SZIXC v Minister for Immigration

[2008] FMCA 37

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 37

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIXC”.

Migration Act 1958 (Cth), ss.91X, 424A

FCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668
Lovesey v NSW Bar Association (1983) 151 CLR 288
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Refugee Review Tribunal, re; ex parte H (2001) 75 ALJR 982
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286

Applicant: SZIXC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 614 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 14 December 2007

Delivered at: Sydney

Delivered on: 22 January 2008

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin Interpreter

Solicitors for the Respondents: Ms Kantaria of Clayton Utz

ORDERS

1. The application filed on 22 February 2007 is dismissed.

2. 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 614 of 2007

SZIXC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant is a citizen of the People’s Republic of China and was born in 1971 in Fujian province.  He states that he attended six years of primary school education at Wu Rui Primary School between 1978 and 1984.  The applicant claims that was a manager in a winery from 2003 to 2005. He was married in 2003 and indicates that his wife and two daughters both live in China.

2. The applicant claims that he attended underground religious activities organised by The Shouters from 2000.  He was detained for 24 hours in 2003 when police raided a religious service at his friend, Ming Feng’s, home.  The applicant was released when no evidence was found that the gathering was a religious service.  However, the applicant alleges that before he arrived in Australia, Ming Feng was arrested and imprisoned and the names of Shouter members were disclosed and their activities came under threat. The applicant seeks protection because he fears that if he returns to China he will be imprisoned.

3. The applicant arrived in Australia on 10 September 2005 and applied for a Protection (Class XA) visa on 17 October 2005. A delegate of the first respondent refused to grant the visa on 16 December 2005 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant applied for review in the Federal Magistrates Court. The Federal Magistrates Court remitted the case to the Tribunal for reconsideration. On 5 January 2007, the second Tribunal affirmed the decision not to grant the applicant a protection visa, which is the decision the subject of these proceedings (reference number 060906196).

4. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.

5. The amended application filed in this Court on 13 June 2007 contains two grounds of review:

   1. The Tribunal had bias against me and made a decision on my application based on the officer’s assumption;

   2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.

Consideration

1. At the first Court date, the applicant indicated that he wished to participate in the Court-sponsored independent legal advice scheme.  He was allocated a panel adviser and granted leave to file an amended application giving complete particulars of each ground of review relied upon by 13 July 2007. This order was complied with to a certain extent, in that the amended application redrafted the original grounds but contained no particulars.  No new evidence in affidavit form was filed.

2. The applicant confirmed that he failed to file written submissions and, when invited to make oral submissions, he repeated one of the submissions made at the Tribunal of 8 December 2006.

3. The reason for the Tribunal affirming the delegate’s decision is clearly set out in its findings and reasons:

   A central claim of the applicant is that he was a member of the Shouters church in China, into which he was baptized.  However, his responses at the hearing on 8 December 2006 when asked about Christianity in general and the Shouters church in particular were so vague, evasive and confused that they do not provide any grounds for believing him to have been a member of the Shouters church or any other Christian denomination.  Nor do they provide a basis for believing that he has ever had any significant involvement with the Shouters church or any other denomination.  I am not satisfied that a member of the Shouters church would be in complete ignorance of the name, details and written works of the founder of the church Ni Duosheng (Watchman Nee) as the applicant clearly was.  His responses indicated that he was no even aware that such a person had ever existed.  I am not satisfied that, if he was a member of this church, he would be unable to describe its religious services beyond the vague generalisations which he offered.  His responses in this area gave no indication that they were informed by any authentic first-hand experience of religious worship.  I am not satisfied that a member of this church would be completely unfamiliar with the Bible, as the applicant confessed to be.  Nor, on the basis of the applicant’s responses to more general questions about Christianity, am I satisfied that he is a practising member of any other Christian denomination. (CB 111)

4. In the very brief oral submissions made by the applicant before this Court, he referred to the Tribunal finding in respect of his lack of education. The Tribunal addressed this issue in its “Findings and Reasons” and I believe it clearly articulated the argument and subsequent findings when it stated:

   At the hearing the applicant appeared to argue that his lack of knowledge of the Shouters church was due to his lack of education.  I have considered this claim but I am not satisfied that it satisfactorily explains the level of his understanding of basic aspects of the Shouters church and Christianity in general.  Nor am I satisfied that his responses at the hearing indicated him to be in any way of below-average intelligence or that he is, in fact, significantly uneducated. (CB 112)

Ground one

The Tribunal had bias against me and made a decision on my application based on the officer’s assumption.

1. The applicant has not provided any particulars in support of the allegation of bias, nor has he filed any evidence despite the orders made by this Court on 20 March 2007. A party alleging actual bias on a decision maker’s part carries a heavy onus which must be clearly proved. While the existence of actual bias may be inferred from facts and circumstances, caution should be exercised in the absence of evidence of partisanship or hostility before inferring actual bias from factual errors or faulty reasoning. Ms Kantaria, for the first respondent, refers in her written submissions to SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [27] where Middleton J cites Minister for Immigration & Multicultural Affairs v JiaLegeng (2001) 205 CLR 507.

