SZMBR v Minister for Immigration
[2008] FMCA 681
•15 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 681 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution as a Falun Gong practitioner – credibility – bias – no evidence of bias – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 425, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed. NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 followed. SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed. SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed. |
| Applicant: | SZMBR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 673 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 May 2008 |
| Date of last submission: | 15 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr Dworcan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,600.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 673 of 2008
| SZMBR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China. In his application he asks the Court to review a decision of the Refugee Review Tribunal that was signed on 31st January 2008 and handed down on 21st February 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court to make two orders:
a)That the decision of the Refugee Review Tribunal should be quashed.
b)That his application be remitted to the Refugee Review Tribunal to be reconsidered according to law by a differently constituted Tribunal.
The Applicant relies on two grounds for his application:
a)That the Tribunal made its decision without regard to relevant documents and/or without allowing the Applicant another opportunity or reasonable opportunity to be heard in relation to adverse allegations made against him by the Tribunal.
b)The decision made by the Refugee Review Tribunal mostly refers to the knowledge of Falun Gong rather than the information provided by the Applicant.
The First Respondent, Minister for Immigration & Citizenship, filed a Response on 4th April 2008. That Response makes four claims:
a)The application for judicial review does not provide any particulars of any legal ground of review.
b)The application invites the Court to undertake a review of the merits of the Tribunal's decision. To engage in fact finding about the merits of the Applicant's case is no part of the function of the Court.
c)The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal.
d)The application for review does not raise an arguable case for the relief claimed.
Background
The background to this matter is that the Applicant arrived in Australia on 21st July 2007. On 28th August 2007 he applied for a Protection (Class XA) visa. In that application he provided a typed statement in English in which he claimed to have practised Falun Dafa, also known as Falun Gong, in December 1998. He claimed to have been arrested in 2003. He claimed that when he was arrested and detained that he was beaten, kicked, hit with an electric baton and tortured in other ways. There is some discrepancy about the dates between which he claimed this detention occurred as his statement refers to his having been arrested in November 2003 but released in September 2003, which is clearly an error.
A delegate of the Minister wrote to the Applicant on 11th September 2007 inviting him to attend an interview. The Applicant did not attend the interview which was scheduled to take place on Friday 28th September 2007. The delegate in giving his reasons noted that the Applicant did not attend the interview and went on to say:
“All reasonable steps have been taken to give the applicant an opportunity to substantiate his claims, however, he has failed to take up that opportunity.
If interviewed, the applicant would have been required to satisfy me that he was a genuine Falun Gong practitioner. I therefore cannot be satisfied that he is a genuine Falun Gong practitioner.
If interviewed, the applicant would have been required to satisfy me that he had been arrested and detained as claimed. I therefore cannot be satisfied that the applicant was arrested and detained as claimed.
Notwithstanding any objective information on the treatment of Falun Gong practitioners in China, I am not satisfied that the applicant has substantiated his claims and therefore find that his claimed fear of persecution is not well-founded.”[1]
[1] See Court Book at page 35
The delegate refused to grant the Applicant a protection visa on 28th September 2007.
Application to the Refugee Review Tribunal
On 26th October 2007 the Applicant applied to the Refugee Review Tribunal for review of the delegate's decision. He stated in that application that he required an interpreter in the Mandarin language. He did not wish to use his residential address as his address for correspondence and he gave an address in Elizabeth Street, Surry Hills. He did not nominate any person as an adviser or his authorised recipient.
The Tribunal wrote to the Applicant on 26th October 2007 acknowledging receipt of his application. The Tribunal wrote again on 13th November 2007 inviting him to attend a hearing to take place on Tuesday 11th December in that year at 9:00am. The Applicant completed a Response to Hearing Invitation indicating that he wished to attend and advised that he would need an interpreter in the Mandarin language.
The Applicant attended the hearing and brought with him his Chinese passport. The hearing commenced at 9:12am and ended at 11:47am, according to the RRT hearing record, a copy of which appears at pages 52 and 53 of the Court Book.
