FEDERAL COURT OF AUSTRALIA

SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462

SZJYK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 628 OF 2007

MOORE J

18 SEPTEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of motion be dismissed.

2.                  The applicant pay the first respondent's costs fixed in the sum of $500.

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

REASONS FOR JUDGMENT

1                     By notice of motion filed on 23 August 2007, the applicant seeks to set aside the orders of Heerey J made on 1 August 2007.  His Honour dismissed with costs the application for leave to appeal the decision of a Federal Magistrate of 26 March 2007.  The Federal Magistrate had dismissed an application for an order to show cause in respect of a decision of the Refugee Review Tribunal handed down on 30 November 2006: see SZJYK v Minister for Immigration & Anor [2007] FMCA 493.  Her Honour dismissed the application on the ground that it did not raise an arguable case for the relief claimed.

2                     Both parties filed written submissions prior to the hearing before Heerey J on 1 August 2007.  The applicant did not appear at the hearing.  No reasons were published by Heerey J for dismissing rhe application though it was almost certainly because the applicant did not appear: s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth).  The orders were entered on 7 August 2007.  Pursuant to s 25(2B)(bc) of the Federal Court Act the Court has power to vary or set aside an order made under s 25(2B)(bb) of the Act.  The Court's power to set aside such an order where the order has been entered was confirmed by the Full Court of the Federal Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61.

3                     On 3 September 2007, I ordered that the motion be dealt with without an oral hearing, pursuant to Order 52, rule 2AB of the Federal Court Rules.  This was done without hearing the parties on whether such an order should be made, but neither party has objected to this course nor sought the revocation of that order.  The parties were invited to provide written summaries of argument, as contemplated by Order 52, rule 2AB(2) of the Federal Court Rules.  Both the applicant and the Minister have done so.

4                     The applicant has sworn an affidavit in support of the motion.  In it the applicant deposes that he did not receive the letter inviting him to the hearing until 1 August 2007 by which time it was too late for him to attend.  I note that a copy of the letter sent by the Court to the applicant at his address for service is on the file and is dated 13 June 2007. 

5                     The applicant has also filed a document entitled "Submission".  The applicant restates that he did not receive the letter advising of the details of the hearing until 1 August 2007.  He further states that:

The Tribunal failed to consider my application in accordance with S91R of the Migration Act.  The Tribunal did not believe my claims based on some wrong information.

The Tribunal failed to carry out its statutory duty.  I was not given an opportunity to comment upon the reason or part of the reasons for affirming the decision The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958.

Based on the above mentioned jurisdictional errors, my case should be remitted to the Tribunal for reconsideration.

6                     The Minister opposes the applicant's motion.  First, the Minister does not concede that the applicant did not receive notification of the hearing until 1 August 2007.  An affidavit of Brooke Griffin, solicitor for the Minister, has been filed.  Annexed to the affidavit are copies of three letters, the first being the letter from the Court to the Minister's solicitors and the applicant dated 13 June 2007, and the other two being letters from the Minister's solicitors to the applicant (dated 15 June 2007 and 30 July 2007).  All three letters were addressed to the applicant at his address for service and advised of the time, place and date of the hearing.  The Minister further submitted that the fact that the applicant waited nearly three weeks after the hearing date to file his notice of motion casts doubt on his claims about when he received notification of the hearing details.

7                     The Minister submitted that the applicant is not entitled to the orders sought for one or more of the following reasons:

1.                  The Court would not be prepared to draw the inference that the applicant received neither the letter from the Court nor the letter from the Minister's solicitors dated 15 June 2007;

2.                  The Court would either reject the applicant's assertion that he did not receive notification of the hearing date until 1 August 2007, or that if he did not receive such letters, it was because he failed to take adequate steps to ensure the documents delivered to his address for service reached him without undue delay;

3.                  In any event, the proposed appeal does not have sufficient prospects of success to warrant the application for leave to appeal being reinstated.

8                     The Minister also submitted that, in any event, the proposed appeal had no prospects of success and for that reason that reinstatement of the application for leave to appeal was not warranted.

