SZKBK v Minister For Immigration & Anor
[2007] FMCA 1247
•16 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1247 |
| MIGRATION – Visa - protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of People's Republic of China claiming fear of persecution on the basis of her religious beliefs – allegation of lack of bone fides by Tribunal member – no evidence of bad faith – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA FC 361 |
| Applicant: | SZKBK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 194 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 July 2007 |
| Date of last submission: | 16 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $5,000.00.
The Applicant is to pay the Setting down Fee to the Registry of the Federal Magistrates Court, Level 16, Commonwealth Courts, Queens Square, Sydney, within 14 days
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 194 of 2007
| SZKBK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 18th December 2006, and handed the decision down on 9th January 2007. The Tribunal affirmed the decision of the Delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant has commenced proceedings in this Court by means of an application and an affidavit filed on 19th January 2007. The Applicant seeks judicial review of the Tribunal decision, and in particular seeks a declaration that the decision was made in excess of jurisdiction and is therefore null and void.
As I have explained to the Applicant, in order for the Court to set aside a decision of the Refugee Review Tribunal, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. She arrived in Australia on 29th August 2006. On 7th September 2006 the Applicant applied for a Protection (Class XA) visa on the basis of being afraid of persecution by the Chinese Government because of her Christian religious beliefs.
A Delegate of the Minister refused the application for a visa on
3rd October 2006.
On 2nd November in that year the Applicant applied to the Refugee Review Tribunal for a review of that decision. She accompanied her application with a three-page typed statement, and a translation of a Chinese newspaper, the Sing Tao Daily, from Friday, 1st September.
In that statement the Applicant referred to having read the report in the newspaper that a person named Ching Cheong, whose name also appears to have been spelt in English, Cheng Xiang. In her statement the Applicant referred to this person being sentenced to five years' imprisonment on the grounds of espionage, and refers to having worked in a television station in Beijing.
She claimed that her situation was very similar to his, and that if she had to go back to China she would be at risk of arrest and persecution. Her claim was that when she worked in Beijing she reported many activities which were treated as anti-party anti-Government activities, and that she often exchanged news information with the media from Taiwan and Singapore. She claimed to have been warned about this, and almost lost her job.
Later, she claimed to have organised relatives to protest to prevent her parents and sisters from being detained, although she claimed to have been arrested and detained in the Detention Centre, and lost her job in the media. She claimed that having been dismissed by the television station that no other company would dare to employ her, and that she had been blacklisted by the Government. She referred to the examples of other people as being in a similar situation to that which she would be in if she returned to China.
The newspaper article referred to the man who was the Chief Correspondent for the Singapore Straits Times who came into contact with two other people at a seminar in Taiwan, and passed on written invitation to these people concerning State secrets and intelligence matters that he had obtained from third parties in Beijing. The newspaper report indicated that the man had voluntarily confessed to some espionage and had been imprisoned for five years, along with the revocation of political rights for one year and the seizure of 300,000 Yuan in personal assets.
The Tribunal wrote to the Applicant acknowledging her application, and on 13th November 2006 wrote to her inviting her to attend a hearing on 11th December 2006. On that same day the Tribunal wrote to the Applicant a letter written in order to comply with the requirements of s.424A of the Migration Act headed ‘Invitation to Comment on Information’. The letter told the Applicant that the Tribunal had information that would, subject to any comment that she might make, be the reason or part of the reason for deciding that she was not entitled to a protection visa.
The information given to the Applicant was that she did not refer to any of the matters in her statement of 31st October 2006 given to the Tribunal about her fear of persecution based on the expression of political opinion when she originally applied for a protection visa. The letter then set out other aspects of the claim in that statement, which the Tribunal said the Applicant had not referred to.
The Applicant forwarded a Response to Hearing Invitation to the Tribunal indicating that she wished to attend the hearing and give evidence. In a statement dated 30th November 2006 the Applicant commented on the matters raised in the s.424A letter that the Tribunal had sent to her.
Her reason, essentially, is that when she applied for protection at the very beginning she said it was because of her personal religion and she thought one's personal religion and one's job were two separate things. After reading the result of the case concerning Mr Cheng Xiang she realised how serious it was and how it was more dangerous for her to return to China because the Chinese Government does not treat one's job and one's religion separately but treats them as one circumstance.
She said that she realised the dangers and the risk factors more than before, and that all kinds of information showed that the Chinese Government had been paying attention to her and investigating her. She said that she supplied the second letter to state her job character and job experience in detail, and also to state that she was beaten and persecuted because she insisted on justice and principle when working. She ended her statement by saying:
Because both of my risk and danger are more serious based on my job and personal religion could I please ask a jury and Immigration officers to reconsider my case carefully and finally permit my refugee application.[1]
[1] See Court Book at page 95
The Applicant also provided a copy of another newspaper article dated 30th November 2006 from the Epoch Times about three members of a Chinese Christian sect who were secretly executed.
The Applicant attended the hearing and provided a copy of her passport which contained a number of visas for Malaysia and Singapore. The Applicant gave evidence at the hearing with the assistance of an interpreter in the Mandarin language. The Tribunal asked her a number of questions about her claims, and a summary of that evidence is set out in the Tribunal decision record.
