SZIQA v Minister for Immigration & Anor

Case •

[2006] FMCA 1474

•

11 October 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1474

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of People's Republic of China claiming fear of persecution for reasons of political opinion – credibility – whether Tribunal failed to comply with Migration Act 1958 (Cth), s.424A(1) – whether Tribunal failed to comply with Migration Act 1958 (Cth), s.430 – bias – apprehended bias – allegation of bias – actual bias – whether Tribunal showed bias at the hearing – no jurisdictional error.

PRACTICE & PROCEDURE – Making unfounded allegations of impropriety or bad behaviour against people who disagree with a party's submissions will not find favour in the court.
Migration Act 1958 (Cth), ss.424A, 425, 430, 474
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 followed
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 referred to
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 501 referred to
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 referred to
Livesey v New South Wales Bar Association (1983) 151 CLR 288 referred to
R v Simpson; Ex parte Morrison (1984) 154 CLR 101 referred to
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 referred to
Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113 referred to
Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 followed
Applicant: SZIQA
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1011 of 2006
Judgment of: Scarlett FM
Hearing date: 24 August 2006
Date of Last Submission: 14 September 2006
Delivered at: Sydney
Delivered on: 11 October 2006

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Respondents: Phillips Fox

ORDERS

  1. The application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1011 of 2006

SZIQA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal signed on 20th February and handed down on 2nd March 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.

  2. The applicant seeks the following orders:

    a)A declaration that the decision is invalid and contrary to law.

    b)An order in the nature of certiorari quashing the decision.

    c)An order in the nature of mandamus remitting the application for a protection visa to the tribunal to be determined according to law.

    d)Costs.

Background

  1. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 31st August 2005. He applied for a protection (class XA) visa on 14th September 2005 but it was refused on


    13th October. He then sought a review by the Refugee Review Tribunal.

Review by Refugee Review Tribunal

  1. The applicant lodged his application for review with the Tribunal on 17th November 2005, with the assistance of his migration agent.


    The Tribunal wrote to him on 19th December 2005, inviting him to attend a hearing on 18th January 2006.

  2. The applicant attended the hearing and gave evidence with the aid of a Mandarin interpreter. His migration agent did not attend the hearing, but forwarded a number of documents beforehand, including a copy of the applicant’s passport.

  3. The applicant told the Tribunal of his fear of persecution for the reason of his political opinion. He and some friends set up a pro-democracy newspaper in Fuqing City called the News Freedom Herald.


    They copied that name from a newspaper published in the United States that had been banned in China. The applicant claimed that they published the last edition of the newspaper in June 2005. He and some of his colleagues were arrested and detained in July 2005.


    The applicant said that he convinced the authorities that he had nothing to do with the activities of the others and he was released. He obtained a visa for Australia and left as soon as he could.

  4. The Tribunal questioned the applicant about his account of having seen a copy of the American newspaper on the Internet in June 2005.


    The Tribunal put to the applicant that the American News Freedom Herald was published in 1996. After the hearing, the Tribunal found an October 2005 update of a website belonging to the Chinese Constitutionalist Association that referred to an electronic version of the News Freedom Herald that was still circulating.

  5. Whilst the Tribunal conceded that the discovery of the newspaper still circulating in electronic form appeared to add some authentic background to the applicant’s claims, the Tribunal found the applicant’s evidence during the hearing to be unimpressive.

The Tribunal’s Findings and Reasons

  1. The Tribunal’s findings and reasons, which are very brief, are set out on pages 82 and 83 of the Court Book. Whilst the Tribunal accepted that an electronic version of the News Freedom Herald continued to be published, the tribunal did not consider that it added any weight to the applicant’s claims.

  2. The Tribunal did not find the applicant to be a credible witness, saying at Court Book 82:

    On the implausible, inconsistent and vague evidence before it, the Tribunal does not accept that the Applicant has or has had any active interest in PRC politics, let alone the pro-democracy movement, notwithstanding that he appears to have had some vague memory of the material found at

    In addition to these findings, the Tribunal relies on the Applicant’s unfettered use of his passport, which he presented at the hearing, in concluding that he is of no relevant interest to the PRC authorities at all.

