SZJNV v Minister for Immigration

[2007] FMCA 247

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 247

MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – citizen of People's Republic of China – claiming fear of persecution on the ground of the religion – allegation of bias.

Migration Act 1958 (Cth), ss.424A, 474

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
NADH/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
SBVC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 76
Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1

Applicant: SZJNV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3028 of 2006

Judgment of: Scarlett FM

Hearing date: 21 February 2007

Date of last submission: 21 February 2007

Delivered at: Sydney

Delivered on: 21 February 2007

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Ms Clegg

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

2. The Application is dismissed.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3028 of 2006

SZJNV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 31 August 2006 and was handed down on 14 September 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. 

Background

1. The background to this matter is that the Applicant is a citizen of the People's Republic of China.  She arrived in Australia on 19 December 2005 and she applied for a protection visa on 31 January 2006. A delegate of the Minister refused the application on 21 April 2006.  The Applicant then applied to the Refugee Review Tribunal on 23 May 2006 for a review of the delegate's decision.

2. The Applicant was represented at that stage by a migration agent and the application gave the name and address of the migration agent in the appropriate section. The Applicant did not provide any other documentation to the Tribunal since the time of the application.  The Applicant attended a hearing of the Tribunal on 17 August 2006.  She gave evidence with the assistance of an interpreter in the Mandarin language. Her claim for refugee status relates to her religious belief.  She claims to have become a Christian in the year 2004 and her religious belief was discovered in June 2005 when the police found a Bible in her handbag.  She claims to have been detained for a week and claims that if she returns to China she will be subject to persecution.

3. The Tribunal heard evidence by the Applicant at the hearing and asked her a number of questions. The Tribunal also had recourse to some independent country evidence relating to religious practice in China.  A copy of the Tribunal decision can be found at pages 74 through to 85 of the Court Book.  At pages 81 and 82 there appears a reference to some items of independent country information. Findings and reasons appear at pages 82 to 85.

The Tribunal’s findings and reasons

1. On the basis of the Applicant's passport, the Tribunal found that the Applicant was a citizen of the People's Republic of China and assessed her claims against that country. The Tribunal did not find the Applicant to be a credible witness at the hearing. 

2. The Tribunal expressed difficulty at obtaining any clear idea about the Applicant's religious activities and religious beliefs. The Tribunal found a number of parts of the Applicant's claim to be implausible and found that the Applicant gave no consistent story about her actions after she left detention.  The Tribunal was also critical of the Applicant's account of her religious observance since being in Australia, saying that it was deeply confused.

3. The Tribunal made this significant finding which appears in the final paragraph of page 83 of the Court Book:

   The Tribunal is not satisfied that the applicant has sought out religion in Australia - a country in which she is free to worship as she wishes - in the way that would be appropriate to someone who was afraid to worship in her country and who fled that country in order to find religious freedom. 

4. The Tribunal referred to independent evidence about religious practice in China which the Tribunal said rendered implausible the Applicant's claim that she had been persecuted and that she feared further persecution if she returned to China. The Tribunal went on to make this comment which appears on page 84:

   The Tribunal notes that the applicant has the option of attending a state-sanctioned church in Fujian without any adverse consequences.  As the Tribunal has not formed the view that the applicant has any deep theological convictions that would impel her to reject the state- sanctioned church, this seems a reasonable solution.

5. The Tribunal was not satisfied on the evidence that the Applicant had ever suffered harm amounting to persecution for reason of her religion or for any other Convention reason. The Tribunal found that the chance of such harm would befall her in the reasonably foreseeable future to be remote and was not satisfied that the Applicant had a well‑founded fear of persecution for a Convention reason.

The application for judicial review

1. The applicant commenced proceedings for judicial review by filing an application on 18^th October 2006. In that application the Applicant seeks a declaration that the Tribunal decision was invalid and contrary to law, seeks an order that the Tribunal decision be quashed and that the application be remitted to a differently constituted Tribunal to be determined in accordance with the law.  In the application the Applicant provides three grounds: 

   a)that the Tribunal failed to comply with its obligations under s.424A(1) of the Act.

   b)that the Tribunal failed to comply with its obligations under s.425 of the Migration Act and,

   c)that the Tribunal failed to consider her claims properly and fairly.

