SZNLP v Minister for Immigration

[2009] FMCA 655

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLP v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 655

MIGRATION – Application to reinstate application for review of decision of Refugee Review Tribunal that was dismissed for non-appearance by the applicant.

Federal Magistrates Court Rules, rr.13.03C, 1605

Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Taylor v Taylor (1979) 143 CLR 1

Applicant: SZNLP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 871 of 2009

Judgment of: Barnes FM

Hearing date: 6 July 2009

Delivered at: Sydney

Delivered on: 6 July 2009

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application in a case filed on 25 May 2009 be dismissed. 

2. The applicant pay the costs of the first respondent fixed in the sum of $1400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 871 of 2009

SZNLP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application in a case filed by the applicant on 25 May 2009 to set aside orders made by a Registrar of this Court on 14 May 2009 dismissing an application for review of a decision of the Refugee Review Tribunal as there was no appearance by or on behalf of the applicant on that day.

2. The background to these proceedings is that the applicant, who arrived in Australia in August 2008, applied for a protection visa in October 2008.  The application was refused by a delegate of the first respondent.  He sought review by the Tribunal.  He attended the Tribunal hearing.  The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. 

3. The applicant sought review of the Tribunal decision by application filed in this Court on 16 April 2009.  He asserted that the Tribunal failed to consider his claims, that it had bias against him and that it could not make a fair decision on his application for a protection visa.  There were no particulars to those grounds.  The applicant’s supporting affidavit annexed a copy of the Tribunal decision and repeated the grounds of review without elaboration.

4. The time, date and place for the first court date (2.15 pm on 7 May 2009) were inserted on the application, apparently by the registry. There was no appearance by the applicant on 7 May 2009. However the matter was not dismissed for non-appearance. Rather the Registrar adjourned the matter until 14 May 2009. I am told that the solicitor for the first respondent notified the applicant of the adjourned hearing date. There was no appearance by the applicant on 14 May 2009. The application was dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules and the first respondent was ordered to notify the applicant of that order and of the provisions of r.16.05 of the Federal Magistrates Court Rules.

5. Relevantly, under r.16.05, in particular r.16.05(2)(a), the Court may vary or set aside its judgment or order after it has been entered if the order was made in the absence of a party. In the application in a case presently before the Court the applicant asked the Court to set another hearing date. I take this to be an application in the nature of an application under r.16.05. 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 discretion under r.16.05. It is well established that such discretion must be exercised judicially and with caution, although it is not so narrow or exceptional as to be virtually non-existent. An order may be set aside where it is in the interests of justice to do so (see Taylor v Taylor (1979) 143 CLR 1).

6. It is relevant in this instance to take into account the reasons given for non-appearance, in particular 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.  It is also relevant to have regard to whether or not there is an arguable case or question raised by the applicant in his original application.  In the present context that 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).

7. The only evidence provided by the applicant in support of the present application is a brief affidavit sworn on 22 May 2009 and filed on 25 May 2009 in which the applicant stated:

   I went to see my friend in Queensland.  I missed the original hearing date. 

   I’d like the Court to set another hearing date.

8. In oral submissions the applicant claimed that because he was in Queensland he failed to receive a letter that he had expected to receive from the Court advising him of the date he had to appear.  I asked him about this claim.  He was not able to explain precisely what he meant, given that the original application contained a return date of 7 May 2009, beyond reiterating that he was in Brisbane and that there was no one to check the mail box and so he did not get a notifying letter.

9. The applicant in effect had two opportunities to attend court, first on 7 May 2009, the original return date in the application, and then on 14 May 2009.  Even if the applicant failed to receive a letter of notification from the first respondent’s solicitors as to the adjourned hearing date that does not explain his failure to attend on the original date listed in the application for review, that being 7 May 2009.

10. In these circumstances the fact that the applicant was in Queensland is not such as to satisfy me that his absence was by accident on his part and without fault, such as to amount to circumstances that warrant the exercise of the discretion to set aside the dismissed of the review application. 

11. In any event, even if the reason for non-appearance was regarded as a satisfactory and reasonable explanation in relation to the 14 May 2009 date, nothing that the applicant has said today has satisfied me that there is an arguable case that the Tribunal fell into jurisdictional error in its decision or procedures.  In these circumstances it would be futile to reinstate the review application. 

