SZIKZ v Minister for Immigration

[2007] FMCA 487

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIKZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 487

MIGRATION – Review of RRT decision − where the applicant was invited to attend the Tribunal hearing but did not so attend − where the Tribunal was not satisfied of the applicant’s claims on the basis of the evidence before it − whether the Tribunal’s decision evidenced bias − whether the Tribunal properly understood the applicant’s claims − whether the Tribunal was required to notify the applicant of its rejection of his claims under s.424A.

Migration Act 1958, ss.65, 424A

Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877
SZHWH v Minister for Immigration [2006] FCA 1182

Applicant: SZIKZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG628 of 2006

Judgment of: Raphael FM

Hearing date: 19 March 2007

Date of last submission: 19 March 2007

Delivered at: Sydney

Delivered on: 19 March 2007

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to read “Minister for Immigration and Citizenship”.

2. Application dismissed.

3. Applicant to pay the respondent’s costs assessed in the sum of $2,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG628 of 2006

SZIKZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia in August 2005 and applied for a protection (Class XA) visa on 28 September 2005.  On 10 October 2005 a delegate of the Minister refused to grant him a protection visa.  On 10 November 2005 the applicant applied for review of that decision from the Refugee Review Tribunal.  On 24 November 2005 the Tribunal wrote to the applicant at the address that he had then given to receive communication from it advising him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.

2. The Tribunal invited the applicant to a hearing on 6 January 2006.  On 5 December 2005 the applicant advised the Tribunal of a change in his address.  On 6 December 2005 the Tribunal wrote again to the applicant confirming his change of address details and providing him with a further copy of the hearing invitation letter.  The applicant did not attend the hearing.  On 9 January 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 31 January 2006.

3. The applicant claimed to be a person to whom Australia owed protection obligations.  It arose out of his having become a member of Falun Gong in 1997.  He told how his wife was a leading member of Falun Gong in his home town where there were many members.  In 1999 the applicant and his wife had organised for their members to go to Beijing for demonstrations and had prepared a petition to the Chinese Government in Beijing to accept Falun Gong.  The applicant said that this petition had been unsuccessful.

4. In January 2005 the applicant was arrested following the organising of members’ activities in his local area.  He was detained for 10 days and was regarded by the police as the head of the Falun Gong in the area in which he and his wife lived.  The applicant had taken responsibility for the activities of his wife in order to protect her.  The applicant stated that his wife had paid a large sum of money to bribe officials to have him released, to obtain a passport and visa and for him to travel to Australia.

5. The information set out above was contained in a statement found at [CB 27].  It was the only information before the delegate and the Tribunal.  The Tribunal states:

   “In the present case the applicant has only provided a very brief outline of his claims.  They amount to little more than an assertion that both he and his wife were members of Falun Gong, that his wife was one of the leading members in their local area and had connections with organisations all over the world and that the applicant himself was detained by the police for 10 days in January 2005 and suffered cruel persecution because the police regarded him as the head of Falun Gong in their local area.  The applicant provided a bare minimum of information in relation to his activities as a member of Falun Gong, mainly relating to his involvement in organising protests and petitions after Falun Gong was banned in China in 1999.  He said nothing about the impact, if any, that the ban on Falun Gong had on him or on his ability to practice Falun Gong before his claimed arrest in January 2005.

   I am unable to be satisfied on the evidence before me that the applicant was a member of Falun Gong, as he claims, nor that he was detained by the police in January 2005 and suffered cruel persecution because the police regarded him as the head of Falun Gong in the area where he lived.  I am likewise unable to be satisfied on the evidence before me that the applicant’s wife was one of the leading members in their local area and had connections with organisations all over the world as the applicant claims.  I am unable to be satisfied on the evidence before me that, if the applicant returned to China now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his real or imputed belief in Falun Gong or his relationship as the husband of a person who he claims is one of the leading members of Falun Gong in their local area.”

6. It will be seen from the extracted portion of the Tribunal’s decision that this was a simple case of the inability by the Tribunal to reach the state of satisfaction required by s.65 of the Migration Act 1958 (the “Act”). It was up to the applicant to convince the Tribunal had he satisfied the criteria for the grant of a protection visa. It was not for the Tribunal to accept the representations of the applicant unless persuaded otherwise. Today the applicant appeared and informed me that he believed that the Tribunal had not decided his case in accordance with the Act for a number of reasons the first of which was that it had a bias against him.

7. As Lander J said, in Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877 [59]:

   “Actual bias is not easily proved.  It requires proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed, that notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker’s predetermined decision would not vary.”

   As his Honour pointed out, an allegation of bias must be proved.  A mere assertion from the bar table does not effect that end.

8. The applicant went on to tell me that the Tribunal didn’t understand his claim properly.  He said that the Department had decided his claim according to assumptions and not based on evidence.  The decision of the delegate is not relevant to these proceedings because the hearing by the Tribunal is a complete merits review. To the extent that the Tribunal may not have understood the applicant’s claim he has only himself to blame.  He gave a very short statement without much in the way of particularity and then did not attend the hearing where he would have been given an opportunity to explain his case and persuade the Tribunal that he was a person to whom Australia’s protection obligations should be extended.

9. The applicant then informed the court that the Tribunal did not consider his case in accordance with s.424A of the Act. He submitted that before it rejected his application the Tribunal should have written to him and told him the reasons it was going to use to effect the rejection. Neither the general principles of the procedural fairness nor the terms of s.424A require the Tribunal to provide the applicant with draft reasons for decision. Grounds for rejecting a claim are not “information” for the purposes of s.424A. As Rares J recently stated in SZHWH v Minister for Immigration [2006] FCA 1182:

   “[9] Here, the appellant gave evidence to the Tribunal in support of her claim. The Tribunal did not reach a state of satisfaction on that evidence that her claim should be upheld. Its thought process, in evaluating what the appellant was saying, was not information which required the issue of a notice under s.424A. All the Tribunal was doing was performing the statutory function of assessing the claim on the basis on which the appellant gave evidence to support it.

   [10] If the Tribunal, on looking at the material which the appellant relied upon in support of the claim, was not satisfied by the material because of its inherent qualities or its evaluation of the material, no notice was required to be given because the Tribunal was not, in that context, relying on information within the meaning of s.424A, but rather, upon its evaluation of the strength of what the appellant was telling it. I see no jurisdictional error in the approach taken by the Tribunal in expressing its conclusions and giving its reasons about the evidence which the appellant gave to it in support of her claim.”

10. The applicant then complained that because the Tribunal had rejected his application he had no opportunity to respond to the reasons and therefore he had no chance of having his case assessed fairly.  This misunderstands the nature of the Tribunal hearing and the Tribunal’s duties.  It is for the applicant to satisfy the Tribunal of the genuineness of his claim and not for the Tribunal to justify its reasons for decision.

11. In his written amended application the applicant also makes reference to s.424A but does not do so with any particularity such that the information to which s.424A refers is identified. In my view, the submissions made by the applicant orally would appear to constitute the whole of his claim in relation to this case.

12. The applicant has not been able to satisfy me that the Tribunal had fallen into jurisdictional error in the way in which it came to its decision upon his application.  I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $2,400.  I also order that the name of the First Respondent be amended to read Minister for Immigration and Citizenship.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: