SZBCW v Minister for Immigration

[2005] FMCA 30

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCW v MINISTER FOR IMMIGRATION [2005] FMCA 30

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – whether the RRT was biased considered – whether the RRT decision was based on evidence considered – whether the RRT should have notified the applicant of its credibility concerns considered – futility of granting relief considered.

Migration Act 1958 (Cth), ss.424A, 425

Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Applicant: SZBCW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1539 of 2003

Delivered on: 19 January 2005

Delivered at: Sydney

Hearing date: 19 January 2005

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Ms R Pepper

Solicitors for the Respondent: Sparke Helmore

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 $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1539 of 2003

SZBCW

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 18 June 2003 and handed down on 11 July 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made a claim of religious persecution.  The relevant background facts are set out in written submissions prepared on behalf of the Minister by Ms Pepper.  I agree with and adopt the statement of factual background set out in paragraphs 3-8 of those written submissions:

   The applicant was born in China on 23 April 1982 and is Christian.  The applicant arrived in Australia on 19 March 2002.  On 18 April 2002 he lodged an application for the visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Migration Act”) (court book, pages
   1-25).

   The applicant claims persecution on the ground of his religious beliefs. In short, the applicant claims that he was a member of the “Shouters”, an underground Christian group banned by the Chinese government. The applicant also claims that he was a central member of this group, and moreover, that in late 2001 he participated in smuggling bibles to Fu Qing.  Further the applicant claims that some members of this group, including those who smuggled bibles, were detained and imprisoned by the authorities (see at court book, pages 17 and 54).  Accordingly, the applicant obtained a visa and left China.

   Proceedings Before the RRT

   On 23 May 2003 the RRT wrote to the applicant in accordance with s.425 of the Act stating that it was unable to make a decision in his favour and inviting him to attend a hearing (court book, page 42). A hearing was set down for 18 June 2002 (court book, page 42) and the applicant initially notified the RRT that he would be present (court book, page 44). The applicant, however, subsequently declined to attend (court book, page 45).

   The RRT, while accepting that the applicant was a citizen of China (court book, page 68), was not satisfied on the very limited evidence before it that any of the applicant’s claims were true (court book, page 68). In particular, it was not satisfied that the applicant was a member of Shouters, was involved in smuggling bibles or that he had fled China to avoid harm and thus faced he a real chance of persecution were he to return to China (court book, page 68).  In so doing the RRT noted that in order to depart China a Chinese national needed an exit permit and a passport to travel overseas and that those who obtained such documents were not likely to be of interest to the Chinese authorities (court book, pages 66-67).

   Grounds of Review

   The grounds of review listed by the applicant in his application are that:

   a)the RRT was motivated by actual bias in making its decision; and

   b)there was no evidence or other materials to justify the making of the decision.

   In support of his claims the applicant has purportedly sworn an affidavit which states that, without more, “there is jurisdiction error with the decision of my application with the RRT” and also that the reasoning of the RRT was inconsistent.

2. I received the document headed “Affidavit” filed by the applicant on 21 January 2004 simply as written submissions.  In that document, the applicant expresses disagreement with the decision of the RRT.  He asserts an inconsistency in the reasoning of the presiding member, but that assertion is, in fact, based upon a misunderstanding. 

3. The applicant draws attention to the presiding member's statement, at the bottom of page 67 and the top of page 68 of the court book, that if the RRT makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.  The applicant is concerned that the presiding member did not assess his claims on the basis that they might possibly be true.  The simple answer to that concern is that it is clear from the findings and reasons of the RRT that the RRT was left in no doubt that the applicant's claims were not true.  In the circumstances, there was no obligation on the RRT to consider the applicant's claims as if they were true.

4. There is no substance to the “no evidence” ground in the application.  The material put before the RRT by the applicant provided a sufficient evidentiary basis for the confirmation of the decision of the delegate.  There is no doubt that there was material before the RRT to support its conclusion that the applicant did not have a well founded fear of persecution.

5. The judicial review application asserts actual bias, but that gives no particulars.  I agree with and adopt for the purposes of this judgment paragraph 9 of Ms Pepper's written submissions in relation to the assertion of actual bias:

   No particulars are given of this ground of review. The affidavit served by the applicant provides no further details of how the actual bias complained of by the applicant arises. Because the applicant has not identified any particular material or findings in support of the claim and there is no evidence in the present case of an actual state of mind of the RRT which would constitute actual (Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [71]-[72]), or even apprehended bias (Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344), this ground of review ought to be rejected.

