SZJRY v Minister for Immigration
[2008] FMCA 36
•22 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 36 |
| MIGRATION – Review of 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 “SZJRY”. |
| Migration Act 1958 (Cth), ss.91X, 91R, 424A |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Refugee Review Tribunal Re; ex parte H (2001) 75 ALJR 982 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 |
| Applicant: | SZJRY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3368 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for Respondents: | Sparke Helmore |
ORDERS
The application filed on 16 November 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 |
SYG 3368 of 2006
| SZJRY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a citizen of the People’s Republic of China and was born in 1965 in Hebei. He states that he studied between 1974 and 1980 at the Ben Chun Primary School and between 1980 and 1985 at Nan Meng Middle School. The applicant claims that prior to his arrival in Australia, he was employed as a worker.
The applicant was married in 1986 to a woman who worked and lived in Beijing. He alleges that his wife joined Falun Gong in 1997 and he later learnt the practice from her. The applicant claims that in 2003 and upon his return to Hebei, police searched and detained him in a police station for four days where he was physically tormented.
Before travelling to Australia, his wife was sentenced to a year’s imprisonment. The applicant claims that his wife advised him to leave China.
The applicant arrived in Australia on 24 March 2006 and applied for
a Protection (Class XA) visa on 13 April 2006. A delegate of the first respondent refused to grant the visa on 15 May 2006 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision (reference number 060663470).
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 in this Court on 6 February 2007 contains one ground of review:
1. The Tribunal failed to carry out its statutory duty.
This ground is supported by five particulars.
Consideration
The applicant is self-represented and appeared in Court with an interpreter. At the first Court date, he indicated that he wished to participate in the Court sponsored independent legal advice scheme and was allocated a panel adviser. A letter on the Court file indicates that the adviser contacted the applicant by phone on 15 January 2007 and organised a conference on 24 January 2007. The applicant did not attend the scheduled conference. The adviser tried to contact the applicant on 29 January 2007 on the same telephone number to reschedule the conference. He was informed by that the number did not belong to the applicant. In the circumstances, the adviser was not in a position to advise the applicant in accordance with the scheme.
At the first Court date, the applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 6 February 2007. The applicant filed an amended application in a form commonly seen in this Court. It consists of a single ground of review claiming that the Tribunal failed to carry out a statutory duty supported by five particulars also in the form commonly seen filed by other applicants from the People’s Republic of China. These are no more than general statements in respect of judicial review in administrative decisions and bear little relevance to the applicant’s situation or Tribunal decision.
The Tribunal wrote to the applicant on 29 August 2006 stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. Accordingly, he was invited to a hearing on 26 September 2006 to give oral evidence and present arguments in support of his claim. That invitation was extended to any witnesses the applicant wished to give oral evidence. The applicant responded to the invitation and attended the scheduled hearing. At the hearing, the Tribunal member said that he did not accept that the applicant was a genuine Falun Gong practitioner either in China or Australia because of his limited knowledge of the practice. Similarly, the Tribunal also rejected the applicant’s claim to be a local leader of Falun Gong.
Given these findings, the Tribunal expressed scepticism about the applicant’s claim to have been detained in 2003 for the following reasons:
·The applicant’s passport was issued to him in 2004, the year following the incident, and two years prior to his departure.
·No further consequences arose from the alleged incident, such as a requirement to report to police.
·Nothing adverse occurred between 2003 and the applicant’s departure in 2006.
The Tribunal was prepared to accept that the applicant’s wife was in detention, as claimed, but made no finding to that effect. Nevertheless, it noted that the applicant did not claim that any other member of his family had been adversely affected by his wife’s detention. The Tribunal did not accept that there was a real chance of the applicant suffering serious harm for reason of his wife’s practice of Falun Gong or his relationship to her. Consequently, the Tribunal did not accept that the applicant had a real chance of persecution for a Convention reason and affirmed the delegate’s decision under review.
