SZDXH v Minister for Immigration
[2005] FMCA 951
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXH v MINISTER FOR IMMIGRATION | [2005] FMCA 951 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of China – invitation to a hearing declined – decision made before date of hearing – letter sent before date of hearing informing applicant of handing down – affirmative satisfaction – no evidence – actual bias – apprehended bias – fact finding – merits review – privative clause decision – no error of law – application dismissed. Migration Act 1958 (Cth), s.425 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 |
| Applicant: | SZDXH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1926 of 2004 |
| Delivered on: | 16 June 2005 |
| Delivered at: | Sydney |
| Hearing dates: | 14 & 16 June 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed;
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1926 of 2004
| SZDXH |
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 the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 12 May 2004 and handed down on
3 June 2004.
The applicant who is a citizen of the People’s Republic of China arrived in Australia on 9 January 2004. He applied for a protection visa on 15 January 2004 and that application was refused by a delegate of the Minister on 23 January 2004. The applicant lodged an appeal with the Tribunal on 24 February 2004 and, as I have said, the Tribunal affirmed the decision of the Minister’s delegate in a decision of
12 May 2004 handed down on 3 June 2004.
Claims before the Department and the Tribunal
The applicant claims to have bought a small bus to start his own business after graduating from middle school in China. Soon after he bought the transport business he was blackmailed by traffic police who demanded greater and greater sums of money from him. When the demands reached an amount he could not afford he reported the blackmail to a superior authority who was, he alleges, biased in looking at his complaint. The authority dismissed his claims saying they were unsubstantiated.
The traffic police then claimed he overloaded passengers on the bus. His driving licence was cancelled and business licence suspended. He continued the business until he was caught operating without a licence. His bus was taken and he was required to pay a fine of 30,000 RMB or go to gaol. He says he could not obtain the money and instead obtained an Australian visa and came to Australia.
His claims are set out at the Court Book page 25 and were attached to his application for a protection visa. He made no further claims in his application to the Tribunal, simply referring back to his statement to the Department.
Tribunal consideration
The Tribunal invited the applicant by letter dated 22 March 2004 to attend a hearing which was set for 18 May 2004 at 2.30 pm. The Tribunal advised him that it had considered the material before it but was unable to make a decision in his favour on this information alone. It therefore invited him to attend a hearing. However, the Tribunal received a response on 6 April 2004 in which the box headed “No” under the heading “Do you want to come to a hearing?” was ticked.
That part of the response says:
No. I/we do not want to come to a hearing. 1/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.
This response appears to be signed by the applicant and dated
28 March 2004. According to the date stamp on the document at Court Book page 40 it was received by the Tribunal on 6 April 2004.
The Tribunal’s findings and reasons are brief and I quote from them:
I accept that the applicant is a national of the People’s Republic of China, however I have a number of problems with the applicant’s claims. Firstly, the applicant has provided very few details in his protection visa application form. For example, he has not provided any details of his passport or visa even though the form asked for such information. In addition, the applicant has indicated that he would provide more details concerning his claims but has failed to do so. Secondly, although the applicant indicates that he purchased a bus after completing middle school, his protection visa application indicates that he has only six years of primary education. The applicant has not explained this apparent inconsistency in the information he has provided. Thirdly, the applicant indicates that he was targeted by corrupt policemen and that he left China in order to avoid paying a fine. The information provided by the applicant does not suggest that he was targeted for reasons of his race, his nationality, his religion, his membership of a particular social group or his political opinion. In view of the lack of the detail contained in the protection visa application I am unable to make findings of fact concerning the applicant’s claims. It follows that I cannot be satisfied that the applicant has a well founded fear of persecution for a Convention reason.
Consideration
Invitation to a hearing
The first issue is one which I raised myself at the hearing on Tuesday 14 June 2005 and for which I requested supplementary submissions from the respondent. I adjourned until 16 June 2005 for these submissions to be produced. I express my appreciation for the respondent meeting that request in the short time available.
The relevant facts are firstly the invitation by letter dated 22 March 2004 to the applicant to attend a hearing on 18 May 2004 which is reproduced at Court Book pages 38-39.
The applicant’s response was dated 28 March 2004 and the Tribunal received that response, in which he declined the invitation to attend a hearing, on 6 April 2004 as reproduced at Court Book page 40.
On 17 May 2004, as set out at Court Book page 41, the applicant was advised that the Tribunal had made a decision and that it would hand it down on 3 June 2004. The Tribunal had made its decision on 12 May 2004 but it was not handed down, as I say, until 3 June 2004.
My concern was whether, the applicant having been invited to a hearing on 18 May 2004, the Tribunal had the power to make a decision before the date which had been set for hearing in the circumstances of this case. I particularly note that the letter advising the applicant of the handing down is dated before the date proposed for the hearing. It is of course a critical consideration that the applicant had already declined to attend a hearing.
The respondent’s submissions on this issue are as follows:
In the Respondent’s submission the Tribunal plainly had such power. There is nothing in the Migration Act 1958 (the Act) to suggest otherwise, and considerations of convenience and sensible administration would militate against such a construction of the Act unless it was clearly stated or implied. In this case ss 425 and 425A of the Act were complied with by the letter of 22 March 2004, and s 426A does not have the effect that the Tribunal may not make a decision until after a hearing date has passed in the circumstances of this case. Section 426A only applies to an applicant who does not attend a hearing at which he or she is “scheduled to appear”: s 426A(1)(b). The Applicant cannot be said to be “scheduled to appear” at a hearing where as in this case he has informed the Tribunal by the appropriate form that he does not wish to attend it.
