SZFQH v Minister for Immigration

Case •

[2006] FMCA 1863

•

13 December 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1863
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 applicants protection visas – applicants are citizens of the People’s Republic of China claiming fear of persecution as Falun Gong practitioners – bias – no evidence of bias – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal failed to comply with Migration Act 1958 s.425 – no reviewable error.
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.424A, 425
SZJGE v Minister for Immigration and Multicultural Affairs [2006] FMCA 1845
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
First Applicant: SZFQH
Second Applicant: SZFQI
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 2454 of 2006
Judgment of: Scarlett FM
Hearing date: 13 December 2006
Date of last submission: 13 December 2006
Delivered at: Sydney
Delivered on: 13 December 2006

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms McWilliam
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicants are to pay the First Respondent's costs fixed in the amount of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2454 of 2006

SZFQH

First Applicant

SZFQI

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal that was signed on 26th July 2006 and handed down on 3rd August 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicants Protection (Class XA) visas.

  2. The Applicants seek the following orders. 

    a)A declaration that the decision was invalid and contrary to law.

    b)An order in the nature of certiorari quashing the Tribunal decision.

    c)An order in the nature of mandamus remitting the application to a differently constituted Tribunal to be determined in accordance with law.

  3. I have previously held in the matter of SZJGE v Minister for Immigration and Multicultural Affairs [2006] FMCA 1845 that in my view it is usually inappropriate for an order to be sought remitting an application to a differently constituted Refugee Review Tribunal. It is not the function of the Court to determine the constitution of the Refugee Review Tribunal. It is a function of the Principal Member of the Refugee Review Tribunal. I do not propose to make orders about the constitution of the Tribunal.

Background

  1. The background to this matter is that the Applicants are citizens of the People’s Republic of China.  They arrived in Australia on 31st May 2004 and applied for protection visa on 9th June in that year. When their applications were refused they applied to the Refugee Review Tribunal for a review of that decision by the delegate.

  2. The Tribunal affirmed the decision not to grant protection visas on 10th December so the Applicants sought judicial review of that decision. On 17th March 2006 the Federal Magistrates Court quashed the decision of the Tribunal and remitted the application to the Tribunal for determination. The decision before me is a decision that was made after the Tribunal conducted a further hearing.

  3. The Applicants who are husband and wife both attended the hearing as did the Applicants' migration advisor. The Second Applicant did not give evidence and indeed her claim for a visa arises from her membership of the family of the First Applicant. The claim for protection arises from the First Applicant's status as a practitioner of Falun Gong.

  4. The Tribunal decision record can be found at pages 142-164 of the Court Book. The Tribunal summarises the claims and evidence on pages 145‑158 of the Court Book. The hearing was not completed in one session. It commenced on 16th June 2006 but as the First Applicant complained of illness the Tribunal adjourned the hearing to resume on the afternoon of 20th June 2006.  Both Applicants attended on that occasion and produced their passports. The First Applicant gave oral evidence in some detail about his claim.

  5. At page 152 of the Court Book the Tribunal noted that the First Applicant began to clutch his head and then bang it on the table.  The Tribunal asked the Applicant if he was all right and the Applicant said that his head ached. The Tribunal offered him the opportunity to resume the hearing the following day and at this stage the Applicant collapsed.

  6. The Second Applicant produced some documents including two medical certificates and told the Tribunal that the First Applicant had just taken some tablets. The Tribunal records that the Tribunal decided to adjourn the hearing and the Tribunal first aid officer arrived. The Tribunal records that the hearing was formally adjourned and the Member asked that medical support be provided if necessary.

  7. The Applicants attended a third session of the hearing where the First Applicant gave more evidence and was questioned by the Tribunal Member. At the completion of the hearing the Tribunal gave to the Applicant a letter dated 7th July 2006 which had also been faxed to the Applicants' authorised recipient. A copy of that letter which was an invitation to comment on information can be found at pages 117-119 of the Court Book.

  8. The letter sets out certain information and told the Applicant that this information would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter advised the Applicant that the information given in the letter was relevant to the review of his case because amongst other things it may indicate matters that were not favourable to the Applicants' case.  The letter invited the Applicants to comment on the information and requested that those comments be received by Friday 21st July 2006.

