SZLTV v Minister for Immigration
[2008] FMCA 1182
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1182 |
| MIGRATION – Judicial Review of Refugee Review Tribunal (“RRT”) – Bias – Failure to attend at rescheduled RRT hearing. |
| Migration Act 1958 (Cth) s.424A |
| Minister for Immigration & Multicultural Affairs v Jia [2001] 205 CLR 507 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLTV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3853 of 2007 |
| Judgment of: | Howard FM |
| Hearing date: | 18 August 2008 |
| Date of Last Submission: | 18 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| Applicant appeared in person: | SZLTV |
| Solicitor for the First Respondent: | Ms Pownall |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant shall pay the Respondents’ costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3853 of 2007
| SZLTV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant is a citizen of the People's Republic of China ("China"). The Applicant arrived in Australia on 7th February 2007, travelling on a transit visa from New Zealand. The Applicant had been living and studying in New Zealand from 2005.
The Applicant lodged an application for a Protection Visa on 9th February 2007. That application was refused by the Minister's delegate on 24th February 2007.
On 13th July 2007 the Applicant sought a review of that decision by the Refugee Review Tribunal (hereinafter “the Tribunal”).
The Tribunal delivered its decision on 19th October 2007, affirming the decision of the Minister's delegate not to grant the Applicant a Protection Visa.
The Applicant was notified of the decision of the Tribunal by letter dated 13th November 2007.
The Applicant filed an Application for review of the Tribunal’s decision on 17th December 2007. The Applicant was granted leave to file an Amended Application which contains two grounds. The Amended Application was filed on 2nd May 2008. The grounds of the application are:
“1.The Tribunal's decision was not induced by actual bias of the officer.
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. The Tribunal is 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 & Ethnic affairs (2005) HCA 24 (18 May 2001).”
The Applicant claims a fear of persecution in China as a Falun Gong practitioner.
The Applicant claimed to have learned Falun Gong from her uncle in China in 2004. The Applicant also claimed that she had continued to practice Falun Gong whilst she was studying in New Zealand. Furthermore, the Applicant stated that during the holidays she would return to China and visit other Falun Gong members, and would then practice Falun Gong at their homes.[1]
[1] At page 88 of Relevant Documents (“Exhibit 1”)
The Applicant attended a hearing conducted by the Tribunal on 11th September 2007. At that hearing the Applicant was questioned about her involvement in, and knowledge of, Falun Gong.
At the commencement of the hearing before the Tribunal it is noted that the Applicant was displaying some signs of possible discomfort. The Tribunal asked the Applicant whether she was okay to speak to the Tribunal. The Applicant indicated that she was okay to speak to the Tribunal.
The Applicant also told the Tribunal that her uncle had given her a book to read on Falun Gong, known as Zhuan Falun.
At page 7 of the Tribunal's Statement of Decision and Reasons[2] it was stated:
“As the applicant was displaying signs of renewed discomfort, the Tribunal asked her whether she was okay. She replied that she did not feel well. The Tribunal asked her whether she was okay to go on with the hearing. She asked whether it was possible to finish quickly. The Tribunal put to the applicant that it had a lot of questions to ask her, and that it would take some time. It put to her that it could go on and ask her those things and give her an opportunity to tell the Tribunal anything else she wished. If she felt too ill to go on, she needed to let the Tribunal know that. The Tribunal asked the applicant whether she preferred for the Tribunal to adjourn the hearing and to speak to her about the other things the Tribunal wished to ask her about on another day. The applicant indicated agreement to this. The applicant stated that she had not been to a doctor, but had felt sick before arriving at the Tribunal. The Tribunal put to the applicant that it would adjourn the hearing which would mean that it would not be finished and that another date would be set to finish the hearing. The applicant asked the Tribunal whether the new hearing would involve starting afresh. The Tribunal informed the applicant that it would consider what had been discussed at the hearing, but would ask her some more questions when the hearing was resumed.”
[2] See page 91 of Exhibit 1.