12. The applicant was given the opportunity today to address the grounds in his original application and also to elaborate on any claim that the Tribunal fell into jurisdictional error. 

13. It is necessary to refer briefly to the applicant’s claims for protection as well as the Tribunal decision, the grounds of review and the matters raised in oral submissions today. 

14. It appears from the Tribunal reasons for decision that the applicant’s claims were initially set out in his protection visa application.  In essence he claimed that he had been persecuted in China because of his Christian religion and membership of an underground church and that he feared future persecution on that basis. 

15. The applicant also claimed that he and his wife had a second child in 2007 in breach of the one child policy and that he did not have the money to pay the fine imposed.  He claimed that as he had twice been found a member of an underground church as well as having breached the birth control policy, he might be imprisoned were he to return to China.  The Tribunal recorded that no further claims were made in the application for review, but that the applicant attended a Tribunal hearing.

16. The Tribunal reasons for decision are the only evidence before the Court of what occurred in the Tribunal hearing.  It is apparent from those reasons for decision that the Tribunal raised a number of issues with the applicant in addition to asking him why he believed he was a refugee.  The Tribunal asked the applicant about past events.  It also asked the applicant questions in relation to Christianity, as well as addressing his claim in relation to the one child policy.  It put to him independent country information and raised with him the fact that he had visited Singapore in 2008, but had not applied for asylum there, and had returned to China.

17. At the conclusion of the hearing the Tribunal recorded that it gave the applicant the opportunity to put other claims or matters before it and when asked if he needed more time to comment or respond to information the applicant replied that he had no further comments and could not get further documents about his arrest or claims, but he hoped the Tribunal would believe him. 

18. In its reasons for decision the Tribunal accepted that the applicant was a national of the Peoples Republic of China.  However it found his claims about his faith and religion in the protection visa application and at the hearing were very basic and uninformed and revealed no real knowledge of, let alone commitment to Christianity, the Christian faith, Jesus’ teaching or the Bible.  The Tribunal found, for reasons which it gave, that the applicant did not reveal any real knowledge of the Bible to the extent one would expect of a Christian who claimed he had been a Christian since around Christmas 2005 and who had been going to church every Sunday for some seven months in Australia.

19. The Tribunal was satisfied, based on the applicant’s responses at the hearing, that he did not even have a rudimentary understanding of the Bible or the Christian faith.  It found that he was so uninformed and limited in his responses that they were totally inconsistent with his claimed involvement with the Church.  It referred to the fact that the applicant had been given a number of opportunities at the hearing to demonstrate his interest in, commitment to and knowledge of Christianity, but that he had been unable to do so.  It also had regard to the fact that the applicant did not claim to have been baptised but had been unable to articulate his claim that he was not baptised “because he had not done a good job in preaching the Gospel”.

20. The Tribunal elaborated further on its concerns about the applicant’s claims in relation to Christianity and the difficulties of assessing a personal matter such as faith.  However, it found that it would have been reasonable for the applicant to have talked in simple terms about his faith and to have outlined what it was based on if this was important to him and was the reason why he feared he would be persecuted, (a matter put to him in a letter from the Tribunal), particularly having regard to his claims to have been detained for 15 days and then for three months in 2006 and to have been starved and tortured and only survived because he prayed daily.  It also noted that the applicant had provided no supporting evidence. 

21. The Tribunal was satisfied that if the applicant was a Christian in China and had a well-founded fear of persecution on that basis he would have had a reasonable knowledge on which his faith was based and have been able to articulate, even in general terms, his commitment.  The Tribunal was not able to satisfy itself that the applicant was a Christian or was a Christian in China.  It did not accept those claims.  It found that this went to the applicant’s credibility and that he was not a credible witness.  Hence it did not accept the claims that flowed from the applicant’s claims about Christianity in China, including his claim of detention and that his family had had to pay a fine, or that a scar that he had was inflicted for a Convention-related reason.

22. The Tribunal did not accept the applicant’s unsupported claims that he was regarded as being anti-government and anti-Chinese Communist Party by the authorities, or that officers of the court and the PSB went to his home after his release from detention.  Nor did it accept that if the applicant returned to China he would continue to spread the gospel and therefore get into trouble.

