SZKEO v Minister for Immigration
[2008] FMCA 537
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 537 |
| MIGRATION – Application for reinstatement – whether Court should set aside orders – no satisfactory explanation for failure to appear – whether utility in granting leave sought. MIGRATION – Review of decision of the Refugee Review Tribunal – no breach of any common law rule of procedural fairness – no breach of s.424A of the Act – no breach of statutory regime of procedural fairness – no failure to consider claims – no evidence of bias – no inference of bias to be drawn – no apprehension of bias – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 422B, Division 4 of Part 7, 425, 36(2), 65 Federal Magistrates Court Rules 2001 |
| WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZKEO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 444 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 April 2008 |
| Date of Last Submission: | 24 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Appearance for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 7 April 2008 is dismissed.
The applicant pay the first respondent’s costs in relation to the application dated 7 April 2008 set in the amount of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 444 of 2007
| SZKEO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me today an application filed on 7 April 2008 which, in context, I understood to be an application made pursuant to Rule 16.05 of the Federal Magistrate Court Rules 2001 (“the Rules”) by which the applicant seeks that this Court set aside the orders made on 18 February 2008 dismissing an application previously made by the applicant. That application was made pursuant to the Migration Act 1958 (Cth) (“the Act”) on 12 February 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 19 December 2006, and handed down on 11 January 2007, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
The background to the matter before the Court today is found in my judgment (SZKEO v Minister for Immigration and Anor [2008] FMCA 173) of 18 February 2008. What can be drawn from that judgment is that the applicant sought review of the Tribunal decision. As noted above, this application for review was made on 12 February 2007. Accompanying that application was an affidavit sworn by the applicant on 12 February 2007 which set out additional complaints about the Tribunal’s decision.
I note from the Court file (and as recorded in my earlier judgment) the applicant appeared at the first Court date in this matter before a Registrar of this Court on 22 March 2007. He was assisted on that occasion by an interpreter in the Mandarin language and he signed Short Minutes of Order that led to the Registrar making orders by consent that set out what the applicant himself described to the Court today as the timetable for the progress of his matter before the Court. That timetable included opportunities for the applicant to put further documentation before the Court. I also note from what appears in the Court’s file that at that time the applicant requested, and was subsequently given, access to the Court’s Legal Advice Scheme for refugee applicants. In June 2007, the applicant appeared before the Registrar on a second occasion and the final hearing of the application was set for 18 February 2008 at 2.15pm.
On 18 February 2008, when the matter was called for final hearing, the applicant did not appear. No explanation had been provided by the applicant to the Court, or to the first respondent’s legal representatives, to explain or to notify any difficulty in attending. There was no request for an adjournment before the Court made either by the applicant or by anyone on his behalf. Given the unexplained absence of the applicant, and in the other circumstances I have noted, the Court dismissed the application pursuant to Rule 13.03A(c) of the Rules.
Documents were filed with this Court on 7 April 2008 consisting of a document headed “Application In A Case”, and an affidavit sworn by the applicant on 7 April 2008 which asserts:
“1.I am the applicant of this matter
2.I was very sick as I could not attending the hearing on 18 Feb 2008.”
In effect, I saw these documents as seeking that the Court set aside its orders made on 18 February 2008 and restore to the applicant the opportunity for a final hearing in his matter.
This matter was set down for hearing at 9.30am this morning. The applicant provided a medical certificate to the Court. The certificate states that:
“[The applicant] consulted me on cold and fever. She/he will be unfit to resume work until 17/02/08 to 19/02/08.”
There is nothing on the certificate to show that the certificate was issued by a registered medical practitioner in Australia.
Despite the unsatisfactory aspects of the applicant’s explanation relating to the certificate, that is, notwithstanding the concerns that I have with the certificate, and notwithstanding the concerns that I have as to the sufficiency of the certificate to explain the applicant’s failure to have made any even telephonic contact (for example, by use of a friend) with the Court or the first respondent’s solicitors to explain his inability to attend, I nonetheless told the applicant that I would give him the opportunity for his hearing and asked him to proceed with submissions to the Court in support of his complaint about the Tribunal’s decision. At that time the applicant submitted to the Court that he had not brought relevant documents to the Court and wanted the opportunity to make his submissions with relevant documents.
