SZJIM v Minister for Immigration
[2006] FMCA 1813
•5 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1813 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister to not grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution for reason of religion – claim to be a member of the Shouters – credibility issue – illogicality and irrationality – rational and logical foundation – want of logic does not constitute an error of law – bias – no evidence of bias. PRACTICE & PROCEDURE – Court – the name of the court is the Federal Magistrates Court. |
| Migration Act 1958 (Cth), ss.91R, 424A, 426, 441A, 474, 476 Federal Magistrates Act 1999 (Cth), s.8 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 followed Prahostono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 M153 of 2004 and Ors v Minister for Immigration [2006] FMCA 42. NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 236 followed SZDTZ v Minister for Immigration and Anor [2006] FMCA 1709 referred to NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 followed SZEEO vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 followed VWST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 W404/01A of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 ReMinister for Immigration and Multicultural and Indigenous Affairs; Ex Parte S20/2002 (2003) 198 ALR 59 | ||
| Applicant: | SZJIM | |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2548 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 December 2006 |
| Date of last submission: | 5 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Nesbitt |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Migration Review Tribunal is deleted as a Respondent to the application.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,800.00.
I DIRECT that a copy of this decision is to be forwarded to the Principal Member of the Refugee Review Tribunal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2548 of 2006
| SZJIM |
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 that was handed down on 15th August 2006 affirming the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa.
In his amended application filed on 21st November 2006 the Applicant seeks orders setting the Refugee Review Tribunal decision aside and remitting his application to a differently constituted Tribunal to be re‑heard according to law.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 20th December 2002 and applied for a protection visa on 29th January 2003. His application was refused on 7th April 2003 so he applied to the Refugee Review Tribunal for review of that decision. The Tribunal affirmed the delegate's decision. The Applicant sought judicial review of that decision and on 11th July 2005 the Federal Magistrates Court made orders by consent setting the Tribunal decision aside and remitting it to the Tribunal to be determined according to law.
The second time the Tribunal affirmed the delegate's decision on 23rd September 2005. The Applicant again sought judicial review of the Tribunal decision. On 2nd May 2006 the Federal Magistrates Court made orders by consent setting the decision aside and remitting the application to the Tribunal for determination according to law.
The Refugee Review Tribunal wrote to the Applicant on 29th May 2006 inviting him to attend a hearing on 11th July 2006. The Applicant attended the hearing on that date and gave evidence with the assistance of an interpreter in Mandarin.
The Refugee Review Tribunal decision
The Tribunal handed down its decision on 15th August 2006 affirming the delegate's decision not to grant a visa to the Applicant.
The Tribunal decision record is set out on pages 62 through to 70 of the Court Book. In its decision the Tribunal summarised the Applicant's claim for protection on the basis that he was a member of the Shouters sect in China and was active in developing its members and joining all sorts of activities when he was in Fujian. The Applicant made arrangements to go to New Zealand in 2001 and just before he left China the police had started to investigate him.
He went to New Zealand but could not obtain protection there and eventually returned to China. He realised that he could no longer stay in China as police had started to investigate him further so he decided to leave again to avoid persecution. He claimed that if he were to return to China sooner or later the government would realise his involvement with the Shouters. He claims that if he returns to China he will be persecuted.
In his application for review the Applicant added to his substantive claims with a statement saying this:
I am a member of Shouters which is an underground religious organisation in China. The Chinese authorities, because of its connections with overseas churches, have banned it. When I was in China we had to hide here and there for our activities. We do not have freedom of religion in China. I suffered mental torment because of my religious belief. I hope that my application can be reassessed at RRT. Thank you.
At the hearing the Tribunal asked the Applicant a number of questions about the Shouters church and his involvement in it. The Tribunal in its decision referred to independent country information about the group commonly known as the Shouters. The independent country information is set out on pages 68 and 69 of the Court Book
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 69 and 70 of the Court book. The Tribunal was satisfied that the Applicant is a citizen of the People's Republic of China based on his passport which he had produced. The Tribunal noted that the Applicant claimed to fear persecution in China because of his membership of the banned Christian sect known as the Shouters but was not satisfied as to the truth of the Applicant's claim that he was a member of the Shouters sect. The Tribunal at pages 69 and 70 set out why it was that the Tribunal did not accept the Applicant's evidence to the effect that he was a member of the Shouters.
