SZHQD v Minister for Immigration
[2006] FMCA 937
•16 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHQD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 937 |
| 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 – claim of fear of persecution because of religious belief – whether there was a breach of Migration Act 1958 (Cth) s.424A – whether the Tribunal breached Migration Act 1958 s.425 – no evidence of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 425A |
| Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 723 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZFKD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 49 SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 684 SZFKF v Minister for Immigration & Multicultural Affairs [2005] FMCA 1152 SZFIH v Minister for Immigration & Anor [2005] FMCA 1847 |
| Applicant: | SZHQD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3396 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 June 2006 |
| Date of Last Submission: | 16 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I note the name of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3396 of 2005
| SZHQD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. A decision was made on the 30th August and handed down on 20th September 2005. The Tribunal affirmed a decision of the Delegate of the Minister not to grant a Protection Visa to the applicant.
The applicant is a citizen of the People's Republic of China who arrived in Australia on the 12th December 2004 and lodged an application for a Protection (class XA) Visa on 21st January 2005.
His application was refused on the 28th April 2005 and on the 1st June he applied for a review of that decision. The applicant set out no details in the application for review but attached to it a four page submission setting out a number of matters relating to his claim which is that he has a well-founded fear of persecution in the People's Republic of China on the basis of his religious belief.
The Tribunal wrote to the applicant on the 9th August inviting him to attend a hearing on Friday 7th October. That letter was intended to comply with the provisions of s.425 of the Migration Act and the notice of invitation to appear, which is what the letter was, complied with s.425A of the Act in giving a period of notice that was at least the prescribed period. In fact it was significantly more than the prescribed period of 14 days.
On the 16th August however, the Tribunal contacted the applicant's authorised recipient by fax, advising of a change of date. The revised date for hearing was to be Tuesday the 30th August. It can be seen that the period of notice of this revised hearing was within 14 days as the applicant would be deemed to have received a faxed communication at the end of the day on which this fax was dated, the 16th August.
There appears to have been no written reply to that notice but the applicant did attend the Tribunal hearing on the appointed day and gave evidence. The Tribunal member asked him about details of his religious practice and being a member of a Catholic Church that was not approved of by the Chinese Government. The Tribunal asked the applicant a number of questions about the belief of his religion and put to him that the Tribunal was not convinced that the applicant was a genuine Christian. The Tribunal said - and the account of this is set out at page 83 of the Court Book - that the Tribunal believed that the applicant had not revealed the level of understanding of the faith that the Tribunal would have expected of one who was a committed Christian for four years and who had attended church regularly in Australia. The Tribunal asked the applicant if there were any other matters that he wished to put before the Tribunal but the applicant said that there were not. The Tribunal set out its findings and reasons on pages 83 through to 85 of the Court Book.
Whilst there is no specific finding that I can see that the Tribunal found that the applicant is a citizen of the People's Republic of China, the entire hearing was conducted on the basis that the applicant was and he was assessed against the People's Republic of China. There is no suggestion that the applicant claimed any other nationality or that there was any doubt that he was a national of China. The Tribunal noted the applicant's claim to fear persecution in China because of his activities in the underground Catholic Church and found that independent evidence suggested there was a high degree of tolerance of underground churches in the applicant's province of Fujian.
The Tribunal noted, at page 84 of the Court Book, that this had in fact been put to the applicant at the hearing. The Tribunal went on to say however:
It is not necessary to make a definite finding on the treatment of Christians in Fujian because for the reasons outlined below the Tribunal does not accept that the applicant was a member of an underground Church and of a related youth organisation.
The fact is that the Tribunal was not satisfied, from the paucity of the applicant's knowledge of the fundamentals of the applicant's claimed faith, that the applicant was a member of an underground Catholic Church. The Tribunal just did not accept the applicant's evidence either of his membership of the Church in China or the reasons why the applicant attended some Mandarin language services of the Catholic Church in Flemington in Australia.
A finding that the applicant was not a member of an underground Roman Catholic Church in China was fundamental to the applicant's claim in that the Tribunal did not accept the applicant's claims that he had been arrested, detained, interrogated and threatened because of that association with the Church or of a Church related youth group.