For that reason and again, remembering and notwithstanding my concerns about the explanation that he had provided for his failure to attend at the final hearing on the previous occasion, I nonetheless adjourned the matter until 3pm this afternoon to enable the applicant to go home and collect his documents. I made it clear to the applicant that his opportunity to present his case would be at 3pm today. On resumption, after some little time of a demonstrated inability or unwillingness of the applicant to respond to the Court’s attempts to settle the relevant background and history of the progress of his case before the Court, the applicant then sought an adjournment of the hearing of his matter on the basis now that he wanted to obtain assistance with the presentation of his case. I rejected what I understood to be an application for an adjournment for the following reasons
From what is plainly on the Court’s file, the applicant’s original application to this Court was filed in February of 2007. There is a sworn statement the applicant put before the Court which he now says he does not remember making. The applicant appeared before a Registrar in March 2007 and then again in June 2007. In March 2007, the timetable for progress of this case before the Court was set, and in June 2007 the matter was set down for final hearing in February 2008.
On that date, the applicant did not appear when the matter was called. No explanation was provided to the Court for the failure to appear, and no request for an adjournment was made by the applicant or anyone else on his behalf. Following dismissal of that application on that day, the applicant has now sought, by application made on 7 April 2008, to set aside the orders made on 18 February 2008, and to have the final hearing of this matter. The applicant was given the opportunity for that application to be heard this morning at 9.30am. At that time the applicant produced what he said was a medical certificate, although I note that the certificate is not prepared by a registered medical practitioner in Australia, and made no reference to the applicant’s inability to attend Court on that day. Notwithstanding my concerns about that certificate, I told the applicant that I would conduct a final hearing of this complaint. When the Court resumed, the applicant indicated this morning from the bar table that he could not proceed in the morning because he did not have his documents with him which had been left at home. It was for that reason, among others, that I adjourned to 3.00pm this afternoon to enable the applicant to go home and collect his documents. The applicant, after some lengthy period of displaying to the Court what appeared to be an inability, or an unwillingness to assist the Court in trying to establish the history of the progress of his case before the Court, the applicant then sought an adjournment of the final hearing on the basis that he wishes to obtain assistance in preparing for that hearing.
The applicant has said nothing to the Court today to demonstrate to the Court that he has taken any steps to actively pursue that issue, or indeed, to actively progress the filing of additional material in this matter as he was able to do pursuant to orders made previously by the Registrar of this Court. Nor has the applicant said anything to the Court that would give the Court any basis for concluding that there was some clear and firm plan for him to obtain any assistance in the future. Although it is open on what is before the Court to infer that the applicant is pursuing this not for any purpose stated, but for the purpose of further prolonging his stay in Australia, I do not reject the application for adjournment on that basis. I reject it on the basis that the applicant has had more than enough time (14 months) since the making of the originating application (and at least eight months since he last appeared before a Registrar) to attend to the matter that he now says he needs to attend to. I do not understand the applicant to have provided any satisfactory explanation for his failure to have progressed his case to this point, nor do I understand from the applicant that there’s any firm or clear plan about what he would intend to do to obtain the advice which he says that he now wishes to obtain.
The applicant has known now for some considerable time that his matter was due for final hearing, and indeed he has had additional time since 18 February 2008 to have further pursued the assistance which he now says that he wishes to pursue, and has done nothing. In all the circumstances it is clearly not appropriate that any further delay be occasioned in this matter. The adjournment is therefore refused. The final hearing of this matter will therefore take place today.
I note also the unsatisfactory nature of the applicant’s conduct before this Court today to the extent that when the applicant appeared this morning there was no request for an adjournment for any considerable length of time but merely a request from the applicant for the opportunity to obtain his documents. There was no mention this morning of any requirement to obtain further legal or other assistance in the presentation of his case before the Court. I can only express some concern as to the applicant’s subsequent conduct in then coming back to the Court and seeking a longer adjournment on an entirely different basis. The reasons for rejecting that adjournment application was that the applicant has had more than enough time to have prepared for the hearing of his matter, has not provided any satisfactory explanation for his failure to attend to the issue of assistance with his case which he, only at the last minute, raises as an issue of concern, and said nothing to the Court that would give the Court any capacity to understand that there was some probability that the applicant would be able to obtain the assistance for which he says that he required further time.
