SZHLU v Minister for Immigration
[2006] FMCA 1401
•11 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLU v MINISTER FOR IMMIGRATION | [2006] FMCA 1401 |
| MIGRATION – Review of decision of Refugee Review Tribunal – applicant from PRC alleging role in political activity is his province – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 424(A)(1), 424(A)(3), 425, s483A Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 Craig v State of South Australia (1995) 184 CLR 163 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Muin v Refugee Review Tribunal [2002] 190 ALR 601 NAOC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1424 NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 Livesy v New South Wales Bar Association (1983) 151 CLR 288 Antoun v Queen [2006] HCA 2 |
| Applicant: | SZHLU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | SYG3117 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 11 September 2006 |
| Date of last submission: | 11 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Nesbitt |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Application for judicial review is dismissed.
That the Applicant pay the First Respondent’s costs of and incidental to these proceedings fixed in the sum of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SGY3117 of 2005
| SZHLU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Before me this afternoon is an application for judicial review filed on behalf of the applicant. The proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth). The application before the Court was filed on 26 October 2006. There is an amended application filed on 22 March 2006 which the applicant relies.
The nature of the proceedings under s.39B, particularly as they have been explained by the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia (2003)195 ALR 24 are such that in order for the application to succeed I must be satisfied that the decision of the Tribunal was vitiated by jurisdictional error. As I say, that concept has been explained in that case and also more generally and other than in the specific context of proceedings under the Migration Act in High Court determinations such as Craig v State of South Australia (1995) 184 CLR 163. If I am not satisfied that the decision is vitiated with jurisdictional error, the decision is a privative clause decision and consequently final and conclusive, and not amenable to review.
The application before the Refugee Review Tribunal was in respect of the applicant’s claims to be entitled to a protection visa. The claim for the protection visa had been rejected by the delegate of the Minister. The reasons for decision of the Tribunal make it clear that the applicant is reliant for his claim for refugee status under the Refugees Convention and Refugees Protocol to circumstances relating to political activity in which he engaged in the period 2003/2004 and what might be described as political or social agitation in which he had participated relating to what were contended were unreasonable infringements on the working life and of the land held by the applicant in common with other farmers at the hands of governmental officials and other persons associated with the construction of a factory on the land held by farmers such as the applicant and his father.
I do not propose to set out in any detail the evidence of the Tribunal, but I have scrutinised carefully all of the factual contentions discussed by the Tribunal in its determination.
Essentially though, the applicant contended that in his hometown, which was Nang Pheng village in Fuqing county Fujian province he worked with his parents as a farmer. He contended that in early 2003 the Daschund automobile accessories factory had decided to extend its business and planned to occupy some of the land in his village.
He said the local farmers had objected to that, but the officials in the village had been bribed by the factory owners. He said he participated in some agitation against the acquisition of the land for that purpose. He said he had participated specifically in the form of providing organisational assistance in enlisting people to assist in protests associated with the acquisition of the land.
He said that in April of 2003 construction workers employed by the factory had come to the village and occupied village land and demolished properties. He said that in response to that his father and the leading group of the farmers had gathered together hundreds of local farmers, that as a consequence of that activity the construction workers had had to stop their work on the development for approximately a month. He said the protests had been peaceful, but that in April of 2003 police had come to the village and forced them to leave the construction site.
He said that those farmers, of whom he was one, had been forced to confess their mistakes, they had to undertake not to organise any further protests and there had been some monetary penalties involved. He alleged that he and his father had been subject to unfair treatment after his release from prison. That was in 2003. In 2004 he said that officials from the Nang Pheng village had started to collect what were described as public grains from the local farmers. Because farmers in his area had been affected by drought they had not had sufficient grain to give the Government and that the government had told them to pay extra taxes in lieu of the grain.
He said he had started to protest again, but he had been advised by unnamed persons that he should desist from such activities. Notwithstanding that, he organised in October 2004 three large demonstrations in his village. At the end of October 2004 he had been advised by a good friend that he had been, I am using the vernacular here, noticed or come to the attention of the authorities as a key person associated with the anti-Government movements and he had been urged to leave home. He with the help of friends had been able to obtain a visa to travel to Australia and he arrived in Australia in December 2004.
