SZDZS v Minister for Immigration
[2005] FMCA 755
•24 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZS v MINISTER FOR IMMIGRATION | [2005] FMCA 755 |
| 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 the applicant a protection visa – applicant a citizen of the People's Republic of China – bias – allegation of bias. PRACTICE & PROCEDURE – Non-compliance with direction – document purporting to be an amended application but not in proper form. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.425, 475A Federal Magistrates Court Rules 2001 |
| Colgate-Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 S58/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZDZS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2216 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 May 2005 |
| Date of Last Submission: | 24 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2216 of 2004
| SZDZS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 10 June 2004. It was handed down on 24 June 2004. The decision of the Tribunal was to affirm a decision by a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of China. He was born on 19 February 1955; he arrived in Australia on 25 January last year on a visitor's visa.
On 4 February 2004 he applied for a protection visa. In that application he claims to have a well founded fear of persecution on the ground that his parents had suffered persecution themselves during the cultural revolution in China and that he was a practitioner of Falun Gong.
On 11 February 2004 a delegate of the Minister refused his application. On 18 March the application sought a review of that decision by the Refugee Review Tribunal. The Tribunal wrote to the applicant and his adviser named Yugun Simon Wu on 8 April inviting the applicant to attend a hearing on 14 May. On 13 May the adviser, Mr Wu, sent a fax to the Refugee Review Tribunal, that fax advised the Tribunal that the applicant and another person, a woman, had notified Mr Wu that they were not going to attend the hearing organised by the Refugee Review Tribunal. I note that the applicant said that he did not know the identity of the woman whose name was mentioned in the letter although the letter describes the applicant and this woman as having the same file number. The Tribunal decision makes no mention of this woman and refers only to the applicant.
As the applicant did not attend the hearing the Tribunal proceeded to determine the case on the evidence available to it. This decision was referred to on pages 63 and 64 of the court book. The Tribunal stated that it prepared the decision by reference to the department's file and to the material referred to in the decision of the delegate and other material available to it from a range of sources. The Tribunal did not say what those sources were. The Tribunal set out findings and reasons on pages 64 to 66 of the court book. The reasons are relatively brief but the brevity of these reasons reflects the brevity of the application. For instance at page 65 at about point 4 on the page the Tribunal says this:
The delegate found that it was not reasonable to accept that the applicant would have suffered appreciable difficulties as a result of his family background as a result of 1976 and furthermore the difficulties experienced by the applicant's family in the cultural revolution would not of itself be relevant in the 1990s.
The applicant has provided no information in response to this finding. The applicant has provided no evidence of the nature of the difficulties which he claims to have suffered as a result of the treatment of his parents. He claims that he has never worked but has provided no further details. It is not known for example whether work was not available in his village or whether he was prepared to travel away from his home in order to secure employment. Notwithstanding the applicant's claim that he has never worked he has accessed the considerable funds required to visit Australia. The Tribunal made other criticisms of the lack of material provided by the applicant.
The Tribunal went on to say at pages 65 and 66 of the court book:
In view of the lack of detail contained in the protection visa application and in the absence of a hearing to test the truthfulness of the applicant's claims and establish relevant facts I am not satisfied that the applicant is or was a Falun Gong practitioner or that he suffered mistreatment for that reason. Indeed on the information provided by the applicant I am not satisfied that any of the claims with respect to Falun Gong are true. Furthermore I do not accept that the applicant has suffered harm amounting to persecution at any time in his life as a result of the treatment of his parents during the cultural revolution.
For the same reasons I am not satisfied that the applicant was actively involved in political activities in 1989 which were the cause of his detention. As I do not accept the applicant's claims on the facts I cannot be satisfied that he has a well founded fear of persecution for a Convention reason.
After this comprehensive rejection of his claim by the Tribunal the applicant applied to this Court for a review of the RRT decision.
This application was made on 15 July 2004 which means that it was made within time. In the original application the applicant said that he was not given a proper opportunity to explain his case and that the Tribunal was wrong to find that he was not a refugee.
The applicant filed a document headed "Amended Application" on 31 January 2005. The matter had been placed in a non compliance list before me on 6 May 2005. It is clear that the amended application was not in proper form, nevertheless I noted that the applicant was not legally represented and that English was not his first language and I made the decision that I would accept the document entitled "Amended Application" as it was.
I also made the decision on 6 May to bring the matter forward for a final hearing. The matter had been listed for final hearing on Tuesday 23 August 2005. I vacated that date and listed the matter for hearing before me on Tuesday 24 May 2005. The application duly came on for hearing today. I asked the applicant questions about his original application and also about his amended application. In his amended application he said that the officer, meaning the Refugee Tribunal member had made jurisdiction mistakes when considering his application. I asked the applicant through the interpreter what he said those jurisdiction mistakes were, he answered that he did not know but said that other people had helped him to prepare that document.
The applicant also claimed on two occasions in the document that the Tribunal was biased against him. I asked him to provide details of that bias, his reply to that was "I just briefed my migration agent and gave only brief details. All I said was choose, however my evidence was not sufficient."
I asked the applicant why he considered that the Refugee Review Tribunal had not handled his application correctly. His reply to that was, "Back then I suffered persecution. Because of my low education level I was not able to provide great detail to my migration agent."
