SZHNN v Minister for Immigration
[2007] FMCA 603
•10 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHNN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 603 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China – no Convention ground – bias – allegation of bias – irrationality and illogicality – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 361 NATC v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 52 MI53 of 2004 & Anor v Minister for Immigration [2006] FMCA 42 NACB v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 235 S20 of 2002 v Minister for Immigration (2003) 198 ALR 59 SZEEO v Minister for Immigration [2005] FMCA 1177 SZIBR v Minister for Immigration & Anor [2006] FMCA 1490 SZIED and Anor v Minister for Immigration & Anor [2006] FMCA 1459 SZDTZ v Minister for Immigration & Anor [2006] FMCA 1709 SZJLDv Minister for Immigration [2007] FMCA 252 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 W148/00A and Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | SZHNN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3906 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 April 2007 |
| Date of Last Submission: | 10 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr O'Donnell |
| 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 $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3906 of 2006
| SZHNN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 27th October 2006 and handed that decision down on 21st November in that year.
The Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant seeks a review of that decision in particular he seeks relief by way of writs of certiorari, prohibition and mandamus.
He asks the Court to quash the decision, to make an order prohibiting the Minister from acting on the delegate's decision, and to remit his application for a visa to the Tribunal for determination in accordance with law.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 17th March 2005, and applied for a protection visa on 27th April 2005. That application was refused, and the Applicant sought a review of the delegate's decision for the Refugee Review Tribunal.
The Tribunal originally invited the Applicant to attend the hearing on 21st September 2005. After that hearing, the Tribunal affirmed the delegate’s decision on 13th October 2005.
The Applicant then sought a review of that decision from the Federal Magistrates Court, and on 2nd June 2006 the Court made orders by consent quashing the Tribunal's decision and remitting the Applicant's application to the Tribunal for consideration and determination according to law.
The Tribunal wrote to the Applicant on 12th July 2006, putting certain information to him arising out of his application for a protection visa. The Tribunal also asked that the Applicant provided his original passport. That letter was expressed in the terms of s.424A of the Migration Act, and the Applicant replied to it on 1st August 2006.
The Tribunal wrote again to the Applicant inviting him to attend a hearing take place on 25th September 2006. That hearing was slightly more than a year after the earlier Tribunal hearing.
The Applicant attended that hearing and gave oral evidence with the assistance of an interpreter. On 28th September the Tribunal again wrote to the Applicant in another letter under the provisions of s.424A of the Migration Act. That letter referred to information on the Department's file, and evidence given by the Applicant to the Tribunal hearing. The Applicant replied to that letter on 24th October 2006.
The Tribunal handed down its decision on 21st November 2006, and a copy of that decision can be found at pages 114 through to 128 of the Court Book. In the decision the Tribunal sets out the provisions of ss.91R and 91S of the Act insofar as they apply to applications of this nature, and sets out the four key elements to the Convention definition of "refugee".
The decision sets out the evidence before the Tribunal, which included the claims in the protection visa application, the evidence to the previous Tribunal hearing, and the evidence before the Tribunal at the hearing on 25th September 2006. The two s.424A letters and their replies are also set out.
The Tribunal considered the Applicant's claims about difficulties arising from his employment, particularly claims that he had been persuaded to engage in corrupt activities. That led to the Applicant's attempt to distance themselves from corrupt people without success, and the Applicant claimed that in July 2004 he was accused of forgery. Later in 2004 the Applicant suffered further difficulties in his life in that he was investigated, and in fact the police searched his home and took him away, interrogation for more than 10 hours. During this time he claims to have been tortured by the police and threatened with gaol. He claims that his former associates would not let him distance himself from them, but in fact attempted to have him dismissed from his employment and as a result he fled to Australia.
The Tribunal's findings and reasons can be found at pages 124 to 128 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal was satisfied that the Applicant was a citizen of China for the purposes of the Refugees Convention. The Tribunal was not satisfied that the Applicant's claims regarding his previous employment were truthful, and refers to the applicant's response to a letter under s.424A of the Migration Act.