The issue before the Court now is whether the Court should set aside its orders made in February 2008 and provide further opportunity in this matter. There are two relevant issues to that consideration. The first is the adequacy or otherwise of the applicant’s explanation for the failure to appear on that earlier date, and the second is that if there is a satisfactory explanation, whether there would be any utility or any purpose in providing a further opportunity to the applicant, bearing in mind that to be successful in obtaining the relief that the originating application seeks, the applicant or the Court would need to discern jurisdictional error in the Tribunal’s decision.
The applicant has variously put to the Court today that he was not aware that the final hearing of his matter was to take place on 18 February 2008, and I did not understand him to be saying that he did not know that his matter was before the Court on that day, but that rather he did not understand that date to be the final hearing of his application. I also understood from the applicant that he asked the Court to consider that until today he did not know anything about the nature of the proceedings and that this also should be a matter relevant to the Court setting aside its orders and providing further opportunity to the applicant.
In relation to the first issue, I am not satisfied, in all the circumstances, that the applicant has put a satisfactory explanation before the Court. This does not so much derive from the Court’s previously stated concerns about the certificate provided by the applicant, but derives generally from the circumstances of the applicant having made an application to this Court well over a year ago and to have known at least as at June 2007, of the final hearing of his matter. I can only note again that the applicant on that occasion appeared before the Registrar with the assistance of an interpreter in the Mandarin language, where the Registrar made only one order and that is that the application be listed for hearing before me on the date already stated.
The applicant has done nothing to progress his matter before the Court. No amended application has been filed in pursuance of the opportunity provided previously by the Registrar over a year ago to him. No further evidence (that is, further to the affidavits already put before the Court) has been filed by the applicant in furtherance of the opportunity provided to him by the Registrar well over a year ago.
I do not accept the applicant’s submission from the bar table that he was not aware that his matter had been set down for final hearing. In the circumstances that is a difficult submission to accept. If, indeed, the applicant asserts that he does not know anything about proceedings before this Court, the Court to a certain extent is prepared to accept that an applicant from a non-English speaking background would indeed have difficulties in understanding Court processes and procedures, although I note that there were a number of opportunities where these processes were explained and relevant documents were translated to the applicant with the use of a qualified interpreter in the Mandarin language. But what I particularly do not accept about the applicant’s submission today is that if it is true that he did not know, as he said, anything, he has not explained to any degree of satisfaction (indeed, he has not explained to any degree whatsoever) as to why he took no steps to find out about the relevant processes in the 14 months that have been available to him.
In all of these circumstances, the length of time available to the applicant, the opportunities provided to him when he has appeared before a Registrar of this Court, his demonstrated capacity to at least have obtained some assistance in the filing of the various documents that he has already put before this Court, I do not accept what is implicit in the applicant’s complaint today that he had no opportunity to find out about relevant processes. In this context it is open to this Court to see the applicant’s failure to attend and subsequent provision of the certificate (when seen also in the context of the applicant’s conduct before the Court today in relation to his various requests for adjournments that is, the adjournment granted this morning and the adjournment dealt with this afternoon), as Ms Warner Knight has submitted, as that the applicant in those circumstances has not provided a satisfactory reason for his failure to attend the final hearing of this matter in February 2008. The inference is further open to be drawn that after having made his originating application to this Court, the best that the applicant could say to the Court in support of that originating application was not really to assert any jurisdictional error on the part of the Tribunal’s decision, but to assert some lack of independence of the Refugee Review Tribunal itself from the first respondent’s Department (an implication of bias), with which I will deal in a moment.
