SZHQK v Minister for Immigration
[2006] FMCA 1126
•1 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHQK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1126 |
| MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming delegate’s decision not to grant a protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – allegation of bias – privative clause – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347 SBBS and the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAC 361 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Yo Han Chung v University of Sydney [2002] FCA 186 |
| Applicant: | SZHQK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3414 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 August 2006 |
| Date of Last Submission: | 1 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as Second Respondent to the application.
I dispense with the requirement for the Second Respondent to file any Notice of Appearance.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3414 of 2005
| SZHQK |
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. The decision was signed on 12th October and handed down on 1st November 2005. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 1st February 2005, and on 22nd March in that year he applied for a Protection (Class XA) visa.
That visa was refused on 27th June, and on 21st July 2005 he applied to the Refugee Review Tribunal for a review of that decision.
The Applicant did not provide any other written material to the Tribunal when he lodged his application. The Tribunal wrote to him on 2nd September inviting him to attend a hearing on Thursday 6th October 2005. The Applicant attended, and gave evidence with the assistance of a Mandarin interpreter.
The Applicant claimed that he had a well-founded fear of persecution in his native China as a result of his having taken up the practice of Falun Gong in 2003. He said that some of the other practitioners were arrested and the men were tortured and the women had to remain in detention for a few months.
The Applicant asked friends to obtain a visa for him, but had no trouble obtaining a passport. Since he arrived in Australia he has practiced Falun Gong, and joins other people in a square in Parramatta. He also distributes pamphlets on occasions.
The Applicant told the Tribunal that his wife, who was a Falun Gong practitioner, had been detained for three months in China since the Applicant has been in Australia. He says that his wife has told him not to return to China, as the police have arrested other Falun Gong practitioners, and she herself has had to leave the village in which they resided.
The Tribunal considered some independent information relating to traditional Qigong, and a report downloaded from the internet called ‘Revolution of the Wheel: Falun Gong in China and in Exile’.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 63 through to 65 of the Court Book. The Tribunal accepted that the Applicant is a national of the People's Republic of China.
The Tribunal noted, however, that it was necessary to assess the specific claims made in support of the Applicant's case, and referred to a passage from the decision of Heerey J of the Federal Court in Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347 at [348] where his Honour said, quote:
A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
The Tribunal, after considering the Applicant's evidence, came to the conclusion that it was unable to accept any of his claims. At the hearing the Tribunal asked the Applicant about the five main Falun Gong exercises, and reports at page 64 of the Court Book that the Applicant said that he forgot.
The Tribunal Member reported prompting the Applicant with the name of the first exercise, which is ‘Buddha showing a thousand hands’, and asked if that helped the Applicant to remember the names of the other exercises. The Applicant did not reply. Eventually the Tribunal gave the Applicant the names of the second, third and fourth exercises, and the Applicant was unable to name the fifth exercise.
When the Tribunal told the Applicant that it found it difficult to accept that he was a Falun Gong practitioner when he did not know the five main exercises, the Applicant said, quote:
I only follow other people who practice.
After other evidence the Tribunal came to the conclusion that the Applicant was not a Falun Gong practitioner and has never been one.
The Tribunal went on to find at page 64 of the Court Book, quote:
As a result, because the claims that the Applicant was a Falun Gong practitioner in the PRC and is also a practitioner in Australia, central to his overall claims, it leads the Tribunal to conclude that none of his claims can be accepted as true.
As a result the Tribunal was not satisfied that the Applicant faced a real chance of persecution if he were to return to the People's Republic of China, now or in the foreseeable future. For that reason the Tribunal was not satisfied, on the evidence before it, that the Applicant has a well founded fear of persecution for any Convention related reason, and affirmed the decision not to grant a protection visa.
Application for Judicial Review
The Applicant sought judicial review of that decision by means of an application filed on 23rd November 2005. He filed an Amended Application on 31st January 2006 in which he seeks writs of prohibition, certiorari and mandamus.
He sets out eight grounds of the application in four of which, grounds 1, 2, 4 and 5, he complains that the Tribunal Member was biased against him. As a result he claimed that the Tribunal did not consider his application properly, and he also claims that the Tribunal did not refer to any independent information, and did not consider his claims in full details, and the Tribunal's decision to refuse his application was not supported by evidence or material.