The Tribunal noted that the applicant had made no Convention claims other than those based upon religion and found that he did not have a well-founded fear of persecution for a Convention reason in China. The Tribunal affirmed the decision not to grant a Protection Visa.
The applicant has sought a review of that decision. He filed an amended application under the Judiciary Act on the 31st January 2006. He seeks a declaration that the decision of the Tribunal was made in excess of jurisdiction and writs in the nature of prohibition, certiorari and mandamus. He sets out two grounds for which he provides particulars. First; that there was an error of law constituting jurisdictional error and second that there was procedural error constituting an absence of natural justice.
The particulars are contained in five separate paragraphs. Particular number one, which is divided up into four sub-paragraphs, relates partly to a challenge to the factual findings of the Tribunal but specifically makes claims about the inadequacy of the interpreter provided during the Tribunal hearing and the Tribunal's failure to contact the applicant's priest in the Catholic Church. The applicant claimed that the Tribunal had obviously ignored an important fact that the interpreter during the Tribunal's hearing was unable to translate or explain special religious terms and so could not really understand the actual meaning of the Tribunal's questions on critical occasions. In my view, the respondent's submission that errors in interpretation could not amount to jurisdictional error unless the Tribunal could be shown to be aware of such errors is correct. In any event, the applicant has not provided any evidence, other than bald assertions, as to any inadequacy by the interpreter. There is not, for instance, a copy of a transcript or any record that the applicant complained to the Tribunal of difficulties in interpretation. The absence of evidence by the applicant indicates that the claim should be rejected. I am referred to the decision of NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21].
Turning to the applicant's claim that the Tribunal had a duty to make inquiries from the applicant's church as to the extent of the applicant's beliefs or activities, this ground is misconceived. The Tribunal does not have such a duty. It is for the applicant to make out his case.
I refer to the Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596.
The applicant also alleges breaches of s.424A(1) of the Migration Act. He indicates that he was not given an opportunity in order to comment on information about his understanding of the Catholic religion, the Tribunal failed to ensure that he understood why those legal documents, without specifying what they are, were relevant to the review. The Tribunal was not required to give the applicant details of information in the manner specified under sub-s.424A(1).
The information fell clearly within the exception, again to sub-s.424A(3)(a) which provides that the section does not apply to information that is not specifically about the applicant or another person. It is just about a class of persons of which the applicant or another person is a member.
In any event, it is clear from the decision that it was the inadequacy of the applicant's evidence about the Catholic religion which led the Tribunal to form the view he was not a follower of the religion.
The applicant also makes an allegation of bias on the part of the Tribunal. It is well established that bias, which is an allegation of bad faith, is a serious allegation and must be clearly alleged. It must be strictly proved. There is no evidence of bias. The fact that the Tribunal did not contact members of the applicant's church to verify his claims is not evidence of bias as the Tribunal is under no obligation to do so. The fact is that the Tribunal was not persuaded about the applicant's evidence on this fundamental ground of his case, namely his religious belief. The matter of belief in an applicant's credibility is not of itself evidence of bias. The applicant would have needed to have provided more than the Tribunal decision in order to establish bias and has not done so. The allegation that the Tribunal ignored important evidence, which is set out in particular number four, similarly does not stand.
The applicant refers to a handbook from the United Nations High Commissioner for Refugees but that document was never evidence before the Tribunal. The Tribunal did indicate that it was alive to the difficulties faced by applicants in refugee cases and appears to have taken those matters into consideration. At page 83 of the Court Book, the final paragraph, the Tribunal said:
When determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claim he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his or her claims.
The applicant claims that the Tribunal should have understood his particular difficulties but I find no evidence that the Tribunal did not.
The applicant provided some oral submissions which mainly echoed the matters contained in his application. First he complained about the inadequacies of the interpreter and I have already ruled that it is up to the applicant to bring evidence to show that there were any inadequacies. The applicant claimed that the Tribunal member completely ignored certain information which was favourable to him but it is clear that at page 84 of the Court Book the Tribunal referred the country information to the applicant for him to comment and there is no other record of any other country information being used.
I have dealt already with the applicant's third oral claim about breach of s.424A(1). The applicant's fourth claim is that there was a breach of s.425 of the Migration Act in that during the hearing he was not given a fair opportunity to make oral submissions in support of his application. The applicant does not say why that was so, other than referring to the inadequacies of the interpreter and there is no evidence that he was not able to make appropriate submissions to the Tribunal.
