SZDUQ v Minister for Immigration
[2005] FMCA 552
•8 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUQ v MINISTER FOR IMMIGRATION | [2005] FMCA 552 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of China – applicant left Australia before applying for protection – actual or apprehended bias – no evidence – no error of law – application dismissed. Migration Act 1958 (Cth) Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZDUQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1779 of 2004 |
| Delivered on: | 8 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 April 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1779 of 2004
| SZDUQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 19 April 2004 and handed down on
13 May 2004.
Background to the claim
The applicant is a citizen of China who arrived in Australia on
27 October 2003. He applied for a protection visa on
4 November 2003 and a delegate of the Minister refused that application on 8 December 2003. On 17 December 2003 he lodged an application for review in the Tribunal.
A hearing was to be held on 22 April 2004 which the applicant declined to attend, apparently through communication with his migration agent. Therefore on 19 April 2004 the Tribunal affirmed the decision of the delegate with the effective date being 13 May 2004, the date of handing down.
Claims before the Department and the Tribunal
The applicant claims that he was persecuted because of his political opinion. He says he worked for a construction company and the company owed him 200,000 yuan, which it would not pay him. He says he went to the head office asking for the money and the head called the police who detained him. The applicant wrote to the Central Government to report his mistreatment but the Government did nothing about it. He then claims that he wrote signs such as “Government not fair” on walls but people who saw him do this reported him to the police. He was once again put in detention for three days. He was dismissed from his job and his wife lost her job also.
He says that he organised a petition against the Government for the unfair treatment he alleges that he had suffered, which he had other people in a similar situation sign. He says he was regarded as a bad resident and was watched closely. In China, he claims, there is no freedom of speech and no human freedom. If he returns to China he says that he will be placed in prison. He thus fears mistreatment from the Government should he go back.
Tribunal consideration
The essential features of the Tribunal’s consideration of the applicant’s case are summarised in the respondent’s submissions:
9.Having received the Response to Hearing Invitation form indicating the applicant would not attend the hearing and authorising the Tribunal to proceed to make the decision, the Tribunal made a decision on the material before it. It was entitled to do so under section 426A of the Act.
10.In its decision, the Tribunal outlined the background to the claim, noting that the applicant had arrived in Australia, then departed, and returned to Australia three days later. The Tribunal also noted the applicant was represented by a migration advisor.
11.The Tribunal considered the claims of the applicant as outlined above at paragraph 8 [these outline similar facts to those mentioned above]. When outlining the applicant’s claims the Tribunal made a number of observations noting inconsistencies and failures by the applicant to explain certain aspects of the claim. The Tribunal noted the claim was “short on plausible detail”.
I note that the Tribunal has interspersed the applicant’s claims and evidence with these observations. This is somewhat off-putting and makes the Tribunal decision less easy to follow. The respondent’s submissions continue:
12. The Tribunal:
(a) accepted the applicant was a citizen of China;
(b) accepted the applicant worked for a construction company until 2000 but did not accept that his employment ended there;
(c) did not accept (due to scant evidence) that the applicant had a grievance that involved the police in the way he claimed or that he later took the grievance to the authorities, and would attack the body (i.e. the government) whose help he was seeking and paint himself as a graffitist and troublemaker;
(d) did not accept that the applicant was detained in China;
(e) did not accept that the applicant faced detention if he returned to China;
(f) regarded the fact that the applicant was free to move in China and obtained a passport in his own name, as strong evidence of an “unremarkable relationship” between the applicant and Chinese authorities;
(g) was not satisfied that the applicant was unemployed at the time he applied for and obtained his visa to come to Australia;
(h) drew negative inferences from the applicant’s delay in applying for protection in Australia and not applying for protection in New Zealand; and
(i) noted that the applicant’s “silence” reinforced the Tribunal’s view that the applicant was not serious about the application.
13.The Tribunal concluded that the applicant did not face a real chance of persecution in China within the meaning of the Convention and was not a refugee.
14.In short, the Tribunal did not believe the applicant’s claims.
Consideration
The applicant filed what purported to be an amended application on 10 November 2004 which appears to contain at least a couple of grounds for review. It commences:
The Tribunal officer made jurisdiction mistakes when considering my application. He did not have any evidence or materials to justify the making of his decision. I believe that the officer had bias against me, and made the conclusion based on his bias against me. H[e] did not have any evidence to justify his decision.
The amended application goes on to quote from the Tribunal decision. Then the amended application states:
I believe the above statements are induced by the actual bias of the Tribunal officer. There is not any evidence or materials to justify the making of such statements for his consideration of my application for a protection visa.
