SZKQH v Minister for Immigration
[2007] FMCA 1310
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1310 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of China who claims a fear of persecution as a Falun Gong practitioner – allegation of bias – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424A |
| Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZKQH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1546 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 July 2007 |
| Date of Last Submission: | 30 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1546 of 2007
| SZKQH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal's decision was signed on 22nd March and handed down on 12th April 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant Protection (Class XA) visa.
The Applicant commenced proceedings on 16th May 2007 by means of an application and an affidavit in support. He filed an amended application on 4th July 2007. In the amended application he seeks:
a)A writ of certiorari issue to remove the decision of the Refugee Review Tribunal dated 12/04/07 into the Court to be quashed.
b)A writ of mandamus to issue to the Tribunal to hear and determine the application of the Applicant according to law.
c)A writ of prohibition to issue to the First Respondent Minister to prevent any action being taken in reliance upon the Tribunal.
Background
The Applicant is a citizen of Peoples Republic of China who arrived in Australia on 2nd October 2006. He applied for a Protection (Class XA) visa on 8th November of that year. That application was refused on
2nd December 2006 by a delegate of the Minister. On 2nd January 2007 the Applicant applied to the Refugee Review Tribunal for a review the delegate's decision
The Applicant gave a mailing address being a postal address in Sussex Street in the suburb of Sydney, which is not his residential address.
He did not nominate any person to act as his advisor or authorised recipient. The Tribunal wrote to the Applicant on 11th January 2007 inviting him to attend a hearing on 26th February.
The Applicant sent in a ‘Response to Hearing Invitation’ indicating that he wished to attend the hearing. He also sent in a form of ‘Change of Contact Details’ giving his new residential address and his new postal address. The Applicant attended the hearing on 26th February. Two days after the hearing the Tribunal wrote to the Applicant. The letter, dated 28th February 2007, was headed ‘Invitation to Comment on Information’. The letter told the Applicant:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.[1]
[1] See Court Book at page 49
The letter then set out a number of items of information upon which comments were sought by the Applicant. Information included a summary of parts of the Applicant's evidence to the Tribunal and some independent country information about Falun Gong. The information included answers to questions in the Applicant's application for a protection visa.
The letter told the Applicant that the information was relevant because his lack of knowledge of Falun Gong was not consistent with either evidence in the statement attached to his protection visa application or his evidence at the hearing about his practice of Falun Gong. The letter also told the Applicant it was relevant because:
Your lack of knowledge of Falun Gong together with the inconsistencies in your evidence as set out above may lead the Tribunal to doubt your credibility more generally; that is, whether you can be believed. If so, it may lead the Tribunal to doubt your claims as set out in your protection visa application and the attached statement and your claims as espoused in your evidence to the Tribunal at hearing on 26 February 2007. [2]
[2] See Court Book at page 51
The Tribunal invited the Applicant to provide comments in writing by 23rd March 2007. The Tribunal handed down its decision 12th April 2007. A copy of the Tribunal decision record can be found at pages 57 through to 67 of the Court Book. In the decision record, the Tribunal examined the reasons given by the Applicant with his protection visa and summarised the hearing on 26th February 2007. The Tribunal member asked the Applicant a number of questions about his knowledge of Falun Gong and his practice of Falun Gong. It is the Applicant's claim that he has a well founded fear of persecution in China because of his practice of Falun Gong.
The Tribunal pointed out to the Applicant that some of his evidence at the hearing conflicted with the earlier evidence. The Applicant told the Tribunal that his mind was confused. The decision goes on to say:
The applicant told the Tribunal that he fears returning to China because he will be arrested and interrogated by police about Falun Gong. When asked what he could tell them about Falun Gong, the applicant said that they want him to report on other members. The applicant said that his brain is confused because of the injury he incurred to his head whilst detained.[3]
[3] See Court Book at page 61
The Tribunal decision refers to the letter that the Tribunal sent to the Applicant on 28th February 2007. That letter was written in order to comply with s.424 of the Migration Act. The Tribunal noted that the letter was returned to the Tribunal with ‘Return to Sender’ marked on the envelope and the Applicant did not provide any address for correspondence since 6th February 2007.
The Tribunal also referred to independent country evidence about Falun Gong in its decision, which was also contained in the s.424A letter to the Applicant.
The Tribunal's findings and reasons
The Tribunal accepted that the Applicant was a Chinese national and assessed his claims against China as his country of nationality. The Tribunal noted the Applicant's claim that he would face persecution for being a Falun Gong member if he returned to China.
The Tribunal noted the Applicant's claim that he had been detained and tortured in 2004 for three months and some days. That claim was made for hearing and the Tribunal noted that it conflicted with the information provided in the statement attached to his protection visa application.
The Tribunal noted the knowledge about Falun Gong that the Applicant displayed at the hearing was very limited. The Tribunal noted that the Applicant indicated that he had forgotten details of those matters because he had incurred a brain injury when he was retained in 2004. The Tribunal noted the significant inconsistencies about his detention and what happened when he left. The Tribunal went on to find:
As a result the Tribunal does not accept that the applicant was detained in 2004 as claimed and it follows that the Tribunal does not accept that he suffered a brain injury during that detention that led him to forget crucial details about Falun Gong.[4]
[4] See Court Book at page 66.
