SZFBM v Minister for Immigration - [2006] FMCA 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 18

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425, 425A, 474
Judiciary Act 1903 (Cth), s.39B

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507

Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988
Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034

Applicant:

SZFBM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG3397 of 2004

Delivered on:

27 January 2006

Delivered at:

Sydney

Hearing date:

7 December 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:

Ms K C Morgan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Refugee Review Tribunal be joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3397 of 2004

SZFBM

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 November 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 6 July 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZFBM”.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.

Background

The applicant, who claims to be a national of Mongolia, arrived in Australia on 18 May 2004. On 17 June 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.4-36) (“CB”). On 6 July 2004 the delegate refused to grant a protection visa (CB pp.39-53) and on 30 July 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.54-57).
The applicant claims fear of persecution in Mongolia for Convention-related reasons of political opinion. The applicant was born in 1969 and claimed in his original visa application that he was a former People’s Republic of China (PRC) national in a place he called “Shilingol” in the Inner Mongolian region of the PRC. The Tribunal member stated that the applicant was probably referring to Xilinhot, which is not a town but rather the homeland region of the Xilin Gol League, a remote, widely-spread network of Mongolian communities. The Xilin Gol League agitated as a Mongol nationalist movement in the 1930’s. In his protection visa application, the applicant claimed he could speak, read and write Mongolian and that he had studied for eight years at an agricultural college in Shilingol from 1977 to 1985. This was the last education he claimed to have received. However, in a statement attached to his protection visa application, the applicant stated he attended an agricultural college in Hohhot, the capital of Inner Mongolia, and received an agricultural certificate in May 1989 (CB pp.100-101).
In the same statement, the applicant referred to the Spring 1989 pro-democracy movement which generated an historic demonstration in Beijing that was crushed by a bloody crackdown on 4 June 1989. The applicant claimed he participated in the demonstration even though he was not a student at the time and after the crackdown he was targeted by the PRC authorities. He claimed he went underground and, unable to find help from anyone in his now destroyed “network”, he decided to escape into Mongolia (CB p.101).
The applicant claimed to be a member of a social group who fled the PRC for political reasons and who are now accused by the Mongolian authorities of being Chinese spies and therefore mistreated by the Mongolian government. He claimed he was arrested and tortured in January 2003 and imprisoned for four months. The applicant claimed he was also targeted by the PRC authorities for being actively involved in activities against the PRC and its regime (CB p.102).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons was contained in the first respondent’s written submissions, prepared by Ms K Morgan, and I adopt paragraphs 10-14 of those submissions for the purpose of this judgment:
[10]The Tribunal detailed the applicant’s written claims and the details of the applicant’s claims made at the Tribunal hearing (CB pp.100.9-103.4, 103.5-108.8). The Tribunal also referred to the newspaper articles presented by the applicant at the hearing (CB pp.102.5; 108.8-109.8) and the country information from the U.S. Department of State’s Country Reports on Human Rights Practices for 2003 (CB p.109.8).
[11]The Tribunal accepted that:
a)that the applicant was a national of Mongolia;
b)for the purposes of the review, that he was a former PRC national who travelled to Mongolia in 1991;
c)that the applicant married a Mongolian national in 1992 and qualified for Mongolian citizenship which he later acquired; and
d)that the applicant was ethnic Mongolian.
[12]The Tribunal made the following adverse findings:
a)it found that the applicant was never a supporter of the spring 1989 pro-democracy movement in the PRC, that he did not go to Beijing in 1989 and he was not targeted in the crackdown by the PRC government, that he did not go underground in the PRC and that he did not “escape” to Mongolia (CB p.110.2);
b)it concluded that the applicant obtained his PRC passport through normal channels as claimed and that he was able to do so because there was no question against him as far as the PRC authorities were concerned (CB p.110.3);
c)it did not accept that the applicant was connected with any inner Mongolian rebel group, or even perceived to be connected with one (the Tribunal rejected a claim made orally that he had been a supporter of inner Mongolian dissidence as it was “not even suggested in his protection visa application … [and] effectively denied … in the statement attached to his protection visa application” and because the ease of his movements in and out of the PRC undermined the suggestion that the PRC authorities had any problem with the applicant at all) (CB 110.4);
d)in relation to the 2004 newspaper article, even if the article was referring to the applicant himself, it was put in the newspaper as a fabrication (CB p.110.8);
e)in relation to the 1997 article, it found nothing significant came of the accusations made in the article (given he became a Mongolian citizen and rejecting the applicant’s “word alone” that the application for citizenship had hit obstacles) (CB p.111.1);
f)it did not accept as credible the applicant’s claims about house searches (CB p.111.3);
g)it found no basis on the evidence before it for accepting that if the applicant’s car was ever stolen it had anything to do with the government perceptions of his being a spy for the PRC (CB p.111.3);
h)it concluded that the applicant’s claims about being gaoled in 2003 were completely fabricated; and
i)it rejected the applicant’s claim, made orally, that his friend was able to use his passport while the applicant was in gaol, as “outlandish and has the appearance of having been improvised at the last minute” (CB p.111.5).
[13]The Tribunal made the following conclusions:
a)it “confidently” concluded that all of the applicant’s claims about being pursued as a dissident by PRC authorities were wholly fabricated (CB p.110.9);
b)it concluded that it could safely rely on the stamps on the applicant’s passport “as a true record of his own voluntary travels in and out of the PRC in circumstances in which he should have been too afraid to move and as a true indication of his unremarkable relations with the authorities of both countries” (emphasis in original) (CB p.111.6);
c)it concluded that the hardship that the applicant faced in Mongolia such as having to sell his pub at a mark down and losing his car was much more logically attributable to the economic conditions (CB p.111.9); and
d)it concluded that the applicant was not a reliable witness on the present matter (CB p.112.1).
[14]The Tribunal was not satisfied that the applicant faced a real chance of Convention related persecution in Mongolia or in the PRC (CB p.112.1).

