FEDERAL COURT OF AUSTRALIA

SZHEW v Minister for Immigration and Citizenship [2007] FCA 243

MIGRATION – application for protection visa – application for leave to appeal from decision of Federal Magistrate – dismissal pursuant to Federal Magistrates Rules 13.03A(c) for non-appearance – whether futile to grant leave – whether lack of bona fides on part of Refugee Review Tribunal – whether evidence ignored.

Federal Magistrates Court Rules 2001, r 13.03A(c)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

SZCPY v Minister for Immigration & Multicultural Affairs [2004] FMCA 646

SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 

SZHEW v MINISTER FOR IMMIGRATION AND CITIZENSHIP

AND REFUGEE REVIEW TRIBUNAL

NSD 2451 OF 2006

GILMOUR J

1 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

2.                  The application for leave to appeal be dismissed.

3.         The Applicant pay the First Respondent’s costs fixed at $1300.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of aFederal Magistrateof 27 November 2006.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) of 29 July 2005 and handed down on 18 August 2005 to refuse to grant a protection visa to the applicant. 

Background

2                     The applicant is a citizen of the People’s Republic of China who claims fear of persecution by reason of being a Falun Gong practitioner.  Before the Tribunal the applicant claimed that he began to practise Falun Gong in March 1999 but that he practised secretly, that his cousin was in prison because he introduced him to Falun Gong, and that he had been informed by his parents that the Public Security Bureau (PSB) had visited his home to investigate and arrest him.  The applicant also claimed that he had been detained from 17 May 2002 until 6 October 2002 due to his practice of Falun Gong.  The applicant submitted to the Tribunal a photocopy of a photograph of himself holding a Falun Gong badge. 

The decision of the tribunal

3                     The applicant attended the hearing of the Tribunal on 27 July 2005.  The Tribunal found that the applicant’s knowledge of facts about Falun Gong was incommensurate with his claims that he was a Falun Gong practitioner.  It observed, following its questioning of the applicant, that he did not know the founder of Falun Gong, the number of exercises, the main text or when Falun Gong was banned by the Chinese Government.  For example, when asked if he was a Falun Gong practitioner at the hearing, the applicant claimed that he did not practise but thought about Falun Gong whilst sleeping.  He said that every morning from 4.30 until 5.00 he listened to Falun Gong lessons and thought about Falun Gong when he was going to sleep. 

4                     The Tribunal did not accept that the applicant was ever a Falun Gong practitioner or was involved in any Falun Gong activities.  Nor did it accept that he was ever detained, that his cousin was in prison because the applicant introduced him to Falun Gong or that the PSB had visited the applicant’s home.  It did not accept that the applicant had suffered any of the claimed harm. 

5                     The Tribunal considered the applicant’s claims were fabricated, especially noting that the applicant’s claim of detention was only provided at the hearing but had not been mentioned in the statement lodged by him with his application.  It was put to him that this might indicate that this claim was fabricated.  He did not respond.  As to the photograph, the Tribunal noted that it was difficult to see the badge and whether it was him or not.  Furthermore, the facsimile date on the photograph was contrary to the applicant’s claimed date of receipt.  Consequently, no weight was given to the photograph.  It was therefore not satisfied the applicant had suffered any Convention-related harm, or that there was any real chance of such harm occurring to the applicant in the reasonable future.

6                     On 18 August 2005 the Tribunal delivered its decision affirming the decision of the delegate of the Minister not to grant a protection visa.

The decision of the Federal Magistrate

7                     On 23 September 2005 the applicant originally sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The application was first mentioned before Lloyd-Jones FM on 26 October 2005, and adjourned for further directions to 30 March 2006.  On that date it was adjourned to 28 August 2006. 

8                     The court record shows that the applicant did not appear when the matter was listed on 28 August but appeared later.  When he did not appear his application was dismissed.  He then turned up.  The Court called the matter on again and the earlier order was vacated.  The applicant was told by the Federal Magistrate that the matter would come on again in September and he would receive notification of the actual date.  On this day the applicant filed a Notice of Change of Address for Service disclosing an address in Bankstown, New South Wales. 

9                     About two weeks later, on 12 September 2006, the Court wrote to the applicant at the Bankstown address, advising him that the matter had been listed for directions for 11.30 am on 25 September 2006 and stating that if he did not attend then orders might be made in his absence.

10                  On 25 September the matter was listed before the Federal Magistrate at 11.30 am.  It was called on at 11.37 am but the applicant did not appear.  The matter was held in the list and called again at 12.06 pm.  Again there was no appearance by the applicant.  The Federal Magistrate dismissed the application for non-appearance by or on behalf of the applicant under the provisions of Rule 13.03A(c) of the Federal Magistrates Court Rules: Federal Magistrate’s Reasons at para [4].

11                  A copy of the judgment of dismissal of 25 September 2006 was sent by the Court under cover of a letter to the Bankstown address on 5 October 2006.  I have sighted a copy of this letter on the Court file.  It is to be noted that the dismissal decision, according to the applicant in his affidavit in support [3] was received by the applicant.  At the hearing before me the applicant said that he had not received notification of the dismissal order made on 25 September 2006.  When I invited him, through his interpreter to read paragraph [3] of his affidavit in support of the motion he then said that in fact he had received such notice.  The change in his explanation was he said due to his being poorly educated.

12                  On 3 November 2006 the applicant filed a notice of motion to set aside the decision of 25 September 2006 and to have the matter reinstated. 

13                  The applicant filed an affidavit in support stating:

(1)               On 25 September 2006 I did not appear at the Federal Magistrates Court for the Hearing.

(2)               On 28 August 2006 I attend the court for a directions hearing and I was told that I would need to attend a new direction hearing in sometime around October 2006, and that the Court will send letter advising me the new direction hearing date.

(3)               I change my address to Bankstown and I asked people living at my previous address to forward my letters to me.  I only received a decision from the Court saying that my application was dismissed on 25 September 2006.  I was not aware that there was a directions hearing on 25 September 2006, because the court told me earlier that it would be in October.

(4)               I wish to be given a further hearing opportunity so that I can properly present my case.

14                  When the motion dated 3 November 2006 came on for hearing before the Federal Magistrate on 20 November 2006 the applicant who appeared in person said that his address was different to that stated in the Notice of Change of Address for Service filed with the Court on 28 August 2006.  At the request of the applicant the matter was adjourned to 24 November 006 to enable the applicant to have the services of an interpreter in the Fujian language.  Again the applicant appeared in person on that day, assisted by the interpreter in the Fujian dialect.  He said he had, by his migration agent, notified the Court of this further change of address.  He said his migration agent had told him he had attended to this.  There was however no such change of address noted on the Court file.  In his affidavit the applicant deposed that he had been told by “the Court” that the new date for listing of his original review application would be in October.  He did not specify any particular date in October.  When asked by the learned Federal Magistrate who at the Court had told him this he did not answer.  When I asked him he said it was the Federal Magistrate at the reconvened hearing on 28 August 2006.

15                  His Honour was not satisfied of the claim by the applicant that he had told his migration agent who then notified the court of the applicant’s change of address.  In any event a letter, as I have mentioned, dated 12 September 2006 was mailed to the applicant at the Bankstown address.  It notified him of the 25 September 2006 hearing.  Importantly a copy of the judgment of dismissal was sent to the applicant by letter dated 5 October 2006.  The applicant says he got this. 

16                  The applicant did not file any amended application in respect of his substantive claim although he had had the benefit of legal advice from a barrister.  His application for review of the Tribunal’s decision sets out two grounds of review:

1.                  The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the Tribunal failed to consider the fact that the applicant is illiterate, which may affect his ability to study Falun Gong, of which the applicant claims to be a follower.

2.                  Important evidence ignored by the Tribunal: the applicant submitted a photocopy showing him with a Falun Gong badge.  This evidence was not accepted by the Tribunal merely because the facsimile date showing on the paper contradicts to the applicant’s claim that he received the copy two days before the hearing.  The applicant claims that he received the facsimiled copy by post from China two days before the hearing.

17                  The learned Federal Magistrate had due regard to the principles applicable to a motion for reinstatement namely a consideration not only of the explanation given for non-attendance at the hearing but also as to whether reinstatement would be futile where there are no reasonable prospects of success: SZCPY v Minister for Immigration & Multicultural Affairs [2004] FMCA 646 at [12].

18                  This, in my opinion, was the correct approach. 

19                  The learned Federal Magistrate was not satisfied that the explanation for his failure to appear was satisfactory.  He stated [25]:

I am not satisfied that the Applicant has given a reasonable explanation for his failure to appear.  The Court wrote to him at his address for service that he had provided only about a fortnight earlier.  The Applicant says that he told his migration agent who said he had advised the Court, but there is no evidence to corroborate that assertion.  I am not satisfied that it is true.