By letter dated 13th September 2007 the Tribunal wrote to the Applicant inviting her to attend a rescheduled hearing. The Tribunal enclosed a leaflet entitled, "Response to Hearing Invitation". The Applicant was asked to read the leaflet carefully and complete and return the form to the Tribunal as soon as possible.
The Applicant completed the document entitled "Response to Hearing Invitation" and sent it by fax to the Tribunal on 25th September 2007. In that document the Applicant ticked the box confirming that she did not want to come to the adjourned hearing. By ticking the negative box the Applicant was stating, "I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to enable me to appear before it."[3]
[3] See page 80 of Exhibit 1.
The Decision of the Refugee Review Tribunal
On page 8 of the Tribunal's Statement of Decision and Reasons, the Tribunal stated:
“The applicant's initial written claims were very vague and general. She provided little detail with regard to such matters as the circumstances in which she became a member of Falun Gong, and when, where or how she practiced Falun Gong in New Zealand. She did not provide details concerning such matters as precisely when she visited the home of other Falun Gong members in China, who these other practitioners were and the nature of her practice with them. She provided little detail as to the nature of her friendship with Ms Yan Tong Liang and the nature of any connection Ms Liang might have with Falun Gong. She provided limited detail as to the circumstances in which she claims she and her friend were detained. She did not indicate, for instance, the name of the police station to which they were taken, what she was questioned about or when she was released.”
The Tribunal also noted that the Applicant's evidence at the hearing was vague and lacking in detail.
The Tribunal did not believe the Applicant's evidence. In particular, the Tribunal was not satisfied:
a)that the Applicant has or had an uncle who is a Falun Gong practitioner;
b)that the Applicant was introduced to Falun Gong by her uncle;
c)that the Applicant was given or read the Falun Gong book known as "Zhuan Falun";
d)that the Applicant attended the houses of other Falun Gong practitioners;
e)that the Applicant observed Falun Gong practices or otherwise participated in Falun Gong activities before leaving China for New Zealand;
f)that the Applicant ever practiced Falun Gong in New Zealand, or had any connection with Falun Gong in New Zealand;
g)that on her return to China the Applicant visited other Falun Gong members, engaged in practice at their homes or otherwise involved herself with Falun Gong;
h)that the Applicant ever practiced Falun Gong in China or associated with Falun Gong practitioners there;
i)that the Applicant and a friend were detained by the police;
j)that the Applicant ever came to the adverse attention of the Chinese authorities;
k)that the Applicant, or any relative or friend of the Applicant, has ever been a Falun Gong adherent or practitioner.
On the basis of the abovementioned findings made by the Tribunal, the Tribunal concluded that it was not satisfied that:
“There is a real chance that the applicant would suffer persecution in China for reasons of religion, membership of a particular social group constituted by Falun Gong practitioners, membership of a particular social group constituted by her family, or any other convention reason. It is not satisfied that the applicant has a well founded fear of suffering persecution at the hands of the Chinese government.”[4]
[4] See page 94 of Exhibit 1.
The First Ground of the Application
It was apparent at the hearing which took place in Sydney on 18th August 2008 that the Applicant was, in fact, alleging that the Tribunal displayed actual bias towards her.
The Applicant did not provide any evidence or refer to any evidence to support a claim of actual bias. In Minister for Immigration & Multicultural Affairs v Jia[5] the High Court endorsed the test for actual bias applied by French J, who heard that review at first instance. At paragraph 72 of the decision the High Court stated:-
“[72] The test which was applied both by French J and the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, and Johnson v Johnson (2000) 201 CLR 488. The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”
[5] [2001] 205 CLR 507 per Gleeson CJ and Gummow J
The Applicant has not adduced any evidence and nor has the Applicant referred to any evidence capable of satisfying the test for actual bias referred to above.
For completeness, it is worthwhile to refer to the test for apprehended bias. The test for apprehended bias was stated by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28. In paragraphs 27 and 28 the High Court essentially stated that the test for apprehended bias in the case of administrative proceedings held in private is whether a hypothetical, fair minded lay person who was 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 decision maker might not bring an impartial mind to the resolution of the question to be decided.