He says that since his arrival in Australia he had learned that other persons who had joined in the protests had been arrested by the Chinese authorities and that his father had been interrogated by them on a number of occasions. He said that if he was obliged to return to China he would be subject to persecution on account of his political agitation, as he described it.
The applicant failed before the Refugee Review Tribunal essentially because the Tribunal did not find the key aspects of his claim for entitlement to refugee status to be credible. The specific factual matters to which the Tribunal referred in finding that the claims were not credible were as follows.
Firstly, there was clearly some scepticism, to put it mildly, on the part of the Tribunal as to the applicant’s account as to the response of the Government to the various activities that he described in April of 2003. It is in this context that the Tribunal relied upon its evaluation of the country information to suggest that the Chinese Government would have been far less tolerant of the sort of protests which the applicant described as participating in and to some extent organising in 2003.
The Tribunal was also concerned about the lack of detail the applicant could provide in relation to certain aspects of the work associated with the extension to the factory which had led to the acquisition of land.
It was alleged there was some inconsistency and some vagueness associated with the descriptions of the number of people working on the project. It is said too by the Tribunal that there were inconsistencies associated with the applicant’s evidence before it as to whether or not he and his father had been forced to give up their land.
Concerning also to the Tribunal was the fact that whilst the applicant said that he had been obliged as a result of the 2003 activities to undertake not to organise any further protests, he, notwithstanding that, did so in October of 2004. The Tribunal found that difficult to accept, but also clearly was troubled in a creditworthiness sense with the applicant’s contention that he was able to remain without persecution or harassment in Nang Pheng village from the date of his organisation of the October 2004 protests to the date of his departure for China in November or December of 2004.
It is on account of its rejection of the creditworthiness of his account as to these matters that the Tribunal came to certain key factual determinations. It did not accept that he or his father were involved with other farmers in protesting to the building of an extension of the factory on their land in the village. It did not accept that he or they, “they” being a reference to he and his father, were detained, tortured or forced to promise not to organise any such protests. It did not accept that following his detention that he was harassed or forced to work on the extension to the factory without payment and did not accept that he was involved in subsequent agitation and organisational activities in 2004.
The Tribunal did not accept that the applicant was told by a friend who worked in the PSB that he had been classified as a key person suspected of organising the anti-Government movements.
The Tribunal also did not accept the applicant’s account as to information that had come his way in Australia as to the fate of friends and of his father in relation to interrogation and harassment by the PSB officials since his arrival in Australia.
It is on account of these matters that the Tribunal came to its ultimate factual conclusion that it was not satisfied that there was a real chance that if he returned to China now or in the reasonably foreseeable future he would be involved in anti-Government activities of any kind.
That being the case, he was not a person who had a well-founded fear of being persecuted for a Convention reason. It followed then that he was not a person to whom Australia owed obligations under the Refugees Convention and Refugees Protocol.
Another specific factual finding that was related to these was the finding of the Tribunal at CB 64, that the payment of public grains in the form of taxation was other than a law or an activity engaged in by the authorities which was appropriate and adapted to achieving a legitimate national objective. The Tribunal appears to have determined that the law was one of general application in the area and the hardship that was occasioned by it was on account of a drought in the relevant area rather than anything further.
It should be also noted that the Tribunal in finding that he did not have a well-founded fear of being persecuted for a Convention reason did not limit its consideration to his real or imputed political opinion, but also considered the possibility of his being a member of a particular social group and rejected that as well, or rejected the contention that he would be persecuted on account of his membership of such a social group, as for example, farmers or farmers involved in anti-government activities.
The findings as to credit and decisions as to whether or not to reject individual contentions made in support of applications and the measuring of accounts given in the written application before the Tribunal with the applicant’s evidence before the Tribunal and assessments as to whether evidence was vague or uncertain or internally inconsistent are of course functions for the Tribunal and not for this Court. This is not in any sense a merits review of the Tribunal’s determination. As I referred to at the commencement of these reasons, what is required is the identification of some way in which the Tribunal went about its task that gives rise or grounds a suggestion that the determination was infected with jurisdictional error.