For all these reasons, I find that I am not satisfied that the applicant has provided a satisfactory explanation for his failure to attend on the last occasion. I do not leave the matter there, because if, on the material that is before me, I could discern either jurisdictional error or that there was otherwise some reasonable prospect of success for the applicant, I would move to set aside my orders and provide the applicant with the opportunity for a further hearing. But simply, I cannot see that the Tribunal’s decision is affected by jurisdictional error, nor indeed that there is any arguable case that the applicant could advance such that it would be useful and appropriate to allow an opportunity for the matter to be more fully considered.
In relation to this issue, I note that in response to, and in compliance with, orders made by a Registrar of this Court, the first respondent has filed a bundle of relevant documents which I will refer to as the Court Book (“CB”). I note also that I have before me written submissions prepared by Counsel on behalf of the first respondent and filed in relation to the originating application and in anticipation of the final hearing of this matter.
I discern from these documents that the applicant is a national of the People’s Republic of China. It appears he arrived in Australia in January 2005 and applied for a protection visa in August 2006. A copy of this document is reproduced in the Court Book at CB 1 to CB 34. I note that in making his application, the applicant was granted assistance in the making of that application, and I note in particular what is set out at CB 35 and CB 36. A delegate of the respondent Minister refused the grant of a protection visa to the applicant. I note in particular what is set out in that regard, including the decision record of the delegate, at CB 47 to CB 61. The applicant applied to the Refugee Review Tribunal for review of that decision in October 2006. A copy of that application is reproduced at CB 62 to CB 65. I note that before the Tribunal the applicant was assisted by a registered migration agent.
Initially, the applicant’s claims for protection were set out in a statutory declaration that he submitted with his protection visa application, and this is reproduced at CB 33. In essence, the applicant’s claims to protection as a refugee in Australia are said to derive from his claim to be a Christian in China who attended church on a regular basis, but who had not experienced serious problems because of his religion. However, since his arrival in Australia he had become attracted to the Catholic Church, and he considered himself a Catholic and asserted that if he were to return to China he would continue to practice his religion, but that he did not want to have anything to do with the official Catholic Church in China because he did not believe it to be a real church. In those circumstances, he asserted that he would face serious harm amounting to persecution from the Chinese authorities if he were to return to China, because of his religion.
I note that written submissions were provided to the Tribunal on the applicant’s behalf by way of his registered migration agent. These submissions are reproduced at CB 74 to CB 80. I note that from the Tribunal’s hearing record, which is reproduced at CB 84, the applicant attended a hearing before the Tribunal on 12 December 2006. Also in attendance on that occasion was his migration agent representative. The only account of what occurred at that hearing that has been put before the Court is the Tribunal’s own account, which is contained in its decision record.
The Tribunal found that the applicant did not have a strong commitment or conviction to the Catholic Church that is, a commitment or conviction that was sufficiently strong that it would need to be suppressed if the applicant were to return to China in circumstances to avoid harm. For reasons which it plainly gave in its decision record the Tribunal found, in assessing what the applicant himself had said to it at the hearing, that his relevant knowledge and behaviour is more indicative of a desire to be in a friendly and accepting environment rather than any true devotion to Roman Catholicism, and the Tribunal did not accept that the applicant has demonstrated a commitment or conviction to the Catholic Church that is sufficiently strong such that it would need to be suppressed in order to avoid harm.
I note at this point a reference to an authority helpfully provided in written submissions that is, the matter of WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 (at [28]-[30]), for the proposition that the Tribunal may, without taking on the role of arbiter of doctrine with respect to any religion, question an applicant about that person’s beliefs on matters which that particular religion teaches, or its tenets, and that it is open to the Tribunal to explore the level of an applicant’s knowledge and understanding, and commitment to that religion. Because of this the Tribunal reasoned that it did not accept that there was a real chance that the applicant would come to adverse attention in China by reason of his stated Roman Catholic convictions.
The Tribunal’s reasoning also addressed evidence from the applicant that it did not make a difference to him whether the church that he attended on return to China was the registered Catholic Church or the Catholic Church that was not registered with the authorities, and I agree with submissions made by the first respondent that the Tribunal’s subsequent finding did not engage the difficulty identified by the High Court in the matter of S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 when the Tribunal found that even if it accepted that the applicant “may continue his interest in the Catholic faith on his return to China”, that he can do this in the registered Catholic Church. On that basis the Tribunal, in addition, was not satisfied (at CB 97.10 to CB 98.1):
“that [the applicant] has religious convictions which would prompt him to undertake behaviour in China that may place him at risk.”
