SZJFT v Minister for Immigration & Anor (No.3) - [2007] FMCA 541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJFT v MINISTER FOR IMMIGRATION & ANOR (No.3)

[2007] FMCA 541

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution – credibility – bias – no evidence of bias – no jurisdictional error.

PRACTICE & PROCEDURE – Unjustified allegations of bias are to be discouraged.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(3), 424A, 474(1), 474(2)
Federal Magistrate Court Rule 2001, r.13.03A

SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SBBS v Minister for Immigration & Multicultural & Indigenous [2002] FCAFC 361
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
SZHSW v Minister for Immigration & Citizenship [2007] FCA 368
SZJFT v Minister for Immigration & Anor (No.2) [2007] FMCA 227

Applicant:

SZJFT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2295 of 2006

Judgment of:

Scarlett FM

Hearing date:

20 March 2007

Date of Last Submission:

20 March 2007

Delivered at:

Sydney

Delivered on:

20 March 2007

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2295 of 2006

SZJFT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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.
The decision was signed on 30^th June 2006 and handed down on

25^th July 2006. The Tribunal affirmed the decision of a delegate of the minister not to grant the applicant a protection (Class XA) visa.
The applicant now seeks orders setting aside the Tribunal decision and remitting her application to the Tribunal for determination according to law.
The background to this matter is that the applicant is a citizen of the People's Republic of China. She arrived in Australia on

2^nd January 2006. She applied for a protection (Class XA) visa on

12^th January 2006. A delegate of the Minister refused her application for a visa on 16^th March. On 10^th April 2006 the applicant applied to the Refugee Review Tribunal for a review of that decision.
The application was accompanied by a three page typed statement in which the applicant set out the reasons why she believed that the delegate's decision was incorrect. In that statement she referred to procedures applying in China for people to obtain passports in order to leave the country. She referred to her history as a Falun Gong practitioner and to other factual matters which have been dealt with by the delegate. She claimed a fear of persecution if she were to return to China because of her practice of Falun Gong.
The Tribunal wrote to the applicant on 18^th April 2006 and invited her to attend a hearing to take place on 15^th May. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. Her evidence concerned her claim that she had fled China to escape persecution because of her involvement in Falun Gong.
The Tribunal asked the applicant a number of questions about her history in China, about her family and about how she organised a passport and a visa. The Tribunal asked the applicant about her fears for her safety and asked her questions about the practice of Falun Gong and about the principles of Falun Gong. The Tribunal commented that the Tribunal member found the applicant's evidence about how she organised a passport and a visa to be very evasive and hesitant[1].
[1] See Court Book at page 97
The Tribunal noted on page 100 of the Court book that the Tribunal member had some difficulties with her evidence in that much of her evidence was vague and lacked detail that the Tribunal would have expected if the applicant had undergone the mistreatment that she had claimed. The Tribunal records that the applicant reiterated her earlier evidence.
The Tribunal's findings and reasons can be found at pages 100 through to 104 of the Court book. The Tribunal accepted that the applicant was a citizen of the People's Republic of China. The Tribunal did not however accept a number of significant facts about the applicant's claim. At page 101 of the Court book the Tribunal said:
I do not accept that the applicant is a Falun Gong practitioner before her departure from China. I consider that her knowledge of Falun Gong practice and beliefs is not consistent with a person who has practised Falun Gong since 1999 or who is identified as a Falun Gong practitioner.
The Tribunal did not accept other significant matters about the applicant's evidence involving her involvement in signing a petition or involvement in demonstrations and went on to find:
I do not accept that she has become a Falun Gong practitioner since she arrived in Sydney or has any commitment to the principles of Falun Gong. Accordingly, I do not accept that if she returned to China she would seek to practice Falun Gong and I therefore do not consider that she would be at risk of persecution for such a reason.
The Tribunal did not accept that the applicant would face a real chance of persecution if she were to return to China and was not satisfied that the applicant had a well-founded fear of persecution for any Convention related reason.
The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 18^th August 2006. The application was first before the Court in a first Court date list on 25^th September 2006 and was listed for final hearing at 11:30 am on

6^th December. The applicant did not attend Court on that day and the application was dismissed due to the applicant's non-attendance under the provisions of r.13.03A Federal Magistrates Court rules 2001.
What then happened was that the applicant commenced proceedings to reinstate her application on the basis that she had been ill and had applied for an adjournment on medical grounds. The Court had not been made aware of that fact. The application was granted and the application was listed for final hearing today. The citation for the earlier decision is SZJFT v Minister for Immigration & Anor (No.2) [2007] FMCA 227.
The applicant has attended Court today. She relies on an amended application that she filed on 24^th November 2006 and the respondent minister relies on an outline of submissions filed on 30^th November. The amended application sets out as its grounds the fact that the Tribunal made a mistake according to the provisions of s. 91R(3) of the Migration Act. The Tribunal erred in making a finding and that it failed to consider that the applicant faced a real chance of persecution if she were to return to China.
The applicant attended Court today and in oral submissions reiterated that she was a Falun Gong practitioner and claimed that the Tribunal had not believed her evidence because the Tribunal was biased.
For the Minister, Ms Mansour, solicitor, relied on the written submissions and submitted that the applicant's oral submissions involved cavilling at the factual findings of the Tribunal which is not the function of this Court. She also submitted that the Tribunal's finding that the applicant was not a genuine Falun Gong practitioner was open to the Tribunal on the evidence.
The applicant in reply told the Court that the lawyer for the minister was biased against her. When asked to explain that statement, the applicant first said that the lawyer was biased because as a matter of fact she is a genuine Falun Gong practitioner. When it was put to the applicant that there was nothing in the behaviour or presentation of the solicitor for the minister, Ms Mansour, that indicated any bias whatsoever, the applicant then retracted the statement by expressing her belief that the solicitor concerned appeared not for the Minister but for the Refugee Review Tribunal.
In dealing with the grounds of the application both written and oral,

