NAJH v Minister for Immigration

[2003] FMCA 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJH v MINISTER FOR IMMIGRATION [2003] FMCA 361

MIGRATION – Review of RRT decision – application for a protection visa – where applicant did not attend the hearing – where the applicant sent a facsimile to the court before the hearing outlining his arguments – where the applicant claimed that the Tribunal had actual bias – where court decides to hear the matter under Order 32 Rule 2(1)(d) of the Federal Court Rules.

Federal Court Rules Order 32 Rule 2(1)(c) and (d)

Minister for Immigration v Jia (2001) 205 CLR 507
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Applicant: NAJH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 406 of 2003

Delivered on: 20 August 2003

Delivered at: Sydney

Hearing date: 20 August 2003

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: No appearance

Counsel for the Respondent: Ms M Allars

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 406 of 2003

NAJH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant, who claims to be a citizen of the People's Republic of China, arrived in Australia on 6 May 2002.  On 16 May 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs.  On 20 June 2002 a delegate of the Minister refused to grant a protection visa and on 24 August 2002 the applicant applied for review of that decision.  The review was held by the Refugee Review Tribunal before which the applicant attended on 13 December 2002.  On 16 December 2002 the Tribunal came to its decision which it handed down on

   
   

   21 January 2003.  The Tribunal determined to uphold the decision of the delegate.

2. The applicant was not satisfied with that decision.  In accordance with his legal entitlements he sought review of the decision of the Tribunal by way of an application filed in the Federal Court of Australia on

   
   

   13 February 2003.  In his application he states:

   “The decision in my application for a protection visa is not correct.  I hope to have it reassessed.  I will be persecuted if I return to China.  I will suffer from persecution because of my involvement with Falun Gong.”

3. There is an affidavit which was also filed on 13 February 2003, in which the applicant states he believes that the decision of the Tribunal is not correct.  He says it was induced by actual bias of the officer and there was no evidence or other material to justify the making of the decision.

4. On 6 March 2003 this matter was called over before Sackville J.  His Honour made a number of orders which are in the standard form requiring the respondent to file and serve what is now known as the "green book". The applicant was to file and serve an amended application which provides proper particulars of the grounds relied upon, and any evidence upon which he intends to rely on or before

   
   

   17 April 2003.  The applicant was also required to file and serve an outline of submissions on or before two clear working days before the hearing date.  His Honour then transferred the matter into this court and listed it for hearing on 8 August 2003.

5. There is a notation in the file in regard to this matter which states that His Honour explained to the applicant the limitations of judicial review and, in particular, that factual matters cannot be reviewed.  His Honour explained the cost consequences if the applicant lost.  There was confirmation obtained that the address that was on file for the applicant was still his address.  Finally, there is a note that someone had made sure that the applicant had seen the letter about the legal assistance scheme and understood its contents with the assistance of the interpreter.  It is stated that the applicant did not wish to participate in the scheme.

6. On 16 April 2003 a letter was sent by this court to the applicant advising him that the hearing had been re-listed from 8 August to today at 2.15pm.

7. The applicant did not comply with any of the orders of Sackville J.  At 2.35pm today when I commenced this judgment the applicant had not attended.  Three telephone calls were made to the applicant with the assistance of the interpreter.  On the first occasion someone answered the telephone but when he heard an English voice speak to him (that of my associate) he put the phone down.  Another call was made by the interpreter.  Once again the call was not responded to.  The third call that was made elicited a voice message, as did the fourth.

8. It has come to the notice of this court that when orders are made pursuant to Order 32, rule 2(1)(c) there have been increasing occasions on which applicants have sought to re-agitate the case, as they are entitled to do.  There must be an inference capable of being drawn from this that persons are using their non-attendance at the hearing and the favourable terms of the orders made under Order 32 to gain further time in Australia.

9. In the particular circumstances of this case, and having regard to the evidence contained in the court book and the decision of the Tribunal, I do not propose to adopt that course today.  I propose to adopt the course which is permitted to me by Order 32, rule 2(1)(d) and decide the case.  Whilst I appreciate that this may not prevent the applicant from making an application to set aside or vary the order, it may be of assistance to any judicial officer to whom such application is made.