I am further strengthened in the view that the Tribunal did not infringe on the difficulty identified by the High Court in the cases to which I have already referred in that the Tribunal plainly understood what had been relevantly raised in those cases, and as it applied to its assessment of a real chance of persecution if the applicant were to return to his home country, when it said (at CB 98.1):
“The Tribunal draws a distinction between someone who would need to modify his behaviour in China out of fear of persecution, and the applicant.”
Plainly, the Tribunal was cognisant that it would fall into error if it made a finding that required the applicant to modify his behaviour on return to China. That is, to modify behaviour such as to avoid persecution.
The Tribunal also noted evidence from the applicant that he had not had any problems going to church in China and noted evidence given by the applicant that after he came to Australia he started to suspect that people loitering or patrolling outside the church were plainclothes police. The Tribunal addressed that claim and ultimately was not satisfied, for the reason that it gave, that the applicant faced any real chance of persecution based upon his participation in the activities of this particular church. In particular I note the Tribunal’s finding that the applicant’s suspicions were “pure speculation only” (CB 98.4).
In all, therefore, the Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention, and it therefore affirmed the delegate’s decision to refuse a protection visa to the applicant.
The originating application to this Court contains the following stated grounds:
“1.The procedural is fairness including a breach of s.424A of the Migration Act.
2.Violation of duty by RRT in satisfying itself as to the eligibility of the applicant for a protection visa.
3.Misapplication of Law.”
(Errors in original.)
I note also that at the time of making that application the applicant filed two affidavits, both made on 12 February 2007. To the extent that those affidavits appear to assert further grounds of error on the part of the Tribunal, I take note and consider those complaints for the purposes of seeking to discern whether the Tribunal’s decision is infected with jurisdictional error. I quote from the first affidavit:
“1.On 20 December 2006, Tribunal worte a letter to my agent that a decision had been made on my case. The letter sated that if our or your authorised recipient do not attend, we will send a copy of your decision by post. I never received a copy of my decision from RRT.
2.On 1 Feb 2007, I requested a copy of my decision, I got a copy of decision on the same day.”
(Errors in original.)
The second affidavit made on 12 February 2007 (leaving aside the assertions that the applicant claims to be the applicant and to have applied for a protection visa, matters that do not appear to be at issue) there are numbered “4, 5 and 6” the following complaints:
“4.The tribunal breached S.424A of the Migration Act by not giving me the opportunity to give additional information to rebut the country information upon which the Tribunal relied.
5.The Tribunal did not consider all of my claims fairly and carefully.
6.The Tribunal did not send me a copy of my decision and a copy of decision was request by me on 1st Feb 2007 by me.”
(Errors in original.)
Before the Court today Ms Warner Knight appeared for the first respondent. She relied on written submissions, to which I have already referred, and made submissions on additional matters. The applicant appeared in person and was again assisted by an interpreter in the Mandarin language. Apart from the matters to which I have already referred and addressed, the applicant raised one matter, which is a matter which ordinarily may reveal jurisdictional error on the part of the Tribunal, but which plainly in the circumstances of this case does not succeed. I will deal with that matter, being a matter of, as I understood it, an allegation of bias, in a moment.
Dealing first with what is stated in the application the applicant appears to assert by stated ground one, that there was a denial of procedural fairness, and in particular, a breach of s.424A of the Act. With reference to what is set out in the affidavit to which I have referred, it appears that this complaint is particularised by the allegation that the Tribunal did not give him the opportunity to give additional information to rebut the country information upon which the Tribunal relied.