The Tribunal found that it did not regard the Applicant as a reliable witness. It set out on page 124 through to 126 reasons why the Tribunal formed this unfavourable view about the reliability of his evidence.
The Tribunal did not accept that the Applicant had been persecuted, or that he was unable to leave his employment. The Tribunal criticised his evidence as having been very general, and found difficulty to identify precisely how his claims were consistent with Convention grounds.
The Tribunal did not accept as credible the Applicant's claim that because of his attitude towards environmental protection, that on his return to China he would be subject to serious harm amounting to persecution, because people were able to avoid paying fines by bribing senior staff.
The Tribunal went on to consider the Applicant's more general claims in regard to China's lack of human rights, specifically freedom of speech, and the Tribunal considered whether those claims indicated that the Applicant held a political opinion which would place him at risk of persecution.
The Tribunal was not, however, satisfied that the Applicant had experienced any difficulties from China because of his actual or imputed political opinions. The Tribunal was not satisfied on the evidence before it that the Applicant, as a member of the Communist Party or otherwise, would engage in activities, or express or manifest any political opinion which could lead to his persecution.
In short, the Tribunal was not satisfied that the Applicant had a well founded fear of serious harm amounting to persecution for Convention reasons, and found that he did not satisfy the criterion set out in sub‑section 36(2) of the Migration Act for a protection visa.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) Visa.
The Application for judicial review
The Applicant commenced proceedings for judicial review by filing an application and an affidavit in this Court on 28th December 2006. In his amended application filed on 26th March 2007, the Applicant set out three grounds, which are somewhat confusingly numbered 1, 2 and 1.
The first ground is that the Tribunal failed to consider his application for a protection visa according to s.91R of the Migration Act because of the Tribunal's bias against him. He claimed that the decision from the Tribunal was not based on irrational and logical foundation.
The second ground is that the Tribunal failed to carry out its statutory duty, and failed to notify him of the reason or part of the reasons for affirming the decision. He was not given an opportunity to comment upon the reasons.
The third ground, which is in effect the second ground, is that the Tribunal failed to carry out its statutory duty by failure to comply with s.424A of The Migration Act.
The Applicant made brief oral submissions to the Court in which he said that if he were to return to China he would be questioned and persecuted, and he cannot go back. He asked the Court to consider his case.
The grounds of the application contain an allegation that the Tribunal failed to consider the application for a visa according to s.91R of the Migration Act because of the Tribunal's bias. In my view, the Tribunal was aware of the requirements of s.91R of the Act, and in fact set out an explanation as to what is meant by persecution by referring to s.91R of the Act.
As to the claim of bias, counsel for the Respondent Minister,
Mr O'Donnell, correctly points out that the claim of bias is un‑particularised and that an allegation of bias places a heavy onus and should be particularised. He refers to the case of Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531.
I should make it clear that the Court takes allegations of bias very seriously. In this case there is no evidence of bias. It is regrettably all too common that allegations of bias are made based on nothing but an adverse decision. Obviously that does not prove bias. It is a serious allegation because it is an allegation of personal fault on the part of the decision maker, which should not be lightly made and it must be clearly alleged and proved.
The Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 361 pointed out that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme, and this is especially so where all that the applicant relies upon is the written reasons for the decision under review. I refer to the SBBS (supra) decision of Tamberlin, Mansfield and Jacobson JJ at [48]. In this case there is no evidence of bias. There is no particularisation of bias, it is just a bland statement.
The bulk of the amended application refers to an allegation of the failure to comply with the requirements of s.424A of the Migration Act by not providing to the Applicant particulars of information that would be the reason, or part of the reason, for affirming the delegate's decision and given him an opportunity to comment on it.
This does not sit well with the fact that on two occasions, one before the hearing and the other shortly after the hearing, the Tribunal wrote to the Applicant under the provision of s.424A of the Migration Act, putting information to him and seeking his comments. In each case, the Applicant replied to that letter and provided his comments.
I am unable to discern any failure to comply with s.424A of the Migration Act.
