SZJVR v Minister for Immigration
[2007] FMCA 1715
•25 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1715 |
| MIGRATION – Review of Refugee Review Tribunal – Refusal of a Protection (Class XA) visa – non judicial error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | SZJVR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3691 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2007 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The applicant filed on 11 December 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 |
SYG3691 of 2006
| SZJVR |
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 “SZJVR”.
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 11 December 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 26 October 2006, and notified to the applicant on 9 November 2006. The Tribunal decision affirmed a decision of a delegate of the first respondent made on 6 April 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
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 Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 24 January 2007. I have marked it Exhibit "A" and it was read into evidence.
Background
The Tribunal decision of I O'Connell, reference 060685588, provides the following background information at CB 107:
The applicant, who claims to be a citizen of China (PRC), arrived in Australia on 18 February 2004 and applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa on 18 March 2004. The delegate's decision to refuse to grant the visa on 4 April 2004 and notified the applicant of the decision and his review rights.
The applicant sought review of the delegate's decision and the Tribunal, differently constituted, affirmed the delegate's decision 20 September 2004. The applicant sought review of the Tribunal's decision by the Federal Magistrates Court and on 27 July 2006 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. The matter is now before the Tribunal pursuant to the orders f the Federal Magistrates Court.
The applicant claims he fears persecution on the ground of political opinion. He claims that he actively participated in a political movement against the Chinese authorities and was targeted by the Public Security Bureau (PSB). He states that while selling cars in Kaifeng City, he became aware that corrupt government officials were buying high quality cars for themselves, close relatives and friends: CB 109.
In August 2003, an internal investigation group from the Kaifeng City disciplinary committee came to the company where the applicant worked to collect information on the illegal car purchases. His superior instructed him to say nothing which the applicant refused to do. This resulted in his termination. He then attempted to contact the investigation group in order to expose the corrupt officials but was denied access. He claims that he became a key member of a dissident group and distributed propaganda material identifying the corrupt government officials: CB 109.
The applicant claims that he assisted in planning a major protest on 20 January 2004, two days before the Chinese New Year. When the protestors arrived at the venue, they found that it was surrounded by the police. On 6 February 2004, the PSB arrested three members of his group. A group leader, Mr Wang, urged the applicant to leave China as soon as possible to avoid arrest. Mr Wang was soon arrested and the applicant left China on 17 February 2004. He claims that the day after his departure, the PSB went to his house with an arrest warrant and that 11 other group members had already been arrested.
A convenient summary of the Tribunal decision is contained in the written submissions prepared by Mr Potts for the first respondent. I rely on paragraphs 7 to 11 of those submissions:
7. The Tribunal did not accept that the applicant was involved, or was a leader of, a particular unnamed organisation. The Tribunal did not accept that claim because the Tribunal found that the applicant's oral evidence about the nature of the group and his involvement in it to be unconvincing. The Tribunal found the applicant was equivocal and non specific when pressed at the hearing to provide details about the group, for example, he was vague and non specific when asked about the details such as the slogans of the group, the nature of their petition, and the manner by which he would organise persons in participate in the demonstrations (CB 116.4).
8. The Tribunal did not accept that leaders and members of the group were arrested, and that they divulged information about the group and its members to the police, such at the applicant was now wanted by police and faced arrest upon his return. The Tribunal did not accept that claim because it did not accept that such a group existed (CB 116.6).
9. The Tribunal also considered there to be incongruity in the applicant's claim, in that, on one hand, he claimed to have been committed to cause of improvement lot of retrenched workers, that he formed part of an organisation that organised over a dozen protests within a four month period, and on the other hand, at the very same time, he had applied for and obtained a visa to Australia, but only as a precautionary measure should he need to flee (CB 116.8).
10. On the basis of country information, the Tribunal found it implausible that the applicant participated in some protests and demonstrations, but noted that on the applicant's own account he did not encounter any difficulties with the authorities while participating in the demonstrations over and above being dispersed by police (CB 116.10 - 117.1).
11. The Tribunal did not accept that the applicant's attendance at, or involvement in, some demonstrations gave rise to a real chance he would be arrested on his return to China. He did not accept that the applicant's attendance at some demonstrations would have been noted by the authorities albeit such interest to them that they would seek to arrest him on his return to China (CB 117.2).
Application for review of the Tribunal decision
On 11 December 2006, the applicant filed an application for 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’s free legal advice scheme. He was subsequently allocated a panel adviser and attended a conference with that adviser in February 2007. The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 7 May 2007. The applicant failed to avail himself of this opportunity and nothing was filed.
The original application contains the following grounds:
There was an error of law in the Tribunal's decision constituting a jurisdictional error;
There was procedural error in the Tribunal's decision constituting an absence of natural justice.
Particulars:
1. Firstly, I have to say the Tribunal made an unfair decision with bias; and particularly, it is apparently incorrect that I "…was equivocal and not-specific when pressed at the hearing to provide details about the group…”; and it is also not true that I "…was vague and no-specific when asked about the details such as the slogans of the group” its impression that "…the Applicant evaded questions, stumbled hesitant, vague, and/or irrelevant answers…”.
