SZDZR v Minister for Immigration
[2005] FMCA 1921
•20 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1921 |
| MIGRATION – Refugee – invitation to attend hearing – notification – non-attendance – inevitable consequence – no evidence of bias or bad faith – no duty on Tribunal to make the applicant’s case for him – privative clause decision – application dismissed. |
| Migration Act 1958, ss.426A, 65, 36(2), 474 Federal Magistrates Court Rules 2001.r.21.02(2)(a). |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal Ex parte H [2001] HCA 28 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | SZDZR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2219 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 December 2005 |
| Date of Last Submission: | 30 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. A. Carter |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs set in the amount of $4250, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2219 of 2004
| SZDZR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore, Revised from Transcript)
This is an application filed in this Court on 15 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 May 2004 and handed down on 22 June 2004 to affirm the decision of a delegate of the respondent Minister made on 11 February 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a national of the People's Republic of China who arrived in Australia on 4 February 2004. The applicant claimed that he witnessed the massacre in Tiananmen Square in 1989 and feared persecution by the Chinese authorities because of his “participation in demonstrations and the organisation of democratic movements in 1989”. He claimed that he suffered mental torture from the authorities. He also claimed that he was able to avoid being persecuted because he paid some money to the authorities with the help of a friend. He further claimed that he was involved with the Falun Gong movement in China and Australia. The applicant's claims are set out in his application for a protection visa made to the first respondent's Department (Court Book (“CB”) 1 to CB 24, in a statutory declaration at CB 25 and in his application for review to the Tribunal at CB 39 to CB 42 and in particular in a statement at CB 41.
On 8 April 2004 the Tribunal wrote to the applicant and advised that on the material before it, it was unable to make a favourable decision. The applicant was invited to a hearing on 29 April 2004 before the Tribunal to give oral evidence and present arguments in support of his claims. The Tribunal also provided the applicant with the important information that if he did not attend the hearing, and the Tribunal did not postpone the hearing, it could proceed to a decision without further notice. The letter was sent to both the applicant’s home address, and to the “Authorised Recipient” (who was also the applicant’s migration adviser) as provided by the applicant in his application for review (CB 43 to CB 44). The letter enclosed a “Response to Hearing Invitation” form that was returned to the Tribunal by the applicant on 15 April 2004 which indicated that the applicant had accepted that invitation (CB 45). On 27 April 2004 the Tribunal wrote to the applicant’s authorised recipient, sent by facsimile, to advise that the scheduled hearing of 29 April 2004 would be postponed to a new date (CB 46). On 28 April 2004 the Tribunal wrote to the applicant’s authorised recipient, with a copy sent to the applicant’s home address advising of a new hearing date of 25 May 2004. I should note that this second letter also complied with the statutory requirements as to the prescribed period of notice. On 24 May 2004 the applicant’s advisor wrote to the Tribunal notifying that the applicant wished to attend the hearing (CB 49). However, according to the Tribunal’s decision record, which is unchallenged by any evidence to the contrary before me, on the morning of 25 May 2004 the applicant’s advisor contacted the Tribunal again and advised that the applicant had decided not to attend the hearing to give oral evidence, and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow, or enable him, to appear before it. The applicant did not attend at the appointed hearing time, and pursuant to s.426A of the Migration Act 1958 (“the Act”) the Tribunal proceeded to make a decision.
The Tribunal specifically found:
1)That the applicant's claim that in 1989 he participated in demonstrations and the organisation of democratic movements does not explain what movements he was involved in and what role he played in such movements (CB 58.4).
2)But that even if he had been involved in any political movement in which the Chinese authorities may have had an adverse interest it was his own admission that that was in 1989, some 15 years ago, and that the applicant had left China on 24 January 2004. The Tribunal found that the applicant did not indicate what he did in China from 1989 until January 2004 and that he did not indicate that he had ever been arrested or imprisoned prior to his departure nor did he indicated he had any difficulties with the authorities since 1989 (CB 58.5).
