SZKOW v Minister for Immigration
[2007] FMCA 1227
•17 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1227 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant a citizen of the People's Republic of China claiming fear of persecution as a Falun Gong practitioner – credibility – allegation of bias – no evidence of bias – no obligation on the Tribunal to make its own investigations of the applicant’s claims – the relevance of independent country information and the weight given to it are matters for the Tribunal – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed SZBVM v Minister for Immigration & Citizenship [2007] FCA 332 followed SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 followed Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 referred to |
| Applicant: | SZKOW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1413 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 July 2007 |
| Date of last submission: | 17 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1413 of 2007
| SZKOW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application presently before the Court is an application to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 8th March 2007. The Tribunal handed its decision down on 3rd April 2007 affirming a decision of a delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant commenced proceedings on 3rd May 2007 by filing an application and an affidavit in support. The Applicant has since filed an amended application on 29th June 2007. The Applicant seeks orders in the nature of certiorari, mandamus and prohibition. She asks the Court to set aside the decision of the Refugee Review Tribunal and send her application back to the Tribunal for determination according to law. She asks the Court to make an order prohibiting the Minister, who is the First Respondent to this application, from taking any action in reliance upon this decision of the Tribunal.
At the commencement of the hearing I explained to the Applicant that the Court can only make orders of that nature if it is satisfied that the decision of the Tribunal was affected by jurisdictional error.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. She arrived in Australia on 19th September 2006 and applied for a Protection (Class XA) visa the very next day. On 16th December 2006 a delegate of the Minister refused to grant the Applicant for a visa. On 29th December the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.
The Tribunal wrote to the Applicant inviting her to attend a hearing. The Applicant attended the hearing and gave oral evidence. The Tribunal asked her questions about her application, in which she claimed to have a well-founded fear of persecution if she were to return to China because she is a Falun Gong practitioner. She claimed to have been arrested along with her then husband and had to pay a bribe in order to secure her release from detention. She left China for Chile in October 2005 and remained in that country where her brother resides. She told the Tribunal that her brother had told her that she could not apply for refugee status in Chile and that there are no Falun Gong practitioners in that country.
The Applicant did not produce her passport to the Tribunal hearing because she said that she had lost it and that she had a travel document instead. The Tribunal handed down its decision on 3rd April 2007.
A copy of that decision can be found in the Court Book at pages 61 to 75. In that decision the Tribunal considers the Applicant's claims and evidence to the Tribunal on pages 64 through to 70 of the Court Book. The Tribunal also referred to independent country information about Falun Gong, the persecution of Falun Gong practitioners in China, the ratification by Chile of the 1951 United Nations Convention Relating to the Status of Refugees on 28th January 1972 and the 1967 Protocol on 27th April 1972.
The Tribunal referred to advice from the Department of Foreign Affairs and Trade dated 11 November 2002 about the process of determining refugee status in Chile and the Tribunal also referred to advice from the United Nations High Commission for Refugees dated 9 October 2002, again relating to refugee status in Chile. The Independent Country Information to which the Tribunal referred can be found at pages 70 through to 73 of the Court Book. The Tribunal's Findings and Reasons are set out on pages 73 through to 75 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal accepted that the Applicant was a national of China and noted that she had a Chinese travel document issued in her name by the Chinese authorities. The Tribunal noted the Applicant's claim to fear persecution in China because she had been a practitioner of Falun Gong since 2005, because she had been detained for being a Falun Gong member and had bribed her way to freedom and because of her claim that she would continue to practice Falun Gong if she was required to return home and would therefore be at risk of arrest and persecution.
The Tribunal, however, found that elements of the Applicant's evidence were, to quote the Tribunal, highly implausible. The Tribunal then sets out on pages 73 through to 75 as to why the Tribunal believed the Applicant's evidence about key parts of her claim as highly implausible.
