SZLSH v Minister for Immigration
[2008] FMCA 818
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 818 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLSH”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A, 425 |
| Ebner v Official Trustee of Bankruptcy [2000] HCA 63 Johnson v Johnson [2000] HCA 48 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 Minister for Immigration & Multicultural Affairs v Jia (2000) 205 CLR 507 Minister for Immigration & Multicultural Affairs v SZBAN [2002] FCAFC 431 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 R v Watson; ex parte Armstrong [1976] HCA 39 Re Refugee Review Tribunal & Anor; ex parte H & Anor [2001] HCA 28 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 Vakauta v Kelly [1989] HCA 44 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 |
| Applicant: | SZLSH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3717 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms B Nolan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 3 December 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3717 of 2007
| SZLSH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a married man who was born in 1977 in Hai Lin city, Heilongjiang, the People’s Republic of China. His wife remains in China. He has completed tertiary education and obtained university qualifications in Hydromechanics. After graduation, he worked as a technician in the Mu Dan Jiang No 2 Plastic Factory in the production of rubber and plastic. In October 1999 he left China for Russia and attended the White Russian Jiao Tong University for one year completing a language course. He then returned to China and started his own business selling construction materials. This venture was unsuccessful which forced him to close down leaving him unemployed.
The applicant claims he began practicing Falun Gong in August or September 1999 while working at the Rubber and Plastic Factory. While doing morning exercises he made contact with some Falun Gong practitioners who were also performing exercises. He started practising with them and learnt basic movements. However, he was soon reported to the factory management who told him to stop practising Falun Gong because it had been banned by the Chinese government. He lost his job at the factory in December 1999. The applicant did not practise Falun Gong when he was in Russia but recommenced upon his return to China. He claims he practised in public parks with other Falun Gong practitioners and sometimes at home.
The applicant claims he did not agree with the government that Falun Gong was “evil”. He claims the police said he was promoting an evil cult. The applicant was taken to the police station in Hai Lin city where he was kept for three days. He claims the police threatened him and told him he was not allowed to promote or practise Falun Gong. This occurred about a year before he left China for Australia. The police also went to his house on many occasions between 2004 and 2005. The applicant was required to sign documents on two occasions. He said to the Tribunal that he decided to come to Australia because he would not be discriminated against because of his belief in Falun Gong.
The applicant arrived in Australia on 3 May 2007 on a Business Visa as part of a tourist group interested in sculpture. The group members brought art and craft material with them. The applicant made an application for a Protection (Class XA) visa on 25 May 2007 and a delegate of the Minister for Immigration refused to grant the visa on
13 August 2007. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 5 September 2007 for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 26 October 2007 and it is that decision (reference 071701675) that is the subject of this judicial review.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before this Court.
At the first Court date the applicant indicated that he did not wish to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of their appeal. The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 2 April 2008. He complied with this order and filed an amended application which abandoned one of the grounds of the original application. However, when the applicant was invited to make oral submissions he addressed the Court on this abandoned ground. Consequently, I informed the parties that I would consider both the original and the amended application as containing grounds of review.
The original application filed on 3 December 2007 contains the following grounds:
1. The Tribunal had bias against me and believed that I fabricated evidence about my involvement with Falun Gong. The Tribunal mentioned it at the decision letter sent to me.
2. The Tribunal failed to consider my application according to s.424A of the Migration Act 1958. The Tribunal had not notified me in writing the reason or part of the reasons for affirming the decision.
3. The Tribunal failed to assess the chance of my return to China because of my practice in Falun Gong in China and in Australia.
The amended application filed on 2 April 2008 contains the following grounds:
1. The Tribunal failed to consider the fact that I have been practicing Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
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 the opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The above mentioned had to be provided in writing (SAAP v Minister for Immigration & Multicultural & Industrial and Ethnic Affairs (2005) HCA 24 (18 May 2001).
At the commencement of the hearing, the applicant confirmed that he had not prepared any written submissions but that he had notes written in Chinese to which he wished to refer. The applicant briefly stated that the Tribunal:
a)was biased because it did not correctly assess his claim;
b)failed to provide written material which indicated the reasons for its decision and so denied him the opportunity to respond to those issues;
c)failed to consider his persecution if he were to return to China;
d)failed to comply with s.424A of the Migration Act 1958 (Cth) (“the Act”) which resulted in him being denied the opportunity to respond.
