SZKSH v Minister for Immigration
[2007] FMCA 1914
•7 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1914 |
| MIGRATION – Bias not established – all claims considered – not jurisdictional error for Tribunal to rely on country information that is not true. |
| Migration Act 1958 (Cth), ss.91R, 420, 424A, 474 |
| SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | SZKSH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1723 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 7 November 2007 |
| Date of last submission: | 7 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1723 of 2007
| SZKSH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 29 March 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 4 October 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed to fear persecution by the Chinese authorities because of her practice of Falun Gong (Court Book “CB” 27).
The application was refused by a delegate of the first respondent on 7 December 2007 (CB 30) and by the Tribunal on review on 29 March 2007 (CB 57). The matter is now before this Court pursuant to an application for judicial review filed on 31 May 2007, and an amended application filed on 3 August 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal was biased;
·Whether the Tribunal considered the applicant’s claims; and
·Whether s.424A of the Migration Act 1958 (Cth) (“the Act”) was breached.
The application
In her application, the applicant set out three grounds as follows:
(1)The Tribunal failed to consider my claims. The Tribunal had bias against me when considered my application. The decision was not made in accordance with s.91R of the Migration Act 1958.
(2)The Tribunal failed to refer to sufficient independent information for the consideration of my application. The “Country Information” was out to day [sic].
(3)The Tribunal did not believe that I am genuine Falungong member based on assumption, not evidence.
The applicant filed an amended application on 3 August 2007 setting out the following grounds and particulars:
(1)The Tribunal made a jurisdictional error of law by failing to deal with an integer of my claims.
(2)The Tribunal also committed jurisdictional error by failing to give me in accordance with s.424A of the Migration Act 1958 (The Act) notice in writing of particulars of information that formed part of the reasons for affirming the decision of delegate.
(a)The Tribunal’s s.424 letter did not conform with requirements of s.424A.
Findings of the Court in relation to the grounds in the application
Ground one alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established.
Ground one alleges also that the Tribunal failed to consider the applicant’s claims. A careful reading of the Tribunal’s decision shows that not to be so. The Tribunal set out the applicant’s claims and evidence at CB 60-65, and then set out its reasons and findings on those claims and evidence. It has not been established that the Tribunal failed to consider one of the applicant’s claims. As to the alleged breach of s.91R of the Act, the Tribunal set out the relevant law relating to that section (CB 59) and tested the applicant’s claims against the requirements of s.91R. No error of law has been demonstrated. Ground one is rejected.
Ground two complains that the Tribunal “failed to refer to sufficient independent information for the consideration of my application. The “Country Information” was out to day [sic]”. The Court understands that to be a complaint that the country information was “out of date”. The country information referred to by the Tribunal (at CB 64) was published in 2004 and it has not been established to have been out of date. There is no indication in the documents before the Court that the applicant referred to any other country information. The Tribunal was not required to make the applicant’s case out for her. As stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”.
The Court refers also to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, where the Full Court of the Federal Court stated at [11] as follows:
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.
Ground two is rejected.
Ground three complains that the Tribunal did not believe that the applicant is a Falun Gong practitioner. The Tribunal set out its findings on that issue at CB 65.6-66.3. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances
Ground three is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges that the Tribunal failed to consider an integer of the applicant’s claims. This has not been established. This ground is rejected for the reasons set under ground one of the application.
Ground two alleges that the s.424A letter did not conform with the requirements of that section. The letter is set out CB 50-52. The letter sets out the information that could be the reason, or part of the reason, for affirming the decision of the delegate. The letter also sets out under separate sub-headings the relevance of the information. The applicant was invited to comment on the information (CB 52). The applicant responded by letter at CB 53. A breach of s.424A has not been established. Ground two of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 20 November 2007
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