MZYHH v Minister for Immigration
[2010] FMCA 545
•2 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYHH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 545 |
| MIGRATION – Bias – tests for – whether breach of s.424A. |
| Migration Act 1958 (Cth), s.424A |
| Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB Attorney-General (NSW) v Quin (1990) 170 CLR 1 Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 42 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 |
| Applicant: | MZYHH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1635 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 2 July 2010 |
| Date of Last Submission: | 2 July 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 2 July 2010 |
REPRESENTATION
| The Applicant appeared In Person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms E. Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for judicial review filed on 17 December 2009 is dismissed.
The applicant pay the costs of the first respondent fixed at $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1635 of 2009
| MZYHH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex parte and Revised)
The Court has had regard to the first respondent’s contentions of fact and law and will now make a decision on this matter. The applicant has been refused a protection visa and seeks judicial review of that decision by the Refugee Review Tribunal (the “RRT”). The main issues relevant to the judicial review are an allegation that the RRT was biased, an allegation that the RRT failed to consider a relevant consideration and, an allegation that the RRT did not give the applicant a letter explaining its doubts. The Court understands the latter to be a complaint that the RRT did not give the applicant a letter pursuant to s.424A of the Migration Act 1958.
Those issues are extracted from the applicant’s application to the Court, which expresses the grounds as follows:
(1)RRT had bias on me;
(2)RRT low assess my risk to return to China as I’m a Christian; and
(3)RRT didn’t give me letter to explain doubts on base they refused my application.
The applicant has not filed an amended application or written submissions as provided for in the orders of Registrar Allaway on
19 January 2010. The Court invited the applicant to make oral submissions today in support of her application, but she failed to add anything to the material on file, except to complain that her brothers and sisters have been granted visas and she asked “so why haven’t I?” The Court explained that each case is considered on its merits.
The Court stood the matter down so that the first respondent’s contentions of fact and law could be interpreted to the applicant. After that occurred the Court asked again if the applicant wished to put any submissions to it. No submissions were put except to say she did not have an opportunity to go to a lawyer. The Court has been handed a letter dated 22 December 2009 to the applicant setting out details of where can go to get legal advice. That letter is from Clayton Utz. It was explained to the applicant that the proceedings are very complex and it was said:
We strongly suggest that you seek legal assistance or advice as soon as possible regarding this letter.
The Court finds that the applicant has not been denied the opportunity to obtain legal advice.
The Court makes the following findings as to the grounds in the application. As to the allegation of bias in ground one:
·No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be distinctly made and clearly proven.
The Court refers to the decision in SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 at [38].
“To establish bias the applicant would have to show that the Tribunal acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided.
That principle comes from the case of Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 42. The Court finds that there is nothing to show that a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
“Further, the fact that the RRT did not believe his claims is not evidence of bias.” Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.
The Court refers to and accepts the following contentions of fact and law by the first respondent. In order to make out a case of actual bias on a decision maker’s part the person alleging bias must establish that, before a conclusion could properly be reached, the decision maker had made up his or her mind and was incapable of being persuaded differently. The Court refers to the decision in the Jia Legeng (supra). The Court does not make that finding of bias here.
A party alleging actual bias carries a heavy onus. The allegation must be distinctly made and clearly proven
Reference Jia Legeng as referred to.
A case of actual bias is rarely made out by reference solely to the decision maker’s reasons for decision.
Actual bias has not been established in this case.
Bias may alternatively be made out by demonstrating apprehended bias. The test is whether a fair-minded lay observer could reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided.
The Court refers again to the decision of Re Refugee Review Tribunal ex parte H. It has not been shown that the decision maker did not bring an impartial mind to the resolution of the questions to be decided:
The applicant has provided no evidence, for example, affidavit or transcript evidence, or submissions in support of this ground.
The Tribunal accepted the applicant’s claim to be a Christian and invited the applicant to give evidence and argument during the hearing in support of the balance of her claims. This is shown by looking at Court Book pages 89 to 94 and p.95. The Tribunal made this decision in good faith and gave a bona fide assessment of the applicant’s claims. The Court finds that bias has not been established. Ground one of the application is dismissed.
Ground two is that:
RRT low assess my risk to return to China as I am a Christian.