Application for review of the Tribunal’s decision

On 19 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.That the decision contained jurisdictional error.
2.That error of law occurred.
3.That my right of natural justice was breached.
4.That the member’s used his power improperly.
5.That the member did not consider all aspects of my claims.
6.That the decision is against all relevant law.
On 21 February 2005 the applicant filed an amended application which contained new grounds as follows:
1.Decision contains jurisdictional error
Tribunal decision contains serious jurisdictional error because it is not allowed to make decision without due consideration of all aspects of my claims. Tribunal can’t make decision hypothetically.
Particular
Tribunal did not consider the hard time I went through In Mongolia, which is the main ground of my claim. Tribunal did not provide me an opportunity to explain that claim. Tribunal made hypothetical analysis on my main claim & made decision.
It failed to address my claims stated in my statutory declaration, from page 30 to 32 of the green book. My main claim of well founded fear of persecution in Mongolia has been explained in the statutory declaration. However, Tribunal did not enter into that topic during the hearing. Tribunal is obliged to consider all material parts of my claims & should give me an opportunity to comment on the issues. Its failure to do so breach the jurisdictional rights granted to it by law.
The hearing tape is its evidence. Please ask minister to produce the transcript of the hearing, which will be sufficient evidence of the same.
2.Decision maker was biased & decision was made in bad faith
Particulars
During hearing tribunal member did not act & did not seen to act as independent decision maker. His behaviour was offensive & detective in nature. He treated me as if I was a criminal. He put questions in such a way that I could not explain more. He never provided me an opportunity explain my case properly.
He had decided the case before he interviewed me. He was there just to get evidences to support his decision. Otherwise, he would give me proper opportunity to explain my case.
3.     I was denied fair hearing
Particular
Firstly, the member treated me as a criminal which created fear on me. Secondly, he did not give opportunity to explain my case properly. I very clearly explained how I involved in the 1989 movement. If he had any doubt about my involvement, he should have asked me about each & every thing occurred during the movement & afterwards. How could I get evidences of the incident? In absence of such evidences, I should have been given proper opportunities to explain everything.
4.     Tribunal did not consider all aspects of my claims
Particular
Tribunal failed to consider all aspects of my claims. Most importantly tribunal failed to consider my main problems in Mongolia. It has stated in the decision, but did not give me an opportunity to explain it. He neither ask any questions nor provided me an opportunity to put the case forward.
5.     There is error of law in the decision
Particular
Tribunal should interview me to find facts on all aspects of my claims. It failed to do so. So, it breached the provisions in the law.
6.     I am denied of Natural Justice
Particulars
I should have right to comment on any adverse view. I was denied such rights. I was not given opportunity to explain all aspects of my case. So, the tribunal’s decision breached my right to natural justice.
7.     Tribunal made decision unreasonably
Particulars
Tribunal member stopped the hearing in the middle of the hearing before entering into the topic of my main claims in Mongolia. He made immediate decision, without considering my all claims. So, his decision was unreasonable. (Errors included)

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v State of South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Reasons

