SZBBI & Anor v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FMCA 946

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBI & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA  946

MIGRATION – Review of Refugee Tribunal decision – refusal of a protection visa – applicant claiming protection as a Falun Gong practitioner in China – applicant declined hearing invitation – no reviewable error found – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475

Kordan Pty Limited v Commissioner of Taxation (2000) ATC 4812, [2000] FCA 1807
Minister for Immigration v Jia (2001) 205 CLR 507
Re Minister for Immigration; ex parte S20/2002 (2003) 198 ALR 59
SCAA v Minister for Immigration [2002] FCA 668
Vakauta v Kelly (1989) 198 CLR 568

First Applicant:

Second Applicant:

SZBBI

SZBBJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1479 of 2003

Delivered on: 8 December 2004

Delivered at: Sydney

Hearing date: 8 December 2004

Judgment of: Driver FM

REPRESENTATION

The first applicant appeared in person

Solicitors for the Respondent: Mr M Allatt
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1479 of 2003

SZBBI

First Applicant

SZBBJ

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 10 June 2003 and handed down on 8 July 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  The relevant factual background is adequately set out in written submissions prepared on behalf of the Minister by Miss Henderson.  I adopt paragraphs 1 to 11 of those written submissions by way of background: 

   The applicants are a married couple, citizens of the People's Republic of China, who entered Australia on visitors' visas on 27 November 2001 (court book, pages 13, 31).

   On 24 December 2001 the applicants lodged applications for protection visas (court book, pages 1, 11, 29) which included written statements made by each of them (court book, pages 24, 42). The applications for protection visas and the statements contain the only material which the applicants have lodged at any time in support of their claims.

   SZBBI indicated in his protection visa application that he was employed as general manager of the Guangzhou Jianye Decoration Materials Pty Ltd from June 1996 until November 2001 (court book, page 15). SZBBJ indicated in her protection visa application that she was employed as the accountant of the same firm during the same period (court book, page 33).

   In their written statements, the applicants indicated that they had begun practising Falun Gong in 1998, and that Falun Gong practice was prohibited in the PRC from the winter of 1999 onwards. "Half a year later" their business licence was suspended, and they were informed that they would not be allowed to resume business if they ceased practising Falun Gong and submitted written statements of repentance (court book, pages 24, 42).

   On 17 April 2002 a Departmental officer wrote to SZBBI, drawing his attention to "country information" regarding the treatment of Falun Gong practitioners in the PRC and the procedures for issue of passports in that country. The author pointed out inter alia  the indications in the country material that the private practice of Falun Gong is tolerated in the PRC (court book, page 54).

   On 30 May 2002 the applicants were notified that their protection visa applications had been refused (court book, pages 54, 56). The reasons for both refusal decisions were set out in a single "decision record" (court book, page 58). The decision-maker noted in the decision record that:

   ·the applicants had not responded to the 17 April 2002 letter, a copy of which had also been sent to their migration agent (court book, page 60)

   ·according to country information cited in the decision record, private practice of Falun Gong is tolerated in the PRC (court book, page 62)

   ·passports were issued to the couple in September 2001, and they were allowed to leave the PRC unhindered (court book, page 63)

   The decision-maker made the following findings at court book, page 63:

   ·failure to respond to the 17 April 2002 letter was not what would be expected of a person with a well founded fear of Convention-based persecution;

   ·there was no evidence that the applicants are prominent members of Falun Gong who have attracted adverse attention from the authorities to a significant extent;

   ·the applicants made inconsistent claims in their protection visa applications and their written statements: they said in their applications that they continued in employment until the month when they departed the PRC, but indicated in their written statements that their business licence suspended half a year after Falun Gong was banned in the winter of 1999.

   On 24 June 2002 the applicants lodged an application for review in the RRT (court book, page 65). The RRT notified SZBBI that it could not decide the application in his favour on the basis of the written information alone, and that it had decided to convene a hearing on 24 June 2003 (court book, page 72). SZBBI replied on 2 June 2003 that he did not want to attend a hearing (court book, page 74).

   On 8 July 2003 the RRT notified the applicants that it had decided they were not entitled to protection visas (court book, page 78).

   In its Reasons for Decision (court book, page 79) the RRT adverted to the fact that it had not had an opportunity to question the applicants about their claims. The RRT found that on the information supplied:

   ·it was not satisfied that, if the applicants are Falun Gong practitioners, that they fall within the categories of Falun Gong practitioners who would be at risk of persecution in the PRC (court book, page 86);

   ·it was not satisfied that the applicants' business licence was suspended as a result of their Falun Gong practice, or if it was suspended, that this action caused significant harm or economic disadvantage constituting persecution (court book, page 87);

   On 30 July 2003 the applicants lodged an application under the s.39B Judiciary Act 1903 (Cth) and s.475 Migration Act 1958 (Cth) in the Court.