    The Tribunal finds that the Applicant is not a reliable witness in the present matter.  

  3. The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in China and was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

Application for Judicial Review

  1. The applicant commenced proceedings in this court by filing an application and an affidavit in support on 5th April 2006. At the first court date, I made direction for hearing and listed the application for final hearing on 24th August 2006. I granted leave to file and serve an amended application by 3rd July 2006. He filed an amended application on 30th June 2006.

  2. When the matter came on for hearing, the applicant produced another document headed “Additional Grounds of Application” which he sought leave to file in court. He had not served a copy on the solicitors for the first respondent. As he was not legally represented, I allowed leave to file the document in court and proceeded with the hearing.


    I heard oral submissions from both the applicant and the solicitor appearing for the Minister, Ms Rose.

  3. I took the view, however, that applicant’s additional grounds, produced on the day without any notice to the respondents, had the potential to create a procedural unfairness. I stood the matter out of the list and granted leave to the first respondent to file a further outline of submissions and also granted the applicant leave to file a submission in reply. The first respondent’s supplementary submissions were filed on 1st September 2006, and the applicant’s submissions in reply were filed on 14th September 2006. I have considered all the documents.

  4. The applicant’s claims are contained in his amended application that was filed on 30th June 2006 and his additional grounds filed in court on the day of the hearing. I note from the court file that he took advantage of the Refugee Review Tribunal independent legal advice scheme, but I am not convinced for a moment that the barrister who was assigned to provide this applicant had anything to do with the production of the additional grounds on the day of the hearing.

  5. The applicant’s grounds in his amended application, which I have paraphrased, are:

    a)That the Tribunal failed to assess his claims fairly or properly, ignored or failed to consider a claim made to the Tribunal, ignored relevant materials, misunderstood his claim and made a mistake in relation to an important finding of fact.

    b)That the Tribunal failed to comply with s.424A(1) of the Migration Act.

    c)That the Tribunal failed to comply with s.425 of the Migration Act.

    d)That the Tribunal ignored independent country information.

    e)That the Tribunal did not assess the applicant’s claim fairly and carefully.

    f)The additional grounds are (paraphrased again):

    g)Failing to give reasons in breach of s.430 of the Migration Act.

    h)Questioning the applicant in such a way as to indicate a disbelief of the applicant’s case suggesting an apprehension of bias.

    i)Failing to consider evidence in support of the applicant’s case and thereby failing to consider and determine the application before the Tribunal

Submissions

  1. At the hearing, the applicant submitted that the Tribunal member exhibited a strong bias against him in the manner of his questioning of his evidence. He told the court that if the Tribunal had a problem with his credibility it should have notified him in writing before the hearing. As it is my understanding that the Tribunal’s adverse findings about the applicant’s credibility concerned his oral evidence at the hearing, it is hard to see how the Tribunal could have taken this step.

  2. The solicitor for the first respondent Minister submitted that the Tribunal’s rejection of the applicant’s claims stemmed entirely from the view it took of the applicant’s credibility. Findings of adverse credibility, where they are reasonably open on the evidence, are properly the function of the decision-maker and are generally not susceptible to judicial review (see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407).

  3. The first respondent submitted that the Tribunal’s findings were reliant solely on the applicant’s performance at the hearing. There was no breach of s.424A in the Tribunal’s reliance on the fact that the applicant was able to obtain a passport without any trouble because the applicant had provided his passport to the Tribunal for the purpose of the hearing, so that information is covered by the exception in s.424A (3) (b) (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [51]-[52] and [245]).

  4. The first respondent submitted that the Tribunal complied with the obligation under s.425 to invite the applicant to a hearing and the applicant attended and gave oral evidence.

