SZIOH v Minister for Immigration
[2007] FMCA 1558
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1558 |
| 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, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| A v Minister for Immigration & Multicultural Affairs [2002] FCA 238 Lobo v Minister for Immigration & Multicultural Affairs [2006] FCA 1562 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 Navaratne v Minister for Immigration & Multicultural Affairs [1997] 713 FCA Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 VGAO of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 68 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 |
| Applicant: | SZIOH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2464 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 18 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Advocate for the Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 4 September 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 |
SYG 2464 of 2006
| SZIOH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (“the Act”) and has been given the pseudonym “SZIOH”.
These proceedings were commenced by an application under s.39B of the Judiciary Act1903 (Cth) invoking s.476 of the Act filed in the Sydney registry of the Federal Magistrates Court of Australia on 4 September 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 27 July 2006 and the formal notification was issued by letter dated 17 August 2006, affirming a decision of the delegate of the first respondent made on 17 November 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.
The applicant seeks an order that the first respondent show cause why a remedy should not be granted in the 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), I dispense with a hearing under r.44.12 and set the matter down for a final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed in these proceedings on 27 October 2006. I have marked it Exhibit "A" and it was read into evidence.
Background
The Tribunal decision of Ms J Morris, reference 060454758, provides the following background information:
The applicant, who claims to be a citizen of China (PRC), arrived in Australia on 24 September 2005 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 28 October 2005. The delegate decided to refuse to grant the visa on 17 November 2005 and notified the applicant of the decision and [her] review rights. The applicant sought review of the delegate's decision and the Tribunal, differently constituted, affirmed the delegate's decision on 3 February 2006. The applicant sought review of the Tribunal's decision by the Federal Magistrates Court and on 11 May 2006 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.(CB 74)
In the Tribunal decision under the sub-heading “The Applicant's Claims” the following information appears:
The applicant made the following claims:
· She is a Christian who belongs to an underground Church in Fujian.
· She was actively involved in religious activities with this underground Church.
· She secretly organized meetings and helped print leaflets for distribution at different gathering places.
· They had weekly gatherings on Sundays at different people's homes.
· At the end of 2004 they were distributing Bibles to a nearby village and her friend was detained by the PRC authorities.
· Because he could not stand the torture he disclosed the applicant's role to the police.
· The applicant was detained for 48 hours but because they did not have any information about her she was released.(CB 76)
The written submissions prepared by Mr Markus contain the following information in respect of the oral evidence given by the applicant at the hearing:
8.At the Tribunal hearing on 27 July 2006, the applicant gave the following oral evidence:
- her fear of returning to China was her belief in Christianity, which she practised: "The applicant stated that she loved to become a Christian but they come and arrest us." [CB 77.7];
- the applicant had joined the "Shouters" three years previously, although she did not know the provenance of the religion, or any details regarding the founder: all that she could recall was that the Shouters shouted Jesus or God with closed eyes, and that Shouters had to listen to their speech;
‑ the applicant could not recall any stories from the Bible or any important Christian dates;
‑ in Australia she attended a church in Chinatown, but did not know its name or the name of the priest; and
‑ her passport had been issued normally, and applied for with the assistance of her husband.
9.The Tribunal sought the applicant's comments on independent country information regarding the Shouters, the distribution of Bibles in China, and passports and exit procedures. The applicant did not wish to comment.
A convenient summary of the Tribunal's decision is also contained in the written submissions prepared by Mr Markus and I reproduce paragraphs10 through to 13 of those submissions:
10.On 17 August 2006 the Tribunal affirmed the delegate's decision under review [CB 73‑89].
11.The Tribunal was not satisfied the applicant was a Christian or Shouter, finding her knowledge to be ‘negligible’ and ‘less than minimal. The Tribunal found that the applicant lacked credibility, and that her claims were fabricated to enhance her Protection visa application.
12.The Tribunal was of the view that its findings were bolstered by the apparent normality that attended the applicant obtaining a passport.
13. For those reasons, the Tribunal concluded that the applicant did not have a well‑founded fear of persecution in China for a Convention reason in the foreseeable future.
Application for review of the Tribunal's decision
The applicant filed an application for review under s.39B of the Judiciary Act. In accordance with orders made at the first directions hearing on 4 October 2006, the applicant filed an amended application on 20 November 2006 setting out the following grounds:
1. The Tribunal failed to carry out [its] statutory duty. Procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed.
2. The Tribunal’s decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical. There was no evidence or the other material to justify the making of the decision.
3. The Tribunal failed to carry out [its] decision in a bona fide manner. Everyone knows China is a one-party country and the religious activities is not free there. If I return to China, I am sure I will be seriously [persecuted] to die.
Submissions and reasons
The applicant is a self‑represented litigant and appeared with the assistance of a Mandarin interpreter. The applicant confirmed that she had filed an amended application but had not prepared any written submissions in support of those grounds of review. When invited to make oral submissions in support of her application, she declined the offer. In response to my question, she replied that she would rely on the contents of the amended application and did not wish to make any further statements.
Mr Markus, appearing for the respondents, prepared written submissions responding to the issues of the application generally and, to the extent possible, to the grounds of review raised in the amended application. Mr Markus contends that the amended application contained no more than mere assertions which are meaningless, absent particularisation or references to specific findings of the Tribunal.
The Tribunal in its decision, after an extensive hearing which pursued each of the issues raised by the applicant, made the following summation of that evidence as follows:
At the conclusion of the hearing the Tribunal pointed out to the applicant that there were contradictions in her claims and evidence ‑ in particular, the lack of consistency with the independent evidence. The applicant was given the opportunity to clarify the contradictions regarding the various claims that she has made, but the applicant declined to do so. The Tribunal cannot be satisfied that the applicant has given any explanation that is reasonable or meaningful.
