SZJPF v Minister for Immigration
[2006] FMCA 1932
•18 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1932 |
| 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 to be a Falun Gong organiser – where the applicant did not attend the RRT hearing – allegation of bias – whether Tribunal failed to comply with Migration Act 1958 (Cth) s 424A – irrationality and illogicality – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 91R, 424A, 426A, 474 |
| Attorney General New South Wales v Quinn (1990) 170 CLR 1 M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 S20 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 198 ALR 59 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 SZBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 SZECI v Minister for Immigration [2005] FCA 1201 SZEER v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 SZJIM v Minister for Immigration & Anor [2006] FMCA 1813 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2006) ALR 471 |
| Applicant: | SZJPF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3165 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 December 2006 |
| Date of Last Submission: | 18 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Migration Review Tribunal is removed as a party from the proceedings.
That the Refugee Review Tribunal be joined as Second Respondent to the proceedings.
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3165 of 2006
| SZJPF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 22nd August 2006 and handed down on
21st September. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant seeks orders that the Tribunal's decision be set aside and his case be reheard by a different member of the Tribunal.
In his application that was filed on 30th October 2006 the applicant claims that:
1)The Tribunal was biased against him and did not consider his application according to s.91R of the Migration Act.
2)The Tribunal failed to comply with the provisions of s.424A of the Migration Act.
3)The Tribunal's satisfaction that he was not a refugee was not based upon a rational or logical foundation.
The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 18th February and applied for a protection (class XA) visa on 10th March 2006. A delegate of the Minister refused his application on 19th April 2006 so the applicant sought review of that decision by the Refugee Review Tribunal.
The applicant lodged an application for review at the Sydney registry of the Tribunal on 22nd May 2006. The Tribunal wrote to the applicant on 31st May inviting him to attend a hearing on 18th July. The applicant replied to the invitation on 8th June 2006 indicating that he wished to attend a hearing and would require an interpreter in the Mandarin language.
On 14th July 2006 the applicant wrote to the Tribunal and advised that due to sickness he could not attend the hearing on 18th July.
The Tribunal applied to the applicant that same day advising him that it had rescheduled the hearing to 24th July 2006. The applicant did not attend the hearing on 24th July.
The Tribunal wrote to the applicant that same day advising him that it had rescheduled the hearing again this time to 21st August 2006.
The applicant did not reply to the invitation to the hearing nor did he attend. Accordingly, the Tribunal exercised its power under s.426A of the Migration Act to make the decision on the review without taking any further action to allow the applicant to appear. A copy of the Tribunal's decision record appears at pages 76-82 of the Court book.
The Tribunal considered the applicant's claim that he was introduced to Falun Gung in 1996 and that he was very active in recruiting new members. After 1999 his activities went underground. The applicant claimed to have been arrested and detained by the police in 2001 but later released.
The applicant claimed to have been arrested again in October 2005 but was apparently released. He claimed to have been given a large sum of money from Falun Gung to come to Australia for protection.[1]
[1] Court Book at 79
The Tribunal's findings and reasons are set out on pages 79 and 80 of the Court book. The Tribunal noted that the applicant did not appear at the hearing and was satisfied that he had been given proper notice.
The Tribunal accepted the evidence that the applicant was a national of the People’s Republic of China. He had produced his passport. However, on the applicant's claim for a protection visa the Tribunal noted:
In this matter the material put forward by the applicant is very scant and lacks detail. While claiming he was a Falun Gung practitioner in China and that he came to the attention of the authorities in China because of his Falun Gung activities, he has not given any details of those activities such as when the meetings occurred nor offered any evidence of the claimed involvement other than his own assertion in a brief written statement.
The little detail and generalised description of contact and involvement given does not satisfy the Tribunal that the claims made are in fact truthful. The evidence as to the applicant's involvement and interest does not satisfy the Tribunal that there is a real chance of him suffering such harm in the foreseeable future.[2].
[2] Court Book at 80
The Tribunal was not satisfied that the applicant was owed protection obligations by Australia and so did not meet the criterion for the grant of a visa under sub-s.36(2) of the Migration Act. The Tribunal found that the applicant must therefore be refused the grant of the visa sought under s.65 of the Migration Act and affirmed the delegate's decision to this effect.
The applicant commenced proceedings for review by means of an application and affidavit in support filed on 30th October 2006.
The applicant filed an amended application on 30th November 2006.
In each of his applications he has nominated both the Refugee Review Tribunal and the Migration Review Tribunal as second respondents. As the Migration Review Tribunal has no connection with this case I will order that the Migration Review Tribunal be removed as a party and the title of the second respondent be the Refugee Review Tribunal.
The amended application sets out three “pro forma” grounds.
1)The Tribunal failed to carry out its statutory duty, the particulars of which are a breach of s.424A of the Migration Act.
2)“The Tribunal had bias against me and failed to consider the claims of my application according to s.91R of the Migration Act 1958.”
3)“The Tribunal's satisfaction that I am not a refugee was not based upon rational or logical foundation for this belief.”
It can be seen that the grounds in the amended application are essentially similar to the grounds in the applicant's original application although they are now in a different order. The orders that the applicant now seeks are that the Tribunal's decision be set aside and his case be considered by the Refugee Review Tribunal.
The applicant has not filed any written outline of submissions and did not wish to add anything to the material in his amended application. The first respondent Minister through her solicitors has filed a written outline of submissions. In those submissions it is put by Ms Pownall for the Minister that it is clear that the Tribunal's decision was entirely in terms of lack of satisfaction and it was the absence of information of any specificity or persuasive character that was the reason for its decision (see SZECI v Minister for Immigration [2005] FCA 1201 at [24] per Alsop J).