The Tribunal’s Findings and Reasons
A copy of the Tribunal decision record can be found at pages 130 through to 151 of the Court Book. The findings and reasons of the Tribunal are set out on pages 146 to 151. The Tribunal accepted that the Applicant was a national of China based on the evidence of the valid Chinese passport produced by the Applicant, and assessed her claims against China as her country of nationality.
The Tribunal noted that during the hearing the Applicant stated that she had been ill quite recently and was not feeling well, but noted that the Applicant did not provide any evidence of her ill-health or its effect on her ability to give evidence and present arguments.
The Tribunal referred to the Applicant's claim that she feared persecution in China because of her involvement in the Seventh Day Adventist Church, and rejected that claim. The Tribunal sets out the reason why it rejected the Applicant's claim, and in particular at page 147 of the Court Book sets out that it did not accept that the Applicant's mother was persecuted or detained.
The Tribunal also rejected the Applicant's description of events arising from the arrest of her mother, such as her own tension and the loss of her job, and a prohibition on Church attendance and subsequent investigations. The Tribunal, in short, rejected that the Applicant came to the attention of the authorities because she was a practising Christian. The Tribunal went on to say at page 148 of the Court Book:
The Tribunal rejects the applicant's claim that she participated in the anti-government demonstration in front of the municipal building. The Tribunal rejects that the applicant came to the attention of authorities as a result of her participating in a demonstrating or that she was detained as a result of participating in such a demonstration.
The Tribunal went on to reject the Applicant's claim that she had lost her job in March 2004 as a result of participating in a demonstration, and described her confused and inconsistent evidence about her employment experience between March and September 2004. The Tribunal went on to state this:
The applicant also claims that she fears persecution as a result of her express or implied political opinion, arising from her conduct at the Beijing TV station and in Singapore. The Tribunal does not accept that the applicant was involved in any anti-government political activities or that she collected anti-government information in Beijing or in Singapore and that she had expressed, or maybe perceived as having expressed, a political opinion.[2]
[2] See Court Book at page 148
The Tribunal also expressed the concern that the Applicant's letter claim arising from her employment had not been provided or even alluded to in her primary application which was based on the Applicant's involvement in Christianity.
The Tribunal found that having regard to all of the incidents reported by the Applicant, singularly and cumulatively, the Tribunal was not satisfied that there was a real chance of the Applicant being persecuted in the foreseeable future, and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The application for judicial review
In her application for review the Applicant sets out four grounds:
a)The Tribunal and the primary decision maker erred in failing to recognise the principle of non-refoulement contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).
b)The Tribunal and the primary decision-maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering it on the basis of all the evidence put before it whether or not it could be satisfied of the applicant's claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lack of bona fides.
c)The Tribunal and the primary decision-maker erred in finding that the general attack on the applicant's credit as an element of a failure to make a bona fide consideration of the application;
d)The Tribunal member and the primary decision-maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8.
The first thing to be said - as I pointed out to the Applicant - that the Court was not reviewing the decision of the primary decision-maker; namely the Minister's Delegate. The decision of the Minister's Delegate had been reviewed by the Refugee Review Tribunal, and the Court was reviewing the decision of the Refugee Review Tribunal.
The Applicant's second and third ground were difficult to understand, and indeed were described by counsel for the Minister, Ms Sirtes, as incomprehensible. I asked the Applicant about those grounds. After some questioning, the Applicant told the Court that she was alleging a lack of bona fides by the Tribunal, and relied on her claim that the Tribunal would not accept the truth of her statements. She relied heavily on the fact that when she had gone to answer a question or several questions from the Tribunal Member that the Tribunal Member interrupted her, and the Applicant wished to know if this was in fact a procedural error.
She referred in particular to a person who had been in a similar situation to herself who had received a bad outcome to his case, referring to the journalist whose case she had referred to in her written statement and the accompanying newspaper report. She criticised the Tribunal Member for not accepting that the case of that person was a relevant indicator of the fate that she might suffer if she were required to return to China.
The counsel for the Respondent Minister in an oral submission referred to the Applicant's concern about having been interrupted by the Tribunal, and submitted that there was nothing to suggest that the Applicant was not given a chance to present her case properly, pointing out that, for instance, no transcript of the hearing had been provided.
As for the anecdotal evidence that the Applicant provided, Ms Sirtes submitted that there was nothing in that evidence to lead the Tribunal to conclude that the Applicant on that basis was entitled to a visa. She also pointed out that at Court Book page 147 the Tribunal had not accepted the Applicant's claims about her mother's religious beliefs, and her mother's detention.
The Applicant in reply indicated that she did not have a difficulty with the Tribunal's findings about her mother's case, and said that the Tribunal did in fact hear her out on that case, but expressed regret that the Tribunal would not accept the truth of her claims about her mother's religious activities and her own. She went on to point out, however, that she had in fact made two claims to the Tribunal. The first one related to her fear of persecution because of her religious faith. The second claim related to her fear of persecution because of what had happened to her in her job.
