SZHPS v Minister for Immigration
[2006] FMCA 1548
•5 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1548 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Minister for Immigration v Jia (2001) 205 CLR 507 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SAAP v Minister for Immigration [2005] HCA 24 SCAA v Minister for Immigration [2002] FCA 668 SZECI v Minister for Immigration [2005] FCA 1201 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEZI v Minister for Immigration [2005] FCA 1195 Tin Shwe v Minister for Immigration [2000] FCA 988 VFAB v Minister for Immigration (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 Yit v Minister for Immigration [2000] FCA 885 |
| Applicant: | SZHPS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3381 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Ms F Kerr of Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 18 November 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3381 of 2005
| SZHPS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These 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 Act”) filed in the Sydney Registry of the Federal Magistrates Court on 18 November 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 12 October 2005 and handed down on 1 November 2005, affirming a decision of the delegate of the first respondent made on 24 June 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHPS”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Robert Wilson, reference N05/51753, contains the following background information. The applicant, who claims to be a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 2 April 2005. On 28 April 2005, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 24 June 2005, a delegate of the Minister refused to grant the protection visa and on 21 July 2005, the applicant sought review by the Tribunal of the delegate’s decision.(Court Book (“CB”) 62)
The protection visa application indicates that the applicant is a married man from Tianjin, PRC. He was self-employed as a fruit shop owner from 1980 to 2005. The applicant has had eight years of education.
He speaks, reads and writes Mandarin. The applicant states that he became a Falun Gong member in 1997. When the PRC authorities banned Falun Gong, the previous head of the Hong Qiao Qu (area) was detained and the applicant was recommended by other members to take his place. He promoted Falun Gong and his branch grew in strength. This annoyed the local government and his home was searched twice, once in December 2001. He held meetings with members and communicated with other members within the PRC and also overseas. In December 2004, the Police came to search his home.
Some documents were found and the Police took away his computer for investigation. He was also taken to the Police Station for questioning. He suffered persecution from the PRC authorities at that time and when he was released thereafter. He stated that he has been unable to enjoy ‘freedom and basic human rights since then’ and was ‘supervised’. He stated that he suffered physical and mental torture from the Chinese authorities because he was a member of Falun Gong. He came to Australia for protection.(CB 64-65)
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s reasons was contained in the first respondent’s written submissions prepared by Ms Clegg and I adopt paragraph 10 of those submissions:
10. The Tribunal:
a) noted that the applicant had been informed about the hearing by the Tribunal writing to his mailing address;
b) noted that the Tribunal had decided to proceed under s 426A of the Act to make the decision without taking any further steps to notify the applicant;
c) noted that it is for the applicant to satisfy the Tribunal that all of the statutory elements are made out, and that the applicant must make out his own case;
d) noted that the applicant’s claims could not be tested due to the applicant not appearing at the hearing;
e) noted that it had nothing but the information contained in the written material upon which to make a determination;
f) noted that there was nothing to support the applicant’s claims other than unsubstantiated assertions;
g) found that it was unable to be satisfied that the applicant was a Falun Gong practitioner; and
h) concluded that it was not satisfied that the applicant faces a real chance of persecution in China should he return to China either now or in the foreseeable future.
Application for Review of the Tribunal’s Decision
On 18 November 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.The Tribunal did not consider my application though all the procedure.
2.The Tribunal had bias against me and refuses to consider my application in the right way, did not refer to independent information, and did not consider all the information provided by me in wrong.
3.The Tribunal’s satisfaction that I am not a refugee was not based on a reasonable foundation.(copied without alteration or correction)
On 5 April 2006, the applicant filed an amended application which contained the following grounds:
1) The Tribunal fell into jurisdictional error
Particulars
a) The Tribunal did not provide me adequate particulars of the independent information;
b) The Tribunal had bias towards me and refused to consider my application in full details.
c) The Tribunal’s satisfaction that I am not a refugee was not based on a reasonable foundation. The Tribunal’s decision was made based on the Tribunal’s assumption, not evidence.
Particulars
a) The Tribunal failed to carry out its statutory duty.
b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. (Migration Act 1958 S.424A.) The Tribunal also was required to explain why the information was relevant and provide the applicant opportunity to comment upon it.
c) The above particulars had to be provided in writing SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS (2005) HCA 24 (18 May 2001) per McHugh J at 68.
Submissions
The applicant appeared self-represented with the aid of a Mandarin interpreter. The applicant confirmed that he had filed an amended application and relied on that document, but had not prepared any written submissions. When the applicant was invited to address the Court the interpreter indicated to me that the applicant had a document written in Mandarin which appeared to be submissions. I said through the interpreter that the applicant should read the document so that it could be interpreted to the Court in English.