9                     The applicant's affidavit does not describe the circumstances in which he came to receive notification on 1 August 2007, for example whether it was because he was no longer residing at his address for service or whether the relevant letter arrived through the mail that day.  Even if the applicant did not in fact receive notification until 1 August 2007, I conclude, on balance, this was as a result of his own failure to take adequate steps to ensure documents delivered to his address for service without undue delay.  However, having regard to the serious consequences of dismissing the applicant's notice of motion, particularly where the merits of any application for leave to appeal have not been the subject of reasons, it is appropriate to consider the prospects of success of the substantive application.  In this respect, the prospects of the success of any appeal are relevant.

Background

10                  The applicant, a citizen of the People's Republic of China, arrived in Australia on 29 May 2006.  He lodged an application for a protection visa on 9 June 2006, which was refused by a delegate of the Minister on 30 June 2006. 

11                  The applicant applied to the Refugee Review Tribunal for review of the decision on 11 August 2008.  He claimed to fear persecution because he was a Falun Gong practitioner.  He claimed that in China police had searched his home and found Falun Gong material, and he had then been arrested and detained for questioning for 20 hours.  He had only been released on the condition that he cease practising Falun Gong.  After that time he became unemployed and his family told him to leave China.  He claimed to have continued practising Falun Gong in Australia.  He feared for his life if he returned to China.

12                  The Tribunal affirmed the delegate's decision, in its decision signed on 13 November 2006.  A key aspect of the applicant's evidence was that he only undertook the exercises and did not have any real interest in or knowledge of the spiritual aspects of Falun Gong.  The Tribunal's reasons record that the applicant was asked a number of questions by the Tribunal to test his familiarity with the practices and tenets of Falun Gong.  The reasons record that the applicant was unable to answer a number of such questions, even after prompting from the Tribunal.  For example, he was unable to identify the main scripture of Falun Gong, and admitted he had not read it.  The Tribunal also recorded that he had been unable to discuss the aims of the movement or identify many of its significant features, and his knowledge of the movement's history was negligible.  The Tribunal concluded, on the basis of independent evidence concerning the key indicators of a Falun Gong practitioner, that the applicant was not a genuine Falun Gong practitioner. 

13                  Also, the Tribunal was not satisfied that the applicant in fact simply practised the exercises as he claimed to do.  The Tribunal essentially did not accept any of the applicant's evidence regarding his claims to have taken up and practised the exercises in China.  The Tribunal described the applicant's evidence as "vague and insubstantial", "substantially lacking in detail about key events", and repeatedly contradictory.  In particular, it found his evidence about when he first took up the exercises, as well as the health problems that he said led him to take up the exercises, to be confused and contradictory.  Nor did it accept that any genuine Falun Gong practitioner, which was how he described his "mentor" who had introduced him to Falun Gong, would countenance and in effect encourage a person to merely practise the exercises without also embracing the spiritual aspects of Falun Gong.  Although the Tribunal accepted that the applicant had correctly identified the five exercises and given "summaries" of them to the Tribunal, it noted that he may have simply learnt them for the purpose of the hearing.  In this context, it referred to the book which the applicant had brought with him to the hearing which gave information about the exercises and which he said he had bought in Australia.  Furthermore, the Tribunal did not accept that he had had material confiscated nor that he had been arrested and detained, based both on the vagueness and inconsistency of his evidence in this respect, and the fact that it was not consistent with independent evidence about what might be expected to occur when a suspected Falun Gong practitioner was detained.

14                  The applicant filed an application for judicial review in the Federal Magistrates Court on 21 December 2006.  The grounds were to the effect that:

1.                  The applicant would be at risk of persecution if he returned to China;

2.                  The Tribunal failed to understand the applicant's claims and failed to consider relevant matters;

3.                  The Minister refused to grant the protection visa without proper grounds and proper investigation.

15                  The applicant appeared at the hearing before the Federal Magistrate and was unrepresented.  The Federal Magistrate considered that the first ground did not disclose any jurisdictional error.  No particulars or meaningful submissions had been provided in support of the second ground.  The Federal Magistrate considered that the applicant's complaint was with the Tribunal's rejection of his evidence and that he sought merits review, which was not open.  Her Honour considered that the third ground was misconceived.  Her Honour found that no other failure by the Tribunal in the conduct of its review nor its decision had been identified nor was such apparent to the Court.  The findings and conclusions of the Tribunal had been open to it on the evidence and material before it.  In the circumstances, the Federal Magistrate found that the application did not raise an arguable case and accordingly dismissed the proceedings pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).

