SZEYQ v Minister for Immigration
[2005] FMCA 1363
•22 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYQ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1363 |
| MIGRATION – Refugee – convention claims based on persecution for reasons of political opinion – bias – s.424A – common law procedural fairness – no reviewable error. |
| Migration Act 1958, ss.422B, 36(2), 65, 424A(1), 424A(3)(b), 424A(2) |
| Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 Abebe v The Commonwealth (1999) 197 CLR 510 SAAP vMinister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration andEthnic Affairs v Al Shamry (2001) 110 FCR 27 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 |
| Applicant: | SZEYQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2311 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 September 2005 |
| Date of Last Submission: | 19 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. Stella Koya |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the fixed amount of $3500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2311 of 2004
| SZEYQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is an application filed in this Court on 22 July 2004 seeking judicial 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
6 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 (“PRC”) who arrived in Australia on 10 January 2004. He applied to the first respondent’s Department for a protection visa on 28 January 2004, and following refusal on 6 February 2004, applied for review with the Tribunal on 12 March 2004. By letter dated 20 April 2004 the Tribunal wrote to the applicant indicating that on the material available to it, it was unable to make a decision in the applicant’s favour and invited the applicant to give oral evidence at a hearing before it. The applicant attended a hearing before the Tribunal on 24 May 2004. The applicant’s claims for protection were that he came from Fujian in the PRC, which is the base for the underground church known as “Shouter”. He became involved in the activities and religious beliefs of the church, but came to fear persecution when he realised that the Chinese authorities had declared it illegal and were detaining its members. He claimed that despite this he continued his involvement with the organisation and distributed leaflets, organised meetings and attempted to recruit friends and relatives into the Shouters. He claimed that in November 2002, at a Shouters gathering the applicant and other members were arrested, detained and interrogated for a period of
4 days. He further claimed that after his release he was required to regularly report to police and “could not enjoy basic human rights” in China. He claimed that he would be persecuted in China if he were to return. His claims for protection are set out in his application to the respondent’s Department (Court Book 1 to CB 42), his application to the Tribunal for review copied at CB 56 to CB 59 and a record of the oral evidence that the applicant gave to the Tribunal in its decision record found at CB 75.5 to CB 77.3.The application to this Court, filed on 22 July 2004, is generic, and is not particularised. On 22 October 2004 the applicant attended a directions hearing and was ordered to file and serve an amended application giving complete particulars of each ground of review relied upon by 1 February 2005. On 31 January 2005 the applicant filed an amended application that asserted:
“My application for a protection visa was considered by DIMIA, I was not offered an opportunity for interview and was refused by DIMIA. I then lodged a review application with the RRT. The officer made jurisdictional mistakes when considering my application. I was not given an opportunity to explain my application in more details; the officer did not explain to me why he refused my application. He did not allow me to explain my application in more details and did not accept any of my explanation at my hearing. I believe that the officer had bias against me, an made the conclusion based on some wrong information, he did not have any evidence to justify his decision. He assumed that I would not be persecuted on my return to China. He simply did not believe that I was a member of “Shouters”. When the officer considered my application, he assumed that I had never participated in any of the activities of “Shouters”. He believed that I had made my claims up and simply did not listen to any of my explanations at my hearing.
I believe that the officer made jurisdictional mistakes when considering my application. He did not consider all the information provided, and refused to accept any of my explanation at my hearing. He just refused my application base on his bias against me and some wrong information. He did not even refer to any information from any sources about “Shouters” in China.
I believe that the officer’s consideration is unsupported and unjustified. The tribunal failed to prove whether I would be persecuted if I continue to be a member of “Shouters” in China.”
The following complaints can be discerned from the application:
1)The applicant was not given an opportunity to explain his application in detail.
2)The Tribunal was biased.
3)The Tribunal's findings were unsupported and unjustified, which could be seen as an assertion that there was no evidence to support the conclusion reached by the Tribunal
4)The Tribunal made “jurisdictional mistakes.”
None of this is particularised.
The applicant appeared at the hearing before me unrepresented. I note he did have access to the Court's Legal Advice Scheme. He was assisted by an interpreter in the Mandarin language. The respondents were represented by Ms. Koya. At the hearing before me the applicant complained that he had not received the respondent’s submissions.
Ms Koya tendered, and I subsequently marked as “Respondent’s Exhibit 1” a copy of a letter with enclosures addressed to the applicant at his address for service and attachments which indicated delivery by courier of the letter, and the respondent’s submissions. The applicant maintained that he did not receive the letter. I adjourned the hearing to allow the interpreter to translate the written submissions for the applicant. I considered whether I should adjourn the hearing to another day. On resumption I pressed the applicant as to what he wanted to do. He clearly stated that he was ready and willing to continue with the hearing.The applicant’s complaints at the hearing before me were:
1)That he was not given an opportunity to attend a hearing before the Tribunal. This was subsequently restated as a complaint that he did not receive a hearing opportunity from the first respondent’s delegate. While the applicant appears aggrieved that he was not given an opportunity to be interviewed by the Minister’s delegate, his application to the Court is clearly seeking review of the Tribunal’s decision. There is nothing before me to show he was seeking review of any other decision.
