SZKAX v Minister for Immigration
[2007] FMCA 1727
•25 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKAX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1727 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZKAX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG143 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr S Lloyd |
| Solicitors for the Respondents: | DLA Philips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 16 January 2007 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 |
SYG143 of 2007
| SZKAX |
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 “SZKAX”.
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 16 January 2007, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 27 November 2006 and notified to the applicant by letter on 19 December 2006, affirming a decision of a delegate of the first respondent made on 31 July 2006, 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 Magistrate Court Rules 2001 (Cth) (“the Rules”), 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 and served on 20 March 2007. I have marked it Exhibit “A” and it was read into evidence.
Also in evidence is an affidavit of Catherine Nicole Hooper, affirmed on 19 June 2007. Attached to this affidavit is a copy of the transcript of the Tribunal hearing.
Background
The Tribunal decision of L Symons, reference 060744205, provides the following background information:
The applicant, who claims to be a citizen of China (PRC), arrived in Australia on 20 May 2006 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 29 May 2006. The delegate decided to refuse to grant the visa on 31 July 2006 and notified the applicant of the decision and his review rights by letter dated 31 July 2006 and posted on 31 July 2006.
The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. The applicant applied to the Tribunal on 30 August 2006 for review of the delegate’s decision.
(CB 76)
The applicant’s claims are set out in the Tribunal decision under the heading ‘Claims and Evidence’ and in particular under the sub-heading ‘At the Hearing’:
The applicant appeared before the Tribunal on 6 November 2006 and gave evidence that he was born in the Hebei Province in China on 14 August 1966. He was married to Wang Lan Gen in 1986. He has two sons, Zhang Shuo Gei (born on 12 November 1987) and Zhang Han Fei (Born on 15.2.90). They both attend school.
He worked in China as a truck driver on a construction site. He had been in that employment from 1987 to 2006 and held the same job for that period. His wife grew crops on the farm for the use of the family.
In 2002 he was involved in a dispute with the local government authority. The provincial government had plans to build a road across his village and he was going to lose the use of his land as a result. The provincial government had paid compensation for the land to the local government but these funds had not been passed onto the villagers who were entitled to the compensation.
The applicant and several other villagers had lodged a petition with the provincial government. The local government charged him with lodging an illegal petition. He was detained for two weeks as a result and his passport was confiscated.
The applicant claimed that he is a Falun Gong practitioner. He states that he practised in China but after the crack down in May 1999 he was afraid to practise. He found out about Falun Gong in about 1996 or 1997. People at the construction site were he worked practised Falun Gong and he observed them. He drove Falun Gong practitioners to the site where they practised. He did not practise much as he was busy. In 1998 he saw people practising Falun Gong in the community.
The applicant stated that he did not really learn to do the Falun Gong exercise as he was not able to bend down. He mainly observed other practitioners. He did not learn about the philosophies behind Falun Gong or about the meaning of the exercises. His wife is not a Falun Gong practitioner. He is a Christian.
(CB 79-80)
A summary of the Tribunal’s findings are contained in the first respondent’s written submissions prepared by Mr Lloyd and I rely upon paragraph 8 of those submissions:
8. On 19 December 2006, the Tribunal affirmed the decision not to grant a protection visa. It made the following significant findings:
a) The Tribunal did not accept that the Applicant has a well-founded fear of persecution for a Convention reason.
b) The Tribunal found that the Applicant has never been a Falun Gong practitioner or had any sincere interest in Falun Gong:
i) The Tribunal found that, during the course of the hearing, the Applicant narrowed his claims in relation to his practise of Falun Gong.
ii) The Tribunal accepted that the Applicant did not learn how to do the Falun Gong exercises or about the meaning behind the exercises or the philosophy behind the practise of Falun Gong. The Tribunal found that the reason for the Applicant’s failure was that he was not interested in Falun Gong.
iii) The Tribunal found that the Applicant was prepared to fabricate his evidence about his interest in and practise of Falun Gong to give himself the profile of a refugee.
iv) The Tribunal did not accept any of the Applicant’s claims about his involvement with Falun Gong or Falun Gong practitioners in China.
v) The Tribunal did not accept the Applicant’s claim that he had met with a Falun Gong practitioner on two occasions since coming to Australia.
vi) The Tribunal found that it was unlikely that the Applicant might be perceived to be a Falun Gong practitioner by Chinese authorities. The Tribunal did not accept that the Applicant singed a statement in China that he was not a Falun Gong practitioner or that the claims he made in his protection visa application would become known to the Chinese authorities.
c) The Tribunal noted that the Applicant made no claim to fear persecution as a result of an alleged dispute with the local government authority in 2002. The Tribunal found that, even if this dispute did occur, the Applicant does not have a well-founded fear of persecution on this basis.
Application for review of the Tribunal decision
On 16 January 2007 the applicant filed an application for a review in this Court under s.39B of the Judiciary Act. In accordance with orders made on the first Court date, he filed an amended application on 28 May 2007 setting out the following grounds:
1. The Tribunal had bias against me and the decision was not made based on evidence and materials. The decision was biased.
