SZNFQ v Minister for Immigration
[2009] FMCA 820
•28 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 820 |
| MIGRATION – Review of Refugee Review Tribunal – 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 “SZNFQ”. |
| Migration Act 1958 (Cth), s.425 |
| Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 S1366 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 369 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 SZILD v Minister for Immigration and Citizenship [2008] FCA 1703 SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration & Indigenous Affairs [2002] FCAFC 286 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 |
| Applicant: | SZNFQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 290 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person with the assistance of a Fuqing interpreter |
| Counsel for the Respondents: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 9 February 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 290 of 2009
| SZNFQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is from Longtian town, Fuqing, the Peoples’ Republic of China. She only received two years of education and, in 2006, worked as a cook in Anhui province. While there, she was hospitalised with an undiagnosed illness. The applicant fainted in hospital and had a vision of God speaking to her. After the episode, she became a Christian.
A colleague of the applicant established a bible study group which met every week, spreading the gospel to the locals. The applicant and her colleague returned to Fujian province twice for Chinese New Year in 2007 and 2008, during which time they hosted training classes for people for Anhui, including accommodation at the applicant’s home. In February 2008, the applicant returned to Anhui and was arrested. She was asked about her colleague’s “illegal” religious activities but refused to answer and was detained and mistreated for 12 days. Her colleague and others were arrested at a prayer meeting but the applicant escaped.
The applicant arrived in Australia on 19 April 2008 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 2 June 2008. On 9 October 2008, a delegate of the first respondent refused to grant the visa and the applicant was notified of the decision and her review rights by letter of 9 October 2008. On 6 November 2008, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 9 January 2009 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. On 9 February 2009, the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked “Exhibit A” and is the only evidence before this Court. The Tribunal decision (number 0807496) of Hugh Wyndham dated 9 July 2009 (CB97-102) is the decision before this Court for judicial review.
The Tribunal’s reasons
In setting out the following summary of the Tribunal’s decision I have paraphrased or quoted directly from the written submissions of Mr Reynolds, counsel for the first respondent. I have not made any further direct attribution as this would make the summary unwieldy. The summary is provided to assist in understanding the nature of the application and not to establish any evidentiary point.
The Tribunal was not persuaded that the applicant was a genuine Christian, or that she had participated in weekly bible classes as claimed. It held that even making an allowance for the applicant’s limited education, her lack of knowledge of Christianity was inconsistent with claims of having actively studied the bible, spread the gospel and so committed that she refused to assist the police in relation to her colleagues’ activities. The Tribunal acknowledged that the applicant had some specific knowledge but there were huge gaps in her knowledge and no depth in this regard. The applicant had no knowledge of details of the New Testament, even though she claimed to have studied beyong the events of the Gospels. When questioned, she could only name one of the Gospels.
The applicant could not explain the difference between registered and ungrounded/unregistered churches in the China, whereas the Tribunal considered that an applicant who emphasised this distinction in their original visa application would have been able to address this issue. The Tribunal did not accept the applicant’s claims and concluded that it did not accept that there was a real chance of the applicant suffering harm amounting to persecution for reason of her religion, or for any other Convention reason should she return to China in the foreseeable future.
Consideration
At the first Court date directions hearing, the applicant indicated her desire to participate in the Court-sponsored legal advice scheme and arrangements were made by the Court registry for her to receive advice. The panel adviser indicated that the applicant was contacted and an appointment made but that she did not attend the appointment and therefore advice could not be provided. Leave was also granted for the applicant to file an amended application but she did not avail herself of this opportunity. A further order was made for the applicant to file written submissions 14 days prior to the hearing but was also not complied with. When the applicant was invited to make oral submissions, this was limited to a brief statement indicating that the Tribunal’s refusal was due to her lack of knowledge on aspects of Christianity but this was only due to her lack of formal education.
Ground one
1. I do not think that the Tribunal has considered my review application properly and fairly. I believe that the Tribunal has already made its decision before the Tribunal’s hearing. Accordingly, the Tribunal’s hearing was just a mere formality.
2. In the Tribunal’s decision, the Tribunal has stated that:
32 The applicant is not an educated woman and I took this into account in my questioning of her about her knowledge of Christianity and the bible. I will take this into account also in assessing her answers. However, making maximum allowance for this factor, I am unpersuaded that the applicant is a genuine Christian or has participated in weekly bible classes, as she claims. She has some superficial knowledge but there are huge gaps in her knowledge and no depth at all. She has no knowledge at all of anything in the New Testament – which she told me she has studied – past the events of the gospels and could name only one of them.
33. When I asked her at the beginning of her hearing to give me in detail her full story, she began her account in January 2008. At no time during the hearing did she repeat much of the history contained in her written application.
