SZLBG v Minister for Immigration
[2007] FMCA 1737
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1737 |
| MIGRATION – Failure to convince Tribunal – credibility a matter for the Tribunal – bias not established – Court cannot make assessment of truth of country information. |
| Migration Act 1958 (Cth), ss.420, 424(1), 424A, 425, 425A, 426A, 441A, 474 Migration Regulations 1994 (Cth), reg.4.35D |
| SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Abalos v Australian Postal Commission (1990) 171 CLR 167 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 |
| Applicant: | SZLBG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2177 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 11 October 2007 |
| Date of last submission: | 11 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Mr B. O’Brien of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2177 of 2007
| SZLBG |
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 28 May 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 30 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 because of his belief in Falun Gong (Court Book “CB” 18-27).
The application was refused by a delegate of the first respondent on 24 February 2007 (CB 35) and by the Tribunal on review on 28 May 2007 (CB 68).
The matter is now before this Court pursuant to an application for judicial review filed on 13 July 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal was biased;
·Whether the applicant was given an adequate opportunity to respond to matters in issue;
·Whether the Tribunal misunderstood matters put to it, and various issues raised by the applicant in his oral submissions to the Court.
The application
In his application, the applicant set out four grounds as follows:
(1)The Tribunal member had bias against me and could [sic not] make a decision in a right way.
(2)The Tribunal did not consider all information provided and did not refer to sufficient independent evidence for the consideration of my application.
(3)There are no materials to support the decision from RRT.
(4)A copy of the Tribunal’s decision is attached.
Particulars
(1)The Tribunal has bias towards me and could not make a decision in a fair way;
(2)The Tribunal failed to provide me adequate particulars of the independent information;
(3)The Tribunal failed to provide me an adequate opportunity to respond the substance of the information;
(4)The Tribunal failed to understand my claims;
(5)The Tribunal failed to observe Migration Act 1958 properly to make the decision;
(6)The Tribunal’s decision that I am not a refugee was not based upon a rational or logical foundation;
(7)The Tribunal was not dissatisfied (sic) that I am a Refugee without giving proper evidence and materials to justify its decision.
Findings of the Court in relation to the grounds in the application
Ground one alleges bias. That has also been raised in oral submissions. 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. A copy of the transcript of the Tribunal hearing has been supplied to the applicant, but the applicant has failed to identify from that transcript any matters which establish bias. An allegation of bias is a very serious allegation which must be clearly proven. 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 is rejected.
Ground two alleges that the Tribunal did not consider all information provided, and did not refer to sufficient independent evidence. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Federal Court of Australia stated at [11] that
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.
The Tribunal was therefore free to decide which independent evidence it considered relevant. The Tribunal referred to extensive country information (CB 71.8 – 76.2). It has not been shown that the Tribunal “did not refer to sufficient independent evidence”. 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.
It has not been shown that the Tribunal did not consider all information provided. It was a matter for the Tribunal which evidence it accepted or rejected: Lee (ante). Ground two is rejected.
Ground three alleges that there is no material to support the Tribunal’s decision. The Tribunal referred to the material before it (CB 71.2 – 80.2). The Tribunal then set out its ‘Reasons and Findings’ which include references to the material supporting those findings. Findings of fact are a matter for the Tribunal; those findings were properly open to the Tribunal on the material before it and are not subject to review: NAHI (ante) at [11]. Ground three is rejected.
Ground four merely attaches a copy of the Tribunal’s decision and does not raise a ground for review.
Particular 1 alleges bias. This particular is rejected for the reasons expressed under Gound one above.
Particular 2 alleges that the Tribunal failed to provide the applicant with adequate particulars of the independent information. The Court understands this to refer to “country information”. Such information is subject to the exception in s.424A(3)(a). Section 424A was not breached.
The applicant attended at the Tribunal hearing on 15 May 2007. The invitation to attend (CB 52):
·Informed the applicant that the Tribunal was unable to make a decision in his favour on the information before it, and invited him to attend a hearing in order to submit further evidence in support of his claims: s.425;
·Provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear: s.425A(1);
·Was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(i);
·Provided a period of notice to the applicant that complied with the prescribed period of 14 days: reg. 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and
·Contained a statement to the effect of s.426A regarding the options available to the Tribunal if the applicant failed to appear at the scheduled hearing.
Accordingly, the invitation complied with the statutory requirements contained in Regulation 4.35D and sections 425(1), 425A, 426(1) and 441A(4) of the Act. No breach of s.425 or s.425A occurred. Particular 2 is rejected.
