SZJKS v Minister for Immigration
[2007] FMCA 1687
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJKS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1687 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424, 424A, 425, 426, 441A, 476 FederalMagistrates Court Rules 2001 (Cth), rr. 44.11(c), 44.12 |
| Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 QAAH of 2004 v Minister for Immigration and Multicultural Affairs [2004] FCA 1448 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZDIK v Minister for Immigration and Multicultural Affairs [2005] FCA 1252 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 |
| Applicant: | SZJKS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2734 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms N Johnson of Sparke Helmore |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 25 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 |
SYG2734 of 2006
| SZJKS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
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 “SZJKS”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 25 September 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 31 July 2006 and the applicant was notified by letter sent on 22 August 2006. The Tribunal decision affirmed a decision of a delegate of the first respondent made on 16 March 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the Tribunal decision.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for a final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 13 October 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of L Hardy, reference 060385412, provides the following background information:
The applicant, who claims to be a citizen of China (PRC), arrived in Australia on 10 January 2006 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 24 February 2006. The delegate decided to refuse to grant the visa on 16 March 2006 and notified the Applicant of the decision and his review rights by letter dated 16 March 2006 and posted on 16 March 2006.
The delegate refused the visa application as the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
The applicant applied to the Tribunal on 21 April 2006 for review of the delegate’s decision.
…
The applicant appeared before the Tribunal on 14 July 2006 to give evidence and present arguments. A Mandarin interpreter was also present.
The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the Tribunal hearing.
(CB 72)
The applicant’s claims are set out in the Tribunal decision under the heading “Claims and Evidence”:
The applicant, who comes from Yong An in Fujian province, claims fear of persecution in the PRC for reasons of “religion.”
The applicant claimed to the Tribunal that back when we was in the PRC he was a member of the religious group called the Longtian Christian Family Fellowship, at the recommendation of a friend called Wang. Longtian is situated near Fuzhou in Fujian province.
The applicant claimed that this group was an unregistered church in the PRC. He claimed to the Tribunal that he was a member of the group from June 2002 to 2004, during a period when he lived away from his home town of Yong An.
…
The applicant told the Tribunal that after he joined the Longtian Christian Fellowship, he decided to go back and preach to miners in Yong An. He said he returned to Yong An in January 2004. He said he decided on his own to go back to Yong An because during 2003 the police (PSB), often came to investigate or interrupt the group’s religious gatherings. He later told the Tribunal that Wang also suggested he go and preach in Yong An. He implied he stayed in Yong An from 2004 to 2006 when he came to Australia.
(CB 74)
A convenient summary of the Tribunal decision is contained in the written submissions prepared by Ms Johnson, for the first respondent, and I rely upon paragraphs 5 to 8 of those submissions:
5. The Tribunal accepted that members and leaders of unregistered churches in the PRC do face some risk of repression in the PRC. However, the Tribunal considered that it would have been reasonable to expect some evidence of repression against the applicant’s church and was “seriously concerned as to the lack of evidence of the existence of the group, and was additionally concerned at the inconsistency in the applicant’s evidence about his association with the alleged group”: CB 76.4.
6. The Tribunal found the applicant’s explanation as to why he was drawn to Christianity to be “hollow and unimpressive” (CB 75.6) and found his evidence as to church members being arrested “lacked congruity with his own claims about preaching…without any negative reaction until he chose to leave the PRC some two years after he began his mission”. The Tribunal considered the applicant gave inconsistent evidence regarding his mission and did not accept that the applicant had undertaken any preaching mission: CB 76.7.
7. The Tribunal gave weight to the fact that the applicant only told his migration agent about the repression of his church and found that that “the applicant never bore witness to his experiences as a Christian in the PRC, because he never was a Christian there”: CB 76.8. The Tribunal accepted that the applicant attends a church in Padstow, however, was not satisfied on the evidence before it that the applicant was genuinely committed to Christianity: CB 76.9.
8. The Tribunal was not satisfied that there was a real chance the applicant would be persecuted for his religious opinion or that he had a well-founded fear of persecution: CB 77.1.
Application for review of the Tribunal decision
On 25 September 2006 the applicant filed an application for a review in this Court under s.39B of the Judiciary Act. At the first Court date the applicant indicated that he wished to participate in the Court sponsored legal advice scheme. He was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 12 December 2006.
The applicant complied with that order and filed an amended application on 12 December 2006 which contained the following grounds:
1. I do not believe that Mr Luke Hardy, the Presiding Member of the Tribunal (“the Presiding Member”), is willing to assess my claims, properly and fairly; or has, carefully and thoroughly, considered my application.