The amended application also claims that the Tribunal member did not even refer to any information from any resources about China.
It appears to me from the Tribunal decision that the Tribunal member did consider a variety of information about China.
I note that this is a case where the applicant has accused the Refugee Review Tribunal of bias. I cannot see any foundation for the allegation for bias on the material before me. I refer to the decision of Von Doussa J, in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668. 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 a decision.
His Honour also observed at paragraph 37 in SCAA that:
A finding of actual bias is a grave finding and cannot be made lightly.
In Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 the High Court observed that:
A party who asserts actual bias on the part of a decision-maker carries a heavy onus.
The allegation must be:
Distinctly made and clearly proved.
I refer to the decision of Gleeson CJ and Gummow J at paragraph 69 and Kirby J at paragraph 127. I see nothing in the facts of this case to justify a finding of actual bias. It is not clear whether or not apprehended bias is alleged by the applicant but there is nothing in this case to demonstrate that a fair minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to resolution of this case. I refer to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
This is a case where the applicant did not attend the hearing of the Refugee Review Tribunal. I have had occasion in the past to point out that an applicant who does not attend a hearing of the Refugee Review Tribunal when invited to attend usually creates a difficult situation for himself or herself. It should be borne in mind that the obligation to hold a hearing is placed on the Refugee Review Tribunal in certain circumstances as set out in s. 425 of the Migration Act. If the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material already before it there is no need to hold a hearing. If that is not the case s. 425(1) says that 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.
That was the situation in this case. The Tribunal made it quite clear in its letter of 8 April 2004. The letter begins by saying:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
What the letter then did was to invite the applicant to attend a hearing set for 10.30 am on Friday 14 May 2004. By doing this the Tribunal met its obligations under s.452(1) of the Act. As has already been established the applicant did not attend, his adviser sent the Tribunal a fax the day before saying that the applicant was not going to attend the hearing. To my mind the decision of the Tribunal shows that the applicant or his adviser made a serious error in deciding not to attend the Tribunal hearing.
In a well prepared and succinct outline of submissions the respondent's solicitor, Ms Alex, has referred me to a decision of the Full Court of the Federal Court which sets out this very point. That decision is
S58/2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 283. This was a decision on an appeal from a single Judge of the Federal Court. In paragraph 25 of that decision the Full Court said of the applicant in that case:
He was given an invitation to attend a hearing before the Tribunal which apparently on advice he deliberately declined. Having done so he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them. Conversely his conduct left it open to the Tribunal to infer that had he intended a hearing and given oral evidence the appellant would not on balance have improved his case for the ground of a protection visa.
Their Honours went on to say in paragraph 26:
In our view the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because amongst other reasons he failed to take up that opportunity.
With respect to their Honours Ryan, Merkel and Conti JJ, their Honours have said in paragraphs 25 and 26 exactly what the Federal Magistrates Court has been saying in many cases over the last year or more. It is quite clear that the applicant was given an opportunity to give evidence to explain his case and he did not attend the Tribunal hearing. As he himself said his evidence was not sufficient to satisfy the Tribunal.
I have conducted my own examination of the decision because I am aware that the applicant is not legally represented. I am also aware that he is not proficient at reading or speaking the English language and requires the services of an interpreter. I can see no reviewable error in the Tribunal's decision. The allegation of bias which seems to have been made without the slightest shred of evidence is entirely unproven. An applicant must do better than rely on an unfavourable decision in order to show that a Tribunal was biased. I would have thought that this is merely commonsense.
There is no jurisdictional error, there is no error that is reviewable, the application will be dismissed.
Costs usually follow the event in this jurisdiction which means that the unsuccessful party can usually expect to receive an order that he or she should pay the other side's costs. In my view this is such a matter.
I propose to make an order that the applicant is to pay the respondent's costs. The respondent seeks a lump sum of $3500. That figure includes the costs of the interlocutory application of 6 May. To my mind this is a relatively modest figure and well within the scale envisaged by the Federal Magistrates Court Rules.
I might add that I gave some consideration to whether I should consider indemnity costs. Indemnity costs are costs at a much higher rate and include everything that the other parties lawyers can charge that party. The principles for indemnity costs are set out in
Colgate- Palmolive Pty Ltd v Cussons Ltd(1993) 46 FCR 225, there is a very useful set of guidelines in that decision. One of the reasons why a Court might make an order for indemnity costs is if the unsuccessful party's claim was so weak that a party properly advised would not have contemplated continuing with the case.
In this case there was a claim of bias which was made without any shred of evidence whatsoever. I would make it clear that an allegation of bias is a very serious allegation and if a party makes such an allegation without any evidence he or she runs the risk of an order for indemnity costs at the end of the proceedings. The reasons why I have decided not to award costs on an indemnity basis today are because; 1) the applicant is not legally represented; 2) his command of English is virtually non existent; and 3) his standard of education is very low. For these reasons I could not be satisfied that the applicant was fully aware of the responsibilities involved in making an allegation of bias or event that such an allegation was being made on his behalf.
I would make it clear in future, however, that unjustified allegations of bias against a decision-maker could well be the subject of an order for indemnity costs in an appropriate case.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 2 June 2005
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