SZHJJ v Minister for Immigration - [2006] FMCA 831

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHJJ v MINISTER FOR IMMIGRATION AND ANOR

[2006] FMCA 831

MIGRATION – Refugee – no bias, apprehension of bias, or bad faith – Tribunal took into account relevant considerations – credibility findings open to the Tribunal – information relied on by the Tribunal falls within the exception in s.424A – s.422B – no breach of procedural fairness – no jurisdictional error – application is dismissed.

Migration Act 1958, ss.422B, 424A, 424A(1), 424A(3)(a), 424A(3)(b).

Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal Ex parte H [2001] HCA 28
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] SCA 1493
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514
SBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant:

SZHJJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2988 of 2005

Judgment of:

Nicholls FM

Hearing date:

04 May 2006

Date of Last Submission:

01 May 2006

Delivered at:

Sydney

Delivered on:

04 May 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. Kaur-Bains

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent's costs set in the amount of $4,500.
Pursuant to s.91X of the Migration Act 1958 there be no publication of the applicant's name.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2988 of 2005

SZHJJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

This is an application filed in this Court on 17 October 2005 seeking review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 August 2005 and handed down on 8 September 2005 to affirm the decision of a delegate of the first respondent Minister made on 14 March 2005 to refuse a protection visa to the applicant. I note that the Tribunal has already been joined as a party to these proceedings.
The applicant is a national the People's Republic of China who arrived in Australia on 27 January 2005 and applied for a protection visa on
28 February 2005. His application is reproduced in the Court Book (“CB”) at CB 1 to CB 26. His claims are attached and the English version is reproduced at CB 27. The application for review was lodged with the Tribunal on 4 May 2005 and is copied at CB 42 to CB 45. The applicant did not make any additional claims to the Tribunal, but was invited to attend the hearing on 16 August 2005 and gave evidence to the Tribunal on that date. The Tribunal's account of what occurred at the hearing is set out at CB 60.2 to CB 62.9. The applicant's claims were that he left Hong Kong where he resided and worked with his family and feared to return there because he was persecuted by the secret police and was fearful of further persecution because of his Falun Gong activities.
The Tribunal's “Findings and Reasons” are set out in its decision record at CB 63 to CB 64. The Tribunal found that it could not be satisfied of the applicant’s refugee status and did not accept that the applicant was a witness of truth (CB 64.1). The Tribunal did not accept:
1)That the applicant was a Falun Gong practitioner and practised Falun Gong in Hong Kong and in Australia.
2)That the applicant was beaten in 1998 and harassed by secret police.
3)That the applicant left Hong Kong for the reason he claimed.
4)That the applicant could not or would not return to Hong Kong because he feared persecution there.
The Tribunal took the view that there was country information available, which it consulted, that did not indicate that there was a “crackdown” on Falun Gong practitioners in Hong Kong in the same way that there was in the remainder of China. The Tribunal took the view that the country information did not support the applicant's claims that secret police were sent to Hong Kong to seize, detain and ill-treat Falun Gong practitioners. Nor in the Tribunal's view did the country information support the applicant's claims that he was harassed by secret police every night during 2004 because he was a Falun Gong practitioner. While accepting that the applicant was able to demonstrate a set of Falun Gong exercises, it considered that if he were a genuine Falun Gong practitioner and had been from 1996, he would have been able to provide basic information about Falun Gong. The Tribunal saw it as relevant to its adverse view of the applicant's credibility that he made no attempt “to do these things”. In all the circumstances, the Tribunal took the view that the applicant's claims that he was unable to work in Hong Kong because of his Falun Gong activities and the treatment he received were not genuine and were “invented by the applicant to assist his application” (CB 64.7). Therefore, the Tribunal did not accept the applicant was a Falun Gong practitioner in Hong Kong, did not accept the practised Falun Gong in Australia, found that there was no plausible evidence before it that the applicant had or would suffer persecution for a Convention reason if he were to return to Hong Kong and was not satisfied on the evidence presented that the applicant had a well founded fear of persecution in Hong Kong or China within the meaning of the Convention.
The grounds of the applicant's complaint as expressed in his application to this Court filed on 17 October 2005 are:
“1) RRT was subjectively seeking reasons to decide against the applicant rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’ claim of a well founded fear of persecution and there is a real chance that he will be persecuted.
2) RRT using so called county (sic: country) information to against the applicant rather than looking at the whole fact of the application fairly to make its judgement. RRT also did not fully disclose the full detail of the country information that they used to assess applicant’ application.”
The parties appeared on two occasions for directions before His Honour FM Smith on 22 November 2005 and 11 April 2006. On those occasions FM Smith made orders, amongst others, that the applicant was to file and serve an amended application setting out complete particulars of each ground of judicial review raised in the application by 17 March 2006 and to file and serve any additional affidavits by that date. Both parties were required to file and serve written submissions, in the applicant's case 14 days before the hearing and in the respondent's case 7 days before the hearing. The application was listed for final hearing on 4 May 2006 when the matter came on for hearing before me. The applicant has not filed anything further in support of his application to this Court and I do note relevantly, as reminded by Ms. Kaur-Bains who appeared for the Minister, that the applicant did access the Court's Legal Advice Scheme and was therefore afforded some opportunity to receive advice relating to compliance with the orders made by FM Smith.