Dealing first with the complaint of breach of procedural fairness in the broad if I can put it that way, and by that I mean to the extent that a general complaint of a breach of procedural fairness may seek to assert a breach of such procedures at general or common law, then I note that this is a case to which s.422B of the Act applies making the provisions set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias). There is now well-settled ample authority for that proposition (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
In any event, even if the complaint is to be taken as some application of the common law principles, then I note that the applicant had ample opportunity to present his case to the Tribunal: written submissions were provided to the Tribunal on his behalf, the applicant attended a hearing, and his adviser accompanied him to that hearing. The only account of what occurred at that hearing (that is, the Tribunal’s own account) reveals that relevant issues were discussed and the applicant was given the opportunity to give explanations and to give evidence. In all, I cannot see any failure at general law, if indeed such a complaint were open to the applicant to make in proceedings of this type.
The applicant complains of a breach of s.424A of the Act. To the extent that this could be said to be particularised by what is contained in the applicant’s affidavit that is, that the Tribunal failed to provide him with an opportunity of rebutting independent country information, I note that in any event s.424A(3)(a) of the Act provides that the obligation on the Tribunal to provide information for comment to an applicant does not extend to an opportunity to comment on what may be described as non-in personam independent country information. The applicant’s complaint therefore in this regard fails because of the exclusion contained in s.424A(3)(a) of the Act.
I cannot see that s.424A(1) of the Act is otherwise enlivened in the circumstances of this case. While the delegate’s decision relied on independent country information available to the delegate, the Tribunal’s decision was based to an overwhelming extent on the evidence given by the applicant himself at the hearing. As such, to the extent that this evidence could be characterised as “information” for the purposes of s.424A(1) of the Act, it would fall within the exception contained in s.424A(3)(b) of the Act from the obligation to put such information in writing to the applicant, because it was plainly information provided by the applicant to the Tribunal for the purposes of the review.
To the extent that perhaps it may be said that the Tribunal’s findings to some little extent may relate to or rely on the structure of the registered Catholic Church in China, then such information would clearly fall within the exception set out in s.424A(3)(a) of the Act to which I have already referred. To the extent that the applicant’s complaint is that the Tribunal should have put to him its adverse thought processes as relating to its assessment of his claims in general, or to the extent that these may be said to derive from its knowledge of events in China, then with reference to what the High Court said in the matter of SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18] (and in particular I note the High Court’s endorsement of what was said by the majority of a Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, per Finn and Stone JJ at [24]) the Tribunal’s thought processes are not “information” for the purposes of s.424A(1) of the Act.
Because the applicant is unrepresented before the Court, I also considered whether his broad complaint of a failure to accord procedural fairness by the Tribunal had any prospect of success (let alone whether it could succeed) in relation to what the High Court said about procedural fairness and s.425 of the Act in the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”). The High Court in that matter was plainly concerned that, as a matter of procedural fairness, an applicant should not be caught unawares of what are the determinative issues (that is, the issues dispositive of his application), and that either as a result of the delegate’s decision or what may occur at the hearing before the Tribunal pursuant to s.425 of the Act, the applicant be given the opportunity to address those issues.
The High Court said that the starting point in this regard is the delegate’s decision. In this regard it would appear that there were two such determinative issues before the delegate. The first is the detail as to the applicant’s commitment to Catholicism, and this appears in the delegate’s decision record at CB 53.6. The applicant would have been on notice, following the delegate’s decision, that a claim to fear persecution on return to China on the ground of religion, and in particular the professed belief and practice of Roman Catholicism, would require some detail and evidence as to the commitment to Catholicism. The second is the delegate did rely on independent country information before her and at CB 54.3 she says that she took into consideration country information which confirms restrictions on religious freedom, but that based on the information provided by the applicant, she could not be satisfied that his claims to fear persecution on the basis of his recent interest were genuine, and gave reasons for that.
Before the Tribunal the dispositive issues were, firstly, that the applicant had not displayed at the hearing knowledge, commitment, and understanding of Catholicism consistent with his claimed conversion, and that there was therefore, in those circumstances, no real chance of persecution. Secondly, if he did return to China and did believe in Catholicism, and he practiced Catholicism in the way that he had said that he would do so (noting carefully that the Tribunal did not have any expectation of modification of behaviour on the part of the applicant) that he could do so without any real chance of persecution.
