BRGAF of 2009 v Minister for Immigration and Citizenship

[2010] FCA 894

FEDERAL COURT OF AUSTRALIA

BRGAF of 2009 v Minister for Immigration and Citizenship [2010] FCA 894

Citation:		BRGAF of 2009 v Minister for Immigration and Citizenship [2010] FCA 894
Appeal from:		BRGAF of 2009 v Minister for Immigration & Anor [2010] FMCA 147
Parties:		BRGAF OF 2009 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		QUD 94 of 2010
Judge:		COLLIER J
Date of judgment:		19 August 2010
Legislation:		Migration Act 1958 (Cth) ss 425, 426A
Cases cited:		Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 cited SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 cited
Date of hearing:	19 August 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	34
Solicitor for the Appellant:	The Appellant appeared in person assisted by an interpreter
Solicitor for the First and Second Respondents:	Mr A Yuile of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 94 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BRGAF OF 2009
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	19 AUGUST 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 94 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BRGAF OF 2009
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	19 AUGUST 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Jarrett FM delivered on 4 March 2010 dismissing an application for an order to set aside a decision of the Refugee Review Tribunal (“The Tribunal”) made on 6 October 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant the appellant a protection visa.

   BACKGROUND

2. The appellant is a citizen of China who first arrived in Australia on 21 January 2009 on a student visa which was granted on 31 December 2008. On 11 May 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 16 July 2009. On 10 August 2009 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed that he experienced persecution in China because he was a Falun Gong practitioner. On 4 August 2008, while participating in “talk out the truth” activities, he claimed that he and others were arrested, beaten up by police, locked up, forced to watch “anti-Falun Gong video” and write a letter of confession. He claimed he was punished by police for refusing to comply and that he and his family were threatened. He claimed he was detained for about half a month and released after he signed a promise not to practice Falun Gong and paid RMB 8,000. After returning home, he claimed that he was unable to find work and that the local police often called by his home and monitored him.

   REFUGEE REVIEW TRIBUNAL

4. The Tribunal accepted that the appellant was a national of the PRC and that his claims should be assessed against that country. However, the Tribunal found that the appellant’s statements contained a number of vague and unsubstantiated assertions.

5. In particular, the Tribunal identified the following five matters that it considered to be insufficiently supported by appropriate information:

   1.The circumstances of the appellant’s introduction to Falun Gong in China; details of the appellant’s learning and private practice; details of “the Falun Gong group”; and information about the appellant’s promotional activities.

   2.The appellant’s personal Falun Gong practice and knowledge of its teachings, exercises and history.

   3.Details of the harm the appellant claimed he suffered in China.

   4.Details of the appellant’s departure from China.

   5.Details of official interest in the appellant since his departure from China.

6. On the limited evidence before it, the Tribunal was not satisfied that:

   1.The appellant had any actual or perceived interest in Falun Gong.

   2.The PRC authorities had arrested, mistreated or shown any adverse interest in the appellant.

   3.The PRC authorities made any threats to the appellant’s family.

   4.The appellant would be subject to convention-related persecution.

7. Consequently, having considered the totality of the appellant’s circumstances, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in relation to the Convention reasons, either now or in the reasonably foreseeable future, if he returned to China.

   FEDERAL MAGISTRATES COURT

8. On 2 November 2009 the appellant filed an application for orders to set aside the decision of the Refugee Review Tribunal. In his application the appellant contended that:

   1.RRT refused decision is not fair. They use more negative cases to refuse my application.

   2.RRT failed to assess my risk to return China. I am Falun Gong Practitioner. I will be put in jail if I return.

   3.I am not satisfied with RRT decision. They did not believe the whole things I said are true.

9. In relation to the appellant’s first ground, the Federal Magistrate found that no error of approach or principle was apparent on the material and that the Tribunal’s conclusion was open to it on the material before it in light of its lack of satisfaction with the relevant claims made by the appellant. Furthermore, the Tribunal had complied with all of its procedural fairness obligations under the Migration Act 1958 (Cth) (“the Act”). Having made numerous attempts to engage the applicant pursuant to s 425 of the Act, the Tribunal was entitled to act as it did and proceed to a decision.

10. In relation to the appellant’s second ground, the Federal Magistrate found that there was no jurisdictional error. The Tribunal made findings on all claims made by the appellant and was not satisfied that those claims were made out. The Tribunal did not need to assess the risk of the appellant returning to China because it was not satisfied of those claims.

11. In relation to the appellant’s third ground, the Federal Magistrate found that the Tribunal did assess the appellant’s material but did not accept his claims. The appellant’s claims were largely vague and unsubstantiated, and he failed to provide sufficient satisfactory information to establish the truth of such claims.

12. In light of these findings, his Honour concluded that the Tribunal decision was not affected by jurisdictional error and he dismissed the application with costs.

    APPEAL TO THIS COURT

13. By Notice of Appeal filed on 22 March 2010, the appellant raised the following grounds of appeal against the decision of Jarrett FM:

    1.Refugee Review Tribunal had bias against me and did not make fair decision for my application.

    2.I lodged application to the Federal Magistrate Court, but the Judge dismissed my application on 4 March 2010. It is not fair. I fear to go back to China as I will be put into jail.

    3.I believe that my application was not considered reasonable by the judge at the Federal Magistrates Court. RRT failed to consider my risk to return to China.