In the eight ground of his application the Applicant said, quote:
I will submit more documents for the consideration of my review application.
No further material was submitted to the Court. No written outline of submissions was filed by or on behalf of the Applicant. He confirmed to the Court that the Amended Application filed on 31st January 2006 was the most recent document that he had filed.
The Applicant made oral submissions to the Court in which he referred to his claim of bias. He said that because he had not received much education, he had not received much written material about Falun Gong. He went on to say that he does not have a good memory, because in the past he was beaten by a policeman on the head with a stick. When asked by the bench if he had told that to the Refugee Review Tribunal, he said that he had forgotten about it.
He confirmed that he had attended the hearing of the Refugee Review Tribunal, and that the Member asked him some questions about Falun Gong. He said that he could not answer the Member's questions because of his poor memory. He said his memory is quite bad, and that if one were to tell him something now, after half an hour he might have forgotten.
When asked by the bench to explain what he meant in the second ground, in the words:
The Tribunal did not consider my application according to jurisdictional steps.
The Applicant said that all that had happened was that the Tribunal sent him a written decision.
When it was put to him by the bench that the Tribunal decision showed that the Tribunal did refer to independent information, he said that after such a long time he just could not remember clearly. When asked by the bench why he did not refer to his memory problem in his application, he told the Court that at the time he was lodging the application he was a bit nervous, so he forgot to do so.
When given the opportunity to make further submissions, the Applicant said that his family telephoned him, saying that a policeman had gone to his house inquiring about his whereabouts, and he had been threatened with violence by the police if he were to return to China.
He complained that after he lodged his application for a protection visa, which I note was some 50 days after he arrived in Australia, he had not received a work permit. He said that he applied for a protection visa at that stage, because when he tried to prepare to return to China he got the news that he would be treated violently by the police upon his return, so he decided to apply for refugee status.
I take that to mean that the Applicant did not necessarily seek to reply for refugee status when he originally arrived in Australia.
The Applicant in reply told the Court that even though the written outline of submissions on behalf of the First Respondent Minister had been translated to him by a friend, he did not understand it and he had forgotten most of it. Accordingly, the Court provided him with a brief outline of the contents of the submission, which Mr Potts of counsel, who appeared for the First Respondent Minister, confirmed was an accurate summary.
When asked to comment on that summary the Applicant told the Court that he did not have much education and did not have the reply.
I have had the opportunity of reading the outline of submissions prepared by counsel for the Respondent Minister, and I did not consider it necessary to obtain any clarification of any of the matters referred to. In my view, the submissions made on behalf of the Minister appear to be correct in law.
Turning to the remaining seven grounds in the application, as ground 8 contained no more than a claim to submit more documents, which never eventuated; I will deal with these as follows.
As to the first ground, which is a claim of bias, and as counsel for the Respondent noted is unsupported by any particulars, there is no evidence of bias. Bias is a matter which must be carefully alleged, and anyone who alleges it must prove it strictly. I am mindful of the decisions about bad faith referred to by the Full Court of the Federal Court in SBBS and the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAC 361. As their Honours say at [43]:
An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved.
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 the applicant relies upon is the written reasons for the decision under review.
Their Honours there refer, amongst others, to the decision of von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 where his Honour said, quote:
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.
There is no evidence of any bias whatsoever in the reasons for decision.
Turning to the second ground, I have already found that there is no evidence of bias. The Applicant's claim that the Tribunal did not consider his application according to jurisdictional steps explained by the Applicant that he only received a written copy of the decision, does not disclose any jurisdictional error.
The third ground claims that the Tribunal did not refer to any independent information for the consideration of his application. That is incorrect. The Tribunal clearly did, and I have previously referred to it. In any event, even if the Tribunal had not referred to independent information, that is not a jurisdictional error.
It is well established that the Tribunal has no obligation to conduct its own independent inquiries. It is up to the Applicant to provide information sufficient to satisfy the Tribunal that the Applicant meets the criteria for a visa.
