SZNBV v Minister for Immigration
[2009] FMCA 1228
•18 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBV v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1228 |
| 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 “SZNBV”. |
| Migration Act 1958 (Cth), ss.91R, 91X |
| Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 NAAH v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 354 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 NARE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 554 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZDFO v Minister for Immigration [2004] FCA 1192 S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | SZNBV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3353 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox Lawyers |
ORDERS
The application filed on 18 December 2008 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 |
SYG3353 of 2008
| SZNBV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant was born in Fujian, China and seeks protection in Australia for fear of persecution in China for the reason that his religion is Falun Gong. The applicant claims that he turned to Falun Gong as he suffered lumbar vertebra disk protrusion and chronic stomach troubles as a result of working long hours and not having regular meals.
In 2005, the applicant claims he started practising with other Falun Gong practitioners who he met through Mr Lin Feng Sheng. He also distributed fliers from 2005 until 6 April 2008 when he was arrested and taken to the police station. The applicant claims that he was forced to acknowledge that Falun Gong was unlawful, anti-Communist Party and the Chinese people. He claims that he was physically tortured, finger prints were taken and he was advised that these were sufficient to yield a five year gaol sentence. The applicant’s family sold their truck to secure funds so that he could be released. The applicant claims that to escape the threats by the police that he sold his house and arranged to come to Australia via Singapore.
On 4 June 2008, the applicant arrived in Australia and on 21 July 2008 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 30 August 2008, a delegate of the first respondent refused to grant the visa and the applicant was informed of this decision and her review rights. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision on 15 September 2008 and the Tribunal affirmed the delegate’s decision on 2 December 2008. It is this decision, RRT case number 0805885, of Rodney Inder that is the subject of these proceedings.
A Court Book (“CB”) prepared by the first respondent’s solicitors and marked Exhibit “A” is the only evidence before the Court.
The applicant’s original application filed on 18 December 2008 contained a single ground which states:
I started practice of Falun Gong in 2005. On 6 April 2008 when I distributed Falun Gong fliers, I was arrested for 20 days. I suffered various physical torture. I had to sell my ruck for my release. I had to pay money to buy passport to leave China. The passport previously used by other people, so I don’t know about the details of the[r] ecords of departure and entrance.
All of the above facts I experienced was not accepted by the delegate of the Refugee Review Tribunal.
I think that the delegate failed to consider my claims according to s.91R of the Migration Act of 1958 because of the delegate’s bias against me.
The applicant appeared at the first court date directions hearing on 3 February 2009 and indicated to the Court that he wished to participate in the panel advice scheme. The applicant was allocated a panel advisor but the applicant declined to attend a conference although an interpreter service was provided. The applicant was provided with written advice which was mailed to him. At the directions hearing the applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 21 April 2009. The applicant elected not to take this opportunity. The applicant was also required to file and serve a short written outline of submissions prior to the hearing but nothing was placed before the Court.
Tribunal decision
The applicant appeared before the Tribunal on 27 November 2008 to give evidence and present argument. A hearing was conducted with the assistance of a Mandarin interpreter. The Tribunal raised with the applicant the existence of border and immigration control stamps which indicate that the applicant had left China on 28 October 2006 arriving in Singapore the same day where he was granted permission to work from 30 October 2006 to 30 October 2008 (CB 107 at [46]). The applicant acknowledged that such stamps were in his passport but said that he did not know anything about them. The applicant insisted that he had left China on 1 May 2008 and that he had only been in Singapore one day on 2 May 2008 before travelling to Thailand until 13 May 2008 before returning to Singapore and subsequently to Australia arriving on 4 June 2008. The applicant claimed that other persons had used his passport (CB 107 at [46]).
The Tribunal found:
a)that there is no evidence to support the applicant’s claim that he left China on 1 May 2008 arriving in Singapore on 8 May 2008 (CB 107 at [47]-[49]);
b)that it did not accept that the applicant did not know anything about the various visas and immigration stamps in his passport (CB 108 at [48]);
c)that there is no evidence to support the applicant’s claim that someone else had used his passport (CB 108 at [49]);
d)that it was not satisfied as to the applicant’s alternative claim which was advanced in his Protection visa application that he left China on 2 April 2008 (CB 108 at [49]) noting the benefit of doubt given to the applicant at (CB 108 at [47]);
e)that it did not accept that someone else had mysteriously arranged for stamps to be placed in his passport (CB 108 at [49]); and
f)that it did not accept that the applicant left China for Singapore on 28 October 2006 returning to China on 15 April 2008 and left China for Singapore the second time on 19 April 2008 visited Thailand for one day on 12, 13 May 2008 and arrived in Australia on 4 June 2008 (CB 108 at [48]-[49]).
The Tribunal concluded that the applicant had been untruthful in his claims contained in his Protection visa application and the evidence given during the hearing. The Tribunal accordingly found that the applicant was not a credible witness (CB 108 at [49]). The Tribunal held from country information that people who were granted passports and exit permits to leave China were assumed not to be on any wanted list if they returned to China. In light of this information the Tribunal did not accept the applicant’s claims and that this went to his credibility (CB 109 at [52]).
