SZHYZ v Minister for Immigration
[2006] FMCA 628
•20 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 628 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.426A, 474 |
| MAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 2005 CLR 501 SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 47 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SBAU v Minister for Immigration & Multicultural Affairs [2002] FCA 1076 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZDZS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 755 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 481 |
| Applicant: | SZHYZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3842 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 April 2006 |
| Date of Last Submission: | 20 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,550.00 and I will allow (4) four months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3842 of 2005
| SZHYZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was handed down on 6th December 2005 and affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant. The applicant is a citizen of the People's Republic of China who arrived in Australia on 2nd May 2005. He applied for a protection (class XA) visa some eight days later but this was refused on 6th August 2005. The applicant then applied for review of that decision by the Refugee Review Tribunal.
On 5th October 2005 the Tribunal wrote to the applicant inviting him to a hearing which was to take place on 4th November 2005.
The applicant replied by means of a response to hearing invitation dated 10th October 2005 indicating that he would like to attend the hearing and needed an interpreter in the Mandarin dialect of Chinese. The applicant did not attend the hearing. He told the Court today that he did not attend because he feared that there were many spies and he made a decision for his own safety not to go to the hearing.
The Tribunal proceeded to apply the provisions of s.426A of the Migration Act and determined the application without giving the applicant any further opportunity to attend the hearing.
The Tribunal noted the applicant's claims that he was a practising Catholic and a member of the underground Christian church from the province of Hebei who attended church illegally. The Tribunal referred to independent country information, namely a US State Department report 2004 relating to religious spread in the People's Republic of China. The Tribunal quoted at length from that document on pages 64 through to 68 of the Court Book.
The Tribunal then, at page 68 of the Court Book, stated that in determining whether the applicant had a well-founded fear of persecution for a convention related reason, it was necessary to assess the applicant's claims and determine if those claims were credible and plausible in light of the independent evidence of a particular country. The Tribunal noted that the applicant was put on notice that the Tribunal was unable to make a favourable decision on the information before it. The Tribunal noted that the applicant did not provide any further information to support his claims, nor did he give the Tribunal the opportunity to explore relevant aspects of his claims with him.
The essential part of the Tribunal's findings and reasons appears in this paragraph which is quoted on page 68 of the Court Book:
The applicant's claims are lacking in detail. Without further information from the applicant, I am not satisfied the applicant is a Christian or a Catholic or a member of the underground church. It follows I am not satisfied the applicant fled China fearing harm from the Chinese authorities for his religion. I am unable to be satisfied that the applicant has a well-founded fear of persecution for reasons of his religion.
The Tribunal noted that the applicant had not claimed to fear persecution for any other convention reason and no other reason was suggested on the evidence before the Tribunal. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason and affirmed the decision not to grant a protection visa. The applicant has sought judicial review of that decision and in his amended application filed on 11th April. He seeks writs of prohibition, certiorari and mandamus.
He sets out one ground, namely, that the Tribunal failed to carry out its statutory duty. In the particulars of that ground, he claims that the Tribunal failed to provide him in writing with particulars of the information that was the reason or part of the reason, for affirming the decision and has therefore breached s.424A of the Migration Act.
The applicant relies on the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, and on the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27. He quotes extensively from the judgments of McHugh and Hayne JJ in SAAP (supra) and from paragraph 17 of
Al Shamry(supra).
In oral submissions to the Court, the applicant reiterated his claim about a breach of s.424A of the Migration Act. He also made two other claims. First, he said that the Tribunal did not understand the real situation in relation to religious freedom in China. The Tribunal did not believe that he was a Catholic and a Christian. Second, the applicant claimed that the Tribunal member had shown bias towards him by dealing with his case in a way that breached s.424A of the Migration Act.
The solicitor for the respondent Minister, Ms McNamara, referred to the respondent's outline of submissions which had been filed prior to the filing of the applicant's amended application. In her oral submissions she put to the Court that there was no breach of s.424A of the Migration Act and in particular referred the Court to paragraph 29 of the decision of Alsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195. That decision is a decision on appeal from a Federal Magistrate. At paragraph 29 his Honour said:
On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s.424A(1) by s.424A(3)(b), it must be that that information was the reason, or part of the reason, for the decision. That is too simplistic an analysis. In SZECF, and here his Honour was referring to his decision in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200, which was also an appeal from a decision of this Court. I discussed the purpose of s.424A. Its operation is to be understood conformably without purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s.424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information.
