SZJWJ v Minister for Immigration
[2007] FMCA 824
•8 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 824 |
| MIGRATION – Bias rarely demonstrated from published decision – test for apprehended bias – bring an impartial mind to the resolution of the question – applicant invited to attend hearing – failed to attend – failure to provide sufficient information to prove case is a valid reason for rejection – s.424A – thought processes not “information”. |
| Migration Act 1958, ss.91R, 424A, 425, 425A, 430 |
| Rhandhawa v Minster for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZJWJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3739 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 8 May 2007 |
| Date of Last Submission: | 8 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms Jolley of Sparke Helmore |
ORDERS
The application and amended application are dismissed pursuant to Rule 44.11(c).
The applicant is to pay the costs of the first respondent fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3739 of 2006
| SZJWJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 14 December 2006 for an order to show cause and seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. An amended application was filed on
13 March 2007.
The applicant was born on 27 November 1960 and claims to be from the People’s Republic of China and of Han ethnicity and Christian faith (“the Applicant”).
The applicant is married and includes his wife and son as family members on his visa application.
The applicant arrived in Australia on 17 May 2006 on a temporary business visa issued in Beijing on 20 April 2006.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs on 5 June 2006. In this application he claimed that he would be persecuted due to his religious beliefs and involvement in an underground church in China. He claimed that in March 2000 he was late attending a meeting of the church, and upon his arrival saw the police searching the home and taking away other members of the group. The applicant claimed that on Christmas Eve 2001 he and other members of his group were gathered at his home to sing Christmas carols. The police discovered the group and took them to the police station where they were detained. The applicant claimed that three days later he was sentenced to labour in a re-education camp for one year. He was also dismissed from his job. When he was released he found it hard to get work and became a peddler, and claimed that he was harassed by the police. In 2005 the applicant realised he would need to leave China to have freedom in his life an religion, and came to Australia with the assistance of friends (CB 25).
This application was refused by a delegate of the first respondent on 9 August 2006 (CB 36).
On 14 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. On 29 August 2006 a letter was sent to the applicant inviting him to attend a hearing of the Tribunal to give evidence and present oral arguments in support of his claims. The applicant was advised that the Tribunal had considered the material before it but is unable to make a decision in your favour on this information alone. The applicant was advised that if he did not attend the hearing that the Tribunal could make a decision on the case without further notice (CB 49).
A Tribunal hearing was held on 19 October 2006. The applicant did not attend the hearing. When the applicant failed to attend to accept that opportunity the inevitable consequence was the rejection of the application: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 38 per Downes J at para 5.
On 23 October 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 63-64) (emphasis added):
The Applicant was advised that the Tribunal was unable to make a decision in his favour on the information provided in the protection visa application and in the application for review. The Applicant did not appear before the Tribunal to elaborate upon his claims.
The Applicant claims to fear harm from the authorities of China by reason of his involvement in an underground church. He claims he spent a year in a re-education camp because of his involvement in an underground Christian Church and that subsequently he was unable to find work in China.
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all allegations made by an applicant (Rhandhawa v MIEA (1994) 52 FCR 437 at 451).
The Tribunal has a number of issues upon which it requires a good deal more detailed evidence such as for example his claimed involvement in an underground Christian Church and his claimed experiences of past harm because of his religious beliefs before it could be satisfied that the Applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted on his return to China.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out five grounds as follows:
1)The Tribunal had bias against me did not consider my application according to s.91R of the Migration Act 1958.
2)The Tribunal failed to consider my claims.
3)The Tribunal’s satisfaction that I am not a refugee was not based a rational and logical foundation for this belief.
4)The Tribunal failed to carry out is statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.
5)A copy of the decision letter is attached.
The amended application
In his amended application, the applicant set out the following grounds and particulars:
1)The Tribunal did not consider my application for a protection visa according to s.91R of the Migration Act because of the Tribunal’s bias against me. The Tribunal failed to consider my claims and did not provide evidence and materials for refusal of my application.
