SBHC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 25 (10 March 2006)

Last Updated: 13 March 2006

FEDERAL COURT OF AUSTRALIA

SBHC v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCAFC 25

MIGRATION – appeal from decision of a judge of this Court – whether primary judge erred in dismissing application for review – where appellant given numerous opportunities to present information to the Refugee Review Tribunal but failed to do so – where there was no material put before primary judge to suggest that the Refugee Review Tribunal decision contained a jurisdictional error – appeal dismissed.

























SBHC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 233 of 2005




KIEFEL, LANDER and GRAHAM JJ
10 MARCH 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 233 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBHC APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	KIEFEL, LANDER and GRAHAM JJ
DATE OF ORDER:	23 FEBRUARY 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.

3. The Refugee Review Tribunal be joined as a party to the proceedings as the second respondent.

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 233 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBHC APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	KIEFEL, LANDER and GRAHAM JJ
DATE:	10 MARCH 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal against orders of a Finn J dismissing an application to review a decision of the Refugee Review Tribunal (the RRT) in respect of the appellant´s application for a protection visa.

BACKGROUND FACTS

2 The appellant arrived in Australia on 2 January 1998, travelling on an Indonesian passport in the name of Mudjiono.

3 On 4 February 1998 the appellant applied for a protection visa in the name of Mudjiono. However, in his application, he claimed that his real name was Xue Congen and that he was a citizen of China.

4 The appellant claimed that whilst in China, he had been a professor in the field of mathematics at the People’s University in Beijing. He said that from April 1989 he had been involved in demonstrations in support of the students’ democratic movement and ‘other democratic movements’. The appellant claimed he encouraged his colleagues to go into the streets to fight for human rights and made a speech in Tiananmen Square.

5 The appellant said that he was questioned several times by the Communist Party Committee (CPC) of the University and on 15 June 1989 was arrested and detained for three months. The appellant said that, following his arrest, he was required to report to police twice a week and was not allowed to speak to the media or ‘go anywhere else’. On his release he was demoted from the position of professor to that of a labourer.

6 The appellant further claimed that from 1989 to 1996 he wrote articles for ‘Beijing Evening Newspaper’ until he was informed by the editor that he ‘had got into big troubles because of these articles’. He was advised to leave Beijing. He said that he travelled to a country province in China where he stayed with a relative until he went to Indonesia in December 1997. He travelled from Indonesia to Australia in January 1998.

7 The appellant claimed that there was a real chance of him being persecuted by the CPC if he were forced to return to China.

8 On 26 February 1998 a delegate of the respondent refused the applicant’s application for a protection visa. On 25 March 1998 the appellant applied for review before the RRT. In his application the appellant reiterated the original grounds of the application for a protection visa and added:

‘I do believe that I have more than 50 per cent chance of persecution on my return mainly based on the reasons as I stated in my original application, because I supported and actively participated in democratic movement, I was arrested and questioned by the Police. With the help of my colleague, I was released but I was demoted from a senior position to labour position. As I continued to fight for democracy and freedom, I was facing the extremely dangerous, so I had to fled China to Indonesia, then I successfully arrived in Australia in 1998.’

9 On 6 October 1998 the RRT sent the applicant a notice pursuant to s 426 of the Migration Act 1958 (Cth) (the Act), advising him that the RRT was not prepared to make a favourable decision on the written information before it and offering the appellant an opportunity to give oral evidence in support of his claim. He was also advised that he could ask the Tribunal to obtain evidence from other people.

10 On 21 October 1998 the appellant responded accepting the invitation to give oral evidence. On 26 October 1998 the RRT sent a letter to the appellant, inviting him to attend an oral hearing on 25 November 1998. On 16 November 1998 the RRT sent a further letter to the appellant, re-scheduling the hearing of 25 November 1998 to Wednesday 16 December 1998. The appellant failed to attend the hearing of 16 December 1998. On 17 December 1998 the RRT wrote to the appellant, advising him that he had been allocated a further oral hearing on Thursday 7 January 1999. The appellant also failed to attend that hearing.

THE RRT’S REASONS

11 On 15 January 1999 the RRT affirmed the decision of the Minister’s delegate not to grant a protection visa. The RRT was satisfied that the appellant had been given every opportunity to give oral evidence before it, and by his non-attendance had effectively declined the opportunity. It proceeded to hear and decide the matter in his absence.