The Applicant's ground 1 also alleges that the decision from the Refugee Review Tribunal was not based on a rational and a logical foundation. The question of irrationality and illogicality has been dealt with in many cases. Lack of logic per se does not indicate jurisdictional error. There have been numerous cases where applicants have submitted that the Tribunal's decision is irrational or illogical, but the Full Court of the Federal Court has held that want of logic does not of itself constitute an error of law. (See NATC v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 52, MI53 of 2004 & Anor v Minister for Immigration [2006] FMCA 42).
In NACB v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30], the Full Court of the Federal Court held that there was nothing in the remarks of the High Court in S20 of 2002 v Minister for Immigration (2003) 198 ALR 59, that would warrant a departure from the earlier line of the decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdiction of law.
See also SZEEO v Minister for Immigration [2005] FMCA 1177 at [13] and [14]. Also, SZIBR v Minister for Immigration & Anor [2006] FMCA 1490; SZIED and Anor v Minister for Immigration & Anor [2006] FMCA 1459; SZDTZ v Minister for Immigration & Anor [2006] FMCA 1709; and SZJLDv Minister for Immigration [2007] FMCA 252.
In any event the application in his submission has not pointed out or particularised any irrationality or illogicality, even if that were a ground for review. I am satisfied that that ground of review has not been made out.
I am indebted to counsel for the Minister for pointing out an issue which may be perceived to have arisen, and submitting, in my view correctly, that it is not an issue leaning to jurisdictional error. The submission is clearly and succinctly put in paragraph 19 of counsel's submissions, and I propose to adopt it and read it onto the record.
The Tribunal found that the applicant's claimed poor relations with his employer could have been the result of is disappointment with the adequacy of his compensation for participating in the corrupt activities and his irritation for being blamed for those activities.
It is true that was not in terms an issue before the delegate. See SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 especially at [43] to [44], where Gleeson CJ, Kirby, Hayne, Callon and Haydon JJ.
However, the general issue of the Applicant's involvement in corruption was an issue in the delegate's decision. (See Court Book 45.7). In any case, the Tribunal did not decide against the Applicant on the basis of this finding. It found against him on the basis that the evidence did not support the conclusion that either of his former employers and associates, or the Chinese authorities, had any adverse interest in him or ongoing desire to harm him. Since the issue was not one of the: ‘determinative issues arising in relation to the decision under review’ (See SZBEL at [44]), there was no jurisdictional error.
In my view, counsel's submission on that point more than adequately sets out the correct position of law. What this gets down to is that the reason why the Tribunal affirmed the decision of the delegate is that the Tribunal had formed an adverse view on the Applicant's credibility. The Tribunal found the Applicant to be an unreliable witness. The Tribunal set out reasons at pages 124 and 125, 126 of the Court Book, as to why it took this adverse view of the credibility of the Applicant's evidence.
Credibility, or assessments of credibility of evidence are clearly within the jurisdiction of the Tribunal. The administrative decision maker. It is well established by cases such as Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 67, and also W148/00A and Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at 64 and 65.
A finding on the credibility of an applicant is a factual finding. It is inappropriate for the Court to interfere with a factual finding on judicial review. The Tribunal has set out the reasons as to why it found the Applicant to be an unreliable witness. That finding, adverse to the Applicant's credibility, was one that was clearly open to the Tribunal to make. There is no jurisdictional error.
The fact is that there is no jurisdictional error that the Applicant has made out, and my reading of the decision and the supporting documents, bearing in mind that the Applicant is not legally represented, does not enable me to discern any arguable case of jurisdictional error.
I am satisfied that there is no jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Under sub-s.(1) of that Act, a privative clause decision is final and conclusive, and is not subject to certiorari, prohibition or mandamus.
It follows that the application must be dismissed. I have previously made an order changing the title of the First Respondent Minister to Minister for Immigration & Citizenship. There is an application for costs on behalf of the First Respondent Minister in the sum of $4,000.00. It is an appropriate application, and the amount sought is well within the scale. I propose to make that order.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 20 April 2007
0
13
2