SZILO v Minister for Immigration
[2007] FMCA 486
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 486 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming a decision of a delegate not to grant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution for reason of political opinion – bias – allegation of bias – no evidence of bias – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 361 SZHXW v Minister for Immigration & Citizenship [2007] FCA 368 SZIAY v Minister for Immigration & Anor [2006] FMCA 1680 Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56; (2001) 105 FCR 212 |
| Applicant: | SZILO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3606 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 March 2007 |
| Date of Last Submission: | 20 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the first respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3606 of 2006
| SZILO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision of the Refugee Review Tribunal. The decision in this case was signed on 17th October 2006 and handed down on 31st October. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant seeks judicial review of that decision and in particular seeks the following:
i)A declaration that the decision was invalid and contrary to law.
ii)An order that the decision be quashed or set aside.
iii)An order that the application be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.
The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on
11th August 2005 and he applied for a protection (Class XA) visa on
8th September in that year. The application for a protection visa was refused on 31st October 2005 so the applicant sought a review of that decision by the Refugee Review Tribunal. In January 2006 the Tribunal, differently constituted, affirmed the delegate's decision.
The applicant then sought judicial review from the Federal Magistrates Court and on 2nd July 2006 Federal Magistrate Smith made orders by consent quashing the decision of the Tribunal and issuing a writ of mandamus directing the Tribunal to reconsider and determine the matter according to law. The Tribunal wrote to the applicant on
11th August 2006 inviting him to attend a hearing on 26th September. The applicant completed a Response to Hearing invitation form indicating that he wish to attend the hearing and to give evidence and advising that he would require the assistance of an interpreter in the Mandarin language.
In further support of his application he provided a copy of a document in Chinese which was also translated into English. That document was headed "Fujian Province Fuqing City Local Taxation Office, Rong Cheng Branch". The subject matter of the document was heading "Decision to Discharge Applicant from Employment." The applicant attended the hearing of the Tribunal on 25th September and gave evidence. The Tribunal asked the applicant a number of questions about his case and the applicant replied.
He claimed that he feared that if he returned to China he would receive a sentence of at least 7 years imprisonment because he had been a public servant in an office of the Taxation Bureau and had organised protests and demonstrations about the government's taxation policy. The Tribunal queries with the applicant parts of his case including the applicant's falsified passport that he said had been obtained for him by a friend.
The Tribunal, at page 131 of the Court Book, expressed to the applicant some doubts about parts of his case including the fact that the applicant claimed that a doctor and a nurse had helped him escape from the PSB when they had known him only a few days. The Tribunal wrote to the applicant the day after the hearing on 26th September 2006. That letter was heading "Invitation to Comment on Invitation" and a copy of it appears on pages 110 through to 113 of the Court Book.
It is quite clearly a letter written to comply with the requirements of
s. 424A of the Migration Act. The applicant's Migration Agent replied on 10th October 2006 enclosing a copy of a statutory declaration prepared by the applicant. A copy of that document appears on pages 115 to 118 of the Court Book. I note that the contents of that document have been largely reproduced in the applicant's submission to this Court.
The Tribunal handed down its decision on 31st October 2006. A copy of the decision record appears in the Court Book and the findings and reasons are to be found on pages 136 to 140. The Tribunal noted that a threshold issue for the Tribunal was the applicant's identity.
The Tribunal considered the applicant's claims to have travelled to Australia using a falsified Chinese passport in another person's name. The Tribunal said at page 136 in a statement that I will modify by deleting reference to the applicant's name the following:
Given that the applicant obtained a falsified passport in another name which was of sufficiently high quality to pass inspection by the Chinese authorities when he left China and by the Australia authorities when he entered Australia there is no reason in principle why he could not also have obtained falsified identification documents which show that his name is SZILO[1].
His ability to change his identity in this way raises doubts as to whether he is SZILO, another name or some other person entirely. However, I have given him the benefit of the doubt by accepting that he is a Chinese citizen whose name is SZILO as he claims. I also accept that in China he lived in a certain village[2] in a certain town, Fuqing City and that he was an employee of the Fuqing City Local Taxation Office.
[1] Applicant’s name changed to comply with s 91X of the Migration Act
[2] Name of village not disclosed in order not ti identify the applicant
The Tribunal went on to say that it was not satisfied as to the overall credibility of the claims made by the applicant concerning his fear of persecution in China. The Tribunal set out on pages 137 through to 139 a number of specific reasons based on the applicant's evidence as to why it was not satisfied about the credibility of the applicant's claims. The Tribunal also noted certain issues relating to the applicant's attendance at the hearing.
The Tribunal noted the applicant's claims that he was suffering huge mental pressure at the second hearing that he was sometimes confused, felt his brain was empty and did not know what he was saying.
The Tribunal noted the applicant's claims that this resulted in him making silly mistakes. The Tribunal went on to say:
Having had the opportunity to observe the applicant during the hearing I am not satisfied that these claims are true. He did not raise them at the hearing itself. At no point did he appear to be suffering from any particular emotional or cognitive disability and he remained composed throughout. His answers to question were responsive and lucid. I am not satisfied he was prevented in any way from participating fully in the hearing and articulating his claims.
