SZMLN v Minister for Immigration & Anor
[2008] FMCA 1557
•6 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1557 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application to review decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – citizen of China claiming well founded fear of persecution on the ground of being a Falun Gong practitioner – credibility – no evidence of bias – privative clause – no reviewable error. PRACTICE & PROCEDURE – Where applicant did not attend Court for the hearing – application dismissed under r.13.03A (e). |
| Federal Magistrates Court Rules 2001, r.13.03A(e) Migration Act 1958 (Cth) ss.36, 91R, 362B, 425, 426A, 474 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544 SZIBK v Minister for Immigration and Multicultural Affairs [2006] FMCA 1167 SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZMLN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1661 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 November 2008 |
| Date of Last Submission: | 6 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 November 2008 |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Mr Knackstredt |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1661 of 2008
| SZMLN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today is an application for review of a decision of the Refugee Review Tribunal that was handed down on
10th June 2008. The Tribunal affirmed the decision of a delegate of the Minister of Immigration and Citizenship, who is the First Respondent to this application, not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks orders from the Court, which are a little bit difficult to identify since the attachment to her application sets out orders which are not really orders at all. Under the heading; ‘Orders sought by the Applicant’, the Applicant says;
1. I disagree with the Immigration and RRT’s decision since I am a genuine Falun Gong member. They did not consider that I will be in danger if I return.
2. RRT did not consider that I’m still actively practising in Australia and it will also bring me a big trouble if I return home.
3. I could not attend the RRT hearing, due to my sickness at that I informed RRT, they did not consider the fact and refused my application which I believe is not fair for me.
I will proceed with the application on the basis that the Applicant is seeking relief by way of orders in the nature of certiorari and mandamus and possibly prohibition.
The first point to be made is that the Applicant has not attended Court today. The Applicant did not attend Court when the matter was last mentioned before me on 23rd October 2008. The purpose of listing the matter then was to set a date for a final hearing. There was no appearance by the Applicant at 2:30pm in the afternoon.
Ms Crittenden, solicitor, appeared for the Minister. I listed the application for final hearing before me in this Court at 2:15pm today, and the Applicant was duly advised by the Court.
However, when the matter was called at 2:19pm today, the Applicant did not appear. I stood the matter down in the list and checks were made by Court staff to see whether any message had been received from the Applicant, indicating that she was in some way delayed, or hindered or prevented from attending Court, due to illness, injury or some other emergency. No message has been received.
The matter was called again at 2:46pm. Again, there is no appearance by, or on behalf of, the Applicant. The interpreter in the Mandarin language who had been ordered by the Court was then discharged. Counsel for the First Respondent, Minister Mr Knackstredt, has submitted that this is an appropriate matter for the Court to consider proceeding under r.13.03A (e). That is, a provision that says:
13.03A - Default of appearance of a party
If a party to a proceeding is absent from a hearing (including a first Court date), the Court may do one or more of the following:
e) proceed with the hearing generally, on in relation to any claim for relief in the proceeding.
In my view it is appropriate to proceed with the hearing generally.
Background
The background to this matter is that the Applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 10th November 2007 as part of a tour group. She appears to have absconded from that tour group and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 22nd November 2007.
In a statement provided with her application for protection visa, the Applicant claimed that she was applying because of her fear of persecution from the Chinese Government as a Falun Gong practitioner. In that statement, the Applicant set out that she had become involved with Falun Gong in 2004 and claimed that from May 2006 she was interviewed by the police, who told her that Falun Gong was against the Government and used evil theory to instigate people into evil deeds. The police asked the Applicant to change her thoughts and belief and remain apart from Falun Gong.
The Applicant, however, claims she continued to practise and in May 2007 she was formerly warned by the local security and they checked her home. She claims that she was told that she would be arrested if she continued to practise Falun Gong. She said that her whole family was shocked by this and encouraged her to go abroad as soon as possible. The Applicant claimed that she decided to leave China because of her beliefs.
Indeed she arrived in Australia as part of a tour group and there is a report on file in the Court Book pages 38 through to 42, being a report from the tour agency about the fact that the Applicant and two other ladies, who appeared to have absconded from the group. I note, more in sorrow then in anger, that the three ladies concerned are all described as ‘old people’ or ‘old women’. I also note that their dates of birth are in the years 1944, 1948 and 1952.
