SZHNV v Minister for Immigration

Case •

[2006] FMCA 1269

•

16 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHNV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1269
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 is a citizen of China claiming fear of persecution for reason of religion – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
Re RRT; ex parte H (2001) 179 ALR 425
SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 431
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 479
SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 225
Applicant: SZHNV
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3271 of 2005
Judgment of: Scarlett FM
Hearing date: 16 August 2006
Date of Last Submission: 16 August 2006
Delivered at: Sydney
Delivered on: 16 August 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Bromwich
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  2. The application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3271 of 2005

SZHNV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 22nd September and handed down on 13th October 2005. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.

  2. The applicant seeks orders by way of prohibition against the respondent Minister, certiorari to quash the Tribunal decision and mandamus to remit the application to the Tribunal for determination according to law.

  3. The applicant is a citizen of the People's Republic of China, who arrived in Australia on 25th December 2004.  On 8th February 2005 he applied for a protection (class XA) visa, which was refused on 3rd May.  On 8th June 2005 he applied for a review of that decision.

  4. The Tribunal wrote to the applicant and invited him to attend a hearing on Monday 12th September.  The applicant attended the hearing and gave oral evidence.  He told the Tribunal that he had left China because of religious persecution.  He claimed that he feared persecution if he were to return to China.

  5. He said that he was baptised when he was very young and actively participated in church activities.  He claims to have been a member of an underground church, which is a risky practice, as underground churches are not allowed to operate legally in China.  He said that he had been taken into custody and was held in solitary detention for 40 days and had been beaten up.  He said that he had suffered an injury to the back of his head and the Tribunal, at page 109 of the Court book, noted a scar on his head and noted that he claimed to suffer some loss of memory.

  6. The applicant eventually left China through Hong Kong on his own passport, arrived in Bali in Indonesia and, from there, travelled on to Australia on a Japanese passport.

  7. The Tribunal advised the applicant, again at page 109 of the Court book that it wanted to hear evidence which would convince the Tribunal that he was, indeed, a practising Christian.  Once that had been established, the Tribunal would then proceed to ascertain whether the applicant would be at risk of persecution on his return to China.

  8. The Tribunal set out details of the hearing at pages 109 to 111 of the Court book.  The Tribunal indicated that it asked the applicant to obtain written confirmation, if possible, of his attending a Chinese church in Merrylands, although the applicant said that this had not been interpreted to him at the hearing.  The applicant gave a different account of that exchange.

  9. The Tribunal put to the applicant that it had found his evidence lacking in plausibility and asked the applicant to respond to that.  The Tribunal questioned the applicant about the issue of his Chinese passport and visas and put matters to the applicant that had been noted by the delegate.  The Tribunal reported that the applicant offered no other plausible explanation.

  10. The findings of the Tribunal are set out at pages 111 and 112 of the Court book.  The Tribunal was satisfied that the applicant was a citizen of the People's Republic of China, but the Tribunal was not convinced that the applicant was a committed Christian or, if he was, a person of sufficient seniority in a Christian sect operating in a village in Fujian Province to be worthy of the attention of the police authorities.

  11. The Tribunal was not convinced on the basis of the evidence that the applicant had even a basic knowledge of the Christian fundamentals.  The Tribunal noted that parts of the applicant's account appeared to be at odds with his earlier claims, especially in relation to the fact the police came to his home and took him rather than his parents, who were alleged underground church leaders.

  12. The Tribunal stated that it had given the applicant the benefit of the doubt and accepted that he had been taken into custody and suffered a beating on one occasion which resulted in his head being split.  But the Tribunal did not accept that this occurred because the applicant was a Christian.

  13. The Tribunal referred to some independent country information about the arrests of underground Christians, and that is reported on page 112 of the Court book.

  14. The Tribunal noted the applicant's tardiness in attending a Chinese Christian church in Sydney, especially as he'd only done that after his initial visa application was rejected.  The upshot of it was that the Tribunal was not convinced that on the applicant's return to China using his valid passport that he would face persecution for his religious beliefs, if he was, as he claimed, a Christian.

  15. The Tribunal was of the belief from the applicant's behaviour that his beliefs were neither deep nor enduring.  For those reasons, the Tribunal was not convinced there was a real chance the applicant could face persecution for his religion on his return to China.  The Tribunal noted the applicant had confirmed that his primary desire was to leave China to better his prospects and was not satisfied the applicant met the definition of a refugee and affirmed the decision not to grant a protection visa.

  16. The applicant has sought review of the Tribunal decision by means of an application filed on 9th November 2005 and in an amended application filed on 23rd February 2006.

  17. The applicant has set out five grounds in support of the relief that he claims.  Those grounds in summary are:

    i)An allegation of bias by the Tribunal against him;

    ii)That it was wrong that the Tribunal concluded that he would not be of interest by the Chinese authorities because he could leave China on a valid passport, and he referred to other applicants who left China on their own passports being granted protection visas;

    iii)The applicant said that the Tribunal misunderstood his claims about his inability to identify whether or not his underground church was affiliated with the Protestant or Catholic traditions;

    iv)The Tribunal's decision, he said, was not based upon reasoning which provided a rational or logical foundation;

    v)He claimed the Tribunal failed to assess the chance of his persecution on his return to China based on his being a member of an underground church.

  18. The applicant has not filed any written submissions but attended Court and made oral submissions.  When asked why he considered that the Tribunal was biased,  he told the Court that he wanted to provide proof from his church in Sydney about his membership, but he said that the Tribunal did not give him any response.  As a result, he did not send in any written information to the Tribunal.