I am of the view that the first ground of review claim that the Tribunal did not accept the applicant's claim by misunderstanding the effect of

s. 91R(3) of the Act is in effect a challenge to the Tribunal's factual findings. I made it clear at the beginning of the hearing that the Court can only quash a decision of the Tribunal and remit an application to the Tribunal for determination according to law if the Court is satisfied that there has been a jurisdictional error on the part of the Tribunal.
I refer to the decision of Gyles J in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 where his Honour said at [3]:
Insofar as the Federal Magistrates Court is concerned, he has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is appealed.
In this case I am satisfied the Tribunal had an evidentiary basis for making the factual findings that it did. The Tribunal decision shows that the applicant's knowledge of Falun Gong practice and belief was not consistent with someone who claimed to have practised Falun Gong since 1999. The Tribunal recorded, at page 101 of the Court book, that the applicant only had a very superficial knowledge of some commonly known facts surrounding the practice of Falun Gong and had not provided any evidence that she was known as a Falun Gong practitioner by other persons and organisations.
As to the claim that the Tribunal failed to consider that the applicant faced a real chance of persecution if she were to return to China; the Tribunal did consider whether the applicant would face a real chance of persecution in the reasonably foreseeable future.
The Tribunal found however that the applicant was not a Falun Gong practitioner and had never been one. And accordingly, the Tribunal found that the applicant did not have a real chance of persecution if she were to return to China by reason of her membership of Falun Gong.
The solicitors for the respondent minister also point out there is no breach of s. 424A of the Migration Act as all the information relied upon by the Tribunal in affirming the delegate's decision was in fact information obtained at the hearing or was information provided by the applicant in her statement to the Tribunal that accompanied her application for review.
Accordingly, that all falls within the exception in s.424A(3)(b) of the Act.
The other matter that the applicant raised was the question of bias on behalf of the Tribunal. When asked to explain why the tribunal is biased, the applicant's answer was because she was a genuine Falun Gong practitioner and the Tribunal had not believed her.
It is well established by now that an allegation of bias or bad faith is a serious matter involving personal fault on the part of the decision maker and is not to be lightly made and must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker acted in bad faith are rare, as such an allegation implies personal fault on the part of the decision maker. This is especially so where all that the applicant relies upon is the written reasons for the decision under review (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358).
In this case the applicant has accused not only the Tribunal of bias without any justification made an allegation of bias against the solicitor appearing for the Minister. Both of those allegations are entirely without foundation. I note that the allegation of bias did not appear on either the applicant's original application for review filed at this Court on 18^th August or on her amended application which was filed on 24^th November 2006. The allegations of bias have been made for the first time today. They are entirely without merit. Applicants do not do themselves any favours by making unjustified allegations of bias.
The question has recently been considered by Jessup J in SZHSW v Minister for Immigration & Citizenship [2007] FCA 368. In that case his Honour considered a notice of appeal relating to an allegation of bias by the Tribunal and noted that there was no reference to the question of bias in the amended application filed in the Federal Magistrates Court and there was no reference to it in the reasons for judgment given by the Federal Magistrate, in which case was myself I note.
His Honour found at [3] that the matter was not raised or at least not properly raised before the Federal Magistrate and the appellant should not have needed to raise the point for the first time without leave of the Court.
The decision at [8] also refers to other allegations of bias, including allegations of bias on the part of the Court. His Honour noted:
I have seen this allegation of bias in a number of notices of appeal and proceedings arising out of the Act recently and I regret to say that one gets the impression that allegations of this kind are resorted to much more liberally than the circumstances ever seem to justify and without an apparent consciousness of the seriousness of the accusation involved.
With the very greatest of respect I would comment that this case before me is just such a case of the type referred to by his Honour in

SZHXW
(supra). I put to the applicant that there was nothing in the behaviour or presentation of the lawyer involved that indicated the slightest amount of bias and I put to the applicant my concerns that allegations of bias without any justification have been raised. The applicant's response to that is that she intended to appeal. Considering that the decision had not even been handed down, I considered that remark to be a gross discourtesy to the Court and applicants must realise when they come to the Federal Magistrates Court they are appearing before a body that exercises the judicial power of the Commonwealth of Australia. Practitioners who appear before the Court must behave according to the high standard that the Court requires of them. I will make it quite clear that the practitioner, who appeared before me today, Ms Mansour, has acted in these proceedings in the way that is entirely consistent with the requirements of fairness and courtesy that the Court requires of her. I am conscious of the fact that it is the policy of the Minister that the Minister should be model litigant. In the overwhelming number of cases that aim seems to be followed.
Dealing with the application before me there is no evidence of bias. There is no jurisdictional error. I am mindful of the fact that the applicant is not legally represented and I have read through the matters quite carefully and I am satisfied that there is no arguable case of jurisdictional error. As there is no jurisdictional error the decision is a privative clause decision as defined in s. 474(2) of the Migration Act and accordingly under s. 474(1) it is not subject to orders in the nature of certiorari or mandamus. The application will be dismissed with costs.
There is an application for costs in the sum of $4,500.00.

The applicant has been wholly unsuccessful in her claim and this is a proper matter for a costs order. The amount sought is $4,500.00 which is an appropriate figure and well within the scale provided by the Courts. I propose to make that order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 12 April 2007