2. The Tribunal also committed jurisdictional error by failing to give the applicant in accordance with s424A of the Migration Act 1958 (the “Act”) notice in writing of particulars of information that formed part of the reasons for affirming the decision of the delegate.
Submissions and Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. On the first Court date, he indicated that he wished to participate in the Court’s free legal advice scheme. According to the Court file, he was subsequently allocated a panel adviser who arranged a conference which the applicant failed to attend. The adviser then forwarded written advice to the applicant at his residential address. At the commencement of the hearing, the applicant complained that other applicants to this Court had been provided with free legal advice but he had not. I relayed to the applicant the information on the Court file in relation to this issue but the applicant denied receiving any correspondence from the panel adviser.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. The applicant complied with this order and filed an amended application on 28 May 2007. I indicated that the applicant seemed to have received advice from an unidentified third party as his original application and amended application were prepared in English and were in partial compliance with the Rules. The amended application contains two unparticularised grounds of review. The applicant stated that a friend had assisted in preparing those documents.
I note that the mailing address in the original visa application is one commonly seen in this Court in refugee matters. The address is for post office boxes located at 226 Elizabeth Street, Surry Hills. There appears to be similarities between the pleadings in this matter and those for other applicants using the same mailing address. Also similar is the reference to the person assisting as only a friend of the respective applicant.
The applicant did not file any written submissions and when invited to make oral submissions, he only complained that he had been denied access to the panel advice scheme.
Mr Lloyd prepared written submissions in response to the grounds raised in the amended application. Ground one is an allegation that the decision of the Tribunal was biased. Mr Lloyd referred to the decision in Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425 which addressed the test for apprehended bias in administrative proceedings. Chief Justice Gleeson, Gaudron and Gummow JJ said at 434-435 of that decision:
The test for apprehended bias in relation to curial proceedings is whether 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.
Mr Lloyd submits that the applicant has not made any attempt to comply with the requirement that an allegation of bias is a serious one which must be firmly and directly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is submitted that the applicant has not identified anything in the Tribunal hearing transcript, or the Tribunal decision, which gives rise to the possibility that the Tribunal member did not bring an impartial mind to the proceedings.
I have considered the Tribunal hearing transcript and the Court Book, particularly the Tribunal decision. It is not apparent on the face of these documents that an allegation of actual or apprehended bias can be sustained. I agree with the submissions of Mr Lloyd that there is no merit in ground one and it should be rejected.
Ground two claims that the Tribunal failed to comply with s.424A of the Migration Act by not giving the applicant notice in writing of the information that formed part of its reasons for affirming the delegate’s decision, or invite the applicant to comment on this information. This allegation is also made in the absence of pleaded particulars and without written or oral submissions.
Mr Lloyd submits that the scope of s.424A is narrow and refers to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [11]-[22] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. It is submitted that in the present case, the Tribunal did not have information before it which it was required to give the applicant written notice of. It is submitted that, accordingly, this ground of review has no merit and should be rejected.
The Tribunal decision clearly states that the applicant’s critical claims lacked credibility and could not be accepted. The Tribunal member states in the ‘Findings and Reasons’ that during the course of the hearing, the applicant resiled from his initial claims and attempted to establish a substantially different claim (CB 81):
· At the hearing the applicant initially claimed that he found out about Falun Gong in about 1996 or 1997 and became a Falun Gong practitioner. Later in the hearing the applicant stated some of his work colleagues practise Falun Gong and he observed them practising but did not practise much. He later stated that he did not know how to do the exercises or the meaning behind the exercises. He also gave evidence that he did not learn about the philosophy behind the practice of Falun Gong.
· The applicant gave evidence during the course of the hearing that his friend suggested that he lodged a claim for refugee status on the basis that he was a Falun Gong practitioner.
· The applicant also gave evidence at the hearing that since his arrival in Australia he had met with a Falun Gong practitioner on two occasions. He stated that he was not able to do Falun Gong exercise because his legs were unable to assume the sitting positions.
The Tribunal then dealt with each of the applicant’s other claims and indicated that it was unable to accept any of them.
The Tribunal’s adverse finding and consequent rejection of the applicant’s claim is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. I am satisfied that the Tribunal’s finding in this respect was open to it on rational grounds and there was no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal decision indicates that it raised with the applicant the concerns it had about aspects of his evidence during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible.
Conclusion
The applicant appeared at the hearing as a self-represented litigant assisted by a Mandarin interpreter. This places an obligation on the Court to independently consider whether any argument based on the material before it could have been made out. Mr Lloyd for the respondents assisted with written submissions in respect of the amended application. I am satisfied that the amended application does not contain grounds that establish jurisdictional error. Neither is it apparent that any other grounds of review exist to suggest that the Tribunal made a jurisdictional error in its decision-making process. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 25 October 2007
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