2)The Tribunal failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958.
The Grounds of the Applicant are:
1. The Tribunal failed to carry out its statutory duty.
Particulars:
(a)The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b)The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision: Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c)The above particulars had to be provided in writing: SAAP v Minister for Immigration and Multicultural and Industrial (sic Indigenous) and Ehthnic Affairs [2005] HCA 24 (18 May 2001).
McHugh J.
Para 68 “…the assumption that no breach of s 424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision (sic section). Nothing in the section suggests that fairness in the way in which the tribunal observes its statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the tribunal is required to take in every case. Further, the mandatory nature of the obligation in s 424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s 424A.”
Para 77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the tribunal has not discharged its statutory function…it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act…a decision made after a breach of s 424A is invalid.”
Hayne J
Para 180 “I consider that the tribunal was bound to give the appellants written notice of that information and to ensure, so far as reasonably practicable, that the appellants understood why it was relevant to the review. The tribunal’s failure to do so constituted jurisdictional error.”
Para 208 “…Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d)The information to be given extends to that information given by the Appplicant to the First Respondent as part of his application for a visa.
Minister for Immigration and Multicutlural Affairs v Al Shamry (2002) (sic 2001) 110 FCR 27
Para 17 “…In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The Court did not accept the Minister’s argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
(e)The Tribunal based its findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
The applicant was invited to make submissions to the Court and did so.
Findings as to the grounds in the amended application
Ground one alleges a failure to consider the application according to s.91R of the Migration Act alleging that the Tribunal was biased. The Court accepts the submission for the first respondent that no particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be clearly made and distinctly proven: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. The applicant can only establish bias by adducing proper evidence to establish that the Tribunal acted dishonestly, arbitrarily, or capriciously: SBBS v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2002) 194 ALR 79 per Tamberlin, Mansfield, and Jacobson JJ at [56] – [59]. The Court accepts also that it is a rare and exceptional case in which actual bias can be demonstrated solely from the published reasons of the decision: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
Further, there is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425 at 27, citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established. Ground one is rejected.
Ground one alleges also that the Tribunal did not consider the applicant's claims and did not provide evidence and materials for refusal of his application. The applicant provided only limited information to the Tribunal in support of his application. The applicant was invited to attend the hearing before the Tribunal but failed to do so (CB 53). The Tribunal recorded at Court Book 62.3 that
No response was received. A no reply check was carried out. The letter addressed to the applicant was not returned unclaimed. The Tribunal notes that the applicant advised of a change of address more than five weeks after the issuing of the invitation to hearing. Given that the invitation to hearing letter was not returned unclaimed the Tribunal is satisfied that the applicant was correctly notified of the hearing.
The applicant therefore did not avail himself of the opportunity to present oral arguments or provide further evidence. The Court accepts the submission for the first respondent that the Tribunal was required to have regard to the limited information provided by the applicant (which it clearly did as recorded on CB 62.6-63.7) and the applicant’s complaint that the Tribunal failed to consider his claims cannot be sustained.
The reason that the application failed was that he did not provide sufficient information about his claims to satisfy the Tribunal of their truth. This is a valid reason for the application to be rejected: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ) at [3]; NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett, and Dowsett JJ) at [5]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) at [20] – [21].. The Court rejects this ground.
Ground one complains also that the Tribunal “did not provide evidence and materials for refusal of my application.” The Court accepts the submission for the first respondent that “a decision-maker is not required to have rebutting evidence before they can lawfully hold that a particular factual assertion by the applicant is not made out”: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7].The basis for the decision of the Tribunal was that the applicant had failed to establish his case. He was invited to attend the hearing to provide more information and failed to do so. There was no obligation on the Tribunal to provide evidence or material to support its finding that the applicant had failed to prove his case. As the Court stated in SZHEN v Minster for Immigration & Anor [2007] FMCA 460:
“It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, the reason for non-attendance is not relevant: SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 per Downes J at para.5. When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation the inevitable consequence was the rejection of the application: SZIGQ (supra) para [4] per Downes J.”
