SZJFI v Minister for Immigration
[2006] FMCA 1860
•13 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1860 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claiming fear of persecution as a Falun Gong practitioner – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – bias – no evidence of bias – whether Tribunal relied on irrelevant country information – whether country information was out of date – no reviewable error. PRACTICE & PROCEDURE – Comments on undesirability of the practice of seeking orders that application be remitted to a Tribunal “differently constituted” – constitution of Refugee Review Tribunal for a particular hearing a matter for the Principal Member. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 425, 474 |
| SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 24 cited. Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 cited. SBBS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 361 followed. Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 followed. SZJGE v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1845 referred to. |
| Applicant: | SZJFI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2260 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 December 2006 |
| Date of last submission: | 13 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Quinn |
| 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 $4,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2260 of 2006
| SZJFI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant in this case is asking the Court to review a decision of the Refugee Review Tribunal that was signed on 28th June 2006 and handed down on 18th July 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
Background
This is the second Refugee Review Tribunal decision concerning this Applicant. He arrived in Australia on 5th January 2005 and he applied for a protection visa on 19th January 2005. His application was refused so he sought a review of that decision by the Refugee Review Tribunal. On 13th May 2005 the Refugee Review Tribunal affirmed the delegate's decision not to grant him a protection visa.
The Applicant then sought judicial review of the decision by the Refugee Review Tribunal by means of an application filed in this Court. On that occasion the First Respondent Minister consented to an order that a writ of certiorari be issued to quash the delegate's decision and that a writ of mandamus should be issued directing the Tribunal to reconsider and determine the matter according to law.
I note that due to a typographical error the second order made by consent was an order to quash the decision of the delegate of the Second Respondent, which is the RRT. That is of course incorrect. The order should have quashed the decision of the Second Respondent, the Tribunal, which does not, to my knowledge delegate its authority. In any event, the Tribunal's decision was quashed and the matter was remitted to the Tribunal for determination according to law.
The Tribunal invited the Applicant to attend a hearing and the Applicant appeared before the Tribunal on 26th June 2006 where he gave evidence with the assistance of an interpreter. He had, a week before, on 19th June 2006, forwarded two documents to the Tribunal which were certified copies of original documents. Both were in Chinese and accompanied by a translation by an accredited translator. One was a document dated 16th June 2003 relating to the Applicant's release from Tianjin No. 2 Detention Centre. The other was a Notice on Demolition of Authorised Construction of a building Hongyu Motor Vehicle Spare Parts issued on 8th August 2004.
The Tribunal heard the Applicant's oral evidence and heard evidence about his family and employment history. The Applicant told the Tribunal that he feared that the authorities were collecting evidence against him in China and that if he were to return he would be arrested and would suffer in some way. He had said that he had been involved in the practice of Falun Gong and it was as a result of coming under adverse notice from the authorities that he decided to leave China early in 2005.
The Tribunal asked the Applicant about one of the documents which he had submitted; the release documents. The Tribunal discussed that document at page 119 of the Court Book and expressed some scepticism about it, especially as it had been certified as a copy of an original document by a justice of the peace and yet the Applicant had said that at the time the original document was still in China.
The Tribunal’s findings and reasons
The Tribunal's decision record is set out on pages 112 through to 125 of the Court Book. The Tribunal's findings and reasons are set out on pages 121 to 125. In the findings and reasons the Tribunal refers to a considerable amount of independent evidence from various sources about the situation in China and in Tianjin in particular for Falun Gong adherents in 2001 which was when the Applicant claimed to have taken up his practice.
The Tribunal considered the Applicant's evidence and compared it with that of the independent evidence. The Tribunal found that the Applicant's account differed considerably from the independent evidence relating to other Falun Gong practitioners.
The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner in China or that he was penalised in any way on the suspicion that he was one. The Tribunal did accept that the Applicant had lost his job as a labourer and had subsequently established a small business. The Tribunal did accept that the business premises were demolished and rebuilt and leased out to a new tenant despite the fact that the Applicant had a three year lease on it and that he received no compensation.
The Tribunal accepted that that caused the Applicant some financial hardship but commented that that particular set of circumstances appears to be only too common in China because safeguards against corruption are vague and poorly enforced and the law is applied in an arbitrary manner and that restructuring of state owned enterprises has lead to high unemployment and the percentage of women laid off is significantly higher than their representation in the labour force. The reference to women being laid off refers to the Tribunal's acceptance of the fact that the Applicant's wife had lost her job.
