SZKAZ v Minister for Immigration
[2007] FMCA 681
•19 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKAZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 681 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – merits review not available – Tribunal has no duty to make enquiries – no breach of s.424A – bias on the part of the Tribunal not proved. |
| Migration Act 1958, ss.91R, 91X, 424A, 425 |
| Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NABE v Minister for Immigration & Multicultural &Indigenous Affairs (No. 2) (2004) 144 FCR 1 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 ReRefugee Review Tribunal: Ex parte H [2001] HCA 28 Sun vMinister for Immigration & Ethnic Affairs (1997) 151 ALR 505 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZKAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 153 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 April 2007 |
| Date of Last Submission: | 19 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. B. K. Nolan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 153 of 2007
| SZKAZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 7 January 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
29 November 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 5 August 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a 43 year old Chinese national from Handan City in Hebei province. He is married and has a daughter. He has had 10 years of education and worked as a manager of a snack bar before he came to Australia. (Court Book (“CB”)
page 97).The applicant claims to fear persecution in China because of his membership of Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out at pages 4-11 of the Tribunal’s decision (CB 97-104). Relevantly, they are in summary:
a)after completing his studies the applicant worked as a “common worker” for a construction company until January 2001;
b)in 1996, one of the applicant’s colleagues told him a bit about Falun Gong. The applicant followed his colleague for several days and visited some Falun Gong exercisers and spent a lot of time reading Master Li’s works;
c)after about half a year of study and exercise, the applicant believed that he understood the basic principles of Master Li’s Falun Dafa and claimed that his health had improved;
d)the applicant began to tell his friends and colleagues about his experiences and encouraged them to join the exercises;
e)the applicant joined all kinds of Falun Gong activities more actively and vigorously and became a leader of a Falun Gong exercise group in his community;
f)at the beginning of 1999 the Chinese Communist Party began to limit and suppress Falun Gong;
g)after the peaceful Zhong Nan Hai petition the government began to suppress Falun Gong, arrest and “speculate” [sic] Falun Gong members;
h)the applicant began to propagate Falun Gong and exposed the crimes of the government and revealed the facts confidentially. “We” continued to regularly organise conferences and discuss new experiences in the exercises, and print, distribute and post leaflets;
i)in January 2001, the applicant was arrested and sentenced to one year re-education in Handan Labor Camp for the crime of disturbing social safety;
j)in the labour camp Falun Gong members were shouted at and beaten, and forced to read and study socialist materials;
k)the applicant was released after he promised to give up Falun Gong;
l)all the applicant’s job applications were refused and after three months of unemployment he borrowed money to set up a snack bar from April 2002 to make a living but “the shadow of the Chinese Communist Party’s supervision” hindered his living;
m)policemen frequently came to his snack bar and home and they often ate for free and took cigarettes and alcohol without permission; and
n)the applicant practised Falun Gong at home and decided to leave China. He has been in touch with Sydney’s Falun Gong members.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although the applicant conveyed some basic knowledge of aspects of Falun Gong the oral evidence he gave at the beginning of the hearing about the two stages of Falun Gong and the government’s initial attitude to it and subsequent banning of it and treatment of Falun Gong leaders and Falun Gong practitioners seemed rehearsed. Further, the Tribunal commented:
This information was provided in response to questions to which it was not directly relevant. (CB 106);
b)the Tribunal was left with the distinct impression that the applicant had merely repeated information he had learned by rote;
c)the Tribunal found that the applicant was often vague and evasive during the course of the hearing and it seemed that he was being deliberately elusive. In the Tribunal's mind this raised serious doubts about his credibility given he was being asked about his own personal experiences and matters which were fundamental to his refugee claim;
d)the Tribunal found that important aspects of the applicant's evidence were not consistent during the hearing or with independent evidence before the Tribunal and when such inconsistency was put to him the applicant seemed to change his evidence;
e)although the applicant obtained his passport in 2004 he did not leave China until 2006 and his explanation for not doing so, that because in his past he could not apply for a visa himself and had to ask friends to obtain it on his behalf, did not, to the Tribunal, prove credible upon further examination;
f)the Tribunal was of the view, if the applicant had not been able to practise Falun Gong since his release from detention in January 2002 because he was constantly monitored and required to report to the police each week, that he would have left China sooner;
g)the Tribunal observed that when it questioned the relevance of corruption in China in the context of the applicant obtaining a visa to Australia, given that that visa was not issued by the Chinese authorities, and when it asked the names of the friends who helped the applicant obtain the visa, the applicant said that he had been referring to his passport and did not know who helped him obtain his visa. The Tribunal said that it appeared that the applicant was trying to resile from his earlier evidence when asked for more details and when it seemed that the credibility of his initial evidence might be undermined; and
h)the fact that the applicant had not practised Falun Gong in Australia raised serious doubts about the credibility of his claims in the Tribunal's mind. It commented:
if the applicant stopped practising Falun Gong in China because he was constantly monitored by the authorities and faced arrest, and he came to Australia to find freedom, then the Tribunal does not consider it plausible that he would not have practised Falun Gong here. (CB 107).