The application for leave and draft notice of appeal

16                  The grounds contained in the draft notice of appeal are threefold:

1.                  The Tribunal "failed to consider my application according to S424A of the Migration Act 1958";

2.                  The Tribunal "had bias against me and failed to consider my application according to S91R of the Migration Act 1958";

3.                  The Federal Magistrates Court "did not give me an opportunity to have a hearing".

17                  The affidavit filed in support of the application for leave to appeal contains a number of unparticularised allegations of errors on the part of the Tribunal, in terms similar to the grounds set out above.  The affidavit provides as follows:

The Tribunal made jurisdictional errors when considered my application for a protection visa.  The Tribunal failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958.  I was not notified the reasons or part of the reasons for affirming the decision.  I was not given an opportunity to comment.  The application was not considered in accordance with Migration Act 1958. 

The Tribunal had bias against me and failed to consider my claims for me application for a protection visa.  My application was not considered in accordance with S91R of the Migration Act 1958.

Conclusion

18                  The applicant has not filed any documents which have shed any light on the grounds in the draft notice of appeal, for which no particulars were given.  He has not sought to relate the generalised grounds to the facts of his case.  Nevertheless, I have considered each of the grounds raised and whether any other error might be discerned.

19                  The first ground of the draft notice of appeal refers to s 424A of the Act.  The applicant has not pointed to any particular information to which it is said s 424A applied.  I am unable to infer from the Tribunal's reasons any information to which the applicant may have intended to refer or to which it could be said that an obligation under s 424A arose.  The only evidence to which the Tribunal refers in its reasons, other than evidence provided by the applicant and independent country information, appears to be the statutory declaration of a person who claimed to be involved in practising Falun Gong with the applicant in Australia.  That statutory declaration, received after the hearing, provided some corroboration of the applicant’s evidence about practising Falun Gong both in Australia and China.  The Tribunal recorded that it had taken the statutory declaration into consideration, but concluded that "it does not outweigh its concerns with the applicant's evidence".  It also noted that the applicant had not referred in his oral evidence to the sit-in to which the statutory declaration referred and that he had claimed to have mainly kept to himself in Australia.  I do not think that the statutory declaration could sensibly be seen as information forming the reason or part of the reason for affirming the delegate's decision.  No adverse views were formed on the basis of it; the Tribunal merely was not swayed by it to come to any different conclusion about the application than that which it had otherwise reached.

20                  The second ground also refers to s 91R of the Act.  Section 91R provides some of the key elements of the definition of refugee, for the purpose of determining whether a person is one to whom Australia owes protection obligations, and elaborates on the meaning of “persecution” (s 91R(1)) and in turn, the meaning of “serious harm” (s 91R(2)).  Subsection 91R(3) provides that any conduct the applicant engages in within Australia is to be disregarded unless the Minister is satisfied that the person engaged in that conduct for purposes other than strengthening their claims to be a refugee.  It is not clear what it meant by the applicant’s claim that the Tribunal failed to consider his application according to s 91R.  In any event, no error is discernible regarding the approach which the Tribunal took to the meaning of persecution, including serious harm, or to its conclusion that s 91R(3) applied to exclude the applicant’s claims about practising Falun Gong in Australia.  The view the Tribunal took regarding s 91R(3) was open to it based on the evidence and material before it and the adverse credibility findings it had made concerning the applicant. 

21                  The meaning of the third ground is unclear.  The applicant attended a hearing before the Federal Magistrates Court.  The Federal Magistrate's decision records that the applicant was granted leave to file an amended application and any additional evidence prior to the hearing and did not do so.  The Federal Magistrate considered each of the grounds contained in the application for judicial review, as well as whether any other jurisdictional error could be discerned, and found that no arguable case for relief was raised. 

22                  It may be that the third ground conveys a misunderstanding of the role of the Federal Magistrates Court in the sense that what the applicant really complains about is the failure of the Federal Magistrate to grant him a rehearing of his case on the merits which, as the Federal Magistrate's reasons indicate, was not open to the Court.  The Federal Magistrate was entitled to dismiss the application for judicial review on the basis that no arguable case for the relief claimed had been raised.  No error on the part of the Federal Magistrate has been demonstrated, nor can any be discerned.

23                  Accordingly, I am satisfied that any appeal would have no prospects of success, nor would any application for leave to appeal.  On that basis, the applicant's notice of motion should be dismissed.  The applicant is to pay the Minister's costs fixed in the sum of $500.

Associate:

Dated:         18 September 2007