6. The applicant has not asserted apprehended bias but given the terms of the decision of the RRT the possibility of apprehended bias ought to be considered.  It is apparent from the findings and reasons in the RRT decision that there were two bases to the decision.  First and foremost, the application before the RRT failed because the applicant had put forward no evidence to support it, apart from bald assertions.  The applicant had been invited to attend a hearing before the RRT but although he initially accepted that invitation he subsequently declined it.  The hearing would have been an opportunity for the applicant to have expanded upon his claims.

7. The presiding member said, rather oddly, on page 68 of the court book, that the applicant's claims were not supported by evidence which the applicant himself could give.  If by that the presiding member meant that he would not have given any attention to anything the applicant might have said had he attended a hearing, that would be a matter of serious concern.  If, on the other hand, the presiding member was simply drawing attention to the fact that the claims, as expressed by the applicant, could not establish an entitlement to a protection visa, there is no cause for concern.  In my view, on a fair reading of the decision of the RRT as a whole, the latter interpretation should be placed on the presiding member's words.  It was unwise for the presiding member to attempt to speculate about what evidence the applicant could have given if he had attended a hearing but I am  not satisfied that the statement indicates pre-judgement.  The applicant had claimed to be a member of the “Shouters” religious groups, but he has not asserted that any harm had come to him.  There was nothing in his evidence which, viewed objectively, supported his claim for a protection visa. 

8. The presiding member then moved on to determine the protection visa claim on the basis of an adverse credibility finding.  The presiding member said, on page 68 of the court book:

   It has been the experience of this Tribunal that at least some applicants who claim to belong to the “Shouters” religious groups know so little about the sect that they could not possibly have been members or adherents.  In the circumstances I am not satisfied that the Applicant's claims are true. 

9. It is not clear what the presiding member meant by the words, "in the circumstances".  If the presiding member meant that the claims made by others were untrue and that, therefore, the claims by this applicant were untrue, that would be a matter of concern.  The RRT had to consider the applicant’s claims on their own merits, and not by reference to the claims of the other, unidentified, applicants.  If, on the other hand, the presiding member was saying that the applicant had not demonstrated any knowledge about the “Shouters” religious group and that, consistently with the view taken by the RRT in similar cases, his claims should be taken to be untrue in the circumstances, then, in my view, the words do not point to any jurisdictional error. 

10. It is arguable that the unfortunate manner in which the presiding member has expressed himself might lead a fair minded observer to doubt whether the presiding member was bringing an unprejudiced mind to bear on the consideration of the application.  It does not establish actual bias but it might arguably establish a reasonable apprehension of bias. 

11. It is, however, important to bear in mind that the applicant had been afforded an opportunity to have a fair hearing, which he had declined.  The presiding member was attempting to deal with the application on the basis of the minimal material before him.  In the circumstances, I am not willing to draw a conclusion that apprehended bias has been demonstrated.  I find that the presiding member was simply drawing a somewhat clumsy conclusion from the inadequate material submitted by the applicant. 

12. A separate question may arise whether the RRT was obliged to give notice under s.424A(1) of the Migration Act of the credibility concern held by the presiding member. The obligation arising under that section is separate from an additional to the obligation to invite applicants to a hearing under ss.425 and 425A. It is arguable that as the presiding member chose to determine the claim on a credibility ground by comparison with other unrelated claims, notice under s.424A(1) should have been given.

13. I make no finding on that issue because, even if jurisdictional error was established by such a failure, I would not grant the applicant prerogative relief. That is because, even if notice had been given under s.424A(1), the outcome of the proceeding before the RRT would have been the same. The protection visa claim made by the applicant could not have led to a successful outcome for him. His decision not to attend a hearing before the RRT supports a conclusion that he was unable to add usefully to what he had already put in writing.

14. The applicant, despite having an extended opportunity to do so, has not advanced anything in these proceedings to indicate that any further hearing before the RRT might lead to a different outcome.  In the circumstances, while I have concerns about the manner in which the protection visa application was dealt with by the RRT, in its reasons for decision, I will dismiss the application before the Court.

15. On the question of costs, the application having been dismissed, I am satisfied that costs should follow the event.  Ms Pepper stated that she would accept an order for costs fixed in the sum of $3,000.  I am satisfied that costs of that amount have been reasonably and properly incurred on behalf of the Minister.  The applicant did not oppose an order for costs.

16. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 January 2005