SZEBT v Minister for Immigration
[2004] FMCA 1095
•29 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEBT v MINISTER FOR IMMIGRATION | [2004] FMCA 1095 |
| MIGRATION – Review of Refugee Review Decision refusing a protection visa to applicant – claimed fear of persecution to China because of Falun Gong membership – no jurisdictional error – application dismissed. Migration Act 1958 |
| Applicant: | SZEBT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2382 of 2004 |
| Delivered on: | 29 November 2004 |
| Delivered at: | Sydney |
| Hearing Date: | 29 November 2004 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. D. Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant pay the respondent's costs set in the amount of $4500 pursuant to rule 21.022A of the Federal Magistrate Court Rules 2001.
FEDERAL MAGISTRATES |
SYG2382 of 2004
| SZEBT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This judgment arises from an application filed in this Court on 28 July 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 June 2004, and handed down on 30 June 2004, to affirm the decision of a delegate of the respondent Minister made on 30 January 2004 to refuse a protection visa to the applicant.
The applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 10 January 2004 and lodged an application for a protection visa with the respondent's Department on 28 January 2004. On 30 January 2004 a delegate of the respondent Minister refused to grant the protection visa.
In his application for a protection visa, the applicant claims that he fears he would be at risk from the Chinese authorities on his return to China, because he is a member and practitioner of Falun Gong. He claimed to have participated in demonstrations and Falun Gong gatherings, and that he had been interrogated by police.
In his application to this Court and in an amended application filed on 8 October 2004, the applicant essentially relies on the following grounds:
a)That the Tribunal was biased against him, and
b)That the Tribunal did not give the applicant a proper opportunity to explain his application to the Tribunal.
No proper particulars are provided.
At the commencement of the hearing before me today, the applicant [who was assisted by an interpreter in the Mandarin language] asked for “more time”. I asked the applicant to provide reasons as to why the hearing should not continue this morning. In particular, I asked the applicant to note that he had made an application to this Court on
28 July 2004, that it was his application, that he had attended the first Court date in this matter on 23 August 2004, and at that time had signed short minutes of orders, which subsequently became orders of the Court, and that amongst other orders, his application had been set down for final hearing before me today on 29 November 2004, and that the applicant had had over three months from that date to prepare for the hearing. I also noted that the applicant had advised that he did not wish to participate in the Court’s Legal Advice Scheme when this opportunity was made available to him on 23 August 2004. The applicant did not provide any explanation and then agreed that the hearing this morning should continue. I could see no utility in not doing so.
In relation to the ground of bias, this doctrine is, of course, one of the aspects of common law procedural fairness which requires the decision maker to be impartial and to be seen to be impartial in making a decision. It is well settled that demonstrating actual bias carries a heavy onus. An applicant alleging bias must establish that the Tribunal had a state of mind so committed to a conclusion already formed, that it was incapable of being persuaded differently. The question for the Court in these circumstances is whether the Tribunal's mind is open to persuasion.
In the case before me the applicant has not brought any evidence to show bias or even the apprehension of bias so that a fair minded lay observer might reasonably apprehend that the Tribunal did not bring an impartial mind. The applicant’s statement is that the Tribunal did not give a proper opportunity to explain the application, did not accept the explanation given, refused to consider the information given, made it’s conclusion on some “wrong information”, did not have any evidence to justify the decision made, and did not believe him. There are no particulars or details provided, nor on any examination of the material before me can I find anything to support the applicant's claims. Nor has the applicant put to me any evidence of the attitude and conduct of the Tribunal at the hearing before it beyond the mere reference in his claims relating to the reasons for the decision.
It is clear that the Tribunal did not believe the applicant's claims in a number of particulars. At CB 59 to 62.5 is reproduced the Tribunal's record of matters put to the applicant at the hearing which support the Tribunal's findings recorded at CB 62.5 to 64.2. Findings of fact, including findings on credibility are, of course, matters for the primary decision maker. The applicant is aggrieved, he says in his written application to this Court, by the Tribunal's findings and decision. But this does not go near to establishing bias, nor for that matter has the applicant put forward any material, nor can I find anything in the material before me to support any assertion of apprehended bias on the part of the Tribunal in making this decision.
The applicant also asserts in his written application a failure to be given an opportunity to explain his application. Again, no particulars are provided. The applicant was clearly present at the hearing before the Tribunal. There is no evidence before me to show that he was denied the opportunity to put forward any further material in support of his claim or any explanations. I agree with the written submission from Counsel for the respondent that the Tribunal's record shows that all relevant concerns held by the Tribunal, and in relation to which findings were made, were put to the applicant. [CB59.5 to CB61.9]. The Tribunal did not find the applicant to be truthful and did not accept his claims of active Falun Gong involvement. [CB62.8 to CB 63.3]
To the extent that the application may raise generally a concern of a breach of the principles of procedural fairness, I note that section 422B of the Migration Act operates to make Division 4 of Part 7 of the Act an exhaustive statement of the requirements of natural justice in relation to the matters it deals with. There is nothing in what the applicant has put forward, nor can I see in the material before me any failure to comply with the provisions of the Act in this regard. Nor, for that matter, is there anything before me to show that there has been any breach of the common law rules of procedural fairness.
I should add, however, that when I gave the applicant an opportunity to explain what he hoped to achieve by coming to this Court, and I note that I was prompted to do so by the applicant's inability to provide anything in support of his application, and being mindful of the fact that (as he is nonetheless entitled to do) he did not wish to participate in the Court’s Legal Advice Scheme, the applicant's response was that he hoped to extend his stay in Australia and that he wanted time to “tour around”. He made a reference to a “friend”, and a reference to the difficulty in obtaining necessary permission to remain in Australia for these purposes. Although it is not necessary for me to make a finding in regards to an abuse of process in coming to this Court, the applicant's statements made from the Bar table clearly show a collateral purpose.
In any event, this application is dismissed on its lack of any substantive merits for the reasons I have given.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 29 November 2004
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