SZIKB v Minister for Immigration
[2006] FMCA 1398
•27 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIKB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1398 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), rr.44.05, 44.12(1)(a), 44.15 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 91R, 91X, 424A, 425, 426A United Nations Convention relating to the Status of Refugees 1951 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Jia [2001] HCA 17 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 SCAA v Minister for Immigration [2002] FCA 668 SZBCS v Minister for Immigration [2005] FCA 1457 SZCIA v Minister for Immigration [2006] FCA 238 SZEZI v Minister for Immigration [2005] FCA 1195 SZFMG v Minister for Immigration [2006] FMCA 1054 |
| Applicant: | SZIKB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG564 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms A Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application 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 |
SYG564 of 2006
| SZIKB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
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), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 February 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 16 January 2006 and handed down on 2 February 2006, affirming a decision of a delegate of the first respondent made on 22 October 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal and an order that the first respondent show cause, pursuant to r.44.05 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”).
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIKB”.
On 6 March 2006, a response was filed on behalf of the first respondent seeking interlocutory orders on the ground that the application had not raised an arguable case for the relief claimed, pursuant to r. 44.12(1)(a) of the Rules. On 7 July 2006, the applicant filed an amended application.
Background
The Tribunal decision of Giles Short, reference number N05/52708, provides the following background material. The applicant is a citizen of the People’s Republic of China who arrived in Australia as a visitor in July 2005. On 19 August 2005, the applicant lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 22 October 2005, a delegate of the Minister refused to grant a protection visa and on 17 November 2005, the applicant applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 65)
According to the original application, the applicant was aged in her mid-thirties and had completed four years of education in Tieling City in Liaoning Province in 1993. She was self-employed as a “sole trader” from 1993 until July 2004. Since that date she has been unemployed, but continued to reside in Tieling City until she left China in July 2005.(CB 79)
The applicant claims that she became a practitioner of Falun Dafa (Falun Gong) in 1997 and was active in “missionizing” Falun Dafa to her friends. She claims that after the Chinese Government began persecuting Falun Dafa members in 1999, some of its leading practitioners in Tieling City were arrested and mistreated.
The applicant was interviewed by police on 6 February 2000, after which she signed a statement promising that she would not practise Falun Dafa any more. She states that after her release, she kept her religion hidden with only her husband and a close Falun Dafa friend knowing that she had not given it up. However, she was reported to the authorities by business competitors who heard of her secret Falun Dafa practice, which led to her arrest on 17 July 2004.(CB 69)
The applicant claims that she was brutally tortured and sent to the Tieling Penitentiary on 29 July 2004. Her business licence was cancelled and her bank account frozen because the money was suspected of being related to Falun Dafa activities. She claims she spent three months in the penitentiary. Her brother and husband lobbied a powerful government officer working for the Lianoing Provincial Government who arranged for her transfer to the Masanjia Penitentiary and then to the Liaoing Police Bureau. On 11 July 2005 this officer arranged for her release and for her to receive a passport with a visa.(CB 69)
Tribunal’s Findings and Reasons
On 2 December 2005, the Tribunal wrote to the applicant at what was given as her mailing address on the Tribunal application form and informed her that it was unable to make a favourable decision on the information provided alone. The applicant was invited to attend a hearing on 11 January 2006.(CB 59-60) The Tribunal received a response that the applicant wished to attend the hearing. I note that from the “Response to Hearing Invitation”, the applicant has marked both that she did and did not wish to attend the hearing.
The applicant supplied further information in that form that her application did not include any family members, that she required a Mandarin interpreter, that she did not wish the Tribunal to take oral evidence from a witness and that she did not wish to bring anyone to the hearing. However, the applicant did not attend the scheduled hearing on 11 January 2006, explain her absence to the Tribunal, nor provide any information in support of her claim.
Accordingly, on 16 January 2006 the Tribunal proceeded to make its decision in the absence of the applicant and without making any further contact with her: s.426A of the Migration Act 1958 (“the Act”).(CB 68)
The Tribunal accepted the nationality of the applicant. It summarised, in its decision, the contents of the applicant’s statement. However, the Tribunal considered that the applicant had provided “only the bare outline of her claims” which amounted to little more than the assertion that she was a practitioner of Falun Dafa in China.(CB 70.7) On the evidence before it the Tribunal found it was unable to be satisfied that the applicant was a Falun Dafa practitioner. It was not satisfied that she had been detained, tortured or imprisoned for that reason in China. The Tribunal was also not satisfied that the applicant was released from prison through bribery or that she obtained her passport through illegal means.
Accordingly, the Tribunal was unable to be satisfied that there was a real chance that the applicant would be persecuted as a Falun Dafa practitioner should she return to China, now or in the reasonably foreseeable future.(CB 71)
Application for Review of the Tribunal’s Decision
On 22 February 2006, the applicant filed an application in the Court for review under s.39B of the Judiciary Act. On 7 July 2006 the applicant filed an amended application which contained the following grounds:
1. The Tribunal failed to carry out its statutory duty.
Particulars
(a) The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958s. 424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing SAPP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS (2005) HCA 24 (18 May 2001)
McHugh J.
