SZFZF v Minister for Immigration
[2007] FMCA 856
•18 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFZF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 856 |
| MIGRATION – Bias allegation must be clearly made and distinctly proven – credibility – finding of fact for the Tribunal. |
| Migration Act 1958 (Cth), ss.424(c), 426, 474, 476 |
| SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 SJSB v Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZFZF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 571 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 29 May 2007 |
| Date of Last Submission: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitor for the Respondents: | Ms Kerr of Blake Dawson Waldron |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 571 of 2007
| SZFZF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 20 February 2007 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 8 July 1969 and claims to be from China (“the Applicant”).
The applicant arrived in Australia on 13 December 2003 on a temporary business visa issued in Shanghai on 27 October 2003.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 5 February 2004. In this application he claimed a fear of persecution because he was a practitioner of Falun Gong (CB 7). In his statement, the applicant stated he was a practitioner of Falun Gong and provided general information about the abuse of Falun Gong practitioners in China, but did not make any specific claims in regard to harm he had suffered himself (CB 7-9).
This application was refused by a delegate of the first respondent on
13 December 2004 (CB 36).
On 16 February 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. On 8 April 2004 the Tribunal sent a letter to the applicant inviting him to appear before the Tribunal to give evidence and present oral arguments at a hearing to be held on 17 May 2004 (CB 49). The applicant was advised that if he did not attend the hearing a decision could be made without further notice (CB 49).
On 22 April 2004 the applicant submitted the “Response to Hearing Invitation Form” to the Tribunal indicating that he did not wish to attend the hearing (CB 51). No additional material was provided by the applicant.
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, the reason for non-attendance is not relevant: SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 per Downes J at para.5. When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation the inevitable consequence was the rejection of the application: SZIGQ (supra) at [4] per Downes J. In the absence of the applicant the Tribunal, pursuant to s.426 and 424(c) of the Migration Act, made a decision without further notice to the applicant (CB 81). The Tribunal dealt with the application on the basis of the information which it had told the applicant was insufficient for a decision to be made in his favour.
On 11 May 2004 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (CB 55).
The applicant applied for judicial review of the decision in this Court. On 12 December 2006, Federal Magistrate Emmett issued orders made by consent quashing the decision of the Tribunal made on 11 May 2004 and remitting the matter to the Tribunal to be redetermined according to law (CB 62).
On 11 January 2007 the Tribunal, differently constituted, affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found:
I accept that the applicant is a citizen of China.
Generally, where broad claims are made, the Tribunal hearing ia [sic] an opportunity for the Tribunal to gather detail about the claims with the applicant. The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has elected, as is his right, not to provide any further information in support of his claims despite ample opportunity to do so. Not has he given the Tribunal the opportunity to explore aspects of his claims with him at a hearing. A number of relevant questions are therefore left unanswered.
In particular, the applicant has provided no details of any past persecution or of any contact with the Chinese authorities or other people which might reasonably give rise to a well founded fear of persecution should he return. Neither has he provided details of his practise of Falun Gong in China or any corroborating support of his claim to be a Falun Gong practitioner and to have joined with others in Australia. Had he wished to attend a hearing, I would have wished to question him closely on his knowledge of Falun Gong to satisfy myself that he is indeed a genuine Falun Gong practitioner.
In the circumstances, I do not accept that he is or was a Falun Gong practitioner. I do not accept, therefore, that he would be detained and imprisoned for tat [sic] reason should he return to China. I do not accept that he would suffer any other harm amounting to persecution in China for reason of his practicing Falun Gong. Nor do I accept that, for reason of practice of Falun Gong, he would be or be thought to be opposed to the Communist Party of China.
I do not accept that there is a real chance of the applicant suffering harm amounting to persecution for reason of his political opinion, his membership of a particular social group or for any other Convention reason should he return to China in the foreseeable future.
I find that the applicant does not have a well-founded fear of persecution in China for a Convention reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. Therefore the applicant does not satisfy the criterion set out in s. 36(2) of the Act for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out four grounds as follows:
(1)The Tribunal and the primary decision maker erred in failing to recognize the principle of non-refoulment contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).
(2)The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding based on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether the or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of a lack of bona fides.
(3)The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.
(4)The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8.
Findings as to the grounds of the application
Ground one seeks to challenge the decision of the delegate and of the Tribunal, and alleges a breach of Article 33 of the Convention. The decision of the delegate is not subject to these proceedings: that part of the ground is dismissed.
The Court accepts the submission of the first respondent as follows:
In respect to ground 1, the Tribunal outlined the four key elements to the Convention definition of “refugee” and was not satisfied that the Applicant had suffered persecution in the past or that he was a Falun Gong practitioner. The Tribunal was not satisfied that the Applicant was a refugee. Accordingly, Article 33 of the Convention did not apply as the Tribunal was not satisfied that the Applicant was a refugee.
Article 33 provides “that no contracting state shall expel or return (“refouler”) a refugee.” It is clear that Article 33 applies to refugees only. No breach occurred. Ground one is dismissed.
Ground two seeks again to include a challenge to the decision of the delegate. That challenge is rejected. Ground two claims then that the Tribunal erred in finding a lack of bona fides, which it is alleged must be based on the Tribunal acting with a closed mind on the basis that it was “seeking reasons to decide against the application rather than considering the evidence before it.” This ground therefore alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that “an allegation of bias must be clearly made and distinctly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it is a rare and exceptional case in which actual bias can be demonstrated solely from the published reasons of the decision: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
“To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously’: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59]”.
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”:Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established. Ground two is rejected.
Ground three seeks to attack the decision of the delegate – that attack is rejected. The ground alleges then that the Tribunal erred in using its findings on credibility to fail to consider the application. As stated in decision of W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64],
A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 ; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “`has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
No such error is found here. The Court accepts the submission for the first respondent that
The Tribunal could not be satisfied of the Applicant’s claims. It was therefore required to affirm the decision under review: SJSB v Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15].
Ground three may be taken to raise an allegation of a denial of natural justice. No particulars were provided to support such an allegation. It is rejected.
Ground four, insofar as it relates to the delegate, is dismissed. It then alleges that the Tribunal erred in its “construction of the Migration Regulation 1958 (the Act) Part 8.” The Court asked the applicant to explain whether he was alleging a breach of the Regulations or of the Act; he was unable to do so. The Court asked the applicant to explain what breach he was alleging; he was unable to do so. The Court therefore looks to a possible breach of Part 8 of the Migration Act. That part imposes no duties on the Tribunal. No breach of it has been established. The Court looked at the Migration Regulations 1999, which do not have a Part 8 other than in a Schedule, which has no relevance to this application. This ground has not been established: it is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 4 June 2007
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