SZICW v Minister for Immigration - [2007] FMCA 276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICW v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 276

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 420, 422B, 424, 427, 476
Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12

NAHT of 2002 v Minister for Immigration [2002] FCA 1049
S1527 of 2003 v Minister for Immigration [2005] FMCA 1846
SBBS v Minister for Immigration [2002] FCAFC 361
SCAA v Minister for Immigration [2002] FCA 668
SZFNK v Minister for Immigration [2006] FCA 1601

Applicant:

SZICW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG145 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

31 January 2007

Delivered at:

Sydney

Delivered on:

9 March 2007

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Advocate for the Respondent:

Ms E Palmer

Solicitors for the Respondent:

Clayton Utz Solicitors

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 16 January 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG145 of 2006

SZICW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 16 January 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 30 November 2005 and handed down on 20 December 2005, affirming a decision of the delegate of the first respondent made on 28 February 2005, refusing to grant the applicant a protection (class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZICW”.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) I dispensed with a hearing under r.44.12 of the Rules as requested by the applicant and set the matter down for a final hearing.
A Court book ("CB") prepared by the respondents’ solicitors filed and served on 9 March 2006, was read into evidence. It is marked "Exhibit A".
The applicant filed an affidavit sworn on 13 January 2006 with his application. The affidavit contained three grounds of review that were subsequently repeated in the applicant's amended application. Attached to the affidavit is a copy of the Tribunal decision.

Background

The Tribunal decision of J C Blount, reference N05/52059, contains the following background information. The applicant who claims to be a citizen of the People’s Republic of China (“the PRC”) arrived in Australia on 12 December 2004. On 11 January 2005, he lodged an application for a protection (class XA) visa with the Department of Immigration under the Act. A delegate of the Minister refused a visa on 28 February 2005. The applicant applied to the Tribunal for a review of the delegate's decision. On 17 May 2005, the Tribunal, differently constituted, affirmed the delegate's decision. The applicant sought review of the Tribunal's decision by the Federal Court and on 23 August 2005, the Court set aside the decision and by consent remitted the matter to the Tribunal to be redetermined according to law. The matter now before the Tribunal is pursuant to the order of the Federal Court. On 30 November 2005, the Tribunal affirmed the delegate's decision.

The applicant’s claims

The applicant claims to fear persecution in the PRC by reason of his political opinion. A convenient summary of his claims are contained in the submissions prepared on behalf of the first respondent by Ms Palmer. I adopt paragraph 4 of those submissions for the purposes of this judgment:
4.The Applicant claims to fear persecution in China by reason of his political opinion. The Applicant relevantly claimed that:
(a)   he departed China legally but his passport was "purchased from someone";
(b)   while working as a sales representative, he engaged in negotiations with Taiwanese firms and entertained Taiwanese clients. He became close friends with a representatives of the Taiwanese firms and decided to support and promote the issue of Taiwanese independence;
(c)   he was involved in acts of overt protest via rallies and internet publishing and verbally promoted Taiwanese independence;
(d) he targeted human rights abuse and wrote several articles promoting the ideal of independence and human rights on banned internet sites. As a result, the Applicant "gained the sense that [he] was the subject of a Federal Police investigation";
(e)   his activities were discovered by his superior officer who threatened to report him to the authorities unless he ceased his activities;
(f)    the Public Security Bureau ("PSB") interrogated him in September 2004. He was detained for 2 days and only released after paying a bribe. Subsequently, he was dismissed from his employment; and
(g)   if he returns to China he will be arrested at the airport, persecuted in an unfair and biased trial (if he receives a trial at all), imprisoned, tortured and beaten.