The Court understands that ground to be saying that the RRT did not assess her risk of returning to China as a Christian. The Court refers to and accepts the first respondent’s contentions of fact and law on this issue as follows:
For this ground to be made out the Court must be satisfied:
(a)there exists a claim or an integer of a claim
Integer means a primary or, important part of the claim, so “there exists a claim or a primary important part of the claim”:
(b)that was not considered;
(c)that the decision maker was bound to take in that consideration into account in making the decision; and
(d)that the claim or important part of it, if addressed, may have been dispositive of the review.
The Tribunal summarised the applicant’s claims at Court Book 83 to 94. In that summary the Tribunal expressly acknowledged the claim arising by reason of the applicant’s religious beliefs. The Tribunal addressed the claim under the heading Findings and Reasons (Court Book 95 to 98). The Tribunal’s findings were based on its assessment of the applicant’s evidence and relevant country information:
The findings were open on the material before it. The first respondent according submits the Tribunal considered the claim.
The Court finds that it has not been established that an integer or important part of the claim was not considered by the RRT. Ground two is dismissed.
Ground three is that the RRT did not send the application a letter pursuant to s.424A of the Act. An examination of the RRTs decision shows that the RRT did not accept much of the applicant’s evidence. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The RRT made findings of fact adverse to the applicant that are not amenable to review. The Court refers to the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court.
Another quote from the same decision is:
The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court.
“The Court cannot review the merits of the Tribunal’s decision”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The Court refers again to the decision in Lee (supra), that:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The only circumstances in which this Court could interfere is where it’s been shown that it is totally unreasonable for that to have occurred. The decision must have been so unreasonable that no reasonable body could have come to it. The Court refers to the decision in Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB at [41] for that principle. SZINP v Minister for Immigration and Citizenship [2007] FCA 1747:
Decisions of the Tribunal are privative clause decisions, and as such are not open to review on the facts.
A wrong finding of fact is not jurisdictional error.
Reference as Attorney-General (NSW) v Quin (1990) 170 CLR 1.
The Court refers to and accepts the following quotations and submissions by the first respondent. Those submissions quote the passages already quoted from NAHI and Wu Shang Liang (supra).
The RRT decided as it did because it did not accept much of the applicant’s evidence. That can be seen from the decision of the RRT, commencing at para.106 and continuing right through to para.114. The RRT was free to accept or reject the evidence as it saw fit. The Court refers to the case of Lee (supra). The Court refers again to the first respondent’s contentions of fact and law, which it accepts as follows:
The first respondent submits that the applicant’s third ground may be understood to raise a breach of section 424A of the Act.
I do not recall making a distinct finding on ground two of the application, but that ground is dismissed for the reasons already expressed.
Again quoting from the first respondent’s contentions:
The Tribunal made its decision without providing the applicant with an invitation to comment pursuant to section 424A of the Act.
The first respondent submits that the Tribunal was entitled to proceed in this manner.
Again quoting from the first respondent’s submissions:
Section 424A lays down a procedural requirement the tribunal must follow in the exercise of its statutory function. Section 424A only applies to information that forms a reason or part of the reason for affirming the delegate’s decision. In other words, information that is adverse. There exists exceptions to the operation of the provision and refer to s.424A, subsection (3) of the Act.
That subsection sets out exemptions or exceptions to s.424A.
In this case, the Tribunal affirmed the delegate’s decision by reason of the applicant’s claims and evidence.
And the Court inserts there “and the rejection of much of those claims in evidence”:
And a consideration of relevant country information
Again quoting from the first respondent’s submissions “Information of these types fall within two categories of exception to the operation of s.424A.” Section 424A(3)(a), (b) and (c) refers to information that is not specifically about the applicant or another person. That exemption covers country information. Section 424A(3)(b) refers to information that the applicant gave for the purpose of the application for review. That exception covers the evidence and information the applicant gave for the purposes of review:
Accordingly, the Tribunal’s procedure in this connection does not reveal an error. The Court finds that a s.424A letter was not required. A breach of s.424A has not been established and that ground is dismissed.
All grounds in the application are dismissed. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances and pursuant to s.424 of the Act, there is no jurisdiction for this Court to interfere.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Date: 26 July 2010
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