Tribunal’s reasons
The Tribunal decision records the applicant’s claims as laid out in his protection visa application (CB 57), the information given to the Tribunal (CB 58-62) and the independent country information the Tribunal considered (CB 62-63). The Tribunal accepted that the applicant was a citizen of China based on his evidence at the hearing and the valid Chinese passport issued to him in his own name.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution should he return to China. It formed this view because the applicant’s critical claims lacked credibility and could not be accepted for the following reasons:
a)the applicant’s practice of Falun Gong in public parks in China was after the national ban on Falun Gong;
b)the applicant gave incorrect evidence about when Falun Gong was banned;
c)the applicant was unable to name the five exercises of Falun Gong and had little knowledge about them;
d)although the applicant was able to name the three principles of Falun Gong, he was unable to provide detailed information about its philosophies;
e)the applicant’s recollection of the dates of his arrest was inconsistent with subsequent evidence that it was two to three years earlier;
f)that the applicant was able to obtain and renew his passport in China despite claims that he was under surveillance by the authorities;
g)the applicant delayed lodging his application for a protection visa until three weeks after he arrived in Australia;
h)the applicant’s delay in departing China was inconsistent with a genuine fear of persecution; and
i)the applicant’s reasons for leaving China were also inconsistent with a genuine fear of persecution.
Claim of bias
It is well-established that a claim of bias will be made out if it is shown that the decision maker was actually biased, or if a fair-minded lay observer might reasonably apprehend that the decision maker might not have brought an impartial and unprejudiced mind to the resolution of the question it is required to decide: R v Watson; ex parte Armstrong [1976] HCA 39; Vakauta v Kelly [1989] HCA 44; Johnson v Johnson [2000] HCA 48. The principles relating to bias have been considered by the Full Federal Court specifically in relation to migration appeals, eg SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361. Furthermore, because Tribunal proceedings are inquisitorial in nature, the member is entitled and obliged to put adverse information to the visa applicant. This procedure is distinctly different from that in place before a Court and is not an indicator of bias or bad faith: Re Refugee Review Tribunal & Anor; ex parte H & Anor [2001] HCA 28; Ebner v Official Trustee of Bankruptcy [2000] HCA 63.
The applicant’s claim of bias is not particularised and no evidence has been presented to suggest that the Tribunal’s conduct would lead to an apprehension of bias. In the absence of a transcript or hearing tapes of the Tribunal hearing, the decision is the only record of what occurred. There is no evidence that a hypothetical fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member did not bring an impartial or unprejudiced mind to the application: ex parte H at [27] and [28].
Ms Nolan, for the first respondent, submits that the applicant’s reference in the ground to “the Tribunal mentioned it at the decision letter sent to me”, may suggest that he seeks to contest the standard invitation issued by the Tribunal, in particular:
The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone. (CB 46.4)
Ms Nolan submits that the Tribunal only calls a hearing when it is not satisfied on the papers that a protection visa should be granted: s.425(2)(a) of the Act. The issue of an invitation to a Tribunal hearing only indicates that it was unable to reach the required state of satisfaction to decide in the applicant’s favour on the material before it.
To the extent that this lack of satisfaction becomes apparent in the course of a Tribunal hearing, does not of itself suggest actual or apprehended bias, see Minister for Immigration & Multicultural Affairs v SZBAN [2002] FCAFC 431 per Heerey and Kiefel JJ at [11]:
[11] In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.
Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously: ex parte H at [30]. The requirements of procedural fairness often require a visa applicant to be plainly confronted with matters adverse to their credit or which brings their account of events into question. Further, the decision maker’s assessment of an applicant’s credit often depends on their demeanour and the manner in which they gave evidence: ex parte H at [34].
A party alleging actual bias on a decision-maker’s part carries a heavy onus and it must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2000) 205 CLR 507 at [531]. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from errors or faulty reasoning on the part of the Tribunal: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36].
A case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or pre-judgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].
