SZIVJ v Minister for Immigration
[2006] FMCA 1376
•31 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1376 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa– Applicant a citizen of the People's Republic of China claiming fear of persecution because of practice of Falun Gong – whether Tribunal breached Migration Act 1958 (Cth) s.424 – whether Tribunal breached Migration Act 1958 s.424A – whether Tribunal failed to comply with Migration Act 1958 s.425 – no statutory breach – allegation of bias – no evidence of bias at all – comments about practice of making accusations of bias without evidence – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.424, 424A, 425 |
| Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Randhawa v Minister for Immigration, Local Government & Ethic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZIVJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1360 OF 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 August 2006 |
| Date of last submission: | 31 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McNamara |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,700.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1360 of 2006
| SZIVJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refuge Review Tribunal. The decision was signed on 29th March and handed down on 11th April 2006.
The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant now seeks orders by way of a declaration that the decision was invalidly contrary to law; an order that the decision be quashed or set aside; an order that the matter be remitted to a differently constituted Tribunal to be determined in accordance with law; and, interestingly enough, an order for costs.
Background
The background is that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 28th August 2005 and on 12th October applied for a Protection (Class XA) visa. That visa was refused on 30th November 2005, so the Applicant, through his migration advisor, applied for a review of that decision. The Tribunal received the application on 22nd December 2005. There was no material filed with the application other than the decision.
The Tribunal wrote to the Applicant on 9th January 2006. The Tribunal told the Applicant that he 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.
The Tribunal invited the Applicant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The letter also said: “You can also ask the Tribunal to obtain oral evidence from another person or persons”. The letter invited the Applicant to attend a hearing on Thursday 16th February.
On 10th January the Applicant, with the aid of his migration advisor, sent a Response to Hearing Invitation indicating that he did wish to attend a hearing and would like an interpreter in the Mandarin dialect of Chinese. In answer to question 2(c) which says: “Do you want the Tribunal to take oral evidence from any witness?” A tick had been placed in the box marked "No". The document was signed by the Applicant and in the hearing before me he identified that signature as his.
The Applicant attended the hearing with his nephew as an observer. The Applicant claimed that he was a person who had helped some Falun Gong practitioners to set up a shop to raise money for Falun Gong. He claimed that he suffered from persecution as a result. In fact he claimed that the clothing shop was confiscated by the Public Security Bureau (PSB), and he believed that he would be targeted by the PSB if he returned to China.
He brought with him his passport; two photographs of the Black Rose clothing shop; and a summons and an English translation. The summons required the Applicant to attend the Lon Tian PSB office on 13th September 2005. He also brought a business licence and English translation.
The Applicant told the Tribunal that two former employees had asked him to help them open a clothing shop, which was to be funded by money from donations from overseas Falun Gong practitioners and overseas Chinese. The Applicant did so. But when he heard that a friend was arrested, one of the former employees became scared and left and went to Guanzhau, but about seven or eight days later he was arrested. The Applicant became scared when he found out about the arrests and he asked his brother, who lives in Australia, to invite him to come to Australia. He then used that letter to support an application for a visa to visit Australia.
The Tribunal invited the Applicant in a number of questions about his case.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 75 through to 79 of the Court Book. The Tribunal, acting on the evidence no doubt of the passport, accepted that the Applicant was a citizen of the People's Republic of China. The Tribunal accepted that the Applicant was born in Fujian province; that he was married; and that his wife and his daughter are still living in Fujian province. The Tribunal accepted that the Applicant started his clothing shop and accepted that two of his employees may have been Falun Gong practitioners.
The Tribunal did not accept that the Applicant's business closed because customers were scared off by police visits, nor did the Tribunal accept that the Applicant had been employed as a business manager for the Guangming Advertisement and Decoration Company, due to the Applicant's inability to describe his roles and his duties with that company.
The Tribunal accepted that the Applicant set up the Black Rose clothing shop from 2004, but did not accept the reasons that he gave. The Tribunal held at page 77 of the Court Book that the Applicant's evidence regarding the set up of the business was inconsistent and implausible.
The Tribunal found that the Applicant's evidence that two Falun Gong practitioners would ask him to set up a clothing shop in Lon Tian to invest donated Falun Gong funds and his reasons for entering such an arrangement were highly implausible. The Tribunal did not accept the Applicant's explanation and could not see any reason as to why such an arrangement would be entered into.
The Tribunal, at page 78, referred to country information which showed that Falun Gong has an organisational structure which provides financial support through a variety of means. The arrangement to invest in a clothing shop was not consistent with the country information regarding the source and use of funds by Falun Gong.
The Tribunal did not accept the Applicant's claim that he had been questioned by the police regarding his involvement in the scheme. The Tribunal noted, at 78:
The applicant's brother who is living in Australia did not come to the hearing to give evidence to support the applicant's claim because he was busy at work and was not able to provide evidence corroborative of the applicant's claims.
The Tribunal was critical of the photocopied summons, despite the Applicant's claim that the summons had been given to his brother in China, before the brother's return to Australia. The summons gave no particulars of the reasons for the summons, and the Applicant was asked to attend on a date in September 2005, despite authorities being aware in January 2006 that he had left the country. The Tribunal referred to country information that indicates that false documents are easily obtainable in China.
The Tribunal did not accept that the Applicant had been involved in any promotion of, or support of, Falun Gong which would bring him to the adverse attention of the authorities, and did not accept that he faced a real chance of persecution for any Convention related reason should he return to China.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Application for Judicial Review
The Applicant filed an amended application on 20th July 2006 in which he sets out three main grounds with a final paragraph, which appears to claim some additional grounds. I note that the solicitor for the Respondent Minister has identified six grounds in the written submissions filed on 24th August and has addressed each one of them.
In summary, the Applicant claims that the Tribunal has breached
ss.424, 425 and 424A of the Migration Act. Those are perhaps the main grounds. The Applicant also complains that the Tribunal should have sought professional opinions about the summons that he produced before rejecting it. He claimed that there had been a failure by the Tribunal to give substantial reasons for refuting his claim and made a claim of bad faith or bias. I will deal with these grounds.
As to the first ground, which is a claim of a breach of s.425 of the Migration Act, the Applicant claims:
During the Tribunal's hearing I thought that my claims might have been understood by the Presiding Member; and my evidences might have been accepted; and the Presiding Member might not have any further questions against my applications. I believe it, that because the Presiding Member, during the Tribunal's hearing, had neither informed me, openly and clearly those “negative issues” or her “negative views”, which had later on been used as the reasons or part of the reasons to affirm the decision under review; nor ensured me to understand those “negative issues” or her “negative views” would be in relation to the said review applications; nor invited me to comment on those “negative issues” or her “negative views”.
The Applicant claims that according to s.425 of the Act, the Tribunal was obliged to invite the Applicant to present his argument against those negative issues or negative views. The Applicant submits that it is obvious that the presiding member failed to comply with her obligations under s.425 of the Act:
At least, I have not been given a fair chance to present my argument against those “negative issues” or the “negative views”.
He enclosed a transcript of the Tribunal hearing, which I admitted over the objection of the solicitor for the Respondent Minister, in an event to provide evidence that the Tribunal failed to comply with its obligations under s.425 of the Migration Act.
It should be made quite clear that the claim relating to an alleged breach of s.425 of the Migration Act is totally misconceived. It is a very novel interpretation, but its novelty does not give it any validity. The fact is that the Tribunal had complied with its obligation under s.425 of the Act on 9th January 2006 when it invited the Applicant to attend a hearing. As the letter said:
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.
The Applicant persisted with the submission that s.425 of the Act requires a Tribunal, if not being inclined to grant the application at the hearing, to, at the conclusion of the hearing write to the Applicant and invite him to a second hearing. The submission could be described as ludicrous, especially if one considers the question which the Applicant is unable to answer that, "What would happen if a Tribunal at the second hearing was still not persuaded to grant the application? Would there be a third or a fourth or a fifth or a sixth?" The submission is misconceived and does not establish a ground for review.
The second ground is a complaint of a breach of s.424 of the Migration Act. It again relates to the Tribunal's negative issues or negative views. The Applicant claims that the Tribunal should have written to the Applicant and set out the information upon which was to form the reason or part of the reason for affirming the Tribunal's decision and give him the opportunity to reply to it in the knowledge of its relevance under s.424A of the Act.