23. The Tribunal addressed the applicant’s claims based on the fact that he had two children and had been requested to pay a large fine.  The Tribunal accepted his claim that he was asked to pay a fine for having a second child but that he had avoided paying this, but had regard to the fact that he did not claim that his former wife had been sterilised or that he had suffered any other consequences because of the breach of the so-called one child policy.  It also had regard to the fact that at the hearing the applicant had made it clear that the difficulties he faced because he had a second child were not that important and that there was no evidence to support these claims.  While accepting that the applicant was asked to pay a fine, the Tribunal was not able to satisfy itself on the evidence before it that this would be serious harm amounting to persecution for a Convention reason. 

24. The Tribunal also had regard to the fact that the applicant had been able to leave China in July 2007, return in August 2008 and then leave China for a second time in August 2008 to come to Australia.  It referred to the fact that in his protection visa application the applicant had not claimed to have experienced any difficulties leaving or re-entering China, although he claimed at the Tribunal hearing that he had been detained and questioned.  In the absence of supporting evidence and based on the Tribunal’s findings, including about the applicant’s lack of credibility, it did not accept these claims.  It also had regard to his failure to seek asylum in a foreign country, such as Singapore, while overseas and his return to China.

25. The Tribunal was satisfied that if the applicant had been detained on two occasions as he claimed, and was regarded as being in breach of the one child policy in the manner that he claimed, then he would have been on an alert list and not allowed to leave China on two occasions.  The Tribunal was not satisfied that there was a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention reason if he returned to China, given that he had been allowed to leave on two occasions and return. 

26. The Tribunal noted that the applicant had provided no evidence to support his claim that he had been attending church in Australia.  It did not accept this claim and observed that he did not make any other sur place claims. 

27. The Tribunal nonetheless considered the possibility that the applicant was making a broader claim objecting to a more generalised system of human rights abuse and political and religious suppression in China.  However it found that he did not make any more specific claims in this respect that had not been dealt with and that he did not claim he had ever experienced or was likely to experience persecution because of his political beliefs or for any other Convention reason not already dealt with by the Tribunal.  The Tribunal was satisfied that given its findings the applicant would not be involved in any political or religious activity if he returned to China and concluded, considering all of his claims, that it was not satisfied there was a real chance he would be subject to serious harm amounting to persecution for a Convention reason if he returned to China now or in the reasonably foreseeable future. 

28. In his application for review the applicant claimed first that the Tribunal had failed to consider his claims.  When given the opportunity to elaborate on this contention in oral submissions today, in essence the applicant claimed that what he had told the Tribunal was true and that on that basis the decision was not fair or right.  Insofar as the applicant seeks merits review, merits review is not available in this Court.  It has not been established on the material before the Court that the Tribunal failed to consider the applicant’s claims as made in his protection visa application and during the Tribunal review.  The applicant’s disagreement with the Tribunal’s findings does not establish that it did not consider his claims. 

29. Nor does that disagreement establish bias, the other ground relied on in the application for review.  It is well established that it is a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]). Neither what the applicant said today nor the record of the Tribunal decision is such as to establish that there is an arguable case of either actual or apprehended bias.

30. The applicant took issue with the fact that at the Tribunal hearing he was asked questions about why he did not seek asylum in Singapore and endeavoured to provide an explanation to the Court in that respect.  However it was open to the Tribunal to question the applicant on such matters.  The applicant also seemed concerned that there was a concentration on this issue at the expense of other issues.  That is not consistent with the Tribunal account of what occurred in the hearing, which indicates that the applicant’s claims and his knowledge of Christianity were addressed in some detail by the Tribunal and also that he was given an opportunity at the end of the hearing to put further matters before the Tribunal.

31. I have indicated that insofar as the applicant seeks merits review that does not establish that the Tribunal failed to consider his claims.  Nor, more generally, does it establish or give rise to an arguable case of jurisdictional error on any other basis.  Nothing that the applicant has said today or the material before the Court raises an arguable contention that the Tribunal fell into jurisdictional error.

32. In these circumstances, as no arguable case is apparent or has been established and there is nothing in 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 on 14 May 2009 dismissing the application.  Accordingly, the application in a case filed on 25 May 2009 should be dismissed.

33. The applicant has been unsuccessful and there is nothing in the material before the Court to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 July 2009