The applicant was clearly on notice as a result of the delegate’s decision of the issue of his level of commitment to Catholicism as being one of the determinative or dispositive issues. Further, however, in relation to that issue, and in relation to what I have noted as the second issue before the Tribunal, it is quite clear from the evidence before the Court that the Tribunal raised both issues with the applicant at the hearing, and in two ways can be said to have met what the High Court said is required in SZBEL. Firstly, with reference to what the High Court said at [47] of that judgment, it is clear on any plain reading of the Tribunal’s account of the hearing that sufficient indicators were given by the Tribunal during the course of the hearing as to the matters that were determinative of the applicant’s claims, and in particular, the substratum of facts underpinning those issues.
Secondly, and in particular, the Tribunal squarely put the following to the applicant (and I quote here from CB 96.4):
“It was put to him he did not know much about Catholicism and he had not practiced in Australia, he had been to church once, he could not state why the Catholic Church was different from his previous faith and it did not make any difference to him whether he went to the registered Catholic Church in China or not.”
The Tribunal then sets out the applicant’s explanation. The Tribunal further put to the applicant:
“When it was put to him that the Tribunal would expect that he could state why he chose the Catholic Church in preference to other churches, he stated in China he had not been exposed to Catholicism but if he was asked to state the difference, his first impression was that Catholics were warm and nice.”
Despite opportunity provided by a Registrar of this Court, the applicant has not provided any evidence (for example, by way of transcript of the Tribunal’s hearing) to contradict what the Tribunal says occurred at the hearing. I also note, in context of the applicant’s statements made to the Court, albeit in a general way today, that he needed help in putting matters before the Court because he did not understand the processes, that the applicant, despite his statements in this regard, was able to put quite a number of documents before this Court, which I understood, at least in some aspects, were actions taken with the assistance of a friend. In any event, what remains is that this Court can only proceed on the evidence that is provided to it, and based on that evidence I cannot see any breach of s.425 of the Act, particularly any breach of the procedural fairness requirements.
In all, the applicant’s complaints, as they can be said to arise from what is set out in ground one of the application, and with reference to the other documents, are simply not made out. In the context, therefore, of what I am asked to consider today, there is nothing arising from ground one (with the liberal extent that I have sought to apply to the stated ground one, to show any error), let alone jurisdictional error on the part of the Tribunal, or indeed that there is an issue that compels the Court to provide any further opportunity to the applicant.
Ground two in the amended application asserts some violation of a duty by the Tribunal in satisfying itself as to the eligibility of the applicant for a protection visa. No particularity whatsoever is given by the application or the other documents. The first respondent properly and fairly attempts to give this some particularity by reference to what is set out at paragraph 5 of one of the applicant’s affidavits. That is, that the Tribunal did not consider all of the applicant’s claims fairly and carefully.
Firstly, the relevant statutory scheme that applies to an application of this type is that set out in s.65 and s.36(2) of the Act. With reference to relevant authorities, what the Tribunal is required to do is to consider all of the applicant’s claims, all of the integers of an applicant’s claims, to properly and fairly consider these claims, and to either reach or not reach a level of satisfaction that the applicant, in effect, meets the definition of refugee as is set out in Article 1A(2) of the Refugees Convention.
As the first respondent submits, the Tribunal plainly, on what is before the Court, did consider all of the claims that it was required to consider in the exercise of its jurisdiction. I note in this regard the first respondent’s reference to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63] and [68]. But ultimately, the Tribunal could not reach the requisite level of satisfaction such that a protection visa must be granted to the applicant. In these circumstances there is very clear authority that a refusal of the application is therefore mandated (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
I note, for the sake of completeness, the fact that the Tribunal did not accept the applicant’s claims is not in itself a breach of its relevant duty. Of course, the Tribunal does not require positive evidence to the contrary not to be satisfied by an applicant’s evidence. The Tribunal’s role is in fact to properly assess the evidence that is put before it and to make findings of fact, and this is what this Tribunal has done. On what is before the Court, the Tribunal’s findings in this regard were open to it on what was before it, and the Tribunal gave reasons (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ). Ground two would not assist the applicant if it were to go further than today, and in any event, does not and would not succeed.