10. The applicant's ground to hold a well-founded fear of persecution for the Convention reason of religious or political opinion is that he was a member of the Falun Gong.  He claimed that whilst in China he was practising Falun Gong privately in a group in a private house when the house was raided and two persons in the house, including the owner, were taken away by the authorities.  There is no suggestion that the applicant was so treated.  This occurrence took place in February 2002.  In March 2002 the applicant managed to obtain a passport and in May 2002 he arrived in Australia.  When he arrived here he alleges that he continued to practise Falun Gong in his spare time.  He was asked by the Tribunal how he did this and he stated that he read some material and listened to compact discs.  He claimed to have once gone to a railway station and distributed some pamphlets.  He was unable to tell the Tribunal the name of the railway station.

11. The Tribunal from [CB 68 - 72] deals with the situation of Falun Gong practitioners in China on the basis of country information which it had to hand.  At [CB 73] the Tribunal states:

    “For the purposes of this review the tribunal accepts that Falun Gong is a religion, and that some practitioners of Falun Gong have been persecuted in China for reasons of their religion and their political opinion.

    The applicant has claimed that in the event that he returns to China he will be persecuted because of his adherence to Falun Gong.  He claimed that he would be persecuted for reasons of his membership and activities associated with his involvement in the Falun Gong movement.  The tribunal considered the nature of his practise of Falun Gong both in China and in Australia.  The evidence, however, was of a general nature and described an ordinary follower.  Firstly, the applicant stated that he was a recent convert and an ordinary follower who started practising in February 2001 when he was made redundant by his employer.  Secondly, he was never detained for his practise of Falun Gong despite the Chinese authorities having ample opportunity to do so before his departure for overseas.  He was issued with a passport in April 2002 after he was allegedly questioned by the authorities for his practise of Falun Gong and he departed on the passport issued in his local area of Liaoning.  Moreover, this passport remains valid.  He resided in the same address in China from 1992 to 2002 when he departed for overseas.  Finally, the applicant described his involvement here in Australia as that of ordinary follower.  His only involvement has been reading "some materials at home" and distributing some promotional pamphlets outside an unnamed suburban railway station.”

12. The Tribunal came to the conclusion that the country information was sufficiently consistent on the matter of ordinary members ability to return to China from overseas without risk of persecution unless they chose to join in public displays, which now amount to anti-Government displays.  The Tribunal felt that as the applicant had not proved himself to be a person upon whom the adverse attention of the authorities had been laid he was not in any danger should he return.

13. Although the applicant did not attend here, he sent in on 11 August 2003 a facsimile submission.  He states that his application for a protection visa was refused by the Tribunal but he believed that he met the criteria and the decision was induced by actual bias of the officer and there was no evidence or other materials to justify the making of the decisions.  There then follows a substantial paragraph which argues what can only be described as the merits of the decision.  For example, he quotes an extract of the Tribunal concerning his passport and responds to that with the words, "I don't agree with the officer".  In the third and final paragraph of his submission he states:

    “The officer mentioned the tribunal is satisfied that it is not a limitation on his rights, religious or political for the applicant to continue to practise his belief in "private" I don't agree with the officer.  I believe that the above statement was induced by actual bias of the officer.  There is no evidence or other material to justify the making of the decision.”

14. Bias was considered by the High Court in Minister for Immigration v Jia (2001) 205 CLR 507 where their Honours Gummow, Kirby, Hayne and Callinan JJ said:

    “Bias in the form of prejudgment occurs where the decision maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”

    But at [69] Gleeson CJ and Gummow J and at [127] Kirby J said:

    “A party asserting actual bias on the part of a decision maker carries a heavy onus.  The allegation must be distinctly made and clearly proved.”

15. The submission of the applicant distinctly makes the allegation of bias but it advances no steps in clearly proving the same.  I have no hesitation whatsoever in dismissing this allegation.

16. The applicant puts forward that there was no evidence or other material to justify the making of the decision.  To the extent that this is separate from the allegation of bias it is quite clear from the voluminous court book, which consists of some 331 pages, that the Tribunal had before it a considerable amount of information upon which it was able to draw for the purposes of coming to the conclusions that it did come to concerning the possible fears that might be felt by a person in the situation that it found the applicant to be.  This situation was that of an ordinary follower.  I am quite satisfied that to the extent that this argument which would appear to have been based on the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (which case may well have a more limited scope in the context of migration matters) it is not made out.

17. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,250 pursuant to part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: