SZIVT v Minister for Immigration
[2006] FMCA 1448
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1448 |
| 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 China claiming fear of persecution for reason of religion – shouters underground church – whether the applicant was a member of the shouters underground church – credibility – whether the Tribunal failed to comply with Migration Act 1958 (Cth), s.424A – whether the Tribunal was biased – no evidence of bias – country information – applicant's apparent mental state – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| SAAP v Minister for Immigration & Multicultural& Indigenous Affairs [2005] HCA 24 referred to Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27 referred to Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 referred to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 referred to SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA668 referred to |
| Applicant: | SZIVT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1413 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 September 2006 |
| Date of Last Submission: | 26 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,400.00 and I allow nine (9) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1413 of 2006
| SZIVT |
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 Refugee Review Tribunal affirming the decision of a delegate of the Minister not to grant a protection visa to the applicant. The decision was signed on 28th March and handed down on 18th April 2006.
The applicant seeks the following:
a)A writ of prohibition.
b)A writ of certiorari.
c)A writ of mandamus.
d)Costs.
Background
The applicant is a citizen of The People’s Republic of China who arrived in Australia on 5th December 2005. He applied for a protection (class XA) visa on 14th December 2005 but it was refused on
12th January 2006. The applicant then sought a review of that decision by the Refugee Review Tribunal.
Application for review by the Refugee Review Tribunal
The applicant lodged his application for review at the Sydney registry of the Refugee Review Tribunal on 13th February 2006. He gave a residential address in a Sydney suburb and provided a mailing address in Sydney. He did not provide any other documents with his application.
The Tribunal wrote to the applicant on 21st February 2006, inviting him to attend a hearing on 21st March. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. He produced his Chinese passport at the hearing.
The applicant told the Tribunal that he practised the Christian religion and was a member of an underground church known as the Shouters. He said that he became a Shouter in about 2001 at a time when he was suffering from an illness. He said that the doctors could not cure him because he had “bad fate”. The Tribunal described his evidence in this way:
He stated that he had no will to do anything and at one stage felt like jumping off a tall building. He suddenly saw a cross over his wife’s head and it appeared in a window. I asked what doctors he consulted while suffering this illness. He did not consult any doctors. I mentioned to the Applicant that he had said the doctors could not cure him. He stated that he could only be cured by prayers. I asked how long he had been sick. He replied that it was almost one month. He was not absent from work. His symptoms were mood changes and he threw things around his home. The cross he saw in the window was coloured red.[1]
[1] See Court Book at 63
The Tribunal also recorded that the applicant said that he would prefer to die in Australia than go back to China at this time.[2]
[2] See Court Book at 65
The Tribunal consulted some information from external sources.
This information is set out on pages 66 to 69 of the Court Book.
The Tribunal referred to material from the United States Department of State that appears on the Internet, an email from one Jonathon Chao about the Shouters and other material from the Internet and the South China Morning Post.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 69 to 71 of the Court Book. The Tribunal was satisfied that the applicant is a national of the People’s Republic of China, having seen the applicant’s passport. The Tribunal was also satisfied that the Shouters sect is banned in China because it is considered a cult, and that persons known or suspected to be Shouters may be detained and subjected to physical mistreatment that may amount to persecution.
The Tribunal was not satisfied that the applicant was in fact a Shouter. The Tribunal did not find the applicant credible in relation to the material aspects of his claims, saying:
In dealing with this application the Tribunal has formed the view that the Applicant lacks credibility and his claims cannot be accepted. The Applicant’s evidence was implausible, contradictory, inconsistent and at times vague.[3]
[3] See Court Book at 70
The Tribunal set out five different reasons why the applicant was not considered to be a credible witness. The Tribunal was not satisfied that the applicant was a member of the Shouters underground church or that he would be involved in Shouters should he return to China.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason on his return to China and was not, therefore satisfied that the applicant met the criterion set in s 36(2) of the Migration Act for a protection visa.
Application for Judicial Review
The applicant filed an application and an affidavit in support in this court on 16th May 2006. He filed an amended application on 26th July 2006. In that application he set out three grounds for relief.
Ground 1 alleges that the Tribunal failed to carry out its statutory duty by failing to comply with s 424A of the Migration Act. The application refers to the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27. The ground claims, after quoting extensively from both cases, that the tribunal based its findings on the information, or lack of information, contained in the applicant’s application for a protection visa. The applicant claims that the Tribunal failed to give particulars of that information, explain why the information was relevant, and provide the applicant with an opportunity to comment upon it.
By failing to do so, the applicant claims that the Tribunal fell into jurisdictional error.
Ground 2 alleges that the Tribunal was biased against the applicant and could not consider his application according to s.91R of the Migration Act.
Ground 3 alleges that the Tribunal relied upon irrelevant material.
The applicant claims that the country information relied upon by the Tribunal was out of date and was based on hearsay.
The applicant did not file any written outline of submissions. When he appeared at the hearing he presented in a state of some apparent mental disorder. He appeared to be depressed. He claimed that he was actually a member of the Shouters and asked why he had not been granted a protection visa. He told the court:
What I say is useless. This is my fate.
The applicant was unable to tell the court what information the Tribunal relied upon that was the reason or part of the reason for affirming the decision of the delegate that had not been communicated to him in breach of s.424A. He explained the claim of bias by the fact that the Tribunal did not believe his evidence.
