SZHVA v Minister for Immigration - [2006] FMCA 801

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVA v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 801

MIGRATION – RRT decision – Chinese person claiming persecution as Falun Gong practitioner – disbelieved by Tribunal – no arguable case for relief – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), ss.424A, 476
Federal Magistrates Court Rules, rr.44.05, 44.12

Minister for Immigration v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
S357 of 2003 v Minister for Immigration (2005) FCA 1684

Applicant:

SZHVA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3666 of 2005

Judgment of:

Smith FM

Hearing date:

23 May 2006

Delivered at:

Sydney

Delivered on:

23 May 2006

REPRESENTATION

Counsel for the Applicant:

The applicant in person

Counsel for the Respondent:

Ms Quinn

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3666 of 2005

SZHVA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The application before me was filed on 14 December 2005 under Federal Magistrates Court Rule 44.05, invoking the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth). The application seeks an order that the respondents show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal made on 22 November 2005. In that decision, the Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
The application was returnable before me at a first Court date on 25 January 2006, when the applicant attended in person and was assisted by an interpreter. The nature of the Court's jurisdiction was explained to her, both by me and in an information sheet, and procedural orders were explained to her.
My orders allowed her an opportunity to obtain further advice, file an amended application and file any evidence relied upon by 18 April 2006. The orders drew the applicant's attention to the need to provide evidence by way of a transcript, if she relied upon grounds based on what transpired at the hearing before the Tribunal. She was advised of today's listing, and clearly warned that her application might be dismissed today under r.44.12 if the Court was not satisfied that her application had raised an arguable case for the relief claimed.
The applicant was subsequently referred for advice under the legal advice scheme, and has received such advice. Pursuant to the directions, she has filed an amended application to which I shall refer below, but has filed no evidence additional to her original affidavit to which I shall refer.
I have been able to consider the documentary material which was before the Tribunal and which is contained in the Court Book, and to consider the Tribunal's reasons for not being satisfied that the applicant faces a real chance of Convention-related persecution in her country of nationality, the Peoples Republic of China.
The applicant's application for a protection visa was supported only by a brief and vague claims that she had been “actively organising activities for "Falun Gong"” in a city in China, had been taken into detention and "tormented physically and mentally during those two days" in 1999, and had continued organising Falun Gong activities throughout subsequent years in secret.
The applicant presented no documentary support for her claims to either the Department or the Tribunal. She attended a hearing of the Tribunal to which, as requested, she presented her passport. It is clear that the Tribunal took information from the passport presented to it, rather than from information on the Department’s file, since the photocopies in the Court Book are marked as received by the Tribunal. The Tribunal gave a description of the hearing, in which it said:
The applicant was unable to communicate any familiarity with the Falun Gong exercises beyond correctly stating that there are five.
The Tribunal gave brief reasons for affirming the delegate's decision:
The five Falun Gong exercises are, according to independent information, an indispensable part of Falun Gong adherence. An appreciation of all five and of their purpose is evidently essential. On the basis of her evidence at the hearing, the Tribunal does not accept that the Applicant is, or ever was, or would mistakenly be taken for, a Falun Gong practitioner, either by the PRC authorities or by other Falun Gong practitioners of anyone else. Her performance at the RRT hearing with regard to credibility was particularly poor.
The Tribunal regards the information in the Applicant’s passport as significant information attesting to an unremarkable relationship with the PRC authorities.
The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in the PRC. Her claimed fear of such persecution is not well-founded. She is not a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
I have considered that reasoning, and can discern no arguable jurisdictional error in how the Tribunal has decided the case. Its decision rests squarely upon its exercise of its duty itself to assess the credibility of the applicant based on its assessment of her at its hearing.
The application filed in the Court asserts as the ground of the application a claim that “the Tribunal officer had bias against me”. Reference is then made to some statements in the Tribunal's reasons as particulars of such bias.
In my opinion, it is not reasonably arguable that the statements identified in the application reveal bias, according to legal principles relating to either actual or apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27-32], and Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72]).
The applicant filed an affidavit as required by the Rules in support of the application, but it contains only the single assertion:
The Tribunal did not carefully consider my application because the officer mentioned to me that obviously I know who could help me to obtain a bridging visa with permission to work.
I do not consider that the assertion contained in this affidavit raises an arguable case of bias. The affidavit does not attach a transcript or proper account of the hearing, and even if the comment alleged was, in fact, made by the Tribunal it could not establish bias. As Emmett J has held in several cases where his Honour refused applications for orders nisi under a procedure comparable the present hearing under r.44.12:
On an application such as this, for orders requiring the respondents to show cause why final relief should not be granted, the purpose of any affidavit in support is to provide material showing that there is at least an arguable case for the ground of the final relief claimed. However, the material must be more than a mere pleading or assertion of the right to such relief. Material must contain some evidence of facts which would support the grant of the relief claimed. In the context of the relief claimed by the present applicant, there should be material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making the Tribunal's decision, such that orders would be made to quash the decision and to restrain the Minister from acting on the decision. The material presently before the Court does not disclose an arguable case, in that sense. ( S357 of 2003 v Minister for Immigration (2005) FCA 1684
I consider that the affidavit and other documents filed by the present applicant show a similar absence of support for an assertion of bias on the part of the Tribunal.
The applicant was put on notice as to the respondent's position that the application did not raise an arguable case, by a Response filed on 22 December 2005. It said:
The application filed makes allegations of bias based only on certain passages in the RRT's decision. There is no other evidence provided by the applicant. In addition the application for review is not accompanied by an affidavit.
The last assertion was not correct as I have indicated, but the Response should have caused the applicant and her advisors to consider the adequacy of her affidavit to raise an arguable case.
The amended application filed by the applicant on 19 April 2006 does not maintain any assertion of bias, but copies a precedent seen previously by the Court, containing an unparticularised contention that there was a failure by the Tribunal to comply with obligations under s.424A(1) of the Migration Act.
In my opinion, no substance for that contention can be found in the amended application or in any of the material before the Court, including the material reproduced in the Court Book. As I have indicated above, the Tribunal's reasoning rested entirely on an assessment of evidence given by the applicant to the Tribunal for the purposes of her review in the light of general information concerning Falun Gong. All that information is clearly excluded from obligations under s.424A(1) by reason of s.424A(3)(a) and (b).
The applicant's statements to me today have expressed dissatisfaction with the outcome of the Tribunal's decision, and to assert bias as the explanation for that outcome. However, in my opinion she has not been able to present to the Court any material or an argument showing that her application raises an arguable case for the final relief claimed.
I consider it is appropriate in all the circumstances for me to exercise the Court's power under r.44.12(1)(a) to dismiss the application at an interlocutory stage.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 5 June 2006