SZLOB v Minister for Immigration
[2008] FMCA 401
•28 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 401 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegations of bias and lack of good faith not proved – allegation that Tribunal did not act in good faith is, in effect, an allegation that Tribunal acted in bad faith – merits review not available in judicial review proceedings – Tribunal does not need to have a negative case against an applicant before it can affirm the delegate’s decision. |
| Migration Act 1958, ss.65, 91R, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 |
| Applicant: | SZLOB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3319 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 March 2008 |
| Date of Last Submission: | 28 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3319 of 2007
| SZLOB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He alleges that while in China he practised and promoted Falun Gong and that this subsequently led to him being required to attend brainwashing classes and to him being detained. The applicant left China for Australia where, he alleges, he has practised Falun Gong with other practitioners in their homes.
The applicant claims to fear persecution in China because of his practice of Falun Gong.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 4 May 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 79 – 83).
Protection visa application
In his protection visa application, the applicant made the following claims:
a)he became a member of Falun Gong in 1997 when he was unemployed and obtained financial support from other Falun Gong practitioners;
b)he spent much time promoting Falun Gong;
c)in July 1999 when the government banned Falun Gong the applicant and others were required to attend “brain washing classes”;
d)he was called to the police station several times for questioning and was warned not to practise Falun Gong, however, because Falun Gong was the applicant’s belief and had given him financial and “mental” support, he continued his activities secretly;
e)in January 2007 when he was practising Falun Gong with others, the police detained him and were about to charge him; and
f)he bribed someone and travelled to Australia for protection.
Tribunal hearing
Before the Tribunal, the applicant made the following additional claims:
a)in 1997 after he was laid off work and after a family member had fallen ill, Falun Gong gave the applicant material and psychological support. It also gave him direction in life;
b)the applicant was detained a few times in 2007 and at the end of 2000;
c)in 2000 he endured “cruel conditions” in detention and was released after 14 days;
d)he was required to report to the police and to attend a “study group” monthly or every two months;
e)the applicant stayed at friends’ places in Tianjin for over a year because if he had stayed at his home address he would have been required to attend education classes. Also, his neighbours knew that he practised Falun Gong and some had tried to persuade him not to do so;
f)about a year and a half later, the applicant returned home after obtaining work nearby. He continued to practise Falun Gong activities until his departure from China;
g)from 1997 he practised Falun Gong two to three hours a day;
h)the applicant protested in December/January (but does not identify in which years these months fell) and had trouble with the police. He and others distributed leaflets to encourage members of the Chinese Communist Party (“CCP”) to withdraw from the party. He stated that the CCP had done him harm, for example, his finger had been injured;
i)in detention the police did not beat the applicant but encouraged others to do so;
j)the applicant distributed to the public DVDs about the practice of Falun Gong and about how the government treated practitioners unfairly. During the day the applicant and others placed DVDs in convenience stores and supermarkets and at night they secretly distributed them through people’s doors;
k)in 2007 a passer-by on the street discovered that the applicant and others were distributing DVDs and they were taken to the police;
l)the applicant also promoted Falun Gong by discussing it with other practitioners and introducing friends to it. He attended meetings with other practitioners sometimes each week or only once a month; and
m)since arriving in Australia, the applicant has met other practitioners and visited their homes to practise Falun Gong.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was a Falun Gong practitioner, noting that:
i)he was unable to give any outline or description of the beliefs or philosophy underpinning his practice of Falun Gong;
ii)he was unable to give details of the beliefs or ideas espoused by Li Hongzhi;
b)the Tribunal’s hearing was adjourned because the applicant was feeling sick. The Tribunal accepted that the applicant was able to provide more information about Falun Gong practices when the hearing resumed, but concluded that the applicant had learnt this information between hearings in an attempt to boost his claims;
c)even so, the applicant was unable perform all of the Falun Gong movements and the Tribunal found that this inability was inconsistent with his claim to have practised Falun Gong since 1997;
d)the Tribunal did not accept that the applicant’s inability to demonstrate detailed knowledge of Falun Gong was due to his nervousness and stress about appearing at a hearing;
e)the Tribunal did not accept that the applicant met with Falun Gong practitioners in Australia on some 20 occasions to practise Falun Gong with them, noting that the applicant’s evidence of his contact and involvement with other Falun Gong practitioners in Australia was vague and inconsistent with his inability to perform Falun Gong exercises;
f)the Tribunal accepted that the applicant acquired some knowledge of Falun Gong in Australia but was not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his claims to be a refugee. Accordingly, the Tribunal disregarded the applicant’s conduct in gaining knowledge about Falun Gong in Australia as required by s.91R(3) of the Act;
g)in light of its findings that the applicant was not a Falun Gong practitioner, the Tribunal did not accept that the applicant:
i)was involved in the distribution of information about Falun Gong or in promoting it in China in other ways;
ii)was detained in China in late 2000 or early 2007 or had any other problems with the police because he was a Falun Gong practitioner or because he was perceived to be one;
iii)was harmed or “damaged” by the authorities during detention or at any other time as a result of his practice of Falun Gong;
iv)ever came to the adverse attention of the Chinese authorities because of his practice of, or involvement with, Falun Gong;
v)lost his job in China on account of being a Falun Gong practitioner; or
vi)obtained a passport that enabled him to leave China through other than standard official means.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1. The Tribunal had bias against me and failed to consider my application according to Law.
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.
3. The Tribunal failed to make a decision based on evidence.
In his oral submissions today, the applicant has raised three additional matters for consideration, being:
a)he failed to receive a copy of the Tribunal decision;
b)the Tribunal did not have enough reasons for refusing his case; and
c)he did not have enough opportunity to provide evidence.
