SZHNR v Minister for Immigration
[2006] FMCA 1268
•10 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHNR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1268 |
| 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 – applicants are citizens of China claiming fear of persecution for reason of religion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 474 |
| Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Yo Han Chung v University of Sydney [2002] FCA 186 |
| First Applicant: | SZHNR |
| Second Applicant: | SZHNY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3265 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 August 2006 |
| Date of Last Submission: | 10 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2006 |
REPRESENTATION
| The Applicants: | First Applicant in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $3,600.00 and I allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3265 of 2005
| SZHNR |
First Applicant
| SZHNY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 21st September 2005 and handed down on
13th October 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection (class XA) visa to the applicants.
Background
The applicants are citizens of the People's Republic of China who arrived in Australia on 6th January 2005. They are husband and wife. On 18th February 2005 they applied for protection visas and, when their applications were refused on 10th May 2005, sought a review by the Refugee Review Tribunal.
Review by Refugee Review Tribunal
The applicants lodged their application for review on 10th June 2005. They were represented by a migration agent who prepared a detailed seven page written submission for them. The Tribunal invited the applicants to attend a hearing and give evidence on 21st September 2005. The first applicant, the husband, attended the hearing and gave evidence. The wife did not give oral evidence. Her claim is that of a family member of the first applicant. The first applicant claims a fear of persecution because of his religious belief which is a Convention ground.
He stated that he believed that he would be arrested and sentenced to many years imprisonment on his return to China due to his religious belief. He referred to a Human Rights report by the United States Department of State which referred to restrictions on religious practice imposed by the Chinese government, particularly those that are unregistered and therefore unauthorised. The report included references to members of the clergy being arrested and detained. The applicants referred in their submission to their inability to relocate within China in order to avoid persecution.
The Tribunal member asked the first applicant a number of questions about his beliefs and about his experiences in China. The applicant told the Tribunal on two occasions that he was nervous at the hearing (see Court book at page 83). The Tribunal's findings and reasons are set out on pages 83 to 89 of the Court book. The Tribunal accepted that both applicants are citizens of The People's Republic of China, having seen photocopies of their passports.
The Tribunal did not, however, accept the first applicant, the husband, as a witness of truth. The Tribunal set out the reasons why he had made those findings in sections of the decision, one headed ”The Applicant’s Alleged Religious Practice”, and the other one headed “The Applicant’s Credibility”. The Tribunal referred to the questions that he asked of the first applicant about his work with the church and about the depth of his religious belief and about the things which were discussed in bible study groups. The Tribunal questioned the applicant on issues of this nature in some detail.
The Tribunal again noted at page 86 of the Court book that the applicant claimed that he was nervous at the Tribunal hearing and could not provide further written material in support of his Tribunal claim. The Tribunal said at page 87:
That said, I am satisfied that if the applicant had participated in the religious activities in the PRC that he claimed, he would have been able to demonstrate that he had significantly more knowledge about the practice of Christianity than I have recorded above.
The Tribunal went on to find:
Therefore I do not accept the applicant had the capacity to lead Bible study groups as he at least initially claimed. Further, given the lack of detail about the practice and principles of Christianity he was able to provide, I am not satisfied the applicant is a Christian convert as he claimed. Based on his lack of knowledge, I am not even satisfied the applicant is even a practicing Christian in the PRC. I am therefore satisfied the applicant fabricated his claims to have converted to Christianity in the PRC. Thus I am satisfied his claims, including to have converted to or practiced Christianity in the PRC, are false. Thus I also do not accept the applicant even participated in any Christian church howsoever described in the PRC.
In the section entitled “The Applicant's Credibility” the Tribunal at page 87 of the Court book did not accept that the applicant may even be imputed with any adverse political and/or religious opinion arising from his alleged religious practice in the PRC. The Tribunal went on to find that it did not accept that the applicant caused his wife to have converted to Christianity.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in the People's Republic of China and was not therefore a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Accordingly, the Tribunal held that the applicant did not satisfy the criterion set out in sub-s. 36(2)(a) of the Act for a protection visa and the Tribunal affirmed the decision not to grant protection visas to the applicants.
Application to the Court
The applicant has sought judicial review of the Tribunal's decision by means of an application filed on 9th November 2005.
In an amended application filed on 13th March 2006, the applicant claims Constitutional writs of certiorari and mandamus and prohibition. He sets out three grounds upon which he relies. First, the Tribunal constructively failed to exercise jurisdiction in circumstances where it made manifestly unreasonable credibility findings by giving no weight to matters of great importance. Second, the applicant was denied procedural fairness and natural justice in circumstances where from the conduct of the Tribunal, including what was said and done at the hearing, and from the terms of the reasons it appears the decision was affected by apprehended bias. Third, the Tribunal committed a jurisdictional error of law by failing to afford the applicant procedural fairness.
The first applicant attended Court and made oral submissions. He told the Court that he believed that the Tribunal was biased because the Tribunal did not look at his materials at all. He raised certain factual issues and described the Tribunal member as being very fussy and asked him to recite various passages from the Bible. He took issue with the fact that the Tribunal told him he answered a question in an ambiguous way but said the answer to the question was simple due to the translation into English.
He alleged that he was cut off from expanding on answers and was told that he could only answer questions by saying ‘yes’ or ‘no’. He also complained that his passport and that of his wife have been lost by the Department of Immigration & Multicultural Affairs. He reiterated his claim of bias by the Tribunal. He pointed out that the loss of passports would create great difficulties for himself and his wife. He said that if he and his wife were forced to return to China within 28 days, how would they be able to get their passports back.
