SZIOD v Minister for Immigration
[2007] FMCA 590
•20 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 590 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12 |
| Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v SZGMF [2006] FCAFC 138 NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 SBBS v Minister for Immigration (2002) 194 ALR 749 SCAA v Minister for Immigration [2002] FCA 668 SZBEL v Minister for Immigration (2006) 231 ALR 592 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 |
| Applicant: | SZIOD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG878 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Mr B Cramer of Blake Dawson Waldron |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 24 March 2006 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 |
SYG878 of 2006
| SZIOD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 March 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 21 February 2006 and handed down on 14 March 2006, affirming a decision of the delegate of the first respondent made on 13 October 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIOD”.
The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with the hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 10 May 2006. I have marked this as Exhibit “A" and the contents were read into evidence.
Background
The Tribunal decision of K. Hartman, reference N05/52614, provides the following background information:
The applicant, who claims to be a citizen of The People’s Republic of China, arrived in Australia on 31 August 2005. On 13 September 2005, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act).
On 13 October 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 4 November 2005 the applicant applied for review of that decision.
On 14 November 2005 the application for review was constituted to Tribunal member Hartman.
On 3 February 2006 the Tribunal commenced to hear the application.
On 16 February 2006 the Tribunal completed hearing the application.(CB 64)
The Applicant’s claims
The applicant’s claims are set out in the Tribunal decision under the heading ‘Claims and Evidence’. The following details were also in his protection visa application:
The applicant states that he is a protestant from Fuqing China. The applicant claims that the Three Patriotic Self Movement (TPSM) was set up by the Chinese government to control people’s religious activity. The applicant claims that “real Christians” do not recognise this official organisation because it denigrates the “chastity” of the religion. The applicant claims he was detained on two occasions because he attended house worships.
The applicant claims on 4 September 1999 he attended worship at a sister’s home. The applicant claims 15 other people attended. The applicant claims that the police came to the home and took them to the police station. The applicant claims that once they were not recognised as Falun Gong members they were set free the next day.
The applicant claims he went to Shandong in September 2004 with six other protestants. The applicant claims they visited Jianxinzhuan village where many unregistered protestants lived. The applicant claims that the protestants did not have bibles. The applicant claims that they photocopied parts of the bible, the Hebrew Scriptures the New Testament and some Hymns. The applicant claims that on the 3 November 2004 he delivered the photocopies to over 30 local unregistered protestants. The applicant claims that on the 5 November 2004 he prepared more copies. The applicant claims he was taken to the police station for investigation. The applicant claims he refused to joint the TPSM and was sent to the Zibo Detention Penitentiary.
The applicant claims that his parents and wife bribed Fuqing local police and requested Zibo Detention Penitentiary to transfer him to Fuqing. The applicant claims that he was released to Fuqing police station on 27 February 2005. The applicant claims he signed a statement undertaking not to conduct any further unregistered religious activity.
The applicant claims that in June 2005 Father Tan Liu asked him to receive reading material from a Hong Kong based charity group. The applicant claims that on 29 July 2005 he drove to Shekou City and picked up six boxes from Mr Chan from Hong Kong and delivered them to Father Tan Liu at Changle City. The applicant claims that a friend called him on 19 August 2005 and told him that Father Tan Liu was arrested because the police claimed that he smuggled and distributed dangerous goods. The applicant claims that he was told that the police were looking for those involved.(CB 67-68)
Tribunal’s findings and reasons
A summary of the Tribunal’s reasons is contained in the first respondent’s submissions prepared by Mr Cramer. I adopt paragraphs 5 to 10 of those submissions:
5. The applicant attended hearings before the Tribunal on
3 February 2006 and 16 February 2006 and gave oral evidence.
6.The Tribunal did not accept the applicant’s claims because it did not find him to be a truthful or credible witness for the following reasons:
(a) The applicant did not know the Christian denomination to which he belonged;
(b) He had no understanding of Christian teachings or beliefs;
(c) He could not explain the Trinity;
(d) The applicant was not familiar with the bible;
(e) Be was unable to tell the Tribunal anything about the gatherings he claimed to have attended;
(f) The applicant could not explain the ceremony of baptism although he claimed to have been baptised;
(g) There were inconsistencies in the applicant’s oral evidence in relation to his attendance at church; and
(h) His claims were not consistent with independent county information.
7. In light of the applicant’s lack of knowledge of Christian beliefs and teachings and the independent country information about Christians in Fujian, the Tribunal was unable to accept “that the applicant is a Christian or that he has ever attended Christian gatherings.
8.As a result, the Tribunal did not accept that the applicant was detained in September 1999 for attending a religious gathering or in November 2004 for distributing religious material, or that he had distributed religious materials in July 2005.
9. The Tribunal concluded that the applicant had fabricated the claims to support his claim for refugee status. It was also not satisfied that he had practised Christianity in Australia or that he would practise Christianity if he returned to China.
10. Accordingly, it was unable to be satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.
Application for review of the Tribunal’s decision
On 24 March 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. The applicant was granted leave at the first Court date to file and serve an amended application giving complete particulars of each ground of review relied upon by
27 June 2006. On 22 June 2006, the applicant filed an amended application which contained the following grounds:
1.The tribunal failed to carry out it’s statutory duty. The Tribunal failed to review my application. The RRT stated in their letter on 15 November 2005 that “The Tribunal has considered the material before it in relation to your application but it is unable to make a decision in your favour on this information alone”, that meant, the RRT had made their decision in their mind before they heard my statement in the hearing. I thought it was unfair for me.
