SZICO v Minister for Immigration
[2010] FMCA 291
•28 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZICO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 291 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The Applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonyms “SZICO” (Applicant husband), “SZICP” (Applicant wife) and “SZICQ” (Applicant son). |
| Migration Act 1958 (Cth), ss.91R, 91X, 417, 424A |
| Livesey v The New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Refugee Review Tribunal, Re; Ex Parte H (2001) 75 ALJR 982 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110 SZICO v Minister for Immigration and Multicultural Affairs [2006] FCA 1803 SZICO & Ors v Minister for Immigration & Anor [2006] FMCA 435 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885 |
| First Applicant: | SZICO |
| Second Applicant: | SZICP |
| Third Applicant: | SZICQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1691 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2010 |
REPRESENTATION
| Applicant: | The Applicants appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms L. Buchanan of Australian Government Solicitors |
ORDERS
The application filed on 16 July 2009 is dismissed.
The Applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1691 of 2009
| SZICO |
First Applicant
| SZICP |
Second Applicant
| SZICQ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicants are husband (SZICO), wife (SZICP) and son (SZICQ), who claim to be citizens of the Peoples Republic of China, arrived in Australia on 6 December 2002. They First Applicant applied to the then Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa on 28 May 2003. Only the First named Applicant submitted his own claims to be a refugee in the Protection visa application. The Second and Third named Applicants applied as members of the Applicant’s family unit but later the second and third named Applicants also made claims to fear persecution. All Applicants claimed to fear persecution due to their membership of and participation in Yiguan Dao, an outlawed Daoist religious sect. The First and Second Applicants claimed to have practiced Yiguan Dao in China since 1995. The First Applicant’s claims were set out in the statutory declaration submitted with his Protection visa application. The First Applicant claims that he was arrested for his practice in January 2002 and to have been tortured, but that the case against him was closed after a family member arranged for a bribe to be paid. The Third Applicant son claimed to have become a practitioner in Australia.
The Applicants were refused their visas by a delegate of the Minister on 17 June 2003. The Applicant’s applied to the Tribunal on 22 July 2003 and on 19 December 2003 after the Applicants did not attend the hearing with the Tribunal to which they invited, the Tribunal affirmed the decision under review. An application was made to the Federal Magistrates Court and on 30 March 2006 that application was dismissed as incompetent as it was filed out of time (SZICO & Ors v Minister for Immigration & Anor [2006] FMCA 435). An appeal to the Federal Court was made and subsequently dismissed on 21 December 2006 (SZICO v Minister for Immigration and Multicultural Affairs [2006] FCA 1803).
Concurrently, with the unsuccessful applications for judicial review, an application was made to the Minister under the provisions of s.417 of the Migration Act 1958 (Cth) (“the Act’) seeking Ministerial intervention. The first application was made on 21 April 2004 and on 19 February 2005, the Minister for Citizenship and Multicultural Affairs indicated that he had decided not to exercise his power in this matter. On 5 November 2007 the Applicants again sought Ministerial intervention pursuant to s.417 of the Act. On 14 April 2008 the Applicants were informed that the Minister would not exercise his power under s.417 of the Act. However, on 16 June 2008 the Applicants were informed that the Minister had, on 3 June 2008, decided pursuant to s.48B of the Act, that it was in the public interest to allow them to make a further Protection visa application. Consequently, on 25 June 2008, the Applicants lodged further applications for Protection visas. While only the First Applicant completed Part C of the Form 866C Application under “application for an Applicant who wishes to submit their own claims to be a refugee” in the statement attached to this application, the Second and Third Applicants made claims to fear persecution on the basis of their Yiguan Dao beliefs.
The First Applicant was interviewed by the Department on 18 August 2008 and on 22 September 2008 the delegate of the Minister refused the Applicants’ protection visa application. A further application was made to the Tribunal on 30 September 2008. The second Tribunal, constituted with Tribunal member James Silva RRT Case Number 0806318 dated 12 June 2009 is the decision which is under judicial review in these proceedings.
A Court Book (“CB”) compiled by the solicitors of the First Respondent is marked Exhibit “A” and is the only evidence before the Court.
The application for review filed on 16 July 2009 contains two unparticularised grounds of review which state
1. The Refugee Review Tribunal failed to consider my application according to s.91R of the Migration Act 1958 because of the Tribunal’s bias against me
2. The Refugee Review Tribunal failed to carry out its statutory duties. The Tribunal did not notify me of part of the reasons for affirming the decision of the Immigration Department. The Tribunal failed to consider my application according to s.424A of the Migration Act.
