SZKML v Minister for Immigration

[2007] FMCA 1967

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKML v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1967

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKML”.

Migration Act 1958 (Cth), ss.91X, s.424A

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: SZKML

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1158 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 20 September 2007

Delivered at: Sydney

Delivered on: 29 November 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Ms S Kantaria of Clayton Utz

ORDERS

1. The application filed on 10 April 2007 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1158 of 2007

SZKML

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant claims she was born in January 1969 in the People’s Republic of China. She entered Australia on 12 November 2006, departed for New Zealand the following day and returned on 15 November 2006. She lodged a protection visa application on 23 November 2006. A delegate of the first respondent refused to grant her a visa and this decision was affirmed by the Refugee Review Tribunal (“the Tribunal”). She now seeks judicial review of the Tribunal decision made on 15 February 2007.

2. The applicant claims she is an adherent of Falun Gong and fears persecution from the Chinese government on Convention related reasons of religion, political opinion or membership of a particular social group and fears persecution from the Chinese government.. The applicant claimedclaims she began practising Falun Gong because of her ill health. She claims she was sent to brainwashingbrainwashed many times and was mentally and physically abused.

3. A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.

4. An amended application filed on 13 July 2007 contains three grounds of review:

   a)The Tribunal was biased and made a decision based on assumptions (“Ground one”);

   b)The Tribunal breached s.424A of the Migration Act 1958 (Cth) (“the Act”) (“Ground two”);

   c)The Tribunal referred to the wrong independent information in considering histhe applicant’s review application (“Ground three”).

Consideration

1. At the first court Court date directions hearing, the applicant indicated to the Court that she did not wish to participate in the scheme to give unrepresented applicants in refugee matters and opportunity to receive independent legal advice on the prospects of success on her application.. However the applicant did avail herself of the opportunity to file an amended application. Unfortunately the grounds in the amended application giving complete particulars of each ground of review relied upon.  Unfortunately these are not substantially different from the grounds those filed in the original application and there has been no attempt to particularise any of those the grounds. Nor did the applicant file any written submissions in support of her application in accordance with orders madewhen the matter was set down for final hearing.  When the. The applicant was invited also declined to make any oral submissions, this invitation was declined indicatingsaying that she would rely on the contents of her amended application.

Ground one

1.  The Tribunal had bias against me and made a decision on my application based on the officer’s assumption.

1. Ms Kantaria, for the respondents, submits that there is nothing in the material before the Court which could support a finding of bias either actual or apprehended.  It is submitted bias. She submits that a fair reading of the Tribunal decision reveals that it approached its task with a mind open to persuasion.

2. It is well established that a finding of actual bias by a Court is a serious matter and that a the party who suggestsuggesting actual bias has occurred hasbears a very heavy onus. However, onOn the other hand, the test for apprehended bias is a little less onus.onerous. That test posits a fair-minded lay observer who is purportedlyproperly informed about the nature of the proceedings and the issues for consideration. The test is whether the fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question. The test is set out in the case of Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982. The Court in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 noted the difference between an inquisitorial tribunal, such as the Tribunal in question here, and Courts which administer public justice. The role of the Tribunal is to investigate the facts for itself, unaided by counsel or parties assisting the case. It may want to test and probe a recounted history which requires questioning and expressing doubt. This exercise, if undertaken by a judge in open Court, might give rise to an apprehension of lack of impartiality. Yet these principles are significant when considering the conduct of a Tribunal member during a hearing. The applicant may have formed the view that the inquisitorial nature of the Tribunal member’s questioning indicated that the member was not a open to persuasion and unwilling to accept the applicant’s responses to the member’s questions. In the absence of any evidence such as a transcript of the Tribunal hearing, I am not satisfied that apprehended bias can be established. For the much more onerous burden of proof required to establish actual bias, there is a complete absence of any evidence to support this claim.

Ground two

2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.

1. Again this claim is made in the absence of any particularisation, evidence or submissions.

2. Ms Kantaria submits that the Tribunal affirmed the delegate’s decision because it found the applicant to not be a witness of truth. Ms Kantaria relies on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], which held that a witness not being a witness of truth does not constitute “information” within the meaning of s.424A(1) of the Act. It is submitted that the information relied on by the Tribunal to form the reason or part of the reason for affirming the delegate’s decision was the applicant’s oral evidence and the independent country information, both of which fall under the exception in s.424A(3) of the Act. The Tribunal decision clearly set out the criteria by which credibility is to be determined and then considered the applicant’s practise of Falun Gong, brainwashing and loss of employment. In each case, the Tribunal was not satisfied that the applicant could sufficiently explain and understand these issues to satisfy it that these claims were genuine. I am also satisfied that the authority relied on by Ms Kantaria is correctly applied in this circumstance. This ground cannot be sustained.

Ground three

3.  The Tribunal referred to wrong independent information for the consideration of my application

1. Again, this ground is without particulars, evidence or submissions in support of the claim.

2. Ms Kantaria submits that the choice and assessment of country information is a factual matter for the Tribunal alone and is not subject to review by this Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].

3. The Tribunal decision clearly identified the evidence it referred to including the name of articles with sources, dates and relevant extracts of cogent points. In the absence of any particulars or submissions by the applicant, there is no indication which article or articles allegedly suffer from defect. NAHI at [11] clearly sets out the criteria applied to the selection and weight of country information:

   11 The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

4. I accept the submission of Ms Kantaria and agree that this ground cannot be sustained.

Conclusion

1. The applicant in these proceedings is a self-represented litigant who was assisted at the hearing by a Mandarin interpreter. The applicant has been assisted by an unidentified third party with limited understanding of the operation of the Act. The grounds pleaded in the amended application are general in nature and, in some respects, formulaic. They are unparticularised and there has been not attempt to provide any supporting evidence or submission. The final decision of the Tribunal was with respect to the applicant’s credit and is not to be upset by this Court. I agree with the submissions made by Ms Kantaria in respect of the grounds pleaded and it is not apparent from the contents of the Court Book or from the face of the Tribunal decision that any other ground of review identifying a jurisdictional error exists. In the circumstances, the matter should be dismissed with costs.

2. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  29 November 2007