MZLAZ v Minister for Immigration
[2003] FMCA 492
•16 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZLAZ & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 492 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a decision by a delegate to refuse a Protection Visa – decision based on finding credibility – whether Tribunal decision was bona fide exercise of power – whether decision-maker failed to act in good faith or acted in bad faith – allegation of bias and inappropriate conduct – conduct not inappropriate if based on allegedly biased decision – bias not established solely by a decision unfavourable to the Applicants. PRACTICE AND PROCEDURE – Litigation guardian – one of three applicants is a minor – circumstances justifying dispensation with the requirement for appointment of a litigation guardian. |
Migration Act 1958 (Cth), s.474
Federal Magistrates Court Rules 2001, r.11.08
SFTB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 108 followed
NAIV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs distinguished
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration and Multicultural and Indigenous Affairs;
Ex parte Applicants S134/2002 (2003) 195 ALF 1
W148/200A v Minister for Immigration and Multicultural Affairs [2001] FCA 679
Yusuf v MIMA (2001) 206 CLR 323
Minister for Immigration and Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnis Affairs v Wu Shan Liang (1996) 185 CLR 259
NACV v Minister for Immigration and Multicultural Affairs [2000] FCA 411
| First Applicant: | MZLAZ |
| Second Applicant: | MZMAA |
| Third Applicant: | MZMAB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 11 of 2003 |
| Delivered on: | 16 October 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 14 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The First Applicant: | Appeared in person on his own behalf |
| The Second and Third Applicants: | No appearance by either party |
| Counsel for the Respondent: | Mr Donaghue |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The requirement for a litigation guardian to be appointed for the Third Applicant is dispensed with.
The application is dismissed.
The First Applicant is to pay the Respondent’s costs of and incidental to the application in the sum of $5,250.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 11 of 2003
| MZLAZ |
First Applicant
And
| MZMAA |
Second Applicant
And
| MZMAB |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 20th November 2002. The RRT affirmed a decision by a delegate of the Respondent not to grant the Applicants a protection visa. The Applicants set out nine grounds for challenging the decision of the RRT in an application filed on 9th May 2003, but the only ground relied upon at the hearing was that the decision was made in bad faith due to bias by the decision-maker.
The First Applicant is the husband of the Second Applicant. The Third Applicant is their child, a boy who was born on 15th January 1992. It is only the First Applicant who claims to fear persecution and the applications for the wife and son depend upon the claim of the First Applicant. They have no independent claim and have played no part in either these proceedings or the proceedings before the RRT.
Litigation guardian
The Third Applicant is a child aged 11 years. As he is a minor, he would normally require a litigation guardian in order to participate in the proceedings. Rule 11.08 of the Federal Magistrates Court Rules 2001 provides in sub-rule (2) that “Unless the Court otherwise orders, a minor in a proceeding (other than a proceeding under the Family Law Act) is taken to need a litigation guardian in relation to the proceeding.”
No application has been made for the appointment of a litigation guardian for the Third Applicant. The parties are no longer legally represented, and only the First Applicant attended Court for the purposes of the hearing. He is not fluent in the English language and made his submissions with the aid of a Mandarin interpreter. It is unlikely that he turned his mind to the question of appointment of a litigation guardian for his young son and the matter was not raised at any time in the course of the proceedings.
In SFTB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 108, an appeal from the decision of Brown FM in the Federal Magistrates Court, the Full Court of the Federal Court considered the competence of the appellant in that case to bring proceedings in the Federal Magistrates Court. Weinberg, Stone and Jacobson JJ held that, in the particular circumstances of the case, the proceedings before the Federal Magistrates Court were not vitiated by lack of competence on the part of the appellant, and, further, that the appellant was competent to bring the appeal without the intervention of a next friend or tutor.
In NAIV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 356, Driver FM considered the situation where a mother brought an application for review on behalf of her two children and herself. In that case, the mother was appointed litigation guardian for the two children, with her consent. Driver FM relieved her of the obligation to provide an affidavit of consent pursuant to Rule 11.11(2) and the obligation to give notice under Rule 11.13.
In my view, noting that the Third Applicant is a child who has no independent claim and has not sought to play any part in these proceedings, it is preferable to dispense with the requirement for a litigation guardian to be appointed.
Background
The First Applicant arrived in Australia for the first time on 19th September 1996 on a business visa. He returned to China a number of times between his first arrival and April 1999. On that occasion, he was granted a business visa, which was valid until 5th November 2001.
As was mentioned above, the Second and Third Applicants are the wife and son of the First Applicant. They both arrived in Australia on 23rd October 1999.