Particular 3 complains that the Tribunal failed to give the applicant an adequate opportunity to respond to the substance of the information. The decision of the delgate was affirmed by the Tribunal, not because of the content of the country information, but because the Tribunal was not satisfied that the applicant was a Falun Gong practitioner (CB 80.10), or that he was of adverse interest to Chinese authorities (CB 84.4), or that he had suffered past persecution (CB 81.9), or faced a real chance of being persecuted because of his race, religion, nationality, political opinion, or membership of a particular social group (CB 81.10). The Tribunal set out its reasons for reaching those conclusions. It was a matter for the Tribunal which evidence it accepted or rejected: Lee (ante). Not belieiving the applicant was an adverse finding of crediblity that was a finding of fact (W148/00A (post)) properly open to the Tribunal on the material before it. The Tribunal discussed with the applicant at the hearing the determinative issues that arose from the country information, being his participation in Falun Gong (CB 78.5).
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 [The Court does not make such a finding here]. 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”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court finds that the Tribunal has not 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, and that the probabilities of the case are not 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].
Particular 3 is rejected.
Particular 4 complains that the Tribunal failed to understand the applicant’s claims. The applicant has also made oral submissions about that claim. The applicant was asked today to demonstrate that the Tribunal misunderstood his claims in any respect. The applicant has not been able to do this, his claims amount to a complaint that the Tribunal did not believe his claims. This particular seeks a review of the merits, which is not available. It is for the Tribunal to decide which evidence it accepts or rejects: Lee (ante). Particular 4 is rejected.
Particular 5 alleges a breach of the Migration Act. No particulars have been provided. The reasons above show that there was no breach of s.424A, or of s.425 and the latter’s attendant provisions. No breach has been established. This particular is rejected.
Particular 6 alleges that the Tribunal’s decision that the applicant is not a refugee “was not based upon a rational or logical foundation”. The Court rejects that allegation. As stated in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [32]:
A fair reading of the tribunal’s reasons suggests to me that its findings were supported by the evidence and its reasons do not indicate any want of logic or irrationality. Even if they did, the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]-[29].
A fair reading of the Tribunal’s decision here shows that its findings were supported by the evidence; its reasons do not indicate any want of logic or irrationality. Particular 6 is rejected.
Particular 7 complains that the Tribunal did not give “proper evidence and materials to justify its decision” that the applicant is not a refugee. It is for an applicant to establish their case. The Court agrees with the following statement by the Tribunal in another matter:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
Also,
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The Court applies the following submissions in another matter:
The reason that the applicant failed to establish this matter, include that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
The applicant failed to establish that he is a refugee. The applicant failed to put evidence before the Tribunal to satisfy it that he is a refugee (CB 80.7, 80.10, 81.9, 81.10). It was properly open to the Tribunal to reject the applicant’s claims: Lee (ante). Particular 7 is rejected.
Oral submissions
In the applicant’s oral submissions to the Court, the applicant alleges that the Tribunal misunderstood what he said about his travel to Japan. There is nothing to show that the Tribunal misunderstood what the applicant said about his travel to Japan. The Court referred the applicant to the paragraph at the top of CB 81 and the interpreter then read that paragraph to the applicant. The Court invited the applicant to show where it was demonstrated that the Tribunal had misunderstood what the applicant said about his travel to Japan. The applicant was unable to do that. The Tribunal made findings of fact about the applicant’s reasons for, and details of, his travel to Japan. Those findings were properly open to the Tribunal and are not subject to review.
The applicant then alleged that the Tribunal was biased. As stated earlier in this decision, the applicant cannot merely allege bias; he carries a burden to establish that bias actually occurred or that he had good reason to apprehend bias. The applicant has had made available to him in an affidavit filed in this matter a copy of the transcript of the hearing before the Tribunal. The applicant alleges that the questioning by the Tribunal or manner of questioning shows that the Tribunal was biased against him. The Court invited the applicant to demonstrate to the Court examples of that alleged bias. The applicant was unable to do that. The allegation of bias is rejected.
The applicant alleges that the Tribunal erred in its findings in relation to him being a Falun Gong practitioner and alleges that the Tribunal erred in its findings in relation to the possibility of persecution of Falun Gong practitioners in China. The Tribunal made a finding on that matter at CB 80.5, where it accepted that on the basis of country information some people involved in the Falun Gong movement may be treated in such a way as to suffer serious harm. The Court refers to the finding by the Tribunal on CB 80.5 as follows:
…the Tribunal accepts that the treatment of some people involved in the Falun Gong movement would involve serious harm and systematic and discriminatory conduct.
The Tribunal then continued:
A finding on this matter can only be made by examining the applicant’s personal circumstances and claims…
The Tribunal then made a finding at CB 80.10 that it was not satisfied that the applicant was a Falun Gong practitioner in China. It found that the applicant does not hold a genuine belief or commitment to Falun Gong. Those findings of fact were properly open to the Tribunal and are not subject to review.
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 thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 30 October 2007
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