SZNEX v Minister for Immigration
[2009] FMCA 1326
•12 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNEX v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1326 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – grounds wholly unparticularised. |
| Applicant: | SZNEX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1313 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 12 October 2009 |
| Date of Last Submission: | 12 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2009 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondents: | Mr R. Knowles |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed 1 June 2009 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 1313 of 2009
| SZNEX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter, on 22 June 2009, Cameron FM made a number of interlocutory orders as to the service of materials. A number of those required compliance by the applicant. That his Honour saw fit to make such orders is not surprising, given the nature of the application originally filed on 1 June 2009. In that application, the applicant sought final orders:
a)that the Refugee Review Tribunal (“the Tribunal”) decision be found to be affected by jurisdictional error and be remitted to another Tribunal differently constituted, to be decided according to law; and
b)there was an application for costs. The grounds of application were simply stated to be:
“The RRT made jurisdictional errors.”
No indication whatsoever was given as to what those errors were said to be.
The affidavit in support simply annexed a copy of the Tribunal’s decision. The applicant did not comply with the interlocutory orders of Cameron FM, one of which was to remit the matter to Victoria, because that was where the applicant was understood now to be living. Today, when the matter was called on, the applicant did not attend although there was an interpreter present, and I stood the matter down to enable inquiries to be made as to where the applicant was. It emerged that she was in Melbourne, but it became apparent in the interchanges between her and the interpreter that there were very significant practical problems. These are recorded in detail in the transcript. What happened was that Mr Knowles of counsel for the first respondent told me his understanding from the bar table as he is the only advocate appearing. I confirmed through the interpreter that Mr Knowles’ accounts, given from time to time, were correct.
From the material thus proffered, it is all too easy to understand why the applicant did not comply with the interlocutory orders made. She is illiterate, I take it, in all languages and speaks no English of any moment. She was unable to say even the name of the street in which she is residing, although she was able to give the number. As I understand it, although invited to appear today, she indicated that she was not in a position to do so, because she would require the assistance of a third party to attend and that third party was not available. There was some suggestion that they might become available later today, but no certainty. Indeed, such uncertainty, as I understand it, extended to any further hearing of the matter in the event that it was to be adjourned today.
Not only that, but I understood through the interpreter and Mr Knowles that the applicant expressed an understandable reservation as to what she would be able to say if she did attend. As I understand it from the material, she is of limited educational background and her capacity to articulate the relatively sophisticated matters of law involved in consideration of jurisdictional error would reasonably be anticipated to be minimal. She is not represented and there is no apparent suggestion that she is going to be represented. In these circumstances, I formed the view that further adjournment of the matter was inappropriate, both because it was unlikely to give rise to any real advance in terms of the applicant articulating a position, and because in my view it would be more probable than otherwise that the applicant would not attend on the return date in any event.
Having said that, I move to the following observation which is that when one looks at the decision of the Tribunal which is the subject of this application, it does not seem to me on a fair reading to give rise to any matter which could reasonably be said to constitute jurisdictional error. The Tribunal clearly understood the nature of the task it was required to address. It did not in my view fail to have regard to any matters of evidence to which it should have had regard, nor did it take into consideration irrelevant considerations. That is of course not an absolute articulation of the matters that fall for consideration under the heading of jurisdictional error. Further, I am quite satisfied that the Tribunal did not fall into any such error.
I accept the submission made by counsel for the first respondent that the Tribunal properly complied with the statutory provisions relating to giving proper notice and an opportunity to the applicant to be heard. The applicant was after all heard at the Tribunal hearing and had the benefit of a representative and an interpreter. In one sense that is enough to dispose of the matter, but counsel for the first respondent very properly drew my attention to two matters which could be said on one view to give rise to elements of concern. The first arose out of an extract at page 39 of the Court Book. This was a statutory declaration filed by the applicant which, under a heading at the bottom of that page, the heading being, “What I fear might happen if I go back to my country”, articulated three lines.
First, “I will be harmed and killed by the Black Society.” Arguably second, “The villagers will not accept me as I am in so much debt,” and third, “As a Christian, I also believe that I will be harmed by the authorities.” Counsel’s broader submission was that the applicant never in fact articulated that second matter about the villagers not accepting her as a separate ground of application. It was not mentioned before the delegate. It was not taken any further by the representative when they were at the Tribunal, nor did the applicant, so far as the Tribunal’s decision records the matter, give any evidence as to this matter. Counsel submitted that if that ground was a separate aspect of the application, it had been abandoned, and I would accept that submission.
For my part, I am not sure that when one reads the applicant’s statutory declaration as a whole, it was articulating a separate ground, but if it was, I would accept counsel’s submissions in that regard. Furthermore, I would accept the submission that it is not the case that that ground, if it were such a ground, would in fact satisfy the relevant Convention nexus. If one looks at the Tribunal’s findings at paragraph 97 at
CB 130, and paragraph 112 at CB 133, I think one could fairly say the Tribunal made findings about the applicant’s evidence sufficient in my view to dispose of any aspect of that ground that might have been extant before it; that the Tribunal made broad findings that the failure of the applicant to repay gangsters for money was not, on the evidence before it, such that it was a Convention-related matter nor, and this is over-arching of course, that the relevant state authorities would condone it or let it happen.
It is clear that the Tribunal was of the view that the applicant had relevant recourse to state protection should she require it. The same finding was made at paragraph 112. Accordingly, I uphold the submissions advanced by counsel that that was not a matter that gives rise to any finding of jurisdictional error.
The second matter raised was in a sense even more opaque and derives from a short reference in the submissions of the applicant’s representative forwarded to the Tribunal at CB 97 and 103. That matter was articulated as a fear of harm on Convention reasons and raised the issue of the borrowings from the Black Society and the applicant’s alleged conversion to Christianity and her breach of the one-child policy.
At CB 103, the submission went on to refer to the existence of what is described as a personal dossier. It was noted that a personal dossier system does exist in China, but that it is now less significant than it had been in the past and the submission went on to say that:
“A person’s breach of family planning regulations could conceivably be recorded in this dossier which could affect their opportunities for government employment or further education.”
The same paragraph noted:
“Authorities may record the failed asylum attempt in the person’s dossier (“dangan”), which could impede the person’s attempts to obtain employment (particularly government employment) or to engage in further education.”
The personal dossier was never related back, as counsel correctly submits, to the applicant’s own position. It was not mentioned, it would appear, by the applicant in evidence and no concerns were ever articulated so far as the Tribunal’s decision reveals in relation to further education or government employment. I accept the submission that there was therefore no obligation on the Tribunal to deal with the dossier issue, given the way in which it was not pressed and in which it was, in any event, never dealt with in such a fashion as to give rise to a Convention nexus. The reality is that at paragraphs 102 and 103 of its reasons for decision at CB 131, the Tribunal made very damaging credit findings about the applicant in relation to the one-child policy and one might say generally. In the circumstances, it is clear that counsel’s submission that this issue does not give rise to jurisdictional error is correct.
In all the circumstances, it follows that the application should be dismissed with costs. I will fix those costs now.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 12 October 2009
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