As to the applicant’s contentions in that regard, I have only his amended application under the Act. He did not, as he was asked to do, file a written submission and was unable to explain to me why he did not, although I infer that without the opportunity of appropriate legal or other assistance he found that to be a task that was beyond his capabilities. So it is on account of the absence of those written submissions, apart from anything else, that I was concerned to give the applicant every opportunity before me to augment his submissions in any way he considered appropriate. Apart from providing him with invitations to make submissions as to such matters, I asked him specific questions addressed to certain aspects of his amended application in which I sought to give him the opportunity to flesh out or make explicable certain passages in his amended application.
Turning to the application itself, we find the usual grounds associated with jurisdictional error are put in a generalised way. It is said that there was an error of law in the Tribunal’s decision constituting a jurisdictional error and that there was procedural error in the Tribunal’s decision constituting an absence of natural justice. They are very general propositions and when we turn to the particularisation of those propositions we find, firstly, that the applicant relied upon the contention that there was a suggestion that in its reliance upon country information the Tribunal failed to comply with the provisions of s.424A of the Migration Act.
It is certainly the case that the Tribunal did rely upon country information in reaching its view or in failing to be satisfied that the account the applicant gave as to the reaction of the Chinese authorities to his anti-government and anti-commercial enterprise agitation in 2003 and 2004 was credible. In particular, the Tribunal referred to various aspects of the country information which is set out in the Court Book which the Tribunal took to be clearly suggestive of a far more repressive and severe reaction on the part of the Chinese authorities to the sort of activity which the applicant contended he had been involved in.
Section 424A(1) of the Migration Act provides:
Subject to sub-s.(3), the Tribunal must:
(a) give to the applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review;
(b) ensure, as far as reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
Section 424A(3) provides:
This section does not apply to information –
and then there are three circumstances that are set out. The first of these are set out in sub-paragraph (a) and provides that sub-s.(1) does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. That clearly comprehends the very country information or country information of the type which the Tribunal utilised in its considerations in this matter. That such information falls into that category is not a matter that is controversial in the existing state of the authorities. I refer in particular to the decisions that are referred to in the footnote at page 2 of the first respondent’s outline of submissions.
Next, it is contended by the applicant that the Tribunal should have informed him clearly and honestly of his actual concerns or pieces of the information that he believed to be negative if he had genuinely intended to make a fair decision on “my” application. It goes on:
Unfortunately, at any time before the presiding member reached his decision he has never informed me of his actual concerns or negative information clearly and honestly.
I have dealt with the country information. Despite being given an opportunity by me, the applicant was not able to identify any other information that fell into the sort of category that would require written notice to be given to him. To the extent that he is referring to the use that the Tribunal put the information to in terms of its process of reasoning or thought processes, that is not information in the sense in which the Full Court of the Federal Court have interpreted that expression in the context of s.424A.
As the Full Court of the Federal Court said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at 206:
“Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations.”
Reference is then made to three earlier decisions. It goes on:
“In this respect, it is relevant to recall the root of the word ‘information’, that of which one has been told or apprised or informed. The distinction can become fine.
There is reference to one of those earlier decisions. But the Full Court goes on:
“It is a distinction, nevertheless, to be maintained.”
To the extent that I can understand the contention that is made in paragraph 1(c) of the amended application, I do not regard that as information in respect of which the Presiding Member had an obligation to give written notice.
There are passages in sub-paragraph 1(c) of the amended application which gesture towards issues of bad faith or bias. To the extent that it raises those other matters, I will deal with it in the context of a further submission that is made as to bias later on in the amended application.
The next set of particulars provided in respect of the allegation of jurisdictional error is a suggestion in paragraph 2 that the Tribunal failed to comply with its obligations under s.425 of the Act.
Once again, there is a reference to a failure on the part of the Tribunal to provide what is called an genuine opportunity to give his oral evidence. Again, as far as I can understand that, that is a suggestion of bad faith or a suggestion of a lack of bona fides in the way the Tribunal dealt with the applicant and his claims. Perhaps also it is part of a submission as to bias and, again, I will come to that in a moment.