The Tribunal hearings
The Applicants, along with a witness, attended a hearing of the second Tribunal on 18 November 2008 at which the First and Second Applicants gave evidence (CB 314, 359 – 365). The Applicants also provided the Tribunal numerous documents and additional statements in support of their claims (CB 267 – 298, 303 – 304). Immediately after the Tribunal hearing, the Tribunal forwarded to the Applicants, a letter seeking comments from them regarding information the Tribunal considered would be the reason or part of the reason for affirming the decision under review (CB 315 – 319). The First Applicant responded to the invitation by a letter dated 27 November 2008 (CB 321 – 323). The Tribunal invited the Applicants to attend a further hearing of the Tribunal on 8 January 2009 (CB 324- 325). At the second hearing the three Applicants and their witness gave evidence (CB 329, 367 – 370). During the hearing, the Tribunal put to the Applicant orally, a number of concerns that it had. Immediately after the hearing, the Tribunal again sent a further letter seeking the Applicant’s comments upon information (CB 335 – 341). The Second and Third Applicant responded to the invitation by forwarding separate letters dated 20 January 2009 to the Tribunal (CB 342 – 349). In a decision dated 6 July 2009 the second Tribunal affirmed the decision of the Delegate (CB 350 – 381)
Tribunal’s ‘Findings and Reasons’
In setting out the following summary of the Tribunal decision I have relied upon the written submissions of Ms L. Buchanan, solicitor for the respondents and I have either paraphrased or quoted directly from those submissions. I have not made further attribution as this would make the summary unwieldy. The information was provided to assist in the understanding of the nature of the application before the Court, and not to establish any evidentiary point.
The Tribunal found that the First Applicant husband was a witness of low credibility (CB 373 at [133]). It found he was willing to change his evidence and add new claims to address perceived weaknesses in his account. The Tribunal did not accept that the First Applicant had any association with Yiguan Dao in China based upon eight factors including:
a)His level of knowledge of Yiguan Dao was limited and inconsistent with his claimed length of association (CB 373 at [135]);
b)He gave evasive and unconvincing reasons for his lack of knowledge about Yiguan Dao and did not accept the First Applicant’s explanation for this, being his limited understanding of Mandarin (CB 373 at [136] – [137]);
c)The First Applicant’s evidence regarding the family involvement in Yiguan Dao in China was inconsistent, and it found that evidence regarding the Second Applicant’s involvement in Yiguan Dao to be a recent invention which cast doubt on the family’s credibility (CB 374 at [138]);
d)The Tribunal rejected the First Applicant’s claimed detention in 2002 as recent invention to address concerns raised by the Delegate regarding the Applicant’s claims. The First Applicant did not adequately explain why he did not mention this until 2008 and the Tribunal placed little or no weight on the corroborative documents or witness’ evidence (CB 374 at [139] – [140]);
e)The First Applicant’s delay in leaving China after his claimed detention reinforced the Tribunal’s doubts about the First Applicant’s claim (CB 376 at [141]);
f)The Applicants gave misleading information about their overseas travel prior to coming to Australia (CB 376 at [142]);
g)The Applicants’ delay in lodging their protection visa application in Australia cast further doubts upon their claims (CB 376 at [143]); and
h)The Applicants’ failure to make contact with Yiguan Dao practitioners in Australia until late 2005, almost three years after arriving in Australia, was compelling evidence that they were not involved in Yiguan Dao in China. Their evidence regarding when they made contact cast doubt on their credibility. The Tribunal did not accept that the Applicant husband and Applicant wife practiced at home between 2002 and 2005 and rejected the Applicant husband’s claim to have tried to find out about Yiguan Dao practitioners between 2002 and 2005. Further, the Tribunal found that the First and Second Applicants’ inaction for the first three years in Australia is strong evidence that they were not Yiguan Dao practitioners (CB 376 at [144]).
The Tribunal did not accept that the Second Applicant was a Yiguan Dao practitioner in China. While it accepted that she had previously relied upon her husband’s claims, it did not accept that this explained why she had made no mention of her involvement in Yiguan Dao until 2008 and found this claim to be a recent one of doubtful credibility. As her activities in China also relied upon her husband’s account, the Tribunal’s adverse finding in relation to the husband led it to find that she was not a practitioner or a spouse of one. It also found her travel outside of China, without enquiring about seeking refugee status, supported its finding. The Tribunal took into account, in assessing the Second Applicant’s claims, that she claimed to suffer from depression but did consider whether there was any limit upon her capacity to give evidence (CB 377 at [146] – [150]).
