SZHNE v Minister for Immigration

Case •

[2006] FMCA 176

•

1 February 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHNE v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 176
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of People’s Republic of China claiming well-founded fear of persecution because of practice of Falun Gong and membership of Shouters Underground Church – allegation of bias – where applicant relied on adverse decision as only evidence of bias – credibility – Tribunal rejected applicant’s claims on basis of lack of credibility – finding of fact – no error of law – no jurisdictional error.
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth), s.483A
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa & Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
SBBS & Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
SBAU & Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076
Applicant: SZHNE
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3232 of 2005
Judgment of: Scarlett  FM
Hearing date: 1 February 2006
Date of Last Submission: 1 February 2006
Delivered at: Sydney
Delivered on: 1 February 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondent: Ms Watson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3232 of 2005

SZHNE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 16th September 2005 after a hearing that took place that same day.  The Refugee Review Tribunal handed down its decision on 11th October 2005.  The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs made on


    8th April 2005 not to grant a protection visa to the applicant.

  2. The applicant is a citizen of the People's Republic of China who arrived in Australia on 20th December 2004.  He applied for a protection (Class XA) visa on 1st February 2005 claiming that he left China because he was persecuted by government authorities.  He claimed to have been interrogated and detained after the police found Falun Gong materials in his home.

  3. After the delegate refused his application for a protection visa the applicant sought a review of that decision by the Refugee Review Tribunal.  He attended a hearing of the Tribunal on 16th September 2005 where he gave oral evidence.

  4. He provided the Tribunal with a statutory declaration in which he claimed that:

    a)From late 2002 he began to study the Bible and assisted members of an illegal religious organisation known as the Shouters; and

    b)In September 2003 he participated in a secret gathering which was raided by the police from the Public Security Bureau.  He was detained and tortured but released upon payment of a large sum of money.  He also paid a large sum of money to come to Australia.

  5. The Tribunal was satisfied that the applicant was a citizen of China but was not satisfied about his evidence relating to the practice of Falun Gong.  Looking at the evidence as a whole the Tribunal was satisfied that the applicant had fabricated the claims of being involved in Falun Gong activities and the Tribunal noted that that reflected adversely on his credibility.

  6. The Tribunal did not accept from the applicant's inability to give details about his religion or religious activities as well as the fact that he provided contradictory information that the applicant was ever involved with any key member of an illegal religious organisation such as the Shouters, or in any religious activities at all.

  7. The Tribunal did not accept the claims that the applicant had set out in his statutory declaration.  The Tribunal did not accept that the applicant was detained and tortured or that he was released upon payment of a large sum of money, or that he continued to be secretly involved in the Shouters organisation.

  8. The Tribunal at page 69 of the Court book said:

    In essence, the tribunal does not accept that the applicant had suffered any of the claimed harm.  Looking at the evidence as a whole, the Tribunal is satisfied that the applicant has fabricated the claims that he was involved in religious activities. 


    The fabrication of the claims reflects adversely on the credibility of the applicant.

  9. In his amended application the applicant sets out the following grounds for review:

    1)The Tribunal was biased against him and misunderstood his claims.

    2)The Tribunal's adverse conclusions about the applicant's credibility were not based on evidence but on the Tribunal member's assumption.

    3)The Tribunal did not consider his application according to the provisions of the Migration Act.

    4)The Tribunal failed to provide evidence to support its decision.

    5)The Tribunal did not apply the correct procedure in refusing his application.

  10. Turning first of all to the allegation of bias it is quite clear that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.  This allegation is not to be lightly made and must be clearly alleged and proved. 

  11. The Full Court of the Federal Court has considered the question of bias and bad faith in the decision SBBS & Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. In this case the applicant in his oral submissions to the Court in reply to several questions from the Bench has taken the view that the Tribunal was biased against him because the Tribunal did not accept his claims. It should be clear that the mere fact of an adverse finding even on the basis of credibility is not sufficient to establish bad faith or bias. As the Full Court said in SBBS (supra) at [44]:

    The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had 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.

  12. Their Honours went on to say at  [47]:

    The Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclosed how the Tribunal approached its task.

  13. The Full Court quoted with approval the decision of Mansfield J in SBAU & Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 particularly at [32]. In my view the Full Court's decision is SBBS is one that this Court should follow.  I am not satisfied that there is any evidence of bias at all and that claim must fail.

  14. Turning to the applicant's second ground relating to the Tribunal's adverse finding as to his credibility, it is trite law that findings as to credibility are findings of fact and not findings of law and are the function of the primary decision maker. As long as there is evidence upon which it is open to make those findings of fact then the findings are not open to judicial review.  I refer to the decision of McHugh J in Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [423].

  15. It is clear to me that the Tribunal rejected the applicant's claims on the basis that the Tribunal did not find the applicant's evidence to be credible.  The Tribunal does not need to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  In this case the Tribunal relied on the applicant's evidence about his claimed religious activities and his evidence about his involvement with Falun gong to form the view that he was not a credible witness.  This ground clearly fails.

  16. The third ground is one where the applicant asserts based on legal advice he said that he was given that the Tribunal did not follow the requirements of the Migration Act 1958. The applicant does not provide any detail of any particular section or sections of the Act which he alleges have been breached or ignored and in my reading of the decision I can find no breach or failure to comply with any section of the Migration Act 1958.  I am mindful of the fact that the applicant is not legally represented before me today and I believe it is appropriate for me to make my own investigation as to whether there is a failure to comply with the Act in particular or a jurisdictional error in general. The third ground fails.

  17. The fourth ground I have already covered but it is a ground that says that the Tribunal failed to provide evidence to support its decision. As I said, the Tribunal does not need to have rebutting evidence and that has been made quite clear in the well known decision of Randhawa & Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 at [451].

  18. In this case, however, it was the applicant's evidence and the Tribunal's adverse view of the inadequacy of that evidence that allowed the Tribunal to form the adverse views of the applicant's credibility.  In my view there was evidence before the Tribunal which allowed the Tribunal to reach those conclusions.  Ground 4 must fail.

  19. The applicant has claimed in grounds 1 and 5 that the Tribunal misunderstood his claims.  There is no evidence of that.  Whilst it maybe no more than a challenge to the factual findings of the Tribunal, in which case the Court does not conduct a merits review.  If it is a ground alleging another form of jurisdictional error such as a failure to consider relevant matters or a failure to apply a correct test, there is just no evidence of that.

  20. It appears to me from my reading of the tribunal's decision that the Tribunal member understood the applicant's claims completely.  The applicant's assertion also in ground 5 that the Tribunal did not follow a correct procedure is not supported by any evidence and indeed the applicant was not able to set out any procedural error.  The applicant was given notice of the hearing. He attended the hearing. He gave oral evidence with the assistance of an interpreter.  He submitted a statutory declaration relating to factual matters and the Tribunal considered that statutory declaration. 

  21. The Tribunal rejected the matters in the statutory declaration and gave reasons for doing so.  The Tribunal rejected his oral evidence and gave reasons for doing so.  There is no evidence that I can see that shows that the Tribunal's decision was incorrect in any procedural aspect. It must follow that no jurisdictional error has been made out.  There is no evidence of bias and the decision of the Tribunal must clearly be a privative clause decision.  Accordingly, the applications must be dismissed with costs.

  22. This is a situation where I see no justification to depart from the usual practice that a successful party should be entitled to an order for costs. The amount of $3,800.00 which is sought is well within the scale provided by the Federal Magistrates Court rules and I believe that it is an appropriate exercise of the Court's discretion to make an order for costs no.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  6 February 2006

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