2. As a matter of fact, the Tribunal has completely ignored the important issues raising from the UNHCR Handbook as follows: - [paragraphs 190, 196, 198, and 199 of the Handbook not reproduced]
3. I have no right to require the Tribunal being bounded by UNHCR Handbook, but I believe, at least, a qualified Tribunal member should understand that I am normally in a particularly vulnerable position; and I have been put in an alien environment; and I have experienced serious difficulties, technical and physiological, in submitted my case in a language not my own. Because of my sufferings in the past, I must be afraid to speak freely while I had to face an officer from an alien government.
4. Particularly, I indeed tried to demonstrate my claims and provided a unique claim from beginning to the end. Therefore, unless there are good reasons to the contrary, I should be given the benefit of the doubt.
5. Also, it was much necessary for the Tribunal to clarify any apparent inconsistencies and to resolve any contradictions in a further hearing; or at least, the Tribunal should give me a chance to provide some explanation for any misrepresentation or concealment of material facts. Unfortunately, the Tribunal failed to do so.
6. Secondly, the Tribunal failed to comply with its obligation under s.424A(1) of the Act. In this case, the Tribunal’s decision has mainly relied on the issues or concerns arising from the Tribunal's hearing. However, from the beginning to the end, the Tribunal:
- failed to make me well understand particulars of those issues or concerns;
- failed to ensure that I understood why those issues or concerns are relevant to the review; and
- failed to invite me to comment on it.
7. Thirdly, the Tribunal failed to comply with its obligation under s.425(1) of the Act. As a matter of fact, during the Tribunal’s hearing, I was, strictly, restricted by the Tribunal while I intended to give my oral evidence during the hearing; and I was also troubled by the interpreter who was unable to interpret my answers and the Tribunal's questions, properly, accurately, and clearly;
8. Particularly, the Tribunal refused to make me clearly understand its genuine concerns or actual issues that it would use as the main reasons in its decision during the Tribunal’s hearing, so that I was, definitely, unable to present my arguments against those concerns or issues.
9. Finally, I have to emphasise that I, based on my claim both to the Department and the Tribunal, do indeed have a real chance of being persecuted on my return for the Conventional reasons, and my fear is well-founded; and thus I am a person to whom Australian government has protection obligations.
Submissions and reasons
In accordance with an order made at the directions hearing, the applicant filed written submissions in support of his application. The submissions do not appear to refer to the grounds pleaded in the original application and, in some respects, have the appearance of an amended application. The submissions address three issues, the first being that the Tribunal failed to consider the applicant's important evidence before it properly and fairly.
The submissions include four particulars in support of this issue:
(a) According to the Tribunal decision, it has stated that (CB 116 to 117):
on the basis of this country information the Tribunal finds it plausible that the applicant participated in some protest and demonstrations in regards to, for example, the circumstances of retrenched workers. The Tribunal noted that the applicant did not on his own evidence encounter difficulties with the authorities while participating in demonstrations over and above being dispensed by police.
(b) However, the Tribunal has completely ignored and failed to consider my important evidence as follows (CB 27):
I originally not want to give up, because I took four months to plan our protest, and everything was almost ready. However, when Mr Tian, information me that Mr Wang, had been arrested in Heilongjiang Province on 15 February 2004, I had to leave the country on 17 February 2004.
I was lucky, because the BSP came to my home with arrest warrants on 18 February 2004; and Mr Wang as well as other members were arrested during the following days;
(c) It is apparent that my precious evidence that I was not in trouble owing to my protest while I was in China does not mean that I will not be subjected to persecution on my return to China today if the Tribunal carefully considers my later evidence that…I had to leave the country on 17 February 2004 … I was lucky, because the BSP came to my home with arrest warrants on 18 February 2004; and Mr Zhang as well as other members were arrested during the following days.
(d) So I had to say that the Tribunal failed to consider my important evidence before it; or the Tribunal failed to consider my evidence properly and fairly.
The second issue in the applicant's written submissions is that the:
Tribunal itself made an inconsistent finding. On one hand, the Tribunal had actually rejected my claims; and on the other hand, it had, in fact, accepted my claims to get involved in the protest.
It is further submitted that the Tribunal failed to conduct a real test on my application fairly and properly, because the Tribunal failed to consider significant changes in those circumstances between the time before I left China and the time I left the country.
When the applicant was invited to make oral submissions, he repeated the issues set out above. He did not refer to the grounds in his application.
Mr Potts filed written submissions dealing with each ground and particular raised in the application. In respect of the first particular, Mr Potts submits that the applicant's disagreement with the Tribunal's conclusion does not substantiate a claim of bias. The applicant did not indicate whether he alleges actual bias or an apprehension of bias. Actual bias can be said to exist where the Tribunal member had a pre-existing state of mind which disabled him/her from undertaking, or rendering him/her unwilling to undertake, a proper evaluation of the material relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72].