I am satisfied that it was open to the Federal Magistrate to so find.

20                  As to the applicant’s substantive grounds of review his Honour found:

20.       Contrary to the Applicant’s claims, the Tribunal did consider the fact that he cannot read (at Court Book page 58) but was not persuaded by that explanation (at Court Book page 63). The Tribunal was entitled to make the finding that it did about the copy of the photograph on the basis of the evidence.

21.       As to whether the Tribunal made an attempt to deal with the review in a bona fide manner, in so far as the application alleges a breach of good faith, I am unable to discern any evidence in support of that claim. The Full Court of the Federal Court set out in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [42] - [48] the principles applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review (see also SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076).

22.       An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]-[44].  In this case, I can find no evidence of a lack of a bona fide attempt to exercise the power of review by the Tribunal.

23.       The Applicant's grounds for review do no more than seek to challenge the Tribunal's factual findings, but merits review is not available to an Applicant in an application for judicial review. There was evidence available to the Tribunal that would justify the Tribunal's factual findings.

24.       I am aware that the Applicant is not legally represented. My independent examination of the material does not disclose any arguable case of jurisdictional error.  In my view, the Applicant’s substantive application has no reasonable prospects of success.

21                  In those circumstances, his Honour held that reinstatement would be futile as his substantive application had no reasonable prospects of success.  

22                  On 15 December 2006 the applicant filed an application for leave to appeal, a supporting affidavit and a draft notice of appeal. The application for leave to appeal asserts that the “grounds of the application appear in the annexed affidavit”. The affidavit effectively repeats the ground raised in the draft notice of appeal and also asserts that if the applicant returned to the PRC he would be persecuted as a result of his practise of Falun Gong. This latter assertion, as the first respondent submitted, amounts to a re-statement of his refugee claims and does not constitute a proper ground to be raised on an appeal.   

23                  The draft notice of appeal contains the following grounds:

The appellant contended in the FMC that the Tribunal failed to deal with his review application in good faith as the Tribunal ignored important evidence he provided, which is a photocopy showing him with a Falun Gong badge.  This evidence was not accepted by the Tribunal merely because the facsimile date showing on the paper contradicts to the applicant’s claims that he received the copy.  The Tribunal also failed to invite the applicant to explain on such contradiction.

24                  This ground plainly challenges the decision of the Tribunal, and not the Federal Magistrate.  I will nonetheless deal with the ground as stated.  The Tribunal in its reasons dealt with the evidence of the photograph in this way:

The applicant handed up a copy of a photograph (Folio 34) and said that was his photograph showing him with a Falun Gong badge.  The Tribunal indicated to the applicant that the copy is very unclear and that indeed it is difficult to see the badge and whether it is him or not.  The Tribunal asked the applicant when he received this copy.  He said it was sent to him “the day before yesterday” from his hometown.  The Tribunal put to the applicant that the copy has a facsimile date of “Feb. 25 2003 01.11” contradicting his claim that the copy was sent to him the day before yesterday.

25                  Accordingly the Tribunal considered the relevant photograph but gave it no weight. It was open to the Tribunal to do so.  The contradiction in the dates was put to the applicant by the Tribunal.  No jurisdictional error is evident.  The applicant did not cause it to be satisfied as to the applicable criteria: SJSB v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 and SZBCS v. Minister for Immigration [2005] FMCA 25. 

26                  In any event, a lack of good faith is a serious allegation involving “a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker”: SCAS v MIMIA [2002] FCAFC 397 at [19].  I find no support for such an allegation.  To the extent that this ground may be regarded as an allegation of bias, the applicant has failed to meet the requirement that bias be firmly and distinctly made and clearly proved: MIMA v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. 

27                  The ground of appeal relied upon cannot succeed. 

28                  I have carefully considered the reasons of both the Tribunal and the Federal Magistrate as well as the grounds before me and I am unable to discern any jurisdictional error on the part of the Federal Magistrate.

29                  I am of the opinion that no arguable ground of appeal is raised by the applicant, or putting it another way, the decision below is not attended by sufficient doubt to warrant an appeal going forward leave to appeal will be refused: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543.  I am also of the view that no substantial injustice would arise upon such refusal assuming the decision below to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  This is because the substantive grounds for review of the Tribunal’s decision, in my opinion, adopting as I do the Federal Magistrate’s reasons, have no reasonable prospects of success. 

30                  It follows in my opinion that in this case leave to appeal should be refused.  The application will be dismissed with costs.

Associate:

Dated:         1 March 2007