2. In an outline of submissions filed on 6 December 2006, the Applicant claims that the presiding member of the Tribunal has made a decision of bias and failed to comply with the obligations arising under s.424A(1) of the Migration Act. As to the bias claim, the Applicant submits that the Tribunal Member failed to consider independent country information properly and fairly. The Applicant submitted that it was unfair if a Tribunal Member looked at independent country information with the Member's own bias and was considering independent country information purely for the purpose of finding a reason to refuse the application.

3. In an oral submission, the Applicant reiterated a claim that the Tribunal had been selective in its use of country information.  Particulars (c) and (d) of that claim are essentially the same claim and I quote them in full:

   (c)  I am, especially, surprised at which the Presiding Member who should be a person educated by Western democratic ideologies, even said that “…the applicant has the option of attending a State sanctioned church in Fujian…”  In other words, what the Presiding Member has suggested to me is to have my religious practice under the Communist dictatorship - It is exact the same words as the Communist! 

   (d)  It is obviously unfair that the Tribunal arranged a Member with Communist background to assess my application.

4. As to the claim that the Tribunal failed to comply with s.424A of the Migration Act, the Applicant in her written submission says this:

   (a)     The Presiding Member has not given me the information used as a reason or part of reasons in making his findings; and the “information” that I have meant does not include independent country information but the information used in pages 82 to 84 of the Court Book.

   (b)     The Presiding Member failed to ensure, as far as is reasonably practicable, that I understood why it is relevant to the review, and

   (c) Invite me to comment on them.

5. In oral submissions the Applicant told the Court that the Tribunal did not give her any chance to give her opinion on material that the Tribunal used to firm the delegate's decision.  She submitted that that was a severe procedural error. In oral submissions the Applicant also raised matters which appear to be of a compassionate nature rather than going to jurisdictional error. She told the Court that she had no relatives, no friends and no money.  She said that she needed help because she was a weak woman and because she was illiterate. As those claims were read from a sheet of paper, I found it difficult to accept that the Applicant is in fact illiterate. 

6. In any event, compassionate matters are not unfortunately matters that the Court can take into account on judicial review.  During the hearing I questioned the Applicant about her claim that the Tribunal Member had a communist background. I asked the Applicant if she was suggesting that the Tribunal Member was a communist and it was difficult to obtain a clear answer.  I would comment at this stage that there is no evidence that appears anywhere in the Tribunal decision that would indicate that the Tribunal Member is or has ever been a communist, and if that is the Applicant's claim then it is rejected.

7. In written submissions counsel for the First Respondent submitted that the Applicant had not presented any evidentiary basis for demonstrating bias of any kind and submitted that it appeared that the Applicant was really complaining about the outcome and the factual findings which were made that were adverse to her. Counsel for the First Respondent also submitted that the complaint that there was a breach of s.424A of the Migration Act by the Tribunal was without merit. She submitted that the Tribunal based its decision on information given to it by the Applicant for the purposes of the application, and also upon independent country information.

8. Counsel for the Respondent also raised, but for the purposes of distinguishing a submission that the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 had bearing on this matter. I will return to that matter shortly.

9. First of all it is well-established that an allegation of bias is a serious matter and it involves personal fault on the part of the decision-maker.  This issue has been looked at by the Full Court of the Federal Court of Australia in SVBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA FC 361. At paragraphs [43] and [44] of that decision their Honours said that the allegation of bad faith, or bias, 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 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 the decision under review.

10. A rejection of the Applicant's claims cannot, of itself, amount to bias.  I refer to NADH/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at paragraph [14]. In my view there is no evidence of bias and no evidence of a selective use of country information in order to discredit the Applicant's claim. As I have previously indicated, the allegation that the Tribunal Member was in some way a communist or perhaps a communist sympathiser is entirely without foundation.