In essence, the Tribunal found:
As the Tribunal did not find the applicant a credible witness it does not accept that he was a Falun Gong practitioner in China or that he engaged in any Falun Gong activities there. Thus, it does not accept the claims that follow from this, namely, that he was arrested, detained, subjected to re-education, monitoring, or any other harm by the authorities or anyone else in China because he was a Falun Gong practitioner. Due to his lack of credibility the Tribunal does not accept that he is engaged in any Falun Gong activity or met any Falun Gong practitioners here in Australia. Hence, the Tribunal finds that the applicant is not a Falun Gong practitioner, never has been, nor has any desire to practise Falun Gong in the reasonably foreseeable future. (CB 107 – 108).
Proceedings in this Court
The grounds of the application are pleaded in the following terms:
1. I do not agree in the Decision Record of RRT that the Tribunal was left with a distinct impression that I had merely repeated information I had learnt by rote.
2. I do not agree in the Decision Record of RRT that I tried to resile from my earlier evidence when asked for more details and when it seemed that the credibility of my initial evidence might be underminded [sic].
3. I do not agree in the Decision Record of RRT that as the Tribunal did not find me a credible witness it does not accept that I was a Falun Gong practitioner in China.
In respect of those grounds the applicant appears to be seeking a re-opening of the Tribunal's decision. This Court is not to conduct a re-hearing of the application before the Tribunal. A judicial review application such as this is concerned with whether there was a fair hearing, not with whether there was a fair outcome. That is to say, the Court is concerned with the Tribunal's process not its decision. In Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 at 272, Brennan CJ and Toohey, McHugh and Gummow JJ said this:
In the present context, any Court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quin:
The duty and justification of the Court to review administrative action do not go beyond the declaring and enforcing of the law which determines the limits and governs the exercise of the repository to power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished for legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The grounds raised principally relate to the Tribunal's perceptions of the applicant's credibility, namely, that he gave rehearsed evidence, back-tracked when pressed or challenged. It found him not to be a credible witness. Credibility findings are matters for the primary decision maker par excellence as was said by McHugh J in ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]. The findings at which the Tribunal arrived were logically open to it on the evidence.
The final pleaded ground in the application might be an invitation to reopen the Tribunal's findings that the applicant was not a Falun Gong practitioner. Again, this conclusion was a logical conclusion open to the Tribunal on the evidence before it and based on its credibility findings. As already noted in these reasons, these judicial review proceedings cannot re-open the applicant's application. The applicant cannot re-agitate the merits of his claim in this Court in these proceedings and this Court cannot substitute its own view of the facts for the Tribunal's view. In any event, as the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural &Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53]:
It is desirable first to re-state the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or a manifestation of some error of law, substantive or procedural which constitutes jurisdictional error and thereby vitiates the purported decision.
No such error of jurisdictional fact is apparent in these proceedings.
At the hearing today the applicant raised a number of additional grounds of potential judicial review which I will deal with as they were presented to the Court.
The first ground was that the Tribunal did not “apply” its duty, or as the applicant described it, “their duties”. What these particular duties referred to by the applicant were, was not identified. No breach of any section of the Act was identified except when the applicant raised s.424A later in his submissions and I can only take this ground to be a global complaint about the Tribunal's adverse finding on the applicant's application and must conclude that no jurisdictional error is made out simply on account of this ground as it has been expressed.
The next ground raised by the applicant was that the decision was not based upon evidence but upon assumptions. This issue has already been dealt with in these reasons in relation to the grounds which were pleaded in the application. I have already found that the findings of the Tribunal were open to it on the evidence.
The next ground raised by the applicant was that the Tribunal did not deal with the matter according to law. Again, no particulars of this assertion have been given and no factual basis has been made out for it. Again, this appears to be a global catch-all assertion rather than one which identifies any particular error.
The next ground raised by the applicant was that the Tribunal did not make a judgment according to his refugee claims. The applicant's claim for refugee status was based upon his adherence to and his pursuit of Falun Gong. This was the issue which was determined by the Tribunal. A number of facts contained in the applicant's statement submitted in support of his protection visa application were set out by the Tribunal at pages 4 and 5 of its decision (CB 97-98) and it would appear that the applicant has been tested on these assertions during the course of the hearing before the Tribunal. But whether or not the individual details contained in the protection visa application and its supporting statement were or were not dealt with by the Tribunal, it is clear that the Tribunal has been concerned to determine whether the applicant had a well-founded fear of persecution for a Convention reason; namely his adherence to Falun Gong. Consequently, I find that this ground is not made out.