The Applicant pointed out that she worked for the media and she had mentioned the name of the man, Mr Xiang Cheng who had been imprisoned, in the statement that she provided, and that she had provided a newspaper article. She told the Court that it was her claim that she had suffered in China both in her employment and also as to her spirituality or her religion. She said the nature of her work in the Beijing television station was similar to that of Mr Xiang Cheng who was imprisoned, and she reiterated that both her job and her faith were crucial to her whole life. In both aspects she said she had suffered restrictions so she could not lead a normal life in China.
In dealing with the Applicant's claim, the first ground relating to an error by the Tribunal in failing to recognise the principle of non-refoulement in Article 33 of the 1951 Convention relating to the Status of Refugees, the ground is an allegation of an error, but the Applicant has provided no particulars as to why the Tribunal erred in its understanding or in its application of the tests that arise under the Act. It appears that in the preamble to the decision set out at pages 131, 132 and 133 of the Court Book that the Tribunal set out correctly what it was required to consider in dealing with a person's application to be recognised as a refugee. Ground 1 has not been made out.
Ground 2, as explained by the Applicant rather than as set out in the application, alleges a lack of bona fides on the part of the Tribunal. This relies on the Tribunal's rejection of the Applicant's evidence on certain relevant matters. That ground also appears to rely on the Applicant's claim that the Tribunal interrupted her and would not allow her to bring evidence. It is well established that allegations of bad faith or bias, reflecting as they do personal fault on the part of the decision-maker, are serious allegations and that they must be strictly alleged and strictly proved. It is unusual, to say the least, for such an allegation to be made out, especially when all that is relied upon is the Tribunal's reasons for decision.
There is of course no transcript of the Tribunal hearing, and the reasons given relating to the Tribunal's decision not to accept the Applicant's claims or interrupting the Applicant do not, to my mind, establish any evidence of bad faith. I refer to the decisions of the Full Court of the Federal Court in SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358, particularly at [16], and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA FC 361 at [43] and [44].
I am not satisfied that any bad faith has been proved.
Ground 3 also refers to a failure to make a bona fide consideration of the application which may relate to the Applicant's claims of having been interrupted, but I have already dealt with that claim. The ground also refers to the Tribunal's finding as to the Applicant's credit. The issue of credibility, as counsel for the Respondent Minister submitted, was entirely one for the Tribunal to determine, and the Tribunal set out in its findings and reasons at pages 146 to 150 of the Court Book why it did not find that the Applicant was a credible witness.
In my view, the credibility findings made by the Tribunal were open to it on the evidence before the Tribunal, and accordingly, that finding is not subject to judicial review. As counsel for the Respondent also submitted, to the extent that the Tribunal's credibility findings were based upon evidence from the Applicant, all of that information comes within the ambit of sub‑s.424A(3)(b) of the Migration Act and there was no obligation under s.424A(1) of the Migration Act.
It is of course relevant that the Tribunal wrote to the Applicant about her claim arising out of her employment which appeared for the first time in the application for review rather than the application for a protection visa. That letter clearly comes within the purview of s.424A of the Migration Act, and the Applicant did in fact reply in writing and provide comments in respect of that claim. What happened was that the Tribunal considered that reply, but was not satisfied by the reasons given by the Applicant. That is entirely a matter for the Tribunal, and there is no breach of s.424A of the Migration Act.
The fourth ground deals with a failure to comply either with the Migration Regulations or the Migration Act. Insofar as it refers to Part 8 of the Act, that part deals with judicial review, and no jurisdictional error is revealed. I am not satisfied that any breach of s.424A or s.425 of the Migration Act is revealed.
The Tribunal invited the Applicant to attend a hearing, and allowed sufficient time for the Applicant to attend. The Applicant gave oral evidence at the Tribunal. There is no evidence before me that the Applicant was not given a proper and meaningful opportunity to give evidence and present arguments in support of her claim.
The Applicant has told the Court that she made two separate claims to the Tribunal arising out of her religion and out of her job, claiming to have lost her job as a result of an expression of political opinion. Clearly, they are both Convention grounds, but in my view, the Tribunal dealt with both of them. The Tribunal considered them both, and dealt with both of them. No jurisdictional error is revealed.
I am mindful of the fact that the Applicant is not legally represented in these proceedings. My independent reading of the Tribunal's decision and of the supporting documents does not indicate any arguable case for any other jurisdictional error. I am satisfied there I no jurisdictional error. As a result, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. A privative clause decision is final and conclusive, and is not subject to a declaration or orders in the nature of certiorari or mandamus or prohibition. It follows that the application must be dismissed.
The Applicant has been unsuccessful in her claim and the Minister has been successful. Normally, costs follow the event; in other words, a successful party, if legally represented, may seek an order that that party's legal costs be met by on a party-and-party basis by the unsuccessful party. That is the case here, and I see no reason to depart from that rule. The amount of costs sought is the sum of $5,000.00, inclusive of counsel's fees. That is an amount which is in accordance with the scale of costs set out in the Federal Magistrates Court Rules. I propose to make that order.
I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 31 July 2007
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