and his father practised Falun Gong. He alleges that while in China he participated in a demonstration against government authorities suppressing Falun Gong and that this subsequently led to him being investigated and arrested for a period. The applicant arrived in Australia on 4 September 2000.

2. The applicant claims to fear persecution in China because of his practice of Falun Gong and participation in a demonstration against the government.

3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 18 October 2000. 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 has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 60 to 61). Relevantly, they are in summary:

   a)the applicant and his father practised Falun Gong in China;

   b)the applicant fears returning to China as it would be dangerous for him;

   c)the applicant’s father, who worked for the government, told the applicant that the authorities investigated and suppressed Falun Gong and that some members were being arrested. The applicant’s father took part in a demonstration against this suppression and a few days later he disappeared;

   d)the Chinese government declared Falun Gong an anti-government organisation and began to suppress its members; and

   e)the applicant was investigated and arrested for a period and had to enter a “study class”. He had to report regularly to authorities under constant threat of arrest.

The Tribunal’s decision and reasons

1. Although an invitation had been sent to the applicant to attend a hearing before the Tribunal he failed to do so. Consequently, the Tribunal proceeded to make its decision.

2. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:

   a)because the applicant did not attend the Tribunal hearing the Tribunal had a number of unanswered questions relating to the applicant’s claim to fear persecution. The Tribunal noted that:

   i)the applicant made very limited information available to the Tribunal on key issues such as his practice of Falun Gong and the experiences he suffered;

   ii)had the applicant attended the hearing, the Tribunal would have discussed with him a number of aspects of his claims which the Tribunal had difficulty accepting as there was a significant lack of detail in respect of his claims;

   iii)the Tribunal would have sought to ascertain from the applicant whether he was an ordinary adherent of Falun Gong or whether he played an organisational or training role; and

   iv)it was not clear if the applicant claimed that he was arrested in connection with his father’s activities or his own, nor what level of activity in Falun Gong his father had had; and

   b)the Tribunal was not convinced on the evidence that the applicant was a Falun Gong practitioner and that he had genuine fears of persecution if he returned to China, noting that the applicant was able to leave China legally and without difficulty.

Proceedings in this Court

1. The application alleges that the Tribunal failed to invite the applicant to give oral evidence at its hearing and consequently breached ss.424, 425 and 426 of the Act.

2. In his written submissions, the applicant also alleges that the Tribunal breached s.424A of the Act.

Invitation to Tribunal hearing

1. The applicant’s evidence is that, although he attended the Tribunal’s premises for the purposes of the hearing to which he was invited, he was not called and the Tribunal made a decision without hearing from him. That allegation, if proved, would amount to a breach by the Tribunal of its obligations under s.425 of the Act. Although the applicant alleges that it also amounts to breaches of ss.424 and 426, that is not so. Those sections deal with quite different issues, namely the power of the Tribunal to seek additional information and an applicant’s ability to request the Tribunal to call witnesses. Such issues do not arise in these proceedings and ss.424 and 426 will not be considered further.

2. In his affidavit sworn or affirmed on 16 June 2007 the applicant says, relevantly:

   7. I applied for review of DIMA’s decision at the RRT on 21 November 2000.

   8. I received hearing invitation and confirmed my attending on 01 March 2001 hearing.

   9. On 01 March 2001, I went to RRT. I went there by Taxi. About 12:30 noon, I took a Taxi from China Town and showed the address to the Taxi driver.

   10. I showed the letter to the reception after I got there. She said please take a seat, we will call you. So I sat down.

   11. At about 1.30, no one came to see me. Then I asked a person nearby, he said they will call me if it was my turn, I thought it was common running late.

   12. I waiting for another about 20 minutes, I started to feel uncertain. I went to see the reception and showed letter and ask her again. The reception made a phone call and talked to me something which I understood that I could go home, RRT will contact me later on.

   13. I felt strange, but I thought it might be the RRT procedure. So I went home.

   14. Then RRT confirmed the refusal of my protection visa as a refugee on 30 June 2001.

3. In his evidence to the Court, the applicant adhered to what he had said in his affidavit and the respondents led no evidence from employees of the Tribunal as to the events on the day or the systems it employed to deal with applicants attending hearings. Having had an opportunity to see the applicant give evidence on the subject, I am satisfied that he was making a bona fide attempt to give an accurate account of the events in question. I accept his evidence that he attended the Tribunal but was not called to give evidence at his hearing.

4. As a result, the Tribunal erred by proceeding pursuant to s.426A to decide his review application, on the basis that the applicant although invited to appear before the Tribunal failed to do so at the scheduled time, day and place. Because the criteria for the operation of s.426A had not been satisfied, the Tribunal exceeded its jurisdiction in proceeding to making a decision on the review application.

Breach of s.424A

1. In his written submissions the applicant alleges that the following information should have been notified to him in accordance with s.424A(1):

   ·    That applicants who left China legally would not be of interest to the Chinese authorities

   ·    That ordinary practitioners of Falun Gong are less at risk of adverse attention from the Chinese Government than more influential and organizationally involved supporters of Falun Gong.