  5. The first respondent submitted also that there was no obligation on the Tribunal to have regard to the country information referred to by the applicant.

  6. Ground 5, the first respondent submits, does no more than seek to reargue the merits of the case.

  7. As to the applicant’s additional grounds, the first respondent’s solicitor addressed them in the outline of supplementary submissions filed on


    1st September 2006.

  8. As to the first ground, claiming that the Tribunal breached s.430 of the Migration Act, the first respondent submits that the reasons for decision and findings of material questions of fact are set out at Court Book 76 to 83 inclusive.

  9. The first respondent submits that there is no evidence of bias, and that the applicant had already been put on notice by the Tribunal’s letter of 19th December 2005 that it was unable to make a decision in his favour without further evidence. Natural justice does not require the Tribunal member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 501 at [72] and [186]).

  10. The first respondent referred the court to Re Refugee Review Tribunal; Ex parte “H” (2001) 179 ALR 425 at [27] and Livesey v New south Wales Bar Association (1983) 151 CLR 288 at 293-4, in support of the proposition that apprehended bias will exist where a fair-minded observer, properly informed, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided. The test is an objective one (R v Simpson; Ex parte Morrison (1984) 154 CLR 101 at [104]).

  11. The first respondent pointed out that the applicant has not provided any evidence to support his allegation of bias. The circumstances in which the court will find lack of good faith are rare, especially where all that is relied upon is the written reasons for decision (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749[1] at [44]; SCAA v Minister for immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]).

    [1] [2002] FCAFC 361

  12. The first respondent submitted that the Tribunal did not confuse the applicant’s claims.

  13. The first respondent also submits that the applicant’s third additional ground cannot be sustained. The Tribunal noted at Court Book 80 that it had had regard to the material referred to in the delegate’s decision which included the applicant’s statutory declaration.

  14. There is a difference between failure to deal with evidence and failing to address a claim or a mandatorily relevant integer (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 113 at [33]-[34]). The tribunal does not have to refer to every piece of evidence it finds relevant (Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57]).

  15. The applicant’s submissions in reply set out the applicant’s claims that the Tribunal breached s.430 by failing to give reasons or providing evidence for its conclusions. The applicant claims that the tribunal acted “unreasonably and extremely unfairly”.

  16. The applicant then criticises the first respondent’s solicitor for a reference in her submission to the Tribunal’s letter to the applicant of 19th December 2005inviting hi to attend the Tribunal hearing, saying that:

    It is definitely unfair that the respondent’s solicitor has, intentionally, disturbed the actual meaning and purpose of the Tribunal’s letter dated 19th December 2005.[2]

    [2] Applicant’s submission filed 14 September 2006, at [7].

  17. Whilst I will deal with that submission in detail in my conclusions, it is sufficient to say at this stage that I reject entirely the applicant’s allegation that the respondent’s solicitor in some way misrepresented the contents of the Tribunal’s letter in her submission.

  18. The applicant reiterates his claim of apprehended bias and submits that the Tribunal member should have provided him with the independent information (set out at Court Book 56-62) “used by him as the main reasons in his decision”[3] and given him a chance to comment on it.


    The applicant claims that this is “strong evidence” that the Tribunal failed to comply with the obligation under s.424A (1) of the Migration Act.

    [3] Applicant’s submission at [9]

Conclusions

  1. I will deal with the applicant’s claims in order.

  2. It is clear that the Tribunal was not satisfied that the applicant met the criterion for a protection visa because the Tribunal was not satisfied with the applicant’s evidence. The Tribunal did not find the applicant to be a credible witness. Credibility is a factual finding and is a matter for the administrative decision maker. It was open to the Tribunal to make that finding as the applicant had given evidence before the Tribunal.

  3. The Tribunal did not, in my view, ignore or fail to consider a claim that the applicant made, nor am I persuaded that the Tribunal ignored relevant materials or misunderstood the applicant’s claim.

