SZIFS v Minister for Immigration

Case •

[2006] FMCA 753

•

18 May 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 753
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People’s Republic of China – bias alleged – no evidence of bias – natural justice – common law natural justice hearing rule excluded by Migration Act 1958 (Cth) s.422B.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
SBBS v The Minister for Immigration & Multicultural Affairs [2002] FCAFC 361
SZBDF vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493
SZEGT vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514
SBTC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 260
Lay Lat vMinister for Immigration and Multicultural Affairs [2006] FCAFC 61 followed
Applicant: SZIFS
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 305 of 2006
Judgment of: Scarlett FM
Hearing date: 18 May 2006
Date of last submission: 18 May 2006
Delivered at: Sydney
Delivered on: 18 May 2006

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Smith
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 305 of 2006

SZIFS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 20th December 2005 and handed that decision down on 17th January 2006. 

  2. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 2nd August 2005 and applied for a protection visa. When the visa was refused on 22nd September 2005, the Applicant sought a review of that decision from the Refugee Review Tribunal.

  2. The Applicant lodged her application for review on 10th October 2005.  No documents appeared to have been submitted at the same time as the application. The Tribunal wrote to the Applicant on 26th October 2005 inviting her to attend a hearing on Wednesday 14th December 2005.

  3. The Applicant attended that hearing and gave oral evidence. The Applicant seeks a protection visa on the basis of a well-founded fear of persecution because of her religious beliefs. She told the Tribunal that she had resigned from her job in September 2002 and travelled to Japan the following month because she was being investigated for her religious activities. Officers from the PSB had come to her home and searched it and found some Christian books and a copy of the New Testament. She said they had taken her to the office and detained her, initially she said for 30 days but she clarified that for three or four days. 

  4. The Applicant left for Japan in October 2002 and returned to China in April 2003. She told the Tribunal that she had investigated the possibility of applying for refugee status in Japan. The Applicant said that she had - she practised her religion in a very careful way in order to avoid adverse attention. The Tribunal asked her a number of questions about her religious beliefs. 

  5. The Tribunal was satisfied that the Applicant was a national of the People's Republic of China. The Tribunal did this on the basis of having sighted the Applicant's passport at the hearing and set out on p.64 of the Court Book that there was no evidence before the Tribunal to indicate that the Applicant had the right to enter or reside in any other country. 

The tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pages 64 through to 67 of the Court Book. The Tribunal was not satisfied about the Applicant's credibility. The Tribunal Member noted at p.64 that the Tribunal found the Applicant to be an unsatisfactory witness. 

  2. Nevertheless, in a paragraph beginning on p.64 and going to p.65 of the Court Book, the Tribunal made some allowances for difficulties in comprehension and made some adjustments to the Tribunal's initial views.  The Tribunal said,

    I found the Applicant to be an unsatisfactory witness.  Almost all her answers to my questions appeared to be brief and hesitant to the point where it seemed that she was unwilling to assist me to obtain the information I needed to make a decision on her application.  While initially I considered that her oral evidence was contradictory and confused, when I reconsidered the record of the hearing there appeared to have been some misunderstandings, mainly about what her religious activities were. 

    Whereas at first I understood that she had attended church services, in fact she was claiming that she was involved in an underground religious group whose services were held in that church.  Her knowledge of Christianity was somewhat vague yet she was able to express some aspects of her beliefs in a rational and comprehensive way.  Making allowances for cultural factors and the difficulty of expressing abstract spiritual concept through the interpreter, I am prepared to accept that the applicant is at least familiar with Christian beliefs. 

    On balance, I considered that the applicant was truthful about her experience in the PRC and I have given the most generous possible interpretation to her claim.  However, I conclude that she has not in the past experienced serious harm amounting to persecution for reason of her religious beliefs and that there is no real chance that she would do so in the future.

    The Tribunal then in subsequent paragraphs set out findings of fact upon which that conclusion was based. 

  3. On p.67 of the Court Book the Tribunal was not satisfied that the Applicant had, whilst in China, encountered a restricted ability to engage in her chosen religious activities either because of restrictions imposed by the Government or because of her own fear to the extent that it would amount to persecution.  The Tribunal was not satisfied that there was a real chance that the Applicant would encounter a restriction on her religious practice of the nature referred to in the reasonable foreseeable future if she returned to the People's Republic of China.