The Tribunal found the Applicant's knowledge of the principles and meaning of Falun Gong and his inability to even name the exercises, to be highly inconsistent with its claim of having practised Falun Gong over a five year period and having been involved in promoting it. The Tribunal did not accept that the Applicant was a Falun Gong practitioner in China, and that he continued to be in Australia.
The Tribunal did not accept the Applicant's evidence about having been detained and investigated by the police, or that the police obtain more evidence against him in order to charge him. The Tribunal made this finding at page 67 of the Court Book:
The Tribunal does not accept that the applicant has had or is perceived to have had any association with Falun Gong, or has suffered serious harm in China as a result of being a Falun Gong practitioner or because of any association with Falun Gong.
The Tribunal is not satisfied that the Applicant is a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugee's Protocol and affirmed the decision not to grant a protection visa.
Application for judicial review
The Applicant, in his amended application, sets out two grounds. They are as follows:
1. The Tribunal had bias against me and failed to consider my claims for my application for a protection visa. The decision was made based on assumption of the Tribunal, not evidence and materials.
2. The Tribunal sent invitation to comment on the information together with the decision letter. I was not given an opportunity to comment upon the reason or part of the reasons for confirming to the decision.
The Applicant did not provide any written outline of submissions.
He attended Court and when asked from the Bench to explain the grounds in his application was unable to do so. He said that it was hard for him to speak about his application because he could not think clearly at the time. He said that he was suffering from concussion which had occurred when he was detained in China. He claims that the concussion occurs once or twice a week. He said he had not seen a doctor in Australia because he could not afford it. The Applicant did not provide any medical certificate or any other evidence to any head injury. Counsel for the Respondent, Mrs Sirtes, pointed out to the Court that Tribunal had not accepted the Applicant's claim of any brain injury.
As to the two grounds for relief in the Applicant's amended application the Applicant has made a claim of bias against the Tribunal. He has provided no evidence of bias nor has he particularised what that bias was or how it was displayed. It is well established that if an allegation of bias is to be made it must be distinctly made and clearly proved. (See Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 at [69]).
Again, it is well established that the circumstances in which the Court would find bias when all that is relied upon is the Tribunal's written reasons for decision is a very rare circumstance. (See SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16]. And see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] and [44]). The ground of bias has not been made out.
Counsel for the Respondent, First Respondent Minister was brought to my attention that the Tribunal's decision was signed on 22nd March 2007, which is the day before the time period expired for the Applicant to respond to a s.424A letter. The First Respondent submits, and I believe correctly, that this does demonstrate apprehended bias. By that stage the decision shows that the s.424A letter had been returned unclaimed.
I note from the affidavit of Megan Louise Palmer, solicitor, to which copies of relevant correspondence has been annexed, that the s.424A letter addressed to the Applicant at the address that he gave the Tribunal is stamped as having been received by the Tribunal on
9th March 2007. In any event, the Tribunal did not hand down its decision 22nd March. The Tribunal did not hand the decision down until 12th April 2007. The Tribunal's duties in relation to the conduct of its review are not completed until the date of handing down. The date of the decision is the date on which the decision is handed down. (See sub-s.430(B)(4) of the Migration Act). In my view, nothing turns on the fact that the Tribunal decision was signed on 22nd March.
The Applicant also claimed that the Tribunal decision was not based on evidence or on different country information, but I am satisfied that the Tribunal rejected the Applicant's claims on the basis of the credibility or lack of credibility of the Applicant's own evidence. The Tribunal noted that the Applicant's evidence indicated a serious lack of knowledge about Falun Gong and, accordingly, did not believe that he is a Falun Gong practitioner.
As to the s.424A letter, I note that that letter was sent to the Applicant on 28th February and it was sent to the Applicant at the address that he gave to the Tribunal. The fact that the Applicant did not receive the s.424A letter at the address that he gave to the Tribunal does not constitute jurisdictional error. Applicants have a duty to keep the Tribunal informed as to their address for correspondence so too do parties before this Court.
In that regard, I note that the Applicant has, in fact, advised the Court of a newer Address for Service which appears to be the postal address in Surry Hills. It is certainly not the Applicant's residential address.
I am mindful of the fact the Applicant is not legally represented in these proceedings. I have read through the Tribunal decision independently of the Applicant's claims and the First Respondent's submissions in an attempt to ascertain whether there is any other arguable case for jurisdictional error. I am unable to discern any arguable case for jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to writs of prohibition or orders of the nature of certiorari or mandamus.
The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. Counsel for the Minister indicates that those costs are assessed at $4,100.00 inclusive of counsel's fees. In my view, that is an appropriate amount and well within the scale provided by the Federal Magistrates Court rules. This is, clearly, a case where an order for costs should be made in favour of the successful party and, in my view, $4,100.00 is the appropriate figure.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 7 August 2007
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