SZFSV v Minister for Immigration
[2007] FMCA 1362
•14 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFSV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1362 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 FederalMagistrates Court Rules 2001 (Cth), rr. 44.11(c), 44.12 |
| Abebe v Commonwealthof Australia (1999) 197 CLR 510 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZILQ v Minister for Immigration & Anor [2007] FMCA 483 SZHKA v Minister for Immigraiton & Anor [2007] FMCA 500 SZDZY v Minister for Immigration and Multicultural Affairs [2005] FCA 1782 |
| Applicant: | SZFSV |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2360 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Mr A Cox of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 18 August 2006 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 |
SYG2360 of 2006
| SZFSV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZFSV”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 August 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 24 July 2006 and mailed to the applicant on 1 August 2006, affirming a decision of a delegate of the first respondent made on 15 November 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 16 November 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of B MacCarthy, reference 060458165, provides the following background information:
The applicant, who claims to be a citizen of China (PRC), arrived in Australia on 7 October 2004 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 20 October 2004. The delegate decided to refuse to grant the visa on 15 November 2004 and notified the applicant of the decision and her review rights.
The applicant sought review of the delegate’s decision and the Tribunal, differently constituted, affirmed the delegate’s decision on 25 January 2005, though the statement of reasons erroneously gives the year as “2004”. The applicant sought review of the Tribunal’s decision by the Federal Magistrates Court which upheld the Tribunal’s decision. The applicant appealed to the Federal Court and on 9 May 2006 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.(CB 105)
The applicant’s claims are in an unsigned and undated typewritten statement attached to her protection visa application. The Court Book indicates that this statement is apparently translated from a handwritten statement in Chinese, though there is no certification by a translator. In essence, the applicant claims she was a Falun Gong practitioner and that she had been detained for 15 days and mistreated after the Chinese authorities banned the practice of Falun Gong in 1999.
Tribunal’s Findings and Reasons
A summary of the Tribunal’s findings is contained in the first respondent’s written submissions prepared by Mr Cox and I adopt paragraphs 20 to 22 of those submissions:
20. The RRT found that the applicant was not a Falun Gong practitioner, had not been detained and was not of interest to the Chinese authorities for a Convention reason (CB 119). Essentially, its decision was one of adverse creditability and is based on the following.
20.1. The applicant was unable to identify or demonstrate a Falun Gong exercise at hearing. (CB 111 & 118)
20.2 There were a number of serious inconsistencies between the applicant’s claims made in her PVA, at hearing and in her submission to the post-remittal RRT. Country information also contradicted her claims. The inconsistencies were as follows.
20.2.1 The applicant claimed to have been detained after the Chinese Government’s crackdown on Falun Gong, and that she had to continue her practice in secret. In her PVA she stated that these events occurred in 1999, but at hearing she instead they occurred in 1996, despite being given an opportunity to respond to country information that showed that the Government crackdown on Falun Gong actually occurred in 1999. The RRT sent the applicant a letter that invited her to comment on the inconsistencies in her statements on this point, prior to making its decision. In her post-remittal submissions the applicant claimed the relevant year was 1999.
20.2.2 The applicant claimed to be a Falun Gong practitioner in her PVA, but at hearing she said she had not been a ‘real’ practitioner but a sympathiser. She had been detained because authorities mistakenly believed her to be a practitioner (CB 109, 110, 111, 118, 119). The RRT sent the applicant a letter that invited her to comment on this inconsistency. In her post-remittal submissions she revived her claim to be a practitioner and explained that her disavowal of being a ‘real’ practitioner at hearing was meant to convey that she had not participated in self-immolation or sit-in protests. (CB 113, 118)
20.3 It was implausible that the applicant had encouraged others to take up the practice as she had claimed in her PVA (CB 107), and at hearing (CB 8) when she had also stated that she was only a sympathiser and not a practitioner herself (CB 109, 110). The applicant repeated the claim to have introduced others to the practice in her post-remittal submissions. (CB113, 114)
21. Although the RRT invited the applicant to comment on inconsistencies between information provided in her PVA and at hearing about whether she had used false documents to obtain her passport and business visa, it concluded there was insufficient evidence to resolve the question. (CB 109, 110, 119, 120)
22. Where the RRT had relied on information other than that supplied to it by the applicant for the purpose of the review application, it foreshadowed this reliance to the applicant in its letter dated 5 July 2006, and duly invited her to comment. The applicant took advantage of this opportunity, but the RRT found her explanations unconvincing.