The applicant's fifth claim was about the Tribunal's reliance on country information and his claim that he was not given an opportunity to make comments on that country information. Whilst this has already been covered, for completeness I note at page 84 of the Court Book that the only country information relied on was in fact put to the applicant and he was given the opportunity to comment on it. The applicant claimed that the Tribunal and the Department of Immigration & Multicultural Affairs just gathered information that would not assist his case.
It is not up to this Court to review the actions of the Department of Immigration & Multicultural Affairs. There is no evidence that the Tribunal, in obtaining independent country information, acted in any untoward or biased or unfair way. In fact, it is quite clear that the Tribunal did put country information to the applicant so that he could comment on it. The applicant then claimed about the poor interpretation by the interpreter. He said that this was ignored by the Tribunal. There is no evidence that any difficulty was brought to the attention of the Tribunal.
The applicant also claimed that the Tribunal interrupted his answers and showed a “harsh attitude”. There is no evidence of this and no transcript of the hearing has been provided. The applicant further claimed that the Tribunal member did not really understand the situation about followers of the underground Catholic Church in China. To my mind that is a comment on a factual finding by the Tribunal that constitutes an attempt to obtain impermissible merits review. The applicant claimed that the Tribunal tried every possible means to refuse his application. To the extent that that is a claim of bias, I reject that on the basis of an absence of evidence. The applicant claimed that both the Department of Immigration and the Tribunal should have information to show that:
The Chinese government is the cruellest and most corrupt in the world.
That may well be the view of the applicant but this is no more than a challenge to a factual finding of the Tribunal and fact finding is the province of the Tribunal, not a Court conducting judicial review.
The applicant again referred to an alleged breach of s.424A of the Act and I am satisfied that there is no breach.
The applicant also put the proposition that s.425 of the Act means that if the Tribunal has information that is adverse to the applicant, that is the test for inviting the applicant to attend the hearing. That is not the test. Section 425 provides:
That the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
But sub-s. 2(a) provides:
That the requirement in sub-s.(1) does not apply if the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it.
In other words; if the Tribunal has information that permits it to decide a review in the applicant's favour, it does not then have the obligation to hold a hearing. In all other circumstances, other than those set out in sub-s. 2(b) and (c) the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. It is noteworthy that the applicant did so.
Counsel for the First Respondent, Ms Clegg, put two matters which need to be considered. First; there is a concern about whether there is a breach of what is commonly referred to as a SZEEU issue, referring to SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. The matter that is raised on behalf of the Respondent is that the Tribunal referred in its decision to an inconsistency between the evidence given by the applicant at the hearing concerning his baptism date and the written information concerning his baptism date in the applicant's Protection Visa application. If it could be said that the baptism date information was the reason or part of the reason for affirming the decision under review, then that would have required the Tribunal to give the applicant a s.424A(1) notice in writing about that fact. However, in the present case the baptism date information was not the reason or part of the reason for affirming the decision of the delegate. Although it was mentioned once in the Tribunal's description of evidence, it was not thereafter referred to and the Tribunal did not make mention of it in its findings or reasons.
I am referred to the decision of Alsop J in SZEEU (supra) at paragraph 216 where his Honour said:
One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason).
The other issue is what Ms Clegg for the respondent Minister called the SZFKF issue, referring to a decision of her Honour, Barnes FM, in SZFKF v Minister for Immigration & Multicultural Affairs [2005] FMCA 1152. That issue, if it is an issue, relates to the rescheduling of the applicant's hearing, this time at the behest of the Tribunal. It is conceded that the notice given on the 16th August of a rescheduled hearing on the 30th August gave the applicant a time of less than 14 days to attend the hearing. There are different views as to whether that is a matter on which the Court should be satisfied there is a jurisdictional error.
In SZFKF v Minister for Immigration, Barnes FM, in the rather unusual circumstances of that case, took the view, applying SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, that s.425A(3) must be strictly construed and that any breach constitutes an error. Against this Smith FM in SZFIH v Minister for Immigration & Anor [2005] FMCA 1847 at [34] through to [57], took a different view and indeed his Honour, perhaps not surprisingly, maintained that view in SZFKD v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FMCA 49.