3)The Tribunal further noted that although he had alleged that he had suffered mental torment in his statement at CB 41, he did not say what was done to him by the authorities and when (CB 58.6).
4)In relation to the applicant's complaint that he is now involved with Falun Gong the Tribunal found that he had provided no evidence of his involvement and neither was there any suggestion or any evidence that he had suffered persecution as a result of his association with the Falun Gong movement (CB 58.7).
5)The Tribunal noted that the applicant provided no information that could assist in determining whether he faced a real chance of persecution because of his alleged involvement with Falun Gong or because of his claimed past activities in organising democratic movements (CB 58.8).
6)The Tribunal found, critically, that in the absence of any further information including that the applicant chose not to attend the hearing before the Tribunal without any explanation, the Tribunal was not satisfied that the applicant was involved in these demonstrations and organisation of political movements in 1989 or that if he was, he would now be of adverse interest to the Chinese authorities or that he was a Falun Gong practitioner who faced a real chance of persecution if he returned to China. Accordingly, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason (CB 59.2).
The applicant’s originating application contains the following grounds:
“1. I was not given a proper opportunity to explain my case.
2.The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.
3. A copy of the Tribunal’s decision is attached.”
The applicant filed an amended application on 1 December 2004 which in narrative form makes a number of complaints, but provides no real particulars in support of those complaints, and I should just note that I took the applicant's reference to “officer” as being a reference to the Tribunal. In any event the following may be discerned:
1)The decision was made without sufficient evidence and there was no evidence to justify the decision.
2)The Tribunal was biased.
3)The Tribunal failed to consider the applicant's claim in more detail.
4)The Tribunal did not consider all the information provided.
5)The Tribunal did not refer to information from any private sources about the political situation in China.
6)The Tribunal's consideration was based on a series of unsupported and unjustified assumptions.
The applicant appeared unrepresented before me, although in this regard I note that the applicant did access the Court's Legal Advice Scheme and was given advice on 3 December 2004. The applicant was assisted by an interpreter in the Mandarin language. Mr. Carter appeared for the respondents and I have his written submissions before me. Before me today, the applicant repeated some of the claims made in the amended application, particularly that the Tribunal had no evidence to refuse the application and that the Tribunal made assumptions that if he were to return to China he would not be persecuted, and that therefore this showed that the Tribunal was biased against him. The applicant also stated that the Tribunal did not consider the application carefully and that this was shown by its decision that he did not participate in any Falun Gong activities and that the Tribunal did not consider all of the information and made a decision in a hurry and did not consider information from international organisations about China. To the extent that these complaints go to the issue of the statutory obligation on the Tribunal to be satisfied as to the necessary criterion, then these complaints must fail because the Tribunal was not in breach of any of the relevant statutory criteria in this regard. But I will return to some of these matters in a moment.
On the material before me it is clear that the Tribunal considered all of the applicant’s claims as put by the applicant and advised the applicant in writing that on what was before it could not make a favourable decision. In these circumstances it invited the applicant to attend a hearing. The applicant was on clear notice as to the importance of the hearing and that a failure to attend at the hearing could result in the Tribunal proceeding to make a decision without any further notice. The applicant without explanation did not attend the hearing. Further, given the Tribunal's account, which remains unchallenged before me, the applicant's adviser contacted the Tribunal and advised that the applicant consented to the Tribunal proceeding to make a decision on what was before it. The relevant statutory regime provides by way of s.65 of the Act that the Minister (the decision maker) is to grant the visa sought by a valid application if satisfied of various matters. Section 36(2) of the Act requires that in the case of an application for a protection visa one criterion is that the applicant is a person in respect to whom the Minister (the decision maker) is satisfied that in relation to whom Australia has protection obligations under the Refugees Convention. In particular this requires the decision maker to be satisfied that the applicant meets the definition of refugee as set out in Article 1A(2) of the Convention. The Tribunal could not be so satisfied and it put the applicant on clear notice as to this possibility and provided him with an express opportunity to attend a hearing to provide further evidence and argument in support of his claim. The applicant chose not to attend and further the applicant through his adviser consented to the Tribunal proceeding to make a decision. No jurisdictional error is revealed in circumstances where the facts that were put forward by an applicant did not cause the Tribunal to be satisfied as to the necessary applicable criterion: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215. I note that in similar circumstances, where an applicant did not appear before the Tribunal in the context of a letter putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, the Full Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] described the rejection of the application as the “inevitable consequence” of the applicant's non-attendance.