The fourth ground is that the Tribunal did not consider any of the information provided by the Applicant in writing because of the alleged bias. I have previously found there is no evidence of bias. There is no evidence suggesting the Tribunal did not consider the Applicant's written claims. Indeed, page 61 of the Court Book, the Tribunal summarised the substance of the Applicant's written claims.
As to the fifth ground, the Tribunal did not believe that the Applicant was a Falun Gong practitioner, that this was not supported by any evidence other than the bias of the Tribunal. As I said earlier, there is no evidence of bias.
The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner because the Applicant was not able to provide answers to questions about the Falun Gong that the Tribunal Member asked the Applicant. To my mind, that was a finding perfectly open to the Tribunal on the evidence before it.
In any event, as was made clear in Selvadurai, to which I have previously referred, the decision maker does not have to have rebutting evidence available, for he or she can lawfully hold that a particular factual assertion by an applicant is not made out. In this case the Tribunal did not believe the Applicant because he was not able to answer basic questions about Falun Gong.
If the Tribunal was not satisfied that the Applicant met the criteria for the grant of the protection visa, it was obliged to refuse the visa, as was set out clearly in s.65 (1) (b) of the Migration Act.
I am referred by counsel for the respondent Minister to the decision of the Full Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]. Section 65(1) of the Migration Act provides that a decision to grant or refuse a visa is conditioned upon satisfaction as to the matters specified in that section. In other words, that the criteria for the visa described by the Act and the regulations are met.
As their Honour said at [15] – [16]:
It can be seen from the form of that sub-section (s.65(1)) that it does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
Turning to the sixth ground, where the Applicant says:
The Tribunal did not consider my claim in full details.
The evidence before the Court makes it clear that the Tribunal did consider the Applicant's claims in details to which they are presented. Counsel for the First Respondent submits with some force, in my view; indeed, everything before the Court suggests that the Applicant's claims were presented in such sparse detail that the Tribunal's ultimate conclusion was hardly surprising.
Turning to the seventh ground of review, which was the decision to refuse the application was not supported by evidence or materials; I have already made it clear that the Tribunal would not need to have rebutting evidence available before it could lawfully find that the assertion made by the Applicant had not been made out.
In summary, none of the grounds in the Applicant's Amended Application have been made out. None of the grounds shows any jurisdictional error. I am mindful of the fact that the Applicant is not legally represented. He has told the Court today, and I accept that he is a person who has had very little formal education.
He has claimed that he suffers from a memory loss as a result of one or more blows to the head, which he said were occasioned by a police officer. There is no evidence to support that, but no evidence to rebut it either.
Taking all those matters into account, I have read through the Tribunal decision myself in order to make an independent assessment as to whether, on the material before me, the Applicant would otherwise have an arguable case which he has not been able to put before the Court. I am mindful of the decision of the Federal Court in Yo Han Chung v The University of Sydney [2002] FCA 186 in that regard.
I am unable to discern any material in the Tribunal decision that would indicate to me that the applicant has any arguable case in respect of any jurisdictional error that he has not claimed in his application.
I am satisfied that no jurisdictional error has been made out. As there is no jurisdictional error, the Tribunal's decision is a privative clause decision as defended by sub-s.474(2) of the Migration Act. Because it is a privative clause decision, sub-s.474(1) of the Act provides that the decision is not subject to review in any Court, and writs of prohibition, certiorari and mandamus as claimed by the Applicant are not available.
There is no ground upon which any of that relief could be granted. It follows, then, that the application must be dismissed, and I will hear submissions from counsel for the First Respondent, and also from the Applicant, on the question of costs.
There is an application for costs on behalf of the First Respondent Minister. Those costs, including counsel's fees, are estimated in the sum of $4,000.00. I consider that that is a reasonable amount. It is necessary, of course, to decide whether or not costs should be awarded.
The Applicant has been wholly unsuccessful in his claim. He said that he has no work, and therefore does not have the funds to meet that order of costs. That is not, to my mind, a reason not to make a costs order, but it is a reason to give consideration to time to pay.
I propose to make an order for costs in favour of the First Respondent Minister, and I am satisfied that the sum of $4,000.00 is an appropriate figure. I will allow time to pay, and I will allow six months.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 9 August 2006
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