2.The Tribunal’s decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical.
3.The RRT failed to carry out it’s decision in a bona fide manner.(copied without alteration or correction)
Submissions and reasons
The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. He confirmed that he had filed an amended application, but had not filed any written submissions for this hearing. When invited to make oral submissions in support of his application, the applicant declined, saying that he would rely upon his amended application. At the first Court date, the applicant indicated that he wished to participate in the Court’s Panel Advice Scheme. A panel lawyer was subsequently appointed and the applicant attended a conference with the lawyer and received written advice. I believe that the applicant has been provided with assistance to prepare for this hearing but has not taken full advantage of the opportunity to prepare written submissions for this hearing.
Mr Cramer, appearing for the respondents, provided the Court with both written and oral submissions addressing the issues raised in the amended application. In respect of ground one, Mr Cramer contends that the applicant alleges the Tribunal failed to carry out its statutory duty, however, he does not identify what procedures or duties the Tribunal failed to observe in making its decision. Mr Cramer submits it is clear that the Tribunal invited the applicant to attend a hearing. The applicant accepted the invitation by completing the response to hearing invitation form. He also gave oral evidence to the Tribunal on 3 and 16 February 2006. The Tribunal expressed its concerns about the credibility of the applicant’s claims which were discussed at the hearing. Therefore, there was no denial of procedural fairness in circumstances similar to those considered by the High Court in SZBEL v Minister for Immigration (2006) 231 ALR 592. Mr Cramer submits that the Tribunal’s decision is based on the applicant’s own evidence and independent country information (the substance of which was put to the applicant at the hearing). There was no failure to comply with s.424A of the Act because the information relied upon by the Tribunal fell within the exception in s.424A(3)(a) and (b).
Mr Cramer submits that grounds one and three allege without foundation bias and lack of bona fides on the part of the Tribunal. He submits that the Tribunal’s findings do not demonstrate that these allegations can be established. The Tribunal conducted two hearings at which the applicant was afforded the opportunity to present oral evidence and submissions in support of his case. The Tribunal’s adverse assessment of the applicant’s credibility was open to it on the material before it. The finding was based on rational grounds and arrived at after consideration of matters that were logically probative of the issue of credibility: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 552 and 559. It is submitted that the Tribunal’s appraisal of the evidence was not unreasonable or perverse. Its finding was not unreasoned, a mere assertion lacking rational or reasoned foundation, or plainly and ex facie wrong and selective of material going only one way: NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 at [115]. It is submitted therefore that no inference of bias or prejudgment can be drawn from the mere fact of an adverse credibility finding: VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]. There being no transcript in evidence, it should not be inferred that the Tribunal member was biased in the manner in which it conducted its hearing: SBBS v Minister for Immigration (2002) 194 ALR 749 at [43].
Mr Cramer also submits that the allegation directed at the Tribunal’s letter of 15 November 2005 (viz. “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”), must be rejected.(CB 55) There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review. What is critical is that the member does not close his or her mind to any additional material that might prove probative. It is submitted that there is no reason in this case to think that the Tribunal had closed its mind, at the time of its letter or at any time prior to its decision. The Tribunal invited the applicant to two hearings. It is submitted that this is not conduct which suggests that it had already reached a decision from which it could not be moved: Minister for Immigration v SZGMF [2006] FCAFC 138 at [21] per Branson, Finn and Bennett JJ.
The second ground of the amended application alleges that the Tribunal decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical. Mr Carter submits that this ground is not particularised and is without foundation.
When the applicant was invited to reply to the submissions made by Mr Carter, he said that there had been no fabrication in the evidence he presented in his visa application or to the Tribunal. He submits that the Tribunal did not carry out any investigations into his claims. He also insisted that all statements he made in his visa application and to the Tribunal were true. However, the applicant did not wish to further elaborate on any of his statements or make further submissions.
Conclusion
The applicant appeared at the Court hearing as a self-represented litigant with the assistance of a Mandarin interpreter. Although the applicant has participated in the Panel Advice Scheme and was granted leave to file an amended application, the amended application consists of three bland statements, which are not supported by any particulars or meaningful submissions. I have independently reviewed the Court Book including the Tribunal decision to determine whether any argument based on that material can been made out. On a fair reading of that material, it is not apparent that any identified claim exists. Mr Cramer, appearing for the respondents, assisted the Court with written submissions which were supplemented by oral submissions in response to the limited material filed by the applicant. I agree with the submissions made by Mr Cramer that there is nothing to indicate that the Tribunal overlooked any of the considerations it was required to take into account. The essential aspects of the applicant’s claims were properly considered and addressed in the Tribunal decision. I also accept Mr Cramer’s submission that the Tribunal’s reasons were rational and do not disclose any lack of logic or jurisdictional error. This submission was made acknowledging that illogical reasoning in itself does not constitute a jurisdictional error. However, there has been suggestion that illogical reasoning is present in the Tribunal decision. In the circumstances, I am satisfied that 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 this application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 19 April 2007
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