The Tribunal on page 75 of the Court Book accepted that the Chinese government has accepted the fact that the Applicant no longer has her passport and has issued a new travel document to the Applicant in Australia but due to its findings as to the Applicant's credibility the Tribunal was not prepared to accept that the Applicant did not have the passport in her possession. The Tribunal went on to say:
The Tribunal does not, therefore, accept the truth of any of the applicant's evidence as it relates to her being a Falun Gong practitioner. It does not accept her evidence that she was a practitioner of Falun Gong in China, or is likely to become one should she return to China. The Tribunal also finds that she has not practiced Falun Gong in Australia. It follows that the Tribunal does not accept that the applicant was detained for her practice of Falun Gong or that she bribed her way out of detention and had to flee China because of this.[1]
[1] See Court Book at page 75
In the light of that wholesale rejection of the Applicant's claim on the basis of credibility, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The application for judicial review
The Applicant seeks a review of that decision and in her amended application sets out two grounds. They are as follows:
1. The Tribunal relied on irrelevant independent information for the consideration of my application. The information relied on was hearsay.
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.
The Applicant had included another ground, which is in fact a multiple ground, in her application. The Applicant in her oral submission revived those grounds. In her original application the Applicant claimed:
The Tribunal had bias against me and did not believe the claims of my application for a protection visa. The decision to refuse my application was not made based on evidence. There is not material to support the decision.
There was another ground referred to in the original application which is perhaps the reverse or perhaps the mirror image of the first ground in the amended application. For the sake of completeness I will consider that as well. That ground is:
The Tribunal did not refer to relevant independent information for the consideration of my application.
It will be recalled that the first ground of the amended application is that the Tribunal relied on irrelevant independent information for consideration of her application and that the information that was relied on was hearsay. As the Applicant is not legally represented, in my view all of the grounds raised, whether in an application or orally, should be considered.
The Applicant made a submission to the Court in oral form. She did not file a written outline but she told the Court that the Refugee Review Tribunal did not consider her application according to the Migration Act. She said that the Tribunal had bias against her. She said that it was impossible for there to have been secrets hidden in her passport because of modern scientific techniques, that information about her passport should have been available on the Internet. She said that the Tribunal refused her application without any basis and did not provide any evidence or material. She again told the Court that the Tribunal denied her claims based on irrelevant information and did not consider her application according to the provisions of s.424A of the Migration Act.
I asked the Applicant to expand on her claim that the Tribunal was biased because there did not seem to be any particulars of that claim or any evidence of it. The Applicant said that the Tribunal was biased because the Tribunal found against her. Whilst it was not the case that anyone who did not agree with her would automatically be classified as biased, in this case the Applicant believed that the Tribunal's rejection of her claims and in her view the Tribunal's failure to comply with certain elements of the Migration Act indicated to her that the Tribunal was biased.
Dealing with a claim of bias, it is well established that bias or bad faith is a serious matter involving personal fault on the part of the decision‑maker. It should not be lightly made and must be clearly alleged and proved. It is well established that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the Applicant relies upon is the written reasons for the decision under review (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44] and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16]). In my view, there is no evidence of bias on the part of the Tribunal and that ground must fail.
The Applicant has claimed that there was no material or evidence which would support the Tribunal's decision not to grant her application. I asked the Applicant to elaborate upon that and she advanced the proposition that it is necessary for the Tribunal to produce some evidence to disprove an applicant's claim. It is well established that that is a misconception. It is for an applicant for a visa of any sort to satisfy the Minister, or in this case the Tribunal, that the applicant meets the criteria for a visa (see s.65 of the Migration Act).
Whilst the Refugee Review Tribunal has the power to seek information in any way or to require further information or even investigations to be taken, it is well established that there is in general no obligation upon the Tribunal to do so (see SZBVM v Minister for Immigration & Citizenship [2007] FCA 332 at [16] and SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 at [12]). In the latter case Heerey J pointed out that the Tribunal's power under s.424 is clearly discretionary and the Tribunal does not have a duty to investigate the applicant's claims. His Honour referred to Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [42]‑[43].
In my view, no jurisdictional error has been made out in respect of any claim that the Tribunal did not have evidence upon which to base its failure to be satisfied that the Applicant met the necessary criterion for a protection visa under sub-s.36(2) of the Migration Act.