The Tribunal also considered whether the Applicant may be taken to be claiming a fear of persecution based on his real or imputed political opinion. The Tribunal noted that the Applicant had said that at meetings of his underground church he and other members would discuss problems in China, criticise the government and prepare anti‑government propaganda material.
The Tribunal went on to find however that as it was not satisfied that the Applicant had provided a true account of his claimed religious involvement, it was similarly not satisfied as to the truth of his claim to have participated in political discussions and other activities opposed to the Chinese government.
The Tribunal was not satisfied that the Applicant was a Christian or that he had ever involved himself in the activities of the Shouters sect in China. The Tribunal was not satisfied that the Applicant had involved himself in political activities adverse to the Chinese government. The Tribunal was therefore not satisfied that there was a real chance that the Applicant would be harmed in China for either of those reasons and in summary was not satisfied that the Applicant had a well-founded fear of persecution because of his religion, his real or imputed political opinion or any other Convention reason should he return to China and was not satisfied that he was a refugee.
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 Refugees Protocol and therefore did not satisfy the criterion set out in sub-s.36(2) for a protection visa.
The Application for Judicial Review
The Applicant commenced proceedings in this Court for review of that decision by means of an application filed on 11th September 2006.
He filed an affidavit at the same time. That affidavit annexed a copy of the Tribunal decision and claimed that the Tribunal failed to carry out its statutory duty and failed to provide particulars of the information that was the reason or part of the reason for affirming the decision according to s.424A of the Migration Act. The affidavit also claimed that the Tribunal had bias against the Applicant and could not consider his application according to s.91R of the Migration Act.
In his amended application the Applicant expands on those submissions that were set out in his affidavit. He sets out three grounds claiming first that the Tribunal failed to carry out its statutory duty. He alleges that there was a breach of s.424A of the Migration Act and refers to decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. He sets out a number of quotes from that decision. He also refers to the decision of Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27.
The other grounds that he sets out are first; that the Tribunal had bias against him and failed to consider his application for a protection visa according to s.91R of the Migration Act 1958 and finally that the satisfaction that the Applicant was not a refugee was not based on rational and logical foundation for that belief.
The Applicant did not file any written outline of submissions and the hearing declined to make any oral submissions in support of the application. The solicitor for the Respondent has filed a written outline of submission challenging the grounds set out in the application.
In view of the fact that the Applicant did not make any oral submission, Ms Nesbitt, who appeared for the Minister, did not wish to add anything further to her comprehensive submission.
The Applicant was offered an opportunity to address the Court in reply but exercised his right not to do so.
Ground 1 – The Tribunal failed to carry out its statutory duty
The Applicant's first ground alleging a failure to carry out the Tribunal's statutory duty by failing to comply with s.424A of the Migration Act is a pro forma ground which appears regularly in applications before this Court. Most Federal Magistrates would be familiar with this particular ground characterised as it is by a misdescription of the Minister's portfolio in the reference to decision SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 where the Minister is described as “Minister for Immigration and Multicultural and Industrial and Ethnic Affairs” and where the date of handing down the decision is described, curiously, as 18th May 2001. The quotations from the decisions of McHugh and Hayne JJ appear regularly as do the misused apostrophes in
sub-paras.(d) and (e) of Ground One.
The submission is misconceived. The Tribunal did not rely on any of the information contained in the Applicant's protection visa application in its decision to affirm the delegate's decision. The Tribunal was not satisfied that the Applicant's claims were true based on his responses at the hearing. It is quite clear from the decision that the Tribunal was not satisfied as to the credibility of the Applicant's claims and indeed said so at page 69 of the Court Book.
Findings as to credibility are of course factual findings and there was evidence available to the Tribunal which would allow those factual findings as to the lack of credibility to be made. Accordingly, the Court will not disturb the credibility finding, nor should it, and I refer to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
The Tribunal based its decision on the Applicant's evidence at the hearing. That evidence falls within the exception contained in
sub-s.424A(3)(b) of the Migration Act. There was no obligation on the Tribunal to put this information into the Applicant in writing under s.424A. There is no breach of s.424A. The lawyers for the Minister submit correctly that the Tribunal's letter to the Applicant inviting him to a hearing was validly given and complied with ss.424A, 426(1) and 441A(4) of the Migration Act.
Ground 2 – The Tribunal had bias against the Applicant and failed to consider the Application according to s.91R of the Act
The second ground relates to bias. The Applicant complained that the Tribunal had bias against him. There is no evidence of bias. Bias is a serious allegation. It should be firmly and distinctly made and clearly proved. See Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530.
