SZLRC v Minister for Immigration
[2008] FMCA 417
•26 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 417 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – allegation of bias not made out – not proved that s.425 invitation to Tribunal hearing was ineffective. |
| Migration Act 1958, ss.425, 425A, 426A, 474 Federal Magistrates Court Rules 2001, r.44.12 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZLRC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3597 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 March 2008 |
| Date of Last Submission: | 26 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r.44.12 of the Rules of Court, the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3597 of 2007
| SZLRC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Indonesia and claims that his Chinese ethnicity will make him a target of local Indonesians. The applicant also claims that he will suffer discrimination because of his Christian faith. The applicant arrived in Australia on 11 March 2007.
The applicant claims to fear persecution in Indonesia by reason of his Chinese ethnicity and Christian faith.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 5 June 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.
The matter is before the Court today on the applicant’s application that the respondents show cause why relief should not be granted to the applicant.
At a hearing to determine whether an order to show cause will be made, the order will not be made and instead the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated, the claim is groundless, or there is a high degree of certainty about the outcome.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s application for a protection visa are set out on page 4 of the Tribunal’s decision (Relevant Documents (“RD”) page 61). Relevantly, those facts are, in summary:
a)the applicant comes from a Chinese family, an ethnic group targeted by native Indonesians;
b)the majority of Indonesians are Muslim and the applicant will be discriminated against because he is Catholic;
c)there was rioting during the general election in May 1998. In his statement accompanying his protection visa application form the applicant said that ethnic Chinese Indonesians were the victims of these riots; and
d)the applicant will be targeted and killed by the locals.
The Tribunal’s decision and reasons
On 31 July 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone (RD 49). The Tribunal invited the applicant to a hearing on 21 September 2007 to give oral evidence and present arguments. The applicant was advised that if he did not attend the scheduled hearing the Tribunal might make a decision on his application without further notice. The Tribunal did not receive a response and the applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
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 was not satisfied that the applicant had a well-founded fear of persecution for reasons of his Chinese ethnicity, noting that:
i)the applicant did not outline any particular instances of past harm he claimed to have experienced;
ii)the applicant provided limited detail as to why he faced a real chance of harm in the future because of his Chinese ethnicity; and
iii)the Tribunal had no information as to whether the applicant was personally adversely affected by the riots in May 1998 or whether the applicant experienced discrimination or harm after 1998;
b)the Tribunal was not satisfied that the applicant was or is a practising Christian, noting that:
i)the applicant provided very limited information about the nature and extent of his claimed Christian beliefs and practice;
ii)the applicant did not outline any particular instances of harm he claimed to have experienced because of his Christian beliefs;
iii)the applicant provided limited detail as to why he faced a real chance of harm in the future because of his Christian beliefs; and
iv)the Tribunal had limited information as to whether the applicant would continue to practise Christianity if he returned to Indonesia; and
c)in the Tribunal’s view, the applicant’s claims were mere assertions and it was not prepared to simply accept them without the opportunity to test the truthfulness of those claims.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1) The Tribunal did not consider my application in my favor [sic].
2) I face a risk of being killed if I return to Indonesia.
3) The decision made by the Tribunal is biased.
In his oral submissions today the applicant raised an additional issue concerning his non-attendance at the Tribunal hearing. He said that he had been too sick to attend.
Tribunal did not consider the application in the applicant’s favour
A proper consideration of this asserted ground of review appears to me to suggest that the applicant wished that the Tribunal had reached a result which was favourable to him rather than the unfavourable result which it actually reached. In essence, this asserted ground invites the Court to undertake a review of the merits of his application for a protection visa and to arrive at a conclusion different from that which was reached by the Tribunal.
Such an outcome is not possible in proceedings for judicial review such as these. It is the role of the Tribunal to find the facts and to determine the merits of a protection visa application. It is the Court’s role to determine whether the Tribunal’s processes have been affected by jurisdictional error. The Court is concerned to determine that the Tribunal has applied the law correctly and has applied fair processes, but it cannot be concerned with whether the Tribunal reached a fair outcome. That issue is solely within the jurisdiction of the Tribunal. Consequently, the first asserted ground of review does not demonstrate jurisdictional error on the part of the Tribunal.
Risk of harm upon return to Indonesia
This ground also seeks merits review. Not in so many words, it challenges the Tribunal’s conclusion that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. For the reasons already expressed in relation to the first asserted ground of review, this Court cannot re-open the question of the merits of the applicant’s claim for a visa, and consequently this asserted ground of review cannot disclose a basis upon which the Tribunal’s decision might be set aside.
Bias
The applicant has not particularised this allegation and it cannot be identified whether the applicant is alleging actual bias against the Tribunal or apprehended bias. If it is actual bias, the test is found in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, where actual bias was identified as being pre-judgment by being so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might be presented.
In the circumstances of a hearing of the Tribunal, the test of apprehended bias may be identified by a synthesis of the decisions in Johnson v Johnson (2000) 201 CLR 488, and Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 as being a situation where a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matter in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question it is required to decide.
Allegations of bias are serious and should not be made without cogent evidence being advanced in their support. The applicant has put no evidence before the Court in support of such an allegation; the only evidence before the Court which might be relevant to such an issue is the Tribunal’s decision record contained in the bundle of relevant documents. A review of the Tribunal’s decision gives no reason to conclude that bias could reasonably be apprehended in the Tribunal’s conduct or that it approached its task with a mind closed to persuasion. Quite the contrary, the Tribunal’s decision record makes it clear that it would have wished the applicant to have put before it more information than it had, but the applicant’s failure to attend the Tribunal hearing made it impossible for the Tribunal to consider such additional information as the applicant might have wished it to consider.
For all these reasons, there is no question in my mind that the allegation of bias, whether apprehended or actual, could possibly be made out in the circumstances of this case.
Non-attendance at Tribunal hearing
In his submissions today, the applicant said that he had been ill and could not attend the Tribunal hearing. However, he also said in submissions that he had not contacted the Tribunal to alert it to his condition. There is no evidence before the Court that the invitation which the applicant received pursuant to s.425 of the Act was rendered ineffective and that the invitation was anything other than a real and meaningful invitation to attend the Tribunal hearing to give evidence and present arguments.
Moreover, it should be noted that no challenge has been made to the Tribunal’s decision to rely upon s.426A of the Act to proceed to a decision given the failure of the applicant to attend the Tribunal hearing. Given that the applicant concedes that he did not contact the Tribunal to tell it that he could not attend, there is no need to consider whether the Tribunal ought to have exercised its discretion under s.426A(2) to reschedule the Tribunal’s hearing. In the circumstances, I am satisfied that the submissions made by the applicant today do not disclose jurisdictional error on the part of the Tribunal.
Generally
The submissions by the applicant today and the grounds contained in the application do not address the principal issue in these proceedings, being that the applicant’s review application to the Tribunal was unsuccessful because the Tribunal was not satisfied that the applicant met the criteria for a protection visa. The question of satisfaction was clearly raised by the Tribunal in its s.425A letter dated 31 July 2007, which invited the applicant to attend the Tribunal hearing. Because the applicant failed to attend the Tribunal hearing he denied himself the opportunity of giving, and the Tribunal the opportunity of receiving, further information which might have led it to the state of satisfaction necessary for the Tribunal to have set aside the delegate’s decision. As the Full Court of the Federal Court said in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]:
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
Conclusion
For all these reasons, in my view the applicant has no arguable case and as a consequence the proceedings will be dismissed pursuant to r.44.12.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 April 2008
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