Particulars:
a. The Presiding Member arranged a hearing for me as a mere formality, or did it perfunctorily. During the Tribunal’s hearing, I never thought that the Presiding Member was willing to, or genuinely intended to, provide me a fair chance to present my oral evidences and to give my arguments.
b. I strongly believe that the Presiding Member has already made his decision before the Tribunal’s hearing, and thus the Tribunal’s hearing was just for the purpose to go through the motions.
c. One of significant evidence is that the Presiding Member thought hat “…the Applicant has not presented any evidence outside of his won words of the existence, past or present, of the Longtian Christian Family Fellowship or any variant of the name, let alone of the arrest of its leaders and/or members…”
d. However, if the Presiding Member genuinely regarded above information as the reasons, or part of the reasons, in his decision, he should, at least, give me a chance to comment on it; or, invite me to provide further information about it. Unfortunately, the Presiding Member did nothing. Why? It is because that he NEVER ever intended to consider my claims, fairly and properly.
2. The Presiding Member failed to comply with his obligation under s.424 and s.424A of the Act.
Particulars
a. I have been guided by the Act that:
Section 424. Tribunal may seek additional information.
[Section 424 not reproduced]
b. Before the Tribunal’s hearing, the Presiding Member should have already found that I could not provide any documentary evidences in support of my claims. If it is the case, the Presiding Member, subject to s.424 of the Act, “…may get any information that it considers relevant…”
c. However, if the Presiding Member used the above-mentioned information as the reason, or part of the reason, in making his finding, he 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 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.
d. It is obviously that the Presiding Member, in my case, failed to comply with his obligation under s.424A of the Act, because he has never done anything which has complied with above-mentioned obligation.
3. The Presiding Member has ignored important evidence
Particulars:
a. I have been guided by UNHCR Handbook that:-
[Section 196 not reproduced]
b. Although the Presiding Member may not be bounded by the UNHCR Handbook, it would be obviously unfair if the Presiding Member refused my claims mainly based on his “expert” of the evidences
4. Furthermore, I do not think that the Presiding Member has, genuinely and honestly, complied with the obligations under s.425 of the Act because:-
Particulars:
a. I have, in fact, been denied the right to present my oral evidences in support of my applicant fairly; and
b. I have, in fact, been denied the rights to give my argument against the issue arising from the Tribunal in relation to my review application.
c. As I have mentioned above, the Presiding Member arranged a hearing for me as a mere formality, or did it perfunctorily. During the Tribunal’s hearing, I never thought that the Presiding Member was willing to, or genuinely intended to, provide me a fair chance to present my oral evidences and to give my arguments.
Submissions and reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. In accordance with orders made at the directions hearing of 15 February 2007, the applicant filed written submissions on 7 August 2007. However these bear little relationship to the grounds in the amended application. The amended application contains four grounds, while the written submissions address three grounds. The only apparent common element being a reference to s.424A of the Migration Act which appears in the second ground of the amended application and the third ground of the written submissions. Otherwise, they address completely different issues. When the applicant was invited to address the Court orally, he appeared to be working from written notes in his own language which related to the written submissions.
Ms Johnson’s written submissions address the issues raised in the amended application. I believe the most appropriate method to adopt is to deal with the grounds raised in the amended application and then consider any remaining issues from the applicant’s written and oral submissions that have not already been canvassed.
The first ground of the amended application alleges that the Tribunal did not consider the applicant’s claims properly or fairly and that the decision was made with bias. The applicant claims that the Tribunal did not provide the applicant with a genuine opportunity to present oral evidence and that the member had already made his decision before the hearing. Ms Johnson submits that the applicant claims bias, but has made no attempt to comply with the requirement that “this serious allegation be firmly and distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [530] per Gleeson CJ and Gummow J.
Actual bias can be said to exist where a decision-maker had a pre-existing state of mind which disabled him from undertaking or rendering him unwilling to undertake any proper evaluation of the relevant materials before him which are relevant to the decision to be made: Jia at [35] and [72]. It may be also be said to exist where a decision-maker is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or argument may be presented: Jia at [71]-[72]. Alternatively, apprehended bias exists when a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]. Ms Johnson submits that in the absence of any evidence, such as a transcript of the hearing, this ground cannot be established.
Ms Johnson submits that the Tribunal decision shows that the applicant was able to give evidence and present arguments at the hearing. The material before the Court does not provide any foundation for the claim that the member approached this matter with a closed mind or did not conduct his review in good faith. No inference of bias or prejudice can be draw from the mere fact of adverse findings in the Tribunal’s reasons: SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].
In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264, the Full Federal Court noted the difference between an inquisitorial tribunal, such as the Tribunal in question here, and decision-making Courts which administer public justice. The role of the Tribunal is to investigate the facts for itself, unaided by counsel or parties assisting the case. It may test and probe an applicant’s narrative of history. Such questioning, which if undertaken by a judge in open Court, might give rise to an apprehension of a lack of impartiality. The inquisitorial manner of the Tribunal hearing may have lead the applicant to form the view that the Tribunal member lacked impartiality. This may have been further accentuated by the fact that the Tribunal ultimately found against the applicant. I agree with the submissions made by Ms Johnson and do not believe that this ground can be sustained.
