Wei Hua Zhu v Jacovides, Andrew
[1996] FCA 875
•5 Sep 1996
CATCHWORDS
IMMIGRATION - whether Refugee Review Tribunal denied applicant the opportunity of appearing before it - question of fact - evidence insufficient to substantiate allegation - no question of principle.
No NG 187 of 1995
WEI HUA ZHU
Applicant
- and -
ANDREW JACOVIDES
First Respondent
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
O'Loughlin J
Sydney
5 September 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 187 of 1995
)
GENERAL DIVISION )
B E T W E E N:
WEI HUA ZHU
Applicant
- and -
ANDREW JACOVIDES
First Respondent
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
MINUTES OF ORDER
Coram: O'Loughlin
Place: Sydney
Date: 5 September 1996
THE COURT ORDERS THAT:
The appeal be dismissed.
The applicant pay the costs of the respondents of and incidental to the costs of this application and order, which costs are to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
NOT FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 187 of 1995
)
GENERAL DIVISION )
B E T W E E N:
WEI HUA ZHU
Applicant
- and -
ANDREW JACOVIDES
First Respondent
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Coram: O'Loughlin
Place: Sydney
Date: 5 September 1996
In my opinion this case can be decided summarily on its facts. There is a short point and it is this; did the Refugee Review Tribunal ("the Tribunal") deny Mr Zhu, the applicant, an opportunity to appear before it in support of his application for refugee status in circumstances that would enable this court to intervene? The applicant has claimed that his friend, Miss Chen, rang the Tribunal on his behalf and obtained some form of assurance over the telephone that the hearing would not be proceeding without further notice to him. That claim has been denied.
The applicant, when giving evidence before this court, acknowledged that on an earlier occasion he had received a
letter from the Tribunal to which was attached a form of questionnaire and that with the assistance of his friend, Mr Yu, that form was completed and returned to the Tribunal. The form contained an advice that the applicant did not wish to attend before the Tribunal on the hearing of his application for a review of an earlier adverse decision. There can be no doubt that in those circumstances, without more, it was wholly appropriate for the Tribunal to proceed with its consideration and indeed if, as it did, it chose to advance the actual date of its decision making process it was again wholly within its rights because of the disavowal by the applicant of his right to attend before the Tribunal.
His case, according to the applicant, took a turn on a later date when, to put it in the vernacular, he changed his mind. Taking advice from friends and relatives he decided that perhaps he should appear before the Tribunal; perhaps he should have the benefit of legal advice. His evidence is that he asked the daughter of his friend to ring the Tribunal and to look after his interests. The daughter was Miss Chen; her evidence is undoubtedly pivotal to the applicant's case. His claim for relief from this court is only as good as the calibre of Miss Chen's evidence.
If I overlooked the many changes in his story and the developments in his case, if I assess his case in terms that are the most advantageous to him, I have come, with a measure of regret, but nevertheless clearly, to the conclusion that at
its best, his evidence and that of his witness is insufficient to justify the intervention of this court.
The critical evidence is contained in the affidavit of Miss Chen at pars 2 and 3:-
"2.On a day in late February 1995 I returned to my home from an educational institution that I had attended on that day and I telephoned the Sydney registry of the Refugee Review Tribunal. A lady answered my telephone call. I said to the lady who answered my telephone call, words to the effect, "I am calling on behalf of Wei Hua Zhu". Further, I stated to the lady a number which I believed to be Wei Hua Zhu's Refugee Review Tribunal file number. I then said to the lady, words to the effect, "Mr Zhu wants to postpone his Refugee Review Tribunal hearing. Is it possible if the hearing could be postponed?" The lady said to me, words to the effect, "You have to have a reason before we make a decision to postpone a hearing". I said to the lady from the Refugee Review Tribunal, words to the effect, "Mr Zhu wants to seek legal advice."
3.I do not recall in detail the rest of the conversation with the lady from the Refugee Review Tribunal. However, at the conclusion of and as a result of the conversation that I had had with the lady from the Refugee Review Tribunal I did verily believe that the Refugee Review Tribunal would not conduct a hearing concerning Wei Hua Zhu without first notifying Wei Hua Zhu that the hearing would take place."(emphasis added)
I emphasise the underlined words in paragraph 2. Miss Chen spoke to the lady who answered the telephone. She makes no reference to being transferred to some officer within the department. The significance to my mind is that she spoke to a switchboard operator. Miss Ha, who gave evidence on behalf of the respondent, had earlier stated in her affidavit that she was the contact officer within the Tribunal in respect of
Mr Zhu's application. The letter that was sent by the Tribunal to Mr Zhu informing him of the date of the hearing contained her name, the telephone number and her extension number. One would have expected Miss Chen's affidavit to depose in terms of ringing the telephone number of the Tribunal and speaking to the lady whose name appeared in the letter, or some such type of evidence. The particular significance rests in the fact that Miss Ha, in giving evidence, said that if she, as an officer of the Tribunal had received an inquiry in the terms deposed to specifically in Miss Chen's affidavit, she would have made a file note and referred the matter to the relevant member of the Tribunal. That is an obvious procedure for an officer to adopt. Conversely, she said that if there was a telephone call of general inquiry without specific reference to names or file numbers it could well be the case that the switchboard operator might give words of general advice.
The last aspect of Miss Chen's affidavit which dissuades me from finding in favour of the applicant is her inability to depose to the terms of the conversation in any meaningful sense. She stated positively that the lady who spoke to her said, "You have to have a reason before we make a decision to postpone a hearing". Thereafter, Miss Chen fades away with the statement that she could not recall the detail of the conversation but formed the belief that what she had been told meant that the Tribunal would not conduct a hearing concerning Mr Zhu without first notifying her. That, in fact, is at variance with Mr Zhu's evidence at pages 45, 46 and 48 of the transcript. At that latter page it was put to him:-
"The Tribunal did not say to you or should I say Li Qun [ie Miss Chen] did not tell you that the Tribunal said that its hearing was postponed."
Mr Zhu on three occasions agreed with that proposition. I regret that the facts of this case are such that I am unable to make a finding of fact that the telephone conversation took place in terms whereby somebody representing the Refugee Review Tribunal told Miss Chen that Mr Zhu's hearing would be adjourned or postponed or words to that effect. That being the case, the history of the matter displays no cause justifying the intervention of this court.
I reject the proposition advanced on behalf of Mr Zhu that there were irrelevant considerations taken into account and that there was a failure to take into account relevant considerations. When the Tribunal made an adverse assessment on Mr Zhu's credibility, by virtue of the contents of the papers that were before it, I think it was quite within its rights to make that finding. It is not for this court to express a view whether or not it would have come to the same conclusion. It is sufficient for this court to note that it was within the ability of the Tribunal to make that decision.
The appeal is dismissed with costs.
I certify that this and the preceding pages are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice O'Loughlin.
Associate:
Date:
Counsel for the applicant : Ms M Bateman
Solicitor the applicant : Partners in Law
Counsel for the respondent : Mr G T Johnson
Solicitor for the respondent : Australian Government
Solicitor
Date of Hearing : 15 August 1996 and
5 September 1996
0
0
0