SZHPV v Minister for Immigration & Anor

[2006] FMCA 1239

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHPV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1239

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – where applicant did not attend Tribunal hearing – citizen of China claiming fear of persecution as a member of Falun Gong – allegation of bias – no evidence of bias – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474

NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005]FCA 1195

Applicant: SZHPV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3384 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 Applicant: Appeared in person

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3384 of 2005

SZHPV

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 signed on 28^th September and handed down on

   
   

   18^th October 2005.  The Tribunal affirmed a decision of the delegate of The Minister not to grant the applicant a protection visa.  The applicant is a citizen of the People's Republic of China who has been in Australia since 17^th March 2005.  On 26^th April 2005 he applied for a Protection (Class XA) visa but it was refused by a delegate of the Minister on

   
   

   10^th May 2005.  The applicant then sought a review by the Refugee Review Tribunal.

2. The applicant lodged an application for review at the registry of the Refugee Review Tribunal on 14^th June 2005.  He gave his residential address in Australia as a flat in a suburb of Sydney and did not provide any telephone or facsimile numbers.  The applicant indicated on the application that he did not have an advisor that he wished to have acting for him.  In section D of the form he nominated an address in Pitt Street, Sydney, as his mailing address and the address to which he wanted correspondence about his application to be sent.

3. The applicant submitted a typed statement in English with his application for review.  In that statement which occupies less than one A4 page, he set out that he was one of the members of Falun Gong and had been exercising Falun Gong for a long period.  He stated that the Chinese government declared Falun Gong to be an illegal organization in July 1999 but he continued to practice.  The applicant claimed to have been warned, detained and required to attend re-education classes.  He claimed that he was again arrested in August 2003 and detained for a month.

4. The Tribunal wrote to the applicant on 14^th June 2005 acknowledging receipt of his application and advising him that a member of the Tribunal, after looking at the information about his case, may invite him to attend the hearing.  The letter went on to say:

   A hearing is your opportunity to give the Tribunal evidence to support your application.  Evidence can include what you tell the member at the hearing, information or documents you give the Tribunal, information or documents you ask others to give the Tribunal.

   See Court book at page 48.  The Tribunal wrote to the applicant again on 24^th August 2005 informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.

5. The Tribunal invited the applicant to attend a hearing to give oral evidence and present arguments in support of his claims.  The letter informed the applicant that the hearing would take place at 9:00 am on Tuesday, 27^th September 2005.  A copy of the letter appears at pages 50 and 51 of the Court book.  Both of the letters were addressed to the applicant at his mailing address in Pitt Street, Sydney.  The applicant did not reply to the letter of invitation.  A copy of the Tribunal's check list, No Reply to Hearing Invitation appears at page 52 of the Court book, and a print-out of the Department's movement data base relating to the applicant appears at page 53.

6. The applicant did not attend the Tribunal hearing on

   
   

   27^th September 2005. The next day the Tribunal proceeded to exercise its power under s. 426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal's reasons for taking this step are set out on page 61 of the Court book:

   The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 27^th September 2005. 

   
   

   The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  No response was received.  The letter addressed to the applicant at the mailing address provided was not returned to the Tribunal unclaimed.  Neither the applicant, nor his advisor, made contact with the Tribunal about the hearing.  There is no telephone contact number available.  The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.

7. The Tribunal's findings and reasons are set out on pages 62 and 63 of the Court book.  The Tribunal accepted the applicant was a Chinese National based on copies of the relevant pages of his passport. 

   
   

   The Tribunal did not accept that the applicant was a Falun Gong practitioner or that he had been detained for that reason as he claimed.  The Tribunal's reason for not accepting the applicant's claims was due to the lack of detail provided by the applicant.  The Tribunal said at page 63 of the Court book:

   The information which the applicant has provided is general. 

