SZFOR v Minister for Immigration
[2006] FMCA 1184
•21 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1184 |
| MIGRATION – Refugee – claims to fear persecution based on membership of Falun Gong – failure by the applicant to appear at a hearing before the Tribunal – whether applicant had been given a proper opportunity to “explain his claims” – failure to consider whether the applicant faced persecution as an “underground church member” – s.424A – bias – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.426A, 424A, 424A(1), 65, 422B, 424A(3)(a) |
| Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 1 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | SZFOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 207 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 August 2006 |
| Date of Last Submission: | 7 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. McDonald |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 207 of 2005
| SZFOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 24 January 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
7 December 2004, and handed down on 6 January 2005, to affirm the decision of a delegate of the respondent Minister made on 27 August 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 20 June 2004. He lodged an application for a protection visa on 15 July 2004. His claims are set out in his application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 35, and in particular in an attached statement at CB 36) and in his application for review to the Tribunal (reproduced at CB 49 to CB 52, particularly in a short attached statement at CB 53).
His claims for protection centre on his membership, promotion and practice of Falun Gong. He claimed that Falun Gong members had been detained and “tormented” and that as a result of this he had left his job in fear of his safety. He felt he had to leave China. He claimed that he feared persecution in China if he were to return based on his continued membership and involvement with Falun Gong.
Following receipt of his application for review the Tribunal wrote to the applicant on 1 October 2004 (CB 54 to CB 55) and advised the applicant of the procedure it would adopt in processing his application for review. Significantly, the letter put the applicant on notice as to the importance of a hearing before the Tribunal and gave notice as to the Tribunal’s expectations regarding what the applicant should relevantly do. This letter was sent to his residential address which had also been given as the address to which correspondence should be sent.
On 5 November 2004 the Tribunal again wrote to the applicant (CB 56 to CB 57) at the address for service as provided in his application for review, advising the applicant that it had considered all the material before it but was unable to make a favourable decision on that basis alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing before it on 3 December 2004. The applicant was advised that if he did not attend the hearing, and the hearing was not postponed, that the Tribunal may proceed to make a decision in the matter.
The Tribunal receive a response to the invitation on 17 November 2004 advising that the applicant did want to attend the hearing (CB 58). However, on that day the applicant did not attend before the Tribunal. The Tribunal proceeded to make a decision, as it said (CB 70.8), pursuant to s.426A of the Migration Act 1958 (“the Act”) without taking any further action to enable the applicant to appear before it. I note that the invitation to appear at the hearing was properly given under the Act and, as statutory notice periods had been complied with, the Tribunal was entitled to proceed as it did (Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73).
The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 71.7 to CB 72.8. The Tribunal accepted that the applicant was a citizen of the People’s Republic of China. However, it noted that the applicant’s claims were general and lacking in detail, and that the applicant had provided no evidence to support his claims. It further noted that he was on notice that the Tribunal could not be satisfied on the material before it that a protection visa should be granted and the applicant did not avail himself of the opportunity of attending a hearing to give oral evidence in support of his claims. The Tribunal found, that on the material before it, it could not be satisfied that the applicant was a “genuine and sincere Falun Gong practitioner” who would be persecuted if he returned to China. Accordingly, it was not satisfied that the applicant was a person to whom Australia owed protection obligations.
The originating application to this Court was filed 24 January 2005 and complains:
“The Tribunal did not given me any other chance to explain my application in details and refused my application because he believed that my claims are general and lacking in detail. The officer mentioned: “He claims that he was in Beijing on many occasions but no details as to when he went ther or with whom he travelled. He has provided no further detail about the “several members” who were allegedly arrested in Sept 2003. There is no explanation as to why he was not also arrested. He has provided no information about his claimed practice of Falun Gong.” I could not attend the interview because I was at ta traffic jam, and I tried to contact RRT, no one could do anything about that for me as language problem. I expected that I would be given another chance or at least asking me questions in writing so that I could clarify some of the issues mentioned above. However my application was refused straight away after the interview date. There are some information and evidence listed at my application have not been considered by the officer.” (errors in original)
On 5 May 2005 the applicant filed an amended application that complains:
“That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
1. I was persecuted when I was in China because of my being a member of “Falun Gong”. The Tribunal failed to assess the chance of my being persecuted on my return to China based on my being a member of “Falun Gong”. The Tribunal failed to exercise its jurisdiction as it failed to provide any finding in weather I would be persecuted on my return to China. I would be persecuted, however, I did not collect relevant documentary evidences to prove my persecution because I have no one to help me collect the document.
2. The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
3. The Tribunal did not observe Migration Act 1958 properly to making the decision.
4. The Tribunal failed to consider my claims.
I will provide more details to support my judicial review application in my outline of submission.