The applicant's complaint in his originating application that he was not given a proper opportunity to explain his case is, in the absence of anything else put forward by the applicant, clearly not made out. The applicant, assisted by a migration agent, was put on advance notice as to the Tribunal's reaction to the material that he had put before it and was clearly given an opportunity to come to hearing which he did not take. The Tribunal certainly gave him an opportunity, he chose not to take that opportunity and there is no error on the part of the Tribunal in proceeding in all the circumstances to make a decision pursuant to s.426A of the Act. Before me, when I pressed the applicant as to whether he wanted to say anything further in relation to his failure to attend at the hearing, the applicant stated that he “forgot” why he did not attend. This complaint is not made out.
I took the applicant's second complaint in the originating application that the Tribunal was wrong to find that he was not refugee and made mistakes as being expanded upon (albeit to a limited extent) by the amended application. In the amended application the applicant complains:
1)That the decision was made without sufficient evidence. On what is before me this ground cannot be made out. The Tribunal clearly considered all relevant aspects of the claims put forward by the applicant and the applicant was unsuccessful as I have set out above because the Tribunal could not be satisfied about the facts that were put forward by him on the basis of the limited information that he had supplied. The applicant's complaint that the Tribunal did not have any evidence to justify its decision appears to be that there is a burden of proof on the Tribunal to disprove that the applicant is not a refugee. As I have already said, the relevant statutory requirements relate to the level of satisfaction that the Tribunal must reach before a visa must be granted.
2)That the Tribunal was biased. I note that the applicant has brought forward absolutely no evidence to support this allegation. In relation to the applicant’s complaint of bias and bad faith, the applicant has put nothing before the Court to establish any of the relevant elements as set out in authorities. For the applicant’s benefit I should set out that allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Allegations of alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). No particulars of bias or apprehended bias are alleged. I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias. The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the applicant's claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872). Also, the application fails the test of establishing bad faith as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20] because the allegations of bad faith are not clearly alleged, no attempt at proof is offered and no personal fault or absence of honesty on the part of the decision maker has been made out. This claim on what is before me cannot be made out.
3)That the Tribunal refused to consider the application in more detail. This must be seen in the context of the Tribunal's invitation to the applicant to attend a hearing and provide further relevant detail and the applicant's failure to do so. But, in any event there is nothing before me to show that the Tribunal was obliged to conduct any further investigation in the circumstances as presented by the applicant. The complaint that the Tribunal did not accept the applicant’s claims of harm and made a finding that there was no well founded fear in the absence of anything else does not rise above a request for impermissible merits review Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
4)That the Tribunal did not consider all the information provided. Clearly this must fail on what is before me. The Tribunal's decision record reveals that the Tribunal did take into account the applicant claims, but the failure by the applicant to explain and provide detail of the claim and the absence of any further information led the Tribunal to not being satisfied that the applicant had been involved in demonstrations as claimed or that as a Falun Gong practitioner he faced a real chance of persecution should he return to China. The applicant's complaint therefore again does not rise above a complaint that the Tribunal did not accept his claims. Again in this regard, the Tribunal made the findings of fact that were within its proper role as the relevant decision maker and the Court is unable to intervene in such circumstances.