2)The applicant’s only other stated complaint at the hearing before me was that the Tribunal was biased. This is dealt with below.
The Tribunal set out in the applicant's claims in its decision record reproduced at CB 74.5 to CB 77.3. In particular, the Tribunal's record of the hearing it conducted with the applicant is at CB 75.5. The Tribunal summarised the applicant's claims in its “Findings and Reasons” at CB 80.5 as being that the applicant would be persecuted if he returned to the PRC for reasons of his religion because he belonged to the Shouters sect. While reminding itself of the need to approach an assessment of credibility with caution, the Tribunal did not find the applicant credible (CB 81.1). The Tribunal’s finding was based on the applicant's own evidence provided to the Tribunal at the hearing before it. It found:
1)His responses to be vague and evasive (CB 81.2).
2)That it was satisfied that the applicant’s evidence to the Tribunal reflected his lack of knowledge and credibility and was not as a consequence of any other reason.
3)That at the hearing, without reference to his notes, the applicant told the Tribunal that he was a Buddhist and that Buddhism was illegal in China and that he was forced to practice Buddhism underground. The Tribunal found that based on independent country information, Buddhism was one of the five official religions in China and it was not illegal to be a Buddhist. (CB 81.3).
4)That as the applicant continued to have difficulties in explaining his religion the Tribunal allowed him to read from his notes and that it was only at this point that the applicant told the Tribunal that he had joined the Shouters in November 2002 and that he was involved in promoting and disseminating information about the Shouters. The Tribunal formed the view that the fact that the applicant needed his notes to remind him of his claims was strong evidence that his claims were fabricated and not truthful (CB 81.6).
5)The Tribunal also found that the applicant's lack of knowledge and confusion as to which religion he belonged to was because he had not been truthful, and because he did not in fact belong to the Shouters sect. The Tribunal set out its reasons for this finding (CB 81.9).
6)In light of the above the Tribunal also did not accept the applicant’s evidence that he was arrested for 4 days and then harassed by police for eight months due to his involvement with the Shouters and the Tribunal provided reasons for this. It found that it was fortified in its view by the fact that the authorities did not harass him during the period that he was in Tianjing City (his place of work) before he left China for Australia (CB 82.3).
7)The Tribunal also noted that the applicant did not practice “shouting” in the period of over four months while he was in Tianjing even though he claimed that he could not live without it, and the Tribunal did not accept his explanation for this (CB 82.5).
8)The Tribunal found that the applicant was not a Shouter prior to coming to Australia, and that he did not have a well founded fear of persecution if he returned to the PRC now, or in the reasonably foreseeable future (CB 82.5).
The applicant's first complaint in his application is that he was not given an opportunity to explain his application in detail, and that the Tribunal did not accept any of his explanations provided at the hearing on 24 May 2004. The applicant, who has had some legal advice, has not put before the Court any evidence, for example by way of transcript of the hearing with the Tribunal, to contradict the Tribunal's account of what occurred at the hearing. The Tribunal's record of what occurred at the hearing shows that the applicant was given an opportunity to explain his claims and that the Tribunal agreed to the applicant reading from prepared notes in circumstances where the applicant appeared to have difficulties in explaining his religion. Further, I note that the applicant was put on notice by the Tribunal, by letter dated 15 March 2004, that the applicant should immediately send to the Tribunal any documents, information or other evidence that he wanted the Tribunal to consider (CB 61.4). There is nothing before me to show that the applicant, or his migration adviser, sought to put any further information to the Tribunal before, during or after the hearing that it conducted with the applicant. I note, in particular, that if the applicant felt that he had not received an appropriate opportunity at the hearing (which was conducted on 24 May 2004), he had a period of 2 months subsequently, until the time the Tribunal handed down its decision, to approach the Tribunal with any further information or complaint. He did not do so. This complaint is not made out.
The applicant complains that the Tribunal was biased. Other than the reference to not being given an opportunity to explain his “application” in more detail, and that the Tribunal did not accept any of his explanation, the applicant offers nothing else, let alone any evidence, to support the allegation of bias on the part of the Tribunal. There is nothing in the material before me to show that any of the relevant tests for bias or the apprehension of bias or even bad faith can be made out. In relation to bad faith the applicant's contention fails the test as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 [18]-[20] and in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43]-[47]. There is nothing before me to show personal fault or the absence of honesty, on the part of the decision maker. For the applicant’s benefit I note that allegations of bias carry with them an onus that they must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision maker in the sense that the decision maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72] and [127]). An allegation of 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 process (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32]). No particulars of bias are alleged in the case before me and there is no basis that I can see for review of the decision on the basis of actual or apprehended bias. I can see nothing in the material before me to assist the applicant in making out any of these grounds.