The Tribunal referred to the Applicant's claims to have participated in Falun Gong exercise sessions at Darling Harbour in Sydney and to have attended some protests outside the Chinese Consulate in Sydney. The Tribunal noted that the Applicant had submitted several photographs of himself present at Falun Gong related activities. However, the Tribunal did not accept that the Applicant had been truthful with regard to his Falun Gong related activities in China and formed the view that the Applicant had been present at Falun Gong related functions in Australia in order to enhance his claims to be a refugee.
The Tribunal referred to sub-section 91R(3) of the Migration Act which provides that:
any conduct engaged in by an applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reason unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.[1]
The Tribunal was not satisfied on that point and disregarded the Applicant's claimed actions in Australia.
[1] Paraphrase
The Tribunal considered that it was a remote chance that the Applicant would face Convention related harm in China. Accordingly, 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 therefore did not satisfy the criterion set out in sub-section 36(2) of the Migration Act for a protection visa.
The application for judicial review
The Applicant seeks judicial review of the Tribunal's decision by means of an application and an affidavit in support filed at this Court on 15th August 2006. The Applicant filed an amended application on 9th November 2006. In that application he sets out three grounds for review:
a)That the Tribunal failed to carry out its statutory duty by failing to comply with the provisions of sub-section 424A(1) of the Migration Act.
b)That the Tribunal had bias against him and, based on an assumption, refused his application without evidence.
c)That the Tribunal relied on irrelevant materials and the independent information relied upon by the Tribunal was out of date.
In written submissions the solicitors for the Respondent Minister refer to those grounds and assert that they do not establish any jurisdictional error by the Tribunal. They say that the Tribunal made findings of adverse credibility about the Applicant's claims based on his evidence at the hearing and on the country information. As such, they say that the Tribunal's adverse credibility findings were reasonably open on the evidence before it and therefore properly the function of the decision maker and are not susceptible to judicial review by this Court.
Ground 1 – Section 424A
The Applicant's first claim relates to an assertion of a breach of s.424A(1) of the Migration Act. It is a standard form application which appears regularly in applications before this Court. It is in fact familiar to many Federal Magistrates as it contains identical grammatical errors and a common mis‑citation of the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 24.
Apart from making an error in the Minister's title, the mis‑citation refers to the decision in SAAP as having been handed down on 18th May 2001. There are usual quotes from paragraph [68] and [77] of the judgment of McHugh J and from paragraph [180] of the decision of Hayne J. There is also the reference to the decision in Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27.
Whilst the description of the requirements of s.424A(1) of the Migration Act is relatively accurate, those requirements are not necessarily relevant to the application before me. The application claims that the only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the Applicant. The application asserts that the tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision. All that is well and good but the application only quotes part of s.424A.
It is clear from a reading of the Tribunal decision that the only information relied on by the Tribunal in order to affirm the decision under review came from two sources:
a)the Applicant's oral evidence to the Tribunal; and
b)The general country information relating to China and the position of adherence to Falun Gong.
Quite clearly, the Applicant's oral evidence to the Tribunal at the hearing falls within the exception in sub-section 424A(3)(b) of the Migration Act because it is quite clearly information that the Applicant gave for the purpose of the application. The information from general country information, to which I have referred, falls within the exception in sub-section 424A(3)(a) of the Act because it was information not specifically about the Applicant or another person; it was just about a class of person of which the Applicant was a member or a claimed member.
On my reading of the Tribunal decision record there is no information upon which the Tribunal relied to affirm the delegate's decision that does not come under one or other of those two categories. Accordingly; I am satisfied that no breach of s.424A(1) has been made out and ground one fails.
Ground 2 - Bias
Ground two alleges that the Tribunal was biased against the Applicant and based on an assumption refused the application without evidence. I asked the Applicant to make an oral submission as he had not filed any written submissions, and on this point he said that the Tribunal did not believe him because the Tribunal was biased. When pressed on why he said the Tribunal was biased the Applicant said that it was because the Tribunal did not believe him.
This is a circular argument and an entirely unconvincing one. It is well established that allegations of bias or bad faith are serious matters involving personal fault on the part of the decision maker. Such allegations are not to be lightly made and must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker have not acted in good faith are rare and extreme. This is especially so where the Applicant relies upon is the written reasons for the decision under review (see SBBS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] and [44]). There is no evidence of bias. There is no evidence of bad faith.
The other part of the ground, however, is that the Applicant claims that the Tribunal refused his application without evidence. It is trite law that the Tribunal does not need evidence to disprove an applicant's claims. It is for the Applicant to establish that the application meets the criteria for the grant of a visa. Section 65 of the Migration Act provides:
That after considering a valid application for a visa, the Minister if satisfied that certain criteria have been satisfied, is to grant the visa. But if not so satisfied is to refuse to grant the visa.