The Tribunal went on to say that, given the member's general concerns about the credibility of the applicant's account of his experiences in China, the Tribunal was not satisfied that any reliance could be placed on the applicant's key claims which included having helped organise the protests against taxation policy, having been arrested and detained, having escaped from custody and having left China after spending four months in hiding.
The Tribunal was not satisfied that the applicant was wanted by the Chinese authorities or that he has a well founded fear of persecution for reasons of his political opinion or for any other convention reason.
The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Tribunal affirmed the decision not to grant the applicant a protection visa.
In his application for judicial review the applicant claimed that there was an error of law and the Tribunal's decision constituting a jurisdictional error and that there was a procedural error constituting an absence of natural justice. He claimed that he did not believe the Tribunal member had considered his review application properly and fairly and that the decision included a reasonable apprehension of bias.
He set out a quote from the Tribunal decision which he said established the ground of bias. He took issue with the Tribunal for refusing to obtain complete documents from the Department of Immigration and Multicultural Affairs in relation to his application. He takes issue with the intention of the Tribunal to give him a fair chance to comment on the potentially adverse information in the s.424A letter. He submitted that his response to the s.424A letter contained materials and information that should be regarded as new materials that were not provided to the Tribunal before.
As the Tribunal had not decided the review in his favour on the basis of that new material the applicant submits that under s.425 of the Migration Act the Tribunal should have invited him to a further hearing. The applicant also complains of a failure to comply with
s.424A(1) of the Migration Act and complains that the Tribunal misunderstood his application and failed to consider an essential claim in it and asked a number of irrelevant questions.
He submitted the Tribunal failed to identify and consider the relevant issues to be determined and as a result incorrectly assessed his credibility. The applicant claims again that his application had not been considered fairly and properly. The applicant has filed a written outline of submissions on 1st March 2007. He claims that the Tribunal failed to consider his evidence properly and fairly and sets out his belief that the Tribunal member assessed his application fairly and carefully.
The submission incorporates in large measure the points raised in the applicant's reply to the Tribunal's s.424A letter. The applicant did not seek to add any material in his oral submission to the Court although made a short submission in reply to the oral submissions made by
Ms Hanstein, solicitor for the respondent Minister. He said that he had submitted a document in relation to his dismissal from his employer as a result of his participation in the demonstration. He reiterated that he had to use a false name in order to enter Australia and told the Court that he had provided all of his identity documents to the Tribunal.
The solicitor for the Respondent Minister, Ms Hanstein, submitted that the Tribunal's decision was not affected by jurisdictional error. She submitted that there was no evidence of bias on the part of the Tribunal and pointed out that the Tribunal had accepted that the applicant was who he claimed to be and the fact that the applicant had used false identity documents in the past did not appear to have contributed to the Tribunal's adverse credibility findings.
She submitted that those circumstances fell far short of establishing bias. As to the claim of a breach of s.242A of the Migration Act it is submitted on behalf of the respondent Minister that the Tribunal clearly had regard to the applicant's responses to the s. 424A letter and referred to it in several places in the decision. She submitted, and in my view correctly, that it was open to the Tribunal to make the findings that it did on the basis of the evidence before it and that those findings do not demonstrate any bias or a failure to make a genuine assessment of the applicant's claims.
The applicant had referred the Court to the decision of Federal Magistrate Smith in SZIAY v Minister for Immigration & Anor [2006] FMCA 1680 particularly at [60]. In that decision his Honour said:
I identified significant misstatement of the effect of important Country Information which I concluded revealed jurisdictional error. I also identified unsupported, unreasonable and capricious adverse conclusions being presented by the Tribunal to justify its decision. I have pointed to significant evidence providing support for the applicant's claims, which was not rejected by the Tribunal but which it failed to address.
Accumulatively I consider that the flaws in the Tribunal's reasoning reveal a decision maker who has not made a genuine attempt to assess all the evidence so as to make the determination required under s. 36 and s. 414 of the Migration Act.
On behalf of the Minister Ms Hanstein submitted that his Honour's decision in SZIAY (supra) can be clearly distinguished from the case under review before this Court. In my view that submission was correct. His Honour's description of the serious misstatements and omissions and capricious adverse conclusions do not, to my mind, appear in the decision under review before me. I agree with the submission that the decision in SZIAY can be distinguished in this case.
In reply to the applicant's claim of a breach of s.425 of the Migration Act which is based on an alleged failure to invite the applicant to attend a further hearing after considering his response to the s.424A letter the solicitor for the respondent submits that the applicant was not entitled to a further hearing as the applicant's response did not constitute new material and the fact that the Tribunal was not going to decide the case in the applicant's favour on the basis of that material did not justify a fresh hearing being set up.
It is submitted that the Tribunal had invited the applicant to attend a hearing and the applicant did attend and give evidence.
