SZHXI v Minister for Immigration
[2006] FMCA 772
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 772 |
| MIGRATION – Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – application for a show cause proceeding under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.66, 91X, 422B, 424A, 476 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 |
| Applicant: | SZHXI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3765 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Advocate for the Respondents: | Mr J Bird |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The first respondent’s application to show cause is upheld.
The application filed on 20 December 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application, fixed in accordance with r.44.15 and Sch 1 Pt 2 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3765 of 2005
| SZHXI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 December 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 10 November 2005 and handed down on 1 December 2005, affirming a decision of the delegate of the first respondent made on 27 September 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The first respondent applies for an order that the applicant show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Act, in respect of the Tribunal decision made on 10 November 2005 and handed down on 1 December 2005. It does so on the ground that there is no reasonable cause of action shown, and pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), this matter should be dismissed without proceeding to a final hearing.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHXI”.
The applicant in these proceedings filed an application and relies upon the following grounds for judicial review:
1.Judicial review is sought on the ground that the Tribunal failed to accord the natural justice.
2.Judicial review is sought on the ground that the Tribunal made an error of law being jurisdictional error in that the Tribunal identified the wrong issue and/or relied on irrelevant material.
3.Judicial review is sought on the ground that the Tribunal failed to exercise its jurisdiction under the Migration Act and/or acted in excess of its jurisdiction. (copied without alteration or correction)
The first respondent filed a response in these proceedings which relies upon the following in defence:
a)The application for review alleges jurisdictional error and denial of natural justice but no particulars are provided whatsoever. Although an affidavit accompanies the application, it only states that the applicant does not have a lawyer and does not assist in providing any particulars which would be grounds for an application for judicial review.
Reasons
The applicant is a self-represented litigant and appeared with the assistance of a Bengali interpreter. He appeared before me at first directions on 8 February 2006, at which time he indicated his desire to participate in the Court’s Legal Advice Scheme. A panel lawyer was subsequently allocated to the applicant. He was also granted leave to file an amended application by 23 March 2006, together with any other affidavit material in support. The applicant has not availed himself of that opportunity.
Also at first directions, a show cause proceeding was scheduled. The applicant has filed written submissions for this hearing. As they contain a series of new grounds not previously raised by the applicant in his original application, I will in effect treat the applicant’s submissions as an amended application to determine whether any issue has been raised that identifies jurisdictional error in the Tribunal’s decision. I also acknowledge the difficulties the applicant faces by not speaking the language or understanding the legal system in which he is attempting to proceed.
The applicant’s submissions contain 14 grounds, some of which, such as the first ground, raise multiple issues. Other grounds are just bland statements alleging error without any attempt to identify the error, or to particularise the claim. In the other grounds, the applicant refers to sections of the Act and to leading authorities in respect of principle, which do not appear to have any relevance to the alleged error that the applicant claims.
The first claim is that the Tribunal did not follow the proper procedures as required by the Act. This is not particularised and there is no indication what the alleged error was. Division 4 of the Act establishes the conduct of the Tribunal during the review. Since the introduction of s.422B of the Act on 4 July 2002, this Division is an exhaustive statement of the natural justice hearing rule. A review of the Court Book and the decision does not indicate any error, on the face of it, in respect of the Tribunal’s procedure. The applicant relies on Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 as authority that he was denied procedural fairness, presumably on the basis that the Tribunal did not follow proper procedure. The applicant does not make any attempt to identify which procedural aspect the Tribunal failed to observe. Nor is this apparent from the face of the decision, which is the only material available that records the Tribunal proceeding and reasoning. There is no transcript or any other evidence referring to the Tribunal’s proceeding. This claim cannot be sustained.
The next claim is that the Tribunal did not have the power to make its decision. He refers to s.66(1) and (2) of the Act not being observed. These provisions of the Act relate to the notification of the delegate’s decision regarding a grant or refusal of a visa. This alleged breach is not particularised or explained in any way. The Court Book indicates that the Minister’s delegate made the decision in respect of this applicant on 27 September 2005 and forwarded a letter him when he was at the Villawood Immigration Detention Centre. Two days later on 29 September 2005, the applicant filed an application seeking review of the delegate’s decision by the Tribunal. I find it difficult for the applicant to sustain an argument that there was a breach of these subsections of the Act based on the material available to this Court.
The third claim is that the Tribunal breached the rules of natural justice in connection with the making of its decision. Again this claim is without particulars or reference to the nature of the error. I believe this claim is adequately addressed at [9] above.
The fourth claim is that the Tribunal exceeded its jurisdiction by asking itself the wrong question regarding the applicant’s persecution and did not take into account oral evidence given by the applicant in support of his claim. Again this was without any evidence or particulars. A review of the Tribunal decision on its face does not disclose an error of this nature committed by the Tribunal. The Tribunal decision, under the heading ‘Claims and Evidence’, contains a section headed ‘Information at hearing’.(CB 85) This clearly sets out a broad range of issues that were discussed at the Tribunal hearing, resulting in the an invitation to the applicant to file post-hearing submissions. The Tribunal is not obliged to explain its approach to every piece of evidence provided or discussed during the hearing, nor to its line of reasoning: Singh v Minister for Immigration [1996] 902 FCA 1.