At the hearing the Applicant gave evidence about his claims and the Tribunal Member asked him a number of questions. The Tribunal offered the Applicant at the hearing the opportunity to respond in writing to matters put to the Applicant by the Tribunal Member. The Applicant agreed that he would like to do that and would require two weeks. It is common ground that the Applicant did not provide any written submission to the Tribunal.
The Tribunal signed its decision on 31st January and handed the decision down on 21st February 2008 affirming the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found in the Court Book at pages 57 through to 69.
In the Tribunal decision record the Tribunal set out the Applicant's claims and evidence from his application for a protection visa and at some length from the evidence given at the Tribunal hearing. The Tribunal also referred to Independent Country Information about Falun Gong theory and practice. That information is set out at pages 65 and 66 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons can be found at pages 66 through to 69 of the Court Book. The Tribunal accepted that the Applicant is a citizen of the People's Republic of China based on his Chinese passport. However, the Tribunal did not consider the Applicant's claims to be true. The Tribunal set out the reasons why it did not accept the truth of the Applicant's claims. Those reasons can be summarised as follows:
a)The Tribunal was not satisfied as to the truth of the Applicant's claim to have been a Falun Gong practitioner or teacher in China.
b)The level of the Applicant's demonstrated knowledge of the Falun Gong faith would be understandable if he had only been introduced to it very recently or if he were a practitioner who had ceased practising some years ago. However, this is not what he claimed for himself. He claims to have begun practising as long ago as December 1998 and to have continued his practice since then, at first in public and then later in private.[2]
c)The Tribunal's doubts as to the credibility of the Applicant's claims were reinforced by his claims at the hearing to have been dismissed from his employment, forced to sell his house and forced to live in hiding from the authorities before leaving China. The Tribunal found it difficult to understand why the Applicant would have failed to make any mention of those matters in his application for protection.
[2] See Court Book at page 67
In summary, the Tribunal was not satisfied as to the credibility of the Applicant's claims. The Tribunal put its doubts about the Applicant's claims to the Applicant at the hearing and referred to this in the decision record.
“I put to the Applicant that I had doubts about his claims to have been dismissed from his employment, to have been forced to sell his house and to have been forced to live in hiding from the authorities before his departure from China, all claims which had not been mentioned in his protection visa application. I explained that this information was significant for the review of his case because it could cast doubt on the truth of his claim that he had suffered harm in China and could indicate that he would not be harmed if he returned there. This could be a reason for affirming the decision not to grant him a protection visa.
Asked if he wanted more time to respond to the information or comment on it the Applicant said he would like to respond in writing. He agreed that two weeks would be a sufficient time for him to do so.
The Tribunal received no written response from the Applicant within the two-week period agreed at the hearing, and has received nothing further from him as at the date of this decision.”[3]
[3] See Court Book at page 65
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in sub-section 36(2)(a) of the Migration Act for a protection visa.
Application for Judicial Review
The Applicant has commenced proceedings in this Court seeking a review of the Tribunal's decision. The Applicant filed an application and an affidavit in support on 20th March 2008. He appeared at the First Court Date before me on 7th April 2008 where I made directions for hearing.
The Applicant has not taken advantage of the directions that granted him leave to file and serve an amended application and he has not filed and served a short written outline of submissions for the hearing. The lawyers for the Minister have filed an outline of submissions and I am informed that they sent a copy to the Applicant. I am also informed by Mr Dworcan, who appears for the Minister today, that a further copy of the written outline of submissions was provided to the Applicant before the hearing started today and the interpreter in the Mandarin language was given time to go through that document with the Applicant so that he understood it.
Submissions
The Applicant made an oral submission to the Court. He told the Court that he had practised Falun Gong in China and said the Tribunal Member had asked him many questions about Falun Gong books. He said that he could not answer those questions, but he merely stated the essence and the principles of Falun Gong and the effect on people. He said that he stated his knowledge of Falun Gong in general terms to the Member. He complained that the Member criticised him by saying that his knowledge was incomplete. He said that it was impossible to recite the Falun Gong books word for word. He said that he also told the Tribunal Member that he had practised Falun Gong since he arrived in Sydney, but the Member did not put any weight on that.