  4. I note the applicant claims that the Tribunal made a mistake in relation to “an important finding of fact”. Fact finding is a function of the administrative decision maker, and all the applicant is seeking to do is challenge the Tribunal’s findings of fact. Merits review is not available when the court is conducting judicial review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

  5. There is no breach of s.424A (1) of the Migration Act. The Tribunal relied mainly on the applicant’s evidence, as the Tribunal’s findings and reasons make clear. Information that the applicant gave for the purpose of the application for review comes within the exception in s.424A (3)(b). The applicant’s passport is similarly covered by the exception, but it was the applicant’s evidence about how he was able to leave the country on his own passport that the Tribunal considered and concluded that the applicant was of no relevant interest to the authorities in China. That evidence is, of course, information given to the Tribunal for the purpose of the application for review and comes within the exception.

  6. The applicant complains of a breach of s.425, in that he says he was restricted by the Tribunal when he intended to give oral evidence.


    He also says that the Tribunal member refused to make him clearly understand his genuine concerns or actual issues that he would use as the main reasons in the decision, so that the applicant was unable to present his arguments against those concerns or issues.

  7. The applicant has not submitted any evidence, such as a transcript, to substantiate his claim that he was unable to give evidence or present arguments. It appears clear from the Tribunal decision at Court book 81 and 82 that the Tribunal did put to the applicant questions about the issues that were the cause of concern. In any event, the Tribunal Member is not required to put his thought processes to the applicant to give the applicant a chance to argue against the Tribunal’s findings. There is no breach of s.425 of the Migration Act.

  8. The applicant complains that the Tribunal decision ignored independent country information. If the applicant believed that the Tribunal should consider certain information, it is for the applicant to refer this information to the Tribunal. Whilst s.424 of the Act empowers the Tribunal to seek additional information, there is no obligation on the tribunal to make its own investigation of the applicant’s claims.

  9. The applicant’s fifth ground in his amended application, claiming that he does not agree that his application has been assessed fairly and carefully, is little more than an attempt to reargue the merits of the case.

  10. In claiming that the Tribunal did not deal with his case “fairly and carefully” the applicant seems to be suggesting that the Tribunal exhibited bias or lack of good faith. In his written submission at paragraph 9 the applicant says:

    Thirdly, this is submitted that with apprehended bias, I do not believe that the Presiding Member has, fairly and properly, considered my claims. As a matter of fact, if the Presiding member had, honestly and genuinely, intended to do so, he should have, at least, provided me with the independent information[4] used by him as the main reasons in his decision, and gave (sic) me a chance to comment (on) it. I have to say that it is also a strong evidence that the Presiding member failed to comply with his obligation under s. 424A(1) of the Act.

    [4] In a footnote, the applicant referred to material at pages 56 to 62 of the Court Book

  1. In so far as the applicant claims bias on the part of the Tribunal member, there does not appear to me to be any evidence of any bias.


    As the Full Court of the Federal Court has made clear in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43], an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved (see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358). The Tribunal’s decision does not demonstrate bias or bad faith.

  2. At the hearing, the applicant submitted that the Tribunal member exhibited a “strong bias” against him in questioning the applicant’s evidence (see [18] above). This is a claim of actual bias on the part of the Tribunal. In Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, Heerey and Kiefel JJ, in a joint judgment, considered the situation where bad faith may manifest itself in the form of actual bias. They defined actual bias as “a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented” (at [10]).

  3. Their Honours went on to point out at [11]:

    In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted (s. 425(2)(a)). Therefore, the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.

  4. The decision in SBAN, being a decision of the Full Court of the Federal Court, is binding on this court. I am not satisfied that the applicant has shown any evidence of actual bias on the part of the Tribunal.

  5. Turning to the applicant’s claim that the Tribunal should have provided  him with the details of the material at pages 56 to 62 of the Court Book, there are two points to be made:

    a)the information appears to be not specifically about the applicant but does appear to be about other persons whose names are given, so it would not strictly come under the exception in s.424A (3)(a); but

    b)does not appear to be information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.

