SZHIV v Minister for Immigration
[2007] FMCA 550
•30 April 2007
MAGISTRATES COURT OF AUSTRALIA
| SZHIV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 550 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Vietnam claiming fear of persecution as a Vietnamese of Chinese ethnicity who had previously fled Vietnam as a refugee – fear of persecution as a criminal deportee – allegation of bias – no evidence of bias – where transitional (permanent) visa cancelled on character grounds – previous proceedings in Administrative Appeals Tribunal not to be indirectly challenged by an application for judicial review of a decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 474 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 referred to Plaintiff S157/2002 v Commonwealth of Australia (20030 211 CLR 476 referred to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 followed SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 followed SZCZJ v Minister for Immigration & Anor [2006] FMCA 1583 referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 referred to |
| Applicant: | SZHIV |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 311 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 April 2007 |
| Date of Last Submission: | 11 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| Applicant: | In person (in Immigration detention) |
| Counsel for the Respondent: | Mrs Sirtes |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,143.70.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 311of 2007
| SZHIV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 signed on 2nd January 2007 and handed down the following day. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant seeks orders remitting his application to the Refugee Tribunal.
Background
The applicant is a citizen of Vietnam in 1993. He applied for a protection (Class XA) visa on 4th October 2006, at a time when he was in immigration detention. His application was refused by a delegate of the Minister on 30th October. He then applied for a review of that decision on 2nd November 2006.
Application for review by the Refugee Review Tribunal
The Tribunal invited the applicant to attend a hearing on
15th December 2006. He attended that hearing and gave oral evidence. The Tribunal also heard evidence from the applicant’s parents and from his uncle.
After the hearing, on 18th December 2006, the Tribunal wrote to the applicant’s authorised recipient, Ms Geraldine Read of the Legal Aid Commission of NSW, inviting the applicant to comment on certain information. The letter referred to some matters discussed at the hearing, some independent country information from the Australian Department of Foreign Affairs and Trade, and some documents provided to the Tribunal by the applicant’s representative. The letter invited the applicant to comment by 28th December 2006.
The applicant’s representative replied in writing to the Tribunal on
28th December and enclosed a copy of a letter written by the applicant.
A copy of the Tribunal’s Decision Record appears on pages 190 to 203 of the Court Book. In that decision, the Tribunal set out details of the applicant’s original application:
The Applicant is aged in his early thirties. He arrived in Australia as a refugee resettled from Hong Kong in 1993. In his original application he said that the only education he had undertaken had been to Year 7 or Year 8 in Vietnam. He said that he had worked as welder in Hong Kong and Australia, as a forklift operator and casual worker at various markets and in a bakery in Australia. He said that he had also spent time in prison.
The decision of the Administrative Appeals Tribunal (AAT) in relation to the cancellation of the Applicant’s transitional (permanent) visa on character grounds[1]…a copy of which was produced along with the Applicant’s original application for a protection visa, indicates that between 1995 and 2004 he committed a series of criminal offences including armed robbery with wounding, robbery with striking, larceny and goods in custody, and possession and supply of a prohibited drug.[2]
[1] Citation has been deleted to avoid identifying the applicant, as required by Migration Act 1958 (Cth) s. 91X.
[2] Court Book at 193
The Tribunal then went on to describe the applicant’s reasons for claiming to be a refugee:
(1)The applicant and his family had left Vietnam because they were of Chinese origin and the Vietnamese Government had discriminated against Vietnamese of Chinese origin. In 1978, when the Vietnamese Government had ‘deported’ Vietnamese of Chinese origin, his father had been imprisoned for two years for organising a boat to transport about 200 Vietnamese Chinese to China. After that, the government and police always checked on the applicant’s family and caused them problems.
(2)The applicant and his family escaped to Hong Kong by boat in 1988. They had been issued refugee visas for what he described as ‘political reasons’ and they had been ‘under the Chinese category, not Vietnamese’. If he returned to Vietnam as a person deported from Australia he would be treated differently and would not be able to get a job and live a normal life. He feared discrimination as an ethnic Chinese person in Vietnam who had escaped from Vietnam as a refugee. His life would be very difficult and he feared that he would be put into a labour camp.
(3)
The applicant said that he had no family or support in Vietnam and thought he would not be able to register for residence.
He would suffer being separated from his de facto wife and members of his family in Australia. He also feared discrimination from other Vietnamese. He did not believe that the Vietnamese authorities would protect him because it was the authorities who had persecuted his family and discriminated against them.[3]
[3] Court Book at 194
The applicant’s mother gave evidence that the family had had to leave Vietnam because her husband was of Chinese-Vietnamese background and Chinese Vietnamese always suffered from discrimination.
The whole family had participated in demonstrations against the Vietnamese government whilst they had been living in Australia and these demonstrations would have been recorded on film.
The applicant’s father told the Tribunal that that the family had come to Australia from Hong Kong after a screening process. They had come as political refugees with the approval of the Australian Government. Because the rest of the applicant’s family were in Australia, the applicant would have no place to live in Vietnam and he would be by himself. The applicant’s father said to the Tribunal that the applicant had come to Australia as a political refugee and he felt that the current application for a protection visa ought to be approved.
