SZKOP v Minister for Immigration
[2008] FMCA 665
•26 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 665 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for Protection (Class XA) visa – whether breach of s.424A of the Act – whether procedural fairness – merits review not the function of judicial review – whether Tribunal acted ‘capriciously and arbitrarily’ – bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424, 424A, 425, 474 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 |
| Applicant: | SZKOP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1377 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 27 March 2008 |
| Date of Last Submission: | 27 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 1 May 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,950 payable within four (4) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1377 of 2007
| SZKOP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 March 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 5 May 1967 and was aged 39 years at the time of his application for a protection visa.
The applicant claims to be a national of China.
The applicant arrived in Australia on 10 July 2006 on a Chinese passport issued in his own name, holding a Visitors visa, which was valid until 10 August 2006.
The applicant lodged an application for a protection visa on 4 August 2006 on the basis that he is a Falun Gong practitioner and had participated in protests in China against the government in regard to confiscation of land. He fears persecution if he has to return to China (Court Book (CB) 27).
On 2 November 2006 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 5 December 2006 the applicant applied to the Tribunal for review of the delegate’s decision (CB 44-47).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 21 December 2006, the Tribunal sent a letter to the applicant inviting him to appear before it on 7 February 2007 to give oral evidence and present arguments (CB 51-52). The applicant attended the hearing on that date.
On 27 March 2007, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.
The Tribunal’s findings and reasons (CB 66-68)
The Tribunal found that:
·it was not satisfied that the applicant was a Falun Gong practitioner in China up to 1999; nor that he was arrested for this reason; nor that he had a record in China as a former Falun Gong practitioner
·the applicant's account of the July 2005 protest demonstration was brief and uninformative. It was therefore not satisfied that the applicant was involved in a protest against government land seizures in July 2005; nor involved in the protest demonstration; nor that he was subsequently visited by police who imposed a penalty of a fine on him
·it was not satisfied that the applicant was in fact fined for breaching the one child policy to which he had made passing reference.
For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from his stated or perceived practice of Falun Gong, nor for his involvement in protests against government land seizures.
The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to China for reasons of being a Falun Gong practitioner, a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 1 May 2007 setting out 1 ground for review of the Tribunal’s decision.
The applicant appeared in person before this Court on 27 March 2008 with the assistance of a Mandarin interpreter. Ms Crittenden appeared for the first respondent.
The ground of application was translated for the applicant prior to his being invited to say anything he wished to in regard to this ground and generally.
Grounds of application
The one ground of application states that:
(1)The Refugee Review Tribunal failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of the s.424A of the Act.
The Refugee Review Tribunal found that the applicant had not practised Falun Gong in Australia, and on the basis of the finding the Refugee Review Tribunal formed its opinion that the applicant is not a genuine Falun Gong practitioner. The Refugee Review Tribunal failed to invite the applicant to explain why he had not practised Falun Gong in Australia.
Ground 1 of the application
The applicant has not provided the Court with a copy of the transcript of the Tribunal hearing. However, the Tribunal summary of the evidence given by the applicant at the hearing (CB 66) includes the following:
Asked about his claims to have practised Falun Gong the Applicant said he only did so for a period when his health was poor. Asked if he practised in Australia he said he did not and that he no longer practised.
Asked if there was anything he wished to add he said living in Australia was better than living in China where the local people were looked down on by the authorities.
I am satisfied therefore that the Tribunal gave the applicant a reasonable opportunity at the hearing to explain why he had not practised Falun Gong in Australia. There is nothing to indicate that the Tribunal precluded the applicant from providing an explanation in this regard, and the Tribunal also invited the applicant to provide "anything he wished to add".
In this case, the applicant was not sent a letter pursuant to s.424A of the Act by the Tribunal inviting his comment or response to any “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.
The clear statutory rationale for s.424A is to oblige the Tribunal to provide to the applicant “clear particulars of any information” upon which it might make an adverse finding; ensure “as far is reasonably practicable” that the applicant understands the relevance of that information to the review and the consequences of it being relied upon; and to give the applicant an opportunity, as a matter of fairness, to respond to or comment on that information before the Tribunal makes its decision.
Subsection 424A(3), however, provides certain statutory exceptions to this obligation. Relevantly in this case, “information that the applicant gave for the purpose of the application for review” is exempt: s.424A(3)(b), seemingly because the applicant is clearly on notice of such information provided by him to the Tribunal.
It is also clear that a proper construction of the word “information” in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Equally at the forefront of the Tribunal’s thought processes and appraisals of the evidence in the present case, was the credibility of the applicant’s evidence.
For these reasons, I consider that the Tribunal was not obliged to notify the applicant pursuant to s.424A(1) of its concerns about his credibility. I therefore detect no breach of s.424A of the Act and am satisfied that the applicant was accorded procedural fairness in this regard in compliance with the statutory regime.
Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Accordingly, Ground 1 of the application is rejected.
The applicant’s affidavit
The applicant in his affidavit of 26 April 2007 states:
RRT found I was not a committed Falun Gong practitioner. I believe RRT acted capriciously and arbitrarily in making such finding.
To the extent that the applicant is asserting that the Tribunal was biased through capricious and arbitrary behaviour on its part and therefore failed properly to assess whether there was a real chance of his being subject to persecution if he returned to China, he has provided no particulars to identify the precise nature of such an allegation. Further, as has already been noted above, the applicant has not provided the Court with the transcript of the Tribunal hearing.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, whilst the applicant makes these assertions, they have simply not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record to support, let alone provide a basis of proof for, any allegation of capricious and arbitrary behaviour on the part of the Tribunal towards the applicant, or that the Tribunal pre-judged the matter or embarked on it with a mind not open to persuasion.
Contrary to the applicant’s assertion, I thus detect no procedural unfairness on this basis.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 26 May 2008
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