The lack of information does not amount to "information" for the purposes of s.424A(1), (see SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 per Bennett J at [33], and VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2006) ALR 471).
The Tribunal's conclusions, it is submitted, are plainly thought processes rather than information within sub-s.424A(1), (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 150 FCR 214 at [206]).
As to the evidence of bias, it is submitted on behalf of the Minister that there was no evidence that the Tribunal approached the matter with a closed mind so that he was unable or unwilling to find other than it did, regardless of what further evidence maybe presented. I am referred to the decision in SZBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 where Weinberg, Stone and Jacobsen JJ discussed the question of bias at [15]. Their Honours said:
The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards is appropriate. Even were the Tribunal to disbelieve every element of the appellant's claim and it did not, it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker has prejudged the matter and that he or she has a mind closed to any argument in support of a contrary conclusion, Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at [134]. Such allegations must not be lightly made, see Attorney General New South Wales v Quinn (1990) 170 CLR 1 at [36] per Brennan J. They must also be firmly and distinctively made and clearly proven, see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [530] per Gleeson CJ and Gummow J.
As to illogicality, it is submitted on behalf of the Minister that there are a series of Full Court decisions indicating illogicality which is not in any event established in this case will not of itself amount to jurisdictional error, (see NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [24]-[30]).
It is further submitted that this ground ultimately does no more than seek merits review.
As to the applicant's assertion of a failure to consider the application under s.91R of the Act, this assertion that there is jurisdictional error is not particularised and the Minister submits that it does not identify any error let alone a jurisdictional error. Accordingly, it is submitted on behalf of the Minister that there is no jurisdictional error and the application should be dismissed.
The first ground in the amended application 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 and the reference to the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 where the Minister is described as:
Minister for Immigration & Multicultural & Industrial and Ethnic Affairs.
The date of handing down the decision is described curiously enough as 18th May 2001. The quotations from the decisions of McHugh and Hayne JJ appear regularly as do the misused apostrophes in subparagraphs (d) and (e) of ground one.
The ground 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 due to the inadequacy of the information provided by the applicant. At page 80 of the Court book the Tribunal said:
The little detail and generalised description of contact and involvement given does not satisfy the Tribunal that the claims made are in fact truthful.
The Tribunal also said that the material put forward by the applicant was very scant and lacks details. It was the lack of information provided that formed the basis for the Tribunal's decision to affirm the decision of the delegate.
As to the second ground, that the Tribunal had bias against the applicant and failed to consider the application according to s.91R of the Act, there is no evidence of bias. It is, as has been put to me by the solicitor for the Minister, a serious allegation. It should be firmly and distinctly made and clearly proved. Quite correctly, I was referred to the decision in Minister for Immigration & Multicultural Affairs & Jia Legeng (2001) 205 CLR 507 at [530].
The Full Court of the Federal Court has looked at allegations of bias and bad faith, not only in SBBA to which I have previously referred but also in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361. In particular, at [43]-[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.
The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme and this is especially so where that the applicant relies upon is the written reasons for decision which are under review.
In this case, there is a bald assertion made by the applicant that the Tribunal was biased against him but he has provided no evidence and there is no bias that appears in the decision.
As to the second part of the claim, that the Tribunal failed to consider the application for a protection visa according to s.91R of the Migration Act, it appears to me that the Tribunal correctly set out the relevant law in its reasons for decision. It considered the definition of refugee and considered the question of persecution and considered the four key elements of the convention definition and set these out at pages 77-79 of the Court book. In my view the claim that the Tribunal did not consider the claims in the applicant's application according to s.91R of the Migration Act is not made out.
The third ground says:
The Tribunal's satisfaction that I am not a refugee was not based upon rational or 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 correctly, in my view, that illogicality has not been established in this case. In any event, as I have previously held in SZJIM v Minister for Immigration & Anor [2006] FMCA 1813 at [29] the question of a rationality or 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 & Multicultural & Indigenous Affairs [2004] FCAFC 52. See also M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42.
In NACB v Minister for Immigration & Multicultural & Indigenous Affairs (supra) to which I was previously referred, the Full Court of the Federal Court held that there was nothing in the remarks of the High Court in S20 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 198 ALR 59 that would warrant a departure from the early line of decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdictional error.
Even more recently, Tamberlin J has held in SZEER v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14]:
The law is settled at the appellant level in this Court that the want of logic does not of itself suffice to constitute an error of law.
In my view, the settled law that rationality and logicality or either of those will not constitute of review and no jurisdictional error is shown. It must follow therefore that the third ground of review will not succeed.
The applicant has not shown any jurisdictional error. All of the grounds fail. I am mindful of the fact that the applicant is not legally represented. I have considered the Tribunal's decision and the material in the Court book independently of either the applicant’s claim or the submissions on behalf of the respondent Minister. I am not able to discern any arguable case of a jurisdictional error. 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.
There is one other point that should be made, in that the amended application seeks an order that the Court should remit the application for review to the Refugee Review Tribunal. This is not an order that I intend to make because the decision is a privative clause decision and is not subject to orders in the nature of mandamus, certiorari or prohibition or injunction. The application will be dismissed.
There is an application for costs on behalf of the first respondent.
To my mind this is a matter where costs should follow the event.
The amount of costs which is sought is $3,800.00 which is an appropriate figure. I propose to make an order for costs in favour of the respondent Minister.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 December 2006
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