  4. The Tribunal noted the external evidence, meaning independent country information to which the Tribunal had referred at pp.63 and 64 of the Court Book being a Report on Religious Freedom 2004 from the United States Department of State. The Tribunal noted that this external evidence did indicate that there was some restriction on religious activities of Chinese citizens imposed by the Chinese Government, that independent country information also indicated that there was permitted Christian worship and associated activities to a level accepted by the authorities.

  5. The Tribunal was satisfied that the Applicant was of no particular interest to authorities and was not satisfied that the Applicant's fear of persecution in the People's Republic of China for the reason of her religion was well-founded.

  6. The Tribunal affirmed the decision of the delegate not to grant a protection visa. 

The application for judicial review

  1. The Applicant sought a review of this decision by filing an application under the Migration Act in this Court on 31st January 2006.  She filed an affidavit at the same time to which she annexed a copy of the Tribunal decision.

  2. In the application the Applicant set out four grounds which I will summarise as follows: 

    i)That the Tribunal failed to recognise the principle of non-refoulement contained in Art.33 of the 1951 Convention Relating to the Status of Refugees.

    ii)That the Tribunal erred in finding - 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 it not to be satisfied of the Applicant's claims of refugee status (sic).

    iii)That the Tribunal erred in making a general attack on the Applicant's credit; and

    iv)That the Tribunal Member erred in the construction of the Migration Regulations or it may mean Part.8 of the Migration Act.

  3. The Applicant has not argued that ground at the hearing before me.  Nor did the Applicant argue the ground about the failure to recognise the principle of non-refoulement set out in ground (1).

  4. The Applicant forwarded two documents to the office of the Respondent's solicitors but did not file those documents. The first, headed "Application for Review," is in effect a written outline of submissions.  A copy of it was marked as Annexure A to an affidavit of Andrew John Crockett, sworn and filed on 17th May 2006.  The second document, a copy of which was annexed to Mr Crockett's affidavit and marked with a letter B, was a purported transcript of the hearing. The document appeared to be incomplete as it commenced on side 2 of tape 1 and was not annexed to an affidavit.

  5. The Minister objected to my receiving that document into evidence.  I offered the Applicant the opportunity to give oral evidence about her claims as a whole and the transcript in particular but the Applicant declined, indicating that what was set out in her documentation contained her case. I rejected the document purporting to be a transcript of the Tribunal hearing, on the basis that it was not the Applicant's document and there were serious doubts about the accuracy of it, including the fact that on its face it was an incomplete transcript.

  6. The Applicant gave a brief oral submission in which she amplified the statements made in her outline of submissions to which I have previously referred. Basically, she accused the Tribunal of bias and took issue with the fact that the Tribunal Member had asked her questions but did not believe her answers. She said that the Tribunal had made its own decision based on its own information. 

  7. The written outline of submissions contains two grounds, which I will quote.

    (1) RRT was subjectively seeking reasons to decide against the Applicant rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the Applicant's claim of a well-founded fear of persecution and there is a real chance that she was persecuted.

    (2) RRT using so-called country information to against the Applicant rather than looking at the whole fact of the application fairly to make its judgment.  RRT also did not fully disclose the full detail of the country information that they used to assess Applicant's application.

  8. I have read the written outline of submissions prepared by counsel for the First Respondent Minister and I have also taken heed of the Respondent's oral submissions.  The Applicant made no submissions in reply. As far as the Applicant's complaint that the Tribunal did not believe her evidence is concerned, this is in effect an application for merits review.  A challenge to the factual findings made by the Tribunal is not the subject of judicial review unless the Applicant can show bias.

  9. It is well-established that bias is a serious allegation as it alleges personal fault on the part of the decision-maker.  It must be strictly pleaded and strictly proved.  The Full Court of the Federal Court has made it clear in matters such as SBBS v The Minister for Immigration & Multicultural Affairs [2002] FCAFC 361 that it is rare, to say the least, that bias will be established purely from the Tribunal's reading - reasons for decision.

  10. Counsel for the Respondent has drawn the Court's attention to a paragraph or part of a paragraph to which I have previously referred on pp.64 to 65 of the Court Book where it is made quite clear that whilst the Tribunal Member initially considered the Applicant's oral evidence to be contradictory and confused, the Tribunal reconsidered the matter and formed the view that there had been some misunderstanding, mainly about what the Applicant's religious activities were.

