SZIEH v Minister for Immigration

[2006] FMCA 808

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 808

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.

Convention Relating to the Status of Refugees 1951, Article 33
Federal Magistrates Court Rules 2001 (Cth), r.44.12
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 426A, 476

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SCAA v Minister for Immigration [2002] FCA 668
Sun Zhan Qui v Minister for Immigration (1997) 151 ALR 505

Applicant: SZIEH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG234 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 1 June 2006

Delivered at: Sydney

Delivered on: 22 June 2006

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Advocate for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The first respondent’s application to show cause is upheld.

2. The application filed on 23 January 2006 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG234 of 2006

SZIEH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 23 January 2006, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 29 November 2005 and handed down on 20 December 2005, affirming a decision of a delegate of the first respondent made on 13 September 2005, refusing to grant the applicant a Protection (Class XA) visa.

2. The applicant applies for an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act) in respect of the Tribunal decision of Ms Christine Long, reference N05/52335. The first respondent submits that the application for an order to show cause should be dismissed pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”).

3. The first respondent filed a response in these proceedings which relies upon the following in defence of the application:

   a)The application for review does not raise an arguable case for the relief claimed pursuant to r.44.12 of the Rules and accordingly the application should be dismissed.

   b)The application does not establish any jurisdictional error in the decision of the Tribunal handed down on 20 December 2005.

   c)The application for judicial review does not provide any particulars or legal ground for review.

4. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIEH”.

Background

1. The Tribunal decision contains the following background information, which I adopt. The applicant, who is a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 24 May 2005. On 6 June 2005, she lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 13 September 2005, a delegate of the Minister refused to grant a protection visa and on

   
   

   23 September 2005, the applicant applied to the Tribunal for review of the delegate’s decision.(CB 51)

2. In a statement attached to her application, the applicant stated that she was a Falun Gong practitioner who commenced her practice in 1998.  She attended meetings and practised with others and refused to convert after the “crackdown” on Falun Gong by the Chinese government. 

   
   

   In 1999 she lost her job at a factory and could not find another one because of her Falun Gong practitioner.  She and her family were discriminated against and she was occasionally interrogated by local officials who threatened to put her in gaol if she continued her practice.  A few of her co-practitioners were gaoled.  She will not give up her practice of Falun Gong and claims persecution for this reason if she returns to the PRC.(CB 53-54)

Tribunal’s Findings and Reasons

1. The Tribunal did acknowledge that persecution of Falun Gong practitioners by the Chinese authorities exists, including persecution of the practice in homes, when brought to the attention of police and party officials.  Under the heading ‘Findings and Reasons’, the Tribunal makes the following comments (CB 55):

   On the basis of the information before it the Tribunal cannot be satisfied that the applicant is a Falun Gong practitioner and that she was persecuted and/or feared persecution in her country for her Falun Gong activities and left China for that reason.  The Tribunal cannot be satisfied that the applicant lost her job, that she and her family were discriminated against, and/or that she was interrogated and threatened by local officials in China as she claims because of her Falun Gong practise.  Further the Tribunal cannot be satisfied that the applicant will be persecuted for her Falun Gong practice if she returns to her country.  The Tribunal is not satisfied that the applicant cannot or will not return to China because she fears persecution there, now or in the reasonably foreseeable future, due to her Falun Gong activities/practice.

   The reason that the Tribunal cannot be satisfied about the above matters is that the applicant’s claims are essentially untested assertions and are unclear and lacking in detail in important respects. 

2. Another issue that the Tribunal was seeking to clarify with the applicant during the hearing was why she returned to the PRC after travelling to Malaysia, Singapore and France in 2004, if she was persecuted by Chinese authorities as she claimed.

Application for Review of the Tribunal’s Decision

1. On 23 January 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act, setting out the following grounds:

   1.The Tribunal and the primary decision maker erred in failing to recognize the principle of non-refoulment contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).

   2.The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lake of bona fides.

   3.The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.

   4.The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8. (copied without alteration or correction)

Reasons

1. The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter.  She appeared before me at first Court directions on 1 March 2006.  At that time, the applicant expressed her desire to participate in the Court’s Legal Advice Scheme.  Unfortunately, the applicant was ineligible as she resides in rural South Australia and the allocated panel lawyer declined the referral.  At first directions, I advised the applicant of the issues that would be before the Court at the proposed show cause hearing.  The applicant was ordered to file and serve a short outline of submissions and a list of authorities 14 days prior to the hearing.  This order was not complied with. 

2. The applicant was a resident of South Australia when her application to the Tribunal was filed, in its Sydney Registry.  For a brief period, the matter was transferred to Melbourne before being returned to the Sydney Registry.(CB 42-43)

3. On 11 November 2005, the Tribunal wrote to the applicant indicating that it had considered all the material before it in relation to her application, but that it was unable to make a decision in her favour on this information alone. The applicant was invited to attend a Tribunal hearing on 15 December 2005 and was given an Adelaide address to enable her to participate in a video conference linking the Tribunal’s Sydney office. The applicant was also invited to bring any witnesses she may want to give evidence in support of her claim. She was further invited to file any documents or written arguments to assist the Tribunal in its considerations.(CB 44-45) The applicant returned the hearing invitation indicating that she did not want to attend, and that she consented to the Tribunal proceeding to make the decision on review without taking any further action to allow her to appear before it.(CB 46) Consequently, the Tribunal proceeded with its consideration of the application pursuant to the provisions of s.426A of the Act.

