SZHPY v Minister for Immigration

Case •

[2006] FMCA 1273

•

18 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHPY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1273
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister no to grant a protection visa – applicant is a citizen of China claiming fear of persecution as a Falun Gong practitioner – credibility – allegation of bias – no evidence of bias – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 424, 424A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 referred to
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 distinguished
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed
Applicant: SZHPY
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3391 of 2005
Judgment of: Scarlett FM
Hearing date: 18 August 2006
Date of Last Submission: 18 August 2006
Delivered at: Sydney
Delivered on: 18 August 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Lloyd
Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

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

  2. The Refugee Review Tribunal is joined as Second Respondent to the application.

  3. The application is dismissed.

  4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3391 of 2005

SZHPY

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 the Refugee Review Tribunal that was signed on 29th September and handed down on


    30th October 2005.  The Tribunal affirmed the decision of a Delegate of the Minister not to grant a protection visa to the applicant.  The applicant seeks orders for writs of prohibition, certiorari and mandamus.

  2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 8th March 2005.  She applied for a protection (class XA) visa on 19th April but it was refused on 7th June 2005.  The applicant applied for a review of that decision on 11th July 2005.  The Tribunal invited the applicant to attend a hearing on 29th September 2005.  On 19th September the Tribunal received the applicant’s completed response to hearing invitation where she indicated that she wished to attend the hearing and would required a Mandarin interpreter.

  3. The applicant attended the hearing on 29th September and gave evidence with the assistance of a Mandarin interpreter.  She claims to have been a Falun Gong practitioner since 1997 who had been detained for 10 days and tortured whilst in detention.  She said that she had paid extra money for a passport and had obtained a visa through a friend.

  4. The Tribunal member asked the applicant about her protection visa application, saying that the Tribunal had received many other applications in the same format and that the Tribunal thought that the applicant had gone to an office in China Town to have the application prepared.  The applicant denied that allegation saying that a friend had prepared the application for her.

  5. The Tribunal asked the applicant about her practice of Falun Gong in Australia.  The Tribunal also asked the applicant about Falun Gong, including the exercises.  The applicant was not able to demonstrate them.  The Tribunal says at page 62 of the Court Book:

    I put to the applicant that I had difficulty accepting that her claims are true and I explained why.  The applicant reiterated that she is a Falun Gong practitioner and said that she hoped that she would be granted a protection visa. 

  6. The Tribunal’s finding and reasons are set out on pages 64 to 66 of the Court Book.  The Tribunal accepted that the applicant was a national of the People’s Republic of China although the applicant had not brought her passport to the hearing. Nevertheless, the applicant confirmed that the personal details in the copy of her passport on the departmental file were correct.

  7. The Tribunal did not accept that the applicant was, or ever had been a Falun Gong practitioner.  The Tribunal set out a number of reasons for this view, including:

    In relation to this the applicant was unable to answer the most basic questions about Falun Gong.  She was unable to demonstrate that she had any knowledge about Falun Gong.

  8. See page 65 of the Court Book.  The Tribunal did not accept that the applicant practises Falun Gong in Australia or that she practised Falun Gong in China.  The Tribunal did not, therefore, accept that the applicant was detained or otherwise mistreated for that reason. 


    The Tribunal was not satisfied that the applicant would be persecuted as a Falun Gong practitioner if she returned to China.

  9. As the applicant had not claimed to fear persecution for any other reason and no other reason was suggested on the evidence, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason. The Tribunal was not satisfied that the applicant satisfied the criterion set out in sub-s.36(2) of the Migration Act for a protection visa and affirmed the decision not to grant a protection visa.

  10. The applicant applied to this Court under s.39B of the Judiciary Act on 21st November 2005.  By her amended application filed on 28th March 2006, the applicant has set out two grounds for review:

    (1) The Tribunal failed to carry out its statutory duty.

    (2) The Tribunal did not believe that I am a member of Falun Gong because of the Tribunal’s bias against me.  The Tribunal believed wrongly that my application was from an agent, not my own claims.

  11. The claim of breach of statutory duty alleges a breach of s.424A of the Migration Act and the applicant quotes passages from SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. Although the citation as quoted wrongly described the Minister’s title and the person who drafted the amended application appears to believe that the High Court handed down the decision on 18th May 2001.

  12. This may, however, have been an error in translation as the applicant told the Court that she did not get someone to prepare the amended application for her, she prepared it and just got a friend to translate it.  The references are to the judgments of McHugh J at paragraph 68 and 77 and Hayne J at 180 and 208.

  13. The applicant also refers to Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 at [70]. The applicant has not filed any written submissions. The Minister’s solicitors filed a written outline of submissions on 14th August 2006.  They submit as follows:

    (a) The case before the Tribunal turns solely on the applicant’s credibility.

    (b) There is no basis for any finding of bias or reasonable apprehension of bias

    (c)  It is not a basis for a finding of bias for the sole reason that the Tribunal did not believe the applicant.

    (d) Whilst it is claimed that the Tribunal had no evidence the Tribunal did have evidence about the applicant’s inability to answer many fairly basic questions about Falun Gong.

  14. The first respondent submits that the application should be dismissed with costs and that the Refugee Review Tribunal should be joined as second respondent to the application (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (supra)). 


    Counsel for the first respondent, Mr Lloyd, told the Court that it appeared that his instructors has not received a copy of the amended application filed on 28th March.  It is for that reason that the written submissions were prepared in answer to the original application and not in specific answer to the amended application of 8th March.

