SBHC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1209 (30 August 2005)

Last Updated: 31 August 2005

FEDERAL COURT OF AUSTRALIA

SBHC v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1209

SBHC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

No S 123 of 2005





FINN J
ADELAIDE
30 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 123 OF 2005

BETWEEN:	SBHC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	30 AUGUST 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the first respondent’s costs of the application.













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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 123 OF 2005

BETWEEN:	SBHC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	FINN J
DATE:	30 AUGUST 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The applicant, whose nationality the Refugee Review Tribunal ("Tribunal") was unable precisely to determine, applies to this Court under s 39B of the Judiciary Act 1903 (Cth) to review a decision of that Tribunal confirming the refusal to grant him a protection visa. He arrived in Australia on 2 January 1998 having travelled with an Indonesian passport which he later said was under a false name. He applied for a protection visa on 4 February 1998 also under that same allegedly false name but claimed within his application that he had a different name and was a citizen of China.

2 The substance of his claim for refugee status was that he had got into trouble in China owing to his political activities against the authorities in the People’s Republic of China. He claimed to be a professor in the field of mathematics at the People’s University in Beijing; that he was actively involved in demonstrations of the pro-democracy movements in Beijing from April 1989; he encouraged his colleagues to go out on the streets to fight for human rights; and he made a speech in Tiananmen Square. As one of the organisers of his university’s democracy movement, he was questioned several times by the communist party committee of the university.

3 On 15 June 1989 he was arrested at the university without further explanation. He said he was detained in a police station for more than three months but with the help of one of his colleagues he was released but remained under police investigation and had to report twice a week. He said he was also not allowed to speak to the media. On his release he claims he was demoted from a teaching position to that of a labourer.

4 In October 1989 he met one of his previous university students who worked as an editor at The Beijing Evening Newspaper who invited him to work as a special reporter for that paper. He later wrote "a lot of articles", some being published in the period 1989 to 1996. In early 1996 he was informed by the editor "that I had got into big troubles because of these articles"; he was advised to leave Beijing which he then did; he stayed with a relative in the country; and he then contacted his cousin in Indonesia to where he went before arrangements were made for him to come to Australia.

PROCEDURAL HISTORY

5 His application having been refused by a delegate of the Minister, he applied for a review to the Tribunal. Notwithstanding the opportunities the Tribunal gave to him to provide material to it and to attend a hearing, the applicant did not avail of them. The Tribunal discusses this procedural history in the following terms:

"On 6 October 1998 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The applicant was advised that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims. The applicant advised the Tribunal that he wanted to give oral evidence although it is noted that the signature on the form returned to the Tribunal appears to be substantially different to that on the applicant’s applications. On 26 October 1998 the Tribunal wrote to the applicant advising that the hearing would be held on 25 November 1998. The applicant was advised that if he did not attend the hearing and a postponement had not been granted, the Tribunal would assume that he no longer wanted to come to a hearing and that a decision could then be made without further notice. On 16 November 1998 the Tribunal wrote again to the applicant to say that the hearing would not take place on 25 November 1998 as previously advised but that it would take place on 16 December 1998. The applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. The Tribunal wrote again to the applicant on 17 December to offer one further opportunity to give oral evidence at a hearing on 7 January 1999. Again, the applicant did not attend the hearing or contact the Tribunal to explain that he could not attend or to seek an adjournment. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal."

6 At the hearing before me the applicant stated in oral submissions that he had not received the notices of the hearing because he always was moving. It is clear from the documents within the appeal book that he received and responded to the first s 426 notice of hearing. The applicant also accepts that he did not provide the Department with notice of his change of address or with alternative means of contacting him.

THE TRIBUNAL’S DECISION

7 Having set out the above procedural history, the Tribunal outlined both the applicant’s claims and relevant Chinese country information both in relation to suppression of political dissidents in the wake of the pro-democracy movement in 1989 and also in relation to control of the print and broadcast media by the authorities. The Tribunal went on to note that it was, in the circumstances, required to make its determination on the information contained in the applicant’s written material. It indicated, because it was unable to seek additional information from him, it was unable to make a finding about his nationality. It provided reasons why this was so including that the passport appeared to be genuine; that it had been issued a year before the applicant’s claimed departure from China; and that it showed that it had been used for considerable travel including a previous trip to Australia since the date of issue. It nonetheless considered his claims on the assumption that he was a Chinese national. It indicated why, in light both of the lack of information from him and of the country information, that it could not be satisfied that there was a real chance he would face persecution because of his political opinion if he were to return to China assuming that was his country of nationality.

8 His situation in Indonesia was not considered as no claims had been made in relation to that country.

9 The Tribunal, in rejecting the claim, again emphasised the failure of the applicant to provide further information in support of his claims, he having been put on notice by the Tribunal prior to the hearing that it was not prepared to make a favourable decision on the basis of the information previously provided by him. The Tribunal also emphasised its inability to explore his claim with him with the result that a number of relevant questions were left unanswered.

THE APPLICATION TO THIS COURT

10 The s 39B application is cast in uninformative terms. The grounds of it were that the Tribunal refused to accept that he was a person with a well-founded fear of persecution; that it failed to consider and properly exercise its discretionary powers; that there was an error in its findings; and that there was no basis for making its decision.

11 The applicant has appeared in person. He filed a submission on 29 August 2005 which is simply a narrative of his claims roughly reflecting what was contained in his original application, though I would note there are some differences, not the least of which is that he now claims that after 1989 he left Beijing and went to the provinces, no reference being made to his working for a newspaper. Equally, in this version, the editor was now cast primarily in the role of a college classmate who assisted him to escape to Indonesia. The submission obviously does not address any matter which could activate the jurisdiction of this Court under s 39B. The applicant also made oral submissions in this matter reiterating his earlier claims.

12 The first respondent filed an objection to competency on the basis that the application was filed five years out of time under s 477(1) of the Migration Act 1958 (Cth) ("the Act"). While accepting that the time limit would not apply to a purported decision affected by jurisdictional error, it was submitted there was no such error.

13 As the Act stood at the time of the Tribunal’s making of the decision, s 426A had not come into force. The Tribunal was nonetheless required to give an opportunity to the applicant to appear before it to give evidence under s 425 of the Act. As I have noted the applicant was given such opportunities and did not avail himself of them. The Tribunal was entitled to proceed with his application as it did.

14 The Tribunal’s reasons for decision are, in my view, unexceptionable in the circumstances. The applicant, it may well be knowingly, left the Tribunal in a position in which it could not be satisfied on the material before it as to the veracity of his claims. The Tribunal’s explanation for why it rejected the claims are equally unexceptionable. It is difficult to resist the conclusion that it has been the applicant’s own conduct that has prejudiced whatever prospects his visa application may have had. No jurisdictional error has been disclosed.

15 The application should be dismissed. The applicant should pay the first respondent’s costs of the application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 30 August 2005

The Applicant appeared in person.
Counsel for the First Respondent:	Dr C Bleby
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005