SZDXH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1205

FEDERAL COURT OF AUSTRALIA

SZDXH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1205

MIGRATION – appeal from Federal Magistrates Court – application for protection visa refused – no basis for any of the proffered grounds of appeal Judiciary Act 1903 s39B Migration Act 1958 Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) & Anor; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 SZDXH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR NSD 1077/2005 GRAHAM J 30 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1077 OF 2005

BETWEEN: SZDXH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 30 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the Respondents' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1077 OF 2005

BETWEEN: SZDXH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE: 30 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By a notice of appeal filed 30 June 2005 the Appellant, known as "SZDXH", has appealed from the judgment of a Federal Magistrate given on 16 June 2005 in respect of an amended application filed by the Appellant in the Federal Magistrates Court on 9 November 2004 by which the Appellant sought a review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 12 May 2004, which had been notified to the Appellant by post on 3 June 2004. 2 The Appellant claims to have been born on 1 October 1977 in the People's Republic of China, to be a citizen of that country and to have arrived in Australia, as a visitor travelling on a passport issued to him by his country of citizenship, on 9 January 2004. On 15 January 2004 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 ("the Act"). 3 In his application for a Protection Visa he stated:- "…I write to apply for a Protection Visa because I dare not to return to China where I have experienced persecution. After graduated from middle school I bought a small bus with witch (sic) I started my small business of conveyancing (sic) passengers. I did not expect that, not long after, I was blackmailed by traffic police. As they were the direct governing authority of my business, I could do nothing but to satisfy their demand. Later on they asked for more and more, and when their demand reached an amount that I could not afford, I raised the matter to the superior authority. But the superior authority did not preside the matter unbiasedly. They reached a decision to dismiss my complaint, saying that my claims could not be substantiated. Later on the traffic police framed up with an excuse that I overloaded passengers. For that reason my driving license was cancelled, and my business license was suspended. To support my family I went on operating my business until I was caught on the spot operating a business without holding a valid license. My vehicle was forfeited, and I was sent to a local police station for further investigation. I was required to pay a fine of RMB 30,000 or I would be put into jail. Being unable to pay that much money, I chose to get an Australian visa through an agent and then came into Australia. As I have just arrived in Australia, I can only provide a summary of my claims. Please allow me more time to recall my past experience and submit a more detailed statement." 4 RMB 30,000 was on 12 May 2004 the equivalent of approximately $A 5183. 5 The application for a Protection Visa did not include any expressed fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. 6 By letter dated 23 January 2004 the Appellant was advised by the Department that his application for a Protection Visa had been refused as he did not meet the relevant criterion namely that he be "a non-citizen in Australia to whom Australia has protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol." 7 The reasons for refusing the application provided by the Delegate of the Minister included an indication that the Delegate was not satisfied: " ● The applicant was repeatedly subjected to extortion by traffic police in the PRC ● This extortion reached a level of money the applicant could not afford ● A superior authority did not act on the applicant's complaints about this blackmail ● Police subsequently framed the applicant which led to the cancellation of his business licence ● The applicant continued to operate his business without a licence until he was caught by the authorities ● His vehicle was forfeited and he was required to pay a fine of RMB 30,000 or be placed in prison" 8 The Delegate's reasons were amplified in the succeeding paragraphs. 9 The Delegate's reasons concluded:- "As the Delegate is not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention, the applicant does not meet a prescribed criterion under clause 866.221 or clause 785.221 of the Migration Regulations for the grant of a Protection (Class XA) Visa and the application is refused." 10 On 23 February 2004 the Appellant applied to the Refugee Review Tribunal for review of the said decision. His reasons were expressed as:- "Please refer to my detailed statement at DIMIA" Presumably, this was intended as a reference to the matter set out in paragraph 3 above. 11 By letter dated 22 March 2004 the Tribunal wrote to the Appellant inviting him to come to a hearing to give oral evidence and present arguments in support of his claims and also to proffer oral evidence from other persons. 12 On 28 March 2004 the Appellant communicated with the Tribunal. His "Response to Hearing Invitation", received 6 April 2004, stated: "I … do not want to come to a hearing. I … consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me … to appear before it." 13 The Tribunal's decision dated 12 May 2004 was handed down on 3 June 2004. Notice of the decision was provided to the Appellant in a letter from the Tribunal dated 3 June 2004 under cover of which a copy of the Tribunal's decision and reasons were provided. 14 The Tribunal affirmed the decision not to grant a Protection Visa to the Applicant. 15 After dealing with the background to the Appellant's application for a Protection Visa and referring to the relevant legislation, the definition of "refugee" (including the four key elements of the Convention definition of a refugee) and the claims and evidence in the matter, the Tribunal set forth its Findings and Reasons and then concluded that:- "Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa." 16 The Findings and Reasons of the Tribunal were as follows:- "The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although theconcept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451. I accept that the applicant is a national of the People's Republic of China. However, I have a number of problems with the applicant's claims. Firstly, the applicant has provided very few details in his protection visa application form. For example, he has not provided any details of his passport or visa, even though the form asks for such information. In addition, the applicant has indicated that he would provide more details concerning his claims, but has failed to do so. Secondly, although the applicant indicates that he purchased a bus after completing middle school, his protection visa application indicates that he has only six years of primary education. The applicant has not explained this apparent inconsistency in the information he has provided. Thirdly, the applicant indicates that he was targeted by corrupt policemen and that he left China in order to avoid paying a fine. The information provided by the applicant does not suggest that he was targeted for reasons of his race, his nationality, his religion, his membership of a particular social group or his political opinion. In view of his lack of the detail contained in the protection visa application, I am unable to make findings of fact concerning the applicant's claims. It follows that I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason." 17 On 23 June 2004 the Appellant filed an application for review of the Tribunal's decision under s39B of the Judiciary Act 1903,reference being made, in addition, to s475A of the Act. 18 The grounds of the application were expressed as follows:- "1. The Refugee Review Tribunal made jurisdiction mistakes in considering my application. 