SZGXO v Minister for Immigration
[2006] FMCA 929
•28 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 929 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claiming fear of persecution because of extortion by corrupt officials – allegation of bias – credibility – whether Tribunal needs evidence before not accepting applicant’s claim – no evidence of bias – bias must be distinctly made and strictly proved – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B MigrationAct 1958 (Cth), s.424A |
| Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 201 CLR 507 applied SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668 applied SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 applied Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 referred to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 followed |
| Applicant: | SZGXO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2108 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 June 2006 |
| Date of last submission: | 28 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Henderson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Leave granted to join the Refugee Review Tribunal as a party to the proceeding.
The Refugee Review Tribunal is joined as Second Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondents costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2108 of 2005
| SZGXO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 20th June 2005. The Refugee Review Tribunal handed down its decision on 12th July 2005 confirming the decision of a Delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of the People’s Republic of China. She arrived in Australia on 12th December 2004. The Applicant applied for a Protection (Class XA) visa on 20th January 2005. When the application for a visa was refused on 26th February, the Applicant sought a review of that decision by the Refugee Review Tribunal.
The Applicant lodged an application for review at the Registry of the Refugee Review Tribunal on 1st April 2005. The Applicant attached a short statement to her application saying that she and her sister ran a clothing business in a shop in Fuqing, China. She complained that she was a victim of an extortion racket run by corrupt officials and was detained when she refused to keep on paying. A copy of the application and the attachment can be found at pages 40 through to 44 of the Court Book.
The Tribunal wrote to the Applicant on 18th May 2005 inviting her to attend the hearing on 9th June. The Tribunal then wrote to the Applicant on 23rd May inviting her to a hearing on 16th June. The Applicant completed a written response to the hearing invitation indicating that she wanted to attend and wishes to have the services of a Mandarin interpreter.
The Applicant attended the hearing and gave oral evidence. Her sister, also an applicant through here, gave evidence at another hearing before the same Tribunal Member earlier in the day. The Tribunal Member asked the Applicant a number of questions about her claims and told the Applicant that the Tribunal had difficulty accepting that her evidence was truthful.
The Applicant, according to the Tribunal, claimed that the interpreter had not understood her and that she had not understood the Tribunal Member. This is set out at page 60 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 62 through to 63 of the Court Book. The Tribunal accepted that the Applicant was a national of the People’s Republic of China having seen the Applicant’s passport.
The Tribunal expressed serious concerns about the credibility of the Applicant’s claims. At page 62 of the Court Book the Tribunal said:
I consider that significant aspects of the Applicant’s evidence were confused, internally inconsistent and implausible. I am of the view that the Applicant fabricated her claims in an attempt to create for herself a profit of a refugee.
The Tribunal did not accept the Applicant’s explanation that the interpreter had misunderstood her or that she had misunderstood the Tribunal Member. The Tribunal expressed confidence that if the interpreter had been unable to understand the Applicant she would have advised the Tribunal.
The Tribunal also did not accept that the Applicant had operated a business in China and found her evidence on this point “particularly unpersuasive”.
At page 63 of the Court Book. The Tribunal described the Applicant’s evidence as problematic in other ways, including her account of when she had operated her business, circumstances relating to a warrant for her arrest and how she managed to avoid arrest and leaving the country.
In short, the Tribunal concluded that the Applicant’s account of her situation lacked credibility. The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for Convention reasons and affirmed the decision of the Delegate not to grant a protection visa.
The application for judicial review
The Applicant filed an application under s.39B of the Judiciary Act 1903 on 9th August 2005. She filed and Amended Application on 26th October 2005. In the Amended Application the Applicant seeks writs of prohibition, certiorari and a mandamus. The Applicant sets out five grounds in her Amended Application which I shall summarise as follows.
1)Bias. Because the Applicant has had little formal education and the Tribunal did not believe that she had operated the business.
2)Bias for the reason of the Applicant’s lack of formal education (largely the same claim in short form).
3)Incorrect procedure because of bias against the Applicant’s lack of education (again a restatement of the same claim).
4)Making an adverse decision about the Applicant’s credibility without any evidence, only bias and assumption.
5)Failure to observe the Migration Act properly.
The Applicant has not filed any written submissions. The counsel for the First Respondent, Ms Henderson, has prepared an outline of submissions. The Minister’s solicitors filed a copy of the written outline of submissions on 26th April 2006 and forwarded a copy to the Applicant in the mail.
The Applicant brought the document with her to Court but said that she could not understand it. I stood the matter down so that the Applicant could go through the document with the aid of the Mandarin interpreter.