  15. As I mentioned, the applicant, who attended Court today, did not prepare a written outline of submissions and I heard oral submissions from the applicant herself and from Mr Lloyd for the first respondent.  I asked the applicant about her amended application and it was then that she told the Court that she had prepared the application herself and all that had been done was that a friend translated the amended application into English for her.

  16. With respect, that appears to be rather improbable as the amended application, with its references both to SAAP v Minister for Immigration and Minister for Immigration v Al Shamry (supra) is in a format that is well known to the Court, and, as I told the applicant, I had been reading through the documents of another matter to be heard next week and the amended application in that document was virtually identical to the applicant’s version.  The applicant maintained her story.

  17. I asked the applicant about the references to an alleged breach of s.424A of the Migration Act and how they were relevant to the application under review before the Court today. The applicant was not able to reply and in particular when I asked her for some clarification as to why she had claimed that the Tribunal had based its findings on the information, or lack of information, contained in the applicant’s application for a visa, and was therefore required by s.424A to give particulars of that information, the applicant was not able to reply to that at all.

  18. I asked the applicant to explain why it was that she believed that the Tribunal did not believe her because the Tribunal member was biased against her.  The applicant replied that the Tribunal was biased because the Tribunal did not believe her.   She went on to tell the Court that she just hoped that she does not have to go back to China because she would be persecuted. 

  19. She asked for “some more time for a visa.”  When asked by the Court how much time she was asking for she replied, “I just hope that I don’t have to return to China.” 

  20. In oral submissions on behalf of the first respondent Minister, Mr Lloyd of counsel complimented the applicant on her impressive knowledge of Australia legal principles. He pointed out they seemed not to apply to the applicant’s case where the Tribunal’s finding turned entirely on the applicant’s perceived lack of credibility.  He reiterated that there was no evidence of bias, either actual or apprehended and that a finding of bias based on nothing more than disbelief by the Tribunal of the applicant’s claim was not appropriate.

  21. He submitted further, and I believe correctly, that it was open to the Tribunal to find that the applicant was not a Falun Gong practitioner based on the evidence before the Tribunal.  In reply the applicant asked the Court to repeat the submissions of counsel for the first respondent.  I provided an oral summary of those submissions and extended an invitation to counsel to provide any correction that was deemed necessary.  No correction was required.

  22. The Tribunal decision is based on the Tribunal’s strong doubts about the credibility of the applicant.  The Tribunal did not believe that the applicant is a Falun Gong practitioner based on the paucity of knowledge that the applicant showed about her practice.  As the Tribunal member said in the final paragraph of page 65 of the  Court Book:

    Given that the applicant clearly knows nothing about Falun Gong I do not accept that she practises Falun Gong in Australia or that she practised in China.

  23. There is no breach of s.424A of the Migration Act but the Tribunal did not rely upon any information of which was necessary to provide written particulars and to explain why that information was relevant and provide the applicant with an opportunity to comment upon it.

  24. The Tribunal most clearly did not rely either wholly or in part on information in the applicant’s visa application in order affirm the Delegate’s decision. Whilst the Tribunal did refer to the copy of the applicant’s passport on the departmental file and asked the applicant to confirm that those passport details related to her, this was only done because the applicant had not brought her passport with her as she was asked to do in the letter from the Tribunal asking her to attend the hearing under the provisions of s.425 of the Migration Act. 

  25. That letter was dated 1st September 2005 and a copy of it appears on pages 47 and 48 of the Court Book.  In any event, the Tribunal used that information not to affirm the decision of the Delegate but to make a finding in favour of the applicant that she was a national of the People’s Republic of China. 

  26. The reference by the applicant to the decision in Minister for Immigration & Multicultural Affairs v Al Shamry is entirely irrelevant and the case has no bearing on the matter before me. 

  27. Turning now to the claim of bias, the applicant claims that the Tribunal was biased because the Tribunal did not believe her.  When asked to clarify that she said the Tribunal did not believe her because the Tribunal is biased.  That is a circular argument which is quite unimpressive.  The question of bias, bad faith and lack of bona fides on the part of a decision maker have been looked at in some detail by the Full Court of the  Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361. Their Honours say at [44]:

    The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme.  This is especially so where all that the applicant relies upon is the written reasons for the decision under review.

  28. In my view the applicant had not demonstrated any jurisdictional error.  I am mindful of the fact that she is not legally represented, notwithstanding the exposition on the law contained in her amended application which she claims is her own.  I find that explanation eminently improbable.  I have read through the decision in order to ascertain that there is no arguable case of any jurisdictional error that the applicant has not brought to my attention.

  29. There is no evidence of any jurisdictional error and the amended application, which the applicant claims to be an original document, does not suggest that there is any other jurisdictional error. As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined under sub-s.474(2) of the Migration Act.

  30. Under sub-s.474(1) where a decision is a privative clause decision the Court may not make orders in the way of certiorari and mandamus or prohibition.  The application will be dismissed.

  31. The applicant has been wholly unsuccessful and the first respondent Minister seeks and order for costs.  Costs are sought in the amount of $4,500.00 inclusive of barristers’ fees.  The applicant claims that that amount is excessive and points out that she has spent a lot of money coming from China.  That may well be so.  That fact is that as I said the applicant’s case has not succeeded and indeed it was wholly without merit.

  32. It was certainly a case where the unsuccessful applicant should receive an order for costs in favour of the successful respondent.  The amount of $4,500.00, inclusive of counsel’s fees is within the range envisaged by the Federal Magistrates  Court scale and to my mind, taking into account the fact that there have been two previous appearances before the Registrar and one mention before this  Court, I consider that it is appropriate.  I intend to make an order for costs in that amount.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  25 August 2006

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