    SUBMISSIONS OF THE PARTIES

14. The appellant filed no written submissions in relation to the appeal. At the hearing of the appeal before me the appellant submitted that everything he wanted to say had been put already by his migration agent and lawyer. I reminded the appellant that the listing date of this matter was notified some time ago to the parties and it is the responsibility of the appellant to prepare his case for Court and be ready on the day. The appellant said that his migration agent had said he could appeal to this Court. He also said he had documentation in China to support his claim but could not access it.

15. The Minister was represented by solicitors in Court today. Written submissions on behalf of the Minister were filed prior to the hearing. Mr Yuile on behalf of the Minister submitted that this morning was the first time the appellant had mentioned either migration agents or lawyers. Mr Yuile also submitted that the appellant had made application to the Department for a protection visa in May 2009, and had had ample opportunity to obtain documentation from China since that time.

    FINDINGS

    First ground of appeal

16. The first ground of appeal was not raised before his Honour below. In such case leave of the Court is required to pursue the ground of appeal. In the circumstances, in particular bearing in mind that the appellant is self-represented, I am prepared to grant leave to him to pursue it.

17. In my view this ground of appeal has no merit. It is entirely unparticularised, and makes sweeping allegations of bias against the Tribunal which are, unfortunately, somewhat formulaic. Rather than bias, it appears that the appellant’s primary complaint is simply that the Tribunal found against him. However merely finding against the appellant on the facts is not only not bias from the perspective of the Tribunal, but is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

18. Further, an allegation of bias is a serious matter. It is well established that bias, as an aspect of bad faith, is an allegation of personal fault on the part of the decision maker. It must be clearly articulated and proved by admissible evidence: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756.

19. In the absence of any evidence as to the conduct of the Tribunal at the hearing or otherwise, no bias should be inferred solely from factual findings that were open on the material before the tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at 519 and 531-532.

20. The Minister submitted that, far from being biased against the appellant, the Tribunal went to extraordinary lengths to try and enable him to give evidence in support of his case. I agree. It appears from the decision record of the Tribunal that, inter alia:

    ·The only material which the appellant had given to the Department to support his case was a three page statement.

    ·Although the appellant was invited to an interview to give further evidence, he did not attend, and no further information was presented.

    ·The Tribunal invited the appellant to a hearing to give evidence and make further arguments, however the day before the scheduled hearing the Tribunal received a fax from a person claiming to be a friend of the appellant, claiming that the appellant could not appear because he was being detained in Queensland, apparently at the Arthur Gorrie Correctional Centre in Sumner Park, Queensland. Documentation attached to the fax stated that the appellant was subject to two charges for offences committed in Queensland.

    ·The Tribunal contacted the Arthur Gorrie Correctional Centre, but was informed that it had no record of the appellant.

    ·The Tribunal then contacted a Prisoner Location Hotline and discovered that the appellant was no longer incarcerated, but could obtain no further information.

    ·The Tribunal then sent an email to the appellant’s friend, asking, inter alia, that the appellant contact the Tribunal; and

    ·The Tribunal contacted the Inala Police Station where the appellant was apparently required to report for bail purposes, and arranged for a fax to be handed to him.

21. Notwithstanding these efforts, no further contact was received from either the appellant or his friend. Accordingly, the Tribunal proceeded to make a decision on the application before it pursuant to s 426A of the Act.

22. It is clear that the Tribunal made every effort to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. There has been no breach of s 425 of the Act.

23. Further, I consider that the findings of the Tribunal are considered and thoughtful in the circumstances. No bias against the appellant is apparent.

24. This ground of appeal should be dismissed.

    Second ground of appeal

25. In this ground of appeal the appellant expresses dissatisfaction with the findings of the Federal Magistrate on the basis that his Honour’s decision is unfair, and that the appellant fears to return to China as he would be put into jail.

26. This ground of appeal is vague, unparticularised, and in my view has no merit. There is no material before me to suggest that the appellant did not have an opportunity to present his claims before his Honour both in writing and orally at the final hearing.

27. Further, to the extent that the appellant claims that he fears to return to China because he will be put in jail, it appears that he is seeking a merits review of the Tribunal’s decision. It is well settled that such merits reviews are impermissible: Wu Shan Liang (1996) 185 CLR 259 at 272.

28. This ground of appeal should also be dismissed.

    Third ground of appeal

29. In my view this ground of appeal lacks merit.

30. In relation to the decision of his Honour, again the primary complaint of the appellant appears to be his dissatisfaction with the decision. There is no basis in my view for any allegation that the decision of the Federal Magistrate was unreasonable. In any event, to the extent that the appellant contends that the decision of his Honour was unreasonable, principles of “Wednesbury unreasonableness” do not appear to constitute grounds for setting aside a decision as affected by jurisdictional error in this country.

31. In relation to the second element of this ground of appeal, the Federal Magistrate below considered the issue whether the Tribunal had assessed any risks associated with the appellant’s return to China. In particular his Honour observed:

    [30] The Tribunal was not obliged to accept the Applicant’s claims uncritically or unreservedly and did not. By reason that it was not satisfied of those claims, there was no need to assess the risk of his returning to China.

    [31] The Tribunal made findings on all of the claims made by the Applicant. It was not satisfied, however, that those claims were made out. No jurisdictional error is made out.

32. Reference to the Tribunal’s decision clearly shows that, on the evidence before it, the Tribunal was not satisfied that the appellant had any interest in Falun Gong, was not satisfied that the Chinese authorities had, inter alia, shown any adverse interest in the appellant, nor was the Tribunal satisfied that the Chinese authorities had made any threats of any kind to the appellant’s family. It appears that these findings were open to the Tribunal on the material before it.

33. This ground of appeal should also be dismissed.

    ORDERS

34. The appropriate order is that the appeal should be dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       19 August 2010