The fifth claim in the first ground raised a number of issues in respect of the use of country information. This was also submitted without evidence or particularisation and involves a number of distinct issues. The applicant claims that the Tribunal failed to put country information to him and invite his comments. That it took this country information into account raises the issue of whether this constitutes a breach of statutory obligations pursuant to s.424A(1) of the Act. Therefore the question is whether the Tribunal was exempt from that obligation because the country information falls within the exception provided by s.424A(3)(a).
Section 424A(1) obliges the Tribunal to give the applicant particulars of any information that it considers would be the reason or part of the reasons for affirming the decision under review. The scope of the exception in s.424A(3)(a) could be in issue. This section does not apply to information that is not specifically about the applicant but is just about a class of persons of which the applicant is a member. The applicant then raised the alleged failure of the Tribunal to consider the Amnesty International country information. Whether the Tribunal did or did not consider that information in its deliberation does not need to be explained in its decision. This is discussed at [12] above. The question as to which country information was used and the relative weight that the Tribunal applied to that information in its decision is a question for the Tribunal in its merits review.
The second, fourth, sixth, seventh and tenth grounds are nothing more than simple allegations of error without an attempt to identify or particularise the nature of that error. None of these individual grounds can be sustained.
The third ground is that the applicant was not provided with an opportunity to provide more information. Although not clearly stated, this ground appears to refer to oral evidence presented at a Tribunal hearing. The Tribunal wrote to the applicant at the Villawood Detention Centre on 7 October 2005, inviting the applicant to attend a Tribunal hearing on 17 October 2005. That letter indicated that the Tribunal had considered all the material before it in relation to the applicant’s application, but was unable to make a decision in his favour on that information alone. The invitation was extended for the applicant to bring any witnesses and to file further documentation and written arguments in support of his case.
On 14 October 2005, the applicant responded to the Tribunal indicating that he wished to attend the Tribunal hearing. At about the same time, the applicant forwarded a letter addressed to the Tribunal seeking an extension of time due to illness. He required the additional time to prepare his documentation for the hearing. That application was accompanied by a medical certificate indicating that the applicant was suffering from a viral illness. The hearing proceeded on 17 October 2005 with the applicant and an interpreter present. During the hearing, the Tribunal granted the applicant a further two weeks in which to submit further documents in respect of his application. A letter was sent by the Tribunal on 1 November 2005 extending this deadline by another week.
The applicant responded with a letter seeking more time in which to file the additional documentation. On 10 November 2005, the Tribunal advised the applicant that the decision would be handed down on 1 December 2005. In respect of oral evidence, there is nothing before the Court, such as a transcript of the Tribunal hearing, which indicates that the Tribunal did not provide the applicant with ample opportunity to make statements to it.
The applicant appeared before me on 8 February 2006 at first directions when he was ordered to file any additional affidavit material in support of his application by 23 March 2006. This was the same date that the applicant was granted leave to file an amended application should he have elected to do so. The applicant did participate in the Court’s Legal Advice Scheme prior to the filing of these documents. As stated above, the applicant’s submissions filed on 19 April 2006 contain a series of grounds which I have treated as an amended application, so that he is accorded the opportunity to put these issues before the Court. In the absence of any evidence to support the third ground, this ground cannot be sustained.
The fifth ground alleges actual bias. The test for actual bias is set out in the Full Federal Court decision of Sun Zhan Qui v Minister for Immigration (1997) 81 FCR 71 at 127 per Wilcox J:
Actual bias requires an applicant to show “that the tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case”.
This test was followed and expanded upon in Sarbjit Singh v Minister for Immigration [1996] 902 FCA 1 per Lockhart J, where His Honour made three points:
That the member concerned has formed a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias, and so to disqualify a tribunal member from hearing a matter: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Gaudron and McHugh JJ. at 100. Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case.
It is important to keep in mind, when actual bias is alleged, that the matters upon which reliance is placed to establish bias must be considered in the context of the whole of the hearing before the decision-maker: Galea v Galea (1990) 19 NSWLR 263 per Kirby ACJ at 279. For bias to be established, the circumstances of the case must raise 'quite a substantial case': Khadem, per Hill J. Also, it is obviously permissible for judges or decision-makers to make their views known to a party during a hearing so that there may be an opportunity to fully discuss and ventilate the issues in the case: Khadem. It is not sufficient to show that a decision-maker has displayed irritation or impatience or even sarcasm during a hearing; regrettable though these manifestations may be, whether the relevant states of mind approach the level required to support a finding of actual bias remains a question of fact in each case.
