SZKJR v Minister for Immigration
[2008] FMCA 31
•14 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 31 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of her membership of Falun Gong – allegation of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A |
| Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 NADH v The Minister forImmigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 |
| Applicant: | SZKJR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 934 of 2007 |
| Judgment of: | Howard FM |
| Hearing date: | 14 January 2008 |
| Date of last submission: | 14 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 January 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Baird |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00. The Applicant has six (6) months to pay the costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 934 of 2007
| SZKJR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant in this case is 49 years old. She is a citizen of The People’s Republic of China. The Applicant has had 11 years of education. According to the Court Book, and in particular the decision of the Refugee Review Tribunal, the Applicant was employed at the Zheng Zhou No.2 Light Industrial Bureau, China.
It is the Applicant’s case (indeed it was when the matter was heard by the Refugee Review Tribunal) that she has been a member of Falun Gong since 1997.
The Applicant arrived in Australia on 10th September 2006 and applied to the Department of Immigration & Multicultural Affairs for a Protection visa on 3rd October 2006.
The Delegate decided to refuse to grant the visa, the Applicant applied to the Refugee Review Tribunal on 15th November 2006 for a review of the Delegate’s decision. The Refugee Review Tribunal in a decision which was signed on 30th January 2007 in Sydney, affirmed the decision not to grant the Applicant a Protection (Class XA) visa. The Applicant has sought judicial review by this Court in relation to that decision of the Refugee Review Tribunal.
Applicant’s Application for Judicial Review
The only evidence in this case is contained in the Court Book which is Exhibit 2, and Exhibit 1 which is a letter from the solicitor acting for the First Respondent to the counsel who, according to a particular pilot program, was providing advice to the Applicant.
In the amended application of the Applicant filed on 3rd July 2007 the grounds for the application are stated as follows. The grounds for the application are stated as:
1. The Tribunal had bias against me and did not believe the claims of my application. The Tribunal did not believe that I am genuine Falun Gong member because of the Tribunal’s bias against me.
2. The Tribunal failed to carry out its statutory duty. The Tribunal failed to consider my application in accordance with s.424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reason.
No further application has been brought to my attention, or amended application has been brought to my attention by the Applicant.
Ground 1
In relation to the first ground, the question of bias. There are several matters today that were addressed to me by way of submission by the Applicant. The Applicant is self-represented and appears with the aid of an interpreter. After the submissions were made by the Respondent and by way of re‑submission or reply the Applicant wanted the tape recording of the hearing before the Tribunal to be admitted into evidence in this hearing.
I note that an order was made by Lloyd-Jones FM on 17th April 2007 in Sydney. In paragraph 4 of that order it is stated:
“Other than the Green Book, all evidence relied upon by the parties shall be presented by way of affidavit. Evidence of a Tribunal hearing shall be presented as a transcript verified by affidavit and a tape recording shall not be received without the leave of the court obtained prior to the hearing.”
I have been informed by the Applicant and by Mr Baird on behalf of the Respondent that no such application was made to the Court prior to this hearing to seek the leave of the Court to allow the admission of the tapes into evidence.
I specifically asked the Applicant today whether she has listened to the tapes, but she has not. I do note that the tapes were sent to the barrister who was appointed to represent her. I asked the Applicant what part of the tape she wanted me to listen to. Her point seems to relate to that part of the case that deals with the performing of Falun Gong exercises by the Applicant.
The Applicant maintains by way of a submission today, that the Tribunal Member essentially tried to prevent her from performing the exercises. She also said today that the exercises were not requested by the Tribunal Member, but that the Applicant herself initiated the exercises.
To my mind even if I had allowed what was essentially today an application at a very late stage by the Applicant for leave to have the tape (or tapes) admitted into evidence before this Court the insurmountable difficulty faced by the Applicant is this, that there was essentially a credibility finding against the Applicant by the Refugee Review Tribunal.
I am satisfied this finding of credit against the Applicant was open to the Tribunal on the evidence. It is noted in the Court Book:
“The Tribunal also asked the applicant if she could demonstrate the 5 Falun Gong exercises.”[1]
The Tribunal advised the Applicant that it had concerns that she had a very limited understanding of the practice of Falun Gong which did not accord with the information that it had before it relating to the practices of Falun Gong.