Particulars:
The Tribunal did not provide me adequate particulars of the independent information.
The Tribunal did not provide me an adequate opportunity to respond the substance of the information”. (errors in original)
At the hearing before me the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms. McDonald appeared for the respondents. The applicant stated that:
1)The Tribunal did not give him the opportunity to explain his claims because the Tribunal believed the applicant’s claims to be “too simple not with enough details”.
2)He failed to attend the hearing because of “traffic problems” and he tried to call the Tribunal but there was no interpreter available.
3)The Tribunal was biased as it did not accept that he was an “underground Church member”.
4)The Tribunal did not refer to independent materials before it refused the application.
5)That his application was not considered “according to s.424A”.
6)That the Tribunal did not notify him of the reasons of refusal and as a result he lost the opportunity to have his application dealt with fairly and “based on the Migration Act”. In this regard he referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 1 (“SAAP”) and claimed that the Tribunal should have notified him of the “reasons it used to refuse [his] application” and pursuant to paragraph [208] of SAAP, whether “it has any inference on [his] application or not”.
7)Lastly, that he hoped that the Court would make a good decision on his application, and give him a “good opportunity”.
The respondent submits that this is, simply, a matter where the Tribunal could not be satisfied on the information before it that the applicant feared persecution for the reasons claimed. The respondent in written submissions referred to Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF of 2003”), SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 and NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 as authority for the submission that s.65 of the Act requires that a visa must only be granted if a positive state of satisfaction can be reached.
Further, the respondent’s position is that no jurisdictional error is revealed merely because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied (VSAF of 2003). I note additionally that, in circumstances where an applicant fails to appear at a hearing before the Tribunal, having been put on notice that the Tribunal was not able to be satisfied on the material before it, that a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
The following complaints (with the Court’s relevant consideration) may be discerned from the applicant’s application and amended application filed in this Court:
1)That there was an explanation as to why the applicant did not attend the hearing, and the applicant expected he would be given “another chance”. The applicant contends that he did attempt to attend the hearing, was caught at a “traffic jam” and had language difficulties when he tried to contact the Tribunal.
A.In this regard the applicant, with the benefit of some legal advice (he consulted a lawyer on the panel of the Court’s Legal Advice Scheme on 22 September 2005, with the assistance of an interpreter in the Mandarin language when the advice was given) has not put any evidence before the Court of any such attempt. Nor even at the hearing before the Court, despite opportunity, did the applicant asset any details whatsoever such as to cause the Court to consider whether any further opportunity should be given to him to provide any evidence in an appropriate fashion.
B.Further, the Tribunal’s decision was handed down a month after the scheduled hearing date. The applicant who, despite any language difficulties, did manage to make an application to the Tribunal, answer the “Response to Hearing Invitation” form, make an application before this Court, and file an amended application, has put no evidence before the Court, nor did he make any assertion, that he sought to write to the Tribunal, or otherwise communicate with the Tribunal, in the month that was available to him to put to the Tribunal any difficulty he had in attending the hearing at the scheduled time.
C.The applicant’s return of the “Response to Hearing Invitation” form indicates that the applicant was on actual notice that if he failed to attend the hearing, the Tribunal may proceed to a decision in his absence without taking any further action. There is nothing from the applicant now to say that he did not understand the opportunity the hearing afforded to him. The contrary appears to be the case. The applicant did not assert some misunderstanding as to the importance of the hearing. The complaint is that he was prevented from attending and not given any other opportunity in circumstances where his failure to attend was due to a “traffic jam”.
D.In relation to any explanation for that failure to attend, I note that s.422B of the Act applies in this case (Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61). In terms of Division 4 Part 7 of the Act, the Tribunal did invite the applicant to a hearing and all the relevant statutory requirements as to notification and notice periods were complied with. I cannot see any failure by the Tribunal pursuant to this part of the Act. But even on any application of procedural fairness at general law, the Tribunal put the applicant on notice that on what was before it, it could not be satisfied that he should be given a protection visa. The applicant was given an opportunity to address this issue. There is no evidence before the Court of any attempt to contact the Tribunal to advise of the difficulty in attending. But further, in the month available the applicant, who despite language difficulties has managed to make relevant applications, has made no assertion to any subsequent action to alert the Tribunal to his now stated difficulty in attending. The applicant before the Court provided no explanation why, for a month after the hearing, he was unable to find the means of communicating with the Tribunal.
E.The applicant did not explain before the Court why he “expected” another chance, nor even that he was entitled to one. Even on what he said to the Court, no such expectation would arise out of his failed attempt to communicate the difficulty in attending the hearing due to “traffic”.
