SZBWY and SZBWZ v Minister for Immigration

[2005] FMCA 767

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBWY & SZBWZ v MINISTER FOR IMMIGRATION [2005] FMCA 767

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicants husband and wife – applicants citizens of China – Falun Gong – claim of well-founded fear of persecution.

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

NAEL v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FMCA 144
SCAA vMinister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668
Minister for Immigration & Multicultural & Indigenous AffairsvJia (2001) 205 CLR 507
Minister for Immigration & Multicultural & Indigenous Affairs vDurairajsingham  (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547

First Applicant: SZBWY

Second Applicant: SZBWZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Numbers: SYG 2443 of 2003 & SYG 2444 of 2003

Judgment of: Scarlett FM

Hearing date: 23 May 2005

Date of Last Submission: 23 May 2005

Delivered at: Sydney

Delivered on: 23 May 2005

REPRESENTATION

Solicitors for the Applicants: In person

Counsel for the Respondent: Mr Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the proceedings SZBWY v Minister for Immigration and Multicultural and Indigenous Affairs File No. SYG 2443 of 2003 and SZBWZ v Minister for Immigration and Multicultural and Indigenous Affairs File No. SYG 2444 of 2003 be heard together.

2. The Applications are dismissed.

3. Applicant SZBWY is to pay the Respondent’s costs fixed in the sum of $4500.00.

4. Applicant SZBWZ is to pay the Respondent’s costs fixed in the sum of $4000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2443 of 2003 & SYG 2444 of 2003

SZBWY

First Applicant

And

SZBWZ

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. There are two applications before the Court today.  They are the matters of SZBWY and the Minister for Immigration & Multicultural & Indigenous Affairs and SZBWZ and the Minister for Immigration & Multicultural & Indigenous Affairs.  The file numbers are SYG2443 of 2003 and SYG2444 of 2003 respectively.  They relate to two different applicants.  The applicants are husband and wife.  Their claims are essentially similar.  They each seek a review of a decision of the Refugee Review Tribunal.  In each case the decision was made on

   
   

   25 September 2003 and handed down on 21 October 2003.  the proceedings in the Refugee Review Tribunal were heard by the same member, one after the other.

2. The two applications here were first listed for hearing on two different days.  The application SZBWZ and the Minister was listed for hearing on 25 May when the other matter was listed for hearing today.  Quite clearly, the two matters should be heard together and I have listed them for hearing on the one day. 

3. Applicant SZBWY complained that his wife did not receive notification of the altered hearing date but fortunately, both he and his wife arrived at the Court together.  I will order therefore in each case that the proceedings should be heard together. 

4. The applicants are citizens of the Peoples Republic of China.  They each claim a well founded fear of persecution.  The fear of persecution relates to their claim that they are active Falun Gong practitioners.  The delegate of the Minister in each case has denied that. 

5. The applicants arrived in Australia on 7 April 2002.  They each applied for a protection visa on 19 April 2002.  A delegate of the Minister refused their applications on two different days.  The application of Applicant SZBWZ was refused on 21 June 2002 and the application of Applicant SZBWY was refused on 24 June 2002.  They each lodged their applications for review on 22 July 2002. 

6. The Refugee Review Tribunal held a hearing on 22 September 2003, although the Tribunal member in her decision says that the proceedings were held on 23 September 2003.  The transcript of the proceedings indicates that both applications were heard on 23 September.  Both applicants gave oral evidence.  The Tribunal asked the applicants a number of questions about their practise of Falun Gong. The applicants also provided photographs of themselves apparently doing Falun Gong exercises.  They also provided photographs of an elderly person receiving medical treatment after having apparently been bashed.  Copies of those photographs were admitted into evidence as one bundle and marked as exhibit 1.  The photocopies of the photographs appeared in the Court Book.

7. The Tribunal member asked the applicants about the practise of Falun Gong and their claims of a fear of persecution if they were to return to China.  The Tribunal was not satisfied in either case that the applicants' claims were credible.  In each case the Tribunal member said that she considered that significant aspects of each applicants' evidence lacked credibility.  The Tribunal member expressed the view that the applicants had fabricated claims and had sought to portray themselves as Falun Gong practitioners in an attempt to create for themselves profiles as refugees.  The Tribunal member did not consider either applicant to be a reliable witness.  In respect of Applicant SZBWY, the Tribunal member was not satisfied that his level of knowledge of Falun Gong showed any great knowledge of the practice at all.  The Tribunal was not satisfied about the applicant's claim that he was on a wanted list in China.  She did not accept either of his explanations as to why he had not disclosed this when he first applied for a protection visa.  The Tribunal described the applicant wife's evidence as "confused and internally inconsistent".  See Court Book page 85. 

8. The Tribunal member, in each case, was not satisfied that the applicants' involvement with Falun Gong in Australia was behaviour in which the applicants had engaged for any other purpose than for strengthening their claim to be refugees. The Tribunal was of the view that subsection 91R (3) of the Migration Act applied. Accordingly, the Tribunal disregarded the involvement of the two applicants with Falun Gong in Australia in assessing whether they had a well founded fear of persecution for a Convention reason.

