SZJJV v Minister for Immigration
[2007] FMCA 1719
•25 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJJV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1719 |
| MIGRATION – Review of a 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 “SZJJV”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SXSB v Minister for Immigration and Citizenship [2007] FCA 319 SZFBJ v Minister for Immigration & Anor [2006] FMCA 1472 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZHJT v Minister for Immigration and Citizenship [2007] FCA 180 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 VFAB v Minster for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 |
| Applicant: | SZJJV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2527 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Mr R White of Sparke Helmore |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 20 September 2006 is dismissed.
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 |
SYG2527 of 2006
| SZJJV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a fur and leather merchant from Chengdu, Sichuan province, People’s Republic of China. He claims to fear persecution from the management of his local marketplace and local government authorities because he reported their corrupt market practice and exorbitant market fees. In retaliation, they increased his management fee, attempted to expel him from the market and prevented customers from buying his goods. The applicant claims he sued the market management and the district government of Chengdu. The applicant claims that he was detained by the authorities in March 2004 for two months and torment physically and emotionally. He was accused of disturbing the public order in the market. After paying a bribe for his release, he moved his family to Fujian province. However, the security bureau in Sichuan contacted the security bureau in Fujian, who took away the applicant’s belongings. He claims he went into hiding prior to coming to Australia.
A delegate of the first respondent refused to grant the applicant a protection visa. The applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”), who upheld the delegate’s decision. The applicant seeks judicial review of the Tribunal decision.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.
The amended application filed contains three grounds of review:
a)Ground one – The Tribunal failed to carry out its statutory duty.
b)Ground two – The Tribunal had bias against me and failed to refer to relevant independent information for the consideration of my application.
c)Ground three – The Tribunal failed to consider my application in according to s.91R of the Migration Act.
Consideration
On the first Court date, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon. The applicant was also granted leave to file any additional affidavit material in support of his claims. The form of the amended application filed by the applicant is regularly seen in this Court. They do not specifically address the issues in this particular case, but rely on pleadings and authorities that are common in this jurisdiction but which are not directly relevant. The applicant did not file any written submissions and also declined to make oral submissions indicating that he relied on his amended application.
Ground one
Ground one - the Tribunal failed to carry out its statutory duty:
Particulars
(a) The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing SAAP v Minister for Immigration and Multicultural and Ethnic Affairs (2005) IICA 24.
(d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa.
Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27.
Para 17 “…In our view, ‘applicant’ wherever appearing in s.424A means ‘application for review by the Tribunal of a Ministerial decision and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The court did not accept the Ministers argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.
(e) The Tribunal based its findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
The first respondent’s written submissions indicate that the particulars pleaded assert a breach of s.424A of the Migration Act because the Tribunal based its findings on information or lack of information in the applicant’s protection visa application and was required to give the applicant particulars of this information in writing. Mr White, for the respondents, submits that there is no factual basis for this assertion as the Tribunal did not rely upon any “information or lack of information contained in the applicant’s protection visa application”. The Tribunal relied on evidence the applicant gave at the first and second Tribunal hearing to find that he did not face a real chance of persecution in the reasonably foreseeable future. The obligation in s.424A(1) does not apply to information that the applicant gave for the purpose of an application for review (s.424A(3)(b)). The exception in s.424A(3)(b) applies to information the applicant gave not only to the second Tribunal hearing but also to the first Tribunal hearing: SXSB v Minister for Immigration and Citizenship [2007] FCA 319 at [24]-[26] per Besanko J; SZFBJ v Minister for Immigration & Anor [2006] FMCA 1472 at [8].
The first respondent submits that the term “information” for the purposes of s.424A “does not encompass the tribunal’s subjective appraisals, thought processes or determination… nor does it extend to identifying gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], citing with approval VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [476]-[477].
Mr White contends that if the Tribunal affirmed the decision because of the applicant’s evidence failed to disclose a Convention nexus, such a failure cannot constitute “information”: SZBYR.
I agree with the first respondent’s submissions that the first ground as pleaded misconceives the basis for the Tribunal’s decision. I have noted in previous decisions that this sort of pleading is without a real understanding of its contents and without reference or relevance to the Tribunal decision. The pleading is a formulaic one circulated by an unregistered agent associated with the post office boxes that are located at 266 Elizabeth Street, Surry Hills. I am satisfied that there is no breach of s.424A by the Tribunal and that this ground of review is misconceived and cannot be sustained.
Ground two
This ground of review contains no particularisation, nor has any evidence in the form of an affidavit or submissions been put before this Court to support an allegation of bias on the part of the decision-maker. The respondents written submissions contend that a party asserting bias on the part of the decision-maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairsv Jia [2001] HCA 17 at [69] and [127]. Mr White submits that the applicant has not filed any evidence in support of this serious allegation and it is not possible to extrapolate bias on the part of the Tribunal from adverse findings alone: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
I agree with those submissions, that this complaint must fail as neither actual nor apprehended bias on the part of the Tribunal can be sustained. Actual bias is seldom made out solely by reference to the reasons for decision and no inference of bias or pre-judgment can be drawn from the mere fact of adverse findings in the reasons: VFAB v Minster for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]. Nor does bias necessarily arise from illogical or irrational decision-making or inferences: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [52], [75], [99]-[101]. Further, a manifestly defective or illogical approach to the consideration of evidence, or irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence. Such an approach, without more, does not demonstrate apprehended bias: Applicant S20/2002 at [101] and [136].
The applicant also complains in this ground that the Tribunal failed to refer to relevant independent information in considering his application. Mr White submits that the Tribunal is entitled, but not obliged, to refer to independent information: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [169]-[170]. It is submitted that it is for the applicant to put forward sufficient information so as to enable the Tribunal to establish the relevant facts and whether the statutory elements are made out: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [579]. It is well established that the Tribunal is not obliged to make out the applicant’s case or to obtain information in support of it: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [576]. It is also submitted that the choice and assessment of country information is a factual matter for the Tribunal and the Tribunal is not obliged to enquire into more recent country information than what was before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at [11]-[13]; VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [41].
I agree with the first respondent’s submissions that both aspects of ground two cannot be sustained. This ground is misconceived with respect to the Tribunal decision and is the result of formulaic grounds of review that have no reference or relevance to the particular decision.
Ground three
This ground is also not particularised nor supported by affidavit or any oral or written submissions. The ground is meaningless in the absence of any particulars or supporting evidence.
Mr White contends that s.91R of the Migration Act does not address the way the Tribunal should go about assessing claims but relates to the way the Refugees Convention should be construed: SZHJT v Minister for Immigration and Citizenship [2007] FCA 180. It is submitted that the Tribunal assessed the applicant’s case as not establishing either a real chance of persecution or any requisite nexus between his claim of harm and a Convention basis for that harm. The Tribunal was simply exercising its function and assessing the material before it. It is submitted that the Tribunal’s findings were open to it on the material and for the reasons it gave. They reveal no jurisdictional error.
As with the other two grounds in this application, ground three is formulaic and has no relevance to the Tribunal decision.
Conclusion
The material contained in the Court Book, in particular the Tribunal decision, clearly demonstrates that the Tribunal formed the view that the applicant’s problems in the Sichuan marketplace were “in fact individualised, finite and localised”. The problems dissipated when the applicant was released from detention and he became involved in other activities. The applicant also moved to Fujian province. None of the issues raised by the applicant are Convention related. Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 25 October 2007
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