SZKFG v Minister for Immigration
[2007] FMCA 1041
•14 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1041 |
| MIGRATION – Findings of fact not subject to review – bias not established – weight for Tribunal to decide. |
| Migration Act1958 (Cth), ss.424A, 474 |
| Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | SZKFG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 500 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 14 June 2007 |
| Date of last submission: | 14 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms A. Nanson of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 500 of 2007
| SZKFG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 14 February 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 13 December 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application.
The applicant was born on 15 July 1966 and claims to be from and of Chinese ethnicity.
The applicant’s wife and three children remain in China.
The applicant arrived in Australia on 26 April 2006 on a Subclass 456 (business short stay) visa.
On 26 May 2006 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. In this application he made the following claims (in summary) (CB 64-9):
·That his only purpose in coming to Australia was to escape persecution and seek protection;
·That his second sister went missing sometime during the pro-democracy movement in China; that his father attempted to find out what happened and was eventually killed by the authorities as a result;
·While studying in Japan he sent to his sister (before she went missing) newspaper clippings about the pro-democracy movement; and he was subsequently detained, interrogated and physically mistreated by the Public Security Bureau (PSB) for anti-Communist activity;
·From October 2004 he began to secretly distribute pro-democracy and anti-Communist materials with a friend (that friend is identified as “DZ” in the Tribunal’s decision record); that together they formed a small group dedicated to this purpose; that their members were arrested and later denounced as anti-government by the PSB and that the applicant was forced to flee to Australia.
This application was refused by a delegate of the first respondent on 18 August 2006 (CB 82-94).
On 18 September 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 97). The applicant appeared before the Tribunal on
21 November 2006 to give evidence and present oral arguments (CB126).
By decision signed on 13 December 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicants claims, the Tribunal found (CB 136-9) (highlighting added):
The applicant claims to fear persecution in China because the authorities have discovered that he has been involved in distributing anti-government literature. He claims that he had a sister who disappeared during the 1989 pro-democracy movement, and that his father was imprisoned when he sought to find out what had happened to that sister, and later died in a psychiatric hospital. He claims that, influenced by these events, he began to seek justice for his father’s death, and later became involved in drafting petitions and distributing anti-government literature.
There is no evidence before the Tribunal which would cause it to doubt the applicant’s assertion that he is a citizen of the PRC. The Tribunal finds, therefore, that he is a citizen of the PRC.
When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his or her claims. However, it is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) FCR 220).
The applicant, in 2003, obtained a passport issued in his own name. Although he asserts it was obtained with the assistance of two intermediaries who used their contacts for this purpose, the Tribunal does not accept this. He had previously held a passport in his own name, and according to his most recent submission to the Tribunal, he would have been regarded by the authorities as one of the “ordinary people” whose activities did not warrant him being prevented from travelling abroad. It would therefore seem reasonable that the authorities would have been prepared to issue him with a further passport when he sought one in 2003. Had he needed to apply for a passport in anything other than the normal way, the Tribunal would not have expected him to have done so in his own identity. The Tribunal therefore finds that the applicant’s passport was issued in the normal way, and that he was not adversely regarded by the authorities in 2003.
When the applicant lodged his protection visa application, he explicitly denied that he had previously made any other type of application to the Department. However, he had previously lodged an application for a business visa in January 2005. The Tribunal does not accept his explanation that he made no mention of that earlier application in order to protect the people who assisted him to make it. He could have mentioned the prior application without disclosing their alleged role. The Tribunal finds that the applicant attempted to conceal the fact of his prior application, in order to hide the fact that he held a current passport in his own name and had been refused a visa at that time.
Given that the applicant held a passport in his own name, and applied to the Department for a visa in his own name in January 2005, the Tribunal can see no reason why the applicant would have needed to give incorrect information about his father or to disguise the existence of any deceased siblings. The Tribunal does not accept the explanation that certain information was withheld from people who allegedly made the application on his behalf, or that those people would have made two mistakes about his father (given name and date of birth). The Tribunal finds that the information he gave in connection with that visa application was accurate. In particular, the Tribunal finds that the applicant did not have a sister who is missing believed dead.
Given these findings, the Tribunal does not accept that he and his father came to the adverse attention of the authorities because of issues relating to his missing sister. In particular:
· Since he was able to leave China under his own identity in 1990, the Tribunal does not accept that the applicant came to adverse attention in January 1990 because he sent material from Japan to any of his sisters in 1989;
· Because it does not accept that the applicant had a sister who went missing in 1989, it does not accept that his father was involved in actions to find out what happened to her. It therefore does not accept that his father was arrested in Beijing in 1989 and 1994 or that he was admitted to a psychiatric hospital in 1994 or related reasons;
The Tribunal accepts that the applicant’s father is no longer living, and that he died in 1995. However, the Tribunal does (sic) gives no weight to the death certificate document which the applicant submitted at the hearing. As explained to him at the hearing, the document is of a kind which could very easily be fabricated, and the details of the name of the deceased person does not match the name of the applicant’s father has set out in the application for a business visa. Further, the Tribunal does not accept the applicant’s explanation that he was unable to bring it with him from China because he did not have it with him when he was in Xiamen. He told the Tribunal at the hearing that it was a precious document that he “always” kept with him. There is nothing in the document which would suggest that it would have caused him any danger had he been discovered with it. Moreover, had that document been in existence at the time the applicant lodged his protection visa application, the Tribunal would have expected him to have made explicit reference to it in response to either question 13 or question 14 in his application form B. The Tribunal finds that it is a recent fabrication.