I don’t think I would have to lodge my application straight away, as I was quite safe in Australia and in New Zealand. I should have travel to New Zealand because I had paid for it and I wanted to know where is the safe place for me to lodge my application for protection visa. It took time for me to consider all these before I lodged my application.
I believe that the officer’s consideration was based on a series of unsupported and unjustified assumption. He should not have made such mistake when considering my application.
I note in passing that some of the wording and terminology in this amended application is remarkably similar to that in an amended application that I had in another matter on the same morning as this matter was heard, surprisingly involving an applicant from Indonesia, not China. But I should not express surprise because this is very common in this jurisdiction.
It appears that the applicant is claiming two legal errors: either actual or apprehended bias and no evidence.
Bias
The test for actual bias is set out in the Full Court of the Federal Court decision of Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 by Wilcox J as follows:
[Actual bias] requires an applicant to show that “the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case”.
This approach had been followed by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 where he made three points. First
That the member concerned has formed a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias, and so to disqualify a tribunal member from hearing a matter … Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case.
Second
It is important to keep in mind, when actual bias is alleged, that the matters upon which reliance is placed to establish bias must be considered in the context of the whole of the hearing before the decision-maker …
Third
It is not sufficient to show that a decision-maker has displayed irritation or impatience or even sarcasm during a hearing; regrettable though these manifestations may be, whether the relevant states of mind approach the level required to support a finding of actual bias remains a question of fact in each case.
In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43], the Full Court of the Federal Court said:
First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved.
At the hearing the applicant again alleged that the Tribunal member was biased against him. The only reasons he gave were that the Tribunal member did not believe what he had said and that the decision was not correct.
There is absolutely nothing in the Tribunal consideration, as evidenced by the Court Book, that might indicate that the Tribunal member had a closed mind to the issues and was not open to persuasion by the applicant’s case. No other evidence has been put to the Court.
Similarly notwithstanding the somewhat idiosyncratic approach of the Tribunal member in the articulation of his reasons and his decision, there is nothing that, in the words of the High Court in Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434, might lead:
a fair-minded lay observer [to] reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
The allegations of bias, whether actual or apprehended, are groundless.
No evidence
The applicant has claimed:
He [that is the Tribunal member] did not have any evidence or materials to justify the making of his decision.
…
There is not any evidence or materials to justify the making of such statements for his consideration of my application for a protection visa.
This appears to me to be just an attempt to cavil with the merits of the fact finding of the Tribunal. Nevertheless the Full Court of the Federal Court in Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31] has rejected the suggestion that Re Minister for Immigration & Multicultural Affairs ex Parte Applicant S20/2002 (2003) 77 ALJR 1165 stood for the proposition that jurisdictional error would occur “through a legal deficiency including the absence of evidence or the insufficiency of evidence to support the decision”.
In Applicant A169 the Full Court found that such a proposition was supported by only one judgment in S20/2002. The Full Court concluded:
it is plainly established by the High Court that there is no jurisdictional error simply in making a wrong finding of fact.
This is a well-established proposition. There is no merit in the applicant’s claims that the Tribunal erred in not having any evidence or materials to justify the making of the decision.
At the hearing I urged the applicant to provide me with further details identifying legal errors on the part of the Tribunal. But apart from reiterating his dispute with the findings of fact by the Tribunal and alleging bias, the applicant was unable to expand upon his application in any real way. He made much, however, of the fact that he had relied on a friend, one Mr Zhang, with whom he had lost contact. He did not seem to know anything of his authorised contact, Ms Linda Liu, who was nominated as his contact for service in his application to the Tribunal.
The fact that he may not have been adequately assisted by his friend, a claim which very commonly arises in this Court, does not point to any legal error by the Tribunal. Indeed, the applicant at the hearing said “The Tribunal made no judicial mistakes in its decision”. He stated that he just feared going back to China and then he reiterated that the Tribunal was biased.
As the respondent has pointed out, because the Tribunal only had before it the facts as alleged by the applicant that were contained in the papers, it was the only material on which it could proceed. It is not, as the applicant alleges, that the Tribunal had no evidence before it. Rather it had insufficient plausible evidence and this was due to the applicant’s failure to put such evidence to the Tribunal.
As Kirby J said in Minister for Immigration & Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the Minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.
Similarly Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Conclusions
The amended application is deficient in that it does not identify anything in substance concerning the decision of the Tribunal or the proceedings before the Tribunal to assist the Court in determining whether there was any reviewable legal error. I invited the applicant at the hearing to put to me anything that might assist in identifying a legal error, but he was not able to do so.
Counsel for the respondent Minister submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal, on the evidence before it, did not believe the applicant’s claims. The findings made were reasonably open to it on the material it had before it.
I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Migration Act 1958 (Cth) and to the powers conferred on the Tribunal.
In the circumstances, the application must be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 1 June 2005
0
8
0