Tribunal’s findings and reasons

A summary of the Tribunal's reasons was contained in the first respondent’s written submissions and I adopt paragraphs 5 and 6 of those submissions.
5.      The Tribunal made the following findings and comments:
(a) the Tribunal had difficulty accepting the Applicant's Taiwanese business contacts were fellow members of an activist group. There was no claim by the Applicant that these contacts were exposed or expelled from China, despite the original claim that they were involved in acts of overt protest and demonstrations, which would have been a sensitive matter to the Chinese authorities;(CB 86.2)
(b)   the Applicant provided no circumstantial details in relation to his claimed acts of overt activities. At the hearing, the Applicant said these activities amounted only to informal discussions from 2002, anonymous internet postings between 2002 and 2003 and one small protest against his dismissal in October 2004. None of these activities involved his Taiwanese contacts and the Applicant suffered no adverse consequence as a result of these protests;(CB 86.3)
(c) the Applicant provided unclear and conflicting evidence as to the extent his activities were known to the authorities. There was no reason to believe that the anonymous internet postings were known to the authorities and the Applicant stated that the authorities had no evidence against him;(CB 86.7)
(d) the fact that the Applicant claimed that he was released by the PSB after only 2 days, without charge or any reporting conditions, did not suggest to the Tribunal that the Applicant was suspected of anything serious;(CB 87.1)
(e) during the hearing, the Applicant resiled from two significant written claims. Namely, that his covert actions also targeted human rights abuses and that his passport was "purchased from someone". The Tribunal was therefore satisfied that it could not rely on the Applicant's written claims as a reliable statement of his experiences;(CB 87.3)
(f) the Applicant's involvement with the Taiwanese businessmen, and discussions of Taiwanese independence, did not go beyond legitimate business dealings, some informal discussions and possibly anonymous postings to a website. The Tribunal did not accept the Applicant's written claims that he was involved in an activist group promoting Taiwanese independence or in protests or rallies related to this issue;(CB 87.5)
(g)   the Tribunal was not satisfied that the Applicant was questioned by the PSB or dismissed from his employment because he was believed to be involved in improper contacts with the Taiwanese or in promoting Taiwanese independence (although the Tribunal accepted that the Applicant had been dismissed from his employment);(CB 87.8)
(h) the Tribunal placed little weight on the Applicant's involvement in a small protest against his dismissal. The protest was not about Taiwanese independence and the Applicant did not suffer any adverse consequences as a result of the protest;(CB 87.10-88.1)
(i)    the Tribunal was not satisfied that the Applicant's claim accurately represented his experiences and concerns or that the Applicant had in fact attracted the adverse attention of the Chinese authorities or his employer;(CB 88.5) and
(j)    the Applicant had significantly embellished low level and incidental contact with his Taiwanese business contacts flowing from his official duties such that the Applicant claimed a pattern and level of organised activity which did not occur.(CB 88.6)
6.On the basis of the above findings and comments, the Tribunal was not satisfied that the Applicant was a person to whom Australia owed protection obligations.

Application for review of the Tribunal’s decision

On 16 January 2006, the applicant filed an application for review under s.39B of the Judiciary Act. On 10 May 2006, in compliance with orders made at the first Court date direction's hearing, the applicant filed an amended application which contained the following grounds of review.
1. Migration Act 1958 (s 420) requires the Tribunal to do substantial justice, deciding each case on its merits and avoiding technicalities.
2. I found that the RRT decision does contain some bias as alleged by the facts. Further, there are obligations on the RRT, in this particular matter, to refer to resources about China and its democratic system.
3.I submit that as there is jurisdictional error for denial of procedural fairness and natural justice regarding of the RRT decision, the defendant should review the cases and adjust the decision previously.

Submissions and reasons

The applicant appeared at the hearing self-represented with the assistance of a Mandarin interpreter. When the applicant appeared before me at the first Court date direction's hearing he indicated that he wished to participate in the Court sponsored legal advice scheme. He was subsequently allocated a panel lawyer who held a conference with the applicant and provided him with written advice. The applicant complied with the Court orders and filed an amended application which contained three grounds of review. The applicant confirmed that he had not filed any written submissions for the final hearing.
When the applicant was invited to make any oral submissions in support of his application, he indicated to the Court that he did not know what to say and requested some direction and assistance.

I briefly explained to the applicant the purpose of the hearing and the subject of the review. I advised the applicant of the limited role of the Court and its powers of review in respect to the Tribunal decision.

I explained to the applicant that this Court did not have the role of granting visas and that that function was limited to the Minister or delegate.
The applicant requested an adjournment to provide him with time to enable him to contact his Taiwanese business associates in order to obtain some documentation which supported his story. The applicant was advised that this Court only had the power to consider material that had been previously placed before the Tribunal and that material of that nature needed to be assessed by either the Minister's delegate or the Tribunal. The request for an adjournment was declined.
Ms Palmer, appearing for the respondents, indicated that she would rely on the contents of her written submissions in respect of the issues raised by the applicant in his application for review.
In respect of the applicant's first ground of review, Ms Palmer in her written submissions, submits that the applicant has merely provided a summary of s.420 of the Act, and that the ground has not been particularised. Accordingly, it is submitted there is no substance to the applicant's claim that there has been a breach of s.420 of the Act.
Section 420 of the Act states:
[S.420] Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
In the absence of particulars or submissions, the only option available to this Court is to consider the contents of the Tribunal's written decision to determine whether s.420 has been complied with. On a fair reading of the decision as a whole, particularly in respect to the section reporting the details of the Tribunal hearing, it is not apparent in any respect that the Tribunal has not met its obligation set out in s.420. The applicant has not sought to file a copy of the transcript of the Tribunal hearing, nor has a copy of the Tribunal tapes been tendered in evidence. The applicant was supplied with an information sheet at the time that he attended the first Court date direction's hearing. Prior to appearing in Court that document was interpreted and explained to him. Also at the first Court date orders were made requiring the applicant to file any affidavit material in support of his application. The instruction sheet referred to above indicates that transcripts of the Tribunal hearing are to be submitted in the form of an affidavit. On the material before me, I am satisfied that this ground of review cannot be sustained.
In respect of ground two of the applicant's amended application,

