SZNFK v Minister for Immigration
[2009] FMCA 361
•23 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 361 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no failure to consider relevant facts – adverse credibility finding – findings open to the Tribunal – no failure to afford applicant procedural fairness – no failure to apply the correct test – no failure to consider integers of applicant’s – no failure to consider applicant’s claims – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 65, 91R, 422B, 424, 424A, 425, 425A, 426A, 427, 441A(4), 441C(4) Migration Regulations 1994 (Cth), reg.4.35D(b) |
| Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] 219 ALR 27 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs FCAFC Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Applicant A169/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] FCA 6; (1996) 185 CLR 259 |
| Applicant: | SZNFK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 269 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 April 2009 |
| Date of Last Submission: | 23 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr R. White |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 5 February 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 269 of 2009
| SZNFK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Extempore; Revised from Transcript)
I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”), on 5 February 2009 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 8 January 2009 which affirmed the decision of a delegate of the first respondent Minister to refuse the grant of a protection visa to the applicant.
The Minister has filed a bundle of relevant documents in this matter (the Court Book (“CB”)), and the following relevant background can be ascertained from this material:
1)The applicant is a citizen of the People’s Republic of China (“China”), who arrived in Australia on 9 July 2008. He arrived using a name other than his real name. He applied for a protection visa on 11 July 2008 (CB 1 to CB 55 with annexures). He subsequently advised the relevant authorities of his real name.
2)On 3 September 2008, a delegate of the respondent Minister refused to grant a protection visa (CB 57 to CB 74).
3)On 30 September 2008, the applicant applied to the Tribunal for review of that decision (CB 75 to CB 78).
4)He was invited (CB 79) to a hearing before the Tribunal on 21 November 2008. He attended this hearing (CB 82). I note the only account of what occurred at that hearing that has been put before this Court is that account contained in the Tribunal’s decision record (CB 97.0 to CB 98.3).
Applicant’s claims
The applicant’s claims to protection in Australia were initially, set out in a statement which he had provided in support of his protection visa application (CB 39 to CB 41). In essence, the applicant claimed to fear persecutory harm if he were to return to China due to his membership and involvement in “an underground Christian church” in China, and due to the authorities suspecting him of involvement in the Xinjiang Independence Group (“XIG”).
The applicant claimed that from September 2005 he attended church gatherings and a bible study group in China. He stated that he and his supervisor organised an “underground” church group in their sales team at their work. He claimed that he subsequently came to the attention of police, and as a consequence of this was ultimately dismissed by his employer after police delivered a warning to his manager.
The applicant moved to Xinjiang and started his own business with a friend. He claimed that in May 2008 the police raided his place of business because of his suspected association with the XIG.
This suspicion appears to have arisen from one of the applicant’s employees having first been suspected of such involvement.
The applicant claimed that he was put in to prison, and that his friend paid for his release. He stated that he then became of interest to the authorities who would not “allow” him a passport. But that ultimately a friend helped him obtain a passport so that he could flee to Australia.
The Tribunal
At the hearing before the Tribunal the applicant submitted the following documentary material in support of his application for review. These were:
1)“Shop Premises Leasing Tenancy Agreement” dated 27 February 2008 (CB 84 to CB 85);
2)“Purchasing Contract” dated 1 March 2008 (CB 86 to CB 87);
3)Certificate of employment dated 11 September 2008 (CB 88).
After the hearing with the Tribunal, the Tribunal wrote to the applicant by letter dated 24 November 2008. This letter appears to have been sent pursuant to s.424A of the Act, and it invited the applicant to comment or respond to information relevant to his claimed incarceration in China. It would appear that the applicant did not reply to the Tribunal’s letter.
Tribunal decision
The Tribunal’s decision record has been put before the Court by way of annexure to the applicant’s affidavit filed with his application, and is also contained amongst the material in the Court Book (CB 92 to CB 101). The Tribunal did not accept that the applicant’s business in Xinjiang was raided by police because of his suspected association with the XIG. The Tribunal also did not accept the applicant’s evidence that he was detained and beaten because of his association with the XIG, or that he would be persecuted by the Chinese authorities for this reason, if he were to return to China.
The Tribunal accepted that the applicant was brought up in a Christian family. However, it did not accept the applicant’s evidence of persecution because of his association with “an underground Christian church”.