But to the extent that it refers specifically to s.425 of the Act, again the applicant was given an opportunity to describe the way in which he did not have an opportunity to give oral evidence or to comment on the issues in the review application and was unable to provide me with any such particulars. The Tribunal’s apparent compliance with the practices prescribed by the Act in terms of the giving of notice are referred to in footnote 3 at paragraph 3 of the first respondent’s outline of submissions and there is nothing put by the applicant and nothing apparent to me in my scrutiny of the way the Tribunal went about its task to suggest that it did other than comply with the statutory requirements in that regard.
I think the gravamen of the contention in paragraph 2 is that that is set out in sub-paragraph (c) where it is contended that as a matter of fact during the Tribunal’s hearing:
The Tribunal never ever genuinely and honestly intended to ensure me to understand his actual concerns or negative information which he has used as main reasons to refuse my application so that I have in fact lost my valuable opportunity to comment on those negative issues. In other words, my right entitled under the Act has in fact been ruined.
That is a generalised contention I think. Amongst other things it could be seem as a generalised contention as to a failure on the part of the Tribunal to accord the applicant procedural fairness. That issue is extensively discussed by the High Court of Australia in the case of Muin v Refugee Review Tribunal [2002] 190 ALR 601. But of course essential to any successful raising of such an issue in the context of decisions of the Tribunal is the need to identify some factual stratum which supports the submission that there has been a denial of procedural fairness.
As it was put by Hill J in NAOC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1424 at paragraph 16:
“What is important, and it appears in the judgments in Muin itself, is that in that case there was a factual substratum firstly that the Tribunal had not read the documents whether or not they had been sent to it, and secondly, the applicant had relied upon an assurance by the Tribunal that it read the documents and accordingly had not put further material before the Court.”
In NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118 there were no agreed facts and Hely J held at [14] that there was no evidence that the applicant was in any way misled by the communications from the Tribunal and dismissed the application. In that decision Hely J referred to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6:
“That an applicant must show how he relied to his disadvantage upon communications from the Tribunal before a Court can find that there was a denial of procedural fairness.”
As I say, in this particular case we have generalised assertions of the Tribunal behaving in a way in which it has failed to communicate in a genuine or a sufficiently clear way to the applicant so as to put him on notice of what it was was the case that he was actually meeting.
But apart from that generalised assertion, there is certainly nothing further being put by the applicant and as I scrutinise the Tribunal’s reasons I am unable to find that first and fundamental factual substratum which would warrant the Court taking further this particular submission.
On the contrary, as one reads the Tribunal’s decision at each stage of the discussion of the evidence the Tribunal apparently expresses its concerns to the applicant with a high degree of particularity and provides him with an opportunity to respond. The responses are taken into account. Often times the responses themselves of course form part of the factual material upon which the Tribunal has reached its conclusions that the claims for persecution are not credible. But I am unable to identify in the way the Tribunal went about its task any suggestion that it has behaved in a way so as to deprive the applicant of the opportunity of fairly meeting the contentions and the criticisms or, to use the applicant’s expression, the negative information with which the Tribunal was concerned.
To the extent that paragraph 2(c) deals with the Muin proposition,
I have dealt with it. I am unable to identify any jurisdictional error.
Latent in the way in which paragraph 2(c) is expressed may be, as I say, some contention that the Tribunal did not go about its task in a bona fide way; in other words, a contention as to bad faith. There are a number of judgments of single Judges of the Federal Court in which the principles applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review have been stated. They are set out fully in a decision of Mansfield J in SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 and from those cases the following principles emerge: firstly, 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 clearly proved. There is in the way in which the application of lack of bona fides is raised in the amended application, to the extent that it is raised – and I am really only doing this inferentially – a significant lack of clarity and a significant lack of particularity.
The cases also make it clear that the circumstances in which the Court will find an administrative decision-maker has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
The applicant, despite having an opportunity to do so, has not produced any transcript before me as to the conduct of the hearing. I have only the most generalised assertions as to the alleged ways in which the Tribunal conducted the hearing. I should indicate that there is, having carefully scrutinised the Tribunal’s reasons, no question, it seems to me, on the face of the reasons of any error of fact and law or any illogicality which often times can go some way at least towards the demonstration of bad faith.