The applicant went on to tell the court a story about a woman who telephoned her architect saying that every time a train passed her house the house shook. When the architect expressed disbelief she invited him to see for himself. The architect went to the woman’s house and, at her request, lay on her bed. When the woman’s husband came home, he shouted “How dare you lie on my wife’s bed” but the architect replied that he was merely waiting for a train. The point of the story, the applicant explained, is that some things are false but they appear to be true.
The applicant spoke of his feelings at having left his wife and son in China. He said he would rather die than return to be persecuted in Beijing.
Immediately after that the applicant became very distressed and wept uncontrollably for some time. I adjourned the court and asked the lawyers for the first respondent Minister to contact the Department to see if the applicant would be able to access some support network to assist Chinese speaking people in the applicant’s position.
Counsel for the Minister, Mr Mitchell, and his instructing solicitor, Ms Blackman, made a number of telephone calls to ascertain what counselling and other assistance would be available to the applicant. I place on record my appreciation of their efforts in a difficult situation.
It took a considerable amount of time before the applicant had calmed down and the court could proceed. The applicant told the court that no matter how good his remarks might be, “it is useless”. He said that he lived by himself and could not sleep because he cried all the time.
He said he could not see a doctor because he did not have a Medicare card. He had no money to see a doctor. He said:
I am just waiting to die.
The applicant then told the court about a wise man who was holding a bird in his hand. He asked a clever trout whether the bird in his hand was alive or dead. The trout told the man that life or death was in his hand. If the trout said the bird was alive, the man could crush the bird and kill it. If the trout said that the bird was dead, the man could open his hand and the bird would fly away. The point of the anecdote was to show that the applicant’s life was in the hands of the court.
I formed a view that the applicant appeared to be seriously depressed and I have some fears for his safety and well-being. I suspect that without some medical or psychological intervention he may harm himself.
I took the view that it would not be in the applicant’s best interests to deliver an ex tempore judgment, although he asked the court to do so. Counsel for the first respondent told the court that he was instructed to ask the court not to deliver judgment that day because of the applicant’s obvious distress. Counsel had prepared a list containing the details of community organisations that would be willing to assist a Mandarin speaker with little or no command of English, and the interpreter translated that list.
I have asked that a suitable person be at hand when I make the orders in this matter. I consider it more appropriate to deliver a reserved judgment in written form rather than require the applicant to sit through an oral judgment.
Conclusions
There is no breach of s.424A of the Migration Act. The reason why the Tribunal affirmed the delegate’s decision was that the Tribunal was not satisfied that the applicant was a member of the Shouters underground church. The Tribunal did not find the applicant to be a credible witness. This finding was based on the applicant’s evidence to the Tribunal which is clearly excepted by s.424A (3) (b).
The applicant claims in his amended application that the Tribunal based its findings on the information in the applicant’s protection visa application. This is clearly wrong. The Tribunal did not base its findings on the protection visa application at all. The amended application is one that is seen quite frequently in this court, complete with the misdescription of the citation of SAAP (supra) and the misuse of the apostrophes in paragraphs 1 (d) and (e).
As to the independent country information referred to by the Tribunal, counsel for the Minister submitted that it was not specifically about the applicant and accordingly was excepted from the obligations in
sub-s.424A(1) by the operation of s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [138]).
Whilst I do not disagree with that proposition, it appears to me that the independent country information did not form part of the reasons for affirming the delegate’s decision – quite the reverse, in fact.
The independent country information supported the applicant’s claim that the Shouters are likely to be persecuted in China. The Tribunal was quite prepared to accept that persons known or suspected to be Shouters may be detained for lengthy periods and possibly subjected to physical mistreatment. The Tribunal was prepared to accept that such treatment might well amount to persecution.[4]
[4] See Court Book at 70
What the Tribunal did not accept was that the applicant was a Shouter, and this was based on his own evidence.
There is no breach of s.424A of the Migration Act. The applicant’s first ground has not been made out.
As to the applicant’s second ground, that the Tribunal was biased, the short answer is that there is no evidence of bias. The applicant did not provide any evidence of bias; all he did was to say that the Tribunal did not believe him. That of itself will not establish bias on the part of the Tribunal.
Bias, or bad faith, is a serious allegation, 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 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]).
Counsel for the Minister submitted, correctly in my view, that no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons for decision (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]; SBBS (supra) at [44]).
As there is no evidence at all of bias on the part of the Tribunal the applicant’s second ground must fail.
The applicant’s third ground claims that the Tribunal relied on irrelevant material and the country information relied upon by the Tribunal was out of date and hearsay. The country information relied upon by the Tribunal had to do with the Shouters underground church and was clearly relevant to the applicant’s claim. The Tribunal did not rely upon any other material that was not relevant.
In any event, it is difficult to see why the applicant is complaining about the Tribunal’s use of country information. The country information supported the applicant’s claim that the Shouters may be persecuted in China, and the Tribunal accepted that part of the applicant’s case. What the Tribunal did not accept was that the applicant himself was a follower of the Shouters underground church.
Clearly, the applicant’s third ground fails.
The applicant was not legally represented in these proceedings. He did apply to take part in the legal advice scheme operated by the Refugee Review Tribunal. The court file shows that he was referred to a barrister who reports that he was unable to contact the applicant on a number of occasions, without success. Eventually, the barrister concerned forwarded a written advice to the applicant by registered post.
As the applicant was not legally represented in the proceedings I have independently reviewed the Tribunal decision in order to ascertain whether any other jurisdictional error not referred to by the applicant might appear. I am unable to discern any jurisdictional error.
As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined in s.474(2) of the Migration Act. A privative clause decision is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s 474(1)).
The application will be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 29 September 2006
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