The visas of all three Applicants were cancelled on 14th June 2001, when the Respondent’s Department discovered that the Applicant was not working in the occupation to which his visa related. The Applicants were granted bridging visas for the purpose of departing from Australia, but on 28th June 2001, the Applicants applied for Protection (Class XA) visas. The First Applicant claims a fear of persecution, and the Protection Visa applications of the Second and Third Respondents are derivative upon his claim.
On 15th November 2001, a delegate of the Respondent refused to grant Protection Visas to the Applicants. The Applicants then applied to the RRT for a review of the delegate’s decision. On 20th November 2002, the RRT affirmed the decision of the delegate not to grant protection visas to the Applicants.
On 8th January 2003, the Applicants lodged an application at this Court, seeking a review of the decision of the RRT. In an Amended Application, filed on 9th May 2003, the Applicant set out a number of grounds for seeking orders in relation to the decision Of the RRT. The Applicants received some pro bono assistance in drafting their Amended Application and their Contentions of Fact and Law, but were not legally represented at the hearing. The First Applicant appeared on his own behalf with the aid of an interpreter. The Second and Third Applicants did not attend the hearing.
Applicants’ contentions
The Applicants seek a review of the RRT’s decision on the grounds that the decision of the Tribunal:
a)was made without jurisdiction or is affected by an error of jurisdiction;
b)is affected by an error of law;
c)is so unreasonable that no reasonable decision maker could have made it;
d)is based on a finding for which there was no evidence or other material;
e)takes into account irrelevant considerations;
f)fails to take into account relevant considerations;
g)was an improper exercise of power conferred by the Migration Act 1958;
h)was otherwise contrary to law; and
i)was made in bad faith.
The substance of the First Applicant’s claim to fear persecution was that he was a practitioner of Falun Gong, and his evidence is that he learnt his beliefs from pamphlets and books that he had obtained from Sydney and Melbourne. He claimed in his Amended Application that he feared that he would be subject to adverse treatment by the authorities in China, because he belongs to a particular social group, a practitioner of Falun Gong.
The First Applicant referred to the decisions of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Plaintiff S134/2002 v Commonwealth of Australia (2003) 195 ALR 1, arguing that the privative clause provision in s.474(1) of the Migration Act, did not remove from a decision-maker an obligation to provide a fair hearing. In Plaintiff S157, Gleeson CJ at 37-38 said:
“The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective…then s. 474 does not suffice to manifest such an intention.
It follows that, in my view, if the Tribunal’s decision in relation to the plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s. 474. It is not, relevantly, a decision to which s. 474 applies.”
At the hearing before me, the first Applicant submitted that the Tribunal was biased in assessing his case. He said that the member of the Tribunal was biased against him and had not considered the situation in China. He went on to say that the Tribunal’s findings were not based on facts. The Tribunal did not take into account that on his return to China he and his family would be subject to persecution.
He also said that he knew the situation in China better than anyone else. The RRT had arrived at the conclusion that he was not a member of Falun Gong, and he really asked, what was the basis of the RRT’s findings that he was not a follower of Falun Gong. Falun Gong, he said, is his faith and is his religion.
The First Applicant said that the RRT would be aware that the position of Falun Gong in China is really bad. He said that he had read the findings of the Tribunal member and her finding was really a stereotype. Reading books and literature about Falun Gong is illegal in China. He could not see how the RRT would arrive at the conclusion that he would not be persecuted if he returned to China.
He went on to say that the RRT had a lack of factual basis and also did not take into account his faith and the fact that he would be subject to persecution.
The First Applicant said that the test applied by the Tribunal was subjective and biased. He also said that the conduct of the tribunal member was inappropriate. When asked from the Bench to specify why the Tribunal was biased, he said that the Tribunal stated that only the leadership of the Falun Gong would be subject to persecution, not the followers. In China, he said, there were 1800 people killed because they practised Falun Gong and people were imprisoned or placed in mental institutions.
The First Applicant said that he could not see on what basis the RRT had reached the conclusion that a follower of Falun Gong would not be persecuted. In China, Falun Gong literature is regarded as illegal and is destroyed. If he were to return to China, he said that he would have no choice but to abandon his faith.
The First Applicant, in answer to a question from the Bench as to why the conduct of the Tribunal member was inappropriate, said that the member was biased and did not take his situation into account and did not take into account what would happen if he returned to China. He said that the Tribunal’s finding was irresponsible and again did not take into account what would happen if he returned to China.