12 The Tribunal Member gave the following reasons for her refusal to grant the appellant a protection visa:

‘I have been unable to seek additional information from the applicant about the Indonesian passport he used to travel to Australia. The passport, a copy of which is on the Department’s file, appears to be standard Indonesian passport and the signature in the passport appears to match that on the applicant’s application forms. However, the applicant’s evidence, if true, means that the passport could not be genuine: it was issued more than a year before his claimed departure from China and shows that it had been used for considerable travel since the date of issue. He provided no information about the circumstances in which he obtained the passport and I am unable, from the information before me, to be satisfied that it is not a genuine passport and therefore to be satisfied that he is a citizen of China as he claims to be rather than a citizen of Indonesia as the passport indicates. I am therefore unable to make a finding about the applicant’s nationality and will consider both possibilities to the extent that I am able given the limited information before me.

I have considered the applicant’s claims about what happened to him in China in the light of relevant country information outlined above. I have been unable to seek from him additional information about what occurred in 1989, about his release and his demotion, to establish whether what he experienced was of a type and severity which could amount to persecution and whether the reason for what occurred was the applicant’s expression of his political opinion. Nor have I been able to explore with him what led his former student to warn him to leave Beijing because of his writings and whether he knows if the authorities have been seeking him. The Tribunal understands that a person who only participated in political activities in 1989 as the applicant claims to have would not generally now, because of that, be of interest to the authorities. If he was detained for three months as he has claimed, his release after this period and the absence of any claims that the authorities took any further interest in him support a conclusion that he was not a person whose activities were regarded as a threat to the regime. I note that the applicant claims that he wrote articles for the newspaper from 1989 until 1996 and it was not until then that the authorities took any interest in his writings. I have no information about what the articles were about or whether they were published anonymously but his evidence that there was no interest from the authorities until 1996 would seem to indicate that they were not concerned about them. From what the applicant has provided, I cannot be satisfied that there is a real chance that he would face persecution because of his political opinion if he were to return to China, if that is his country of nationality as he has claimed, and I am therefore not satisfied that his fear is well-founded.

The applicant has made no claims that he fears persecution in Indonesia and there is consequently no basis on which I could be satisfied that he has a well-founded fear of persecution in that country.

The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution in either China or Indonesia within the meaning of the Refugees Convention.’

13 On 6 June 2005 the appellant filed an application in this Court for judicial review of the RRT’s decision. The application was over five years out of time: s 477(1) of the Act. The respondent filed an objection to competency of the application on this basis. The respondent accepted, however, that this time limit would not apply to a purported decision which is affected by jurisdictional error.

FINN J’S REASONS

14 On 30 August 2005 Finn J dismissed the application for review. His Honour said in his reasons (at [10]-[14]):

‘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.

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.

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.

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.

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 Finn J also noted the fact that the appellant claimed that he did not receive any notices of hearing from the RRT because he was always moving and that the appellant had accepted the fact that he did not provide the Department with notice of his change of address or with alternative means of contacting him (at [6]).

THE APPEAL

16 On 16 September 2005 the appellant filed a Notice of Appeal against the decision of Finn J. That Notice sets out the following grounds of appeal:

‘I don’t accept the orders made by Justice Finn at the Federal Court of Australia, Adelaide.

The Judge had no sufficient reasons to make such a decision.’

17 In its written submissions, the respondent contended that only the second of these grounds is a substantive ground. There can be no doubt that the first ‘ground’ is not a ground of appeal at all. The second ‘ground’, like the application made to the primary judge, is uninformative. It does not attempt to identify where it is said the primary judge fell into error.

18 The respondent argues that having regard to the opportunities given to the appellant to appear before the RRT and the fact that the appellant did not avail himself of those opportunities, Finn J did not err in finding that the RRT’s decision was not affected by jurisdictional error.

19 There was nothing in the material before Finn J or in the material put to him at the hearing that could have led his Honour to find that the RRT decision was tainted by jurisdictional error.

20 A reading of Finn J’s reasons does not disclose any error on his Honour’s part. Moreover, a reading of the RRT’s reasons for decision does not show any jurisdictional error on the part of the RRT.

21 The appeal must be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Lander and Graham.

Associate:

Dated: 10 March 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Dr C Bleby
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 February 2006
Date of Judgment:	10 March 2006