SZHDR v Minister for Immigration

[2005] FMCA 1818

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1818

MIGRATION – Review of decision by Refugee Review Tribunal – applicant claims bias on the part of the Tribunal – applicant claims Tribunal erroneously relied on independent country information.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 483

NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17
SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668
Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd & Ors v Australia and New Zealand Banking Group Ltd (2000) 176 ALR 644
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478

Applicant: SZHDR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2645 of 2005

Judgment of: Emmett FM

Hearing date: 6 December 2005

Date of Last Submission: 6 December 2005

Delivered at: Sydney

Delivered on: 8 December 2005

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr J. Potts

Solicitors for the Respondent: Ms E. Palmer, Clayton Utz

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the Applicant’s Application filed 20 September 2005 is dismissed.

4. That the Applicant pay the costs of the First Respondent in the amount of $4600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2645 of 2005

SZHDR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

2. The Applicant is a 35 year old man who claims to be a citizen of the Peoples Republic of China (“the PRC”).

3. The Applicant has a wife and son who continue to reside in the PRC.

4. The Applicant arrived in Australia on 30 November 2004 having departed the PRC from Shunzhun Port on 29 November 2004.

5. On 22 June 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

6. The Applicant claimed that he was persecuted in the PRC by the authorities for reason of his political opinion or imputed political opinion and his actions in lodging complaints against his local council.

7. On 27 June 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant does not face a real chance of persecution for a Convention reason were he to return to the PRC and is therefore not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

8. On 28 June 2005, the Applicant filed an application for review before the Tribunal claiming persecution also by reason of his conversion to Christianity whilst in detention in Australia. On 29 August 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 20 September 2005, the Applicant filed an application in this Court (“the Application”) seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia owes protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. The Tribunal had before it the Department’s file including, the application for a protection visa and the Delegate’s decision.

2. The Applicant was legally represented at the Tribunal hearing on 16 August 2005. The Applicant also appeared at the Tribunal hearing on 16 August 2005 and gave oral evidence.

3. Essentially, the Applicant’s claims before the Tribunal arose out of a business he claims to have established in 1998 involving the sale of videos and compact discs. The Applicant claimed, in December 1989, the son of the Mayor set up a business opposite the Applicant’s business in competition with the Applicant’s business. The Applicant claimed that the Mayor’s son used political connections to harass the Applicant until he was forced to close his business around March 2000 having been accused of selling pirated products. The Applicant claimed his accusers were members of the “United Executive Team”, which, he claimed, involved government people from the police and also from the commercial and industrial sections. He was allowed to re-open his shop in June 2000 after having been fined for selling pirated video discs.

4. The Applicant claimed that, in September 2000, he wrote to the Kaiping Commerce Department denying that his products were pirated and claiming he had been persecuted by officials. The Applicant claimed he was then accused of being anti-communist and was taken into detention without any charges being laid against him. He claimed he paid money to obtain his release and then re-opened his shop.

5. The Applicant claimed that he was arrested in 2002 following the staging by him of a protest in March 2002 at which time he wrote a letter claiming persecution. Thereafter, the Applicant claimed he was taken to a mental hospital but escaped after 4 days. He claimed that in May 2002 an official came to his home and threatened him with arrest because of the letter he had written and accused him of trying to overthrow the communist regime. He claimed he was warned not to carry on with his complaints to people “higher up”.

6. The Applicant claimed persecution by the authorities in the PRC by reason of his political opinion or imputed political opinion arising out of his claims referred to above.

7. The Tribunal considered in detail the Applicant’s claims and concluded that the Applicant’s “account makes no sense”. The Tribunal gave reasons for that conclusion, including the curious claim that, having closed down his business, the authorities allowed him to re-open his business and left him with products which they claimed were pirated. The Tribunal also noted that, having escaped from the mental hospital, he was not taken back by the official who visited his home in May 2002 and whom he claimed issued warnings against him in respect of his criticisms of the authorities. The Tribunal’s findings in respect of these claims were open to it on the material before it. The reasons for the findings were clearly articulated and were not capricious, unreasonable, irrational or illogical. They are findings of fact which this Court cannot review.

8. The Applicant also claimed before the Tribunal that he had converted to Christianity, whilst in detention in Australia, and therefore feared further persecution were he to return to the PRC. The Tribunal was not satisfied that the Applicant’s conduct, in attending church services and bible studies at the detention centre and seeking to be baptised as a Christian, was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. In light of that finding, the Tribunal considered itself bound, pursuant to s.91R(3) of the Act, to disregard the Applicant’s conduct in converting to Christianity within Australia.

9. Otherwise, the Tribunal found that the Applicant had not undergone a genuine Christian conversion whilst in the detention centre in Australia. The Tribunal noted the Applicant’s own evidence that there are between 40 and 70 million Protestants in China and 15 to 20 million Catholics. The Tribunal noted the independent country information revealed that Christianity is legal in the PRC and both Protestantism and Catholicism are officially recognised religions. For those reasons, the Tribunal did not accept that there is a real chance that the Applicant will be persecuted because of any perception that he converted to Christianity while in Australia if he returns to the PRC now or in the reasonably foreseeable future.

10. The First Respondent referred the Court to NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [26], where Wilcox J held that s.91R(3) requires an Applicant to satisfy the Minister or the Tribunal, as the case may be, that the relevant conduct was engaged in “otherwise than for the purposes of strengthening the person’s claim to be a refugee.” The Tribunal made a clear finding that it was not so satisfied. That finding is a finding of fact and was open to the Tribunal on the material before it. In the circumstances, the Applicant’s claim of Christian conversion in Australia is to be disregarded, pursuant to s.91R(3). Moreover, the Tribunal’s finding that the Applicant has not undergone a genuine Christian conversion in the detention centre was a finding of fact open to the Tribunal on the material before it and therefore not reviewable by this Court.