Para68 “…The assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness in the way in which the Tribunal observes it statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the, mandatory nature of the obligation in s.424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s.424A.”
para 77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function…it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act…a decision made after a breach of s.424A is invalid.”
Hayne J
para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as reasonably practicle that the appellants understand why it was relevant to the review. The Tribunal failed to do so constituted jurisdictional error.”
para 208 “…whethr those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d) The information to be given extends to that information given by the Applicant o the First Respondent as part of his application for a visa.
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFIARS v AL SHAMRY (2002) 110 FCR 27
para 17 “…In our view, ‘applicant’ wherever appearing in s.424A means ‘application for review by the Tribunal of a ministerial decision’ and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The court did not accept the Ministers argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant”.
(e) The Tribunal based its findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
2.The Tribunal had bias against me when considering my application for a protection visa.
3.The Tribunal did not consider my application according to S91R of the Migration Act. (copied without alteration or correction)
Reasons
The applicant appeared in this Court as a self-represented litigant with the aid of a Mandarin interpreter. She was invited to address the Court with any submissions in support of her application. The applicant indicated that she would rely on her amended application and did not have any oral or written submissions to present to the Court.
I appreciate the practical difficulties confronting a person in the position of the applicant because she is in a strange country and cannot speak the language nor understand the legal system. As an unrepresented applicant she was offered the opportunity to participate in the Court’s free Legal Advice Scheme (NSW) and a panel adviser was allocated to her.
As I have said above at [8], on 2 December 2005 the Tribunal wrote to the applicant indicating that it had considered the material before it in relation to her application but was unable to make a decision in her favour on this information alone. That letter extended an invitation to the application to attend the Tribunal hearing to give oral evidence and present arguments in support of her claims. That correspondence was received by the applicant who responded on 19 December 2005, ticking both boxes on the form, indicating simultaneously that she would and would not attend the Tribunal hearing.
The applicant failed to make an appearance at the scheduled hearing on 11 January 2006. She did not advise the Tribunal of any problems which prevented her attendance.
In the Tribunal decision under the heading ‘Evidence’ at Court Book 68, the member sets out the procedure the Tribunal followed in inviting the applicant to appear before it:
In accordance with section 418 of the Migration Act, the Tribunal was given the Department’s file CLF2005/66990 relating to the Applicant. By letter dated 2 December 2005 and posted to the Applicant at the last address for service provided by her in connection with the review in accordance with section 441A of the Act the Applicant was notified that the Tribunal was unable to make a decision in her favour on the material before it and that accordingly she was invited to come to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims A hearing was scheduled for 11 January 2006. On 19 December 2005 the Tribunal received from the Applicant a completed ‘Response to Hearing Invitation’ form advising that she wanted to come to the hearing. However the Applicant did not attend the hearing nor did she contact the Tribunal to explain her failure to attend. In these circumstances I am satisfied that the Tribunal has discharged its obligation to give the Applicant an opportunity to appear before it to give evidence. I have therefore proceeded to make a decision on the basis of the material already before me.(CB 68)
The Tribunal then made the following statement under the heading ‘Findings and Reasons’ in its decision:
As referred to above, the Applicant was put on notice that I was unable to make a decision in her favour on the basis of the material before me but she did not attend the scheduled hearing in relation to her application for review. I am unable to be satisfied on the evidence before me that the Applicant has a well-founded fear of being persecuted for a Convention reason if she returns to China.(CB 71)
I have previously considered authorities relevant to this case in my decision of SZFMG v Minister for Immigration [2006] FMCA 1054, where I was guided by SZEZI v Minister for Immigration [2005] FCA 1195 (“SZEZI”). In that case, the Tribunal invited the applicant to a hearing because it also had limited material and was unable to make a decision in the applicant’s favour on that information alone.
The applicant failed to appear. The applicant did not contact the Tribunal to explain his absence or seek a rescheduled the hearing.
His Honour Allsop J made the following comments at [8] and [29]:
8. The relevant reasons of the Tribunal were as follows:
The applicant [name provided] has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case…how he was able to leave Bangladesh unharmed if, as he claims, he is a risk of [sic] being killed or crippled because of his sexual preference, why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known to others given his claim that his sexual preference would be known if he returned there now.
29.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 s424A (1) by s424A (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 I discussed the purpose of s424A. Its operation is to be understood conformably with that 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. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. 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 SZCIA v Minister for Immigration [2006] FCA 238 – another matter involving an applicant who did not attend the Tribunal hearing – the Federal Court emphasised the need to make an evaluation of the Tribunal’s reasons. Justice Allsop stated at [9], [11] and [12] of that decision:
9.The Tribunal after dealing with the legislation and applicable law referred to the departmental file, which was before the Tribunal. It is clear from the cases dealt with up to and including SZEEU v Minister for Immigration and Multicultural and Indigenous [2006] FCAFC 2 that the departmental file may well contain information the subject of section 424A and within the meaning of that section. However, as I sought to make clear in SZEEU at [208] – [216], and in [216], whether information is the reason or a part of the reason depends upon a judgmental analysis of the reasons of the Tribunal for why the Tribunal came to the view it did.