Ms Palmer submits in her written submissions that a bias allegation is a serious allegation involving personal fault on the part of the decision maker and is not to be made lightly: SBBS v Minister for Immigration [2002] FCAFC 361. The party making such an allegation carries the onus of proving it. Further, the allegation is difficult to establish based on written reasons alone: SCAA v Minister for Immigration [2002] FCA 668. Provided that the Tribunal “…made an honest and genuine attempt to undertake the task required by the legislation…”, there can be no claim of bias or bad faith: NAHT of 2002 v Minister for Immigration [2002] FCA 1049 at [36]. Ms Palmer submits that there is nothing on the face of the Tribunal's decision to suggest that an honest and genuine attempt to review the application was not made by the Tribunal. I believe that the claim of bias has been used in a formulaic approach commonly seen in these applications.
It is apparent that the applicant has no understanding of the English language, nor any comprehension of the nature of these proceedings. It would appear that he has relied initially on a migration agent in the preparation of his claim. The Court Book indicates that the applicant has dispensed with the services of the migration agent at some time prior to 5 October 2005. It does not contain a copy of that revocation, but does contain a confirmation issued by the Tribunal dated 5 October 2005.(CB 65) Since that date, some unknown party has been assisting the applicant with the preparation of documents which he has filed in these proceedings. It appears that the party assisting the applicant has a limited understanding of the judicial review process, but clearly does not have a full understanding of this particular matter. In the absence of any particulars or submissions the claim of bias cannot be sustained.
In respect to the second element of the claim contained in the second ground, Ms Palmer submits the allegation that the Tribunal was required to refer to independent country information cannot be sustained. It is submitted that while the Tribunal has the power under ss.424 and 427 of the Act to obtain any information that it sees fit, it is under no obligation to do so. The Tribunal's decision makes no reference to country information. In particular, the findings and reasons are based on a number of criteria that do not require an examination of any material that would normally be within the contents of independent country information.
The decision is made on an assessment of the claims made specifically by the applicant in the statement attached to his application and to the material provided by him during the Tribunal hearing. It is acceptable that a Tribunal member may rely on his/her knowledge assimilated from previous consideration of applications from the same country. In S1527 of 2003 v Minister for Immigration [2005] FMCA 1846 at [25], His Honour Smith FM makes the observation:
…there are suggestions that the Refugee Tribunal may gain knowledge of general country information through a process of absorption and experience over its whole work (c.f. A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545 at 555, Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [32], and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [263])…
I agree with the submission made by Ms Palmer that the second ground of review cannot be sustained.
In respect of the third ground of review, Ms Palmer submits that without particulars this ground is meaningless and not referrable to the decision under review. The first respondent submits that the applicant has not demonstrated that there has been a denial of procedural fairness or natural justice. Since the introduction of s.422B, Division 4 of Part 7 of the Act is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with. A review of the material available to the Court within the Court Book, including the Tribunal decision on its face, does not indicate that the requirements of Division 4 have not been complied with.
In the absence of any particulars or submissions it is not possible to explore this ground further. I believe that the content of this ground of review has been formulated in similar circumstances referred to above and appears to be formulaic. I am satisfied that this ground of review cannot be sustained.

Conclusion

The applicant appeared at the hearing as a self-represented litigant with the assistance of a Mandarin interpreter. The applicant had been provided with legal advice from a panel lawyer allocated under the Court sponsored advisory scheme. The applicant had also filed an amended application in accordance with directions of the Court, but when he appeared at the final hearing, it was abundantly clear that he had no understanding of the proceedings or any comprehension of what his application was seeking. I am aware of the recent decision of Madgwick J in SZFNK v Minister for Immigration [2006] FCA 1601, however, in these proceedings, I have an applicant before me with an application that appears to have little or no relation to the contents of the Tribunal decision, or the supporting documents contained in the Court Book. None of the claims are particularised and the applicant has no written or oral submissions in support of his application. I have reviewed the decision and the Court Book, but have not been able to identify any apparent error on the face of the documents. I am satisfied that none of the grounds of review can be sustained and no other jurisdictional error is apparent. Consequently the application must be dismissed.

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.

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

Associate:

Date: 8 March 2007