9. The applicants lodged their application to this Court on 13 November 2003.  In each case, they said that they had been active Falun Gong members, worrying about their safety.  They say:

   There is a mistake with the way that the officer considered my application.  I believe that I meet the criteria for a protection visa.

10. In each case, they say there is error with the way that the Tribunal member considered their applications. 

11. The applicants have filed submissions setting out their claims.  Those submissions were filed on 14 May 2004.  The submissions are in similar but not identical terms.  The submission of Applicant SZBWY, the husband, criticises the Tribunal for making contradictory statements.  The applicant describes the contradictory statements as a jurisdiction mistake.  In each case, the applicants accuse the Tribunal of bias.  They say that the Tribunal did not provide evidence to justify the Tribunal's critical statements about the applicants' practise of Falun Gong. 

12. I have also read the outline of submissions filed by counsel for the respondent. Counsel for the respondent, Mr Potts, submits that the applicants' claims do not disclose any properly articulated ground alleging jurisdictional error, although the applicant husband, SZBWY, may be alleging a denial of natural justice. In respect of denial of natural justice, Mr Potts submits that section 422B of the Migration Act applies in this case. He submits that the Tribunal was not required to put to the applicant for comment the fact that it might regard the document relating to the applicant being on the wanted list as being not a genuine document. The Tribunal's rejection of the document about the wanted list was a finding of fact or a subjective determination and should not be regarded as "information". The Tribunal was not required to put its concerns about the document to the applicant under section 424A. See NAEL v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FMCA 144.

13. Turning to the ground, such as it is, of making contradictory statements, Mr Potts submits that no contradictory statements are apparent from the passages of the Tribunal's reasons relied upon by the applicants.  He submits, correctly, that the Tribunal's findings were not contradictory and neither illogical or irrational.  In respect of the allegation of bias, Mr Potts submits that the Court should have regard to the decision of von Doussa J in SCAA vMinister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668. In that case, his Honour said:

    In my opinion, it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. 

14. A party asserting actual bias on the part of a decision maker carries a heavy onus.  That allegation must be distinctly made and clearly proved.  The reference is to the Minister for Immigration & Multicultural & Indigenous AffairsvJia (2001) 205 CLR 507. Mr Potts submits that there is nothing in the facts of this case to justify a finding of actual bias.

15. Turning to the fourth ground, Mr Potts submits that the applicants' contention that there was no evidence to justify the Tribunal's findings is incorrect.

16. As I put to the applicant, the decision of the Tribunal contained the Tribunal's reasons at some length.  Mr Potts also submits that the Tribunal's decision does not otherwise disclose any reviewable error, that the conclusions that were reached by the Tribunal were open to it and that in each case, the Tribunal was not satisfied about the credibility of the two applicants.  Mr Potts submitted that findings on credibility are the function of a primary dispute decision maker, par excellence.  I refer to Minister for Immigration & Multicultural & Indigenous Affairs v Durairajsingham (2000) 168 ALR 407 at paragraph 67 of the decision of McHugh J. He submitted, and relevantly so, that as long as the Tribunal's findings on credibility were open to it, no error is demonstrated in reaching those conclusions. See Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547, pages 558 to 559.

17. The fact is that the claim by the two applicants of jurisdictional error and bias on the part of the decision maker is almost entirely based on the fact that the Tribunal did not accept their evidence in important areas and was not satisfied that they were credible witnesses.  Whether or not the Tribunal accepts a witness' evidence is a matter for the Tribunal, provided that there is evidence upon which the Tribunal can make that finding.  Where a Court is conducting judicial review, it is not open to the Court on considering the evidence, to decide what decision it would reach on the basis of that evidence and substitute its decision for that of the Tribunal.  The authority for this is set out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang. 

18. There is no evidence, to my mind, of actual bias on the part of the Tribunal.  I have read the transcript of the hearing.  There is nothing on the transcript that indicates to me that there was any actual bias or denial of natural justice or procedural fairness in the way the hearing was conducted.  The main claim of the applicants is that their evidence was not accepted and they were not regarded as credible witnesses. 

19. There is no jurisdictional error, there is no reviewable error.  In each case the application will be dismissed. 

20. This is a matter where in my view costs should follow the event, and I propose to make an individual order for costs.  The applicants have said that Applicant SZBWY has not worked much and that Applicant SZBWZ does not have a job at all.  That is not of itself a ground for not making an order for costs.  The amount sought in each case is $5000. 

21. I have looked at the costs schedule in the Federal Magistrates Court Rules. It is an appropriate matter to make individual costs orders as the proceedings for some inexplicable reason, have been dealt with individually until a decision was made that the proceedings should be heard together. I really feel that that particular decision should have been made a lot earlier. Nevertheless, that situation has arisen.

22. In my belief, a total figure, even including counsel, of $10,000 all up is perhaps a little high.  Nevertheless, a considerable amount of preparation had to be done in each case and the hearing has taken a bit longer than might otherwise have

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  6 June 2005