SZJCA v Minister for Immigration
[2006] FMCA 1717
•15 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJCA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1717 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Peoples Republic of China – claiming fear of persecution on religious grounds – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal failed to comply with Migration Act 1958 s.425 – allegation of bias – allegation raised for the first time at the hearing – no evidence of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZJCA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2016 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 November 2006 |
| Date of last submission: | 14 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 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 to the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2016 of 2006
| SZJCA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of the decision of the Refugee Review Tribunal that was handed down on 20th June 2006.
The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant a protection visa.In the Applicant’s amended application filed on 1st September 2006, he seeks a declaration that the decision was invalid and contrary to law. He also seeks orders in the nature of certiorari and mandamus quashing the Tribunal decision and remitting his application to the Tribunal for determination according to law.
Background
The Applicant, a citizen of the Peoples Republic of China arrived in Australia on 13th August and applied for a protection visa on
12th September 2005. The application was refused on 18th November 2005 so the Applicant applied to the Refugee Review Tribunal for a review of that decision.The Applicant forwarded his application for review to the Tribunal on 22nd December 2005 along with a typed statement in which he said that he had arrived in Australia with a false passport. He advised that the details of his identity were quite different. The Tribunal wrote two letters to the Applicant on 23rd March 2006. The first asked him to provide further information about his claim that the information in his application for a protection visa was wrong. The second letter invited the Applicant to attend the hearing the Tribunal on 21st April 2006.
The Applicant completed the Response to Hearing Invitation advising that he wished to attend the hearing. He also provided a short statement about his general and work history along with two references from Father Paul McGee of the Columban Mission Institute and Reverend Father Bonaventure Tung of the Chinese Catholic Pastoral Centre.
The Applicant attended the hearing on 21st April and gave oral evidence. On 23rd May 2006, the day the decision was intended to be handed down the Applicant provided a further typed statement to the Tribunal. This document was accompanied by a number of photographs. The Tribunal Member decided that the handing down on that day should be cancelled. The Member recalled his decision record and prepared a decision that took into account the Applicant's post hearing submission.
The Tribunal handed down its decision on 20th June 2006. A copy of the decision record can be found at pages 201 to 227 of the Court Book. The Tribunal set out the Applicant's claims that he was born into a family where both of his parents were Catholic. He described acts of arrest and detention by the police including detaining his brother.
He claimed that he had been practising his Catholic religion in Sydney once he arrived in Australia.The Tribunal described the contents of the Applicant's oral evidence at some length. The Tribunal also referred to Independent Country Information about religious freedom or otherwise in China.
The Tribunal quotes passages from that information at pages 214 to 217 of the Court Book.
The Tribunal’s findings and reasons
In its findings and reasons set out at pages 217 to 227 of the Court Book the Tribunal accepted that the Applicant is a national of the Peoples Republic of China and noted his claim of a fear of persecution on religious grounds.
The Tribunal also accepted that the Applicant was a practising Roman Catholic but said that it did so taking into account its concerns about his credibility generally and "his general unreliability as a witness". See Court Book at page 219. The Tribunal found the Applicant to be a witness of low credibility and went on to say:
In the Tribunal's opinion, the Applicant's conduct contrasts markedly with that of a person who genuinely fears persecution and has an interest in seeking to assist the Tribunal to reach a state of satisfaction as to his claims.
After an extensive examination of the Applicant's various claims about religious freedom in China, constraints and religious practise, an implied claim to fear persecution by reason of political opinion and matters of prospective harm, the Tribunal summarised its findings in this way:
It accepts that the Applicant is a Roman Catholic, and a member of an unregistered church in Fujian It is not satisfied that he has suffered any past harm, let alone persecutory harm, for this or for any other reason. Taking into account all the material before it, it is not satisfied that he faces a real chance of persecution for reason of his membership of an unregistered Roman Catholic church in Fujian, or for any future conduct arising from his religious practice. It is also not satisfied that he would need to hide, modify or curtail his religious practice to avoid persecution. The Tribunal is not satisfied that he has a well founded fear of persecution for reason of his religion, political opinion or any other Convention ground. He is not a refugee.[1]
[1] Court Book, p.227
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol and affirmed the decision not to grant a protection visa.
The application for judicial review
The Applicant commenced proceedings on 21st July 2006. In his amended application which was filed on 1st September 2006 he sets out three grounds for relief:
a)The Presiding Member of the Tribunal failed to comply with its obligation under s.424A (1) of the Act.
b)The Presiding Member failed to comply with s.425 of the Act.
c)The Presiding Member has completely ignored the important issue.