The applicant confirmed that he had not prepared any written submissions in support of his application but indicated that the Tribunal had breached its obligations under s.91R and s.424A of the Migration Act 1958 (Cth) (“the Act”) and was biased. The only issue raised in the applicant’s pleadings was a reference to s.424A. The claim of breach of s.91R and that the Tribunal member displayed bias in its decision-making process was in the applicant’s oral submissions. The applicant did not wish to elaborate on either of the new claims of the s.424A claim.
Section 91R of the Act states:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The details of alleged persecution are set out in the statement in Form C of his Protection (Class XA) visa application. In that brief statement he says:
In 2003, when I was returning to Hebei from Beijing, I was caught by police at a train, they found some promotional booklets in my bag; they took me to police at the next stop. I was detained there for four days, without proper food and clothing. They physically tormented me in order to get more information about Falun Gong in Beijing and in my home town. (CB 19)
There was no further elaboration of this claim during the applicant’s oral evidence during the Tribunal hearing. This can only be assessed from the contents of the Tribunal decision as there has been no transcript or hearing tapes tendered as evidence in this matter.
The only threat to the applicant’s liberty disclosed in this material is that he was detained by police for four days for possession of Falun Gong literature. This was alleged to have occurred in 2003. However there is no claim that since that date the applicant was arrested, harassed in any way threatened or suffered economic hardship for that reason. He appears to have remained in China for a further three years but was not subject to further investigation by the authorities. The Tribunal decision addresses the applicant’s claim in respect of his detention in 2003 and his possession of Falun Gong literature.
After considering this and the applicant’s own evidence that no other family member other than his wife had been subject to enquiry or detention, the Tribunal concluded:
For all the above reasons, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution in China for reason of his membership of a particular social group or his political opinion or any other convention reason. (CB 60)
The other issue raised by the applicant in his oral submissions was the claim that the Tribunal member was biased. This claim is made in the total absence of any evidence or submission as to the form of this alleged bias or any evidence to support the claim. The party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531. The existence of actual bias may be inferred from actual facts and circumstances but caution should be exercised in the absence of evidence of partisanship or hostility before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27].
If the applicant is inferring apprehended bias, that would require a fair-minded lay observer who is properly informed of the nature of the proceedings and the issues at hand to form the view 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]. On the material before the Court, I am not satisfied that a claim of actual or apprehended bias can be sustained and this claim should be dismissed.
The sole ground of review contained in the amended application asserts a failure of the Tribunal to carry out its statutory duty under s.424A of the Act. The particulars of that ground do not refer to any aspect of the Tribunal decision nor identify where the alleged breach occurred. The basis of the Tribunal’s rejection of the applicant’s claims was his lack of knowledge and familiarity of key aspects of Falun Gong. These matters were raised with the applicant during the Tribunal hearing.
The other issue raised during the hearing was the applicant’s wife’s involvement in Falun Gong and its impact on the applicant and any other family member. The decision record clearly indicates that these two issues were discussed at the hearing and were the focus of discussion. No other issues arose or are referred to in the decision. In the circumstances, there is nothing to activate any aspect of s.424A of the Act and this ground of review cannot be sustained.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. It is clear that the applicant had no understanding of the issues before the Court or any obligation he may have in the presentation of his application. He relies entirely on an amended application prepared by a third party which bears no relationship to the Tribunal decision he challenges. The applicant was given an opportunity to participate in the Court sponsored advice scheme but failed to attend the scheduled conference. Despite attempts by the panel adviser to contact the applicant and arrange a rescheduled conference, no contact was made. The applicant did file an amended application the contents of which were of no assistance him.
Mr Bevan, appearing for the first respondent, assisted the Court with written submissions in response to the amended application. I am satisfied that all the issues in the amended application have been satisfactorily addressed in those written submissions. It is not apparent that any other ground of review exists which would suggest the Tribunal made a jurisdictional error in its decision making process. The application should be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 January 2008
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