4. The information before the Tribunal was limited to a single page statement of the applicant’s background and claims.(CB 27)  The Tribunal was not satisfied with any of the claims made in this statement without an opportunity to question the applicant.  The Tribunal was unable to satisfy itself whether or not the applicant’s claims were genuine and could be substantiated.  At the date of its decision there was no persuasive evidence before the Tribunal that satisfied it that there was a real chance that the applicant would face serious harm for a Convention purpose, either now or in the reasonably foreseeable future should she return to the PRC: Convention Relating to the Status of Refugees 1951.

5. Ms Rayment, appearing for the respondents, addressed each of the grounds contained in the application.  The first ground claims that the Tribunal failed to recognise the principle of non-refoulment contained in Article 33 of Convention.  This claim was not particularised and no evidence is before the Court to support it.  There is no evidence that the Tribunal made this error or in any way misunderstood the principles contained in the Convention.  The reason for the Tribunal’s decision was that it did not reach a level of satisfaction with the evidence presented by the applicant in respect of her various claims.  This has no relationship to the Tribunal’s handling of the operation of the Convention and it cannot be suggested that the Tribunal member misunderstood the principles contained within the Convention.

6. The second ground claims that the Tribunal demonstrated bias in respect of its findings.  The test for factual bias was set out by the Full Federal Court in Sun Zhan Qui v Minister for Immigration (1997) 151 ALR 505 at 551 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”.

7. The test for reasonable apprehension of bias was set out by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ:

   …whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.

8. The authorities are clear that one cannot extrapolate bias from the existence of adverse findings alone: SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J:

   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.

9. I am satisfied that there is no evidence before this Court to support a claim of actual or apprehended bias and this ground must fail.

10. The third ground alleges an attack on the applicant’s creditability. 

    
    

    This allegation is not particularised and no evidence has been put forward for this claim.   The reason for the Tribunal member rejecting the applicant’s claims is that the Tribunal was unable to be satisfied with any aspect of those claims.  The Tribunal did not raise the issue of creditability in respect of any of its findings.  This ground must fail.

11. The fourth ground alleges that the Tribunal failed to conduct a review in accordance with Part 8 of the Act. Again this allegation is not particularised and there is no evidence presented to support it. This claim is misconceived, as the Tribunal was operating under Part 7 of the Act when it carried out its review. There is nothing to suggest that it operated outside the scope of that Part. Part 8 is relevant to the operations of this Court and is not relevant in respect of the Tribunal.

12. When the applicant was invited to respond to the submissions made by the respondents’ solicitors, she advised the Court that she could not speak English and had some difficulty in preparing her case.  She then went on to explain that it was inconvenient for her to appear at the Adelaide location to participate in the Tribunal hearing.  She stated that she was faced with a five hour journey by bus in both directions, in order to attend the video conference.  I note that the applicant has appeared in this Court on two separate occasions in respect of this application while residing at the same address in South Australia.  The applicant then made a comment that she was an employee in a Chinese restaurant and worked Mondays to Fridays and that it was inconvenient to attend the hearing.  No other explanation or submissions were made by the applicant.

Conclusion

1. The applicant in these proceedings is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. In her application, she applied for an order that the first respondent 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. The first respondent submits that the application for an order to show cause should be dismissed pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Ms Rayment, appearing for the respondents, assisted the Court with submissions addressing all of the issues raised in the applicant’s application.

2. The applicant is resident in rural South Australia, but has filed her application in the Sydney Registry.  This has resulted in her being ineligible for the Court’s Legal Advice Scheme.  I note that the applicant has attended Court in New South Wales on two occasions.  She indicated that she was unable to attend the Tribunal hearing, which had been arranged in Adelaide as it necessitated a long bus journey to Adelaide, which interfered with her work arrangements.  The Tribunal extended an invitation for her to attend its hearing.  The applicant replied to the Tribunal indicating that she would not attend and consented to it making a decision in her absence.  When questioned, the applicant indicated that she was not aware of the significance of attending the Tribunal hearing.  She now requested that she be given an opportunity to participate.  I believe that the Court has endeavoured to provide the applicant with the limited assistance available.  The applicant has not availed herself of these opportunities.  I am not satisfied that the applicant was unaware of the significance of the proceedings before the Tribunal.  I do not believe that if this matter were to proceed to a final hearing, any significant issues would emerge to establish that the Tribunal had made a jurisdictional error. 

   
   

   The Tribunal decision was made on the very simple basis that there was a complete lack of information before it.  The applicant failed to assist by not appearing before the Tribunal to respond to its questions.  I am satisfied that the application should be dismissed.

3. 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 the 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:  20 June 2006