The applicant’s uncle said that he had left Vietnam in 1989 and he, too, had gone through a screening process in Hong Kong and had been recognised as a refugee. He had come to Australia in 1993.
The Tribunal’s findings and reasons
The Tribunal accepted that the applicant is of Chinese background and that he and his family were accepted for resettlement in Australia after having fled Vietnam for Hong Kong. However, the Tribunal noted that the Australian Department of Foreign Affairs and Trade advised in March 2001 that there had been no evidence of official discrimination against Sino-Vietnamese for more than a decade and they were not being persecuted because of their race. Further, in October 2006 the Department of Foreign Affairs and Trade advised that there was no evidence to suggest that a Sino-Vietnamese deported from Australia would be discriminated against on return to Vietnam or placed in a labour camp because that person had previously fled Vietnam as a refugee[4].
[4] Court Book at 199
The Tribunal accepted that:
(a)the applicant would return to Vietnam as a criminal deportee;
(b)the applicant’s father had been imprisoned for two years in Vietnam for having organised a boat to transport about 200 Chinese Vietnamese to China in 1978 and that the government and police had subsequently checked on the family and caused them problems;
(c)the applicant had been involved in scripture study since August 2006 and he considered himself to be a Christian; and
(d)in 1994 and 2001 the applicant participated in demonstrations in Canberra and that there was a strong possibility that the Vietnamese Government would know of his participation.
The Tribunal did not accept that:
(a)there was a real chance that, if the applicant were to return to Vietnam, he would be persecuted because of his status as a criminal deportee;
(b)there was a real chance that he would be persecuted on his return to Vietnam because of his membership of the particular social group constituted by his family or any political opinion imputed to him on the basis of his father’s political background, the decision of his family to flee Vietnam or the fact that they left illegally;
(c)there was a real chance that the applicant would be persecuted for reasons of his religion or that he would be prevented from practising his religion freely or continuing the Bible study that he had begun in Australia; or
(d)there was a real chance that the applicant would be persecuted for his real or imputed political opinion opposed to the Communist regime in Vietnam if he were to return at the time of the hearing or in the reasonably foreseeable future.
The Tribunal stated that it had considered the totality of the applicant’s circumstances but, even taking into account the cumulative effect of all those circumstances, it did not accept that there was a real chance that the applicant would be persecuted:”for one or more of the five Convention reasons”[5] if he were to return to Vietnam at that time or in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant had a well-founded fear or being persecuted for a Convention reason if he returned to Vietnam and was not, therefore, a person to who Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
[5] Court Book at 202
Application for judicial review
The applicant applied to this Court on 1st February 2007, seeking judicial review of the Refugee Review Tribunal’s decision.
The application was first before me on 19th February 2007. On that day, I took note of the fact that the applicant was in immigration detention and determined it prudent to hear the application at an early date. The application was set down for final hearing on 27th March 2007. On that date, the applicant sought an adjournment of the hearing, stating that he had only received legal advice the previous week and had not had enough time to prepare his case. He told the court that his copy of the Court Book had only arrived the week before. Although the legal representatives for the Minister opposed the adjournment, I decided to grant the adjournment but with an order for costs against the applicant. The application was adjourned to 11th April 2007 for final hearing and I heard argument that day and reserved my decision.
In his application to the Federal Magistrates Court, the applicant sets out three grounds for relief:
(1)The Tribunal was biased;
(2)The Tribunal did not base its findings on all the facts; and
(3)The Tribunal was not fair because it did not take his or his family’s lives into account.
The applicant’s affidavit in support of his application, filed on
1st February 2007, is essentially a submission. It contains the following assertions:
(1)The applicant claims that his case was not heard “properly” and the negative decision against him was “extremely biased”.
(2)His solicitor “did not give it her all” and “should have guided” the applicant a lot better.
(3)The Tribunal gave no consideration to his wife and children.
(4)He has lived and grown up in Australia for the past 15 years “as a permanent resident and refugee” and considers himself an Australian since he was a young age.
(5)If he is sent back to Vietnam it will be very dangerous for him and his family.
(6)Contrary to the Tribunal’s view that Vietnam would be “a totally safe environment” for his family and himself, he will be persecuted for his religious beliefs and life for him and his family will be “nothing but a struggle”.
The applicant made an oral submission to the Court in which he addressed issues of fact. He also submitted that his family had come to Australia as refugees which meant that they were accepted as refugees. He submitted that it was not lawful for him to be sent back to Vietnam because he had been accepted as a refugee by the United Nations.
Counsel for the first respondent, the Minister for Immigration and Citizenship, submitted that:
(a)The applicant had neither distinctly made nor clearly proved his allegation of bias on the part of the Tribunal (Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 at [69]).
(b)The Tribunal did not fail to consider any facts upon which the applicant’s claims were based or any integers of the applicant’s claims.
(c)There was no failure by the Tribunal to provide procedural fairness and a plain reading of the Tribunal decision showed that the Tribunal even put to the applicant materials which it was not obligated to disclose.
(d)There being no jurisdictional error manifest, the decision of the Tribunal is a privative clause decision for the purpose of s. 474 of the Migration Act (Plaintiff S157/2002 v Commonwealth of Australia (20030 211 CLR 476 at [76]).
Conclusions
There is no evidence of bias or bad faith on the part of the Tribunal.
An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]). Further:
It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision maker will be apparent by reference only to the reasons for the decision themselves (SBBF v Minister for immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16]; SBBS (supra) at [44]; SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at [38]).
In this case, there is no evidence of bias or bad faith at all. This ground fails.
As to the applicant’s claim that the Tribunal did not base its findings on all the facts, I am satisfied from my reading of the decision that the Tribunal considered the facts most carefully. Counsel for the Minister, Mrs Sirtes, submitted that the Tribunal considered the many ways in which the applicant’s claims could be construed and, additionally considered the cumulative effect of the claims in terms of whether they would give rise to a well-founded fear of persecution. I agree with this submission. The Tribunal summed up its decision in this way:
I have considered the totality of the Applicant’s circumstances as a Vietnamese citizen of Chinese background, as someone whose father was imprisoned for two years for having organised a boat to transport about 200 Vietnamese Chinese to China in 1978, as someone who fled Vietnam for Hong Kong with his family and was subsequently accepted for resettlement here, as someone who considers himself to be a Christian, as someone who has participated in demonstrations in Australia, as someone who has been convicted of criminal offences, including drug-related offences, in Australia and as someone who, if he returns to Vietnam now or in the reasonably foreseeable future, will do so as a person deported from Australia due to breaches of Australian laws. However, even taking into account the cumulative[6] effect of all these circumstances, I do not accept that there is a real chance that there is a real chance that the Applicant will be persecuted for one or more of the five Convention reasons if he returns to Vietnam now or in the reasonably foreseeable future.[7]
[6] emphasis added
[7] Court Book at 202
I am satisfied that the Tribunal considered all the relevant facts thoroughly and carefully. The applicant’s second ground fails.
The applicant’s third ground claims that the Tribunal was not fair because it did not take the applicant’s life or the lives of his family into account. There is no breach of procedural fairness and no failure to consider the relevant facts. The Tribunal put country material by way of DFAT reports to the applicant at the hearing and wrote to the applicant on 18th December 2006 under the provisions of s. 424A of the Migration Act, inviting his comment on relevant information.
In addition, the Tribunal heard evidence not only from the applicant, but also from both his parents and his uncle. There was nothing unfair that I can see about the Tribunal’s decision, and certainly there was no failure to provide procedural fairness. The applicant’s third ground fails.
Turning to the applicant’s claims in his affidavit, summarised at 17(1) to (6) above, I have already found that there is no evidence of bias or failure to provide procedural fairness, as is alleged in 17(1).
The applicant’s claim in 17(2) that his former solicitor somehow failed in her duty to him is not supported by any shred of evidence and has no substance whatsoever.
The applicant’s claim in 17(3) is a repetition of his claim that the Tribunal did not consider all the relevant facts, a claim that I have already dismissed.
The applicant’s claims in 17 (4) to (6) inclusive are challenges to the Tribunal’s factual findings and are no more than an attempt at merits review. As Gyles J said in SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 at [3]:
Insofar as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
The applicant claimed at the hearing that it was not lawful for him to be sent back to Vietnam as he and his family had already been accepted as refugees by the United Nations. This claim is misconceived.
The fact that the applicant and his family had been assessed in the past as refugees by the United Nations (by UNHCR) and he had been resettled in Australia on a transitional (permanent) visa does not mean that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore met the criterion in s. 36(2) of the Migration Act for the grant of a protection visa (SZCZJ v Minister for Immigration & Anor [2006] FMCA 1583 at [48] – [59]).
The applicant’s transitional (permanent) visa was cancelled on character grounds and that cancellation has previously been dealt with by the Administrative Appeals Tribunal. It is not open to the applicant to make an indirect challenge to the AAT decision by means of this application for review of a decision of the Refugee Review Tribunal.
Counsel for the Minister has drawn the Court’s attention to the fact that the Tribunal put independent country information to the applicant both at the hearing and by way of the s.424A letter, notwithstanding the fact that the information was covered by the exception in
s.424A(3)(a). By this course, the Tribunal not only complied with its statutory obligations but also with the principles arising from the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592. I am satisfied that counsel’s submission is correct.
I am aware that the applicant is not legally represented in these proceedings, although he has had the benefit of some legal advice from a lawyer on the legal assistance panel, Mr Shaun Kerrigan. I have read through the Tribunal decision and supporting documents independently of the submissions of the applicant and of counsel for the Minister, in order to ascertain whether there may be any arguable ground of a jurisdictional error. I am not able to discern any jurisdictional error and I consider that the Tribunal decision in this appears to be very fair, careful and thorough.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. It is final and conclusive, and it is not subject to prohibition, mandamus, injunction, declaration or certiorari.
I have previously ordered that the title of the first respondent has been changed to Minister for Immigration and Citizenship.
The application will be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 16 April 2007
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