[1] See Court Book at page 81
The Tribunal also advised the Applicant that her demonstration of the exercises did not accord with the independent information the Tribunal had before it regarding each of the five exercises and the movements within those exercises. I also note in the Tribunal’s decision it was stated:
“The Tribunal does not accept that the applicant had anything other than a limited understanding of the importance of or meaning of the concept of the Falun. Nor does the Tribunal accept that the applicant was aware of the number of movements within the exercises or that she was able to perform the exercises in a manner which was consistent with the independent evidence before the Tribunal which depicts each of the exercises and the movements within those exercises.
The Tribunal acknowledges that it may be difficult for applicants to articulate the principles and meaning behind the practice of Falun Gong during the hearing situation. However, the Tribunal does not accept that the applicant’s claim that she found it difficult to communicate during the hearing explains her extremely limited understanding of Falun Gong. The Tribunal is satisfied that the applicant had considerable opportunity during the Tribunal hearing to explain her knowledge of Falun Gong and its importance to her. The Tribunal does not accept that she was able to do so in anything other than an extremely rudimentary manner.
….
The Tribunal would also expect the applicant to be able to explain the number of movements within the exercises and to be able to perform those exercises.
….
The Tribunal finds the applicant’s extremely limited understanding of Falun Gong to be highly inconsistent with her claim that she has practised Falun Gong for some 10 years”[2]
[2] See Court Book at pages 83 -84.
The reason I have referred to those parts of the decision is, essentially, that the Applicant has maintained that she tried to perform or show the Tribunal that she knew how to perform the Falun Gong exercises but the Tribunal did not give her the opportunity or in fact prevented her from performing those exercises. As I stated earlier, there has essentially been a finding of credit against the Applicant. That being the case, I do not consider that even if this Court gave the Applicant leave to submit into evidence a tape recording of the hearing, that it would or indeed could in any way, affect my decision in this case.
The fact of the matter is that the evidence and the record show and reveal that the Applicant was given an opportunity to perform the exercises and that she was given plenty of time to perform those exercises. At the very least, that is implicit in what has been said. It is also apparent that the Applicant did perform some exercises but that the Tribunal concluded that the limited performance of the exercises and the limited ability of the Applicant to perform them led the Tribunal to conclude that there was a lack of credibility on the part of the Applicant.
I have referred to all of those parts of the decision and the earlier hearing, particularly on the question of this admission into evidence of the tape. I already ruled that the order of Lloyd-Jones FM on 17th April 2007 was clear, and that I would not allow the tape into evidence.
I also conclude for the reasons stated that in any event because of the finding of credibility against the Applicant on this question of the inability to perform the Falun Gong exercises, it would have been a futile exercise to allow the admission into evidence of the tape.
In relation to this question generally, that is to say the allegation of bias generally, it is submitted on behalf of the Respondent, and I agree, that there is nothing in the material before the Court which could support a finding of either actual or apprehended bias on the part of the Tribunal.
Mr Baird submitted, and I agree, that an allegation of bias is a serious allegation. A party who alleges actual bias bears a heavy onus. In my view there is nothing to support a claim of actual bias. Concerning the question of apprehended bias, the test is essentially whether a fair-minded lay observer who has been properly informed about the nature of the proceedings and the issues for consideration, whether such a lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question. That test has been set out in a number of cases including Re Refugee Review Tribunal; Ex parte H[3].
[3] (2001) 75 ALJR 982
It is also worth noting here the decision in NADH v The Minister forImmigration & Multicultural & Indigenous Affairs[4]. That is a helpful case and it may assist the Applicant to understand the role of the Tribunal. That role is essentially inquisitorial, the role of the Tribunal is to investigate the facts for itself.
[4] (2004) 214 ALR 264
It may be the case that because of the inquisitorial nature of the hearing before the Refugee Review Tribunal that the Applicant herself questioned or wondered about the role of the Tribunal or whether the Tribunal was acting in an impartial manner. The fact of the matter is that the Tribunal was entitled to, and indeed was obligated by law to investigate the facts.