In oral submissions Mr Reilly for the respondent said that s.426A of the Migration Act 1958 (Cth) (the Act) was not engaged for the reasons given in the written submissions. However s.425(3) did apply in this case. Section 425 provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Mr Reilly submits that s.425(3) applies to this case because of the applicant’s response on 28 March 2004. In this he declined to attend the hearing proposed for 18 May 2004 and consented to the Tribunal making a decision without it taking any further action to enable him to appear before it.
I have some doubts whether s.425(3) does apply in circumstances where an invitation has already been issued to an applicant to appear before a hearing. But that is not fatal to Mr Reilly’s submissions. He contends that even if I am against him on the application of s.425(3), there is nothing in the Act expressly or impliedly which would prevent the Tribunal making a decision after the receipt of a negative response in the circumstances of this case. In my view the respondent’s submissions in this respect are correct.
The applicant was issued with an invitation to attend a hearing. That invitation was real and meaningful in the sense considered by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293. The applicant declined to attend that hearing. I can find nothing in the Act which would prevent the Tribunal from then proceeding to make a decision.
The situation may be different, as Mr Reilly has conceded, if the applicant had resiled from his decision not to attend the hearing prior to the handing down of the Tribunal decision.
Of course there are good practical considerations which suggest that the steps taken by the Tribunal in this matter were appropriate.
For these reasons I can find no basis for concluding that the Tribunal failed to comply with its obligations in relation to a hearing.
The grounds set out in the application for judicial review.
In his original application of 23 June 2004 the applicant set out three grounds as follows:
1. The Refugee Review Tribunal made jurisdiction mistakes in considering my application.
2. The Tribunal could not produce any evidence to justify its decision on my application.
3. Enclosed please find a copy of the decision letter from RRT.
The third point is of course not a ground of review.
On 9 November 2004 the applicant filed a document which purports to be an amended application. The respondent has in my view correctly identified in its written submissions three possible grounds of review:
(i)the Tribunal member made mistakes when considering the applicant’s application;
(ii)the Tribunal did not have any evidence or material to justify the making of his decision; and
(iii)the Tribunal member was biased as they did not have any evidence to justify the decision and in that regard [the applicant] essentially provided the following particulars:
(a) the decision letter of the Tribunal;
(b) the Tribunal member made negative statements;
(c) the Tribunal member could not accept the facts;
(d) the Tribunal member did not believe any of the evidence because “my credibility became a problem in his mind;”
(e) there was no evidence or materials to justify the making of such statements;
(f) the Tribunal member did not consider the applicant’s application based on the information he provided; and
(g) the Tribunal did not refer to independent information from other sources;
(h) the Tribunal member based their decision on “unsupported and unjustified assumption.”
As it can be seen the first two grounds in the application are replicated in the first two grounds identified in the amended application. The first ground is that the Tribunal member made mistakes when considering the application. The applicant has not provided any particulars nor filed any submissions to indicate how the Tribunal made these mistakes nor how the Tribunal may have misapplied the law. In particular when I asked the applicant to detail legal errors on the first day of hearing, Tuesday 14 June 2005, and again at the adjourned hearing on 16 June 2005 he said that he had nothing to say.
Furthermore, as I have noted, the applicant was invited to attend a hearing before the Tribunal which he declined to do. In such circumstances the applicant must be taken to assume the risk that omissions, inconsistencies or other unsatisfactory features of his documents would be noted by the Tribunal without him having an opportunity to explain or clarify them.
The applicant was put on notice that the Tribunal was unable to reach a favourable decision on the material it had before it. As a result it was inevitable that the Tribunal would be unable to reach the necessary degree of satisfaction to allow it to grant a protection visa to the applicant. The Full Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 (which has recently been affirmed in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73) made it clear that s.65(1) of the Act:
does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
In this case as I have said the Tribunal was unable to be satisfied as to the applicant’s claims and the inevitable consequence was the rejection of the application for a protection visa.
The second ground is the Tribunal did not have any evidence or material to justify the making of its decision.
For the reasons which I have already given this ground must be rejected. The applicant failed to provide further evidence which would have allowed the Tribunal to reach a state of satisfaction that he was entitled to a protection visa. The applicant said that he would provide further evidence but failed to do so and he declined to attend the hearing.
The Tribunal’s rejection was based on the absence of material bringing it to the necessary state of satisfaction. Furthermore the Tribunal was under no legal obligation to exercise its power to obtain further information (see eg Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12). No jurisdictional error is apparent.
The last ground in the amended application asserts that the Tribunal member was biased. There is no evidence before the Court to support this assertion. There is only reference as I have already noted to a number of particulars.
The test for actual bias is set out in the Full 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”.
The test for apprehended bias is outlined in Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434 as anything which 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.
There is no evidence before me to suggest that the Tribunal member was either actually biased or that there should be a reasonable apprehension of bias. The details such as they are provided by the applicant in his amended application go nowhere near supporting the claim of bias that he makes.
Conclusions
The amended application is deficient in that it does not identify in detail anything in relation to the decision of the Tribunal or the proceedings before the Tribunal which would assist the Court in determining whether the Tribunal made any reviewable legal error.
I invited the applicant at the hearing on both 14 and 16 June 2005 to put to me anything that might assist me in identifying a legal error. But on each occasion the applicant declined to say anything.
It seems to me that the applicant’s real dispute is with the findings of fact, such as they were, by the Tribunal, or rather with the Tribunal’s failure to make findings of fact supportive of his case. This situation is clearly because on the scant evidence provided by the applicant the Tribunal was unable to reach favourable conclusions on the factual matters.
Counsel for the respondent submitted the application must be dismissed as no reviewable legal error has been disclosed. I agree. The conclusions reached by the Tribunal on the material before it were reasonably open to it.
I am not satisfied that 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 Act and related to the powers conferred on the Tribunal.
In the circumstances I dismiss the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 20 July 2005
0
9
0