The Tribunal therefore it does not accept that the death of the applicant’s father was attributable to any adverse action by the Chinese authorities. It follows from this that the Tribunal does not accept that the applicant had any reason to agitate for his father’s release from hospital or to seek “justice” from the authorities for his father’s death.
The Tribunal has found above that the applicant’s passport was issued in the normal way in 2003, and that he was not adversely regarded by the authorities at that time. As also stated above, the Tribunal does not accept his claims about the circumstances which he said gave rise to actions (drafting petitions, printing and distributing anti-government literature etc) on his part which were regarded as dissident by the authorities. For these reasons, and given that he has not supported his assertions about such actions with any corroborating evidence, the Tribunal does not accept that he was involved in such actions.
As the Tribunal does not accept that the applicant is adversely regarded by the authorities, it follows that the Tribunal does not accept that his telephone and mail is being monitored by authorities in China.
In summary, as all the applicant’s claims that he was adversely regarded because of his involvement in distributing political material essentially derive from the alleged disappearance of a sister in June 1989, it follows from its finding that there was no such sister, that the Tribunal does not accept these claims.
In all the circumstances, the Tribunal does not accept that the applicant is adversely regarded by the PRC authorities. It finds that he obtained someone else’s passport in order to travel to Australia with the visa contained in it, because he had previously been refused a visa in his own name when the Australian authorities doubted his bona fides.
As the Tribunal does not accept that the applicant is adversely regarded by the PRC authorities, it finds that he would not be at risk of persecution were he to return to China in a reasonably foreseeable future.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out the following grounds and particulars:
Grounds of the application
· There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
· There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
(1)The Tribunal failed consider my application, properly and fairly; and erred by finding that “…the applicant’s passport was issued in the normal way, and that he was not adversely regarded by the authorities in 2003…”
(2)The Tribunal failed genuinely to assess the evidences in relation to the death of my father and the missing of my young sister favourable to me, and it has used unbalanced reasons for rejecting my evidences.
(3)The Tribunal made a decision with bias; and it has, unfairly, given too much weight to my previous application for a business visa around January 2005.
(4)The Tribunal failed genuinely to comply with its obligations under s.424A(1) of the Act; and completely ignored my claims submitted to it after the Tribunal’s hearing.
(5)I never ever believe that my application has been assessed by the Tribunal, fairly and carefully.
The applicant has not filed an amended application.
Findings of the Court as to the grounds in the application
Grounds one and two have the same particulars. The Court will therefore consider each particular in relation to both grounds.
Particular 1 seeks to challenge findings of fact by the Tribunal. In oral submissions, the applicant sought to challenge findings of fact. As stated by the Federal Court of Australia in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10:
…the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
The Court applies those statements of the law to this matter. The findings of fact by the Tribunal about which the applicant complains, were properly open to the Tribunal on the material before it. They are not open to review before this Court.
Insofar as the particular alleges bias, that will be considered with particular three. Particular one is rejected.
Particular two seeks to challenge findings of fact. The findings about which the applicant complains were properly open to the Tribunal on the material before it. Particular two is rejected for the reasons above.
Particulars three and five allege bias. No particulars are provided and no evidence has been filed to comply with the requirement that “an allegation of bias must be clearly made and distinctly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court accepts also that it is “a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”:SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
“To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously’”:SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“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”:Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established in this case. That claim is rejected.
Particular three complains that the Tribunal “has, unfairly, given too much weight to my previous application for a business visa around January 2005”. As stated by the Federal Court of Australia in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
The weight that is to be given to a relevant factor is a matter for the Tribunal unless it can be said that the Tribunal’s decision is manifestly unreasonable (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234.
The decision must be so unreasonable that no reasonable person could have come to it: Ibid at [41].
The Court does not find that the decision is so unreasonable that no reasonable person could have come to it. Also as stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence preferred as it thinks appropriate in the circumstances.
This complaint is rejected.
Particular four alleges that the Tribunal breached s.424A(1) of the Act and that it “completely ignored my claims submitted to it after the…hearing.” The Tribunal sent a s.424A letter to the applicant on
22 November 2006 (CB 109 and 110), which was after the hearing on 21 November 2006. This letter detailed the matters of concern to the Tribunal. The applicant responded with a statutory declaration (CB 114-116).
At CB 134-135 the Tribunal quoted from the s.424A letter, and at CB 135-136 the Tribunal analysed the applicant’s response in his statutory declaration. It is therefore incorrect to allege that the Tribunal “totally ignored my claims submitted after the hearing”. It is apparent the Tribunal considered the applicant’s responses in his statutory declaration. Particular four is rejected.
In his oral submissions to the Court the applicant said that the Tribunal ignored his comments of 5 July 2006. The Court takes that to refer to the comments by the applicant in his statutory declaration (CB 80).
The Court referred to that statutory declaration (CB 130.5). That shows that the Tribunal did not ignore those comments by the applicant. The applicant complained that the delegate was not aware of the information that was in the application for a protection visa. As explained to the applicant during the hearing, the decision of the delegate is not in issue in these proceedings.
The applicant complained that the Tribunal did not carefully consider the reasons for his application. No bias has been shown by the Tribunal. This is a complaint about findings of fact and adverse findings as to credibility that are not subject to review.
When asked on numerous occasions by the Court “what information did the Tribunal ignore?”, the applicant merely said “the Tribunal did not believe me”. Findings of credibility are findings of fact that are not subject to review. The applicant complained that the Tribunal did not accept as valid a certificate produced to the Tribunal. That complaint seeks a review of findings of fact by the Tribunal that is not open to review.
No errors of law or reviewable errors of fact have been shown to the Court. The grounds and particulars and submissions by the applicant are rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 4 July 2007
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