The submission goes on to say this in paragraph 15:
The Tribunal's obligation pursuant to s. 425 was thereby discharged. It is not the case that the Tribunal is obliged to invite the applicant to a further hearing if new information comes to light. Further, any new material contained in the applicant's response was information emanating from the applicant and in response to the s. 424A letter. It therefore did not raise any new issues.
The solicitor for the respondent referred the Court to the decision of the Full Court of the Federal Court in Win v Minister of Immigration & Multicultural Affairs [2001] FCA 56, (2001) 105 FCR 212 at [27] to [28]. In my view the submission on behalf of the respondent accurately sets out the law and I am satisfied that the applicant's written response to the s.424A letter, whether it contained new information or not, and in my view it did not, did not reactivate a requirement under
s.425 to invite the applicant to a further hearing if the Tribunal was not satisfied that the further information was sufficient to allow it to make a decision in the applicant's favour.
The solicitor for the respondent submits that there is no breach of
s.424A of the Migration Act and that the allegation that there was, was largely meaningless in the absence of any particulars. Finally, as to the applicant's claim that the Tribunal failed to assess the applicant's application properly it is submitted, and I believe correctly, that this is no more than a challenge to the Tribunal's findings on matters of fact and amounts to a claim for merits review, that is outside the jurisdiction of the Court on judicial review.
Dealing with the applicant's claims there is an allegation of bias. I am of the view that there is no evidence of bias on behalf of the Tribunal. The fact that the Tribunal makes a factual finding adverse to an applicant's claim does not of itself establish bias. In a recent decision on appeal from this Court SZHXW v Minister for Immigration & Citizenship [2007] FCA 368 Jessup J referred to a practice on the part of applicants to make the serious allegation of bias. In paragraph 8 Jessup J had this to say:
I have seen this allegation of bias in a number of notices of appeal in proceedings arising under the Act recently and I regret to say that one gets the impression that allegations of this kind are resorted to much more liberally than the circumstances ever seem to justify and without an apparent consciousness of the seriousness of the accusation involved in them.
It is fair to say with respect to his Honour's comments that Federal Magistrates who hear applications for judicial review of Tribunal decisions at first instance regularly and frequently see allegations of bias brought against the Tribunal without any or any real evidence in support of such a claim. The Full Court of the Federal Court considered allegations of bias or bad faith in the decisions of SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358 and SBBS v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCA 361. In each case the Full Court was constituted by Tamberlin, Mansfield, and Jacobson JJ. In SBBS (supra) at [43] their Honours said:
First an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved.
Their Honours went on to say at [44]:
The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
Their Honours made a similar point in SBBF (supra) at [16]. There is no evidence before the Court that goes near to establishing any bias on the part of the Tribunal. As I said earlier, the fact that the Tribunal does not make a factual decision in favour of the applicant does not of itself establish bias. There is nothing in the Tribunal decision which raises any suspicion of bias on the part of the Court and there is no other evidence. The claim of bias must therefore be dismissed.
There is no breach of s.424A of the Migration Act because the Tribunal's decision was based on the Tribunal's finding that the applicant's evidence to the Tribunal was not credible. Credibility is a decision that lies in the hands of the decision maker and so long as there is evidence upon which the Tribunal can make a finding that the applicant's evidence is not credible then there is no scope for a Court conducting judicial review to interfere. It was open to the Tribunal to find a lack of credibility on the evidence before it.
I have previously indicated that there is no breach of s.425 of the Migration Act. The Tribunal invited the applicant to attend the hearing and the applicant attended and gave evidence. That discharged the requirement under s.425 and it was not reactivated as a result of the applicant's response to the s.424A letter. There is no evidence that the Tribunal did not properly or carefully assess the applicant's claim.
The reasons for decision contain what appears to me to be a detailed summary of the evidence and a detailed analysis of it.
The applicant is not legally represented in these proceedings. My own reading of the Tribunal decision and the other documents in the Court Book does not establish any arguable case for any other jurisdictional error. I am satisfied that no jurisdictional error has been made out.
As there is no jurisdictional error I am satisfied that the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Because the decision is a privative clause decision it is not therefore subject to orders in the nature of certiorari, mandamus, prohibition or a declaration as sought by the applicant.
It follows that the applicant will be dismissed. I will make an order changing the title of the first respondent to Minister for Immigration and Citizenship. As the applicant has been wholly unsuccessful in his claim I am satisfied that this is a matter where I should consider an order for costs on behalf of the respondent Minister.
There is an application for costs on behalf of the respondent Minister. The applicant has been wholly unsuccessful in his claim and I am not satisfied that there is any reason why I should not make a costs order in favour of the respondent Minister. I note that the applicant claims that there have been too many mis-judgments, if that of course is a complaint about the decision that I have handed down then of course that is a matter that can be argued in another place. The amount of $4,000.00 which is sought is, to my mind, well within the scale provided by the Federal Magistrates Court Rules and is an appropriate figure.
I note that I have previously made an order on 12th February changing the name of the first respondent to the Minister for Immigration and Citizenship so there is no need for me to make that order.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 28 March 2007
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