It is not required by s.65 of the Act that the Tribunal must be satisfied in the negative; i.e. that the Tribunal must be satisfied that the criteria have not been met. The Tribunal must be satisfied that the criteria for the visa have been met in order to grant the visa. And if the Tribunal is not satisfied, the Tribunal must not grant the visa. There is no need for evidence disproving the Applicant's claim.
Ground two therefore is misconceived and therefore fails.
Ground 3 – Reliance on the Country Information
The third ground complains that the Tribunal relied on irrelevant materials and that the independent information relied upon by the Tribunal was out of date. I have read through the material referred to in the Tribunal's decision. It is specified in the decision at pages 121 through to 124 of the Tribunal decision in the Court Book. It is difficult to see how it could be described as irrelevant. It relates to the initial government crack down against Falun Gong. It relates to the government's massive propaganda campaign to denounce the practice of Falun Gong and the motivation of its leaders. It relates specifically to the situation in Tianjin which is where the Applicant claimed to have taken up the practice of Falun Gong in year 2001.
The information refers to the Falun Dafa website and quotes from the Department of Foreign Affairs and Trade and the United States State Department. To my mind; material referred to by the Tribunal is very much on point and relates specifically to the situation of Falun Gong practitioners in the People's Republic of China and the difficulties which they have experienced at the hands of the government. I see nothing that is irrelevant.
The second part of the ground complains that the independent information relied upon by the Tribunal is out of date. He provides no particulars of that and indeed I note that the material referred to comes from the years 2001, 2002, 2003, 2004 and 2005, the year in which the Applicant left China and indeed, a report from the United States State Department in 2006 which is this year. I cannot see how that information, some of it dated as recently as 26th June 2006, can be described as out of date. The ground and the claims within that ground bear no relation to the Tribunal decision whatsoever. That ground must clearly fail.
Conclusion
I am mindful of the fact that the Applicant was not legally represented in these proceedings. I have considered the Applicant's material with that in mind. I note that on the First Court Date he received documentation headed: "Notice to Unrepresented Applicants in RRT Review Cases" in which he was made aware of the RRT Legal Advice Scheme and he ticked the box marked:
I do not wish to participate in the scheme.
That of course is the Applicant's right. He has no obligation to seek legal advice if he does not wish to do so. But I have read through the material and I am unable to discern any jurisdictional error or any arguable case for a jurisdictional error that has not been referred to by the Applicant or by the solicitors for the First Respondent. I am satisfied that no jurisdictional error can be demonstrated. As there is no jurisdictional error, the Tribunal decision is a privative clause decision and in the First Respondent's submissions I am referred to the decision in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 where the High Court of Australia upheld the validity of s.474 of the Migration Act.
The submission states, correctly in my view, that the High Court concluded that s.474 validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error. As there is no jurisdictional error, this is a privative clause decision as defined in sub-section 474(2) of the Act. Under sub-section 474(1) privative clause decisions are final and conclusive and are not subject to declaration or certiorari or mandamus in any Court on any account.
I would also comment that the order whereby the Applicant seeks his application to be remitted to a differently constituted Tribunal is one which is not to be encouraged. I have quite recently, in a decision of SZJGE v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1845 commented on the undesirability of this practice. It may well be that the Applicant claims that the Tribunal was biased against him and that therefore he would like the Court to prescribe that a Tribunal conducting a further hearing should be differently constituted. I have found no evidence of bias whatsoever. In any event; in my view, it is not a matter for the Court to decide who should or should not constitute the Refugee Review Tribunal for the purpose of a particular hearing. It is the function of the Principal Member of the Refugee Review Tribunal.
If I were satisfied that I should set aside the decision and make an order in the nature of mandamus, remitting an application to the Tribunal, then in my view the appropriate person to decide on the constitution of the Tribunal is the Principal Member. It is not a function of the Court. In any event, I am not satisfied. The decision is a privative clause decision and is not vitiated by jurisdictional error so the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The amount sought is the sum of $4,500.00. It is the usual practice but not a binding practice that the successful party in litigation before this Court in this jurisdiction should be entitled to an order that the unsuccessful party should pay their legal costs. That is of course a discretionary matter but in this case I see no reason why I should not exercise my discretion in favour of making an order for costs.
The amount sought is $4,500.00. That is an appropriate amount in the circumstances in a matter of this type. The Applicant however says that he cannot afford that. He is not working full time and he can only obtain employment a couple of days a week. I see no reason to doubt that assertion. Unfortunately, that is not a reason for not making a costs order. It is a matter to be taken into account in assessing whether a party should be allowed time to pay. I propose to order that the Applicant pay the First Respondent's costs in the sum of $4,500.00 but I will allow six months to pay.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 14 December 2006
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