2. Notwithstanding this submission, no s.424A obligations attached to that information. First, the Tribunal’s decision was not based in whole or in part on that information but on the paucity of information before it. The Tribunal failed to be satisfied that the applicant met the criteria for a protection visa because there was too little information before it for it to be able to be satisfied of that fact.

3. Secondly, the information referred to by the applicant came from independent country information. Such information falls within the exception found in s.424A(3)(a) and thus no s.424A(1) obligations attached to it.

4. Consequently, this allegation does not disclose any jurisdictional error on the part of the Tribunal.

Delay

1. The first respondent submits that, regardless of whether jurisdictional error is demonstrated, the relief sought by the applicant should be denied in the exercise of the Court’s discretion because he took unduly long to commence these proceedings. In this regard, it should be noted that the Tribunal’s decision was sent to the applicant under cover of a letter dated 26 July 2001 and these proceedings were not commenced until 22 June 2007. In his evidence to the Court the applicant conceded that he had received the Tribunal’s decision two to three months after the date which had been scheduled for the Tribunal’s hearing (1 March 2001). The applicant also agreed that he had received the decision and its covering letter from the Tribunal. He said that he did read the covering letter but not fully, did not fully understand it and was upset and puzzled. He said that he did not discuss the letter with his agent even though the agent had rung him to say that he too had received a copy of the letter advising of the Tribunal’s decision. The applicant said that he did not ask his agent what to do next in relation to his visa status.

2. The applicant said that due to his lack of knowledge he was not aware that he had a right to seek review of the Tribunal’s decision and that it was only eventually due to the help of a friend that he found out he could bring his application for judicial review. He expressed remorse that he had not read the Tribunal’s letter fully and said that he should have taken the opportunity to seek review at an earlier time.

3. The third paragraph of the Tribunal’s letter dated 26 July 2001 says:

   You have the right to seek review of this decision by the Federal Court. An application for review must be lodged with the Court within twenty-eight (28) days of notification of this decision. You are taken to have been notified seven (7) days after the date of this letter. You must name the Minister for Immigration and Multicultural Affairs as the respondent and not the Tribunal. Federal Court proceedings are not private unless an order has been made by the court suppressing your name. I strongly advise you to seek legal advice if you wish to seek review by the Court. (CB 56)

4. I found the applicant’s evidence on this subject less convincing then his evidence concerning his attendance at the Tribunal’s premises on
   1 March 2001. Additionally, the applicant’s evidence demonstrates that in 2001 his English language skills would have been sufficient for him to understand the contents of the Tribunal’s letter. However, even were this not to be so, it is not credible that the applicant, in conversation with his agent on the subject of the Tribunal’s decision, did not enquire as to the next possible step or that the applicant’s agent did not raise the possibility of judicial review. Consequently, I find that the applicant was aware in 2001 that if he wished the Tribunal’s decision to be set aside he was required to seek review of the decision in the Federal Court.

5. That being so, it is necessary to consider whether the Court should exercise its discretion to deny relief to the applicant by reason of the near six year period between the handing down of the Tribunal’s decision and the commencement of these proceedings, notwithstanding that jurisdictional error affects the Tribunal’s decision.

6. It is clear that the Court does have a discretion to deny relief in circumstances where the conduct of the applicant is inconsistent with the application for relief, including where the applicant has been guilty of unwarrantable delay: SAAP v Minister for Immigration Multicultural & Indigenous Affairs (2005) 79 ALJR 1009 per McHugh J at 1026 [80]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 197 [28]. This is not a case where the applicant’s delay in bringing proceedings is measured in months. It is a delay which is measured in years. The explanation advanced by the applicant for his delay in bringing the proceedings is not credible and I reject it. In his evidence the applicant said that it was through hard work and trying to find information and encouragement from a friend that he became aware of his right to appeal. No explanation was advanced as to why this process matured into an application to this Court only in 2007. Moreover, such evidence is not consistent with the applicant’s knowledge that he was denied his hearing before the Tribunal. He knew that he had been invited to appear but had, in fact, been denied the opportunity of so doing.

7. Knowing that he had been denied his hearing and that his application to the Tribunal had been unsuccessful, the applicant should have made enquiries at an early date with a view to enforcing his rights and vindicating his claim to be a refugee. The fact that he did not do so requires an explanation more compelling than that he did not know that he had a right of appeal. 

8. But in any event, I have found that he was aware as early as 2001 that if he wished the Tribunal’s decision to be set aside he would need to seek judicial review in the Federal Court. He has put nothing before the Court to explain why he did not act on this knowledge. 

9. The applicant having given no adequate explanation for the very considerable delay in bringing these proceedings, relief will be denied in the exercise of the Court’s discretion.

Conclusion

1. Although jurisdictional error on the part of the Tribunal has been demonstrated, relief will nevertheless be denied by reason of the unwarrantable delay in the bringing of these proceedings.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  21 December 2007