The Applicant also claimed that he had not been treated fairly in relation to what he had done and in relation to his rights and submitted that the Court should quash the Refugee Review Tribunal decision. In answer to a question from the Bench as to why he said he was not treated fairly by the Tribunal, the Applicant said that the Member had asked him questions about Falun Gong. He said that he had answered in a comprehensive way and in general terms. He complained that the Tribunal Member had told him that what he had done in China by way of practice of Falun Gong would not lead to persecution in China. He said, however, that it was well-known that to practise Falun Gong in China no matter for what purpose is regarded by the authorities as illegal and that people who practise Falun Gong are detained. No matter what the purpose of the practice of Falun Gong is, there will be a crackdown by the authorities.
The Applicant told the Court that in his opinion the Tribunal Member did not have a clear understanding of Falun Gong. He went on to say that the Tribunal asked him to provide a written submission in half a month's time, but said that he does not understand English. He had only a shallow understanding of the Australian legal system and therefore he missed the opportunity to give his reasons. He could not post the document. In answer to a question from the Bench as to why he could not have hand delivered a written submission to the Tribunal, he said that he did not understand the procedures or the name of the Tribunal Member because all of that information was in English.
In answer to a further question from the Bench he said that an overseas student had helped him to prepare his application to the Refugee Review Tribunal and his application to the Federal Magistrates Court. He said that he did not know what that student was currently doing. He said that he had been helped in preparing his documentation by a person who came from the same hometown as he did whom he had met at a Yum Cha. In answer to the question as to why that person could not have assisted him in making his written submission to the Tribunal, he told the Court that possibly that person had gone back to China. He told the Court that he felt depressed and needed to tell people what had happened to him.
The solicitor for the Minister made a short oral submission to supplement his comprehensive written submissions and indicated that the Applicant's submissions still related to merits review and did not provide a ground to establish jurisdictional error.
In reply, the Applicant told the Court that he had demonstrated to the Tribunal the Falun Gong exercises, but the Member rejected this evidence. He complained that the Tribunal Member accused him of lacking knowledge of Falun Gong, but asserted that he had stated the true essence of Falun Gong to the Tribunal. He again claimed that he had given the Member details of his practice of Falun Gong in Australia. He claimed that the Tribunal Member rejected his evidence and was biased against him.
In answer to a question from the Bench as to why he considered that the Tribunal Member was biased, he claimed that at the hearing he had told the Member the facts, but the Tribunal Member did not give enough attention to his evidence. He said that after the Tribunal Member heard his answers in relation to Falun Gong books the Member did not tell him where he was wrong. He claimed that he did not have any chance to comment on the Tribunal's disbelief of his claims or to rebut the Tribunal's view. He said that the Tribunal hearing ended in a hurry without giving him a chance to make further comment. He estimated that the Tribunal hearing started at 9:30am and concluded at 11:55am.
Considerations
In dealing with the Applicant's claim, I note, first of all, that the Applicant asked for orders first quashing the Tribunal decision, and second, remitting his application to the Tribunal for reconsideration by "a differently constituted Tribunal". I should make it clear that I am satisfied that the Court does not have the power to make an order that a Tribunal should be differently constituted when remitting a matter to the Tribunal for reconsideration. I rely on the decision of the Full Court of the Federal Court of Australia in SZEPZ v Minister for Immigration & Multicultural Affairs[4].
[4] [2006] FCAFC 107
At the hearing I explained to the Applicant that in order to make the orders that he sought the Court needed to be satisfied that the Tribunal decision was affected by jurisdictional error.