The next ground asserted by the applicant was that the Tribunal's assessment was based on assumptions and not evidence. This is essentially the same as the second ground raised at the hearing but expressed in a slightly different way and for the reasons I have given in relation to the second ground, no jurisdictional error has been demonstrated in respect of it.
The next ground raised by the applicant was that the Tribunal said that he did not have any credible witnesses. The Tribunal did not say this. But, in any event, as has been pointed out by Ms Nolan on behalf of the first respondent, the Tribunal, in its letter dated 28 August 2006 inviting the applicant to the Tribunal hearing (CB 76-79), included a Response to Hearing Invitation form which, on its second page, contained a page headed “Witnesses” and which contained the following notice:
If you want the Tribunal to take evidence from a witness or witnesses, please give their names, and brief details of what evidence you expect each witness to give at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. A witness should give evidence to help show why you are a refugee and need a protection visa.
The applicant was given the opportunity to identify any witnesses who might have supported his application before the Tribunal and to the extent that he says that the Tribunal should have asked him for such witnesses, it clearly did. But, in any event, the Tribunal has no duty to undertake inquiries although it has the power to do so. The High Court has held that there is no duty to inquire: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. Rather, it is for the applicant to put before the Tribunal the evidence which he says supports his case and upon which the Tribunal might be able to reach the level of satisfaction required by the Act: Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437; NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287.
It is also worth noting as a final comment on this point that at page 11 of the Tribunal's decision (CB 104) the Tribunal concluded the hearing by asking the applicant if he had any other evidence. The Tribunal's decision does not record the applicant indicating that there were witnesses in China or anywhere else who might corroborate his version of events.
The next ground of review asserted by the applicant was that the matter was not decided by the Tribunal in accordance with s.91R of the Act. A consideration of the Tribunal's decision indicates at page 2 (CB 96) that it made specific reference to s.91R and the tests prescribed by that section. Moreover, the conclusion which the Tribunal reached is found at page 15 of its decision (CB 108):
That the applicant does not have a well-founded fear of Convention related persecution in China.
The applicant has not demonstrated that the Tribunal reached its decision otherwise than in accordance with s.91R.
The next ground of review asserted by the applicant was that the Tribunal was in breach of its obligations under s.424A of the Act. No particulars of this assertion were provided by the applicant but a consideration of its decision leads to the conclusion that there was no such breach. The information upon which the Tribunal relied in affirming the delegate's decision was the information given by the applicant at the hearing and independent country information which was available to it.
The evidence given by the applicant at the Tribunal hearing falls within the exception in s.424A(3)(b) and the information contained in the independent country information falls within the exception in s.424A(3)(a). That being so, no s.424A(1) obligation arose. Moreover, such conclusions as the Tribunal reached, based on that information, are a result of its thought processes and are not “information” as comprehended by the section: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471. Consequently, this ground is not made out.
The applicant also asserted that the Tribunal had one-sided views. This seems to be an assertion of bias. Although to the applicant's mind the questioning which the Tribunal may have engaged in at the Tribunal hearing was testing or searching, it should be kept in mind that if the Tribunal had been able to make a decision in the applicant's favour on the papers, there would have been no invitation issued to him pursuant to s.425 of the Act to attend a hearing. To the extent that any such questioning might suggest to the applicant that the Tribunal was approaching the decision making process in a one-sided manner, no evidence has been put before the Court by way of a transcript which would support a conclusion of apprehended bias.
In relation to the test for apprehended bias, the High Court said this in ReRefugee Review Tribunal: Ex parte H [2001] HCA 28 at [27] and [28]:
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. That formulation owes much to the fact that Court proceedings are held in public. There is some incongruity in formulating a test of "a fair-minded lay observer" when, as in the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical, fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done.
As has already been noted, nothing has been put before the Court in these proceedings to suggest that bias on the part of the Tribunal might be inferred from its conduct.
To the extent that the applicant asserts actual bias; North J said in Sun vMinister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision maker has pre-judged the case against the applicant or acted with such partisanship or hostility as to show that the decision maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
The Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
·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 presence or absence of honesty will often be crucial.
·The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
·Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
·Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
In this case, nothing has been put before the Court other than the decision of the Tribunal. A reading of the Tribunal's decision does not indicate that it approached its task with a closed mind. This is a serious allegation and has not been made out.
A final matter raised by the applicant in his comments in response to the Minister's submissions was that there were translation issues at the hearing. It is unclear whether this submission is a criticism of the translator or merely of the process of giving evidence through a translator. However, whichever is the case, again it is important to note that no transcript of the proceedings has been put before the Court and if there is any criticism to be made of the interpreter, no expert evidence has been led to demonstrate that the translation was deficient in any way. To the extent that this was an asserted ground of review, it has not been made out.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated and the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 15 May 2007
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