It found that in any event, that even if the police raid had occurred as the applicant had claimed, and that this led to his dismissal from employment, that:
“May have been discriminatory conduct, but was not serious harm for the purposes of the convention within the meaning relevantly described by s. 91 of the Act.” (CB 99)
The Tribunal accepted that the applicant attended church services in Australia, but (for reasons given) found that he engaged in this conduct in order to strengthen his refugee claim.
The Tribunal in all did not accept that the applicant would face persecutory harm for any Convention reason, and was not satisfied that the applicant was a person to whom Australia owed protection obligations under the UN Refugees Convention.
Application before the Court
In his application, the applicant puts forward the following grounds:
“(1) The Tribunal failed to act judicially and afford procedural fairness.
(2) The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well-founded fear of persecution for a Convention reason on the grounds of religion.
(3)The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims
(4) The Tribunal failed to consider the applicant’s claims
(5) The Tribunal failed to investigate the applicant’s genuine claims.”
[Errors in original]
The application also provides the following particulars:
“(1) The Tribunal did not centralised my claim and correctly identify my well founded fears of persecution on the grounds of religion if forced to return to PRC.
(2) The Tribunal didn’t consider the my claims thoroughly. If I am forced to return to PRC, I will be the a person of interest to the PRC authorities on the account of my religion.
(3) The Tribunal didn’t consider the the new information I claimed.
(4) The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal ought to use all information for matter of reasoning and evaluation of my case for protection visa.”
[Errors in original]
Hearing before the Court
At the hearing before the Court, the applicant appeared in person.
He was assisted by an interpreter in the appropriate languages (Fuqing and Mandarin). The applicant stated that he preferred translation to be in the Fuqing language. The interpreter was accredited in the Mandarin language but has assisted the Court in the Fuqing language on a number of occasions in the past. When I explained to the applicant that the interpreter would, endeavour to use both languages to make sure that the applicant had a proper understanding of what was said today, the applicant indicated that he was content to proceed. No subsequent problem or objection was raised during the course of the hearing this morning.
Ms Whittemore appeared for the first respondent. I have the Minister’s Response and written submissions before me, as well as the relevant documents in the Court Book.
An issue arose at the beginning of the hearing relating to the applicant’s claim that he had not received the Minister’s written submissions. Ms Whittemore tendered a letter from the Minister’s solicitors sent to the applicant, (to the applicant by using his real name), at his address for service. This letter enclosed the Minister’s written submissions dated 17 March 2009. It and was sent by Express Post. It had a copy of a postal certified number on its face (“Respondents Exhibit 1”).
I am satisfied that the Minister took all reasonable steps to serve the applicant with a copy of the written submissions. In an event, the submissions were translated for the applicant this morning by the interpreter. No objection was made by the applicant to the matter proceeding today in this regard.
I should note that the applicant did access the “Legal Advice Scheme” and was provided with advice by a lawyer on that panel.
The Applicant before the Court
In essence the applicant asserts that the Tribunal failed to afford him procedural fairness and failed to properly consider and investigate his claims. When the applicant was provided with an opportunity to make submissions to the Court today, his initial response was that “things” had happened, but that he could not think of anything to say now.
When I explained to the applicant the difference in the role between the Tribunal and the Court, and in particular the function of the Tribunal to in effect answer the question as to whether or not the applicant was a refugee, and the role of the Court which in effect was to be satisfied that the Tribunal’s decision was made without legal error. The applicant was still unable to assist the Court. He explained that the grounds set out in his application to the Court were drafted with the “assistance of a friend”.
When pressed the applicant then raised two matters. The applicant made an additional allegation that the Tribunal was biased. I will deal with that later. Prior to the explanation from the Court, the applicant stated that if the Court wanted further documents that he would have to, as he said, go to the PSB in China to obtain them, and that that would be difficult. I understood from the applicant that these were documents that would assist in relation to the question as to whether or not he was a refugee.
It was because of what I understood to be the applicant’s misconception of the role of this Court that I then provided the explanation to the applicant to which I have already referred. It is, as Ms Whittemore submitted today, that the opportunity to provide such documents was an opportunity afforded to the applicant before the Tribunal, and any such documents would not assist the applicant before the Court at this time.