   
   

   He has provided no details of those incidents in which he claims to have been involved.  On the basis of his assertions alone, the Tribunal is unable to be satisfied that he was a Falun Gong practitioner in China or that he has any association with Falun Gong in Australia.  The Tribunal cannot be satisfied that the applicant would seek to practice Falun Gong if he returned to China.  As the Tribunal cannot accept the applicant's claims on the facts, it cannot be satisfied that he has a well-founded fear of persecution for a Convention reason.

8. The Tribunal found that the applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa and affirmed the delegate's decision not to grant a protection visa.

   
   

   The applicant filed an application under s.39B of the Judiciary Act on 21^st November 2005.  He filed an amended application on 8^th March 2006.  He seeks orders quashing the decision of the Tribunal and remitting his application to the Tribunal, differently constituted, for reconsideration.

9. The applicant claims that the Tribunal made a finding which was biased.  He provides the following particulars that he claims: 

   1)  the only information before the Tribunal was that contained in the first respondent's file and that given to the Tribunal by the applicant. 

   2)  the Tribunal based its findings on the information, or lack of information, contained in the applicant's application for a visa.

   3) the Tribunal is not satisfied that I am a Falun Gong practitioner but actually I am a practitioner.

   4)  the Tribunal could not believe that I left China using my own passport without claiming that I had to bribe the airport, immigration or customs officials, that this happened on me. 

   5)  the Tribunal have no enough evidence to say that I will not be prosecuted by the Chinese government if I return to China. 

10. The applicant has not filed any written outline of submissions. 

    
    

    The solicitors for the first respondent, the Minister, filed an outline of submissions on 3^rd August 2006.  They submit that the particulars in the amended application do not support the applicant's allegations of bias.  They further submit that the information in the application for a protection visa was not part of the reasons of the Tribunal's findings that it could not be satisfied of the applicant's claims, relying on the decision of Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] and SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [14]. Thus they submit that the Tribunal's decision does not breach s.424A(1) of the Migration Act.

11. The first respondent submits that the applicant's second and third particulars do no more than seek impermissible merits review of the Tribunal's decision, as they do no more than complain that the Tribunal did not believe the applicant when he was telling the truth.  The first respondent submits that the applicant's final particular, complaining that the Tribunal did not have sufficient evidence to make its decision to affirm the delegate's decision to refuse a visa is "hardly a surprising outcome".

12. In order to refuse the visa, there is no obligation on the Tribunal to make a positive finding that the applicant was not owed protection obligations.  It did not require evidence to that effect.  If the Tribunal was not positively satisfied that the applicant faced a real chance of persecution for a Convention reason and was therefore owed protection obligations, it was bound to refuse the visa.  See SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [15] and [16], and NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [5].

13. The applicant attended Court and in oral submissions conceded that he had not attended the Tribunal hearing.  He said that he was late, having been caught in a traffic jam.  He was, he said, less than one hour late.  On that day, because of his language obstacle, he said that he could not find anyone who could speak for him and he gave up.  In answer to a question from the Bench as to why he claimed the Refugee Review Tribunal was biased, he said that he was persecuted in his home country but Australia was really good.  On again being asked why the Tribunal was biased he said that we practice Falun Gong and if he had to return to China they would not be able to practice Falun Gong.

14. He claimed that Australia had been really good to him and if he were forced to go back to China he would have some political trouble. 

    
    

    He said that he had been in Australia for a year and found that Australia was much better and gave as one example the availability of the Medicare card.  He said that there was nothing like that in China. 

    
    

    He said that he believed that Australia was a country that respected human rights and in his case he could see human rights being respected.  He thanked the Australian government very much for his reception in Australia.

15. He expressed a wish to merge into Australian society and expressed a desire to work hard and contribute to the society.  He did not feel that his human rights would be met if he were required to go back to China.  For the respondent Minister, Ms Quinn, solicitor, relied largely on her written submissions.  She pointed out that the applicant, in claiming bias, had done no more than reasserting his claims of persecution, and she submitted, correctly in my view, that there was no evidence that the applicant had attended the Refugee Review Tribunal at any time.