Dealing first of all with the allegation of bias contained in the first four grounds, counsel for the First Respondent submits that there is no evidence of bias on the part of the Tribunal Member. She draws the Court’s attention to the fact that a party alleging bias on the part of a decision maker carries a heavy onus. An allegation of bias must be “distinctly made and clearly proved." (See Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 201 CLR 507 69 at [127]).
It can rarely be demonstrated by citing the published for decision. See SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668 at [37] and also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [44].
The First Respondent also submits that the Applicant’s claim that the Tribunal failed to consider her claim because of bias is untenable. The Tribunal, it is submitted, addressed all the Applicant’s claims and based its decision on its concerns about the credibility of those claims. Counsel for the First Respondent submits, correctly in my view, that the Applicant had not provided any particulars of the Tribunal’s claimed failure to follow procedure as required by the Migration Act and there is no evidence of any such failure.
As to the Applicant’s claim that the Tribunal’s finding about her lack of credibility was not supported by any evidence or material, the First Respondent submits that it is not necessary for there to be any rebutting evidence before the Tribunal can reject the Applicant’s evidence. (See Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
The Applicant told the Court that she considered the Tribunal Member was biased because the Member did not believe what the Applicant had said. She said that she did run a business in China and that she was a victim of extortion. She said that if the Court wanted any evidence she had a fine notice at home but had not shown that document to the Refugee Review Tribunal.
She said that her answers were inconsistent because when the Member asked her a question she thought the Tribunal Member was asking her about what had happened afterwards. She said she always provided an answer after being asked a question. As to her claim that the Tribunal did not observe the Migration Act properly, the Applicant said that she only told the Member the truth. It was a small business that she and her sister ran and the Tribunal just did not believe what she and her sister said.
She told the Court, in summary, that she just feels that the Tribunal was biased because whatever she said the Tribunal would not believe her. She does not make up things, she always tells the truth. The Applicant, in reply, said that the Tribunal did not go through the normal consideration before reaching a decision. She told the Tribunal the truth and the Tribunal did not believe her.
I am satisfied that the Tribunal affirmed the decision of the Delegate on the basis that the Tribunal was largely not satisfied about the credibility of the Applicant’s claims. The Tribunal referred to independent country information including an advice dated January 2003 from the Department of Foreign Affairs in relation to obtaining a passport in China and also the Tribunal referred to advice from the Department of Foreign Affairs dated February 1998 about whether a dissident wanted by Chinese authorities could leave the People’s Republic of China using a Chinese passport issued in their own name.
The Tribunal made it clear that it was the Applicant’s oral evidence which the Tribunal found unsatisfactory. The Applicant had also provided a typed statement to the Tribunal attached to the application for review.
In my view, there is no breach of s.424A of the Migration Act because the material relied upon by the Tribunal, in affirming the Delegate’s decision, was independent country information and written material provided by the applicant for the purpose of the review. Independent country information not about the Applicant specifically and material provided by an applicant for the purpose of a review are specifically excluded under sub-s.424A(3) of the Migration Act.
The basic reason, however, was that the Tribunal was not satisfied about the credibility of the Applicant’s claims. The Applicant expressed some grievance saying that she had told the truth, but whatever she said the Tribunal did not believe her. Such a grievance is understandable, but the Court, in conducting judicial review, does not have the power to substitute its own view of the facts for the view arrived at by the Tribunal.
A decision on credibility is a factual decision and provided that there is evidence upon which the decision maker can arrive at a factual conclusion, the Court will not interfere. There is no evidence of bias, there is no evidence of failure to apply proper procedures. The Applicant’s oral submissions related to a reassertion of her factual claims and amounted to a request for merits review, which is not available.
I am mindful of the fact that the Applicant is not legally represented I have read through the decision of the Tribunal independently and I am unable to discern any other jurisdictional error not mentioned by the Applicant. I am satisfied that no jurisdictional error has been made out. It must follow that the application will be dismissed.
In compliance with the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24, I intend to grant leave to the Refugee Review Tribunal to be joined as a part and in fact I join the Tribunal, although the matter is somewhat academic in the circumstances. I will also make an order changing the title of the First Respondent Minister to the Minister for Immigration and Multicultural Affairs.
The unfortunate fact for the Applicant, however, is that the application is to be dismissed.
There is an application for costs on behalf of the First Respondent Minister, there is nothing which indicates to me that I should depart from the principle that costs follow the event, and I propose to make an order for costs. The amount sought is $5,000.00, inclusive of counsel’s fees, and I note this is an application that was commenced before 1st December 2005, which of course was the commencement date of the Migration Litigation Reform Act [2005].
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 29 June 2006
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