Ground 1
Ground one in the application is an assertion that the Tribunal failed to afford the applicant procedural fairness. No particulars are provided in support of this claim. I note that in any event, this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias), (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67] (“Lay Lat”), SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] (“SZCIJ”), and SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48] (“SZFDE”)).
The Tribunal invited the applicant to appear at a hearing pursuant to
s.425 of the Act. The Tribunal’s invitation letter complied with relevant statutory and regulatory requirements (ss.425, 425A, 441A(4), 441C(4) and Reg 4.35D(b), of the Migration Regulations 1994 (Cth) (“the Regulations”). The letter also stated the matters set out in s.426A of the Act.
From the material before the Court, it is clear that the Tribunal did comply with its obligation to afford the applicant a fair hearing, pursuant to s.425 of the Act (SZBEL v Minister for Immigration for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47] (“SZBEL”)). The Tribunal’s unchallenged account of what occurred at the hearing reveals that the Tribunal provided the applicant with an opportunity to set out the factual basis of his claims, and “sufficiently indicated” to the applicant the determinative issues in his case. That is, his religious activities, the police raid, and the claimed persecution because of what was perceived as his political involvement with the XIG.
Further, the Tribunal did invite the applicant, pursuant to s.424A(1) to comment on certain information, essentially independent country information. Such information appears to fall within the exception set out in s.424A(3)(a) from the obligations set out in s.424A(1) (VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (“VHAP”), Minister for Immigration and Multicultural and Indigenous Affairs vNAMW (2004) 140 FCR 572; [2004] FCAFC 264 (“NAMW”)). It was not however, in error for the Tribunal to have written to the applicant in this regard.
I cannot see that the Tribunal breached, or that any error arises from, any other provision contained in Division 4 of Part 7. In the absence of any particularity from the applicant, I cannot see that this ground is made out.
Ground 2
In Ground two the applicant complains that the Tribunal failed to apply the correct test in order to satisfy itself as to whether the applicant had a well founded fear of persecution for reasons of his religion.
Again, the applicant’s particulars do not assist.
Sections 65 and 36(2) of the Act relevantly require the Tribunal to reach a positive state of satisfaction as to whether Australia owes protection obligations before a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16] (“SJSB”)).
A plain reading of the Tribunal’s decision record reveals that the Tribunal did assess the applicant’s claim to fear persecutory harm on the grounds of his religion if he were to return to China.
On a reading of its decision record, I cannot see that the Tribunal misunderstood the relevant test or failed to properly apply it.
The Tribunal set out the relevant principles in the usual unexceptional terms (CB 94). It understood and assessed the applicant’s claim to fear harm because of his membership of “an underground Christian church” in his hometown of Longtain (CB 99). It accepted the applicant’s claim to have belonged to this church. But, unfortunately for the applicant, did not accept that the harm claimed to have been suffered amounted to “serious harm” for the purposes of s.91R of the Act (CB 99).
The definition of the concept of “persecution” as it appears in the UN Convention is of course qualified by what is set out in s.91R.
The Tribunal is compelled to have regard to this section. I cannot see error in what it has been done in this regard.
The Tribunal did consider whether the applicant’s cessation of his church activities was due to a fear of persecution. It found it was not, and it gave reasons for this (CB 99.8). Ultimately, the Tribunal found that he would not face persecutory harm on the basis of religion if he were to return to China (CB 100.2).
Further, in relation to his claimed attendance at Christian church services in Australia, it would appear to have accepted that this conduct had occurred. It was open to the Tribunal however in the circumstances before it to find that it was engaged in for the purpose of strengthening his refugee claims.
It is clear that the applicant is aggrieved by the Tribunal’s findings in this, and indeed in other regards. But even if this Court were to believe that the applicant would face harm on the basis of his religion, it cannot assist the applicant. This is because whatever the applicant, or even this Court, feels about the Tribunal’s findings, they were open to make on what was before the Tribunal.
Further, the Tribunal gave reasons for its findings. It is the case, with reference to relevant authorities, that so long as the Tribunal’s findings are open to it, this Court, as the Minister in my view correctly submits, is not able to review the merits of these findings and conclusions made by the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] (“Durairajasingham”)). This ground also is not made out.
Ground 3
In ground three, the applicant asserts that the Tribunal did not take in to account relevant considerations or integers central to his claims. It is difficult in the absence of any assistance by the applicant today, and in the absence of any particularity in what is stated in the application to clarify what the applicant feels was not taken into account.