The Applicant has set out two grounds:
a)i) The Tribunal made the decision without regard to relevant documents
ii)The Tribunal made the decision without allowing the Applicant another opportunity or a reasonable opportunity to be heard in relation to adverse allegations made against him by the Tribunal.
b)That the decision made by the Tribunal mostly refers to his knowledge of Falun Gong rather than the information provided by the Applicant.
Ground 1
In dealing with the Applicant's first ground, I note that the Applicant has not provided any particulars as to what documents which he claims were relevant that were not considered by the Tribunal. It is clear from the Tribunal decision that the Tribunal considered the Applicant's claims as set out in his protection visa application to be a Falun Gong practitioner and to have suffered arrest, detention and ill-treatment as a result.
It is also clear that the Tribunal has considered Independent Country Information about Falun Gong, its theory and the practice of Falun Gong by practitioners in China. The other material considered by the Tribunal is the Applicant's oral evidence to the Tribunal.
The reason why the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa was because the Tribunal was not satisfied as to the credibility of the Applicant's evidence as to his essential claims for refugee status. In particular, the Tribunal was not satisfied that the Applicant was indeed a Falun Gong practitioner or that he had suffered dismissal from employment, forcible sale of his house and the requirement to live in hiding from the authorities before he left China.
The Applicant claimed that he was not allowed "another opportunity or reasonable opportunity to be heard in relation to adverse allegations made against him by the Tribunal". It is clear, however, that the Tribunal put to the Applicant at the hearing the Tribunal's doubts about the essential matters of his claim and about the Tribunal's doubts as to the credibility of his account of his practice of Falun Gong and his ill-treatment in China.
The Tribunal did offer the opportunity to the Applicant to make written comments on those matters and allowed a period of two weeks after the hearing. The Applicant confirms this and the Applicant confirms that he did not provide to the Tribunal written comments after the hearing. The Tribunal noted that written comments were not provided within the time limit allowed or at any time up to 31st January when the Tribunal signed its decision. The Applicant claims that he did not speak English or understand the procedures or have anyone to help him with the English language. Nevertheless, the Applicant told the Court that he had someone help him prepare his application to the Refugee Review Tribunal and he had someone help him prepare his application to the Court.
The fact that the Applicant did not take the opportunity to provide his written comments to the Tribunal in reply to the matters that the Tribunal had raised does not indicate any jurisdictional error on behalf of the Tribunal. The Tribunal can only make the offer and allow the time. It is up to the Applicant whether or not he takes advantage of the opportunity to do so, and in this case the Applicant did not.
I am satisfied that both limbs of the Applicant's first ground have not been made out.
Ground 2
The Applicant's second ground claims that the Tribunal mostly refers to his knowledge of Falun Gong rather than the information provided by the Applicant. Assessing the evidence and giving weight to evidence before the Tribunal is essentially a function of the Tribunal itself. The Applicant's complaint the Tribunal gave more weight to some evidence than others does not establish jurisdictional error.
It is clear that the Tribunal considered the Applicant's evidence but was not satisfied as to its credibility. It is not open to the Court to conduct merits review and indeed the lawyers for the Minister reminded the Court that to engage in fact finding about the merits of the Applicant's case is no part of the function of the Court. (See Minister for Immigration & Ethnic Affairs v Wu Shan Liang[5]; and NAHI v Minister for Immigration & Multicultural Affairs[6]).
[5] (1996) 185 CLR 259 at 272
[6] [2004] FCAFC 10
Additional Ground - Allegation of bias
The Applicant today has claimed that the Tribunal Member was biased. This is not a claim that was made in the application filed with the Court and appears to have emerged for the first time in the Applicant's submissions in reply.
The Applicant's claim that the Tribunal was biased relates to the Applicant's complaint that the Tribunal did not give sufficient weight or attention to his evidence or his claims. As I said, the giving of weight to evidence and in fact the assessment of evidence is solely a function of the Tribunal. It is not evidence of bias.
It is well-established that an allegation of bias or bad faith is a serious allegation containing, as it does, the suggestion of improper behaviour on the part of the administrative decision-maker. Bias must be strictly alleged and strictly proved (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[7]; and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[8]).