Actual bias may also be said to exist when the Tribunal member was so committed to a conclusion as to be incapable of alteration, whatever evidence or arguments may be presented: Jia at [71]-[72]. A party alleging actual bias on a decision maker's part carries a heavy onus and it must be clearly proved. The applicant has not provided any particulars to support this claim, or evidence in the form of a hearing transcript. A case of actual bias is seldom made out solely by reference to the reasons for decision, and no inference of bias or prejudgment can be drawn merely from adverse findings of the Tribunal's reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]. If the applicant claims actual bias, this cannot be sustained and must be rejected.
Apprehended bias will exist where a fair minded lay observer who is properly informed of 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]. If this is the claim, it also has been made in the absence of any particulars or evidence. On the limited material before the Court, I am not satisfied that a claim of this nature can be sustained and must be rejected.
The second particular of the application alleges that the Tribunal completely ignored “the important issues arising from the UNHCR Handbook”. Mr Potts submits that the first respondent does not accept that the UNHCR Handbook is mandatory consideration for all refugee applications. There is nothing indicated that the Tribunal's approach to the applicant's presence in this case was antithetical to approach advocated in that Handbook. Again, this is a claim made without any particulars or evidence. I am not satisfied that this ground can be sustained.
In respect of the third particular, Mr Potts submits that the applicant concedes that the Tribunal is not bound by the UNHCR Handbook, but believes that it should have understood that he was in a vulnerable situation. He claims that because of what he suffered in the past, he is afraid to speak freely when faced with an official of an alien country. Mr Potts submits that there is nothing on the face of the evidence before the Tribunal to suggest that it approached the case with less than the required degree of sensitivity expected in refugee matters. I agree with the submissions made by Mr Potts that this particular does not identify any jurisdictional error.
Mr Potts submits that the fourth particular claims that the applicant tried to demonstrate his claim. The applicant claims that unless there are good reasons to the contrary, he should be given the benefit of the doubt. Mr Potts submits that the Tribunal did think that there were good reasons to the contrary and declined to give the applicant the benefit of the doubt, which was perfectly entitled to do.
In the fifth particular, the applicant asserts that it was necessary for the Tribunal to clarify apparent inconsistencies and resolve any contradictions in a further hearing, or, that it should at least have allowed him to explain any misrepresentation or concealment of material facts. Mr Potts submits that the facts in this case are not the same as those considered in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592.Consequently, the Tribunal was not obliged to clarify apparent inconsistencies in a further hearing, or to give the applicant an opportunity to dissuade it from any tentatively reached conclusions.
In the sixth particular, the applicant claims that the Tribunal breached s.424A of the Migration Act. He complains that the Tribunal decision mainly relied on issues or concerns arising from the hearing, however, he alleges that the Tribunal failed to make him understand particulars of these issues or concerns, and invite him to comment. Mr Potts submits that s.424A(3)(b) applied to any material provided by the applicant at the hearing. In any event, in light of SZBYR, it is difficult to see that there was any information that was a reason or part of the reason for the Tribunal decision and which fell within s.424A(1). The applicant provided no particulars about which information this particular relies upon, and it is not apparent from the Court Book that any material falls within this category. This ground cannot be sustained.
The seventh particular alleges a breach of s.425 of the Migration Act. The applicant asserts, without any evidence, that during the hearing he was strictly restricted by the Tribunal member and troubled by the interpreter who was unable to interpret his answers. Mr Potts submits that there is no evidence of what transpired at the hearing beyond that recorded in the Tribunal decision. There is equally no evidence of difficulties in interpretation at the hearing. The applicant was invited to a Tribunal hearing in compliance with s.425. Based on the Tribunal's account, it appears that a full and proper hearing took place. I agree with the submissions of Mr Potts that a claim of breach of s.425 cannot be sustained.
The eighth particular alleges that the Tribunal did not allow the applicant to understand its concerns and the issues which could have formed the main reason for its decision. The applicant claims that he was therefore unable to present arguments. Mr Potts submits that this is really a complaint of a SZBEL kind – that the applicant was prevented from understanding what the "issues arising in relation to the decision under review" would be. It is submitted that on the evidence before the Court and given the Tribunal's account of the hearing, it must be concluded that the applicant was made aware of these issues. I agree with this submission and this ground cannot be sustained.
In respect of the ninth particular, Mr Potts submits that this is nothing more than a reiteration of the applicant's claim to be a refugee in the broadest and most general terms, and I agree with that submission.
Conclusion
The applicant appeared at the Court hearing as a self-represented litigant with the assistance of a Mandarin interpreter. The applicant appears to have received some assistance in his application from a third party with limited knowledge of judicial review of Refugee Review Tribunal decisions. The applicant attempted to argue his case with little understanding of the issues before the Court or how he should present his case. This placed an obligation on this Court to independently consider whether any argument based on the material in the Court Book and in particular the Tribunal decision, can support a claim of jurisdictional error.
Mr Potts, appearing for the respondents, assisted the Court with written submissions in response to the application. I am satisfied that all the issues identified in the application have been satisfactorily addressed by the first respondent's submissions and it is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.
I am satisfied an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs of and incidental to this application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 25 October 2007
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