Consequently, the Tribunal did not accept that the applicant’s claims to have been detained on 6 April 2008, held for 20 days and brutally tortured (CB 108 at [50]).
Separate from the credibility findings, the Tribunal was not satisfied the applicant was a Falun Gong practitioner in China or Australia. The Tribunal considered that the applicant’s claims and knowledge of Falun Gong “are very general and show no real knowledge or commitment to, Falun Gong and the teachings of Master Li” (CB 109 at [52]). As the Tribunal had found that the applicant was not a Falun Gong practitioner, the Tribunal did not accept his claim that he was subject to extortion as a truck driver because he was a Falun Gong practitioner (CB 110 at [52]). In respect to the payment of bribes generally, the Tribunal was not satisfied that the applicant had a well founded fear of persecution based on his membership of a particular social group, namely a truck driver in China subject to fines or bribery. The Tribunal was not satisfied that there was a relevant Convention nexus associated with the reason why he was asked to pay bribes (CB 110 at [53]). Nor was the Tribunal satisfied that the applicant had a well founded fear of persecution for reasons of his real or imputed political opinion (CB 110 at [54]-[55]).
The Tribunal concluded that there was not a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention reason if he returned to China, either now or in the foreseeable future (CB 111 at [57]). The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa (CB 111 at [58]-[59]).
Consideration
The pleaded ground set out above in effect recites the applicant’s claim and notes that this was not accepted by the Tribunal. However, the ground contains the assertion that the Tribunal “failed to consider my claims according to s.91R of the Migration Act 1958 (Cth) because of the delegate’s bias against me”. As the application is a review of the Tribunal’s decision I would assume that this allegation is bias on the part of the Tribunal and not that on the part of the delegate. This claim is made without any particulars or supporting evidence.
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 [2001] HCA 17 at [69]. 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 factual errors or faulty reasoning on the part of the Tribunal member: 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].
Alternatively if the applicant is claiming apprehended bias this will exist where a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would form the view that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294.
A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the Tribunal member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion: Jia (supra) at [72] and [86].
b)Apprehended bias, in the context of an administrative decision maker, is not tendered by the strictures that apply in a case of jurisdictional pre-judgment: Jia at [179]-[187] and [244]-[245]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 per Allsop J (Moore and Tamberlin JJ agreeing) at [19].
Where credibility is in issue, as it is in this matter, the Tribunal member will necessarily have to test the evidence presented – often vigorously: Ex parte H (supra) at [30]. Procedural fairness will often require that the applicant be plainly confronted with matters which bear adversely on their credit or which bring their accounts into question. The decision maker’s assessment of the applicant’s credibility will often depend upon the demeanour of the witness and the manner in which they give evidence: ex parte H at [34]. Bias does not necessarily arise from illogical, irrational decision making or inferences: Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 at [52], [75], [99]-[101]. Further, a manifest defective or illogical approach to the consideration of evidence or irrational reasons forming a conclusion will create an impression of confusion, lack of care or incompetence. But such an approach, in the absence of further evidence, does not necessarily demonstrate apprehended bias: Applicant S20/2002 at [101] and [136].
On a fair reading of the Tribunal’s decision, which is the only evidence before the Court, and in the absence of particulars or any other submissions I am satisfied that a fair minded lay observer would not be able to form the view that the Tribunal member did not bring an impartial mind to the resolution of this question. Similarly I am satisfied that it is not apparent that any aspect of the Tribunal decision is illogical or irrational. In the circumstances I am satisfied that a claim of bias on the part of the decision maker cannot be sustained and should be dismissed.
The pleading is in effect an invitation to the Court to conduct a merits review. Clearly a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
A merits review is an assessment of the appropriateness of a decision as distinct from the judicial review which focuses on the lawfulness of the earlier decision. A merits review provides a complete rehearsal of all the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application unfettered by the earlier decision or reasons of the decision maker for the earlier decision. As has been explained on numerous occasions and particularly by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 and NARE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 554 and the Full Federal Court in NAAH v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 354, the Courts cannot engage in merits review.
This request for a merits review is nothing more than a demonstration that the applicant clearly has no comprehension of the function and role of bringing a review application before the Court and is pursuing a course in an attempt to prolong his stay in the country. His unidentified advisors are pursuing this course without any clear intention to seek a meaningful judicial review.
Conclusion
The applicant in these proceedings was a self represented litigant who appeared with the assistance of a Mandarin interpreter. I am satisfied that the applicant has been provided with the opportunity available in the circumstances to present his review application. However it is clear that he had no understanding of the issue before the Court or how he may present his case. This places an obligation on the Court to independently consider whether any argument based on the material, that is, the Court Book and in particular the Tribunal’s decision can support a claim of jurisdictional error. I am satisfied that Mr Bevan, counsel for the first respondent, has addressed in his written submissions the contents of the Tribunal decision and the manner in which the review was conducted. On a fair reading of the decision it is not apparent that any other ground of review exists that will suggest that the Tribunal made a jurisdictional error in its decision making process. Consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter or that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 18 December 2009
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