Bias
The applicant appears to be alleging actual bias against the Tribunal or, alternatively, that the Tribunal failed to exercise its jurisdiction in good faith.
As to the bias which the applicant alleges, in order to make it out the applicant needs to demonstrate that the Tribunal’s state of mind evidenced prejudgment by being so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments might be presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
To the extent that this allegation is one that the Tribunal failed to discharge its jurisdiction in good faith, in the case of SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] – [46], the Full Court of the Federal Court distilled those matters relevant for consideration when such an allegation is made as being:
a)an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker;
b)the allegation is not to be lightly made and must be clearly alleged and proved;
c)the presence or absence of honesty will often be crucial;
d)the circumstances in which the Court will find an administrative maker has not acted in good faith are rare and extreme;
e)mere error or irrationality does not of itself demonstrate lack of good faith;
f)bad faith is not to be found simply because of poor decision making;
g)it is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did undertake its task in a way that involves personal criticism; and
h)errors of fact or law or illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
In NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210. Gyles J stated that an allegation that a decision maker did not act in good faith is, in effect, an allegation that the decision maker acted in bad faith (at 217 [16]). Gyles J pointed out that an allegation such as this requires an inquiry into the actual state of mind of the decision maker because there are no such things as deemed or constructive bad faith. His Honour said:
Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit … What is required to make out this case is to find that the Tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him – tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. (at 219 [24])
In this case, the applicant appears to be suggesting that the Tribunal’s mind had already been made up because the departmental officer who was the Minister’s delegate had already made a decision refusing him a protection visa. However, the applicant has produced to this Court no evidence in support of such an assertion and the only evidence before the Court which touches upon such an issue is that which is contained in the Tribunal’s decision record. I cannot conclude, based on my review of the Tribunal’s decision record, that there is any basis for supposing that the Tribunal was either biased in its review of the application brought to it by this applicant or that it failed to discharge conscientiously its obligations to review his application. The Tribunal looked in some detail at the evidence which was before it and clearly gave careful consideration to that evidence and to the applicant’s arguments. In my view, it reached a logical conclusion which does not demonstrate a closed mind or any want of good faith.
Breach of s.424A
The applicant has alleged that the Tribunal ought to have served a s.424A(1) notice on him. However, the Tribunal will not have an obligation to do so if the information on which it relies when affirming the decision of the delegate is information which the applicant gave the Tribunal for the purposes of his application to it: s.424A(3)(b). The Tribunal’s decision record makes it clear that the information which the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision was the applicant’s oral evidence at the Tribunal hearing which took place over two days. That being so, the exclusion found in s.424A(3)(b) applies and the Tribunal had no obligation to serve a notice under s.424A(1).
Tribunal failed to make a decision based on evidence
The third pleaded ground of review is similar in substance to an appeal ground that a particular finding was against the weight of evidence. What the applicant really invites the Court to do is to review the merits of his protection visa application, but the Court cannot do that. It is reserved to the Tribunal to make findings of fact and findings as to the merits of protection visa applications. It is the role of the Court to determine whether the Tribunal applied the law properly and applied proper procedures when performing its function. The Court’s role is to ensure a fair process, not a fair outcome.
Consequently, the third ground of review pleaded in the amended application does not disclose a basis upon which the Tribunal’s decision might be set aside.
Applicant failed to receive copy of Tribunal decision
This complaint made by the applicant in submissions today cannot justify a conclusion that the Tribunal’s decision was affected by jurisdictional error. This is so on the facts.
The applicant’s affidavit sworn/affirmed 25 October 2007 and filed in these proceedings on 26 October 2007 annexes a copy of the Tribunal decision. Clearly, the applicant had received a copy of the decision. Moreover, in his application commencing these proceedings, which was also filed on 26 October 2007, the applicant discloses that he received the Tribunal decision on 4 October 2007 which, I note, was one month and one day after the Tribunal’s decision was signed on
3 September 2007 and little more than a week after it was handed down on 25 September 2007 (CB 91). Consequently, not only did the applicant receive the Tribunal’s decision, but he seems to have received it with some promptitude.
Tribunal did not have enough reasons to refuse the case
This complaint made today is understandable in the circumstances where an applicant has no familiarity with the Tribunal’s processes. However, it misunderstands the role of the Tribunal and its obligations. The Tribunal is not required to have a negative case against an applicant before it can affirm the delegate’s decision. The question is whether the Tribunal is satisfied that an applicant meets the criteria for a protection visa: s.65. If the Tribunal is not satisfied that an applicant meets the criteria for a protection visa it has no alternative under s.65(1)(b) of the Act but to affirm the delegate’s decision. Consequently, it is not a question of whether the Tribunal had enough reasons to refuse the application but whether it was satisfied that the applicant met the criteria for the visa he sought. In this case, the Tribunal concluded that the material before it was insufficient for it to be satisfied that the applicant met those criteria. That being so, it had no alternative but to reach the decision it reached.
Applicant did not have opportunity to provide evidence
When asked today to explain what this assertion was in substance, with all respect to him, the applicant’s replies were unresponsive and almost unintelligible. But in any event, the assertion cannot be made out given that the applicant was given two opportunities to appear before the Tribunal and present it with the evidence which he wished it to receive. It is not suggested today that he sought additional time from the Tribunal in which to provide it with further information, nor is there anything in the Tribunal’s decision record to suggest that such a request was made. In the circumstances, I can only conclude that the applicant was given an adequate and proper opportunity to put before the Tribunal the evidence he wished it to have and thus this assertion does not disclose a basis upon which the Tribunal’s decision might be set aside.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 10 April 2008
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