SZHWH v Minister for Immigration

Case •

[2006] FMCA 498

•

3 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHWH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 498
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 a citizen of China claiming fear of persecution for reason of political opinion – credibility – allegation of bias – Tribunal is not required to give reasons in writing where information comes entirely from the applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 424, 424A, 474

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 distinguished
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte
Durairajasingham (2000) 168 ALR 407
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 followed
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 followed

Applicant: SZHWH
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3714 of 2005
Delivered on: 3 April 2006
Delivered at: Sydney
Hearing date: 3 April 2006
Judgment of: Scarlett FM

REPRESENTATION

The Applicant: In Person
Solicitor for the Respondent: Ms Quinn
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3714 of 2005

SZHWH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of athe decision of the Refugee Review Tribunal. The decision was signed on 8th November 2005 and handed down on 29th November. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of the People's Republic of China, who arrived in Australia on 13th March 2005. On 8th April she applied for a protection (Class XA) visa but it was refused on 27th April 2005.


    On 30th May 2005 the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal invited the Applicant to attend a hearing on 2nd September. The Applicant attended and gave evidence with the assistance of a Mandarin interpreter.

  2. The Applicant told the Tribunal that she is married with one daughter and her husband and child still reside in China. She told the Tribunal that she had worked as a shop assistant until she started her own business. She said that she had joined the Democratic Party in China in 1998. She took part in a demonstration seeking freedom and democracy and opposing corruption. She told the Tribunal that she had attended other public meetings in October 2000 and in 2002.

  3. The Applicant told the Tribunal she had suffered persecution because in 1998 she was detained for one month as a result of her participation in the demonstration. She said that, could - that whilst in detention, she could not eat or sleep well and suffered physical and emotional torture. She said she was charged with an offence related to joining the Democratic Party but the matter never went to Court. She told the Tribunal that she had been released because her husband paid an amount of money. The Tribunal asked how much money was paid. The Applicant indicated that she did not know.

  4. The Applicant told the Tribunal that the police went to her shop several times from October 2003 onwards and as a result of those visits from the police her business suffered. The Applicant decided to travel to Australia because the police visited her regularly, as they suspected her of political involvement. She told the Tribunal she had no difficulty in leaving China.

The Tribunal’s findings and reasons

  1. The Tribunal in its findings and reasons made adverse findings about the Applicant's credibility. At page 80 of the Court Book the Tribunal said:,

    The Tribunal did not find the Applicant to be credible on some key aspects of her claims, as outlined below.

  2. The Tribunal then set out details of what the Tribunal described as "inconsistencies, contradictions and implausibility" that lead the Tribunal to conclude that the Applicant was not a reliable witness in relation to certain aspects of her claims. The Tribunal then set out a number of bullet points on pages 80, 81 and 82.  Because the Tribunal was not satisfied about the Applicant's credibility, the Tribunal was not satisfied that the Applicant had suffered any serious harm and found that there was no credible evidence upon which the Tribunal could find that the Applicant stands at risk of suffering serious harm in the reasonably foreseeable future if she were to return to China.

  3. The Tribunal was not satisfied that the Applicant hasd a well-founded fear of persecution ??13.06.13Convention reason.

The application for judicial review

  1. After the Tribunal had affirmed the decision not to grant a protection visa, the Applicant sought judicial review from the Federal Magistrates Court. The Applicant filed an Amended Application on 6th March 2006 setting out six grounds for review.  I will summarise those six grounds:.

    i) TFirst, that the Tribunal was biased because the Tribunal was not satisfied about the credibility of some key aspects of the Applicant's claims.

    ii) TTwo, the Tribunal's satisfaction that the Applicant is not a refugee was not based upon reasoning that provided a rational or logical foundation for that belief.

    iii) Three, Tthat the Tribunal failed to consider the Applicant's claims.

    iv) Four, Tthat the Tribunal breached s..424A of the Migration Act, by failing to inform the Applicant in writing of the reasons to affirm the delegate's decision.

    v) Five, Tthat the Tribunal did not refer to sufficient information in considering her application. and

    vi) six, Tthe Tribunal did not observe the Migration Act properly.

  2. In oral submissions the applicant told the Court that ground number 6six, the failure to observe the Migration Act, related to the claim of a breach of s..424A of the Act and in my view grounds 4four and 6six can be considered as one ground. The Applicant filed a Written Submission relating to the grounds of the application or part of themit. The Applicant said that the only information for the Tribunal was that contained in the Minister's file and that given to the Tribunal by the Applicant.

  3. The Applicant submitted that the Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision under s..424A of the Act; and referred to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. The Applicant also submitted that the information was given by the Tribunal in writing to the Applicant extends to information given by the Applicant to the Department of Immigration and Multicultural Affairs as part of her visa application. The application refers to Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27.

  4. The Applicant completed her Written Submission by saying that the Tribunal based its findings on the information or lack of information contained in the Applicant's application for a visa, and was required by s..424A to give particulars of this information, explain why the information was relevant and provide the Applicant with an opportunity to comment upon it. The Applicant submitted that the Tribunal's failure to so act was a jurisdictional error. The Applicant reiterated that submission in her oral submission.