[7] [2002] FCAFC 358
[8] [2002] FCAFC 361
The Applicant has not proved bias. There is no evidence of bias. The fact that a Tribunal did not give sufficient weight or any weight to a party's evidence is not of itself evidence of bias. The allegation of bias has not been made out.
Conclusion
I am conscious of the fact that the Applicant is not legally represented at this hearing, although I am aware that he has had legal advice from a barrister who is a member of the Refugee Review Tribunal Legal Advice Panel. I would comment in passing that those barristers and solicitors on the legal advice panel provide a valuable service and in many cases applicants receive free of charge advice from very experienced members of the Bar who practise regularly in this jurisdiction. Nevertheless, the Applicant was not legally represented at the hearing and quite clearly does not appear to have had legal advice in the preparation of his application. For some reason unknown to me, he has not filed any amended application.
Knowing, as I do, that the Applicant is not legally represented at the hearing, I have read through the Tribunal decision myself independently of the Applicant's claims or the Respondent's submissions in order to ascertain whether there is any arguable case of any jurisdictional error, whether or not it has been referred to by either party.
It does not appear to me that there is any arguable case of jurisdictional error. The Tribunal wrote to the Applicant and invited him to attend a hearing. He attended a hearing and gave evidence with the assistance of an interpreter in the Mandarin language, as he requested. At the hearing the Tribunal raised with him its doubts about his knowledge of Falun Gong and whether or not he was in fact a genuine Falun Gong practitioner. This I notice was one of the matters to which the delegate had referred in the delegate's decision. It is an essential part of the Applicant's claim. The Applicant was certainly on notice that whether or not he was a genuine Falun Gong practitioner was a matter that would be considered by the Tribunal.
There is no breach of s.425 of the Migration Act. There is no breach of s.424A of the Migration Act as the Tribunal did not rely on any documents containing information as a reason or part of the reason for affirming the decision under review. The Tribunal did consider Independent Country Information relating to Falun Gong and it is well-established that Independent Country Information does not come under the effect of sub-section 424A(1) because it is specifically excluded by
sub-section 424A(3) of the Migration Act.
It is quite clear that the Tribunal complied with its obligations under s.424AA of the Migration Act in putting its doubts at the hearing to the Applicant and offering him the opportunity to make written submissions after the hearing in answer to those concerns. The fact that the Applicant did not provide any written submissions is a matter for the Applicant and does not establish jurisdictional error on the part of the Tribunal.
There is no jurisdictional error on the part of the Tribunal that I can see. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Section 474 of the Act provides that privative clause decisions are final and conclusive. They are not subject to orders in the nature of certiorari or mandamus. As the Tribunal decision is a privative clause decision, it follows that the application must be dismissed.
Costs
There is an application for costs on behalf of the First Respondent Minister. The amount the Minister seeks is $2,600.00. This is an appropriate matter for an order for costs as the Applicant has been unsuccessful in his claim. I note that there have been two Court events, the First Court Date on 7th April 2008 and the hearing today. The amount of $2,600.00 is an amount that is well within the amount envisaged by the scale in the schedule to the Federal Magistrates Court Rules.
The Applicant, however, has told the Court that he has financial difficulties. He has set out what they are. He has not worked much since he has been in Australia. He has to pay rent and support his child. He has not had the money to hire a lawyer to appear for him. Accordingly, he asks the Court either to reduce the amount of costs payable or exempt him from paying costs entirely.
I see no reason to doubt the Applicant's claims to have financial difficulties. The fact that the Applicant is in financial difficulty is not of itself a reason not to make an order for costs. It is, however, a matter that the Court should take into account in allowing time to pay. If the Court did not allow time to pay, the Applicant would be required to pay those costs within 28 days. In my view, it would be a considerable financial impost to require the Applicant to pay the relatively modest sum of $2,600.00 within 28 days. I will allow six months to pay.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 29 May 2008
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