SZHTS v Minister for Immigration

Case •

[2007] FMCA 710

•

2 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 710
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 the People's Republic of China claiming fear of persecution for reason of religion – whether bias established – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.424A
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27
Applicant: SZHTS
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 145 of 2007
Judgment of: Scarlett FM
Hearing date: 2 May 2007
Date of last submission: 2 May 2007
Delivered at: Sydney
Delivered on: 2 May 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Broderick
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,400.00. 

  3. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 145 of 2007

SZHTS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision, which was signed on 29th November and handed down on 19th December 2006, affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa. 

  2. The Applicant seeks judicial review of that decision and has set out in an amended application three grounds, although they are numbered 1 and 2. Ground 1 alleges that the Tribunal had bias against the Applicant and did not believe that he was a Catholic based on the Tribunal's assumption. It further alleges that the Tribunal's satisfaction that the Applicant was not a refugee was not based on a rational and logical foundation. 

  3. Ground 2, which in effect contains the third ground, is that the Tribunal failed to carry out its statutory duty by failing to consider his application according to the provisions of s.424A of the Migration Act.

Background

  1. The background to this matter is that the Applicant is a citizen of the People's Republic of China.  He arrived in Australia on 19th October 2001. He applied for a Protection (Class XA) visa on 9th May 2005.  That application was refused on 13th July 2005 and so the Applicant sought a review of that decision from the Refugee Review Tribunal.

  2. The Tribunal affirmed the delegate's decision on 17th November 2005 and so the Applicant sought judicial review of the Tribunal decision from the Federal Magistrates Court. On 7th September 2006 Lloyd‑Jones FM made orders by consent granting the application and issued writs of certiorari and mandamus.  Accordingly, the Applicant's application was remitted to the Tribunal for consideration and determination according to law.  The Tribunal wrote to the Applicant on 26th September informing him of that and informing him of the procedure that the Tribunal would follow.

  3. The Tribunal wrote to the Applicant again on 16th October inviting him to attend a hearing on 15th November 2006.  The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. The basis of the Applicant's claim to have a well‑founded fear of persecution was on the basis of his religious opinion. He claimed to be a member of an Underground Catholic Church and as such would be subject to persecution if he were to return to China.  A copy of the Tribunal decision can be found at pages 72 through to 83 of the Court Book. 

  4. The Tribunal sets out a summary of the Applicant's claims and evidence on pages 75 through to 78 which includes references to independent country information.  The Tribunal's findings and reasons are set out on pages 78 to 83 of the Court Book.

The Tribunal’s findings and reasons

  1. The Tribunal was satisfied that the Applicant was a citizen of the People's Republic of China and assessed his claims for refugee status against that country.  The Tribunal made a finding as to the Applicant's true identity based on a passport that the Applicant produced to the Tribunal. The Tribunal noted the Applicant's claims that he faced persecution if he returned to his country of nationality because he was a member of the Underground Catholic Church. The Tribunal, however, did not accept that claim because it did not accept that he was a member of the Underground Catholic Church. On pages 79 through to 81 the Tribunal set out its reasons for not accepting the Applicant's claims.  These were based largely on the Applicant's lack of knowledge of the Catholic faith.  At page 81 the Tribunal also made an adverse finding as to the Applicant's credibility as a witness and found that he was not a witness of credit and had attempted to mislead the Tribunal.

  2. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and affirmed the delegate's decision.

The application for judicial review

  1. The Applicant again commenced proceedings for judicial review by means of an application and an affidavit filed on 16th January 2007.  He filed an amended application on 24th April. The Applicant made oral submissions to the Court at the hearing today. The solicitors for the Minister filed an outline of submissions also on 24th April which, whilst directed towards the Applicant's original application on the grounds contained in it, essentially covers the matters contained in the amended application. Ms Broderick, solicitor for the First Respondent Minister, also made an oral submission to the Court in respect of the Applicant's amended application.

  2. The Applicant claimed that the Tribunal had bias against him and did not believe that he was a Catholic based on the Tribunal's assumption.  True it is on the findings and reasons that the Tribunal was not satisfied that the Applicant was a member of the Catholic faith and would face persecution as a member of an Underground Catholic Church. There is, however, no evidence of bias. Bias is a serious allegation, alleging as it does personal fault on the part of the decision-maker, and it must be strictly alleged and proved.  The Full Court of the Federal Court has dealt in some detail with allegations of bias and lack of bad faith in decisions SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361.