The second ground of the amended application pleads that the Tribunal breached s.424 and s.424A of the Migration Act. The Tribunal was not satisfied that the applicant’s claims were true based on his “confused and inconsistent” responses at the hearing which “lacked congruity”: CB 76.6. Ms Johnson submits that these factual findings were open to the Tribunal on the material and should not be disturbed by the Court: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67]. The evidence given by the applicant at the hearing falls within the exception in s.424A(3)(b) of the Migration Act.
Ms Johnson submits that the applicant also asserts that the Tribunal should have known that he could not provide documentary evidence in support of his claims and that the Tribunal could obtain information pursuant to s.424 of the Act. Ms Johnson submits that the applicant is asking the Court to undertake a merits review of the Tribunal decision and a further assessment of the credibility of the applicant’s factual claims. I accept the submissions made by Ms Johnson that this is not available in an application for judicial review: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272]. The applicant in this case must identify a jurisdictional error in the reasoning or procedure of the decision-maker.
The third ground of the amended application alleges that the Tribunal ignored important evidence and refers to the UNHCR Handbook:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exceptional rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Plus, while the burden of proof in principle rests on the applicant, the duty to ascertain and value all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account is credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
The applicant alleges that it was unfair of the Tribunal to refuse his claim based on what the Tribunal expected from the evidence.
Ms Johnson submits that the Tribunal considered that it was reasonable to expect some evidence repression of the Longtian Christian Family Fellowship and was concerned about the lack of evidence of the existence of the group: CB 76.4. The reason for the Tribunal’s obligation was simply the lack of evidence in support of the applicant’s claims. It is submitted that the Tribunal is entitled to draw inferences from the absence of reports if there is reason to expect that such reports would, in the usual course, exist: QAAH of 2004 v Minister for Immigration and Multicultural Affairs [2004] FCA 1448 per Dowsett J at [45]; SZDIK v Minister for Immigration and Multicultural Affairs [2005] FCA 1252 per Hely J at [14].
The Tribunal made the following statement in respect of the church in its “Findings and Reasons”:
The Tribunal accepts that unregistered churches, their leaders and some of their members do face the risk of repression in the PRC. The Tribunal considers it reasonable, however, to expect that, as with the case of the church groups mentioned in the newspaper articles read out by the Applicant at the hearing, there would be some evidence of the existence and repression of the Longtian Christian Family Fellowship. The Tribunal was seriously concerned as to the lack of evidence of the existence of the group, and was additionally concerned at the inconsistency in the Applicant’s evidence about his association with the alleged group.
(CB 76)
I accept the submissions made by Ms Johnson that it would be open to the Tribunal to come to the conclusion that it did based on the material before it.
The fourth ground alleges a breach of s.425 of the Migration Act, in that the applicant was not given an opportunity to give evidence or respond to the Tribunal’s arguments. The Tribunal invited the applicant to attend the hearing by letter faxed to the applicant’s authorised recipient on 23 June 2006: CB 51-53. The letter was validly given and complied with ss.425A, 426(1) and 441A(5) of the Migration Act. The applicant attended the Tribunal hearing on 14 July 2006 and was assisted by an interpreter: CB 66. The Tribunal decision indicates that the applicant gave evidence at the hearing and responded to the its questions: CB 74-76. Ms Johnson submits that in the absence of any contrary evidence, such as a transcript of the Tribunal hearing, the applicant is unable to establish the ground pleaded. I agree with those submissions.
I am satisfied that the grounds raised in the amended application do not identify any jurisdictional error. I now turn to the applicant’s written submissions which were supported by oral submissions during the Court hearing and address what appear to be three new issues. The first is that the Tribunal made its finding based on incorrect information. The applicant referred to the passage from the Tribunal decision quoted above at [20] and emphasised the following sentence:
…as with the case of the church groups mentioned in the newspaper articles read out by the Applicant at the hearing.
The applicant argues that this was definitely not so, as the newspaper information was genuine information about Chinese authorities persecuting leaders and members of unregistered churches. The applicant submits that he was not suggesting that the information he gave the Tribunal was to be considered as particular information directly related to the Longtian Christian Family Fellowship. The purpose of referring to the newspaper articles was to emphasise to the Tribunal that unregistered churches associated with Christian groups were being persecuted in China and that the same had happened to his particular church.