This submission is entirely misconceived. As is quite clear from the Tribunal's findings and reasons, the principal reasons for the Tribunal's rejection of the Applicant's application were the independent country information and the fact that the Tribunal did not believe the Applicant's evidence. Country information is not information that is caught by sub-s.424A (1) of the Migration Act. It is specifically included in s.424A (3) (a). The Tribunal's thought processes do not constitute information and do not need to be put to the Applicant.
The summons which the Applicant produced, allegedly from his brother, was a document that the Applicant submitted as part of his application. It comes under the exception in s.424A (3) (b) of the Migration Act. In any event I have read through the transcript of the hearing which the Applicant tendered in support of his case, and it does not assist his claim in this regard at all.
It is quite clear from pages 26 and 27 of the transcript that the Tribunal expressed doubts about the Applicant's story in respect of the summons and set out those doubts including:
And it does not indicate what the PSB wants to talk to you about.
The Tribunal also raised with the Applicant the prevalence of false documents in China. I will read the relevant parts of the transcript on page 27.
MEMBER:Now the country information on China indicates that it is quite easy to get documents that are false.
INTERPRETER: Impossible, all true.
MEMBER: Was?
INTERPRETER: Impossible.
MEMBER:There is very high rate of corruption in China and a very high rate of production of false documents. Now that doesn't mean every document is false. But given the other difficulties I have with your story that must be something that I have to take into account in determining your application.
The Member then went on to ask the Applicant:
Ok. Is there anything you wish to say more about that?
The Applicant did not reply. The Member then asked:
Is there anything else that you think anything has not been covered in today's hearing?
The Applicant answered:
I think generally all covered.
The summons upon which the Tribunal cast doubt was a document produced by the Applicant. The Tribunal made it quite clear at the hearing, from the Applicant's own transcript, that she had serious doubts about it; put those doubts to the Applicant; and gave him the opportunity to reply. The ground must fail.
The third ground is that the Tribunal erred because it did not take evidence from the Applicant's brother. The Applicant says that if the Tribunal wanted evidence from his brother the Tribunal should have informed him clearly and he would be very much willing to arrange for his brother to appear before the Tribunal giving his oral evidence "in support of my claims".
It will be remembered that the Applicant, in the presence of his migration agent, signed a Response to Hearing Invitation indicating that he did not wish any other person to be called to give evidence. The Applicant's brother resides in Australia. The brother did not attend the hearing because, as the Applicant said, he was working that day.
The Applicant told the Court that he worked as a plasterer. The Applicant's brother did not attend a three-hour hearing of the Tribunal where the Applicant was making an application for a visa to allow him to live in Australia because he said he was a refugee.
It is quite clear from the transcript of the Tribunal hearing that the Applicant produced, at pages 8 and 9 and 26 that, on the Applicant's account, the brother would have been able to corroborate his story.
He told the Tribunal that he was scared and asked his brother to write him an invitation letter so he could use that letter to get a visa to visit Australia. He reiterated on page 9 that he was scared and asked his brother to help him. He told the Tribunal that his brother went to China in January 2006 - his brother holds an Australian passport - and was interrogated by the police three times, about him. He told the Tribunal at page 9:
They asked my brother why I did not return to China, and asked about my current situation, and warned me through my brother, not to do anything bad to China and not to practise Falun Gong.
The Applicant told the Tribunal that the brother brought back the summons. The Applicant reiterated that evidence at page 26 and the Member asked him:
Your brother did not come along today to give evidence?
And the Applicant replied:
No, he is working.
The Tribunal Member asked him:
I would have thought this is more important than a day's work.
The Applicant said:
Because I don't live with him, he is very busy today in his company and he told his son to come here with me.
Later on, on that same page, the Member told the Applicant:
Now I do have some difficulties with your story as you have been telling me.
I would comment that it is hardly surprising.
It defies belief that an applicant who has enlisted the services of a professional migration agent to obtain a visa, being a protection visa because he claims to be a refugee, whose own brother is able to give evidence on his behalf about his claim of persecution, would not think to ask the Tribunal to take evidence from that person. It defies belief that the brother, who, on the Applicant's account, had written a letter so that the Applicant could enter Australia, would not have attended the Tribunal hearing. It is astonishing that this issue was apparently not raised with the migration agent, and equally astonishing that the Applicant should complain that the Tribunal did not tell him that it would be a good idea if his brother gave evidence.