  9. The Applicants did provide further information in the form of a statutory declaration by the First Applicant which was forwarded to the Tribunal on 21st July 2006.  The statutory declaration was accompanied by a letter and a slip showing that the Applicant was seeking assistance from the Asylum Seekers Centre (Inc) and was accompanied by medical certificates dated 16th and 20th June 2006 together with a letter from the Emergency Department of St Vincent's Hospital dated


    20th June 2006 with a diagnosis of headache and tension.

  10. There was also an invoice from the Ambulance Service of New South Wales relating to the First Applicant's transport from 83 Clarence Street, the headquarters of the Tribunal to St Vincent's Hospital.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons can be found at pages 158-164 of the Court Book. The Tribunal accepted that the Applicants were nationals of the People’s Republic of China on the basis of their passports.  The Tribunal was not satisfied about other matters of the First Applicant's claims noting that he was not able to answer elementary questions about the five sets of Falun Gong exercises but (at page159) noted that the Tribunal was satisfied that the reason the Applicant was not able to answer those questions was not because of any medical incapacity but simply because he had no knowledge about Falun Gong and was not a Falun Gong practitioner.

  2. The Tribunal at page 161 of the Court Book reported that it did not find the First Applicant a credible witness.  The Tribunal did not accept matters relating to the First Applicant's claims. It did not accept that the First Applicant had been detained for a Convention related reason.  Did not accept that the Applicant was a Falun Gong practitioner in China and did not accept the Applicant's claims that he was threatened not to practice Falun Gong or to have been threatened in Australia for that reason. 

  3. The Tribunal was not satisfied that there was a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to China and was not satisfied that either Applicant met the criteria in sub-s.36(2) for grant of protection visas.

The Application for Judicial Review

  1. The Applicants have claimed there was an error of law constituting jurisdictional error in the Tribunal's decision and that there was a procedural error constituting an absence of natural justice. The application sets out nine particulars although there is a degree of repetition amongst them.

    a)The Applicants' claim that the Tribunal did not consider their claims properly and fairly.

    b)A claim that the Tribunal completely ignored the First Applicant's claim that he had been suffering from serious headaches and tension since he was tortured by the Public Security Bureau in China.

    c)That the Tribunal ignored the information that the Applicant was seeking assistance from the Asylum Seekers Centre.

    d)The Tribunal Member should contact the Applicant's general practitioner or the officer in charge of his case at the Asylum Seekers Centre before making the decision.

    e)That the Tribunal had personally witnessed the Applicant's poor health situation.

    f)That the Tribunal refused to consider claims about the Applicant's health situation, the impossibility of obtaining documentary evidence, a misunderstanding for the English meaning of the word religion and circumstances relating to his departure from China. 

    g)The Applicant claims that the Tribunal completely ignored a number of facts.

    h)The Applicant claimed the Presiding Member failed to comply with s.425 of the Act due to not being able to give oral evidence or present an argument against the issues arising in relation to the review, owing to the Applicant's poor health.

    i)The Applicant claimed the Presiding Member failed to comply with the requirements of s.424A of the Migration Act.

  2. As to the claims that the Tribunal failed to consider the Applicants' claims properly and fairly that is either an attempt at merits review or as counsel for the First Respondent submits a complaint of bias.  If it is an application for merits review well then it is well established that merits review or reconsidering the matter on the facts cannot be conducted in an application for judicial review.

  3. If there is an allegation of bias there is no evidence of that and it is well established that allegations of bias are serious, must be strictly alleged and proved and as the Full Court of the Federal Court has made clear in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, especially at [43] – [48]. But there is no evidence of bias so that ground is misconceived.

  4. As to the claims that the Tribunal ignored the Applicant's claims about ill health, headaches and tension, it appears to me that nothing could be further from the truth. The Applicant's health problems and his health difficulties at the hearing which took place on three different occasions is most clearly documented in the Tribunal decision. It is quite clear that the Tribunal adjourned the proceedings on not one but two occasions and has most certainly considered the medical evidence provided.