When the applicant was invited to address the Court he initially stated that the Tribunal member was biased and that she did not consider his application properly. There was no further elaboration on this claim and it appears to be nothing more than the applicant expressing dissatisfaction with the decision. A fair reading of the Tribunal decision does not support a claim of bias and this ground should be rejected.
Breach of s.424A of the Migration Act
This claim, although expressed differently, is in both the original and amended applications.
Ms Nolan notes that the applicant did not present his passport to the Tribunal at the hearing (CB 50; 58.8). The Tribunal made findings based on what the applicant’s passport shows about his travels (CB 66.4) and its date of issue (CB 66.8). The Tribunal found these facts to be inconsistent with accounts that the applicant has given to the Tribunal of his arrest and his ability to obtain and renew his passport despite being under surveillance by the authorities. To the extent that these inconsistencies could be construed as information that formed the reason or a part of the reason for affirming the decision under review, Ms Nolan submits that such a construction would be erroneous in light of the reasoning in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26.
The information contained in the passport did not in itself contain “in their terms a rejection, denial or undermining” of his claim for protection as discussed in SZBYR at [17].
SZBYR at [18] cited with approval VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476-477 that the word “information”:
…does not encompass the Tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.
In SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1, Tamberlin, Finn and Besanko JJ at [18] considered the operation of s.424A(1)(a) of the Migration Act 1958 (Cth) (“the Act”) with specific reference to the content of that applicant’s passport and found at [26]:
[26] In the present appeal the alleged s 424A(1) “information” was that the appellant’s passport showed that he left India legally on a passport issued in his own name. That information did not in terms contain a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligation: cf SZBYR 235 ALR at [17]. On that question the passport was quite neutral. What undermined the appellant’s claim was not conveyed by the passport as such but by the country information which the Tribunal was not obliged to disclose because of s 424A(3)(a). It was that information which, but for the statutory exception, could be said in terms to provide part of the reason for the Tribunal’s decision in that it could cause the Tribunal to disbelieve the appellant’s claim to be of adverse interest to Indian authorities. The relevant “information” for s 424A(1) purposes, as SZBYR 235 ALR at [18] indicates, is not to be found in disbeliefs arising from a process of reasoning applied to the evidence. If it is to be found in this matter it must be in the text of the passport itself. It is not.
The other issue raised by Ms Nolan in respect of the operation of s.424A concerns the Tribunal’s reliance on independent country information in affirming the delegate’s decision (CB 65.2, 66.9). The applicant did not specifically identify the independent country information as the information that he should have been supplied with. However, Ms Nolan submits that if this is the case, the independent country information does not give rise to a complaint of this nature because it falls within the exception in s.424A(3)(a) and is not required to be put to the applicant for comment. In support of this argument, Ms Nolan relies on WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[46] per RD Nicholson, Jacobson and Bennett JJ:
[44] This submission by the appellant is dependent on whether s 424A(3) contains two criteria. A recent decision of the Full Court, Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (“NAMW”), delivered on 23 September 2004, held that the only criterion is that the information is not specifically about the applicant or another person, and that the reference in s 424A(3)(a) to the class of persons is a provision designed to underline the specificity required by precluding an argument that reference to a class could be taken as a reference to all individuals falling within it, including an applicant. That view was reached, albeit on different foundations, by Beaumont J at [70] and Merkel and Hely JJ at [138]. In VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 80 (“VHAJ”), delivered on 15 August 2003, Moore J and Kenny J respectively reached a conclusion to the contrary by adopting a ‘two criteria’ approach (at [25] – [27] and at [46] – [48]), with Downes J expressing a different opinion at [73] – [75]. In NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 at [30], Ryan and Finkelstein JJ expressed views to the same effect as those by the majority in VHAJ on the issue. The alternative interpretation was adopted in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [14] per Gyles and Conti JJ (with whom Allsop J agreed). See NAMW at 9, at [126].
[45] The present appeal is not one in which we could reach the view that it was unsafe to follow the unanimous view of the Full Court as expressed in NAMW. Argument on the issue is brief and confined to written submissions of relevantly short length. They do not provide a foundation to depart from the effect of the reasoning in NAMW.
