SZKTX v Minister for Immigration
[2007] FMCA 1984
•21 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1984 |
| MIGRATION – Bias not established – adverse finding of credibility is a finding of fact – not reviewable. |
| Migration Act 1958 (Cth), ss.474 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | SZKTX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1873 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 21 November 2007 |
| Date of last submission: | 21 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Ms A. Crittenden of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1873 of 2007
| SZKTX |
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 30 April 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 19 January 2007 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution from the Chinese authorities by reason of his practice of Falun Gong (Court Book “CB” 27-30).
The application was refused by a delegate of the first respondent on 20 February 2007 (CB 37) and by the Tribunal on review on 30 April 2007 (CB 65). The matter is now before this Court pursuant to an application for judicial review filed on 14 June 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal was biased;
·Whether findings of fact are subject to review.
The application
In his application, the applicant set out three grounds as follows:
(1)The Tribunal was unsatisfied that I was a well founded fear of persecution for any Convention related reason, The Tribunal made error in this finding.
(2)Because of the Bias from RRT, the Tribunal did not refer to any independent information for the consideration of my application, the tribunal failed to carry out its statutory duty.
(3)The Tribunal was unsatisfied that there is a real chance that I would suffer harm amounting to persecution if I return to China, The Tribunal made error in this finding.
Findings of the Court in relation to the grounds in the application
Ground one seeks a review of the finding that the Tribunal was not satisfied that the applicant has a well-founded fear of persecution for any Convention related reason. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
As stated by the Federal Court of Australia in LeevMinister 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”.
The Tribunal did not accept that the applicant is a credible witness (CB 74.5) and set out its reasons for that finding (CB 74.5 – 75.3). In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
The Court does not find that the Tribunal has failed to use, or has palpably misused its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court agrees with the following submission in another matter:
The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
As a result of the finding on credibility, the Tribunal did not accept many of the applicant’s claims (CB 75.3 – 75.5) and was not satisfied that he had a well founded fear for a Convention reason. That finding of fact was properly open to the Tribunal. Ground one seeks a review of the merits that is not available. Ground one is rejected.
Ground two alleges bias by the Tribunal not referring to independent country information. That is factually incorrect; the Tribunal referred to independent country information at CB 72.10 – 73.7. This is nothing to show that country information was provided by the applicant and ignored by the Tribunal. In any event, the applicant’s claims were rejected because the Tribunal did not find him to be credible.
As for the claim of 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 Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA vMinister 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].
In Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
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.
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”. Bias has not been established. Ground two is rejected.
Ground three is the same as ground one and is rejected for the reasons given under ground one.
In the applicant’s affidavit filed on 14 June 2007, the applicant complains that the Tribunal erred in deciding that he would not face a real chance of persecution for reasons of his Falun Gong practice. That ground seeks a review of the merits which is not available.
The affidavit also alleges that the Tribunal failed to consider the applicant’s claims “under independent country information”. Country information was considered by the Tribunal (CB 72.10–73.7) and it has not been shown that the applicant provided country information which was ignored. This ground is dismissed.
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 is 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: 27 November 2007
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