  3. The Full Court has pointed out that the allegation is not to be lightly made, it must be clearly alleged and proved, and 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 (see SBBS at [44] and SBBF at [610]). There is just no evidence of bias at all. No evidence of bias appears in the Tribunal decision. There is no transcript. There is nothing to suggest the Tribunal was in any way biased. That ground must fail.

  4. The Applicant claims that the Tribunal's satisfaction that he was not a refugee was not based on a rational and logical foundation. Of course it should be made clear that it is up to the Applicant for a visa to satisfy the Minister, or in this case the Tribunal, that the Applicant meets the criteria for that visa. As section 65 of the Migration Act provides, if the Applicant meets the criteria for a visa then the obligation is to grant a visa. If the Tribunal is not satisfied then the visa cannot be granted.

  5. There is nothing that I can see in the decision that was irrational or illogical.  Ms Broderick has submitted that in any event logicality is not itself a ground for finding jurisdictional error and, with respect, I agree.  So even if there were logicality, that would not normally suffice.  But there is nothing irrational and nothing illogical about the Tribunal decision.  The Tribunal considered the Applicant's evidence and was not satisfied that he was a Catholic.  If the Applicant was not a Catholic as far as the Tribunal was concerned, then he would not face persecution in China because of his membership of the Catholic Church.  If there was no other ground for a fear of persecution for a Convention reason, then the application would have to fail.

  6. The Applicant claims that the Tribunal failed to consider or failed to apply the provisions of s.424A of the Migration Act. He sets out a fairly well‑known submission about the requirements of s.424A of the Migration Act which the Federal Magistrates Court has seen on numerous occasions. It refers to the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, although it is wrongly cited in the submission, and refers to Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27. But the fact is that there was no information that comes under s.424A that the Tribunal relied upon as a reason or a part of the reason for affirming the decision under review that would attract the provisions of sub-s.424A(1).

  7. The Tribunal rejected the Applicant's claims based on the Applicant's own evidence to the Tribunal. The Applicant's evidence to the Tribunal is exempt from the operation of s.424A(1) by the operation of sub-s.424A(3)(b) of the Migration Act. That appears to be a provision of the Act that is often overlooked. Sub‑section 424A(3) says in full:

    This section does not apply to information:

    (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)that the applicant gave for the purpose of the application; or

    (c)that is non-disclosable information.

  8. The Applicant's own evidence to the Tribunal is quite clearly information that the Applicant gave for the purpose of the application. There is no breach of s.424A of the Migration Act.

  9. The Applicant in oral submission complained that he was unable to provide the documentary evidence or sufficient documentary evidence to support his claim. I indicated that the Court could not take fresh evidence in respect of factual matters before the Tribunal.  As has been submitted on behalf of the First Respondent Minister, the Tribunal on two occasions wrote to the Applicant before the hearing inviting him to submit any further information. The first was in its letter of 26th September 2006, a copy of which appears on pages 56 and 57 of the Court Book, where the Tribunal said:

    You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal.

  10. Again in the letter inviting the Applicant to attend the hearing under the provisions of s.425 of the Migration Act, the letter dated 16th October 2006 invites the Applicant to:

    Send us any new documents or written arguments you want the Tribunal to consider.  Please note any documents or arguments you send should be in English or translated by a qualified translator.[1]

    [1] See page 60 of the Court Book. 

  11. The Tribunal on two occasions before the hearing invited the Applicant to submit further documentary evidence.  In my view, the claim that the Applicant was not permitted to provide further documentary evidence must fail.

  12. The Applicant is not legally represented. I have read through the Tribunal decision and supporting documents independently and I am not able to discern any arguable case of a jurisdictional error not raised by the Applicant. I am satisfied no jurisdictional error has been made out. The decision therefore is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Under s.474 a privative clause decision is final and conclusive and is not subject to orders in the nature of a declaration or orders in the nature of certiorari or mandamus or prohibition. The application therefore must be dismissed.

  13. There is an application for costs on behalf of the Minister in the sum of $3,400.00.  The Applicant has been unsuccessful in his claim and there is no reason why the Court should not make a costs order in favour of the Minister. The Applicant says that he has no money to meet the costs order and he does not have permission to work. I see no reason to disagree with that but that is not of itself a reason not to make an order for costs.  I will allow four months to pay in the circumstances.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  11 May 2007


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