I believe that what the concern expressed by the Tribunal was not related to the newspaper aeticles, but rather that the Tribunal was unable to locate any material from any source to support the existence or repression of an organisation identified as the Longtian Christian Family Fellowship. I believe that the Tribunal member expressed that view after carrying out his own research. The other concern was the applicant’s inconsistencies in explaining his relationship with that organisation. The Tribunal was evaluating the merits of the applicant’s case, which is not subject to review by this Court.
The second ground in the applicant’s submissions is that the Tribunal made its findings based on unwarranted assumptions, ignored important evidence provided by the applicant or failed to consider the claims properly and fairly. The applicant referred to the Tribunal’s findings which state:
The applicant’s evidence as to what drew him to religion in the first place, being a reaction against corruption in the workplace, struck the Tribunal as being particularly hollow and unimpressive in the circumstances. His evidence at the hearing was that he did not join the church until sometime after he left the job where he had witnessed corruption and after he moved to Longtian. His evidence as to the circumstances of his subsequent return to Yong An, not fearing for his safety and yet at the same time consciously fleeing repression, struck the Tribunal as confused and inconsistent. His evidence about active church members being arrested in Longtian lacked congruity with his own claims about preaching in Yong An without any negative reaction until he chose to leave the PRC some two years after he began his mission. The applicant also gave inconsistent evidence as to whose idea that mission was. The Tribunal did not accept that there was any preaching mission undertaken by the applicant.
The applicant further claims that the Tribunal failed to provide any evidence. Presumably, the applicant is suggesting that the Tribunal would argue against his statements with supportive evidence. Unfortunately this is a misunderstanding on the part of the applicant as it is his responsibility to provide evidence to satisfy the Tribunal as to any claim. I believe that the Tribunal member identified aspects of the claim unsupported by evidence and the inconsistencies arising from the overall statement made of the applicant.The applicant also suggests that the Tribunal failed to consider his evidence and information properly.
The one piece of evidence that the applicant referred to appears in particular (c), which refers to the applicant’s early involvement in and conversion to Christianity. The submissions reproduce two paragraphs from the applicant’s statutory declaration attached to his visa application:
In March 2002, arranged by Mr Si Min Wang who was a friend of my father, I started working at Fuqing Kangjiao Colour Printing Factory.
Mr Si Min Wang was a Christian. He knew my experience in Yong An Coal Mine Bureau in the past; and very understood my sufferings owing those unfortunate experiences; and tried his best to assist me to get out of those painful memories. For those purposes, Mr Wang began to arrange me to attend some religious gatherings at his own or his friend’s place from the middle of 2002 (around June 2002).
How the Tribunal viewed these statements is not referred to in its decision, nor is it obliged to make such a reference. If the Tribunal considers material and rejects it for having no effect on the outcome of the decision, it is not obliged to refer to its thought process in relation to that material in its written reasons. The applicant does not say how that material was significant to the Tribunal making its decision. It is not immediately apparent after having read the Court Book that the information identified by the applicant would have any influence on the Tribunal’s decision-making process.
The fourth particular in the second ground of the written submissions states that the applicant moved to Longtian to flee repression. However once he became a Christian his circumstances changed. He claims that with the care and support from his Christian belief, he developed courage and returned to Yong An to spread the Christian gospel. The applicant claims that the Tribunal ignored this important information and failed to consider significant changes from when he left Yong An to when he returned. This appears to be a consolidation and extrapolation of the information in his statutory declaration. However if the Tribunal forms the view that the material to which the applicant referred has no weight or significance to its decision, there is no obligation to refer to it.
The third ground raised by the applicant in his submission is that the Tribunal failed to comply with its obligations under s.424A(1) of the Act. The particulars state that the Tribunal had regard to “the lack of evidence of the existence of the group or the inconsistent evidence as to whose idea that mission was” as a part of the reason for its findings. The applicant then set out s.424A and the Tribunal’s obligation to provide him with certain information. He claims that this was not done and the Tribunal failed to comply with its obligations under s.424A. The applicant misunderstands the operation of this section as the Tribunal had indicated that its decision was influenced by an absence of material. The Tribunal is under no obligation to provide him with the gaps or lack of information to support a proposition: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.
Conclusion
The applicant appeared at the Court hearing as a self-represented litigant with the assistance of a Mandarin interpreter. He had participated in the Court’s legal advice scheme and filed an amended application and written submissions. The applicant did not have a clear understanding of the issues before the Court or the contents of the various documents he had filed in these proceedings. It is apparent that an unidentified third party prepared the written submissions and the notes from which the applicant made oral submissions during the hearing. These bore little relation to the grounds of review pleaded in the application or amended application. Ms Johnson assisted the Court with written submissions in response to the application. I am satisfied that all the issues identified in the amended application and raised in his submissions do not identify any jurisdictional error in the Tribunal’s decision-making process. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 26 October 2007
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