One way of investigating those facts was to question the Applicant in relation to her knowledge of Falun Gong and her understanding of the exercises of Falun Gong. In asking those questions of the Applicant the Tribunal was only acting according to law.
I am not satisfied that apprehended bias has been established. I have already noted that I was not satisfied that a claim of actual bias has been established.
This is probably a convenient time to refer in the decision to what was probably a separate ground referred to only today in a general manner by the Applicant concerning the question of the fair hearing. There were submissions made today by the Applicant which could essentially be classified as a submission that the Applicant did not receive a fair hearing.
I have just explained the inquisitorial nature of the role of the Refugee Review Tribunal. I consider it highly likely that it was the inquisitorial nature of the Tribunal’s approach which may have left the Applicant with the impression that she had not received a fair hearing. On the basis of the evidence and the material before the Court I am satisfied that the Applicant received a fair hearing by the Refugee Review Tribunal.
There is no transcript in evidence. If a transcript was to be relied upon then order 4 of Lloyd-Jones FM dated 17th April 2007 should have been complied with. There is also no further evidence or any evidence presented by way of affidavit as required by that order of Lloyd-Jones FM. I have already made reference to the question of the tape.
Ground 2
The next ground relied upon by the Applicant is that the Tribunal failed to carry out its statutory duty and in particular there is a reference to a failure to comply with s.424A of the Migration Act 1958.
The submissions by the Applicant in relation to this particular point were not very well particularised. It appeared to be a somewhat general type of submission.
The obligation under s.424A is clearly set out in the section itself :
Section 424A - Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
Importantly, in sub-section (3) it is noted that section 424A does not apply to information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member.
I accept the submission made by Mr Baird on behalf of the Minister that the information referred to by the Tribunal concerning Falun Gong members generally and their practices (including their beliefs and exercises would fall within the exception referred to in s.424A(3)(a)).
I also accept the submission made on behalf of the Respondent that the essential reason for the Tribunal’s decision was that it did not accept that the Applicant was a genuine Falun Gong practitioner. The Tribunal made that finding on the basis of the limited knowledge of Falun Gong displayed by the Applicant at the hearing. That information was provided by the Applicant to the Tribunal and hence it falls within the exception contained in s.424A(3)(b) of the Act. Accordingly, that is not information to which the remainder of s.424A would apply.
Some reference was made today to one other matter about which I want to comment. Some mention was made by the Applicant of some photographs. Now, I was not able to find any record in the Court Book of any reference to photographs. Those photographs are not in evidence. As far as I can ascertain, the photographs were not in evidence before the Tribunal.
I note in the Court Book pages 52 and 53 Mr Baird referred me to a letter dated 15th November 2006 where the Refugee Review Tribunal wrote to the Applicant and told the Applicant to immediately send any documents, information or other evidence which the Applicant wants the Tribunal to consider. I accept that the Applicant failed to send any photographs in accordance with that request that was made more than a year ago. I also accept that the Applicant failed to provide to the Tribunal any photographs. Those photographs are not in evidence at this hearing.
Conclusions
I accept that the findings that were made by the Refugee Review Tribunal were open to that Tribunal on the evidence. I am satisfied that there was a fair hearing. I am satisfied that there was no bias by the Tribunal. I am also satisfied that there has been no breach of s.424A of the Act. Essentially the final decision of the Refugee Review Tribunal was with respect to the Applicant’s credit and that decision should not to be upset by this Court. In my view there has been no ground of review identifying a jurisdictional error.
Given the Applicant in these proceedings is a self-represented litigant who was assisted at this hearing by an interpreter, I have not merely relied upon her own submissions but I have referred to the Court record generally, the Court Book and so on. Therefore I have not just relied upon the written grounds of the review as stated in her application or her amended application. I have not been able to identify any jurisdictional error by the Tribunal.
In the circumstances I conclude that because the Applicant has not demonstrated any jurisdictional error in the Tribunal’s decision and no such error has been disclosed by the Tribunal’s reasons for decision or in the procedures followed by the Tribunal the application should be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: V Lee
Date: 16 January 2008
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