  5. The important fact is that the Tribunal formed the view that the Applicant was unable to answer questions about the practice of Falun Gong, not for any medical reason but purely through lack of knowledge. As to the claim that the Tribunal should have contacted the Applicant's doctor or for that matter anyone from the Asylum Seekers Centre, whilst the Tribunal has such power under s.424 of the Migration Act there is no obligation on it to conduct any specific investigations of that nature. The Tribunal considered the medical evidence and in fact did not doubt that the Applicant suffered from a medical condition. What the Tribunal did do also was to be satisfied that the Applicant's unsatisfactory answers at the Tribunal were not due to that medical condition.

  6. The claims in particulars 6 and 7 that the Tribunal has not considered certain evidence does not avail the Applicants. The Tribunal on the decision before me has extensively summarised the Applicants' claims and the fact that the Tribunal did not accept that evidence is purely a matter for the Tribunal. As was submitted by counsel for the Respondent Ms McWilliam the taking into account of independent country information and the choice and assessment of such information is a factual matter for the Tribunal, see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [13]. That ground must fail.

  7. As to the complaint of a failure to comply with s.425 of the Migration Act, that does not come near to being made out. The Tribunal complied with its obligations by inviting the Applicants to attend a hearing and by providing an interpreter in the Mandarin language. The fact that the Tribunal adjourned the proceedings on two occasions due to the Applicant's health is a clear indication that the Tribunal Member was alive to the need for the hearing to be a proper hearing and not a hearing where the Applicant's ability to give evidence was hindered or curtailed by poor health. This ground must fail.

  8. There is also a complaint of a failure to comply with s.424A of the Migration Act.  The statement is and I quote:

    Finally, the Presiding Member failed to comply with his obligations under s.424A(1) of the Act, because he failed to provide the actual information of materials that he had used as the reasons or part of the reasons in his decision; and he failed to ensure me to understand that those pieces of negative information or native issues mentioned above would be directly in relation to my review application;  and he failed to invite me to comment on those pieces of negative information or negative issues.

  9. That assertion is just wrong. It completely ignores the letter forwarded to the Applicant through his migration agent under the provisions of s.424A of the Migration Act on 7th July. The Tribunal records that a copy of that letter was given to the Applicant at the hearing as well as a copy having been faxed to the Applicants' migration advisor. The submission completely ignores the fact that not only did the Tribunal forward that letter to the Applicant, a letter which to my mind perfectly complies with s.424A but the Applicant actually replied to it. The Applicant forwarded a letter with the statutory declaration, medical evidence and a copy of the form from the Asylum Seekers Centre.

  10. Applicants do not do themselves any favours by making assertions which are clearly and demonstrably not in accordance with the facts. There is no breach of s.424A of the Migration Act and this ground fails.

Conclusion

  1. The fact is that the Tribunal found the First Applicant not to be a credible witness and that is entirely a matter for the Tribunal. There is no jurisdictional error shown on the amended application. I am mindful of the fact that the Applicants are not legally represented. I have read the material independently of both the Applicants' contentions and the Respondent's contentions in order to satisfy myself that no other jurisdictional error may be found. I cannot find any. There is no jurisdictional error and the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act.

  2. Accordingly it is not subject to declaration, certiorari, mandamus or any other constitutional writ and the application will be dismissed.

  3. I would comment however that whilst it may well be a function of the pressure under which the Refugee Review Tribunal finds itself to conduct hearings and deliver decisions in a timely way, it is regrettable that the decision record contains a number of spelling and grammatical errors and that the decision is not made any easier to read by the somewhat uncertain paragraphing. 

  4. There is a paragraph that begins shortly down page 159 and continues as a solid block of text until a third of the way down page 161. That is not only unnecessary, it makes it extremely difficult for the Federal Magistrates Court which is also under a great deal of pressure to read.  That however is not a jurisdictional error and there is no jurisdictional error.  The application will be dismissed with costs.

  5. There is an application for costs. The Applicants have been wholly unsuccessful in their claim and in my view this is an appropriate matter for a costs order. The amount sought, namely $4,000.00, is appropriate and I propose to make that order.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  15 December 2006

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