2. A case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudice can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; FCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].

3. As the allegation of bias does not specify actual bias or apprehended bias, I have also addressed the issue of apprehended bias as a matter of caution.  Apprehended bias will exist where a fair minded lay observer, who is properly informed of the nature of the proceedings, the matter in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, re; ex parte H (2001) 75 ALJR 982 at [27]; Lovesey v NSW Bar Association (1983) 151 CLR 288 at [293]-[294]. In the absence of any particulars, submissions, the hearing transcript or tapes, it is difficult to determine what aspect of the Tribunal member’s behaviour or decision the applicant is challenging.

4. However, the Tribunal indicated in its decision that the applicant’s credit was a significant issue. It found implausible his claim that in the Shouter’s church he kept watch while services were held and that he transported bibles. It also found implausible that the applicant’s church attendance was limited to the extent claimed. Where credit is in issue, a Tribunal member will necessarily have to test the evidence presented, and often vigorously: Ex parte H at [30]. Procedural fairness will often require that the applicant is plainly confronted with matters that bear adversely on his credit or which brings his account into question. Further, the decision maker’s assessment of the applicant’s credit will often depend on the manner in which they give evidence: Ex parte H at [34]. In the circumstances, I am satisfied that a claim of bias, whether actual or apprehended, cannot be sustained. This ground should be rejected.

Ground two

The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.

1. This ground is not particularised nor has the applicant provided any evidence in support of the claim. I agree with Ms Kantaria’s written submissions that the information relied upon by the Tribunal to form its reasons was country information and information the applicant provided by for the purposes of the review.

2. A review of the Court Book indicates that the amount of information submitted by the applicant is limited. Attached to the original visa application is a typed half page statement setting out the applicant’s claims. On 16 December 2005, the Minister’s delegate refused to grant the applicant a protection visa. On 16 January 2006, the applicant lodged an application for review of the delegate’s decision with the Tribunal. On 25 January 2006, the applicant was invited to attend a hearing scheduled on 28 February 2006. On 31 January 2006, the applicant responded to the hearing invitation and indicated that he would attend a hearing. On 28 February 2006, the applicant attended the hearing and gave evidence with the aid of a Mandarin interpreter. The Tribunal hearing record indicates that the applicant failed to bring his passport as requested. This was subsequently presented to the Tribunal on 2 March 2006. On 2 May 2006, the Tribunal made its decision and affirmed the delegate’s decision not to grant the applicant a protection visa.

3. On 10 October 2006 and by consent, Scarlett FM ordered that the Tribunal decision made on 2 May 2006 be quashed and that the matter be remitted for reconsideration. This was on the basis that the Tribunal had failed to consider the applicant’s claim to be a member of the “Shouters”. On 10 November 2006, the Tribunal invited the applicant to attend a hearing scheduled for 8 December 2006. On 20 November 2006, the applicant responded to the hearing invitation and indicated that he would attend. On 8 December 2006, the applicant attended the hearing and gave evidence with the aid of a Mandarin interpreter. During the hearing, the applicant provided his passport, two photographs and a copy of a DVD (CB 96).

4. The Tribunal makes the following comment about that material in its “Findings and Reasons”:

   …I have considered the photographs and DVD submitted by the applicant which purport to show members of his family involved in Shouters religious activities.  However, there is nothing in this material to indicate that the persons depicted are in fact related to the applicant or that the Christian funeral depicted in the DVD is conducted under the rites of the Shouters church. Moreover, even if they were his family or close relatives and were members of the Shouters church – and I am not satisfied that this is demonstrated – it would not also demonstrate that he too was a member of this church.  When these considerations are added to other concerns about the credibility of the applicant’s claims I am not satisfied that any evidentiary weight can be placed on this material. (CB 111-112)

   As this material was supplied by the applicant for the purposes of his application, it falls within the exception in s.424A(3)(b) of the Migration Act 1958 (Cth). Under the sub-heading “Independent Country Information”, the Tribunal set out the articles it considered which detailed the “Shouters” religion. This material is not specifically about the applicant but about a class of persons of which the applicant claims to be a member. The material falls within the exception in s.424A(3)(a). I agree with Ms Kantaria that ground two cannot be sustained and should be rejected.

Conclusion

1. The applicant took the opportunity to participate in the Court sponsored panel advice scheme and filed an amended application.  However, from the amended application and the absence of any evidence or submissions in support of the applicant’s claim, it is clear that he has little or no understanding of the issues before this Court.  He relied entirely on the amended application prepared by an unidentified third party but did not understand its contents or relevance to his claim.  Ms Kantaria assisted the Court with written submissions in response to the amended application. 

2. I am satisfied that all the issues raised in the amended application have been satisfactorily addressed by the first respondent’s submissions. However, as the applicant was a litigant-in-person, this places an obligation on the Court to independently consider whether any argument based on the Court Book, and in particular the Tribunal decision, can support a claim of jurisdictional error. After reviewing this material, I am satisfied that it is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision making process. This application should be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  22 January 2008