He said that the Department told him that they could get new passports but he asked, not unreasonably, how could he tell the Chinese authorities that the passports had been mislaid when he and his wife applied for refugee status. He said that there was no way for them to retreat at this stage. He reiterated his claim that the Department had lost his passport. He said that he had spoken to his migration agent about the loss of the passports but had not been able to secure them. The applicant also reiterated his claims of fear of persecution if he were to return to China and reiterated that the factual issues raised were 100 percent true.
The solicitors for the first respondent Minister filed a written outline of submissions on 2nd August 2006. They submit that the Tribunal's decision is not vitiated by any jurisdictional error and is therefore a privative clause decision under the provisions of s. 474 of the Migration Act. The respondents submit that in respect of the three grounds raised by the applicant, the first ground does no more than attempt to seek merits review which is not open in judicial review.
The applicant, they submit, is seeking to challenge the factual findings but the decision was based on the Tribunal's dissatisfaction with the applicant's oral evidence.
The respondent also submits that the Tribunal's finding of adverse credibility was reasonably open to the Tribunal due to the evidence given by the applicant at the hearing which they describe as unconvincing. A finding about a witness's credibility is properly the function of the decision-maker and generally not susceptible to judicial review. I am referred to the decision of McHugh J in Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at [67].
Turning to the applicant's claim of procedural fairness and natural justice having been denied to him, the respondents rely on s. 422B of the Migration Act. It is s. 422B and it sets out what is regarded as the Natural Justice Hearing Rule. Insofar as the second and third grounds of the application can be construed as asserting a breach of s. 425 of the Act, the respondents accept that an invitation to attend a Tribunal hearing should be real and meaningful but refer to the decision of Gray J in Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 to the effect of breach of s. 425 of the Act could only be made out with sufficient evidence.
They also submit that there is nothing on the face of the decision to indicate that the Tribunal had a mind not open to persuasion, referring to Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [531] and [532]. The claim for the denial of procedural fairness and natural justice they also submit cannot succeed due to a lack of evidence. The applicant said that he had tapes available but did not produce any transcript of the hearing which would support his claim that his answers were so restricted that he was not able to give proper evidence.
The situation as I see it is that, in respect of the applicant's first ground, the applicant takes issue with the Tribunal's unfavourable findings as to his credibility based on matters which relate purely to the evidence which he gave. He reasserts the truthfulness of his evidence. The fact is that a credibility finding is a finding that is a matter for the administrative decision-maker. On a judicial review it is not open to the Court to reconsider the evidence afresh and then make its own decision. Provided that there is evidence upon which a Tribunal can make a factual finding, then the Court will not and cannot interfere.
A credibility finding, or a finding as to lack of credibility, is as the authorities make quite clear, a finding on a factual finding.
As to the claim of apprehended bias, the applicant has alleged bias but has not, to my mind, provided evidence of it. Bias is a serious allegation in that it alleges personal fault on the part of the decision-maker. It must not be made lightly. It must be strictly alleged and strictly proved. It is only in a rare and extreme case that a finding of bias would be made purely on the basis of the written reasons for decision by the administrative decision-maker. There is no evidence before me of bias, actual or apprehended bias.
Similarly, the allegation of failure to afford procedural fairness does not stand. The applicant has claimed that he did not receive a fair hearing where his answers were interrupted by the Tribunal. He has claimed that the Tribunal unreasonably insisted that he keep his answers short. There is no evidence of that. There is no transcript. There is nothing other than the applicant's bald assertion. That ground two must fail.
I am mindful of the fact that the applicants are not legally represented. I am mindful of the decision in Yo Han Chung v University of Sydney [2002] FCA 186 and the responsibility on a Court where an applicant is not legally represented to make its own examination of the material in order to ascertain whether there is an arguable case in respect of a jurisdictional error that has not been raised by the applicant. On my reading of the decision I am unable to discern any such indication.
I am satisfied that there is no jurisdictional error and as such the Tribunal's decision is a privative clause decision as defined by s.474(2) of the Migration Act and accordingly it is not open to the Court to issue writs of certiorari, prohibition or mandamus.
I am concerned about the applicant's allegation that the Department of Immigration & Multicultural Affairs has lost or mislaid both applicants’ passports. The applicants have had a migration agent acting for them and the first applicant has told the Court that he has made inquiries through the migration agent but the agent has been unable to locate the passports. There is no evidence before the Court that the Minister's Department has mislaid the passports but there is a claim by the first applicant that that is the case. If that is the fact, and I must stress the word "if" because there is no proof, only an assertion, then it is a matter of serious concern.
It raises a particular concern if applicants for a protection visa lose their passports through some action or inaction by the Minister's Department, bearing in mind that applicants for protection visas are applying for refugee status and claiming to be refugees from a country which has issued the passport. If there is substance to the applicant's allegations that the passports have been mislaid in the Department, then in my view the Minister should take immediate appropriate steps to see that these documents are located.
I accept that passports are not owned by an individual citizen but remain the property of the State that issues them, nevertheless, people who are absent from their own country are required to have passports and if they have somehow been deprived of their passports they can find themselves in a most difficult situation indeed. In my view, inquiries need to be made and steps need to be taken in order that these missing passports can be located. I would ask the Minister to regard this as a matter of some seriousness. It is not, of course, a matter that is a subject of jurisdictional error. It will not affect the outcome of these proceedings. As there is no jurisdictional error, the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicants have been wholly unsuccessful and I see no reason why the usual order in respect of costs should not be made.
The amount of $3,600.00 which is sought is, to my mind, an appropriate figure and I propose to make an order in that regard. I will, however, make an order for time to pay.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 23 August 2006
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