11. The Tribunal accepted the Applicant’s claim that if he were to be deported to the PRC, the authorities were likely to assume that he had lodged an application for refugee status while in Australia. However, the Tribunal put to the Applicant that independent information before it from the Australian Department of Foreign Affairs and Trade (“DFAT”) revealed that, in 1995, DFAT was not aware of any substantiated claims of mistreatment of failed refugee claimants who had returned to the PRC. The Tribunal noted that further DFAT advice in January 2003 revealed that applying for refugee status would not of itself necessarily expose an applicant to persecution on return and that ongoing interest would largely depend on whether an applicant engaged in illegal activities on return. The Applicant disagreed with such information. However, the Tribunal accepted the DFAT information as revealing that an application for protection by a person who has applied for refugee status in Australia will not, of itself, result in persecution if the person is deported to the PRC.

12. Having regard to that information the Tribunal did not accept that there is a real chance that the Applicant will be persecuted because he applied for refugee status in Australia if he returns to the PRC now or in the reasonably foreseeable future. That finding is a finding of fact and was open to the Tribunal on the material before it.

The proceedings before this Court

1. The Applicant was unrepresented before this Court although he had the assistance of an interpreter. The Applicant sort relief on the following grounds:

   “1.    The Tribunal member misinterpret subsection 91R(3) P16. I attended church in the detention center before my application was lodged.

   2.  Tribunal member think I will not practise Christianity if I return to china. This is the biased judgment to support his decision.

   3.  Tribunal member believe if chinese authorities knew I was seeking protection in Australia I still won’t be persecuted. The Tribunal used information from Australian Department of foreign affairs and Trade advised in 1995 P17. I put this to the Tribunal chinese defector Chen Yong Lin was granted protection visa but chinese authorities and chinese ambassador all declared before if he return to china he won’t be persecuted.”

Ground 1

1. The Applicant did not seek to address the Court on ground 1. I have dealt with the substance of this claim at paragraphs 22, 23 and 24 above.  Accordingly this ground is not made out and is rejected.

Ground 2

1. In relation to ground 2, to the extent that the Applicant claims bias on the part of the Tribunal, there are no particulars of the bias. A party asserting an actual bias on the part of the decision maker carries a heavy onus and the allegation must be “distinctly made and clearly proved”. (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69] and [127]). A finding of actual bias is a serious finding and one not to be made lightly and must be demonstrated from the published reasons for the decision. (SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [37]).

2. There is nothing revealed in the Tribunal’s decision that would justify a finding of actual bias.

3. Further, to the extent that the Applicant may have been referring to apprehended bias, rather than actual bias, there is nothing contained in the decision of the Tribunal to demonstrate that a fair minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to resolution of this case. (Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd & Ors v Australia and New Zealand Banking Group Ltd (2000) 176 ALR 644 at 647).

4. The general test for apprehended bias is, as stated in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH”) at [14]:

   “[W]hether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision”.

   For a complaint of apprehended bias to be meaningful:

   “[I]t must carry with it an assertion of the apprehension of a possibility of predisposition.”: (NADH at [20]).

5. Moreover, the mere fact that the Tribunal found against the Applicant does not, of itself, establish that the:

   “[C]onclusions had been reached with a mind not open to persuasions and unable or unwilling to evaluate all of the material fairly”: (NADH at [15]).

6. There is nothing revealed in the Tribunal’s decision that would justify a finding of apprehended bias.

7. Accordingly, any ground of judicial review based on bias, actual or apprehended, is rejected.

8. To the extent this ground seeks to cavil with the Tribunal’s finding that the Applicant’s conversion to Christianity is not genuine, I have dealt with, above at paragraph 24 in these Reasons, the Tribunal’s findings in this respect. Merits review is not within the jurisdiction of the Court (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gleeson CJ at [69]). The Tribunal gave cogent reasons for rejecting the Applicant’s claims and these findings were open to the Tribunal on the material before it.

9. Accordingly this ground is rejected.

Ground 3

1. In relation to ground 3, to the extent that the Applicant refers to a Chinese defector who was granted protection in Australia, this ground is misconceived. It is not a matter that was before the Tribunal and is therefore irrelevant before this Court.

2. To the extent that this ground cavils with findings made by the Tribunal, I have dealt with the Tribunal’s findings on this issue at paragraphs 25 and 26 above in these Reasons. It is plain from the Tribunal’s decision that DFAT information of 1995 was not the only DFAT information to which the Tribunal had regard. It also referred to 2003 information. In any event, on the present authorities the Tribunal is entitled to make use or and make findings in respect of independent country information as it sees fit. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). Further, Hely J, in SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16], held that the weight to be given to independent country information, its accuracy and its relevance were all matters for the Tribunal and not the Court.

3. In this case, the Tribunal has found that, in accordance with the DFAT information, an application for refugee status in Australia will not of itself result in persecution in the PRC. The Tribunal relied on this finding as the basis for its conclusion that there is not a real chance that the Applicant will be persecuted because he applied for refugee status if he were to return to the PRC now or in the reasonably foreseeable future. Those findings were open to the Tribunal on the material before it.

4. Accordingly this ground is rejected.

Conclusion

1. The Tribunal’s decision does not otherwise disclose any reviewable error. The decision, therefore, is a privative clause decision, and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

2. The Applicant’s Application filed 20 September 2005 is dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  7 December 2005