SZHGW v Minister for Immigration & Anor
[2008] FMCA 304
•6 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHGW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 304 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 425 |
| Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 VAAW of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 202 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZHGW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3436 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3436/2006
| SZHGW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 31 October 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in December 2004. In January 2005 he applied for a protection visa. In that application he claimed, in essence, that he left China because he suffered persecution due to his and his family's political opinion and because he was a Falun Gong practitioner. In particular he claimed to have been active in 1989 in supporting a democratic movement, to have been interrogated and held for some five days and that in 1997 he became a Falun Gong "member" and organised friends and relatives to practise Falun Gong.
He claimed that in March 2004 he was detained and questioned by the police and tormented for a period of ten days and not allowed to practise Falun Gong. He claimed that his health worsened, he was sent to hospital for treatment, released and then subsequently came to Australia.
The application was refused by the delegate of the first respondent and the applicant sought review by the Tribunal. He made no further claims in connection with his review application. The Tribunal recorded that the applicant gave oral evidence at a hearing before the Tribunal as originally constituted.
It appears that the original Tribunal decision, which is not before the Court, affirmed the decision not to grant the applicant a protection visa. The applicant sought review in this Court. The matter was remitted to the Tribunal for reconsideration. The Tribunal decision presently before the Court is the decision of the Tribunal as reconstituted by orders made by consent by this Court on 28 April 2006. The Tribunal as reconstituted held a further hearing which the applicant attended and at which he gave evidence and presented arguments.
In its reasons for decision the Tribunal outlined in some detail the evidence given by the applicant at the Tribunal hearing, including details as to his responses when asked why he did not want to return to China, his evidence about his claimed practice of Falun Gong, his political opinion and mistreatment by the police and the circumstances in which he obtained his passport and travelled out of China.
In its findings and reasons the Tribunal accepted that there was sometimes persecution of Falun Gong practitioners and those associated with Falun Gong by the Chinese authorities and also that sometimes people were persecuted in China because of their or their family's political opinion or background. However it observed that it must determine whether the applicant had a genuine fear founded upon a real chance of persecution, for a Convention reason, if he returned to China.
It did not accept as true that the applicant was or would be persecuted in China because of his or his family's political opinion or background or that he was or is a Falun Gong practitioner in either Australia or China, or that he had the association with Falun Gong or Falun Gong practitioners that he claimed while he was in China. Hence it did not accept that in March 2004, or at any time, government officials had searched his home and found documents and taken him for questioning as claimed. Nor did it accept as true that the applicant was or is regarded as a Falun Gong practitioner or supporter by the Chinese authorities or government as claimed and/or that he was in hiding in China because of his association with Falun Gong or Falun Gong practitioners and/or because of his or his family's political opinion.
In essence the Tribunal did not accept that the applicant left China and feared to return there for the reasons that he claimed, finding that he had invented these claims to assist his application for a protection visa.
The Tribunal gave reasons for these findings, referring to its detailed summary of what occurred in the Tribunal hearing. In particular it had regard to the applicant’s limited knowledge about Falun Gong, observing he told the Tribunal that he knew only three words about Falun Gong and not the rest and could tell the Tribunal very little about it when invited to do so. The Tribunal considered that if the applicant was a Falun Gong practitioner or had been associated with Falun Gong or Falun Gong practitioners since 1997, as claimed at the hearing, he would know more about Falun Gong than he was able to tell the Tribunal.
In relation to the applicant’s claims about his or his family's political opinion and his claimed involvement with the democracy movement the Tribunal had regard to the fact that his evidence was that he last had problems in China because of his political opinion in 1989. It found that it was not consistent with his claim that he was persecuted in China because of his or his family's political opinion that he had managed to live and work in China, set up his own business in China and travelled for work between various parts of China until he came to Australia in December 2004.
Because the Tribunal did not accept that the applicant was a truthful witness it did not accept as true that he was harmed in China in and before 1989 or at any time because of his or his family's political opinion or background. Nor did it accept it as true that he was in the countryside in hiding or avoiding the government in China as claimed, noting that he told the Tribunal that he was running his own business and also that he had rented a place to live in a particular part of China after 2001 and travelled for work purposes between Beijing and his home region. It found that these facts were not consistent with the situation of someone in hiding from the government. It did not accept his reason for such travel in these circumstances.