On that the material before me, the Tribunal tested the applicant's claims at the hearing it conducted with the applicant and stated at CB 77.2:
“It was put to him that the Tribunal had difficulties accepting his evidence given the inconsistencies and the applicant was asked if he wanted to say anything further to the Tribunal. He said that he had nothing further to say.”
The respondent, in particular, referred me by way of submissions to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [5] where the High Court stated that:
“…regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned.”
The respondents submit that s.422B of the Act applies to this application. The respondent's position is that in light of the above it was not open to the applicant to argue that the Tribunal's decision was affected by actual or apprehended bias. In any event, as I have stated, I can see no evidence to support a finding of actual or apprehended bias.
The applicant's third complaint is that the Tribunal did not have any evidence to justify its decision. No particulars are provided, but this may be explained in light of the applicant's written statement that the Tribunal failed to prove whether he would be persecuted if he continued to be a member of the Shouters in China. It is clear that the Tribunal is not required to prove the matter now asserted by the applicant. The relevant statutory provisions require that the decision maker must reach a certain level of satisfaction for a visa to be granted (s.65 of the Act), and in the case of a protection visa, the Tribunal must be satisfied that the applicant meets at least the one criterion as set out in s.36(2) of the Act. That is, that the applicant relevantly meets the definition of Refugee as set out in Article 1A(2) of the Refugees Convention. As the respondent submits, in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15] to [16] the Federal Court observed that:
“[15] It can be seen from the form of that sub-section that it 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. A criterion for a protection visa specified in s 36(2) of the Act is;
‘... that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’
[16] It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. 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.’
Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty.”In the case before me it is clear that the Tribunal was unable to reach the requisite state of positive satisfaction that the applicant satisfied the key criterion for a protection visa, based on what the applicant himself said at the hearing before it. The applicant's complaints that the Tribunal did not accept his claims go no higher, in all the circumstances, than an attempt to seek impermissible merits review of the Tribunal's decision.
In its account of what occurred at the hearing with the Tribunal, the Tribunal makes reference at CB 75.8 (under the heading “Tribunal Hearing”) to the fact that it put to the applicant that his evidence to the Tribunal was “not consistent with his written application”. However, it is very clear that in looking at the Tribunal's “Findings and Reasons” that the inconsistencies in the applicant's account upon which the Tribunal relied, were the inconsistencies of the accounts provided by the applicant at the hearing before the Tribunal. That is, the account before and after he made reference to his notes, and in particular to his account that he was a Buddhist and that Buddhism was illegal in China and his subsequent account after consulting his notes that he had joined the “Shouters”. To the extent that the applicant’s various accounts to the Tribunal related to matters which the applicant had put in his application for a protection visa, it is clear that it was the inconsistency between his restatements of these claims at the hearing, when compared with his earlier claims at the hearing, on which the Tribunal's decision turned. Clearly, in these circumstances, this information comes within the exception contained in s.424A(3)(b) from the need for the Tribunal to put such information to the applicant pursuant to s.424A(1) in the manner prescribed in s.424A(2). I cannot see error in the material before me as found by the majority of the High Court in SAAP vMinister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 as applied in the context of the Full Federal Court decision in Minister for Immigration andEthnic Affairs v Al Shamry (2001) 110 FCR 27. To the extent that the Tribunal relied on independent country information, as set out at CB 77.3 to CB 80.3 then this clearly is information exempted from the requirement of s.424A(1) by the exception provided in s.424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.
I accept the respondent’s submission that s.422B of the Act applies to this case and that the provisions of Division 4 of Part 7 of the Act are taken to be an exhaustive statement of the requirements of procedural fairness in relation to the matters that it deals with. In this regard the applicant was invited to a hearing before the Tribunal, attended the hearing and was given the opportunity to give evidence in support of his claims. Further, as I have set out above the Tribunal was not in breach of any of the requirements of s.424A of the Act. In any event, I cannot see on the material before me any breach of the requirements of common law procedural fairness. The applicant was put on notice, that on what was before it, the Tribunal could not make a favourable decision. He was invited to a hearing, he attended the hearing and was given any opportunity to put forward matters in support of his claims. Clearly the Tribunal, for the reasons that it gave, did not believe the applicant's claims as put at the hearing before it. These findings were open to the Tribunal on the material before it and I can see no jurisdictional error in its decision. This is a privative clause decision. 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: Sybilla Waring-Lambert
Date: 27 September 2005
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