His Honour went on to say at 29:
It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
In reply to the applicant's second ground relating to the Tribunal's alleged failure to understand the real situation in China, and the Tribunal's disbelief that the applicant was a Catholic or a Christian, it was submitted that this was no more than a challenge to a factual finding and was in effect a claim for merits review. It was submitted at s.65 of the Act and in particular Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 481. Both made clear that these should be rejected in the absence of a positive finding of satisfaction.
A Court, and this was also made clear in Wu Shan Liang (supra), does not conduct a merits review of the factual basis for Tribunal decision. And here the Tribunal had done no more than say that the information provided was inadequate to allow the Tribunal to form a positive status of satisfaction required by s.65 of the Migration Act. In my view that submission was correct.
Turning to the third ground. It was submitted that the decision of the Refugee Review Tribunal did not contain any bias; I was referred to the decision of SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37] where it was made clear that an allegation of bias is a serious allegation and should not be made lightly. It was also submitted that the High Court has noted that a party who asserts actual bias on the part of a decision maker carries a heavy onus and the allegation must be distinctly made and clearly proved. See Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 2005 CLR 501 at [127], see also SZDZS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 755 at [710].
Turning now to the conclusions to be drawn, the Tribunal in dismissing the applicant's application, or affirming the decision of the delegate, referred to country information, which was independent country information, which of itself was not a breach of s.424A of the Migration Act. It was not a situation of the Tribunal referring to other information and relying on that, either partly or wholly, to affirm the delegate's decision. It is quite clear from the paragraph on page 68 of the Court Book, to which I previously referred, that the Tribunal was not satisfied that the applicant had made out his case on the relevant matters that needed to be provided due to the inadequacy of information.
Whilst it is regrettable that the applicant formed the view that there were too many spies around for him to risk attending a hearing of the Refugee Review Tribunal, in doing so he gave up his opportunity to give evidence and argue his case to the Tribunal which had the power to conduct a merits review of the delegate's decision. I refer to the decision of Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, again an appeal from a Federal Magistrate, where his Honour said at [16]:
The RRT made it pellucidly clear in its letter of 12th March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 when the appellant failed to accept the opportunity to elaborate on that information of the scheduled hearing, the inevitable consequence was the rejection of his application. Thus even though the RRT adverted to matters (b) and (c) in its reasons, what was integral to the RRT's reasoning process was the notified inadequacy of the information provided by the appellant in support of his claims, and his rejection of the invitation to appear at a hearing designed to afford him the opportunity to elaborate on that information.
In my view, with respect, that description applies to the decision of the applicant before me not to attend the hearing of the Tribunal.
Dealing with the applicant's claim relating to the factual findings of the Tribunal, or his claim that the Tribunal did not understand the situation relating to religious matters in China, this was clearly a factual matter for the Tribunal. The Tribunal relied on independent country information from the United States State Department and quoted that extensively. That was general information, not about the applicant or a particular person, it was general information.
There is no justification for the Court to review any factual finding made by the Tribunal. As to the claim of bias, I am of the view that the submissions made on behalf of the respondent Minister set out the law. I note the decision of the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 where Tamberlin, Mansfield and Jacobsen JJJ drew together a number of judgments of single judges of the Federal Court in which the principle is applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review have been stated. At 44, their Honours said:
The fifth proposition is of 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. SBAU - referring to SBAU v Minister for Immigration & Multicultural Affairs [2002] FCA 1076 at [28], citing SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 47 per Mansfield J at [35] and SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 per von Doussa J.
I would make it quite clear as a proposition of law that a breach of s.424A of the Migration Act, even if proved, would not of itself satisfy the Court that there had been bias on the part of the Tribunal. There is no evidence of bias. There is no breach of s.424A of the Migration Act. I have read through the decision of the Tribunal thoroughly; it is a relatively short decision, and it is relatively short because the applicant did not attend the hearing and did not give evidence to the Tribunal. There is no jurisdictional error that I can discern.
The Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act, and it attracts the protection of s.474 of the Migration Act so that no writ of prohibition, certiorari or mandamus will be appropriate. As there is no reviewable error, the application will be dismissed.
The applicant has been wholly unsuccessful in this application and I see no reason to depart from the usual practice that costs follow the event. In other words, the successful respondent should be entitled to an order for costs. The fact that the applicant says that he cannot pay is not of itself a reason for not making a costs order; although it is a matter that I will take into account in assessing the quantum of costs and in assessing time to pay. The amount of costs which is sought is $2,550.00. In my view, that is well within the scale of costs and in the light of the material that appears before me in the Court file appears to be a relatively modest amount.
I propose to make an order that the applicant is to pay the first respondent's costs in the sum of $2,550.00. I note his claim that he is unable to meet that amount of costs at present and I propose to allow four months to pay.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 28 April 2006
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