In summary, the First Applicant told the Court that:
a)the Tribunal’s conduct was inappropriate because the member was biased; and
b)the Tribunal was biased because the Tribunal did not take into account what would happen if he were to return to China.
The respondent’s contentions
The Respondent has provided a lengthy document entitled “Contentions of Facts and Law”, which sets out a response to the Applicants’ contentions. The Respondent contends that the Tribunal found that the First Applicant was not a credible witness, and this finding is a finding of fact. A finding of fact is not capable of review by the Court.
The Respondent referred to the decision of the Full Court of the Federal Court in “W148/00A” v Minister for Immigration and Multicultural Affairs [2001] FCA 679, where Tamberlin and R.D. Nicholson JJ said at paragraph 64:
“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”
The First Applicant claimed that he had taken up the practice of Falun Gong in 1997, after he had arrived in Australia. He said that he had learnt about the practice from reading books and pamphlets.
The Tribunal formed the view that the First Applicant’s knowledge of Falun Gong was deficient in many respects. The Tribunal found that the Applicant had not undertaken a study of Falun Gong to anything like the extent that he had claimed, and described him as “not a witness of truth” (Court Book, 125). The Tribunal rejected the First Applicant’s claim that he was a Falun Gong practitioner and that he was a Falun Gong leader. The Tribunal was “unable to accept that the (First) applicant has any more than a superficial knowledge of Falun Gong.” (CB 121).
The Respondent submitted that the finding that the First Applicant was not “a witness of truth” was reinforced by the Tribunal’s detailed discussion of the many respects in which the First Applicant’s knowledge of Falun Gong was lacking. In particular, the Tribunal found that the First Applicant’s claims that he printed out material from the Internet and sent it to a friend in Sydney were “vague and lacking in detail” and had been made “to augment his claims to fear persecution for distributing Falun Gong literature” (Court Book 114). The Tribunal found that both this claim and the claim that he practised Falun Gong in public with his wife and child were “contrived and undertaken to give some verisimilitude to his claims” (Court Book 115).
The Tribunal noted the impact of s.91R(3) of the Act, which required the Tribunal to disregard the conduct engaged in by the first Applicant in Australia unless:
“(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol”.
The Respondent submitted that the Tribunal found not only that the Applicant was not credible, but that even if he were to be believed his claims must be disregarded because of the effect of s.91R of the Act.
Conclusions
I accept the Respondent’s submission that the First Applicant’s contentions assert that the Tribunal made the following errors:
a)failing to take into account relevant considerations (whether Falun Gong has teachers or leaders), and taking into account irrelevant considerations (whether the First Applicant should have travelled to Melbourne);
b)identifying two wrong issues (whether Falun Gong is a religion, and whether Falun Gong has teachers or leaders); and
c)failing to ask “what if I am wrong?”
I am also satisfied that I should accept the Respondent’s contentions that none of those errors can be established and, even if they were established, s.474 would prevent these errors being reviewed.
Dealing with the First Applicant’s ground relating to the Tribunal’s failure to take into account relevant considerations, I am mindful of the decision of McHugh, Gummow and Hayne JJ in Yusuf v MIMA (2001) 206 CLR 323 (at [73]):
“The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the tribunal is called on to consider.”
As the Respondent has submitted, the relevant considerations in this case concern the criteria governing the grant of a Protection visa. The Tribunal clearly had regard to those criteria. The First Applicant has not identified any legal criteria that the Tribunal was bound to take into account and failed to do so. Whether Falun Gong has teachers or leaders is a factual matter, and not a matter that the Act requires the Tribunal to take into account.
An error in relation to this matter would not provide a ground for judicial review in any event, as the High Court went to say in Yusuf (supra, at [74]):
“The grounds for judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision maker acts.”
Similarly, the First Applicant’s claim that the Tribunal took an irrelevant consideration into account is not established. The irrelevant consideration complained concerned the First Applicant’s travel from Bendigo to Melbourne to meet other Falun Gong practitioners. As the Respondent submitted:
“It was not a ‘consideration’ at all for judicial review purposes, as it is not a factor made relevant by legislation. Instead, it was simply a passing comment on the evidence, the important finding being that the Applicant was not a Falun Gong practitioner.”
There is no basis for review on this ground.
I am not satisfied that the First Applicant’s claim that the Tribunal has identified a “wrong issue” in respect of his belief that Falun Gong is his personal religion. If this is an attempt to assert a jurisdictional error on the part of the Tribunal, it does not seem to have been established. The Tribunal has given consideration to the Applicant’s claim that he fears persecution because of his religion and, simply, has not accepted his evidence. This is not a ground for review.