2. The Tribunal could not produce any evidence to justify its decision on my application. …" 19 The amended application to which reference has been made above was expressed as follows:- "The Tribunal officer made mistakes when considering my application. He did not have any evidence or materials to justify the making of his decision. I believe that the officer had bias against me, and made the conclusion based on his bias against me. He did not have any evidence to justify his decision. Please refer to the decision letter from RRT. The Tribunal Officer made a lot of negative statements. He could not accept a lot of facts that I listed at my application He did not believe any of the evidence I provided just because my credibility became a problem in his mind. All the above-mentioned statements are induced by the actual bias of the Tribunal officer. There is not any evidence or materials to justify the making of such statements for his consideration of my application for a protection visa. He did not consider my application based on the information provided. He did not refer to the any (sic) independent information from Medias or from any other sources. I believe that he made jurisdiction mistakes in considering my application. I believe that the officer's consideration was based on a series of unsupported and unjustified assumption. He should not have made such mistake when considering my application." 20 In the circumstances of this case the "grounds" which may be distilled from the terms of the amended application to the Federal Magistrates Court could be described as unsubstantiated legalese. 21 In his reasons for judgment dated 16 June 2005 the learned Federal Magistrate said by way of conclusion:- "37. The amended application is deficient in that it does not identify in detail anything in relation to the decision of the Tribunal or the proceedings before the Tribunal which would assist the Court in determining whether the Tribunal made any reviewable legal error. I invited the applicant at the hearing on both 14 and 16 June 2005 to put to me anything that might assist me in identifying a legal error. But on each occasion the applicant declined to say anything. 38. It seems to me that the applicant's real dispute is with the findings of fact, such as they were, by the Tribunal, or rather with the Tribunal's failure to make findings of fact supportive of his case. This situation is clearly because on the scant evidence provided by the applicant the Tribunal was unable to reach favourable conclusions on the factual matters. … 40. I am not satisfied that the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 41. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal." 22 The learned Federal Magistrate dismissed the Appellant's application for review of the Tribunal's decision and ordered the Appellant to pay the Minister's costs and disbursements of and incidental to the application fixed in the sum of $5000. 23 The Appellant's notice of appeal from the judgment of the Federal Magistrate contains four grounds as follows: "2. RRT made jurisdictional error when considering my application for protection visa. 3. RRT failed to properly assess the chance of my persecution on my return to China because of the bias against me. 4. Federal Magistrates Court wrongly exercised its jurisdictin (sic) to refuse my application. 5. RRT did not refer to sufficient independent information for the consideration of my application for a protection visa." 24 Once again the observation may be made that the grounds advanced for the current appeal smack of unsubstantiated legalese. 25 If one considers the question of "bias" it may be noted that no suggestion of bias was contained in the original application filed in the Federal Magistrates Court. In the amended application a suggestion of bias is raised in the expressions "I believe that the officer (referring to the Tribunal) had bias against me, and made the conclusion based on his bias against me" and "All the above-mentioned statements are induced by the actual bias of the Tribunal officer". 26 In the notice of appeal to this Court the only mention of bias is made in the context of a perceived bias of the Chinese authorities against the Appellant were he to return to China. 27 In relation to "jurisdictional error" one has in the original application filed in the Federal Magistrates Court the statement "The Refugee Review Tribunal made jurisdiction mistakes in considering my application". In the amended application the sentence appears "I believe that he (referring to the Tribunal) made jurisdiction mistakes in considering my application". In the current notice of appeal one has the expression "RRT made jurisdictional error when considering my application for protection visa". 28 As the learned Federal Magistrate observed the Appellant declined to put any submission at the hearing before him identifying any legal error. 29 Proceedings before the Tribunal are not adversarial. Rather, they are inquisitorial. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which the Applicant chooses not to embark upon (per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) & Anor; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at 450-1). 30 This case offers no basis for a finding of jurisdictional error or for a finding that the decision of the Tribunal was not reached bona fide. 31 In my opinion there is no material before the Court which could justify upholding any of the Appellant's grounds of appeal. 32 When this matter was before me for first directions on 21 July 2005 the Appellant appeared in person with the assistance of an interpreter. The standard directions were made to prepare the matter for hearing. These included a requirement that the Appellant file and serve written submissions no later than seven clear working days before the hearing date. No such submission has been filed. 33 The matter was fixed for hearing at 10.15 am today namely 30 August 2005. When invited to comment in respect of the proposed directions the only submission put by the Appellant was "Date too short". I did not understand the Appellant at the time to be indicating that he could not prepare his case within the ensuing five and a half weeks. Rather, I understood him to be saying that he was hoping for a later hearing date. 34 The hearing date was confirmed in a letter sent by the solicitors for the Respondents to the Appellant on 23 August 2005. That letter included a paragraph as follows:- "If you do not attend on this occasion, the respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister's legal costs of the proceedings." 35 When the matter was before the Court this morning the name of the Appellant was called outside the Court three times as was the name by which the Appellant is known for the purposes of these proceedings namely "SZDXH". The Appellant did not appear. 36 Mr G T Johnson of counsel who appeared for the respondents asked me to proceed with the hearing generally in accordance with Order 52 rule 38A(1)(d) of the Federal Court Rules. I indicated a willingness to do so. Given the history of the matter and the nature of the Appellant's complaints I must say that it came as no surprise to me that the Appellant did not appear. 37 In my opinion the appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.