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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZDLI v Minister for Immigration [2004] FMCA 858 (6 December 2004)

SZDLI v Minister for Immigration [2004] FMCA 858 (6 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLI v MINISTER FOR IMMIGRATION
[2004] FMCA 858




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.424, 426A, 474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

O'Toole v Charles David Pty Ltd (1991) 171 CLR 232

Dan v Commissioner of Taxation (Cth) [No. 2] [2000] FCA 752

Daihatsu Australia Pty Ltd v Commissioner of Taxation [2001] FCA 588

WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16

SBAP v Refugee Review Tribunal [2002] FCA 590

Kordan v Commissioner of Taxation [2000] FCA 1807

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507

VFAB v Minister for Immigration [2003] FCA 872

Ex parte H (2001) 179 ALR 425

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:
SZDLI




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1269 of 2004




Delivered on:


6 December 2004




Delivered at:


Sydney




Hearing date:


27 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

The applicant appeared in person with the aid of a Mandarin interpreter.

Counsel for the Respondent:


Miss R Francois




Solicitors for the Respondent:


Clayton Utz





ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in an amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1269 of 2004

SZDLI



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 11 March 2004 and handed down on 6 April 2004, affirming a decision of the delegate of the respondent ("the delegate") made on 29 April 2003 to refuse to grant the applicant a protection visa.

Background

2. The applicant, who claimed to be a citizen of the People's Republic of China, arrived in Australia on 20 February 2003. On 19 March 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act&quo;
t;). On 23 April 2003 the delegate refused to grant a protection visa and on 26 May 2003 the applicant applied for a review of that decision.

3. The applicant is a male, born on 18 September 1970 of Han Chinese ethnicity and is married with one child in China. The applicant claimed in his statement that he began to practice Falun Gong in 1998 and in late 1999, after Falun Gong had been declared an "evil cult" by the government, the applicant was arrested with many other followers and beaten. The police ordered the applicant to cease practicing Falun Gong but he refused. He was detained for more than one month but was later released because the detention centres were full and the authorities wanted to arrest new Falun Gong members. The applicant was again warned not to practice Falun Gong or he would be put back into detention.

4. After recovering from his injuries, the applicant claimed he joined with a group of other Falun Gong believers and they prepared a banner with the words "Truthfulness, Compassion and Forbearance" and began meditating in a public place. The police arrived and placed the applicant in detention where he was again beaten because he continued meditation. He was retained for three weeks then released. On returning to his home, the applicant found his house had been searched, Falun Gong items destroyed and his family threatened that they would be held responsible for his future actions.

5. The applicant obtained a visa and with the assistance of friends came to Australia in February 2003. The applicant claimed if he returned to China he would continue to face persecution for being a Falun Gong practitioner.

The delegate's decision

6. The applicant's application for a protection (Class XA) visa was received by the Department on 19 March 2003. However, there were no documents supporting the application submitted at the time of filing. The delegate refused the application on 29 April 2003. Among the reasons the delegate refused the application were:

a) The information provided by the applicant was inconsistent, lacked detail and there was no evidence that he continued to practice Falun Gong in Australia (Court Book p.47.8) ("CB").

b) The independent country information indicated that the government officers targeted leaders of the Falun Gong movement. The ordinary members taking part in demonstrations were likely to be lectured on the error of their ways and given a warning. Individuals, who had been able to obtain Chinese passports and exit permits, had been vetted by security authorities and were unlikely to have been on any wanted list if returned to China (CB p.48.5).

7. On 26 May 2003 the applicant applied to the Tribunal for a review of the delegate's decision. The applicant's application for review did not contain any further documentation in support of his claims.

The Tribunal's decision and reasons

8. On 5 November 2003 the Tribunal advised the applicant that it was not able to make a favourable decision on the information he had provided and invited him to attend a hearing on 16 December 2003 (CB p.55). On 15 December 2003 the Tribunal received a response to the hearing invitation completed by the applicant's migration agent stating the applicant did not wish to attend the hearing (CB p.56). On 11 March 2004 the Tribunal affirmed the decision of the delegate not to grant a protection visa.

9. As the applicant had declined the invitation to appear at the hearing, the Tribunal was obliged to proceed in the absence of the applicant. However, the Tribunal's decision indicates that it was not aware of the applicant's non acceptance of the invitation and proceeded to make its decision pursuant to s.426A of the Act.

10. The Tribunal did not accept that the applicant was a Falun Gong practitioner or that he had been persecuted. The reasons for that decision are summarised as follows:

a) The applicant's non attendance at the Tribunal hearing meant that the Tribunal was unable to elicit further details of the applicant's claim and accordingly relevant questions remained unanswered (CB p.67.7).

b) The applicant did not state that he had a religion in his protection visa application form (CB p.11 see Question 12) and there was no reference to his active participation in Falun Gong since his arrival in Australia (CB p.67.8).

c) The applicant's claim that the period of his detention was one month was not consistent with the government's treatment of those whom they consider to be "hard core Falun Gong supporters" (CB pp.47-48, 67.9).

d) The information provided by the applicant lacked detail and the Tribunal was not able to investigate the details of his claim more fully with him at the scheduled hearing (CB p.68.3).

11. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reasons of his belief or for any other Convention reason if returned to China (CB p.68.6).

The application for review of the Tribunal's decision

12. On 30 April 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:

"1. I hold strong fear to return to China as someone from the same practicing group has been detained and sentenced to 20 years jail.

2. There are many misunderstanding the officer had to my statement, and I was unable to explain in writing. It would be easier for him to understand me if I had been given a chance to see him face to face.

3. My wife and child are under great pressure and close watch of local police. We are unable to communicate with each other by phone or letters. She had sent me a letter asking for divorce. My life is in deep plight at the moment so are theirs. I hope I could give them some help.

4. I think the officer's decision was full of bias as the claims put forward were either ignored or not given enough weight."

The grounds are unparticularised and no supporting evidence was submitted.

13. The applicant attended a directions hearing on 11 August 2004 self represented with the aid of a Mandarin interpreter. By consent he agreed to Short Minutes of Order requiring him to serve and file an amended application, giving full particulars of each ground of review by 3 October 2004. That order was not complied with however an amended application was filed in the Registry on 11 October 2004 but there is no evidence that this document was served on the respondent. The grounds in the amended application were:

"1. The Tribunal denied the Applicant procedural fairness/natural justice.


Particulars
a. The Tribunal `had regard to the material referred to in the delegates decision, and other material available to it from a range of sources.' But did not advise the applicant of what material was or give him a real opportunity to comment on it.

b. The Tribunal failed to base the following findings on reasonable probative evidence:

(i) The Applicant is not a follower of Falon Gong; and

(ii) This is not consistent with the Chinese Government's treatment of persons whom they regard as hard core Galon Gong supporters.

c. The Tribunal failed to give the Applicant the benefit of the doubt.

2. The Tribunal failed to act in a bona fide manner in relation to the making of the decision.


Particulars
a. The Tribunal failed to base its decision on reliable, probative independent evidence commonly referred to as `Country Information'.

b. The Tribunal referred to `broad allegations' when no such allegations were made in this case.

c. The Tribunal misrepresented the nature of the Applicants claims.

d. In circumstances where an applicant does not appear before the Tribunal, the Tribunal has a greater onus to enquire into the circumstances of the case and/or to exercise the power contained in the Migration Act 1958 s.424. The Tribunal failed to discharge this onus." (errors reproduced)

14. At the directions hearing, the applicant also consented to file and serve any written submissions on or before five (5) working days prior to the hearing. There were no submissions filed.

The law

15. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

16. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

17. The applicant appeared self represented with the aid of a Mandarin interpreter. When the applicant was invited to make oral submissions in support of his application he declined the offer.

18. Miss R Francois of Counsel appearing for the respondent filed written submissions prior to the hearing. In response to the first ground of the original application, most effectively summarised as being that the Tribunal was not fair and did not allow the applicant to provide any details, information or speak face to face, it was submitted that this ground was clearly not supported by correspondence contained in the Court Book. The Tribunal records indicated both the applicant and his migration agent were informed of the hearing (CB pp. 55-56) and the applicant's migration agent responded that the applicant did not wish to attend the hearing (CB p.56). It is contended that in these circumstances there could be no unfairness in the Tribunal proceeding to make its decision.

19. In relation to the ground of bias, the applicant claimed that the Tribunal was biased because it ignored his claims and gave them little weight. It was submitted that there was no substance to the applicant's allegation that the Tribunal ignored any of his claims (CB p.67.1).

20. In respect of the applicant's absence of bona fides, it was submitted that this was to be proved other than by perusing the face of the record: O'Toole v Charles David Pty Ltd. However, proof of bad faith necessitated proof of extreme circumstances: Dan v Commissioner of Taxation; Daihatsu Australia Pty Ltd v Commissioner of Taxation. An example of bad faith would be dishonesty: WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16; SBAP v Refugee Review Tribunal. The allegation of bad faith was a serious allegation and should not be made lightly: Kordan Pty Ltd v Commissioner of Taxation. It was submitted that there was no proper evidence to support the assertion that the Tribunal acted in bad faith or was biased in this case.

21. In respect of the ground that suggests the Tribunal's decision was `pre-set in the back of its mind, there was no evidence the Tribunal came to its decision in this manner. This was nothing on the face of the decision to indicate that the Tribunal had a mind `incapable of alteration': Minister for Immigration & Multicultural Affairs v Jia at 532 or that a `fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided': VFAB v Minister for Immigration per Kenny J in reference to Ex parte H.

Conclusion

22. The applicant in these proceedings was representing himself and has made no oral or written submissions. The grounds in the original application are vague and unparticularised. The applicant attended a directions hearing on 11 August 2004 where it was indicated to him the material that he needed to prepare and file prior to the substantive hearing of the matter before this Court. The applicant filed an amended application out of time and there is no evidence that the document was served on the respondent

23. As the applicant is self-represented I will consider the content of the amended application, given that, where an applicant is self represented, the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The applicant was invited to make oral submissions from the bar table in support of his application, however he declined the invitation.