The Applicant has not provided a written outline of submissions but I accept that the amended application contains material that would more properly belong in a submission than in an application. Nevertheless I will consider it all.
Turning to the first ground, which is a failure to comply with s.424A of the Migration Act, the Applicant first of all submitted that the Tribunal breached s.424A by not referring back to him the issues contained in the letter from the Rev. Bonaventure Tung. The Applicant complained that the Rev. Bonaventure Tung, or some other Catholics in Australia knew of his experience and sufferings in China. He submitted that if the Tribunal had indeed given him the issue and ensured him to understand it and invited him to comment on it he would have provided more evidence either from the Reverend Bonaventure Tung or from other Catholics in support of his claims. I will make it clear at this stage that the submission relating to the letter from Father Tung is misconceived.
The letter from Father Tung was provided to the Tribunal by the Applicant and it is therefore exempt from the requirements of s.424A(1) by the operation of s.424A(3)(b) of the Act. Similarly any adverse conclusions drawn from the letter are thought processes or subjective appraisals. As has been made clear in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 in the judgment of Allsop J at [206]:
The word information does not encompass the Tribunal's subjective appraisals, thought processes or determinations.
The Applicant submits that he has two rights under s.425 and s.424A(1). He says those rights are to present his argument against the issue arising from the Tribunal, s.425 and to make his comment on it in writing under s.424A(1). He says:
It is obviously that one of my common rights entitled under the Act has been deprived unfairly.
I will deal with that issue now. The submission in its coupling of the operation of s.425 and s.424A is entirely misconceived. Section 425 relates to:
The obligation of the Tribunal in certain circumstances to invite the Applicant to attend a hearing to give evidence and present arguments in respect of the Applicant's claim.
It does not entitle the Applicant to an attempt to second guess the Tribunal by finding out what the thrust of the Tribunal's thought process and determinations may be and then getting a chance to argue against them. Similarly the misconception relating to the operation of s.424A(1) seems to be that the Applicant considers that an applicant has the right to have any issue that does not support his claim put to him in writing for his comment. That is not what s.424A sub-s.(1) says. Section 424A(1) says:
Subject to sub-section (3) the Tribunal must:
(a) give to the Applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and
(b) ensure as far as is reasonably practicable, that the Applicant understands why it is relevant to the review and
(c) invite the Applicant to comment on it.
The meaning of the word "information" has been thoroughly considered by the Full Court of the Federal Court in appeals from this Court. "Information" means what it says. "Information" for the purpose of sub-s.424A(1) is the ordinary English meaning of the word "Information" with the exception of those pieces of information specifically excluded by sub-s.(3) of s.424A.
The Applicant goes on to submit that the Tribunal's credibility findings in using words such as evasive and vague to describe his oral evidence comes into issue in that it contravenes paragraphs 190, 198 and 199 of the United Nations High Commission for Refugee (UNHCR) Handbook. For a start none of that material has anything to do with s.424A of the Migration Act and second the Applicant's claim in respect of that is no more than an attempt to engage in merits review of the Tribunal decision.
The Applicant's first ground fails. There is no breach of s.424A of the Migration Act. The second ground alleges that the Tribunal failed to comply with s.425 of the Act. The ground quotes the Act in full and then goes on to say:
In my case, however, the Presiding Member failed to clearly inform me of the actual issues arising in relation to the review; and also, the Presiding Member made me think, sometimes, that my explanation or claims have already been accepted during the Tribunal's hearing. Therefore, my right, which has been entitled by s.425 of the Act, has been, in fact deprived, and I have been denied to present my arguments against those negative issues in relation to my review application.
The submission is entirely misconceived. Whilst the ground may quote s.425 of the Migration Act the submission refers to matters that have nothing whatsoever to do with it. There is, I might point out, no evidence to show that the Tribunal Member in any way mislead the Applicant into believing that his claims may have been accepted during Tribunal hearing.
In any event, s.425 of the Act does not require the Tribunal to give a running commentary on the Tribunal's thought processes during the course of the hearing in order to guide an applicant as to whether he or she has hit on an argument or a piece of information that might sway the Tribunal one way or another. There is no breach of s.425 of the Migration Act. The second ground fails.