The applicant is a self represented litigant and appeared with the assistance of a Mongolian interpreter. The applicant confirmed that he had not prepared written submissions and relied upon the amended application filed on 21 February 2005. When invited to make oral submissions, the applicant indicated that at the Tribunal hearing he believed the Tribunal member acted in the manner of a “policeman” in conducting the hearing. The applicant also indicated that the Tribunal member had made his decision without delay at the conclusion of the hearing. The issue of translation was also raised. However, none of these issues were elaborated upon in the form of evidence or submissions and the transcript of the Tribunal hearing had not been tendered in the proceedings.
I note that at the first court date hearing in this matter the applicant indicated that he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) provided by the Court and that a panel adviser had been subsequently allocated to the applicant. However, the Court file indicates that although the applicant made initial contact with the panel adviser with the assistance of a telephone interpreting service, the applicant failed to attend a conference with the panel adviser and failed to respond to any attempts by the panel adviser to contact him by mail. The contents of the amended application indicate that the applicant had been provided with some assistance in its preparation. The person or persons giving that assistance would appear to have some knowledge of judicial review of administrative decisions.
In Ground 1, the applicant claimed the Tribunal decision contained serious jurisdictional error because it failed to consider all the material parts of the applicant’s claim. The applicant claimed that these were set out in his statutory declaration attached to the original protection visa application (CB pp.30-32). The applicant contended that the Tribunal failed to consider relevant material that was favourable to his case and had the Tribunal properly considered this information, the applicant would have had a better chance of obtaining a favourable decision. This failure could be characterised as a breach of procedural fairness although it was not characterised in this manner in the grounds or the particulars.
On a fair reading of the applicant’s statutory declaration and the decision of the Tribunal under the headings “Claims and Evidence” and “Findings and Reasons”, each of the issues raised in the statutory declaration was addressed by the Tribunal member and discussed with the applicant during the hearing. In respect of a number of issues raised with the applicant, the applicant failed to adequately respond to the questions asked. The applicant claimed he should have been given the opportunity to comment on these issues and this opportunity was not extended to him. On a fair reading of the Tribunal’s decision, this allegation is not supported. The applicant claimed that the Tribunal hearing tape supports his argument in this respect but no hearing tape was tendered as evidence.
The information sheet handed to the applicant at the first court date hearing by the Registry staff and entitled “Information for Applicant” contains a section heading “Hearing Tape”. Located under the heading is a sentence: “If it is intended to use a hearing tape as part of your application to the Court, a written transcript of the hearing should be obtained and certified by both parties to the proceedings”. The content of this document was explained to the applicant by a solicitor representing the first respondent together with an interpreter prior to the Court appearance. The applicant and the interpreter both signed the Information Sheet indicating that the contents of the document had been explained to the applicant. As indicated in paragraph 14 above, the applicant was also offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) to assist the applicant to prepare for the formal hearing of this matter. As noted the applicant failed to avail himself of this service despite a panel adviser being allocated and initial contact being made. I appreciate the practical difficulties with which a person in the position of the applicant is confronted because he is in a strange country whose language he cannot speak and whose legal system he cannot understand. However, to the extent that the applicant can be provided with assistance, I am satisfied that has been offered although the applicant has not availed himself of those services. It is not open to the Court to make findings or draw inferences as to the conduct of the Tribunal hearing: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs (“NAOA”) at [21] and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (“NAMW”) at [21]-[22].