In his judgment in the SBAU case Mansfield J says at [60] the following:
“The combination of factors to which I have referred includes the understating or ignoring of the claims of harassment and discrimination when the Tribunal must have been aware of them, its attribution of inherent unlikelihood to events, which on the contrary, in my view, are inherently likely, and its assertion that the legal system in Iran could not condone the wrongful conviction of a Sabian Mandean accused of assaulting a Muslim woman (and one who was the wife of a prominent local official) flying in the face of the country information recorded. I consider upon careful reflection that the Tribunal embarked upon its review with a mind fixed upon rejecting the claims. Even if the Tribunal accidentally overlooked the more specific claims of harassment and discrimination made by the applicants, both personally and through their migration agent, that indicates to me a degree of capriciousness in addressing the review, which together with the other factors I have mentioned points firmly toward it failing to endeavour in good faith to review the delegate’s decision. Its doubtful fact finding does not simply indicate possible legal or factual error.”
I have cited that passage in full so as there can be some apprehension of the sorts of issues which need to be clearly agitated for a Court to seriously entertain a submission of bad faith or lack of bona fides. As I have indicated on several occasions now, such matters were altogether absent from the contentions of the application and were not matters that arose upon my own scrutinising of the Tribunal’s reasons.
Finally, there is a contention that the Tribunal has made its decision with bias. That is set out in paragraph 3 of the applicant’s amended application.
“It is contended that the Tribunal denied most of my claims even without any substantial reasons or evidences. Secondly, the Tribunal’s decision was actually based on its poor understanding about the actual situation in China.”
As the High Court said in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], Gleeson CJ and Gummow J, and [127] Kirby J:
“The party asserting actual bias on the part of a decision-maker carries a heavy onus. The allegation must be distinctly made and clearly proved.”
As I read the applicant’s contentions, the only bias that could possibly be contended is that which is commonly described as apprehended bias or bias in the sense of a predisposition to reject the application.
The legal principles involved in an assessment of such a contention have been expressed by the High Court on very many occasions going back to the Livesy v New South Wales Bar Association (1983) 151 CLR 288 and up to and including decisions such as Antoun v Queen [2006] HCA 2. Again bearing in mind the fact that the contention is one that is a serious contention going to the way in which the Tribunal approached its task, one would expect to see more than the submission simply presented as an assertion. That, in effect, is all it is. There is no reference to any particular parts of the transcript or the way in which the Tribunal dealt with a specific issue raised by the applicant during the course of the hearing which is said to demonstrate or be indicative of a prejudgment of the issues or a determination not to deal with the issues on their merits. Really the applicant in respect of this particular submission just repeated a point he had said in answer to other inquiries by me, and that was, that he had not been given notice of the Tribunal’s reasons, or as he puts it in paragraph 3(a), the Tribunal’s reasons or evidences .
There appears again to have been a fulfilment by the Tribunal of the statutory requirements as to notice. I do not understand it could be seriously contended the applicant has not received the reasons for decision itself. After all, the application and amended application were filed in response to what it was said were the inaccuracies of the Tribunal’s reasons. I am very, very far from being satisfied that there is anything being demonstrated to be indicative of apprehended bias in the way in which the Tribunal went about its duties.
That being the case, I am not satisfied that any ground of jurisdictional error has been established. For that reason, the application will stand dismissed and I so order.
There is an application for costs. It seems to me costs should follow the event. The application has been wholly unsuccessful. The amount sought in respect of the costs, which if it were sought now in terms of the new regime formulated by the Rules which provides for fixed amounts in certain events, would be $5000. I am told that the amount of $3000 is the Minister’s representative’s calculation of costs on a party-party scale, which I assume means the amount sought if I were to refer the matter to a taxation pursuant to Order 62 of the Federal Court Rules. In any event, the amount sought is, in my view, a reasonable amount. There will be a further order that the applicant do pay the respondent’s costs of and incidental to these proceedings fixed in the sum of $3000.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms K Clarke
Date: 5 October 2006.
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