The oral submissions appear to replicate the material contained in the amended application.
Ms Clegg, appearing for the respondents, provided written submissions to the Court in response to the amended application and the grounds raised therein. This was supported by oral submissions which addressed the issues raised by the applicant in his oral submissions to the Court.
The first ground of review alleges that the Tribunal fell into jurisdictional error. However, the particulars in support of this ground do not appear to be directed to the facts of the case and can be appropriately described as formulaic. The particulars raise separate grounds of review in themselves. The first particular alleges that the Tribunal failed to provide the applicant with particulars of independent information. However, the Tribunal did not rely upon any independent country information in the making of its decision. Further, and in any event, the provisions of such information would have been excluded by the exception contained in s.424A(3)(b) of the Act. This particular raises a wide range of circumstances which could occur and would require different approaches. As there is no reference in the Tribunal decision to independent country information, nor is there any suggestion that any of that information was relied on, this eliminates the need to examine alternatives which could arise depending upon the nature of the material, its contents and how it was used. I am satisfied that this ground of review cannot be sustained.
The second particular alleges bias on the part of the Tribunal. This is made as a bland statement without particulars of the nature or circumstances of the alleged bias. Actual bias can be said to exist when a decision-maker had a pre-existing state of mind which disables him from undertaking or rendering him unwilling to undertake a proper evaluation of the materials relevant to the decision to be made: Minister for Immigration v Jia (2001) 205 CLR 507 (“Jia”) at [35] and [72]. Actual bias may be said to exist when the decision-maker is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented: Jia at [71] - [72].
A party alleging actual bias on a decision-maker’s part carries a heavy onus and must be clearly proved: Jia at 532. The existence of actual bias may be inferred from facts or circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration [2000] FCA 988 at [27]; Yit v Minister for Immigration [2000] FCA 885 at [36]. It should be noted that no attempt has been made by the applicant to file the Tribunal transcript or recording tape in this Court in support of his claim.
A case of actual bias is seldom made out by reference solely to the reasons or decision. No inference of bias or prejudice can be drawn from the mere fact of a Tribunal decision which is adverse to an applicant: VFAB v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].
The applicant has not identified any issue or material that he says he attempted to put before the Tribunal, which was ignored or not considered. The applicant put no new material before the Tribunal in his application for review, nor did he attend its hearing to answer questions that the Tribunal member may have had.
An apprehension of bias will exist when a fair-minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would have apprehended that the Tribunal member may not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294. I am not satisfied that this ground of review can be sustained.
The third particular alleges that the Tribunal decision was based upon an unfounded assumption. This claim is made in the absence of any further particulars and the Tribunal decision was not based on any assumptions. The decision was made on the basis that the applicant had failed to make out his claim. The Tribunal only had before it facts as alleged by the applicant and contained in his original visa application. This was the only material upon which the Tribunal could proceed. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary. It is for the applicant to make out his case: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. In this case, the applicant had the opportunity to attend the Tribunal hearing and provide additional information. As I have said above, he failed to do so and also made no effort to contact the Tribunal to explain his absence or seek an adjournment of the hearing.(CB 65) The decision of the Tribunal was made on the basis that the applicant had failed to make out his own claims.
In what appears to be the second ground of review, the applicant complains that the Tribunal failed to carry out its statutory duty by breaching s.424A(1) of the Act, by failing to provide him with particulars of information which would be the reason for its decision. That was clearly is not the basis of the Tribunal decision which was cast entirely in terms of a lack of satisfaction. The Tribunal noted it was unable to test the claims or credibility of the applicant because he failed to attend the hearing. Consequently, the Tribunal was not satisfied that the applicant fulfilled the criteria for a protection visa.Ms Clegg submits that in every sense it was the absence of information of any specificity or persuasive character that can be said to be the reason for its decision: SZECI v Minister for Immigration [2005] FCA 1201 at [24] per Allsop J. It is further submitted that the Tribunal did not rely on “information” in order to arrive at the decision: SZEZI v Minister for Immigration [2005] FCA 1195; SZEEU v Minister for Immigration [2006] FCAFC 2. Thus, the Tribunal did not breach s.424A of the Act and therefore did not commit jurisdictional error.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
Ms Clegg, for the respondents, assisted the Court with written submissions which were supplemented by oral submissions in respect of the amended application. It was apparent that the applicant did not comprehend the significance of the contents of his amended application or the operation of these proceedings. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists to suggest the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 December 2006
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