Application for Review of the Tribunal’s Decision
On 24 August 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with leave granted at the first Court date, the applicant filed an amended application on 9 November 2006 setting out the following grounds:
1. The Tribunal failed to consider my application for a protection visa according to S91R of the Migration Act 1958. The Tribunal failed to consider my claims due to the bias against me. My true claims were misunderstood by the officer at the hearing.
2. The Tribunal did not provide a hearing for the second consideration of my application by a differently constituted tribunal member. I was not given an opportunity to explain my case. The Tribunal sent me a letter under S424A, despte (sic) explaining in full details, the officer refused to accept my explanation.
3. The Tribunal therefore failed to consider my application according to S425 of the Migration Act.
4. The Tribunal relied upon irrelevant material. [T]he country information relied upon by the Tribunal was out of date and/or based on hearsay.
Submissions and Reasons
The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. The applicant did not file any written submissions, however, when invited to make oral submissions, she disputed the Tribunal’s finding that she had been arrested in 1996. She said that she practiced Falun Gong in 1996 and that she had been aware of its existence since 1994. She stated that she was active in Falun Gong up to 1999. The applicant also raised the issue of the Tribunal finding that she was not a genuine Falun Gong member. She expressed the view that the Tribunal held the mistaken view that there was two distinct groups of Falun Gong practitioners. The first being practitioners and the second being members travelling to Beijing to protest against the banning of Falun Gong.
I invited the applicant to show me where the Tribunal had expressed this view. She was unable to identify a passage from the decision but insisted that a friend assisting her had told her that this was a finding of the Tribunal. Ultimately, it emerged that this impression had been conveyed in the Tribunal’s letter of 6 July 2006 inviting her to comment on specific information before it. By letter forwarded to the Tribunal on 17 July 2006, the applicant made the following comment:
The first time when I attended the hearing of the Tribunal, I honestly told the officer that I was not a real member of Falun Gong, but I did not say that I had not practiced Falun Gong. The “real” means that I had not gone to Tiananmen Square for “self-burning”, and I had not gone to Zhong Nan Hai for sit-ins.”(CB 85)
The applicant explained that she had formed the impression that the Tribunal member thought that only the true Falun Gong practitioners had gone to Beijing to protest. Although I can see how this perception may have developed I do not believe that the Tribunal member used the word “genuine” in light all Falun Gong practitioners falling into one of two distinct groups. I believe that the term “genuine” in the context of the decision was dependent upon broader criteria than the simple distinction adopted by the applicant.
Mr Cox submits that the amended application raises a number of purported grounds in addition to the four contained in that document. They can be summarised as follows:
a)The application was not considered in accordance with s.91R of the Act;
b)The Tribunal was biased and did not consider her claims;
c)Her true claims were misunderstood;
d)No hearing was provided on remittal;
e)The Tribunal did not accept the response to its 424A letter;
f)The application was not considered according to s.425;
g)The Tribunal erred in using country information which was irrelevant, out of date and based on hearsay.
Mr Cox provided written submissions in respect of each of those issues.
In respect of the s.91R issue, Mr Cox contends that the Tribunal clearly informed itself of the application of s.91R as shown under the heading “Definition of Refugee” where key elements of the section were set out and discussed.(CB 106.2-106.5) However, the basic factual claims of the applicant were rejected by the Tribunal. No serious issue concerning s.91R has been raised by the applicant.
The complaint appears to have arisen due to a misunderstanding about the definition of the terms “genuine” and “real”. This apparent confusion has been discussed at [10] above. However, a fair reading of the Tribunal decision indicates that the Tribunal clearly set out its obligations under the Act and the balance of the decision indicates that it assessed each of the applicant’s claims in accordance with the requirements of the Act. I am not satisfied that a claim that the application was not considered in accordance with s.91R of the Act can be maintained.