  5. On the question of bias, the Applicant relied on the fact that the Tribunal had not believed that she was a member of the Democratic Party and did not believe key points of her information. As tofor the failure to refer to sufficient information, the Applicant told the Court that this too was connected to a breach of s..424A of the Migration Act. The Applicant submitted that the Tribunal did not give her the opportunity to explain. She did attend the Tribunal hearing but believed that the Tribunal should have given her a written explanation of why the Tribunal was not going to grant her application. She submitted without giving any particulars that there was no reasonable basis for the Tribunal's decision and submitted that the Tribunal did not have enough information to make a decision in her favour.

  6. The solicitor for the Respondent Minister referred the Court to the allegation of bias in the Applicant's Amended Application and pointed out that Courts have taken the view that an allegation of bias or a lack of good faith is a serious matter and ought not to be made lightly.  She referred to the decisions of the Full Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43] to [48], and also Minister for Immigration & Multicultural & Indigenous Affairs v SBAN (2002) FCAFC 431 at [7] to [11]. Her submission was that the Applicant was relying entirely on the Tribunal's reasons for the decision to prove the claim ofwas biased.

  7. In respect of the s..424A point the solicitor for the Minister submitted that the information or lack of information upon which the Tribunal relied came entirely from the Applicant and that there is an exception in s..424A(3)(b). It says that s..424A does not apply to information that the Applicant gave for the purpose of the application. The solicitor for the Respondent submitted that apart from the allegation of bias and the breach of s..424A the Applicant's other submissions were entirely related to the merits of the Tribunal's decision and that the basic reason for the adverse finding was the adverse view that the Tribunal took upon the Applicant's credibility. The solicitor for the Respondent referred the Court to the decision of McHugh J in Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [7].

  8. In my view the Applicant has failed to make out her claim of bias.


    As the Full Court pointed out in SBBS to which I have previously referred and also SBAU v Minister for Immigration & Multicultural Affairs (2002) FCA 1076 at [28], and also SAAG v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 47 at [35] and SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme.

  9. This is especially so where all that the Applicant relies upon is the written reasons for the decision under review. I refer to SBBS at 4.4. There is nothing in the written reasons to show any bias at all on the part of the Tribunal. The Tribunal was not satisfied about the Applicant's credibility on key aspects of her claim. The ground of bias must fail.

  10. Turning to ground two, the proposition that the Tribunal's decision was not based upon reasoning which provided a rational or logical foundation for this belief, the Tribunal was entitled to form a view that the Applicant's credibility on certain parts of her evidence was not reliable. A credibility finding is a finding of fact. It falls entirely to the decision-maker and the decision-maker is not required to give reasons for an adverse credibility decision as was set out in Durairajasingham. In this case, however, the Tribunal set out its reasons for making an adverse finding about the applicant's credibility at pages 80 to 82 of the Court Book. In my view the second ground must fail.

  11. Turning to ground three, the allegation that the Tribunal failed to consider the applicant's claims and believed that the applicant did not have much knowledge of the Democratic Party, this is to my mind a challenge to a factual finding and it is well established that the Court does not conduct a merits review of the applicant's claim.  The Tribunal, as I said, was not satisfied about the applicant's credibility and that finding was overturned by the Tribunal.

  12. As to the claim in grounds four and six relating to a breach of s..424A of the Migration Act, it is clear that the Tribunal did not base its decision on material sent out in the application for a protection visa. The Tribunal considered the information given by Applicant at the hearing and is not satisfied about the credibility of that information. Information given by an applicant in connection with an application for review comes under the exceptions in s..424A(3)(b) of the Migration Act. As the Applicant's submission that in all cases the Tribunal must give information to an applicant in writing about the Tribunal's failure to be satisfied about the credibility of the applicant's case, to my mind that proposition only has to be stated for misconception of that proposition to be apparent.

  13. For a start, a failure to believe an applicant is not information especially where the applicant is providing any information to the Court. The Tribunal is not obliged to reveal its thought processes to the applicant and indeed, if the applicant's proposition was to be accepted, the Tribunal would be obliged to give written reasons to an applicant for comment in every case where a Tribunal is not satisfied that the applicant's application should be granted. That is clearly not the intention of s..424A of the Migration Act. That ground must fail.

  14. As to the final remaining ground that the Tribunal did not refer to sufficient information in the consideration of her application, the applicant again refers to s..424A of the Migration Act. The fact that there is insufficient information for the Tribunal to consider that the Applicant was entitled to the visa does not mean that the Tribunal should have conducted its own independent investigation of the Applicant's case. It is up to the Applicant to satisfy the Tribunal that a visa should be granted. Section 65 of the Migration Act sets out the matters that must be considered and

    Section 65(1)(b) if not so satisfied then the Minister

    or in this case the Tribunal

    is to refuse to grant the visa.

  15. Because the Tribunal was not satisfied about the Applicant's credibility for reasons set out in the decision, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason. Because the Tribunal was not satisfied, the Tribunal was obliged by s..65 of the Act to refuse to grant the visa.

  16. The Applicant has failed to demonstrate any jurisdictional error. I have read through the Tribunal decision myself, mindful of the fact that the Applicant was not legally represented. I am unable to discern any other jurisdictional error or any other error at all. It follows that the decision of the Tribunal is a privative clause decision that attracts the protection of s..474 of the Migration Act. The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V Lee

Date:  10 April 2006

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Cases Citing This Decision

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SZHWH v Minister for Immigration & Multicultural Affairs [2006] FCA 1182