24. It is commonly expressed in the Tribunal's reasoning the obligations of the applicant to satisfy the Tribunal that all of the statutory elements are made out:

"Although the concept of onus of proof is not appropriate for administrative enquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any or all of the allegations made by the applicant. (Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 191; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170)."

25. The manner in which the original grounds have been drafted, being vague and unparticularised, make it difficult to address the individual issues to ensure that all aspects raised by the applicant have been satisfactorily addressed. I accept the approach taken by Miss Francois of Counsel and I have adopted her submissions as I believe they assist me in the resolution of this matter.

26. The issues of the opportunity to be heard and bias have been correctly addressed in the respondent's submissions and I adopt those arguments. In relation to the issues that arise by inference, such as the Tribunal's approach to the decision being "pre-set in the back of its mind", there is nothing before me other than that statement to support the allegation.

27. In ground 1 of the amended application, the applicant claims that the Tribunal denied him procedural fairness and natural justice and did not advise him of unfavourable material or give him an opportunity to comment upon it. That claim is not sustainable because on 5 November 2003 the Tribunal wrote to the applicant inviting him to appear before it on 16 December 2003 and indicated it had examined the material in relation to the applicant's application but was not able to make a favourable decision on the material before it. The response to the hearing invitation, signed by the migration agent on behalf of the applicant, indicated that the applicant did not want to attend the hearing.

28. In the Tribunal's decision under the heading of "Findings and Reasons' the Tribunal makes the following statement:

"Where broad allegations are made, the Tribunal hearing is an opportunity for the applicant to provide the Tribunal with additional information about their claims. The applicant was put on notice by the Tribunal that it was unable to make a favourable decision on the information before it. The applicant's non attendance has meant that it has not been provided with any additional information in support of his claim despite the ample opportunity for him to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claim with him. Consequently a number of relevant questions remain unanswered."

29. The second of the applicant's particulars states that the Tribunal's finding in relation to membership of the Falun Gong and the Chinese Government's treatment of its followers was not made on reasonably probative evidence. The Tribunal, in its letter to the applicant, indicated that on the material before it, it was not satisfied as to the nature or number of these key issues and wished to discuss these with the applicant prior to making its final decision. The applicant, however, declined to attend the hearing which meant the Tribunal was denied any further evidence the applicant may have had in his possession which may have supported his case.

30. The applicant's third particular suggests he was not given the benefit of the doubt by the Tribunal. As stated above, the Tribunal clearly indicated that it was unable to make a decision in the applicant's favour in the absence of further material. That further material could have been supplied by the applicant or by other persons willing to provide evidence on the applicant's behalf. The applicant did not take the opportunity to present further material and the position of the Tribunal, at the stage of issuing its letter, was not one where the outcome was in the balance. The decision was clearly against the applicant and the applicant was provided with the opportunity to appear and produce evidence in an attempt to reverse that decision. That invitation was declined.

31. The applicant's second ground is that the Tribunal failed to act in a bona fide manner in relation to the making of its decision. The first particular of this ground was that the Tribunal failed to base its decision on reliable, probative evidence contained in the "Country Information". The Tribunal did not make its decision on country information but rather on the credibility of the applicant himself. It observed that, although the applicant claimed he was a practising member of the Falun Gong, there were a range of inconsistencies with his application form and his continuance of practice of the movement since he arrived in Australia. It is to be assumed that the Tribunal would have explored these issues in greater detail had the applicant submitted himself to oral examination. The second of the particulars relates to the wording of broad allegations and the applicant's claim that no such allegations were made. This language is used in the context of the applicant's original visa application and other information supplied by him at that time. In the absence of any further oral or written material supplied by the applicant to support his original claim, the Tribunal rightfully categorised these as broad allegations.

32. The third of the applicant's particulars claims that the Tribunal misrepresented the nature of the applicant's claims. The nature of the applicant's claims are contained in three and a half pages of double spaced typed notes which give a very broad and general statement in relation to the applicant's circumstances. Half of the document relates to a very broad and sketchy history of the Falun Gong movement, the applicant's alleged involvement and a number of isolated incidents of claimed mistreatment by Chinese Government officials. The Tribunal wished to examine in detail this broad story with the applicant but this examination was denied the Tribunal. On a fair reading of the decision, the original application and supporting statement do not disclose any distortion of the material submitted.

33. The last of the applicant's particulars alleges that the Tribunal failed to observe the provisions of s.424 of the Act when undertaking their decision making process. Section 424 gives the Tribunal power to seek additional information by pursuing a number of different courses however, it does not shift any onus on to the Tribunal when making that decision.

34. I have no been able to identify any ground that the Tribunal has committed a jurisdictional error. The applicant's claim should be dismissed.

35. I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 6 December 2004
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