A delegate of the Minister invited the Applicant in writing to attend an interview, which was to take place on Tuesday 5th February 2008. It appears that the Applicant did not attend the interview and the delegate noted that the Applicant did not contact the Department to advise why she did not attend, nor did she request the postponement of the interview date.[1] The Minister’s delegate refused the application for protection visa on 5th February 2008.
[1] See Court Book at page 53.
Application to the Refugee Review Tribunal
The applicant then applied to the Refugee Review Tribunal for a review of the delegate’s decision. That application for review was received on 2nd March 2008. The Applicant gave a street address in the Sydney suburb of Campsie as her residential address and nominated that address as her address for correspondence. She did not provide any additional documentary evidence with her application for review.
The Tribunal wrote to the Applicant on 3rd March 2008 at that address, acknowledging receipt of the application. On 14th March 2008 the Tribunal wrote to the Applicant and invited her to a hearing, to take place on 21st May 2008 at 12 noon. The Applicant appears not to have acknowledged that invitation or provided a Response to Hearing Invitation form. Clearly she did not attend the hearing, as the Tribunal Member noted.
The Tribunal decided to proceed to make a decision on the material before the Tribunal without taking any further action. I note from the Tribunal decision record that the Tribunal appears to have made a mistake in referring to s.362B of the Migration Act. That is an error as Counsel for the Minister has pointed out. Section 362B relates to the Migration Review Tribunal and not the Refugee Review Tribunal and the correct section should have been s.426A of the Migration Act. Nevertheless, whilst it is a regrettable error, nothing turns on it.
The Tribunal signed the decision on 21st May 2008, handed that decision down on 10th June 2008. The Tribunal accepted that the Applicant was a Chinese national and noted that she feared serious harm in China because she practised Falun Gong, and claimed she was questioned by local security people who warned her and checked her home. However, the Tribunal found:
The claims before the Tribunal are lacking in essential detail. While the applicant refers to her Falun Gong practise, there is no detail about where she practised. There is also little detail as to the alleged incidents involving the security people. The applicant was invited to appear before the Tribunal but did not do so. As a consequence, the Tribunal has been unable to question her further as to the veracity of her Falun Gong claims leaving her claims unclarified and the Tribunal’s questions unanswered.[2]
[2] See Court Book at pages 83 -84.
The Tribunal is not satisfied on the evidence before it that the Applicant had suffered persecution in the past, or that she had a well founded persecution for reasons of race, religion or nationality, or because of her membership of a particular social group or political opinion, if she were to return to China in the foreseeable future.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 30th June 2008. The application in itself is quite sparse. It does not specify, as I said earlier, what orders the Applicant seeks. The grounds upon which the Applicant claims to rely are these:
“1. I am a Chinese citizen and I am a genuine Falun Gong member. I have been practicing for years and I have been and I have been warned by my local security and company to be put in prison if I continue this activity.
2. I can not stop practising Falun Gong since it has helped a lot with my health condition. I cannot go back to China since I’m very scared to be sentenced.
3. I have been actively practising Falun Gong since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since they came to my home twice and asked me where I am about.”
As I said the orders sought by the Applicant do not relate to any orders. The Applicant did refer to being unable to attend the Tribunal hearing due to sickness, and claimed that she informed the Refugee Review Tribunal. However, I see nothing on the Court Book to indicate that any message or medical certificate was received from the Applicant. The Applicant just did not attend.
The Applicant filed an affidavit in support at the same time as her application. In that application she said:
“1. I am a Chinese citizen and I have been practising Falun Gong for years. My application was refused by DIAC and RRT for refugee grounds.
2. Now I am applying for Magistrates Court and I hope that you can give me a fair decision and protection.”
The affidavit does not take the Applicant’s case any further.
The Minister for Immigration and Citizenship, the First Respondent, filed a Response in this Court on 11th July 2008. The Minister opposes the making of all claims for relief on the application and does not consent to the making of any of the orders sought in the application, whatever those orders may appear to be.