  19. Whilst the Tribunal said that the Tribunal had asked him to provide confirmation if possible, the applicant said that that comment had not been interpreted to him by the interpreter.

  20. The applicant told the Court that he did believe that the Tribunal had misunderstood his claims about whether his underground church was affiliated to the Catholic or Protestant beliefs.  He said that he had been born into an underground church family.

  21. The applicant told the Court that he challenged the Tribunal's findings that there were contradictions in his evidence, and he asserted that he had told the Tribunal that he had been arrested and beaten up and hit on the head, which caused a memory loss.  I note that the Tribunal has referred to that at page 109 of the Court book.

  22. In reply to matters raised by counsel for the first respondent, Mr Bromwich, at the hearing about the Tribunal's view that, at most, the applicant was a very low-level Christian, the applicant said that his involvement in Christianity may have been low level but that did not mean that he was not a Christian, and that even a person whose involvement with Christianity at low level could still be severely persecuted.  He reiterated that the Tribunal had not given the applicant any reply when he said he wanted to submit written proof and challenged the basis upon which the Tribunal formed the view that the applicant was not a Christian.

  23. In oral submissions it was put by counsel for the respondent that the applicant's claim of bias on the part of the Tribunal could be described as "reverse engineering" in that the applicant is claiming that because the Tribunal's decision was unfavourable to him that, therefore, the Tribunal had to be biased.

  24. It was put by counsel for the respondent, and I believe correctly, that ground 2 in the applicant's amended application raises no allegation of jurisdictional error and, indeed, freedom of movement on a valid Chinese passport was not a central issue in the Tribunal's decision.

  25. It was also submitted on behalf of the respondent in respect of ground 3 that the Tribunal did not appear to have misunderstood the applicant's claims at all.  The Tribunal, it is submitted, did, in fact, deal with the applicant's claims, but he just did not accept that the applicant's claims had been made out.

  26. As to ground 4, which alleged a lack of rationality on behalf of the Tribunal or reasoning which did not provide a rational or logical foundation, it is submitted that no lack of rationality is exhibited, and in my view that submission is correct.

  27. The fifth ground that was submitted was no more than a restating of the applicant's allegation that the Tribunal failed to consider the applicant's claims.

  28. Turning to the question of bias, in my view, there is no foundation for the allegation of bias.  I am referred by counsel for the respondent to the Full Court decision of SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 431 at [11], where the nature of a review is discussed by their Honours. So far as the question of bias is concerned, I'm mindful of the many decisions by the Full Court of the Federal Court on the question of bias, including SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 479. Their Honours set out a number of principles at 43 through to 48 relating to allegations of bias. It is a matter that is not to be lightly made. It must be clearly alleged and proved.

  29. Even if I were satisfied that error or irrationality had been made out, and I'm not, that, of itself, would not establish bias.  It is not sufficient to allege that because a Tribunal returned a decision unfavourable to the applicant's case that provides any proof of bias whatsoever.  In my view, it does not, and there is no evidence of bias.

  30. I am also referred to the test of apprehended bias, which was considered by the High Court In Re RRT; ex parte H (2001) 179 ALR 425. The High Court there acknowledged the need for an inquisitorial Tribunal to test evidence vigorously provided that it did not go as far as to overbear and intimidate the person who was giving evidence such that a fair-minded lay observer or properly informed lay person might readily infer that there is no evidence the witness can give which can change the decision makers view.

  31. In fairness, I would point out that the applicant did not at any time allege that he was overborne or intimidated.  His complaint is that he was not believed.

  32. There is, to my mind, no evidence the Tribunal failed to consider the substance of the applicant's claims or failed to understand the claims.

  33. I am of the view that is nothing to show that the Tribunal's decision was based upon irrational or illogical reasoning, and it is the situation that it is for an applicant to establish that he meets the criterion  under


    s.36(2) of the Migration Act, of his entitlement for a protection visa.

  34. Section 65 of the act makes it clear that if an applicant establishes that he or she meets the criteria for a visa, then the Minister, or, in this case, the Tribunal standing in the Minister's shoes, must grant the visa, but it follows that if it criteria are not met that the visa must be refused. 

  35. The Full Court of the Federal Court has made it clear in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 225 that it is not incumbent upon the Tribunal to provide evidence to justify a rejection of an applicant's claims. If the applicant does not provide evidence sufficient to satisfy the Tribunal, then the application for a visa must fail.

  36. I would comment also that ground 2, if it is a ground at all, appears to be no more than a challenge to the Tribunal's factual findings.  I'm not satisfied that the applicant has made out any jurisdictional error. 

  37. I am mindful of the fact that the applicant is not legally represented. 


    In these circumstances, it is incumbent upon a court to assess the decision under review independently of the applicant's claims in order to discern whether an arguable case can be made out for jurisdictional error.  But in this case I can discern no such arguable case.

  38. As there is no jurisdictional error established, I'm satisfied that the decision, therefore, is a privative clause decision, as defined in s.474(2) of the Migration Act.

  39. A privative clause decision is a decision that is not subject to prohibition, certiorari mandamus.  It follows, therefore, that the application must be dismissed.

  40. The applicant has been wholly unsuccessful in his claim. There is an application for costs on behalf of the first respondent Minister, and in my belief, there is no reason why I should not make an order for costs in favour of the Minister.

  41. The amount sought is $5,000.00, inclusive of counsels’ fees, which is an amount provided by the schedule to the Federal Magistrates Court Rules. In the circumstances, I consider it to be an appropriate amount. I propose to make a costs order in the first respondent’s favour in the sum of $5,000.00.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  24 August 2006

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