In the absence of any evidence or submissions to the contrary, all the issues contained in the original statutory declaration have been considered by the Tribunal in its decision and the Tribunal member adopted the practice of asking the applicant to explain or alternatively answer questions in respect of the issues that were raised in that document. After re-reading the relevant documents, I am satisfied that the Tribunal has met its obligation to consider all the material parts of the applicant’s claim and provided the applicant with an opportunity to comment on the matters arising from those issues. No jurisdictional error is apparent and this ground cannot be sustained.
In Ground 2, the applicant alleged bias and bad faith. The pleadings do not clearly indicate whether this is actual bias or apprehended bias, but both should be considered. Actual bias can be said to exist where the Tribunal member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (“Jia”) at [35] and [72]. Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia at [71] and [72].
A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Jia at p.531. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [27]; Yit v Minister for Immigration & Multicultural Affairs (“Yit”) at [36]. Further, a case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“WABC of 2002”) at [3].
In the present case there is no transcript of the Tribunal hearing before the Court. This was discussed in paragraph 15 and 16 above. On that basis it is not open to the Court to make findings or draw inferences as to the conduct of the Tribunal hearing: see NAOA at [21] and NAMW at [21]-[22]. The applicant’s claim in respect of the Tribunal hearing cannot succeed without a transcript being in evidence: WABC of 2002 at [3].
Other than the pleadings, there is no evidence submitted by the applicant to demonstrate that the Tribunal member had a pre-existing state of mind which disabled him for undertaking or rendering him unwilling to undertake any proper evaluation of the relevant materials before him. The approach taken by the Tribunal member was a legitimate part of the Tribunal’s role in eliciting information from the applicant and testing the reliability of evidence presented by the applicant: Yit at [33]. The Tribunal’s approach to the applicant’s application was within acceptable bounds of the fact finding and information gathering role of an administrative decision maker. The conclusion that the applicant’s testimony was unconvincing was an assessment based in part on the applicant’s general demeanour together with the nature of the evidence presented during the hearing. The applicant has not discharged the onus of showing that the Tribunal’s reasons demonstrate actual bias.
In respect of apprehended bias, a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member may not have brought an impartial mind to the assessment of the applicant’s claim. It is legitimate for the Tribunal to question the applicant as to his claims, including testing and probing the applicant about his application for a visa. This questioning appears to have been a means by which the Tribunal tested the credibility of the applicant and the plausibility of his claims. In any case, even if the purpose of the question may appear to lack relevance to the applicant’s claim or have the appearance of strange logic, the questioning does not, without more give rise to an inference that the Tribunal’s decision was affected by apprehended bias. An illogical or defective approach to the consideration of evidence does not in itself demonstrate apprehended bias. The applicant has not discharged the onus of showing that the Tribunal’s reasons demonstrate bias or apprehended bias. Consequently, this ground cannot be sustained.
In Ground 3, the applicant claimed he was denied a fair hearing. However, in the particulars the applicant returns to issues raised in Grounds 1 and 2 and, in effect, repeats those issues under a new ground. A similar approach was also adopted under Grounds 4 and 5 where the particulars pleaded have been previously raised under Grounds 1 and 2.
Under Ground 6, the applicant claimed he was denied natural justice. The Tribunal complied with its obligations to accord the applicant procedural fairness in that:
a)it invited the applicant to a hearing pursuant to ss.425 and 425A of the Act;
b)although it relied on independent country information, the Tribunal did not breach s.425A: NAMW; and
c)s.422B of the Act applies to the applicant’s review in the Tribunal.
The first respondent noted that the Tribunal referred to the applicant’s protection visa in its reasons (CB p.110.5, 111.1) in circumstances which may amount to a breach of s.424A of the Act by combined effect of SAAP and Minister for Immigration & Multicultural Affairs v Al Shamry. The first respondent submitted that the submissions dated 28 July 2004 provided to the Tribunal in effect “republished” the protection visa application: see M55 v Minister for Immigration & Multicultural & Indigenous Affairs per Gray J at [25] and SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs per Gyles J at [5]-[6]. Secondly, none of the Tribunal references to the protection visa application and its contents was the reason or part of the reasons for the Tribunal’s decision. The reasons for the Tribunal decision are identified as:
a)the applicant was not a reliable witness;
b)all the applicant’s claims in relation to the PRC were fabricated (CB p.110.9);
c)the applicant’s passport (provided at the Tribunal hearing by the applicant) established that the applicant had travelled easily between the PRC and Mongolia (CB p.111.6); and
d)that the hardship that the applicant faced in Mongolia was attributable to the economic conditions (CB p.111.9).
I accept that the Tribunal has not breached s.424A. The Tribunal considered in detail all aspects of the claims made by the applicant both in writing and orally. The Tribunal made extensive findings on each part of the claims. The allegations that the Tribunal did not consider all aspects of the applicant’s claims are unfounded and this ground cannot be sustained.
In Ground 7, the applicant claimed that Tribunal made its decision unreasonably by halting the hearing prior to the applicant being able to make all submissions in respect of his main claims which occurred to him in Mongolia. This ground suffers the same problems as the previous pleadings in that there is no evidence in the form of a Tribunal hearing tape, transcript or any other evidence or submissions to support the pleadings. A fair reading of the Tribunal’s decision does not support the applicant’s contention that the Tribunal hearing was conducted in such a manner. The Tribunal’s decision indicates that all of the issues were comprehensively considered by the Tribunal member with extensive questioning of the applicant in respect of various aspects of his claims. In a number of circumstances the applicant failed to provide answers to questions put by the Tribunal member with the Tribunal member recording in the decision that the applicant had failed to satisfactorily respond to the question asked. This ground of review cannot be sustained.

Conclusion

I am not satisfied that any of the grounds of review pleaded by the applicant can be sustained and consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 27 January 2006