This ground is rejected.
Ground two in the amended application claims that the Tribunal breached s.424A. The particulars of the claim allege that the Tribunal relied on the lack of information before it and that this is “information” to which s.424A applies.
The Court accepts the submission from the first respondent that:
In reaching its decision the Tribunal did not rely on information communicated to or received by it, but it relied on its own thought process of not being satisfied with the application made by the applicant.
The thought processes of the Tribunal are not “information” for the purposes of s.424A(1). Further, “information” does not encompass identified gaps, defects, or lack of detail, or conclusions by the Tribunal: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at para [24] and WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].
The Tribunal identified the areas where more detail was required at CB 63.10 as follows:
The Tribunal has a number of issues upon which it requires a good deal more detailed evidence such as for example his claimed involvement in an underground Christian church and his claimed experiences of past harm because of his religious beliefs before it could be satisfied that the applicant is in genuine fear of persecution and that there is a real chance that he would be persecuted on his return to China.
Such thought processes and conclusions are not “information” covered by s.424A(1). VAF (ante):
“the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at 113 FCR 396 [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].”
No breach of s.424A has been established.
Findings as to the grounds in the application
Ground one in the original application is the same as ground one in the amended application and is dismissed for the reasons expressed above.
Ground two is that the Tribunal failed to consider the applicant’s claims. This claim is rejected for the same reasons that it is rejected in the amended application.
Ground three claims that the decision that the applicant is not a refugee is not rational or logical. The Tribunal reached its decision because of a lack of information provided by the applicant. The finding of fact was properly open to the Tribunal on the material before it. It has not been established that that decision is neither rational nor logical. This ground is rejected.
Ground four alleges a breach of s.424A of the Act. That claim is rejected for the reasons given above. Insofar as the ground alleges a breach of s.425 of the Act, the Court finds that s.425 was not breached. The applicant was invited to appear before the Tribunal and declined to do so. Once the Tribunal has made that invitation the reason for the applicant’s non-appearance is not relevant as to whether there has been compliance with s.425. The Court refers to and repeats its reasons on this issue in paragraph 19 above. No breach of law has been established. The Court rejects ground four.
Applicant’s oral submissions
In his oral submissions to the Court the applicant made a number of claims, the first being that he was not given an opportunity to present his case to the Tribunal. That is clearly not so. The applicant was invited to attend the hearing but for reasons not known to the Court declined to do so. The applicant also alleges a breach of s.430 of the Act, which requires the Tribunal to prepare a written statement of its decision, setting out:
·its reasons for the decision;
·findings on any material questions of fact; and
·evidence or any other material on which the findings of fact were based.
The Court finds that the decision of the Tribunal complied with s.430 of the Act. The reason for the decision was the failure by the applicant to establish his case. This claim is rejected.
The applicant claimed also that the Tribunal did not properly understand his claim. The Tribunal had limited information and material before it. There is nothing to establish that the Tribunal misunderstood anything in relation to this matter. This claim is rejected.
The applicant alleged again that s.424A was breached. That matter has been dealt with and that complaint is rejected for the reasons expressed above.
The applicant said again that he did not have an opportunity to respond to issues in his case. The Court finds that both s.425 and 425A were complied with. The Court finds no denial of natural justice. The Court finds no breach of Division 4 of Part 7 of the Act, which sets out the full extent of the natural justice hearing rule applicable to the case.
The applicant asserts that because of his change of address, certain procedural matters were not conducted properly. The Tribunal received notification of the applicant’s change of address more than five weeks after the invitation to hearing was issued (CB 62.4). Section 425 was not breached. This ground has not been established. The Court rejects this ground.
Conclusion
This is a final hearing under r.44(11)(c). The Court finds that the respondents have shown cause why orders should not be made for the relief claimed. The application and amended application are dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 30 May 2007
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