The Applicant has not provided any evidence, and nor has the Applicant pointed to any evidence, capable of satisfying the test for apprehended bias.
The Applicant's first ground for review has therefore not been made out.
The Second Ground of the Application
Compliance with s.424A of the Act is mandatory. A failure to comply with s.424A constitutes jurisdictional error (See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[6]).
[6] (2005) 228 CLR 294
The point for consideration in this matter is whether or not s.424A is relevant. That section states:
“Section 424A - Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.”
In a case entitled SZBYR v Minister for Immigration & Citizenship[7] the High Court stated, inter alia:
“This then requires close attention to the circumstances in which s.424A is engaged. S.424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.”
[7] [2007] HCA 26
In my view, s.424A is not engaged in this case. The Tribunal's reasons were based upon the vague nature of the Applicant's claims and evidence and the lack of particularity in the Applicant's claims and evidence. The Tribunal essentially found that there were inherent inconsistencies in the Applicant’s evidence. In particular the Applicant did, on the one hand, claim to be an adherent of Falun Gong but she was only able to provide vague evidence to the Tribunal in relation to her practice of Falun Gong. The inconsistencies in the Applicant’s evidence do not constitute “information” for the purposes of s.424A of the Act. In particular note the decision of the High Court in SZBYR v Minister for Immigration & Citizenship (supra) at paragraph 18.
The Tribunal made an assessment of the Applicant’s credibility. Quite simply, the Tribunal did not believe the Applicant. This assessment was based upon the Applicant’s evidence which she gave to the Tribunal. The assessment of the Applicant’s credibility was also based upon independent country information (in particular concerning Falun Gong). I am satisfied that the Tribunal’s adverse credit findings were based upon the Applicant’s own evidence and the independent country information. In those circumstances it is not open to this Court to review those credit findings, note Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 168 ALR 407.
The Applicant’s second ground for review (alleging a breach of s.424A) is therefore not made out.
The Applicant's failure to attend at the re-scheduled hearing
As noted earlier, the evidence discloses:-
a)that the Refugee Review Tribunal wrote to the Applicant by letter dated 13th September 2007 advising her of the date on which the hearing would continue. The date advised was 28th September 2007. That letter from the Tribunal enclosed a document entitled, "Response to Hearing Invitation";
b)on 25th September 2007 the Tribunal received from the Applicant a completed "Response to Hearing Invitation" form. In that form the Applicant stated that she did not want to come to a hearing and, furthermore, the Applicant consented to the Tribunal proceeding to make a decision on the review, without taking any further action to allow or enable the Applicant to appear before it.
A somewhat similar set of circumstances arose in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[8]. In that case the applicant had failed to appear at any hearing. Relevantly, for present purposes, the applicant in SZDXC had (like the Applicant in the present case) completed the "Response to Hearing Invitation" form by stating that he did not want to attend at a hearing and consented to the Tribunal essentially proceeding in his absence. Hely J stated at paragraph 16:
“[16] The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.”
[8] [2005] FCA 1306
In the present case the Tribunal had made it clear to the Applicant during the hearing on 11th September 2007 that it had a lot of questions to ask her, and that it would take some time. On that occasion the Applicant had agreed for the hearing to be adjourned because the Applicant was displaying signs of "renewed discomfort". I accept that the Applicant was made aware by the Tribunal of the importance of returning to finalise the hearing. In essence, the Tribunal needed to ask the Applicant more questions because the Applicant's claims to that point had been vague and lacking in detail. The Tribunal had also written to the applicant on 13 September 2007 (as noted earlier).
I am satisfied that the Tribunal proceeded in a fair manner in regard to the Applicant.
Conclusion
I have considered the procedures and reasoning of the Tribunal in this matter. I have not been able to identify any jurisdictional error affecting its decision. In my view, the application for review should be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date:
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