Similarly, whether or not Falun Gong has teachers or leaders is not a matter that can be described as identifying a wrong issue. It is purely a matter of fact and, as such, not capable of judicial review.
The First Applicant contends, in paragraph 18 of his written submissions, that the Tribunal, in rejecting the First Applicant’s evidence, failed to apply the test of asking “What if I am wrong?”:
“The Tribunal’s decision was affected by an error in interpreting its own obligations under the Act. The error would have been cured, or would not have affected the decision, if the Tribunal had asked, as discussed in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, “What if I am wrong?’ about this finding of fact. This should apply to the Tribunal’s conclusion that the Tribunal finds that ‘If the applicant wishes to practice Falun Gong in China in the manner he claimed to have allegedly practised in Bendigo, that is in private, then the Tribunal is satisfied that the applicant would not face a real chance of persecution for any private practice of Falun Gong.’
With respect, the “What if I am wrong?” test does not apply in this case. The authorities make it clear that the Tribunal has to apply the test in every case, only if it is only slightly more probable than not that an alleged event has not occurred.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, the High Court has stated at 575-576:
“It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining that there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant …Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”
This reasoning has been followed by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, where Sackville J quoted from the above passage and said at 238:
“It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. It is clear that the comment in the joint judgment is confined to a past event (as in Wu Shan Liang[1]) involving persons other than the applicant….
If, on the other hand, it appears that the RRT had ‘no real doubt’ that its findings were correct, it is not bound to consider whether those findings might be wrong. Nothing in the reasoning of the joint judgment suggests that if the RRT, although apparently having no real doubt as to its findings, should have had doubts, it is bound to consider the possibility that the relevant event might have occurred.”
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
It seems clear, then, that if the tribunal had no real doubt about its findings, there is no necessity to ask “What if I am wrong?” In this case, the Tribunal did not have any real doubt that its findings may not have been correct. The Tribunal arrived at a finding of fact that in a number of significant respects the First Applicant’s claims were not true.
In this case, the Tribunal did, in fact undertake some exercise of that sort at page 123 of the Court Book, when the comment was made:
“Even if the Tribunal were to accept the applicant’s claims, at the very most he would be no more than an ordinary follower of Falun Gong. If the applicant wishes to practise Falun Gong as an ordinary follower when he returns to China, Master Li is clear that public practice is not a requirement of Falun Gong, but that it may be practised in private, as the applicant has claimed to do.”
The RRT found that the First Applicant was not a witness of truth. The RRT was satisfied that if the First Applicant wished to practise Falun Gong in the way that he claimed to do, then he would not face a real chance of persecution for practising in private. The RRT found that the First Applicant does not have a well-founded fear of persecution for a Convention reason if he were to return to China.
The decision by the RRT was made because the RRT concluded that the First Applicant was not a witness of truth. His account was not accepted on the facts. This decision was one for the Tribunal, and is not capable of review.
Bias and inappropriate conduct
Turning to the question of bias and inappropriate conduct by the Tribunal, I note that the only ground upon which the conduct of the Tribunal member was alleged to be inappropriate was because the Tribunal made a decision that the First Applicant said was biased.
The Tribunal’s decision was biased, the First Applicant submitted, because the Tribunal did not take into account the persecution that he alleged he and his family would suffer if they were obliged to return to China. Quite clearly, this is a factual question and not subject to judicial review. In any event, an allegation of bias against a decision-maker will not succeed if the only basis for the allegation is the fact that the decision made was not favourable to the party who makes the allegation.
There is no evidence upon which I can be satisfied that the Tribunal member’s conduct was inappropriate. There is no evidence that the Tribunal acted in any way that was biased against the Applicants.
The hard fact is that the Tribunal did not accept the First Applicant’s evidence. The Tribunal did not accept him as a witness of truth.
I refer to the decision of Conti J in NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411 at [2]:
“It is readily apparent that the Applicant was unsuccessful because of the view the Tribunal too of the facts and circumstances which he had put forward, and of his credibility. So long as credibility findings are open to be found on the evidence placed before the Tribunal, there is no reviewable error committed by the Tribunal.
The situation is no different in this case. The RRT did not accept the First Applicant’s account and was satisfied that he did not have a well-founded fear of persecution for any Convention if he were to return to China. The claims of the Second and Third Applicants are derived from that of the First Applicant; they have no independent claim.
There has been no reviewable error shown. The Application will be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 7 November 2003
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