5)
That the decision was made in a “hurry”. I note in particular that the application to the Tribunal was made on 18 March 2004, that ultimately the hearing date was 25 May 2004, well over two months later, and the Tribunal's decision was not made until
27 May 2004 and not handed down until 22 June 2004. In the circumstances, the applicant, who has the benefit of a migration advisor, had ample opportunity within that period of time to put to the Tribunal whatever additional written submissions or information that he may have wanted to put, and there was clearly sufficient time for the applicant to do so. I note in particular that in its letter of 8 April 2004, the Tribunal specifically drew the applicant's attention to the possibility of sending any new documents or written arguments that he wanted the Tribunal to consider. Although there was a reasonable period of time to do so, the applicant did nothing in this regard.
6)That the Tribunal did not refer to any independent information about the political situation in China. There is of course no obligation on the Tribunal to refer to any independent information. As the respondent submits it is not the duty of the decision maker to make out the applicant's case for him: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169–170. Further there is nothing in the material before me to show that there was any circumstance that arose from this material that should have caused the Tribunal to make any further inquiries in relation to obtaining independent information and that the applicant provided the Tribunal with any independent information in support of his claims which the Tribunal then did not consider. This ground also does not succeed.
7)That the Tribunal’s consideration of his claims was based on “a series of unsupported and unjustified assumption”. This ground also must fail.
8)At the hearing before me the applicant complained that the Tribunal's consideration was not based in detail or did not have evidence. In my view this is a matter for the applicant. It was his failure, despite the invitation to do so, to provide such detail that caused the Tribunal not to be satisfied as to the relevant matters so that the visa could be granted to the applicant. The key to the Tribunal’s ultimate conclusion was that on the insufficient information provided by the applicant himself it could not reach the requisite level of satisfaction. This was clearly open to the Tribunal on the material before it and no error can be ascribed to the Tribunal in circumstances where the applicant, being fully on notice as to the consequence of the failure to attend the hearing, chooses not to attend. I should also note that in regard to the applicant's complaints about the Tribunal's approach in what the applicant saw as a lack of evidence for the Tribunal's decision, the applicant would have been on notice of the relevant situation in this regard following his receipt of the Minister's delegate's decision. The applicant also claimed in his application to the Tribunal to have been notified of the Minister’s delegate’s decision on 11 February 2004. He would have been on clear notice following receipt of that decision of the need to provide further evidence to support his claims before the Tribunal. That decision record is set out at CB 29 to CB 38. CB 36.3 shows that the Minister’s delegate clearly set out that a decision maker is not required to accept uncritically all claims made by an applicant and that an applicant must make an effort to support his statements by any available evidence and that he must supply all pertinent information concerning himself and his past experience in as much detail as necessary. Further, he would have been on notice as to the relevance of the issue of needing to provide further detail in relation to his claims of pro democratic activities in 1989. In the context, the delegate found that even if he had taken part in those events, as did millions of others in China, there was nothing to show that the applicant would warrant adverse attention from the authorities (CB 36.7) and even further in relation to Falun Gong the delegate found at CB 38.6 that the applicant had submitted no evidence to support his claims to be at risk for his claimed Falun Gong affiliation in China.
It clearly emerges from the material before me that far from not being given a proper opportunity to explain his case, and far from the Tribunal not being entitled to make the decision that it did, we have a situation where an applicant provides broad claims with scant detail to the Minister's Department, is refused a protection visa and is refused in circumstances where he is clearly put on notice as to the importance of providing details to support the claims made, has the assistance of a migration advisor, and again repeats those broad claims with scant details in the application to the Tribunal and despite invitation to attend a hearing does not attend a hearing, and despite having his attention drawn to the possibility of making written submissions to the Tribunal, does nothing in this regard. I cannot see that in all those circumstances the applicant has any justifiable cause for complaint and certainly not the complaint that he was not given a proper opportunity to explain his case. But in any event and most relevantly, for all the reasons that I have already given, I can see no error in the Tribunal's decision, let alone jurisdictional error. I agree with the respondent's submissions that this is a privative clause decision within s.474 of the Act and on the basis that no jurisdictional error can be discerned, the application is dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 23 December 2005
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