The Tribunal found that there was no plausible evidence before it that the applicant had suffered, or would suffer, persecution for a Convention reason from Chinese authorities or the Chinese government or from anyone else in his country either now or in the reasonably foreseeable future if he returned there.
The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution in China within the meaning of the Refugees Convention.
The applicant sought review by application filed in this Court on 22 November 2006. He filed an amended application on 11 May 2007. He told the Court today that he relied on the grounds in the amended application.
The first ground in the amended application is:
The Tribunal did not believe my claims based on the officer's assumption, not evidence. The decision was biased.
An allegation of bias is a serious allegation involving personal fault on the part of the decision-maker and it must be clearly proved by evidence. In this case the allegation of bias is not supported by any particulars or evidence and appears to be based only on the applicant taking issue with the fact that the Tribunal did not believe his claims.
It is rare for a Court to find that bias is established on the part of a decision-maker such as the Tribunal where the only material before the Court is, as in this instance, the Tribunal reasons for decision (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43] – [48]). There is nothing in the Tribunal reasons for decision to establish bias in the sense of predetermination, or that is such as to support any claim of apprehended bias from the perspective of the reasonably well-informed lay observer (see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex part H (2001) ALJR 982 in relation to the principles applicable to actual and apprehended bias).
Insofar as this claim is in fact a contention that there was no evidence at all upon which the findings made by the Tribunal could have been based, such a claim is not established on the material before the Court (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 and VAAW of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 202 at [33] – [35]).
The findings made by the Tribunal were reasonably open to it on the material and evidence before it. Its factual findings were based upon a consideration of the plausibility of the applicant's claims as well as an assessment of the truth and internal inconsistency of the applicant's oral evidence. I note that the only evidence before the Court of the evidence given by the applicant at the Tribunal hearing is the Tribunal reasons for decision. No jurisdictional error is established in the manner contended for in ground 1 of the amended application.
I also note for the sake of completeness in relation to that claim that in the original application the applicant had contended that the Tribunal's satisfaction was not based on a rational or logical foundation for its belief. No lack of logic giving rise to or establish a jurisdictional error is apparent on the material before the Court.
The other ground relied on by the applicant is a contention that the Tribunal failed to consider his application in accordance with s.424A of the Migration Act 1958 (Cth). It is that:
The Tribunal failed to notify me in writing the reasons for affirming the decision. I lost the opportunity to comment upon the reasons. (Please refer to the following two pages for details).
No particulars of this claim were provided in the amended application and when given the opportunity to elaborate on this claim today the applicant reiterated that he should have been given written notice of the Tribunal decision. He contended that the Tribunal did not give him any material before the decision. This appears to be an elaboration on his contention that the Tribunal should have written to him in advance of its reasons and put to him its preliminary reasoning for comment.
However it is well established that there is no obligation under s.424A of the Act for the Tribunal to put to an applicant its provisional reasoning in the manner contended for by the applicant. (See Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ in SZBYR v Minister for Immigration and Citizenship [2007] 81 ALJR 1190 at [18] referring to what was said by Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 to the effect that the word “information” in s.424A(1):
does not encompass the Tribunal's subjective appraisals, thought processes or determinations.
As their Honours went on to point out in SZBYR:
If the contrary were true s.424A would, in effect, oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.
In this instance the decision of the Tribunal was based on information obtained from the applicant's oral evidence given in the hearing before it. Such material is within the exception to the scope of s.424A(1) in sub-s.424A(3)(b).
I have also considered the application of s.425 of the Migration Act. However, as the Full Court of the Federal Court pointed out in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, s.425 does not oblige the Tribunal to give an applicant a running commentary on the evidence insofar as that was contended by the applicant in this instance.
More generally I note that insofar as the applicant takes issue with the approach of the Tribunal and suggests that the Tribunal made its decision based on assumptions and not evidence this may involve some misunderstanding of the statutory task of the Tribunal. It does not require rebutting evidence to reject an applicant's claims. Rather it is required to reach a positive state of satisfaction that the criteria for the class of visa applied for are established. In the absence of such positive state of satisfaction the Tribunal must affirm the decision to refuse the visa in issue.
In all the circumstances no jurisdictional error is established on any of the bases contended for by the applicant. Accordingly the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the circumstances before me to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 March 2008
0
7
1