If it is that this is a reference to the documents provided by the applicant to the Tribunal at the hearing in support of his claims, then what must be noted is that these documents (see [7] above) were not integers of the applicant’s claims, “central” or otherwise, such that any failure by the Tribunal to deal with them in it’s consideration could be regarded as jurisdictional error (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] (“Htun”), Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] (“Paul”), VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31] (“VQAB”)). At the very least, these documents were pieces of evidence put in support of his claims.
The Tribunal is not required to distinguish every piece of evidence in its decision record. So any failure by the Tribunal to mention these documents in its “Findings and Reasons” would not on that basis alone, reveal jurisdictional error on the part of the Tribunal (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [68], [73]-[74] and [91] (“Yusuf”), Applicant A169/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] (“Applicant A169/2003”), and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; FCAFC 184 at [47] (“WAEE”)).
In any event, all these documents went to aspects of the applicant’s claims which the Tribunal did not reject. In relation to the first two (the Tenancy Agreement and the Purchasing Contract), it can be plainly inferred from the Tribunal’s decision record that it accepted that the applicant had had a business in Xinjiang (CB 84 to CB 87 and see CB 99).
In relation to the third document (the Certificate of Employment), the Tribunal accepted that the applicant had been employed as a salesman (CB 86 and CB 99.1). I note Ms Whittemore’s submissions today, and referring the Court particularly to the Tribunal’s decision record in this regard (CB 97).
The applicant’s application is characterised by a lack of particularity and detail in support. Even on careful consideration, I cannot see that any other aspects of the applicant’s claims were not considered or addressed by the Tribunal. This ground also does not succeed.
Ground 4
In ground four, the complaint is that the Tribunal failed to “consider the applicant’s claims”.
On a plain reading of the Tribunal’s decision, this complaint can only be understood as a complaint that the Tribunal did not accept that the applicant would face persecutory harm on return to China. In the circumstances I can only see this claim as a request for this Court to engage in impermissible merits review, (see Minister for Immigration and Ethnic Affairs vWu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
As I have already said, the Tribunal did consider the applicant’s claims on the basis of religion, that is, his membership and association with “an underground Christian church”, and imputed political opinion, that is, its suspected involvement with the XIG (keeping in mind NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] 219 ALR 27 (“NABE”)). I cannot see that the Tribunal failed to consider the relevant claims or any aspects of these claims, as put by the applicant himself, or as it may be said, to arise on the material before the Tribunal.
To the extent that this may be another attempt to take issue with how the Tribunal understood and used the evidence before it, that is, the applicant’s oral and documentary evidence, it is of course the case that the giving of weight to evidence before the Tribunal is a matter for it as the relevant finder of fact (NAHI v Minister for Immigration for Immigration & Multicultural & Indigenous Affairs FCAFC 10 at [11] (“NAHI”)). On the material before the Court, I cannot see that the Tribunal failed to properly exercise its power within the jurisdiction given to it.
Ground 5
In ground five, the applicant complains that the Tribunal failed to investigate his “genuine” claims. As I have already said, the Tribunal is not required in its written reasons to deal with every piece of evidence that might be thought to be relevant. The Tribunal is not required to make findings on each piece of evidence before it, nor to refer to each individual piece of evidence to demonstrate that it has taken into account the fact or facts to which the evidence refers (Yusuf at [68], [73]-[74] and [91], Applicant A169/2003 at [24], WAEE at [47] and Paul).
So on a plain reading of the Tribunal’s decision record, there is no suggestion in this case that the Tribunal failed to undertake “a proper genuine and realistic consideration [of] the merits of the case”: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] per Rares J (“SZEFJ”).
To the extent that the use of the word “genuine” seeks to imply that the applicant told the Tribunal the truth, and therefore the Tribunal’s failure to accept what the applicant said is therefore some error on its part, then such a claim misunderstands the Tribunal’s role and the exercise of its function.
The Tribunal did not find the applicant’s claim to fear persecution because of suspected involvement with the XIG to be credible. It gave reasons. It is the case that the Tribunal does not have to uncritically accept anything, or indeed everything, that an applicant says.
The Tribunal is required to deal with each integer of each claim.