The Tribunal found that all three Applicants had engaged in Yiguan Dao activities in Australia since 2005. However, it was not satisfied that the First and Second Applicants engaged in this conduct otherwise than for the purpose of strengthening their refugee claims and disregarded it for the purposes of s.91R(3) of the Act (CB 378 at [151] – [153]).
The Tribunal found that the Third Applicant had engaged in Yiguan Dao in Australia and that his parents had instructed him to do so and because of what he had been taught. It found this conduct was not for the purpose of strengthening his refugee claims, but did not disregard it. However, the Tribunal did not accept that the son lives in a Yiguan Dao household, would not be encouraged to engage in such practice if he returned to China and did not accept that he had any genuine affinity with it that would motivate him to independently practice it if he returned to China (CB 379 at [157] – [159]). The Tribunal also considered a claim that the Third Applicant had been told negative things about Chinese politics and economic system, but did not accept that he had developed a political opinion that would give rise to any conduct in China that would bring him to adverse attention of the authorities (CB 380 at [160]).
The Tribunal did not consider any other disadvantages raised by the Applicants about returning to China that give rise to ‘serious harm’ or any Convention related persecution. (CB 380 at [161]). The Tribunal was therefore not satisfied that the Applicants were persons to whom Australia owed protection obligations.
Consideration
The Applicant appeared at the first court date directions hearing on 12 August 2009 and indicated that he wished to participate in a Court sponsored legal advice scheme. He was subsequently allocated a panel advice member, attended a conference with that advisor and received written advice. At the first court date directions, the Applicant was granted leave to file an amended application with supporting affidavit material, however the Applicant has not availed himself of this opportunity. The Applicant was also required to file written submissions 14 days prior the hearing but this was not forthcoming. During the hearing the Applicant was invited to make any oral submissions in support of his application, but he declined to do so. The two grounds of review which are set out above are not particularised.
Ground 1
This ground alleges that the Tribunal failed to consider the application in accordance with the criteria set out in s.91R of the Act. However, there is no particularisation in respect to what aspect of s.91R the Tribunal has failed to consider. There is no attempt by the Applicant to identify what aspect of their claims the Tribunal has ignored in respect of the criteria contained in that provision. The ground then purports that this omission on behalf of the Tribunal was due to bias. But again, there are no particulars of this allegation.
A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69]. The existence of actual bias may be inferred by circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from a factual error or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885 at [36]; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44].
A case of actual bias is seldom made out in reference solely to the reasons for decision and no inference of bias or prejudice can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3]. Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (supra) at [71] and [72]. On a fair reading of the Tribunal decision and in the absence of any particulars or submissions identifying what aspect of the Tribunal decision the allegation of actual bias arises, I am not satisfied that this claim can be sustained.
Alternatively, if the Applicant is attempting to claim apprehended bias, which will be said to exist where a fair-minded lay-observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal would not apprehend that the Tribunal member might not bring an impartial mind to the resolution to the question to be solved: Refugee Review Tribunal, Re; Ex Parte H (2001) 75 ALJR 982 at [27]; Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at [293] – [294]. A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the Tribunal member’s mind to be absent of any pre-disposition or inclination for, or against an argument or conclusion. All that is required is that a Tribunal member be open to persuasion: Jia Legeng (supra) at [72] and [86]; and
b)Apprehended bias, in the context of an administrative decision maker is not intended with the stricture that applies in a case of judicial judgment: Jia Legeng (supra) at [179] – [187] and [244] – [245]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [19].
Again, in the absence of any particularisation or submissions identifying what aspect of the Tribunal decision points to this alleged conduct, it is not apparent from the face of the document that this has occurred. In the circumstances I am not satisfied that this claim can be sustained and should be dismissed.
Ground 2
This ground alleges that the Tribunal failed to consider the application in accordance with s.424A of the Act. This allegation again is made in the absence of particulars or submissions. The decision record, together with the contents of the Court Book indicate that the Tribunal provided to the Applicants, in addition to raising adverse information with them at the hearing, two detailed s.424A letters to which they responded. In its second letter, the Tribunal also specifically set out information given by each Applicant, relevant to the other Applicants’ claims and invited each Applicant to comment upon the information. To which each did: SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110.
In the absence of any evidence in the form of particulars or submissions identifying what aspect of the Tribunal’s proceedings led to an alleged breach of s.424A, it is not apparent on a fair reading of the material available that this breach has occurred. In the circumstances this ground cannot be sustained and should be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd- Jones FM
Associate:
Date: 28 April 2010
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