The third ground claims that the Tribunal completely ignored an important issue. Again, reference is made to the UNHCR Handbook, this time paragraphs 196 and 203. The Applicant makes these submissions:
Again, although the Presiding Member may not be bound by the UNHCR Handbook, the Presiding Member should not ignore the evidence that:
· I had indeed made a genuine effort to substantiate my claims including evidences form the Reverend Bonaventure Tung.
· I am the person who has escaped from persecution and who has arrived with the barest necessities.
· There are no good reasons to the contrary.
This again is no more than an attempt at merits review, a challenge to the Tribunal's factual finding. In any event it is not incumbent upon the Tribunal to find good reasons not to grant an application. Section 65 of the Migration Act applies to applications for a visa and that section requires the decision maker to reach a positive state of satisfaction that the Applicant had met the criteria for a visa.
If the Applicant does not provide evidence that enables the Tribunal to be satisfied that the Applicant meets the criteria for a visa the administrative decision maker has no option but to refuse the visa. It is not required of the Tribunal to find evidence to the contrary any more than there is an obligation on the Tribunal to make its own enquiries in search of evidence to support the Applicant's application. That ground, to my mind, is not more than an attempt at merits review and it fails.
The Applicant at the hearing made an oral submission accusing the Tribunal of bias. He claimed that the Tribunal had shown bias even before he attended the hearing. He said that because of this bias the Tribunal did not consider his claims carefully and overlooked documents that he had provided. He claimed also that he had been cheated by his migration agent and claimed that the Tribunal's bias led to a rejection of his claim that he was a Catholic.
I pointed out to the Applicant that the Tribunal did not reject his claim that he was a Catholic, indeed at page 226 of the Court Book the Tribunal accepted that he was a Catholic even though the Tribunal had misgivings of the credibility of the Applicant's evidence.
The Applicant submitted that if he was a Catholic it must follow that the Tribunal found that he was subject to persecution in China. He said that Catholicism has never been accepted by the Chinese government.I note that the Tribunal considered Independent Country Information about religious freedom or otherwise and the simplistic assertion that if the applicant were a Catholic he must, by definition, be subject to persecution, is not one that the Tribunal accepted and in any event is no more than a challenge to the Tribunal's factual findings. I asked the Applicant why he considered the Tribunal was biased and his answer was that the Tribunal had not considered his application properly.
He said the Tribunal was biased because it did not consider seriously the evidence that he had been provided, including letters from two experienced priests and because it did not consider him to be a genuine Catholic. As I said, the Tribunal did accept that the Applicant was a Catholic and the Tribunal did consider the evidence from the Catholic priests and refers in fact to Father McGee's letter at page 225 of the Court Book. I note that the Tribunal says at 225:
Significantly, it is the Applicant's own conduct and attitude, discussed above, which casts doubt on the genuineness and well foundedness of his claimed fears.
I note that the claim of bias which the applicant submitted so forcefully at the hearing had not been mentioned either in his original application to this Court or in his amended application filed on 1st September 2006. I asked the Applicant when he had come to the view that the Tribunal was biased and after a lengthy pause he eventually told the Court that he had come to that view about two weeks before. I regard that explanation as unconvincing to say the least.
Ms McNamara for the Minister submitted that there was no reference to a migration agent in the Applicant's application for review and his claims that he had been cheated by his migration agent had similarly been aired for the first time in the hearing yesterday. There is no evidence of bias. There is no evidence that the Tribunal acted in bad faith.
The Full Court of the Federal Court has made it quite clear in a number of decisions, including SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 that an allegation of bad faith, or bias, is a serious matter involving personal fault on the part of the decision maker. It is an allegation not to be lightly made and must be clearly alleged and proved. As the Full Court said in SBBS at [45]:
The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme.
This especially so where all that the Applicant relies upon is the written reasons for the decision under review. As I said there is no evidence of bias, there was no claim of bias made in either the original application or the amended application. It was aired for the first time of the hearing yesterday and in my view it is a claim of recent invention. The allegation of bias has not been made out. I am mindful of the fact that the Applicant is not legally represented.
I read through the material myself in an attempt to discern whether any jurisdictional error may be indicated and I can find none. There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. It is a final and conclusive decision and it is not subject to orders of the nature of certiorari, mandamus, injunction, prohibition or a declaration. In my view this application should be dismissed with costs.
This is an appropriate matter for an order for costs. The amount sought, $4,000.00, in my view is an appropriate figure.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 22 November 2006
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