SZGEQ v Minister for Immigration - [2005] FMCA 1450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEQ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1450

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 Applicant a protection visa – Applicant a citizen of China – claim of well-founded fear of persecution for reason of practising Falun Gong.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A.

Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

Applicant:

SZGEQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 1115 of 2005

Delivered on:

23 September 2005

Delivered at:

Sydney

Hearing date:

8 September 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Mr Cox

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the Application is dismissed.
That the Applicant is to pay the First Respondent’s cost in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1115 of 2005

SZGEQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision was handed down on 5^th April 2005. The decision was made on 10^th March 2005, which was the date of the hearing itself.
The background to this matter is that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 29^th September 2004. On 13^th October 2004 he lodged an application for a protection visa. In that application he claimed that he had a well-founded fear of persecution by reason of his practice of Falun Gong. On 7^th January 2005 a delegate of the Minister refused his application. On 17^th January 2005 the Applicant applied for a review of that decision by the Refugee Review Tribunal. The Tribunal invited the Applicant to attend a hearing on 10^th March 2005. He attended that hearing and he gave oral evidence with the assistance of an interpreter. He was not represented by a migration adviser or a lawyer. The Tribunal asked him a number of questions about his claim and raised some doubts that the Tribunal member had.
The Tribunal decided that it would affirm the decision of the delegate of the Minister not to grant the Applicant a protection visa. The Applicant commenced proceedings in this Court for a review of that decision. He filed an amended application on 29^th July 2005. In that application he seeks five orders:
(1) A writ of prohibition to prevent the Minister from taking any action in reliance upon the decision of the Refugee Review Tribunal.
(2) A writ of certiorari to quash the decision of the Refugee Review Tribunal.
(3) An order in the nature of mandamus to require the Refugee Review Tribunal to hear and determine the Applicant's application according to law.
(4) An order for costs.
(5) Any other order that the Court thinks appropriate.
The Applicant sets out seven grounds in his Amended Application to justify the orders that he seeks. I quote those grounds in full:
(1) The Tribunal referred to the wrong independent information believing that only rank and file practitioners who continue to defy the government authorities were persecuted by the Chinese government.
(2) The Tribunal failed to assess whether I would be persecuted by the Chinese government on my return to China because of my involvement with the Falun Gong, a special social group.
(3) The Tribunal did not believe my claims and evidence without giving rational and logical grounds.
(4) The decision was made based on the assumption of the Tribunal the Tribunal could not justify its decision.
(5) The Tribunal did not refer to sufficient independent information to consider my application.
(6) The Tribunal wrongly concluded that I was not familiar with Falun Gong.
(7) The Tribunal did not provide me an adequate opportunity to respond to the substance of the information.
The Applicant went on to say that he would provide more details to support his judicial application in his outline of submissions. He did not provide an outline of submissions.
Because the Applicant did not provide written submissions, I asked him when he attended Court to answer some questions about his application. I also gave him the opportunity to address the Court about any matters that he thought were relevant to his case. I asked him about each of the grounds of the application in turn.
In summary, the Applicant provided the following answers: (1) the Refugee Review Tribunal simply did not believe he was detained because he was a Falun Gong practitioner. He said that was just the Tribunal member's own perception without any concrete evidence. He believed that the RRT was biased. When asked why he believed that he said that he did not have evidence to prove that he was not previously detained.
In support of his second ground the Applicant said the Tribunal failed to assess whether he would be persecuted upon his return to China. He said that the Refugee Review Tribunal simply did not take the view that ordinary Falun Gong practitioners would be persecuted once back in China. He said that the Tribunal relied on assumption and supposition.
In support of his third claim that the Tribunal did not believe his claims and evidence the applicant said that if the Tribunal had given him sufficient opportunity he would have been able to give satisfactory answers.
In respect of point 7 the Applicant said that he was not given an adequate opportunity to respond to the information. He said he should have had more time, but he did not ask the Refugee Review Tribunal for more time.
In support of his claim that the Tribunal could not justify its decision the Applicant relied on his earlier submissions.
When the Court asked the Applicant why he said the Tribunal did not refer to sufficient independent information the Applicant replied that he wanted the Tribunal to reassess his case. He also said that the Tribunal wrongly concluded that he was not familiar with Falun Gong and that the Tribunal did not provide him with adequate opportunity to reply to the matters in the independent information.