  6. Consequently, the information does not fall within the scope of


    sub-s.424A(1) of the Migration Act.

  7. In his additional grounds, the applicant claims that the Tribunal failed to give reasons for its decision in breach of s.430 of the Act. This claim is based on the Tribunal’s finding about the applicant’s credibility, where the Tribunal described the applicant’s evidence as:

    Implausible, inconsistent and vague evidence[5]

    [5] Court Book 82

  8. The applicant claims that the Tribunal has failed to provide reasons for this finding.

  9. In Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1, McHugh J considered a claim that the Tribunal in that case had breached s. 430 by failing to set out reasons for its findings that a claim was “utterly implausible” and said:

    However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

  10. That situation clearly applies in this case.

  11. The applicant also claims that the Tribunal failed to analyse and address substantial and detailed evidence that he had provided in support of his case. He makes that claim twice in the one document, at 1(c) and at 3. The evidence referred to by the applicant is his statutory declaration which he provided with his application for a protection visa. As the solicitor for the first respondent pointed out in her submission, the Tribunal noted at Court book 80 that it had had regard to the material referred to in the delegate’s decision, which includes the applicant’s statutory declaration.

  12. I am satisfied that there is no evidence that the Tribunal did not consider the components of the applicant’s claims.

  13. The second ground of the applicant’s additional grounds claims that there was an apprehension of bias in the tribunal’s questioning of the applicant. I have already set out at [46] – [49] my reasons for being satisfied that there is no evidence of bias on the part of the Tribunal.

  14. Finally, in the applicant’s written outline of submissions, the applicant complains about the solicitor for the first respondent herself, saying at paragraph 7:

    Secondly, this is submitted that it is definitely unfair that the respondent’s solicitor has, intentionally, disturbed the actual meaning and purpose of the Tribunal’s letter dated


    19th December 2005. The letter is, obviously, subjected to s. 425 of the Act.

  15. I have already stated at [34] above that I reject entirely the applicant’s allegation that the solicitor concerned in some way unfairly and intentionally misrepresented the meaning of the Tribunal’s letter.


    She clearly did not.

  16. The Tribunal’s letter was the Tribunal’s standard letter under s.425 inviting the applicant to attend a hearing. The relevant part of the letter says:

    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.[6]

    [6] Court Book 52

  17. The first respondent’s submission, which the applicant attacks in his submission, says this:

    The applicant had already been put on notice by the RRT, by its letter dated 19th December 2005 (CB 52-53), that it was unable to make a decision in favour of the applicant without further evidence.

  18. It is quite clear to me that the statement by the first respondent’s solicitor does no more than set out the meaning of the relevant part of the Tribunal’s letter. There is no unfairness. There is no “disturbing” or distorting or misrepresenting the Tribunal’s letter, intentionally or unintentionally, by the solicitor concerned. All that she did was set out a perfectly clear conclusion from the letter.

  19. It may well be that the applicant, or whoever prepared the document for him, has misconstrued the meaning of s.425 of the Act. However, the applicant does not do himself any favours by making a baseless allegation of unfairness and misrepresentation against the solicitor who wrote the submission. Her submission on that point is correct.


    The applicant’s submission is wrong.

  20. The practice of making unfounded allegations of impropriety or bad faith against anyone who disagrees with a party’s submission will not find favour in this court.

  21. The applicant has not demonstrated any jurisdictional error on the part of the Tribunal. Mindful that he was not legally represented during the hearing, I have independently considered the Tribunal decision and other material in order to satisfy myself that no jurisdictional error appears, even if it had not been submitted by the applicant. I am unable to discern any jurisdictional error.

  22. The decision is a privative clause decision as defined by s.474 (2) of the Migration Act. Consequently, it is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)(c)).

  23. The application is dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  4 October 2006


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