The Tribunal did so in this regard. The Tribunal is required to make findings of fact. So long as these findings are open to it on the material, and indeed in circumstances where it provides reasons, they are not susceptible to review by this Court. The Tribunal’s finding in relation to credibility therefore in regard to this claim was, within jurisdiction.
In relation to the claims to fear harm on the basis of his membership of the “underground church”, the Tribunal accepted most of what the applicant put to it. Ultimately, it found that the harm suffered was not serious harm for the purposes of s.91R. As I stated earlier, this was a finding that was open to the Tribunal to make.
Nor can I see error in its finding that the relevant conduct in Australia in this regard must be disregarded. The Tribunal found that such conduct had occurred, that is, it accepted that the applicant had engaged in some attendance at church in Australia, that is it accepted the applicant’s evidence. However, it gave reasons as why it could not be satisfied that this was conduct engaged in other than for the purpose of strengthening his refugee claims. I cannot see error in the Tribunal’s approach in this regard.
Nor is the Tribunal required to make out an applicant’s case by considering any further investigation. While it is true that ss.424 and 427 of the Act provide for, and allow, the Tribunal to conduct further investigations and inquiries, this power is of course discretionary and not mandatory (see Minister for Immigration & Citizenship v Lee (2007) 164 FCR 151 at [60] (“Lee”), Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at [169]-[170] (“Prasad”)). The Tribunal is under no obligation to verify an applicant’s claims (VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 549 at [27] (“VCAK”), WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21], [24]-[25] (“WAGJ”), W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407 at [74]-[78] (“W389/01A”)).
In all, ground five is not made out.
The Particulars
Nor do the applicant’s particulars as stated assist the applicant. Particular one, with respect to the applicant, is difficult to understand. For example, it is not clear what is meant by:
“The Tribunal did not centralised my claim.”
The Tribunal identified the applicant’s claims in relation to religion, and for that matter, in relation to the perceived political opinion and membership of a particular social group and dealt with those.
Particular two does not add anything further to what I have already dealt with above in relation to grounds two, four and five. It again takes general issue with the Tribunal’s findings and appears to equate an allegation of a failure to consider claims “thoroughly” with a complaint that the Tribunal did not accept the claims were sufficiently persuasive such that the protection visa should be granted.
The complaint in particular three that the Tribunal did not consider “new information” is not itself particularised. If this is a reference to the applicant’s documents submitted at the hearing, then I have already dealt with this previously. If however, it is a reference to the applicant’s oral evidence, then a plain reading of its decision record shows that the Tribunal clearly dealt with the applicant’s evidence in this regard. In all therefore, this particular does not assist the applicant.
It must be said that particular four is expressed in terms often seen in this Court. It is unfortunately the case that the mere repetition of this complaint appearing in a large number of applications put before this Court, does not assist in understanding the exact nature of the complaint. If it is a complaint about the Tribunal’s choice and use of country information, and in relation to the way the Tribunal dealt with the applicant’s claims to be suspected of having a political profile, then again this complaint does not succeed. Such choice, use and weight to be accorded to country information, it is a matter for the Tribunal (NAHR v Minister for Immigration and Citizenship [2007] FCA 21 (“NAHR”)).
If the words “the all information” are meant to convey some complaint that the Tribunal should have searched for other independent country information that might have been of assistance to the applicant, then again any such complaint would fail. It is for the applicant to put his claims and evidence before the Tribunal, and other than in certain circumstances, there is no obligation on the Tribunal to go searching for other material that may or may not assist the applicant (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 per Gleeson CJ at [19], per Gummow and Hayne JJ at [33]-[43], per Callinan J at [124]; note Kirby J contra at [74]; Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 74 ALJR 1404 at [13], per McHugh J). I cannot see any error in this regard.
Other Complaints
Before the Court today, the applicant asserted that the Tribunal was biased. He said that the Tribunal did not have a real understanding of “the situation”. At first the applicant made reference to his use of another person’s name when he came to Australia. He explained that this is because he feared being returned to China, and that he was told that he was “not credible” because of this use of a false identity.
This therefore showed that there was bias against him. After asking the applicant for further explanation, he said that this had occurred at the first interview before “the Department”, which I understood to be the interview with the delegate.