The Applicant's other claims are that the decision of the Presiding Member was obviously incorrect and unfair. He indicated that it was common sense that Falun Gong did not have an organisational structure. This is no more than a challenge to the Tribunal's factual findings. Merits review is not available on judicial review. Provided there is evidence upon which the Tribunal could be satisfied in order to make a factual finding, there is no jurisdictional error. The finding about the Falun Gong's financial structure arises from the independent country information on that very subject. There is no jurisdictional error there.
The Applicant claimed that:
A Presiding Member should seek professional opinion to verify the summons provided by me as one of the most important documentary evidences in support of my claims.
The Applicant, in his oral testimony, told the Court that the Tribunal should have obtained expert evidence.
There is no positive duty to investigate claims on the part of the Tribunal. I refer to Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]. Section 424 of the Act provides that:
In conducting the review the Tribunal may get any information that it considers relevant but there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information but it does not have a duty to investigate the applicant's claims.
I am also of the view that the Tribunal does not have an obligation under s.424A of the Act to put an application on notice that its view of the Applicant's evidence is insufficient. That ground must fail.
The Applicant claims that the Tribunal did not give any substantial reasons to refuse his claims. It is well established that the Tribunal is not in the role of a contradictor. A decision-maker is not obliged to accept uncritically any claims made by the Applicant. I refer to the decision of Randhawa v Minister for Immigration, Local Government & Ethic Affairs (1994) 52 FCR 437 at [278]. At decision-maker does not need to have rebutting evidence before it can find that an assertion is not made out. (See Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [348]).
The final claim is a claim of bad faith or bias. The Applicant said:
Furthermore I strongly believe that I have been misled -
I note there is a misprint in paragraph 22 of the Respondent's submission. He claims to have been:
misled or even cheated by the Presiding Member.
This is an allegation of bias or bad faith. It is well established that an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. The allegation is not to be lightly made and must be clearly alleged and proved. I refer to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]. There is no evidence whatsoever of any bias or bad faith on the part of the Tribunal.
The Applicant tendered a transcript of the RRT hearing, which I admitted into evidence over the objection of the Respondent. As I told the Applicant I would do, I read the transcript thoroughly. There is nothing in the transcript that indicates any bias or any bad faith on the part of the Tribunal.
It is quite clear from the transcript that the Tribunal Member asked the Applicant a number of questions about his claims and where the Applicant's claims raised some doubt in the Tribunal Member's mind, she raised those doubts with the Applicant and gave him the opportunity to comment.
I refer, for instance, to one passage on page 8 where the Applicant said:
INTERPRETER: Yes I was scared, I asked my brother to write me the invitation letter. I used that invitation letter to apply the visa to visit Australia.
This is in respect of a claim that a person called Wang Yong Ping had been arrested seven or eight days after the Applicant arrived in Australia.
MEMBER: But you were in Australia after he was arrested so your evidence doesn't make sense.
INTERPRETER: Yes, in Australia.
MEMBER: Just so you understand, because it is important what you just said to me is not consistent. It doesn't make sense.
INTERPRETER: They are all true.
MEMBER: I am trying to explain to you what the inconsistency is.
The transcript produced by the Applicant indicates that there is no evidence of any unfairness or bad faith on the part of the Tribunal Member.
I would comment that it is deplorable that this Applicant, like many other applicants, has chosen to make personal criticisms, in this case an allegation that he had been misled or even cheated by the Tribunal Member, without any basis whatsoever. Making unfounded personal allegations without the slightest shred of evidence is not a practice that will find favour in this Court.
The simple answer to this is that the Applicant has not shown any jurisdictional error at all. I have read through the material carefully.
I am mindful of the fact that the Applicant is not legally represented in these proceedings. I am not aware of the identity of the person who prepared his claims, but they bear no relation to the law and little relation to the facts of his case. There is no reviewable error.
The Applicant's case is entirely without merit. The application will be dismissed.
There is an application for costs on behalf of the First Respondent. The Applicant has been wholly unsuccessful in his claim. He says he is not working and he asks rhetorically where can he get money?
The fact that an unsuccessful party is not in possession of funds to meet a costs order is not, in this jurisdiction, a reason for not making an order for costs. I believe that the First Respondent is entitled to an order for costs as the Applicant's claim was wholly without merit and has been entirely unsuccessful.
At the same time, if a person is presently unemployed, I accept the fact that he in this case does not have funds to meet such an order for costs immediately. I will allow time to pay.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 15 September 2006
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