The Applicant takes issue with the country information to which the Tribunal referred. It is well established that the relevance or otherwise of independent country information and the weight which a Tribunal gives it are purely matters for the Tribunal.
As to the claim that the information relied on was hearsay, that is not a claim that will assist the Applicant. Virtually all independent country information considered by the Refugee Review Tribunal is hearsay. The Tribunal is not bound by the Evidence Act or by the Common Law Rules of Evidence. The Tribunal is not a Court. It is an inquisitorial body.
Counsel for the Respondent Minister, Ms Clegg, has referred the Court to the provisions of s.424 of the Migration Act in support of a claim that the Tribunal is entitled to obtain information in any way that it deems fit.
As to the claim that the country information was irrelevant, it appears clear that the information to which the Tribunal referred was highly relevant. The Applicant claims to have been detained and to fear persecution in China on the basis of being a Falun Gong practitioner. She claims to have spent some time in Chile before she left for Australia. She claims that she was not able to apply for refugee status in Chile. The Tribunal referred to independent country information about Falun Gong and the status of Falun Gong practitioners in China. Some of that information came from the web site of Falun Gong in Australia. The information relating to Chile came from the Department of Foreign Affairs and Trade and the United Nations High Commission for Refugees and related the fact that Chile is and has been for a number of years a party to the Refugees Convention and the 1967 Protocol and that there is a procedure for applying for refugee status in that country.
In my view, that information to which the Tribunal referred was clearly relevant. Counsel for the First Respondent Minister has submitted, and correctly in my view, that the complaint about the relevance of independent country information is an attempt to re‑agitate the merits of the Applicant's claim. That is not a ground of review and it must fail.
The Applicant claims a breach of s.424A of the Migration Act.
A breach of s.424A is perhaps the most common basis for claims to this Court of jurisdictional error on the part of the Refugee Review Tribunal. The effect of that section is widely misconceived. The section must be read as a whole and it is important to read not only sub-s.(1) but sub-s.(3) paragraphs (a) and (b) which relate to matters that are excluded from the operation of sub-s.(1) of s.424A. For the purpose of clarity, I will read sub-s.424A(3) on to the record:
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; or
(c)that is non-disclosable information.
There is no nondisclosable information in this case. True it is that the Tribunal referred to independent country information about Falun Gong, Falun Gong practitioners in China and the process of applying for refugee status in Chile. That is all covered by sub-s.424A(3)(a). The main reason why the Tribunal was not satisfied that the Applicant's case should succeed was based on its rejection of the applicant's evidence to the Tribunal. That is by definition information that the Applicant gave for the purpose of the application under sub‑s.424A(3)(b) of the Act.
It is quite clear that the Tribunal did not regard the Applicant as a credible witness and did not find credible the key parts of the Applicant's claim. Credibility is a factual finding and is a matter for the Tribunal. So long as there is evidence upon which such a finding is open then there is no place for intervention by a Court exercising judicial review. The Tribunal in its decision set out at pages 73, 74 and 75 reasons why the Tribunal was not satisfied that the Applicant's evidence on those key points of her claim was credible. There is no breach of s.424A of the Migration Act. That claim must fail.
I am mindful, as I said, of the fact that the Applicant is not legally represented. My reading of the Tribunal decision and supporting material does not indicate any arguable case of any jurisdictional error. I am satisfied that no jurisdictional error has been made out. It follows that the Tribunal decision is a privative clause decision as defined by sub‑s.474(2) of the Migration Act. As the decision is a privative clause decision it is final and conclusive and it is not subject to orders in the nature of certiorari, mandamus or prohibition which the Applicant seeks. Therefore the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $4,250.00. The Applicant has been wholly unsuccessful in her claim and I see no reason why the Court should not make an order for costs in favour of the successful Respondent. The amount of $4,250.00 is inclusive of counsel's fees and appears to me to be within the scale envisaged by the Federal Magistrates Court Rules.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 26 July 2007
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