[46] The information in question was set out by the Tribunal in its reasons. It is clearly not specifically about the appellant or another person. Therefore there was no obligation on the Tribunal to provide that information to the appellant because the information fell within the terms of s 424A(3)(a) as understood in accordance with the decision of the Full Court in NAMW. The learned Chief Federal Magistrate was therefore correct in concluding that the information fell within the exception in s 424A(3)(a).
See also QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [11]-[30] per Dowsett, Heeley and Lander JJ.
Claims of a breach of s.424A are rapidly becoming formulaic in many applications and with little reference to the context of the actual decision. In this matter the Tribunal found that it did “not accept any of the applicant’s critical claims to be true” (CB 67.3).
The Tribunal was of the view that the applicant was prepared to fabricate his evidence about his involvement in and practise of Falun Gong, his dealings with the owners and workers of the factory and the police to give himself the profile of a refugee (CB 67.7). The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible. Such findings are matters of fact for the Tribunal: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1. The applicant has not been able to identify which information he claims should have been provided to him under s.424A. Ms Nolan has identified two possible areas that may have enlivened s.424A but both have been excluded by s.424A(3) and this is supported by authorities. In the circumstances I am satisfied that the section has not been enlivened and no jurisdictional error has occurred. The claims should be dismissed.
Alleged failure to assess the persecution the applicant would face on his return to China
The Tribunal rejected the applicant’s claims on the basis that they lacked credibility and made the finding:
In dealing with this application the Tribunal has formed the view that the applicant’s critical claims lacked credibility and cannot be accepted. This view was formed based on the following evidence given by the applicant during the course of the hearing. (CB 64.5)
The Tribunal then proceeded to list fourteen issues which resulted in this finding. In reaching this finding the Tribunal is not required to assess whether the applicant would face persecution upon his return to China. However it clearly stated at the conclusion of its decision:
The Tribunal finds that there is no real basis for the applicant’s claim to fear persecution. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for convention reasons should he return to China. (CB 67.9)
I am satisfied that this ground cannot be sustained and should be rejected.
Claim under section 91R(3) of the Migration Act
This claim is not contained in either of the original or amended applications. However, the applicant made reference to the issue in oral submissions during the hearing. The applicant raised the fact that the Tribunal had failed to take into account his practise of Falun Gong in Australia. The only evidence before the Court are the applicant’s claims at the Tribunal hearing:
When asked whether he practiced Falun Gong he stated that he did so occasionally. He practiced in Campsie in a park close to the railway station. He practiced on Saturdays and some Sundays with other Chinese practitioners. When asked whether Falun Gong was important to him he stated that he believed so. (CB 61.5)
The applicant’s claim is contrary to the Tribunal’s findings:
The Tribunal finds that the applicant is not and never was a Falun Gong practitioner. The Tribunal is also satisfied that the applicant has not been perceived to be a Falun Gong practitioner by the leaders at the factory, his work colleagues at the factory or the Chinese authority and is unlikely to be so perceived if he returns to China. (CB 67.7)
I am satisfied that the Tribunal found that the applicant was not then or had ever been or involved in Falun Gong. Section 91R(3) does not arise and this ground should be dismissed.
Conclusion
The applicant in these proceedings is a self-represented litigant appearing with the assistance of a Mandarin interpreter. The Court recognises the difficulty faced by an applicant who does not speak the language and is unfamiliar with the operation of the legal system. He was offered but declined the opportunity to participate in the Court sponsored advice scheme. The applicant did partially comply with orders made at the first Court date when a timetable for this matter was set down. However, he did not file any written submissions or affidavit evidence in support of his application. The applicant did prepare brief notes in Chinese which were conveyed to the Court via the interpreter service but these essentially repeated the issues set out in his applications along with broad general claims that the Tribunal did not consider his matter.
Ms Nolan assisted with written and oral submissions in response to the issues raised in both applications and the applicant’s oral submissions. I am satisfied the claims raised have been satisfactorily addressed and that no jurisdictional error arises from them. I have independently reviewed the Court Book and the Tribunal decision. It is not apparent that any jurisdictional error is contained in the Tribunal’s reasoning and consequently the application should be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 June 2008
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