At [20] his Honour said:
Moreover, I am not persuaded that the notice of the rescheduled hearing was one day short. The legislature intended that this should in all cases lead to the invalidity of the substantive decision. There are some differences of opinion concerning this issue which I recently canvassed in SZFIH v Minister for Immigration & Anor. In that case I declined to give unqualified support of the proposition of Barnes FM in SZFKF v Minister for Immigration at 48 that a full period of notice is mandatory "if the hearing is re-scheduled at the behest of the Tribunal".
I considered that this would not be so if the lesser period of rescheduling received the consent or acquiescence of the applicant and was not inconsistent with the procedure of fairness.
In my view, the re-scheduling in this case is again one day short as is the case in SZFKD (supra). It is, to my mind, very different from the situation in SZFKF (supra) where there was a rescheduling at short notice from the 22nd of the month through to the 25th.
The circumstances of that case also were that the applicant was in detention and quite clearly did not have a great deal of control over his activities.
I have also taken the opportunity of looking at SZAPF v Minister for Immigration [2004] FMCA 684 which was referred to but not followed by Barnes FM in SZFKF. Interestingly enough, in SZAPF, his Honour, Driver FM, dealt with the case of an applicant complaining about the adequacies of the interpreter and in the same circumstances of this, provided no evidence whatsoever. The point of SZAPF, however, for the purpose of my consideration this afternoon is that at paragraph 20 his Honour referred to an apparent failure to give the prescribed period of notice under s.425A(3). In that case there was notice given of a revised second hearing date by letter dated 12th March 2003 for hearing on 18th March. His Honour went on to say:
The applicant however attended this hearing on the
18th March 2003 and gave evidence and made submissions.
In the circumstances these failures to comply with the Act and regulations were immaterial and did not constitute jurisdictional errors.
I am also referred to the decision of the Full Court of Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 723. The decision is referred to me only for the point made by their Honours at [39] that ss.425 and 425A of the Migration Act are to be read together. In my view, with respect, that is a correct summing up of the two sections. Section 425A clearly follows on from s.425 in that s.425 provides the circumstances in which a Tribunal must invite the applicant to appear. Section 425A provides the machinery for the notice of invitation including the period of notice being at least the prescribed period. It must follow however that the invitation to appear is contained in s.425 of the Act.
Counsel for the respondent, Ms Clegg, put to the Court that in this case, as in SZFKD, the period of notice was a day short. The manner of the breach can be described as a technical breach which is a matter in which the Court can exercise its discretion. Section 425A is of course designed to give the applicant fair notice of the hearing and the hearing is of course provided under s.425. This is not, it is submitted, a matter which is so fundamental for the scheme of procedural fairness, that s.425 or s.424A and that a technical breach is a matter where the Court can exercise its jurisdiction and find that the substantive hearing was not thereby invalidated.
To my mind, with respect, the decision in SZFKF relies on particular and rather unusual facts and in my view SZFKF can be distinguished on its facts. In my view also, with respect, the decision of Smith FM in SZFKD is, in all relevant senses, on all fours insofar as its fact situation is concerned, with the case before me. This is not a case however where it can be said that the applicant consented to the change of hearing date. There is no notice of hearing in invitation form sent in by the applicant as a result of that notification but it is a fact that the applicant attended and gave evidence. Whilst I could not find that the applicant had consented to the change of hearing date, he appears to have acquiesced in it by not seeking an adjournment and by actually appearing at the time and date and giving evidence.
For those reasons I am satisfied that the rescheduling, which involved a period of notice which was one day short of the time provided, was not inconsistent with procedural fairness. I am satisfied, as I said, that I should follow SZFKD and I do. There is no jurisdictional error that I am able to ascertain. The application must be dismissed.
There is an application for costs. The applicant has been wholly unsuccessful. In my view this is a matter where costs should follow the event. The amount sought by the first respondent is the sum of $5,000.00 inclusive of counsel's fees. It is an appropriate figure and within the range. I propose to order that the applicant is to pay the first respondent's costs fixed in the sum of $5,000.00.
I note that the title of the first respondent Minister has changed recently.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 29 June 2006
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