Considering the applicant's mendacity only the essential elements of her claim, the Tribunal finds that the claims of harm, and threats of harm, by the Chinese authorities, to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a Convention reason in China in the foreseeable future, and is therefore not satisfied that the applicant's fear of persecution for a Convention reason is well founded.(CB 89)
The Tribunal found that the applicant was not a witness of truth and could not be satisfied that she was associated with an underground Christian church and particularly the “Shouters”. The Tribunal found the applicant to be untruthful after an extensive review of the practice of Christianity in China and the distinct characteristics of the group known as the “Shouters”. In response to a significant number of questions raised by the Tribunal as to simple aspects of the operation of the Christian and “Shouters” religion, the applicant responded that she either did not know or could not remember. This included simple aspects in respect of the name of the church and the clergyman at the venue in Chinatown, Sydney, where the applicant claimed she had been attending since her arrival in Australia. An adverse credibility finding and consequent rejection of an applicant's claims and credibility findings are a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (1999) 168 ALR 407.
I am satisfied that the Tribunal's findings in this respect were open to it on rational grounds on the material before it which are detailed in the decision record. The Tribunal details at length the applicant’s vague, inconsistent, confused and unreliable evidence in a number of respects. The Tribunal's reasons for decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates that the concerns it had in relation to aspects of the applicant's evidence, were raised with her during the hearing. The applicant was provided with an adequate opportunity to respond. At each instance, when different aspects were examined and the applicant was encouraged to respond, she declined to answer any further questions on that topic.
It was established in Kopalapllai v Minister for Immigration (1998) 86 FCR 547 at [558]‑[559] and in W148/2000A v the Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64]‑[68] that so long as the Tribunal's credibility findings were open to it, no jurisdictional error is demonstrated. In this instance, the Tribunal reached its decision as to the applicant's credibility based on independent information, particularly as to the position of Christian churches and the operation of a particular group known as the "Shouters", the substance of which was put to the applicant during the hearing, the implausibility of aspects of the claim in the light of such evidence and the inconsistencies in her claim and evidence. Based on the evidence before the Tribunal, the applicant's claims and her responses to the Tribunal questions, it was open to the Tribunal to make the finding that it did.
Mr Markus, in his written submissions in response to the first ground, notes that the applicant has not identified any error on the part of the Tribunal in the discharge of its statutory duty and submits that none is apparent on the face of the Tribunal's reasons for decision. The decision was based on adverse findings on the applicant's credibility, which is a function of the decision maker and relies on the decision in Durairajasingham, which is referred to above. Mr Markus also referred the Court to Navaratne v Minister for Immigration & Multicultural Affairs [1997] 713 FCA per Tamberlin J where His Honour states:
Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified. For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision-maker on credibility questions.
I agree with the submissions made by Mr Markus that the first ground of the amended application cannot be sustained.
In response to the second ground, Mr Markus submits:
…that mere disagreement with the Tribunal's reasons does not amount to irrational and/or illogical reasoning, and in any event, unpersuasive reasoning or “infelicitous phrasing” does not amount to an error of law: A v Minister for Immigration & Multicultural Affairs [2002] FCA 238 and VGAO of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 68; Lobo v The Minister for Immigration & Multicultural Affairs [2006] FCA 1562 at [50]; and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [31] where it was said that mere “sloppy” reasoning cannot, of itself, demonstrate either lack of bona fides, or unreasonableness going to jurisdiction.
The second ground provides no particulars as to what part of the Tribunal's decision and reasoning is subject to the claim of irrationality or illogicality. Further, the applicant, although invited, made no attempt in oral evidence to identify the passages in the decision, or the general areas, which are the subject of her complaint. It appears that this claim can be no more than a general disagreement with the Tribunal decision. I am satisfied that this ground cannot be sustained and should be dismissed.
In response to the third ground, Mr Markus submits that to the extent that this ground claims that the Tribunal was biased in its consideration of the application, such a claim is a serious one and not to be made lightly. Without evidence, this ground simply cannot succeed: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [42]‑[49]; Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425 at [27]‑[32]. Mr Markus submits that, furthermore, the mere fact of adverse findings in the Tribunal's reasons does not amount to bias: VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38].
In the complete absence of particulars or submissions in support of a claim of bias, this ground cannot be sustained. A party alleging bias on a decision maker's part carries a heavier onus and it must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised in the absence of evidence of partisanship or hostility before inferring actual bias from factual errors or faulty reasoning on the part of a Tribunal member: Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36]. Bias does not necessarily arise from illogical or irrational decision making or inferences: Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [52], [75], [99] ‑ [101]. Further, a manifestly defective or illogical approach to the consideration of evidence and even irrationality in the reasons for a conclusion may create an impression of confusion, lack of care or incompetence, but such an approach, without more, does not necessarily demonstrate apprehended bias: Applicant S20/2002 at [101] and [136]. Again, this appears to be an expression of dissatisfaction with the Tribunal decision, rather than a valid claim of bias and consequently should be dismissed.
Mr Markus submits that the third ground also reflects a misconception that the Court can review the merits and decide for itself questions of fact which are within the domain of the Tribunal. Clearly, a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ. Judicial review asks whether the original decision maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. This aspect of the applicant's claim must also be rejected.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained and consequently the application should be dismissed. I am satisfied an order of costs should be made in this matter.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 17 September 2007
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