Mr Cox submits that the applicant provided no particulars or evidence relevant to the issue of bias. An allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69]. There is nothing in the Tribunal decision to suggest either actual or apprehended bias.
Actual bias can be said to exist when a Tribunal member had a pre-existing state of mind which disabled him from undertaking or rendering him unwilling to undertake a proper evaluation of the material before him relevant to the decision to be made: Minister for Immigration and Multicultural Affairs v Jia at [35] and [72]. Actual bias may be said to exist when a Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, despite the evidence or arguments presented: Jia at [71]-[72]. Apprehended bias will exist where a fair-minded lay observer, properly informed of the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]. In the absence of particulars and a copy of the transcript of the Tribunal hearing, it is not immediately apparent from the face of the decision that there was either actual or apprehended bias. In light of the issues raised above, the use of the term “bias” by the applicant appears to suggest her dissatisfaction with the outcome of the Tribunal decision. I am not satisfied that any claim of actual or apprehended bias can be sustained.
Mr Cox submits in relation to the “claims not considered or understood” issue that it is clear from the Tribunal decision that the applicant’s claims were considered in full and understood.(CB 118-119) There are no particulars provided in the ground and nothing in the Tribunal decision suggests an error of this nature, see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [63] per Black CJ, French and Selway JJ:
63 It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
I agree with the submission made by Mr Cox that a fair reading of the decision indicates that the Tribunal did not constructively fail to deal with any aspect of the applicant’s claim nor could such a claim arise from the material before it.
Clearly, the applicant misunderstood the terminology used to describe her involvement with the philosophy and practice of Falun Gong but that does not indicate that the Tribunal member failed to deal with any aspect of the applicant’s claims. I am not satisfied that this ground of review can be sustained.
The applicant’s claim that there was “no hearing on remittal – application not considered according to s.425”, Mr Cox submits that in the Tribunal decision it correctly states that a hearing had been provided to the applicant on 25 January 2005 (CB 115.3). It is submitted that the obligation under s.425 of the Act was discharged at that time. The Tribunal is a legal entity making a decision and not the individual member: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [30] per McHugh J. Further, the steps and procedures taken by the original Tribunal are not invalid despite the first Tribunal decision being found to be so: SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [39] per Emmett, Siopis and Rares JJ where their Honours said:
39 In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
Mr Cox contends that although SZEPZ concerned an application of s.424A of the Act, the principle applies equally to s.425: SZILQ v Minister for Immigration & Anor [2007] FMCA 483; SZHKA v Minister for Immigraiton & Anor [2007] FMCA 500.
In SZILQ v Minister for Immigration & Anor FM Smith considers the operation of s.425 in the circumstances of a reconstituted Tribunal relying on a hearing conducted by the previously constituted Tribunal. His Honour discusses the application of SZEPZ and I am guided by his reasoning and reproduce that segment of his decision covering this analysis:
24. Ground 1 contends that the Tribunal made a jurisdictional error "by failing to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review". The applicant contends under this ground that the provisions of s.425(1) of the Migration Act established a duty on the Tribunal which was mandatory, consequent upon the remitter of the matter after the setting aside of the first decision of the Tribunal. The Tribunal therefore erred by considering that it had a discretion whether to invite the applicant to a second hearing.
25. I note that it was not contended that, if the Tribunal were correct in thinking that the power to invite the applicant to a second hearing was discretionary, its discretion miscarried by reason of any failure to consider relevant matters or otherwise.
26. Section 425 provides:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
27. The applicant’s solicitor argued that s.425 required the Tribunal, after the quashing of an earlier decision, to conduct a further hearing in every case to which s.425(2) did not apply. He referred me to Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 at [68], where Gummow and Hayne JJ referred to the effect of an order setting aside a Tribunal decision under the Federal Court’s previous judicial review jurisdiction. They said:
Whether any findings from the first review would be preserved would entirely depend upon the view formed by the Tribunal in conducting the second review. On that second review the respondent, as applicant for a visa, could be expected to appear to give evidence and present arguments (s 425), and, so far as the Court’s orders were concerned, it was a review to be conducted in the ordinary way. ...