The fact is that the grounds upon which the Applicant seeks to rely do not set out any claimed jurisdictional error. As Counsel for the First Respondent points out; grounds one, two three and four including one of the orders sought, each seek to ventilate the merits of the Applicant’s claims. The Court has no jurisdiction to undergo any exercise of merits review; it has no jurisdiction to review the fairness or correctness of the Tribunal’s factual findings. I am referred to the decisions of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[3], and also NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[4]
[3] (1996) 185 CLR 259 at 272
[4] [2004] FCAFC 10 at [10]
The question arises as to whether the Tribunal ought to have applied sub-section 91R(3) of the Migration Act. In its reasons the Tribunal set out the substance of the statement annexed to the Applicant's protection visa application including the words
“I can practise my chose religion freely without fear of being persecuted … In Sydney I am able to enjoy life as normal and free individuals.”[5]
[5] See Court Book at page 83.
Counsel for the Minister submits that whilst it is not entirely clear, it would appear that this part of the Applicant’s statement includes in it an implied assertion that she has been practising Falun Gong in Australia. However, where the Tribunal has not made findings of fact favourable to an applicant, it is unnecessary to consider the application and the provisions of s.91R of the Migration Act. (See VBAO v Minister for Immigration and Multicultural and Indigenous Affairs[6] and also SZIBK v Minister for Immigration and Multicultural Affairs[7]).
[6] (2006) 231 ALR 544 at [43] – [46]
[7] [2006] FMCA 1167 at [9] per Driver FM
The Tribunal was not satisfied about the truth of the Applicant’s claims as her failure to attend the hearing had left her claims unclarified and the Tribunal’s questions unanswered. It is submitted, and I believe correctly, that no favourable findings have been made by the Tribunal that required it to consider whether to disregard the conduct claimed to have been engaged in by the Applicant in Australia.
Counsel for the Minister also submits that the sixth ground, if such it be in the Applicant’s application, appears to be a complaint that the Tribunal unfairly proceeded to decide the case in her absence, notwithstanding the fact that she had informed the Tribunal that she was sick. The fact is that the Applicant has not filed any evidence about that whatsoever. There is no evidence that she advised the Tribunal that she was sick, she just did not attend.
This unfortunately is one of a number of cases which this Court sees, where an applicant has not attended the hearing of the Refugee Review Tribunal. I am satisfied that the Tribunal complied with s.425 of the Migration Act and invited the Applicant to a hearing and did so in plenty of time. I am satisfied that there was no reason why the Tribunal should not have proceeded to hear the case in the Applicant’s absence, under the provisions of s.426A and not of course s.362B.
There are so many cases before this Court and before the Federal Court where applicants have been informed by the Tribunal that the evidence before the Tribunal is insufficient to make a decision in the applicant's favour which is why s.425 applies and the applicants have been invited to a hearing and if the applicants do not attend the hearing and do not give any reason as to why they have not attended. (See SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs[8]; SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs[9]; and NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[10]).
[8] [2005] FCA 1811
[9] [2005] FCA 1306
[10] [2004] FCAFC 287
The Tribunal did not grant the Applicant’s application because there was insufficient evidence before the Tribunal to allow the Tribunal to be affirmatively satisfied that the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention, as modified by the Refugees Protocol. Accordingly, the Applicant had not met the criterion of s.36(2)(a) of the Migration Act for a protection visa.
Conclusion
The Applicant did not attend the Tribunal hearing which was a serious mistake. I note that she did not attend the interview with the Departmental officer, in other words the Ministers delegate, who was also considering the application. That appears also to have been a serious error on the part of the Applicant.
In my view no jurisdictional error has been shown and in the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Under subsection 474(1) of the Migration Act, privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari, mandamus or prohibition for that matter in any Court for any reason.
The Applicant has been wholly unsuccessful in her claim, it is quite clear to me from a perusal of the Court file that the Minister’s lawyers have properly prepared this matter for a final hearing and came to the Court today equipped to deal with the matter on that basis. Sadly that work has not been put to the test by the Applicant who has inexplicably failed to attend the Court. In my view the sum of $4,200.00 which is well within the scale provided by the Federal Magistrates Court Rules is an appropriate figure.
The application will be removed from the list of cases awaiting finalisation.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 November 2008
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