In the Respondent's outline of submissions Mr Cox, solicitor, pointed out at paragraph 14 that the gravamen of the RRT decision was a thoroughgoing rejection of the Applicant's claims on credibility grounds. He pointed out that the RRT had had the advantage of hearing and observing the applicant give evidence and was able to test his evidence and put to him questions about aspects of his claims that the Tribunal had difficulty with. Mr Cox summarised his submissions by pointing out that the Tribunal just did not find the Applicant's evidence credible. He pointed out that findings of that type are properly the function of the Refugee Review Tribunal and are generally not susceptible to review by Courts.
Mr Cox referred the Court to the well-known decision of McHugh J in Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 at 67. In that case his Honour pointed out that a finding on credibility is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe the particular witness, no detailed reasons need to be given as to why that particular witness is not believed.
Mr Cox pointed out that grounds 2, 3, 4 and 6 of the Amended Application do not show jurisdictional error as they merely cavil with the facts found by the Refugee Review Tribunal. He further submitted that ground number 2 was misconceived because the RRT had rejected entirely any claims that he had made in relation to Falun Gong. He submitted that grounds 1 and 5 alleged wrongful and insufficient use of country information by the RRT.
Ground number 7 alleged that the RRT did not provide the Applicant with an adequate opportunity to respond to the substance of the information. Mr Cox pointed out that no particulars were provided as to what information was referred to and expressed the belief that no evidence has been filed or served to support that ground.
In his oral submission made after having heard the Applicant's oral submissions Mr Cox pointed out that the applicant was seeking to raise an issue of bias, although that issue had not been raised in the Amended Application. He did, however, point out that it was made in the original application but apparently dropped. Mr Cox pointed out that there was no evidence of bias behind what was on the face of the record and that the Applicant did not point to anything in the reasons that would support his claim for bias and said that there was just no evidence of it.
Having taken all of those matters into account, I am of the view that the Amended Application largely refers to factual matters. Ground number 1 is, to my mind, cavilling with the facts that are found. Ground number 2 is a challenge to a factual finding. Ground number 3 contains a complaint that the Tribunal did not believe the Applicant. Ground number 4 refers to the decision made based on the Tribunal's assumptions which the Tribunal could not justify. The Applicant was not able to show what assumptions, if any, the Tribunal had made rather than rely on the evidence. Ground number 5 is a complaint that the Tribunal did not refer to sufficient independent information to consider his application. If there was further information that could be relied on by the Tribunal, it was up to the Applicant to provide the information. It is not the function of the Tribunal to conduct its own independent investigations of an Applicant's claims.
Ground number 6 is no more than a challenge to the fact that the Tribunal had concluded the Applicant was not familiar with the Falun Gong practices.
Ground number 7 complains that the Tribunal did not provide the Applicant with an adequate opportunity to respond to the substance of the information. The Applicant does not say what that information is, but, in my view, it is clear that the Tribunal did put certain questions to the Applicant about his case.
Turning to the question of bias that was alleged at the hearing, an allegation of bias is a serious matter which raises the question of personal fault on the part of the decision-maker. I refer to the decision of the Full Court of the Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361; (2002) 194 ALR 749. The Full Court in paragraphs 42 through to 48 sets out some very clear guidelines in dealing with allegations of lack of bona fides or bad faith.
The principles generally are that, first, an allegation of bad faith is a serious matter involving personal fault. Second, the allegation is not to be lightly made and must be clearly argued and proved. Third, it is not possible to give a comprehensive definition of bad faith because it can occur in many ways. Fourth, the presence or absence of honesty will often be crucial in arriving at such a decision. Fifth, the circumstances where the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review. Sixth, Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making.
Seventh, errors of law or fact and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness. Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do. Ninth, it is not necessary to demonstrate the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
In my view, there is no evidence of bias, either actual or a perception of bias. There is no evidence that the Tribunal member acted in bad faith. In my view, having considered the submissions and having conducted my own independent perusal of the decision, I am not able to identify any jurisdictional error. The decision is a privative clause decision and attracts the protection of section 474 of the Migration Act. The application will be dismissed.
There is an application for costs. The Applicant has been wholly unsuccessful in his claim and the Minister now seeks an order for costs. In my view, there is nothing in the way that the Minister has carried the matter that would disentitle the Minister to a costs order. I note the sum of $4200.00 is sought. This appears to me to be a reasonable figure within the scope of the Federal Magistrates Court Rules. The Applicant is to pay the First Respondent Minister's costs fixed in the sum of $4200.00. I require a transcript of my reasons for this decision. The application is otherwise removed from the list of cases awaiting finalisation.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 4 October 2005