11. The claim that the Tribunal has not complied with the provisions of sub-s.424A(1) of the Migration Act can be dealt with quite shortly. As was submitted by Ms Clegg of counsel for the First Respondent, the Tribunal decision was based largely on the Applicant's own evidence to the Tribunal and on several pieces of independent country information. That information fell within the exceptions provided in sub-s.424A(3) paragraphs (a) and (b) respectively. The Applicant's claim that the Tribunal did not give her any chance to give her opinion has not been made out. The Applicant gave evidence to the Tribunal and the issues relating to her religious belief were discussed at the hearing.

12. As the Tribunal's findings were largely based on the Tribunal's assessment of the Applicant's own evidence, it is clear that the Applicant did have an opportunity to give her opinion on matters. There is no breach of s.424A of the Migration Act. The Applicant was invited to attend the hearing of the Tribunal and she did attend and give evidence. She had the assistance of an interpreter in the Mandarin language. It appears to me that the issues relating to her claim were examined in detail and were considered by the Tribunal. Unfortunately for the Applicant, the Tribunal considered the material but did not decide in her favour. There is no breach of the hearing requirement set out in s.425 of the Migration Act.

13. Counsel for the Minister raised the point that appears in ground one of the Applicant's submissions about the Tribunal's reasoning on page 84 of the Court Book. She submitted that the Tribunal reasoned that the Applicant would have the option of attending a State sanctioned church because she did not have any deep theological convictions. Whilst such reasoning could not amount to bias, it does raise the question as to whether an issue arises similar to that which arose in Appellant S395/2002. Here, counsel for the First Respondent submitted that the case before me can be distinguished from the case in Appellant S395/2002.  In my view that submission is correct.

14. The reasons for distinguishing this case from Appellant S395/2002 are as follows:  First, the Tribunal made a factual finding that the Applicant has no deep theological convictions. There is no discernable error in connection with this finding. There is no equivalent finding in Appellant S395/2002 and so it follows that the view based upon independent country information that a person without a deep faith can worship at the patriotic church in China was open to the Tribunal in the circumstances of this case.  Second, in Appellant S395/2002the Tribunal's reasoning had the effect that it imposed a condition or requirement on the applicants if they were returned to their home country.  That is not the case in the matter before me.

15. The Tribunal's reasoning is not expressed as a requirement in this case but as an observation about what the Applicant might elect to do if she were to return to China.  The Tribunal is not imposing a requirement that the Applicant should modify her behaviour.  As counsel for the Respondent submitted, this case is essentially on all fours with the decision in SBVC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 76 per Finn J. In that case the Court held that the Tribunal essentially concluded that in the manner in which she actually practised her religion she would not put herself at risk of persecution from the Chinese authorities. See at paragraph [6].

16. I have had the benefit of reading the decision in SBVC and I am satisfied that the decision in that case is one which is applicable to the case before me and it is one which I should follow.  Counsel for the First Respondent has also drawn my attention to the fact that the High Court has confirmed the necessity to focus on the individual claim as opposed to the class of persons which is being considered.  See Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] and [158].

17. In this case the Tribunal did focus on the specifics of the Applicant's claim and did not consider her part of another group or class of persons which it did not explore.  In my view, those submissions are correct in law and I am satisfied that there is no jurisdictional error in connection with the Tribunal's reasoning. I am mindful of the fact that the Applicant is not legally represented. On my reading of the decision and supporting documents independent of the parties’ submissions, I am unable to discern any jurisdictional error.

18. As there is no jurisdictional error, the Tribunal decision is a privative clause decision under s.474 of the Migration Act and attracts the protection given by that section. It follows that the application will be dismissed.

19. The Applicant has been wholly unsuccessful in her claim and there is no reason why I should not make an order for costs in favour of the Minister.  The amount of $4,800.00 which the Minister seeks is within the scale provided by the Federal Magistrate Court Rules and I consider it an appropriate figure.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  2 March 2007