SZHSI v Minister for Immigration
[2007] FMCA 299
•12 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHSI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 299 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424A |
| Minister for Immigration v SZGMF [2006] FCAFC 138 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SBBS v Minister for Immigration (2002) 194 ALR 749 VFAB v Minister for Immigration (2003) 131 FCR 102 |
| Applicant: | SZHSI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3517 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 12 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Phillips Fox |
ORDERS
The Court directs that the title of the first respondent be amended tot he Minister for Immigration & Citizenship.
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Court directs that the applicant file and serve on the respondents a notice of change of address within seven days of today’s date.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3517 of 2005
| SZHSI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 20 October 2005. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. The background to the applicant’s protection visa claims and the Tribunal decision on them is summarised in the Minister’s outline of written submissions filed on 28 February 2007. I adopt that background from paragraphs 2 through to 6 of those written submissions:
The applicant is a male citizen of China born on 12 February 1959.[1] He arrived in Australia on 13 February 2005[2] and applied for a Protection (Class XA) visa on 11 March 2005.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 18 June 2005.[5]
[1] court book (CB) 29
[2] CB 30
[3] CB 1
[4] CB 27
[5] CB 34
The applicant applied to the Tribunal for review of the original decision on 12 July 2005.[6] He gave oral evidence before the Tribunal on 29 September 2005.[7] The Tribunal handed down its decision on 20 October 2005.[8]
The applicant's claims
The applicant, a citizen of China, claimed to fear persecution from Chinese authorities because he was a Falun Gong practitioner.
The decision of the Tribunal
The Tribunal rejected the applicant's claims finding that he was not, and had never been, a Falun Gong practitioner. The Tribunal set out the following reasons for this decision:
a)Since arriving in Australia the applicant had only practised Falun Gong publicly on one occasion, and did not engage in private practise at all. The Tribunal considered the applicant's claims that he was too busy and had to earn a living, but did not accept that these factors would prevent a genuine Falun Gong practitioner from finding the time to practise.[9]
b)The applicant was unable to answer basic questions about Falun Gong. He did not know how many exercises were involved in Falun Gong practice or what they were called, nor could he explain or answer questions relating to some of the basic tenets of Falun Gong.[10]
The Tribunal did not accept that the applicant practised Falun Gong in Australia, and therefore was not satisfied he would be persecuted as a Falun Gong practitioner if returned to China.[11]
[6] CB 43
[7] CB 55
[8] CB 56
[9] CB 67
[10] CB 67
[11] CB 68
These proceedings began with a judicial review application filed on 30 November 2005. Directions in relation to that application were made by a registrar on 12 January 2006. The matter was originally allocated to the docket of Federal Magistrate Emmett for hearing in September this year. However, as part of a review by this Court of its workload the matter was re-docketed to me for hearing today.
The applicant filed an amended application on 24 April 2006. He attended court in person today and told me that he wished to rely on that amended application. The amended application had apparently not been served on the Minister. Ms Hooper, for the Minister, told me that she had become aware of the amended application recently when she obtained a copy from the court file. Had the amended application been served when it was filed last year it is likely that it would have precipitated an application for summary dismissal. That is because the amended application fails to engage the jurisdiction of the Court. It asserts no jurisdictional error. It merely contests the merits of the Tribunal decision.
The Minister’s written submissions deal only with the original application. I decided that in order to attempt to do justice to the applicant that application should be considered. The Minister’s submissions were sent by courier and by express post to the applicant by letter dated 28 February 2007 at his residential address for service as well as to his postal address. He denied receipt of those submissions. He told me that he had moved to Auburn but was unable to give me his current residential address. I directed that the applicant file and serve a notice of change of address within seven days.
As the applicant was apparently unaware of the content of the Minister’s submissions he accepted an invitation from me for Ms Hooper to present her submissions first. When I sought submissions from the applicant he indicated a wish to appeal against any adverse orders I may make. He also asserted the truth of whatever he had said. He was not otherwise able to throw light on his original or amended applications.
The amended application is irredeemably hopeless and must fail. The original application also fails. It asserts bias and an improper use by the Tribunal of country information. There is no evidence whatsoever to support the assertion of bias. The only evidence I have before me is the court book filed on 6 January 2006. The Tribunal did have regard to country information in relation to the practice of Falun Gong but there was no reason why the Tribunal should not have had regard to that material.
The applicant plainly failed before the Tribunal because he was not believed. The state of disbelief reached by the Tribunal derived from the information he gave the Tribunal at the hearing conducted by it. I agree with and adopt for the purposes of this judgment with necessary amendments paragraphs 12 to 14 of the Minister’s written submissions:
The Tribunal’s decision to reject the applicant's claims is based entirely upon information the applicant gave to the Tribunal for the purposes of his application. This includes his oral evidence, and his passport, which he handed up to the Tribunal at the hearing.[12]
[12] CB 63
a)Information given to the Tribunal by the applicant for the purposes of his application is exempted from the operation of s.424A by s.424A(3)(b).
The first ground of the application for review implies an allegation of bias in the statement that the Tribunal was subjectively seeking reasons to decide against the applicant' rather than looking at the totality of the evidence.
a)It is well established that bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision-maker. It must be clearly proved by evidence. It is rare for a Court to find that an administrative decision-maker acted in bad faith, especially where the only thing said to be in support of this is the decision record: see SBBS v Minister for Immigration (2002) 194 ALR 749 at [43]-[48]; and VFAB v Minister for Immigration (2003) 131 FCR 102.
b)On a proper reading of the Tribunal’s decision, it clearly embarked upon its task in an entirely appropriate and reasonable manner, free from any hint of bias.
c)Furthermore, a fair-minded observer, properly informed of the nature of proceedings before the Tribunal, would not reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the application: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-435 per Gleeson CJ, Gaudron and Gummow JJ, followed in Minister for Immigration v SZGMF [2006] FCAFC 138 at [14].
The second ground of the application challenges the Tribunal’s reference to country information, claiming the Tribunal used country information against the applicant rather than assessing his claims.
a)This allegation is contradicted by the decision record, which indicates that the Tribunal understood and considered the applicant's claims, but rejected them on the basis of his unsatisfactory oral evidence.[13] The country information referred to by the Tribunal provided general information about Falun Gong, and answered the basic questions put to the applicant by the Tribunal at the hearing.[14]
b)Additionally, and in so far as this ground may be said to assert a breach of s.424A, s.424A(3)(a) applies.
[13] See CB 64
[14] CB 65-66
I find that the decision of the Tribunal is free from any jurisdictional error. It is therefore a privative clause decision and the application before the Court must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,800. The applicant did not wish to be heard on costs. The Minister’s claim for costs is a modest one, representing slightly more than half the costs that would be payable after a final hearing in the Court’s migration jurisdiction under the Court scale. This was a simple case but I accept that costs of not less than $2,800 have been incurred by or on behalf of the Minister when assessed on a party and party basis.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,800.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 March 2007
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