Ground three merely states the words “misapplication of law”. I can only agree with the first respondent that no error in this regard is evident on the material that is before the Court. The applicant’s affidavits, in particular paragraph 6 of one of the affidavits and the whole of the other affidavit, appear to raise a complaint with the Tribunal not sending a copy of the decision to him in spite of his request. There is nothing before the Court to show that there was any error on the part of the Tribunal in relation to the signing, the handing down and transmission of its decision record, which, from what appears before the Court, was dispatched on 11 January 2007 to the applicant’s authorised recipient for the purposes of receiving correspondence. But in any event, nothing turns on or relevantly arises from this complaint. This complaint may have had some relevance to issues of when the applicant was notified of the Tribunal’s decision, and whether the applicant’s application was made within relevant time limits, and whether, therefore, the proceedings were properly commenced in this Court particularly in terms of whether this Court may be said to have jurisdiction to hear the matter. No such issue, however, arises in this case. The first respondent has not sought to challenge jurisdiction in this matter, nor has the first respondent otherwise sought to assert that the proceedings in this Court (the originating proceedings in this Court) were not properly commenced. This complaint does not assist the applicant today, nor could it possibly assist the applicant if the matter were allowed to go to another date.
Finally, before the Court today the applicant asserted that the Tribunal is not an independent organisation and was part of the first respondent’s Department. It is not clear what exactly is the nature of the applicant’s complaints in this regard, but if he seeks by that to assert that the Tribunal did not bring an independent or an open mind to the consideration of his application for review (that is, that it was biased) then what must be noted, and with reference to relevant authorities, such a ground needs to be distinctly and clearly made and would need evidence in support to be made out (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17).
As stated, the applicant’s statement today can be seen to be a complaint of bias, at best, inferentially made, but there is simply no evidence before the Court that the Tribunal did not bring an open mind to the proceedings, and such a complaint plainly fails. To the extent that it may be said that the Tribunal is perceived to be close to the first respondent’s Department, and the complaint therefore may be one of the apprehension of bias, that is, that the well-informed lay observer would reasonably apprehend that the Tribunal was biased against the applicant, then this complaint also does not succeed today, and would not succeed on any future occasion, simply arising from what the applicant has stated to the Court today. Nor can I see any useful purpose in allowing such a complaint to proceed any further.
I cannot discern jurisdictional error in the Tribunal’s decision. I cannot discern that there is any matter in all of the material before the Court today that would give rise to any necessity, or indeed in relation to which there would be any useful purpose in setting aside my orders already made such that the matter can be more fully aired on some future occasion. As I said before, I do not accept that there is a satisfactory explanation for the applicant’s failure to attend on the previous occasion, but in spite of that would have considered setting aside the orders made previously if there was some other purpose to doing so, that is, to allow any matter that may go to show jurisdictional error on the part of the Tribunal to be aired and considered at a future occasion.
For the reasons that I have already stated, I cannot see that there is any utility in so doing and therefore the application made by the applicant on 7 April 2008 is dismissed. The effect of that, for the applicant’s benefit, is that the orders that I made previously in relation to the originating application stand.
It is the normal practice that the successful party to the proceedings should be successful in an application for an order for costs, unless there is some special reason or something that would argue against the making of such an order. When given the opportunity the applicant stated that he did not know what to say. Beyond that, I cannot discern any reason such that the order for costs should not be made. The application to reinstate his originating application necessitated a response by the first respondent and for reasons which are clear and arise from my judgment, this has necessitated not only preparation for the matter to be heard today, but a lengthy attendance at Court by a senior solicitor representing the Minister in these proceedings. I will therefore make that order.
As to the amount, I am required to consider what is reasonable in all the circumstances, and I note in particular that, as I emphasised to the applicant, he is already subject to a costs order made by this Court which is relevant to the period up to 18 February 2008. Having regard, however, to the work that has been done by the first respondent’s legal representatives since that time in responding to the application made by the applicant on 7 April 2008, I am satisfied that the amount sought is a reasonable amount and I will make the order in that amount.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 6 May 2008
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