However, it was not an issue in Wang whether the Tribunal would be obliged in every case to invite an applicant to a further hearing, and I cannot read the above statement as suggesting this.
28. In my opinion, the issue is to be determined by reference to the reasoning accepted by the Full Court in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107. That case concerned whether the obligation to invite written comments on adverse information under s.424A(1) was required to be repeated after the quashing of an earlier Tribunal decision. As with s.425, the obligation is expressed to be on "the Tribunal". At first instance, in SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]-[20], I inferred in a situation such as the present that the Tribunal had been reconstituted under s.422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of the previous decision.
29 On appeal, the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my alternative reasoning that the "review" which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review. At [39] their Honours said:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
30. I have followed this reasoning, in a case where the Tribunal took into account the previous Tribunal’s account of a hearing conducted by it under s.425 (see SZGNY v Minister for Immigration & Anor [2006] FMCA 1142 at [18]-[25], upheld by Emmett J in SZGNY v Minister for Immigration & Citizenship [2007] FCA 384).
31. The applicant’s solicitor sought to distinguish SZEPZ on the basis that it concerned the performance by a Tribunal of its obligations under s.424A and not s.425. However, I do not consider that this distinction allows me to avoid the reasoning adopted by the Full Court. This turned upon an analysis of the "review" proceeding before the Tribunal, as one which commenced with the filing of a valid application for review under s.412 and was concluded only when a valid decision on that review was made under ss.415(2) and 430. Within that proceeding, the mandatory procedural duties of "the Tribunal" which, on their proper construction arise only once in a review proceeding, may be satisfied at any point of time during the review proceeding, regardless of whether this occurs before or after the Tribunal is reconstituted after the quashing of an invalid decision which purported to conclude the review. Applying this analysis, I can see no relevant distinction between the Tribunal’s duties under ss.424A and 425.
The applicant’s claim that the “response to s.424A letter was not accepted” Mr Cox submits that this is simply a complaint as to the factual findings of the Tribunal. The Tribunal was entitled to waive the explanation given and reject, or accept, that explanation as a fact finding exercise within jurisdiction. It is submitted that the Court cannot review the merits of the Tribunal decision: MIEA v Woo Shan Liang (1996) 185 CLR 259 at 272, and there is no error in law, let alone a jurisdictional error, in the Tribunal making the wrong finding of fact: Abebe v Commonwealthof Australia (1999) 197 CLR 510 at [137].
The Tribunal in its written decision is not obliged to refer to every piece of evidence placed before it by the applicant: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummon and Hayne JJ at [68]. In the circumstances where the Tribunal did not refer to every response provided by the applicant in her correspondence to the Tribunal in reply to questions raised by a s.424A letter does not establish a basis for a correct assertion that the Tribunal member ignored that evidence or material. The responses supplied by the applicant did not form part of the reason for the Tribunal member’s decision. In the circumstances I am satisfied that this ground of review cannot be sustained.
The last issue relates to country information. Mr Cox submits that no particulars are provided that would enable identification of country information that is a subject of the complaint. However, the Tribunal does mention independent evidence as indicated that the practice of Falun Gong was not banned in China until 1999 (CB 119.7). There is no error shown in the use of that material. In SZDZY v Minister for Immigration and Multicultural Affairs [2005] FCA 1782, Graeme J, as the Full Court of Appeal, considered a submission that the Tribunal in that matter had erred by using old country information [22]-[23]. His Honour found that it was a function of the Tribunal to seek to locate further country information and that it was not jurisdictional error for the Tribunal to base its decision on independent country information which might happen to be wrong [23]. His Honour had previously quoted with the apparent approval, the reference of a court below to NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] to the effect that there will not be jurisdictional error when the Tribunal refers one body of country information over another, or gives different weight to different sources of country information.
I agree with the submissions made by Mr Cox and the supporting authorities. This ground of review cannot be sustained.
Conclusion
I am of the view that none of the arguments of alleged jurisdictional error on the part of the Tribunal member can be sustained. Consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 13 August 2007
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