16. In considering the grounds raised by the applicant, I agree with the matters raised by the solicitor for the respondent in a detailed and well crafted outline of submissions. In my view, it is clear that the reason why the Tribunal was not satisfied that the applicant met the criterion under sub-s.36(2) was due to the paucity of evidence. I am of the view that there is no breach of s.424A of the Migration Act and, in my view, the Tribunal in affirming the decision of the delegate did no more than not be satisfied that the information provided by the applicant was sufficient. As Allsop J said in SZEZI v Minister for Immigration & Multicultural Affairs (supra) at [29]:

    It would be an inadequate and misleading statement to say that the information was the reason, or part of the reason, for the decision.  It was the lack of the request for further assistance and explanation that was the reason.

17. There is no breach of s.424A of the Migration Act. There is, for the reasons set out in SJSB v Minister for Immigration, which I have previously referred at paragraphs 15 and 16, and NAST v Minister for Immigration, which at paragraph 5 there is no obligation on the Tribunal to have positive evidence before it affirms a decision to refuse a visa.  Unless the Tribunal is satisfied that the applicant is a person to whom protection obligations are owed, the Tribunal has, under s. 65 of the Act, no option but to refuse the application. 

18. Turning to the applicant's grounds, there is no evidence of bias.  Bias is a serious allegation, alleging personal fault on the part of the decision‑maker.  It should not be lightly made and it must be strictly alleged and proved.  It is trite law that bias will rarely, if ever, be established based on nothing other than the reasons for decisions of a Tribunal.  Of the five particulars given by the applicant, the first particular, the only information before the Tribunal is that contained in the first respondent's file and that given to the Tribunal by the applicant.  The answer to that is that there was in effect no information given to the Tribunal by the applicant and it was the lack of information, rather than information, from which the Tribunal based its decision.

19. The second particular, that the Tribunal based its findings on the information, or lack of information, contained in the applicant's application for a visa is true as far as it goes.  The Tribunal based its findings on the lack of information.  Neither of those grounds show jurisdictional error.  They are statements of what appears to be the obvious.  The applicant's third and fourth grounds are, as the solicitor for the first respondent submits, no more than a re-assertion of the applicant's factual claims.  They are an attempt at a merits review or a challenge to the factual findings of the Tribunal.  It is trite law that a merits review is not permitted in judicial review proceedings.

20. As to the fifth ground that the Tribunal had no evidence.  I have already made it clear the Tribunal does not need evidence not to be satisfied. 

    
    

    It needs evidence in order to be satisfied.  As to the applicant's submissions today, the applicant said that he arrived late, but there is no evidence that he arrived at the Tribunal at all and, in my view, the applicant's statement that he gave up is, in my view, an indication of a fact that he never communicated with the Tribunal that he was late or seeking to attend.  There is no evidence the Tribunal had any knowledge of the applicant's attendance, or desire to attend, then or at any time prior to the handing down of the decision.

21. As to the applicant's other claims, I have no doubt that they are genuinely made but a desire to live and work in Australia and obtain a Medicare card are not, of course, reasons which would show any error on the part of the Tribunal.  The applicant is not legally represented. 

    
    

    I have read through the decision thoroughly and there is no arguable case for a jurisdictional error not articulated by the applicant. As there is no jurisdictional error, the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act.

22. Accordingly, writs of certiorari and mandamus and prohibition are not available.  The application must be dismissed.

23. There is an application for costs on behalf of the first respondent. 

    
    

    The amount sought is $2,200.00.  The applicant has been wholly unsuccessful in his claim and, in my view; this is a case where it is appropriate to make an order for costs in favour of the first respondent.  The first respondent seeks the sum of $2,200.00 which, to my mind, is an appropriate figure, indeed it is a modest figure.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  23 August 2006