2)That there was “information and evidence” that was not considered by the Tribunal.
The applicant has provided no particulars of any such information. No such failure by the Tribunal can be discerned from the relevant material before the Court.
3)The Tribunal failed to provide in its findings the reason why it did not believe the applicant would be persecuted upon return to China.
The Tribunal could not be satisfied on what was before it that the applicant faced persecution for a Refugee Convention reason. As set out above no jurisdictional error is derived simply based on the Tribunal’s inability to be satisfied on what was before it. This complaint is not made out.
4)The applicant was unable to collect the relevant documentation from China as he had no one to assist him.
The Court is sensitive to the difficulty that unrepresented, non-English speaking applicant’s face in pursuit of protection under the Refugee’s Convention. However, this complaint as it stands does not assist the applicant in showing jurisdictional error in the Tribunal’s decision. Nor does the applicant say what documents he could have obtained, or how they would have assisted him. Nor is there anything to show he advised the Tribunal of any difficulty in obtaining the relevant documents.
5)The Tribunal’s decision was not based on a “rational or logical foundation”.
This complaint remains un-particularised. Even if such a ground of review were available to the applicant in the absence of anything further, it is clearly not made out on what is before the Court. It is clear from the Tribunal’s decision record why the Tribunal could not be satisfied that the applicant should be given a protection visa.
6)The Tribunal failed to consider the applicant’s claims.
This has already been answered: see 2), 3) and 5) above.
7)The Tribunal failed to provide particulars of independent country information, and failed to give the applicant the opportunity to respond to that information.
Independent country information upon which the Tribunal relies is not information that must be given to the applicant pursuant to s.424A(1) of the Act as it falls within the exception contained in s.424A(3)(a). There was no obligation on the Tribunal to provide particulars of any such information to the applicant, or to provide the applicant with an opportunity to respond to that information (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). But in any event the Tribunal’s decision turned on a lack of satisfaction on what the applicant had put before it. I cannot see that it relied on any such independent country information in making its decision.
The additional complaints arising from the hearing before the Court were (with the Court’s consideration):
1)The Tribunal was biased as it did not accept that he was an “underground Church member”.
i)There is nothing in the material before the Court to show the applicant ever made any claim to be a member of an “underground church” in China. Therefore, there is no finding by the Tribunal that it did not accept that he was a member of such an organisation.
ii)I note the applicant in the attachment to his protection visa application referred to Falun Gong in the following way:
“I believe it is like my religious belief.”
If he was intending to refer to the Falun Gong movement as an “underground church” then, as set out above, the Tribunal’s decision turned on a lack of satisfaction which was open to the Tribunal on what was before it.
iii)No bias can be discerned simply because the Tribunal found that it could not be satisfied. 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 at first note that an allegation of bias or bad faith on the part of a Tribunal is an extremely serious matter. An allegation of actual bias or the apprehension of bias must be supported by evidence. Such an allegation implies that the Tribunal member, by their attitude and conduct can be shown to have preset in their mind the ultimate outcome of the matter. In particular, allegations of actual bias carry with them the onus that they 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 at [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. In note in this regard that the applicant would need to present more than just the conclusion reached by the Tribunal to support this claim. Allegations of the apprehension of bias must be reasonable to succeed. The standard of reasonableness is determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32] per). 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, that the Tribunal can be said to have proceeded with the apprehension of bias, or that the Tribunal acted with bad faith. I note that it is rarely the case that such claims 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). The tests as enumerated above have clearly not been satisfied.
2)That the Tribunal should have referred to “independent materials”. No particulars are provided as to what they may be. But in any event the Tribunal was entitled in the circumstances to proceed as it did.
3)At the hearing the applicant appeared to submit that the Tribunal should have notified him of the reasons it used to refuse his application before it made its decision. It appeared this was a complaint that the Tribunal failed to provide him with its advanced thought processes pursuant to s.424A(1) of the Act. Relevant authorities (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”), at [65] per Moore J. and [206] per Allsop J. with reference to Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109, Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196, and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123) provide that the Tribunal’s adverse thought processes are not information for the purposes of s.424A(1) and no obligation pursuant to this section arises to provide any such adverse findings to the applicant. Further, the reason for the Tribunal’s decision was that it could not be satisfied on what was before it that the applicant should have been given a protection visa. The Tribunal put the applicant on notice of this very issue and gave him the opportunity to address it. This complaint, in all, does not succeed.
The Tribunal could not be satisfied on the material before it that a protection visa should be granted. The applicant has raised no ground of review that shows jurisdictional error in the Tribunal’s decision. Nor is any discernable from the material before the Court. As such, the application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 21 August 2006
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