10.…
11.The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.
12.In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.
The Tribunal in these proceedings had “only the bare outline of her claims. They amount to little more than the assertion that she was a practitioner of Falun Dafa in China, that she was persecuted by the Chinese Government”.(CB 70) As in SZEZI, this is not the reason or part of the reason for the Tribunal’s decision. It was referred to by the Tribunal merely as another piece of information which it considered crucial and intended to discuss with the applicant, had the applicant chosen to attend the Tribunal hearing. The reasoning of His Honour Allsop J in both SZEZI and SZCIA v Minister for Immigration apply to the present case. The Tribunal did not make a positive finding of fact about the position of the applicant, but rather rejected her claim because of its inability to satisfy, on the lack of information before it, that Australia owed protection obligations to her under the United Nations Convention relating to the Status of Refugees 1951 (“the Convention”). This is made clear by the Tribunal decision as reproduced above at [19].
The applicant raised three grounds alleging jurisdictional error by the Tribunal in her ammended application and I now turn to those issues.
The first ground claims that the Tribunal failed to carry out its statutory duty. Ms Nanson, appearing for the respondents, submits in her written submissions that the applicant provided a number of particulars in support of this ground:
The Tribunal based its findings on the information, or Tribunal information, contained in the applicant’s application for a visa and was required by s.424A to give particulars of the information, explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
Section 424A(1) of the Act provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give the applicant, in a way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
Section 424A(3)(b) of the Act provides:
(3) This section does not apply to information:
(a) …
(b) the applicant gave for the purposes of the application; or
(c)…
It is submitted that the applicant’s application for review to the Tribunal contained no information in support of her claim for a protection visa. The Department file, which contains the protection visa application and the delegate’s decision, was not information given to the Tribunal for the purposes of the review application: s.424A(3)(b) of the Act. The Tribunal decision was based on the insufficient information provided by the applicant, which prevented it from reaching the requisite level of satisfaction required under s.36(2)(a) of the Act.
In a case with similar factual circumstances, Bennett J stated in SZBCS v Minister for Immigration [2005] FCA 1457 at [33]:
Here there was insufficient information to enable the Tribunal to reach a level of satisfaction as to Australia’s protection obligations to the applicant. The lack of information does not amount to “information” for the purposes of s.424A(1) (VAF).
Ms Nanson submits, and I agree with her submission, that the Tribunal’s reasons and findings in this matter do not reveal a breach of s.424A(1) of the Act.
The applicant claims in the second ground of the amended application:
The Tribunal had bias against me when considering my application for a protection visa.
The second ground is not supported by any particulars. Ms Nanson submits that the Tribunal afforded the applicant an opportunity to attend a hearing and provide evidence in support of the claims.
Far from being prejudiced, the Tribunal decision reveals that it had questions it wished to put to the applicant in relation to the matters asserted but were unable to do so because the applicant did not attend that hearing.
It is submitted that given that the applicant failed to attend and failed to provide any further information, the Tribunal was entitled to proceed to a decision without taking any further action to allow the applicant to appear before it: ss.425 and 426A of the Act. Consistent with Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [16] – [19], the Tribunal’s decision in this instance turned on a lack of satisfaction on the evidence before it.
A party asserting actual bias on the part of a decision-maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration v Jia [2001] HCA 17 at [69] per Gleeson CJ and Gummow J, at [127] per Kirby J. It is not possible to extrapolate bias on the part of the decision-maker from the existence of adverse findings alone. In SCAA v Minister for Immigration [2002] FCA 668 at [38], von Doussa J said:
In my opinion, it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons of the decision. Reasons for decisions reflect conclusions reached at the end of a 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 reasons. The mere fact of adverse findings at the end of a 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 from the 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. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to the conduct of the decision-maker antithetical to that party’s interest such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224) or a failure to inquire into and obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] – [27]) an inference of actual bias by prejudgment might be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
Ms Nanson submits that there is no basis for this serious claim which, it is submitted, cannot be sustained. I agree with this submission.
In respect of the third ground, the applicant claims:
The Tribunal did not consider my application according to s.91R of the Migration Act.
Again this claim is not particularised and no details were provided by the applicant in support of the third ground. Ms Nanson submits that s.91R was summarised at the beginning of the Tribunal’s decision, together with cases which have considered the provision. In the absence of any material in support, it would appear that this claim is no more than a mere assertion. There is no basis for the claim. I accept Ms Nanson’s submissions and believe that this ground cannot be sustained.
Conclusion
As the applicant is a self-represented litigant, I acknowledge the additional obligation placed on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I have reviewed the contents of the Court Book and reconsidered the Tribunal’s decision in light of this obligation. I am satisfied that the Tribunal undertook its role correctly and that no jurisdictional error can be identified on the face of the documents before me. Consequently, the application should 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 the application, fixed in accordance with r.44.15 and Pt.1 of Sch.1 of the Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 27 September 2006
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