  11. The Tribunal Member went on to find in that same paragraph to which I have referred, after making allowances for cultural factors and the difficulty of expressing abstract spiritual concepts through an interpreter, that the Applicant was at least familiar with Christian beliefs and the Tribunal found the Applicant to be truthful about her experiences in the People's Republic of China. Nevertheless, he was giving what the Tribunal Member describes as

    The most generous possible interpretation of the Applicant's claims.

    The Tribunal was not satisfied that the Applicant experienced serious harm amounting to persecution for reason of her religious beliefs. 

  12. The paragraph to which I have referred indicates willingness by the Tribunal not only to consider the Applicant's evidence but to reconsider it and to take a more favourable view than the Tribunal's initial view.  Nevertheless, even on the basis of that reconsideration the Tribunal still could not be satisfied that the Applicant had experienced serious harm amounting to persecution.  In my view the claim of bias has not been made out. 

  13. I am also of the view, as was put to me by counsel for the Respondent Minister that the Tribunal's findings and reasons largely depended upon the Tribunal's assessment of the Applicant's own evidence. The Tribunal does rely on independent country evidence information on p.67 of the Court Book as I have previously indicated. It is clear, however, that the basis for the major part of the Tribunal's decision was the Applicant's own evidence.

  14. The Applicant's second ground really contains two allegations, first that the Tribunal used country information rather than looking at the evidence as a whole, and second, that the Tribunal did not disclose the full detail of that country information.  I have already dealt with the fact that the Tribunal "reliance on external evidence," to use the Tribunal's phrase, related only to a limited area where the Tribunal in fact conceded the Chinese Government does impose some restrictions on the religious activities of its citizens consistent with the Applicant's claims. But the Tribunal went on to find from that evidence there was scope for Christian worship and associated activities at a level at least acceptable to the authorities.

  15. The second ground, it is submitted, must fail because there is no obligation on the Tribunal to give the Applicant full detail of the country information. Country information falls within s.424A (3) (a) Migration Act. But there is no obligation under s.424A (1). The Tribunal's obligation to provide particulars of information is restricted to s.424A (1) by operation of s.422B Migration Act. I am referred to a number of decisions, including SZBDF vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493, which is an appeal from a decision of a Federal Magistrate. This was applied in SZEGT vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [29], also an appeal from a decision of a Federal Magistrate. There is also a recent decision by Finn J in SBTC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 260 at [19].

  16. I have also been referred to a recent decision of the Full Court of the Federal Court in Lay Lat vMinister for Immigration and Multicultural Affairs [2006] FCAFC 61. This decision was handed down on 12th May 2006. It is a decision of the Full Court of the Federal Court allowing an appeal from a decision of a Federal Magistrate. In this most helpful decision, their Honours set out at paragraphs 60 to 70 in the Court Book the effect of s.51A of the Migration Act. Their Honours have decided not only the proper construction of s.51A but of course it relates to the corresponding provisions in the Act, of ss.357A and 422B of the Act.

  17. At [61] their Honours refer to a number of authorities and set out at [66] that what was intended was that subdivision AB of the Migration Act would provide comprehensive procedural codes which contain detailed provisions of procedural fairness but which exclude the common law natural justice hearing rule. Their Honours go on to point out at [67] that other aspects of the common law natural justice, such as the bias rule, are not excluded. The decision in Lay Lat (supra) makes it quite clear that for the purpose of these proceedings s.422B sets out the provisions of procedural fairness which apply but the common law natural justice hearing rule does not apply in these proceedings. Thus in this case the Tribunal had no obligation to provide to the Applicant full details of the country information because it falls within the exception contained in para.(a) of sub-s.(3) of s.424A Migration Act.

  18. The Applicant's application must fail. My reading of the Tribunal decision did not show any other jurisdictional error to which the Applicant has not referred and I am mindful of the fact that the Applicant is not legally represented.  I am aware that the Applicant has had the benefit of legal advice from a solicitor on the RRT Legal Advice Panel and the Applicant confirmed that she had consulted the gentleman and received advice. It is also clear to me, however, that the documents which the Applicant forwarded to the lawyers for the Minister were not prepared by the Panel solicitor who gave her that advice.

  19. As the Applicant has not been legally represented at these proceedings, I have conducted my own independent assessment of the decision and I cannot discern any jurisdictional error. It must follow that the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  25 May 2006

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

SZIFS v Minister for Immigration and Multicultural Affairs [2006] FCA 1211