The applicant claims that the Tribunal ignored relevant evidence and that its finding was contradicted by independent evidence. There are no submissions or particulars which identify any of this evidence, nor any argument to suggest how this evidence is contrary to the decision. The applicant claims that the Tribunal’s findings indicate actual bias. However, the authorities are clear that one cannot extrapolate bias from the existence of adverse findings alone. This was confirmed in SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J:
38.In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
Also contained in the fifth ground is a reference to Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [113] per Gaudron J. That paragraph relevantly states:
113.Whether procedural fairness is to be seen as a common law duty or an implication from statute, it is an adaptation of the rules of natural justice to ensure fairness and flexibility in administrative decision-making. Consistency with those rules requires that it be accepted that, where a decision-maker is required to accord procedural fairness, that requirement is an essential condition of the exercise of the decision-making power. Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief. Discretionary factors which will militate against the grant of prerogative relief include situations where the relief will serve no useful purpose or where the breach had no effect on the decision in question.
Again, this passage sets out matters of principle, but no attempt has been made by the applicant to identify how Abebe v Commonwealth of Australia relates to him, other than his allegation of actual bias. This has been raised without any attempt to identify the occurrence of actual bias in the actions of the Tribunal member in any aspect of the decision-making process. I am satisfied that this ground is nothing more than a bland allegation of error made in the absence of supporting argument or link to the Tribunal decision and its decision-making process.
The eighth ground is a further statement of principle commonly used in judicial review of administrative decisions, but has no direct reference or link to the Tribunal decision in this case. As this statement of principle makes no reference to this Tribunal decision, it does not raise an issue.
The ninth ground appears to make reference to the delegate’s decision, which is not the subject of this judicial review. However, the ground states that the delegate referred to a list of documents recorded under ‘Part (c)’ and claims that one of those documents makes a reference to India, whereas the applicant is a Bangladeshi citizen. That document is not identified and it is not immediately apparent from the Court Book which document it is. Neither is it clear the objection he has to it. The applicant suggests that this unidentified document referring to India was used in a negatively against him in assessing his protection visa claim. In this void of information, it is not possible to determine the nature of the applicant’s claim.
The eleventh ground is a statement by the applicant and does not identify any ground of review.
The twelfth ground claims that the Tribunal failed to advise the applicant of the adverse material it relied upon. I have already addressed this at [12] and [13] above.
In the thirteenth ground, the applicant claims that before the Tribunal made up its mind to dismiss his application, it should have furnished him with information in writing and sought his comments in order to comply with s.424A. The applicant relies on SAAP v Minister for Immigration [2005] HCA 24. If the applicant is referring to country information as set out in the Tribunal decision at CB 88 to 89, s.424A(3) is enlivened as that is not material specifically about the applicant.
The material referred to by the Tribunal at CB 88 to 89 relates to the demise of the Freedom Party of Bangladesh and the fact that the Party has almost ceased to exist, information that the applicant appeared to be oblivious to. The Tribunal quite clearly set out the substance of the applicant’s only claim: his membership of Freedom Party and the impact that had on the applicant. The applicant did make reference to newspaper articles, which he claimed showed assaults against fellow members of the Party, and that he may in turn be subject to such attacks. These articles were never produced, although the Tribunal did provide the applicant with additional time to do so.
At the conclusion of the Tribunal hearing, as a result of issues that were discussed, the applicant was allowed the opportunity to provide the Tribunal with post-hearing submissions. Nothing was forthcoming, except a request from the applicant for a further extension of time to enable him to obtain documents from Bangladesh. The applicant, in his submissions, does not identify the documents that he claims he should have been provided with. A consideration of the Tribunal decision does not identify any documents that would be subject to s.424A in light of SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2.
The fourteenth paragraph of the applicant’s submissions is nothing more than a request to return the applicant’s claim to the Tribunal for further consideration.
Conclusion
The applicant is a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr Bird, appearing for the respondents, assisted the Court with his submissions. The applicant was relying on documents which appear to have been copied from various sources currently circulating among fellow litigants in this jurisdiction. Unfortunately, the applicant appears to have little comprehension of the content of these documents, nor does he understand the operation of the Court. It is acknowledged that the applicant is desperately attempting to establish the validity of his protection visa application. He has based his claims solely on his membership of a now defunct political party in Bangladesh. This Party has been effectively absorbed into other mainstream political movements with its cause dispersed. The applicant’s attempt to build his claim about political intrigue resulting from his membership of this Party is eroded by the change in the Party’s political circumstances. The Tribunal decision was based on its lack of satisfaction as to the creditability of the applicant’s claim and the story built around his claim.
I am satisfied that the applicant has been given every opportunity to advance his claim by participating in the Court’s Legal Advice Scheme and the opportunity to file an amended application and supporting affidavit material after participating in that scheme. I am not satisfied that if the applicant proceeded to a final hearing, he would be in a position to enhance his application in any way. An opportunity has been provided and nothing of significance was presented to indicate that his position would change. I am satisfied that no reasonable cause of action has been shown and that the matter should be dismissed in accordance with r.44.12 of the Rules without proceeding to a final hearing.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in accordance with r.44.15 and Sch 1, Pt 2 of the Rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 29 June 2006
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