The applicant then stated that when the “first official” did not believe him, when the “second official”, which I understood to be a reference to the Tribunal, was influenced by this. When I explained to the applicant that such a claim was a very serious accusation to make about the Tribunal member because it is a claim that goes to the very integrity of the relevant decision maker, the applicant then sought to pursue the allegation of bias on what I then understood to be a different tangent to the one relating to the false identity. The applicant stated that the Tribunal member at the hearing did not ask him about what had happened in China. I understood this to be a complaint that the Tribunal did not ask him about certain relevant particulars.
There are a number of matters that must be noted here. First, as I have already said, that an allegation of bias is a very serious matter, and as has often been said by the Courts, one that should not be lightly made. It requires evidence in support before it can be made out (see SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22]; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69]). It is the case that it is difficult to make out bias if all that an applicant seeks to rely on is the Tribunal’s decision record (SZJKU v Minster for Immigration and Citizenship [2008] FCA 308 at [35]-[36], per Emmett J).
In the current case the applicant was afforded an opportunity at the first Court date to put additional evidence before this Court, including a transcript of the hearing that the Tribunal conducted with him.
The applicant, on his own submission has had the benefit of some assistance from a “friend” in the community. The “friend” assisted with the drafting of the application to the Court. He has put no such evidence before the Court to support any claim for bias. It must be said, in relation to the two instances that the applicant is seeking to characterise as revealing bias, that the instances themselves, and on their face, reveal that the delegate may indeed have told the applicant that his credibility was in issue because he had used a false identity. But this does not on its own establish, or indeed indicate, bias.
There is no evidence before the Court that the Tribunal was biased, or acted with bias towards the applicant because of this issue, or indeed was influenced by anything that the delegate may have found in this regard.
The Tribunal does make reference (at CB 95) to the applicant having used another identity, and that indeed the applicant had submitted a written statement of his claims in relation to his protection visa application, with a signature which appeared not to be his signature. However, it appears to have accepted the applicant’s explanation for the use of this identity. I cannot see that on any plain reading of the Tribunal’s decision record, and its analysis, that this issue played any further role in its consideration, let alone that the Tribunal was biased against the applicant.
As to the applicant’s attempt to tell the Court now about what had occurred at the hearing with the Tribunal, the applicant has not provided any transcript of that hearing to the Court to support his claim. On the only account available to the Court (the Tribunal’s own account), there is no indication of any bias on the part of the Tribunal in the conduct of, or arising from the hearing.
This morning the applicant told the Court that he told the truth to the Tribunal. Given what I have already said about the Tribunal, in a great part, accepting the applicant’s claims, particularly in relation to the issue of religion, then none of this appears to rise above a request for this Court to consider the applicant’s claims to be a refugee, and to reach a different conclusion than the Tribunal. That is a request for impermissible merits review (Wu Shan Liang).
That the applicant is aggrieved by the Tribunal’s findings is understandable. But this alone does not reveal bias on its part.
Conclusion
For the applicant to succeed before the Court today, the Court would need to find that the Tribunal’s decision was affected at best, by some jurisdictional error. I cannot discern such error as it is said to arise from the applicant’s stated grounds or complaints, nor otherwise.
The application is therefore dismissed.
Costs
In considering this issue, the first matter is whether the order should be made. There is nothing before the Court that would cause the Court not to make the order. I understand the applicant when he says he has no money that he is in some financial difficulty. But this unfortunately for the applicant, is not in my view, a sufficient reason for the usual order not to be made. It is of course, the applicant’s right to come to this Court and seek to complain about the Tribunal’s decision, but as with the exercise of many rights, there are consequences. This is one of them.
In this case, I am satisfied that the Minister has expended funds in responding to the application made by the applicant. The fact that the applicant has no money is not a sufficient reason to deprive the Minister of the benefit, at the very least, of an order as to costs. As to the amount sought, that is $3,100.00, I note that the relevant Schedule to the rules of this Court provides that the Minister could have sought an amount in excess of $5,000.00. Plainly the Minister has not done so.
In any event, I take the view that what is set out in the Schedule to the Rules of this Court is a guide, and that really the Court needs to consider whether the amount sought is reasonable in all the circumstances. In that regard, and having regard to the work done by the Minister’s solicitors in this matter, I am satisfied that the amount sought is a reasonable amount. I will make the order in that amount.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S.Polley
Date: 5 May 2009
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