The Full Court of the Federal Court has looked at allegations of bias and bad faith in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 and in particular at [43] and [44] where their Honours say:
That an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved. Circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for decision which are under review.
There is no evidence of bias. Apart from the bald assertion made by the Applicant that the Tribunal was biased; he has provided no evidence. There is no bias that appears in the decision.
As to the second part of the claim – failing to consider the application for a protection visa according to s.91R of the Migration Act, in my view the Tribunal correctly set out the relevant law in its reasons for decision. It considered the definition of ‘refugee’ and applied the correct principles. As the lawyers for the Minister submit, there is nothing in the materials to suggest that the Tribunal misapplied the definition of persecution or serious harm under s.91R. Where the conduct amounts to persecution is a question of fact and degree for the Tribunal (see Prahostono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268). In any event; as the Respondent submits, the critical reason for the Tribunal affirming the delegate's decision was because it simply did not accept the Applicant's claims. Ground 2 fails.
Ground 3 – Findings not based on ‘rational and logical foundation for belief’
Third ground says:
The satisfaction that I am not a refugee was not based on rational and logical foundation for this belief.
The Applicant has not provided any material or submissions in support of this claim which remains as a bald, unparticularised assertion. The solicitor for the Minister submits there is just no basis for a claim that there was some legal error which may be established by reason of a rationality or illogicality in the Tribunal's reason. She submits, and I believe correctly, that the Tribunal decision plainly reveals logical, rational reasoning.
In any event, the question of irrationality for illogicality as a ground for review is a matter of little assistance. The Full Court of the Federal Court has held that want of logic does not of itself constitute an error of law (see NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52; see also M153 of 2004 and Ors v Minister for Immigration [2006] FMCA 42). In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 236 the Full Court of the Federal Court held that there was nothing in the remarks of the High Court in S20 of 2002 that would warrant a departure from the earlier line of decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdictional error.
I have previously held in SZDTZ v Minister for Immigration and Anor [2006] FMCA 1709 at [30]:
…while some members of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 [2003] 198 ALR 59 expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from the earlier line of decisions in the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error.
See also S635/2003 v Minister for Immigration and Multicultural Affairs [2004] FCA 1162, VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286, NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 and also the decision of Tamberlin J in SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546.
That decision was an appeal from a decision of the Federal Magistrate where his Honour said at [14]:
The law is settled at the appellate level in this Court, that the want of logic, does not of itself suffice to constitute an error of law.
His Honour referred to NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235, VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286, NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 and W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255.
In my view it is settled law that irrationality and illogicality or either of those will not constitute a ground of review and no jurisdictional error is shown. It must follow therefore that the third ground will not succeed.
Conclusion
I am mindful of the fact that the Applicant is not legally represented and I have considered the material before me in order to ascertain whether anything else approaching a jurisdictional error may be discerned. There is none.
As there is no jurisdictional error; the Tribunal's decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. The application must be dismissed.
There are two other points that I would wish to make at this stage. First of all; the amended application seeks an order that the Court should remit the application for review of the delegate's decision to a differently constituted Tribunal to be re-heard according to law. Presumably the request for the Court to specify that the Tribunal to be differently constituted is based on the allegation of bias. In any event; I am not of the view that, with the exception of exceptional circumstances, that it is for the Court to determine in remitting a matter to the Tribunal whether the Tribunal should be differently constituted. The constitution of a Refugee Review Tribunal is a matter for the Principal Member. It is not, in the ordinary course of events, a matter for the Court. In my view, a routine application for orders remitting an application to a Tribunal differently constituted is a matter to be deprecated and it should not continue.
The second point that I wish to make is that the only fault that I can see in the Tribunal's decision is a consistent misspelling of the name of this Court. On page 63 of the Tribunal decision the name of the Federal Magistrates Court consistently appears with an apostrophe in it. There is no apostrophe. The name of this Court is the Federal Magistrates Court. The name is set out in s.8 of the Federal Magistrates Act (1999). It is a matter of regret that in 2006 when this Court has been hearing applications for review of decisions of the Refugee Review Tribunal since 2001 Tribunal decisions appear where the name of the Court is incorrectly spelt.
I propose to direct that a copy of this decision be forwarded to the Principal Member of the Refugee Review Tribunal with a request that the Tribunal make an effort to spell the name of the Court correctly.
I do not believe that it is too much to ask.
The application will be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 7 December 2006
13
2