2. The application for judicial review filed on 30 July 2003 raises only two grounds.  Those are that the decision of the RRT was induced by actual bias, and secondly, that there was no evidence or other materials to justify the making of the decision.  The relevant claims are made by the first applicant.  Only he appeared at the hearing today.  The applicants were given an opportunity to particularise those grounds and to lead evidence to support them.  The applicants were given until 8 November 2003 by Registrar Kavallaris at a directions hearing conducted on 1 October 2003.  No further material has been filed by the applicant either before or after that date.

3. In the absence of particulars and evidence, the grounds advanced by the applicants are baseless.  I agree with and adopt, for the purposes of this judgment, paragraphs 13 to 18 of Miss Henderson's written submissions:

   Ground 1 of the application asserts that the RRT decision was induced by actual bias of the "officer", presumably meaning the RRT member.

   The applicants have not filed evidence of any statement or conduct on the part of the RRT member[1] to support the serious allegation which they have made. It follows that this ground cannot succeed.

   Without conceding that the RRT decision manifests any illogicality, irrationality or perversity, the respondent notes that: "The mere fact that a reviewing court does not agree with the reasoning of an administrative decision-maker, or regards such reasoning as illogical, irrational or even perverse is not, of itself, sufficient to establish actual bias."[2]

   Ground 2 of the application

   The two key findings made by the RRT have been set out in paragraph 7 of these submissions.

   The applicants have not established, and it cannot be said, that the RRT’s finding regarding the likelihood that the applicants might suffer persecution by reason of private practice of Falun Gong was made in the absence of evidence. The RRT cited and relied on relevant country information, the import of which had been put to the applicants and to their migration agent in the Department's 17 April 2002 letter. The applicants made no response to that letter, and elected not to give evidence before the RRT. It reached a finding which was open to it on that evidence.

   The applicants have not established, and it cannot be said, that the RRT’s finding that the applicants have not sustained significant harm or economic disadvantage as a result of Falun Gong practice, was made in the absence of evidence. The RRT cited and relied upon the evidence supplied by the applicants in their protection visa applications and the written statements which the applicants supplied with those applications. It reached a finding which was open to it on that evidence.

   [1] See Vakauta v Kelly (1989) 187 CLR 568, Minister for Immigration v Jia (2001) 205 CLR 507

   [2] Re Minister for Immigration and Multicultural Affairs ex parte S20/2002 (2003) 198 ALR 59 at p.81

4. I received as evidence the court book prepared by the Minister's lawyers.  Because the applicants are self-represented, I independently considered whether any jurisdictional error was apparent from that material.  I also gave the first applicant the opportunity to make oral submissions before me today.  He expressed some concern about the decision of the delegate rejecting his protection visa application.  He also asserted that he incurred monetary loss and spiritual suffering in China due to his practice of Falun Gong.  Those are matters that would be relevant to a consideration of the applicants’ protection visa claims on their merits.

5. The first applicant elected not to attend a hearing before the RRT and, in the circumstances, the RRT had very limited material upon which to base its decision.  The decision by the first applicant not to attend a hearing before the RRT rendered the outcome of his protection visa application inevitable. 

6. The first applicant told me from the bar table that he did not attend a hearing before the RRT because he did not know the address of the RRT.  That claim lacks credibility.  He or his migration agent were able to send to the RRT the response to the hearing invitation form (court book, page 74).  If the first applicant's documents could find their way to the RRT then so could he.

7. The first applicant also told me that he had experienced problems in dealing with his migration agent, Ms Orchid Sit.  I understand that she has ceased to practice as a migration agent.  As I told the first applicant, he may have chosen unwisely but his choice of migration agent is not the fault of the RRT.

8. There is no jurisdictional error in the decision of the RRT.  It follows that the RRT decision is a privative clause decision.

9. I must dismiss the application. 

10. On the question of costs, the application having been dismissed, Mr Allatt seeks an order for costs fixed in the sum of $3,500.  The first applicant, who was the only applicant who appeared before me today, did not wish to make any submissions on costs.  I am satisfied that costs should follow the event in this case.  I am also satisfied that costs of at least $3,500 have been reasonably and properly incurred on behalf of the Minister in these proceedings on a party/party basis.  I will not make any costs order against the second applicant, as apart from apparently signing the judicial review application.  It is not apparent to me that the second applicant has played any role in the proceedings or has had any influence over the first applicant. 

11. I will order that the first applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  17 December 2004

Kordan Pty Limited v Commissioner of Taxation (2000) ATC 4812, [2000] FCA 1807
SCAA v Minister for Immigration [2002] FCA 668  para.99 per Kirby J