The applicant was unrepresented before me and was assisted by an interpreter in the Cantonese language. Ms. Kaur-Baines appeared for the respondents.
At the hearing, the applicant insisted that the Court listen to a tape that he had brought with him. This was a tape of the hearing that the Tribunal had conducted with him on 16 August 2005. The applicant was unable to specifically point to any reason for the Court to listen to the tape, but stated in general terms that it would show that the Tribunal acted arbitrarily in rejecting his claims. Ms. Kaur-Bains opposed the applicant's request. While I agreed with the bulk of her submissions, I was ultimately persuaded by the seriousness of the applicant’s allegation and by his statement that he was not versed in the law and wanted justice and a “fair go” from the Court.
Subsequently, the tape was played in open Court. It is quite clear after listening to the tape that first, the Tribunal's account of what occurred at the hearing was an accurate reflection of what transpired at the hearing before me with the applicant. Second, the applicant was unable to explain further in any meaningful way whether anything on the tape could now assist his case.
Having listened to the tape, the complaint made by the applicant, for reasons which I will deal with additionally below, failed to show any arbitrary action, or indeed any jurisdictional error on the part of the Tribunal. In particular I note the applicant's statement that in relation to the issue of whether he was able to demonstrate a set of Falun Gung exercises both the tape and the Tribunal's decision record clearly shows that in that regard the Tribunal accepted that the applicant could demonstrate such exercises.
The applicant's first stated ground of complaint appears, by implication at least, to be that the Tribunal was biased in that it did not give proper consideration to all the evidence before it and was looking for reasons to “decide against the applicant”. In relation to the applicant’s complaint of bias and bad faith, the applicant has put nothing before the Court to establish any of the relevant elements as set out in authorities. For the applicant’s benefit I should at first note that an allegation of bad faith or bias on the part of a Tribunal or an allegation that the Tribunal acted with bias is an extremely serious matter. Such allegations of bias, whether actual bias, or the apprehension of bias, must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more than just the conclusion reached by the Tribunal to support this claim.
Allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). No particulars of bias or apprehended bias are alleged. I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias. The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the applicant's claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872). Also, the application fails the test of establishing bad faith as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20] because the allegations of bad faith are not clearly alleged, no attempt at proof is offered and no personal fault or absence of honesty on the part of the decision maker has been made out. Beyond mere assertion (implication) the applicant has put no evidence whatsoever to support such a claim, nor on the material before me can I see that the Tribunal acted with bias or that it can be seen, as against the relevant test, that the decision was affected by the apprehension of bias or that the Tribunal acted in bad faith. From the material that has been put before me, including the tape of the hearing (and I must again emphasise that after listening to the tape the Tribunal's account of what occurred at the hearing remains unchallenged) it is clear that the applicant's claims were fully explored at the hearing, the applicant was given an opportunity to put forward explanations and, simply, for reasons that it gave, the Tribunal did not believe the applicant. The applicant’s assertions are clearly insufficient to establish bias on the part of the Tribunal as the decision maker “par excellance”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. It is the proper function of the Tribunal to make findings of fact, including findings on credibility. In the case before me this is what the Tribunal has done. This complaint does not succeed.
The applicant's first ground of complaint as Ms. Kaur-Bains submits in written submissions could also be said to assert a failure on the part of the Tribunal to take into account relevant considerations. The applicant was unable to provide any particularity to this complaint if indeed this is the complaint that is being put forward. The Tribunal's record reveals that the Tribunal did look at all of the applicant's claims as put by the applicant, dealt with them, and gave reasons. This ground also would not succeed.
Ground two deals with country information relied on by the Tribunal. There are a number of different aspects to this broad complaint:
1)That the Tribunal used the country information against the applicant and failed to consider the “whole facts” of the application. In one sense this can be linked to the complaint of bias and bad faith as a set out in ground one and must be rejected for the same reasons as set out above. To the extent however that this is a complaint that the Tribunal did not adequately weigh up the circumstances presented by the applicant, as against the country information, then it is of course a matter for the Tribunal to weigh up the evidence and also, as set out above, make relevant findings of fact. On what is before me the findings made by the Tribunal, including findings on credibility, were open to it and the Tribunal gives reasons for these findings. I cannot see that this complaint would succeed.
2)The second aspect of these this complaint is that the Tribunal did not fully disclose the full detail of the country information that it used to assess the applicant's application. I note the respondent's written submissions at paragraph 15 and following as they relate to the application and the extent of s.422B of the Migration Act 1958 (“the Act”). I agree that this section does apply to this case as the applicant made his application to the Tribunal well after the addition of this section to the Act which made the matters set out in Division 4 Part 7 of the Act the exhaustive statement as to the matters that it deals with. I agree that there appears to be differing lines of authority as to the exact meaning of “matters that it deals with”, but accept the preferred line of authority is as set out by Branson J. in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] SCA 1493 at [12]. In that case Her Honour followed the views earlier expressed by Lindgren and Hely JJ. I also note that this approach to s.422B was also followed in SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 and in SBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260 at [19]. In this regard therefore, s.424A sets out the Tribunal's obligations in relation to giving the applicant an opportunity to deal with certain information. In this light, there were two sets of country information upon which the Tribunal relied in making its decision. The first was country information available to the Tribunal, and to which the Tribunal referred in its decision record at CB 61.5, reproduced at CB 67 to CB 75. For the purposes of s.424A, this information clearly comes within the exception provided in s.424A(3)(a) as it is not information that is about the applicant or another person: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264. In relation to this information, and consistent with applying s.422B, there was no obligation on the Tribunal to give the applicant written notice of the country information it referred to. The second set of country information relied on by the Tribunal is that country information which was also before the Minister's delegate. The Tribunal's decision record at CB 61.4 reveals that at the hearing it conducted with the applicant it referred the applicant to that independent country information. The Tribunal found that this information was in similar terms to the other independent information to which it had also referred in the making of this decision. To the extent however that the Tribunal makes reference to the delegate’s decision in this regard and particularly in light of the fact that the applicant appear unrepresented before me, I did consider whether, by referring to the delegate’s decision in this way, and in light of the Full Court decisions in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 such information was required to be put to the applicant in writing pursuant to s.424A(1) given that it was not information provided to the Tribunal such that it could be said to fall within s.424A(3)(b). I take the view however that in terms of the substance of the information on which the Tribunal's decision relied it is clear that it was relying on actual country information which, with reference to the list of information at CB 39, falls within the exemptions set out in s.424A(3)(a) of the Act for the same reasons as the other set of independent country information relied on by the Tribunal. In terms of the nature of and substance of this information, it was the information itself and not any interpretation by the delegate in relation to the applicant, on which the Tribunal relied in making its decision.
3)That even if s.422B were said not to be the exhaustive statement as understood by the authorities above, then similarly I cannot see any breach of procedural fairness in relation to how the Tribunal dealt with this independent country information. The Tribunal’s unchallenged decision record shows, as set out in paragraph 14 of the respondent's written submissions, that the Tribunal did clearly discuss the relevant parts of the available country information with the applicant at the hearing that it conducted with him. Further, the applicant was given the opportunity to provide a response to this information. I adopt paragraph 14 of the respondent's written submissions for the purposes of my Judgement as an exposition of how the Tribunal dealt with this aspect:
“14.The Tribunal's reasons, at page 61 last paragraph, discloses that:
a.The Tribunal referred the applicant to the delegate’s decision and the reasons for that decision, which were sent to him. The Tribunal referred the applicant to independent country information set out in those reasons, which stated that Falun Gong practitioners have not generally been the subject of persecution in Hong Kong. The Tribunal noted the applicant stated he had read that;
b.The Tribunal also noted during the hearing it told the applicant that independent country information it had consulted, referring to the period up until 2003, also confirm that Falun Gong practitioners were not persecuted in the period the applicant claims to have been persecuted. The Tribunal read out to the applicant a statement from the Economist Intelligence Unit Country Briefing on Hong Kong 2003, “Hong Kong Risk: Political stability risk”. Economist Intelligence Unit Risk Wire, 23 July that the Hong Kong government has resisted pressure from local allies of Beijing to outlaw the mediation group Falun Gong in the Hong Kong special administrative region and that although China outlaw the group in 1999, it remains legal in Hong Kong.
c. The Tribunal told the applicant during the hearing that the independent information caused the Tribunal to think that the applicant was not telling the truth about what had happened to him in Hong Kong. The Tribunal noted the applicant said during the hearing that the Hong Kong papers said there was a crackdown in China in 1998 and referred the Tribunal to what had happened in Tiananmen Square. The Tribunal told the applicant during the hearing that it was considering what had happened to the applicant in Hong Kong and according to the independent country information it had consulted there was not a crackdown on Falun Gong in Hong Kong in the same way as there had been elsewhere in China. The applicant stated that he did not want to argue about it and that the Tribunal's information may not be correct, and that the applicant had suffered. The applicant also told the Tribunal that the Tribunal has the official information that Hong Kong has reverted to China and it is controlled remotely by China; because they fear Falun Gong practitioners may be involved in subversive activities. They harassed practitioners like the applicant in Hong Kong.”

On the material before me therefore, I cannot see that the applicant's complaints reveal jurisdictional error on the part of the Tribunal, nor can I otherwise see any such error in the Tribunal's decision. The applicant was given the opportunity to fully support and argue his claims at a hearing before the Tribunal and the Tribunal, for reasons that it gave, made findings which were open to it on the material available before it. Simply, it did not believe the applicant’s claims. I can see no error in what the Tribunal has done. This application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 13 June 2006