34. I conclude that the applicant had learned imperfectly the outline of her claims and some information about Christianity, in anticipation of being questioned on it. However, I am not satisfied that her knowledge and understanding, making full allowance for her level of education, was consistent with her claim to have been active in studying the bible and spreading the gospel and to be so committed as to have refused to tell the police what they wanted to know about her colleague’s activities. Not do I accept that a person in that situation would not know the difference between the registered or official churches ad the underground or official churches – not even to understand the term – despite the fact that the matter was emphasised in her primary application.
35. Accordingly, I find that the applicant was not involved with an unofficial Christian church while in China and would not be involved in one if she were to return. I do not accept that she was arrested or mistreated for such an involvement or that there is a real chance that she would be arrested or mistreated for that reason if she were to return to China. Given her lack of knowledge, I do not accept that she has attended a church frequently in Australia or that she has acquired a faith in Christianity while in Australia. I do not accept that she would engage in any form of religious activity in return to China such as which would cause the Chinese authorities to take any interest in her.
36. In short, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution for reason of her religion or tier any other Convention reason should she return to China in the foreseeable future.
Although not formally pleaded, this ground appears to be an allegation of actual bias on the part of the Tribunal member. The applicant has not identified the matters upon which she relies in making such an assertion. A party alleging actual bias on a decision-maker’s part carries a heavy onus which must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69]; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44]. The existence of actual bias may be inferred from the 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 a Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [22]; 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 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 & Indigenous Affairs [2002] FCAFC 286 at [3]. Actual bias can be said to exist when the Tribunal member had a pre-existing state of mind which disabled him/her from undertaking or rendering him/her unwilling to properly evaluate the relevant materials which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (supra) at [35] and [72].
The test for actual bias was effectively addressed in S1366 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 369 per Mowbray FM at [26]-[29] where His Honour stated:
[26] The test for actual bias is set out in the Full Federal Court decision Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 by Wilcox J as follows:
[Actual bias] requires an applicant to show that “the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case.
[27] This approach had been followed by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 where he made three points. First
That the member concerned has formed a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias, and so to disqualify a tribunal member from hearing a matter … Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case.
[28] Second
It is important to keep in mind, when actual bias is alleged, that the matters upon which reliance is placed to establish bias must be considered in the context of the whole of the hearing before the decision-maker …
[29] Third
It is not sufficient to show that a decision-maker has displayed irritation or impatience or even sarcasm during a hearing; regrettable though these manifestations may be, whether the relevant states of mind approach the level required to support a finding of actual bias remains a question of fact in each case.
It is apparent from the decision that the Tribunal rejected the applicant’s claims based on her evidence at the hearing, which would suggest that the Tribunal member paid close regard to the evidence given. In the absence of any particulars and on the face of the evidence contained in the Court Book, the allegation of actual bias cannot be sustained and should be dismissed.
Ground two (paragraphs 3 and 4 of the original application)
3. So, the Tribunal’s refusal decision has in fact established on following two grounds. Firstly, the Tribunal does not accept that I am a genuine Christian owing to not sufficient religious knowledge; and secondly, the Tribunal thinks that I just repeat the content in my written materials.
4. Regarding the first issue, I do not think that the Tribunal has genuinely taken a fair attempt to consider my claims as follows:
When I was very young, my family was subjected to many difficulties; because my parents have 7 children in total and they had to work very hard to make livings for such a big family with so many children in a very backward area. Furthermore, my parents, like many others in the country, paid much more attention to boys than to girls. Therefore, I had to terminate my study at Year 2 in primary school in order to assist my parents to do housework or to work in the field. That is why I have been illiterate in the end.
This ground of review suggests that the Tribunal ought to have taken the applicant’s limited education into account when assessing her claim but that it failed to do so. A review of the decision record under the heading “Findings and Reasons” clearly shows that the Tribunal did take this issue into account and made an allowance for it. At para.32 of the decision the member states:
The applicant is not an educated woman and I took this into account in my questioning of her about her knowledge of Christianity and the bible. I will take this into account also in assessing her answers. However, making maximum allowance for this factor, I am unpersuaded that the applicant is a genuine Christian or has participated in weekly bible classes, as she claims. She has some superficial knowledge but there are huge gaps in her knowledge and no depth at all. She has no knowledge at all of anything in the New Testament – which she told me she had studied – past the events of the gospels and could name only one of them.
To the extent that this ground can be understood, the evidence available in the Tribunal decision does not support the applicant’s allegation and complaint should be rejected.
Ground three (paragraph 5 of the original application)
The Tribunal has also failed to take any genuine attempt to consider that I have actually been a Christian in not a long period, because I was just baptised on 20 January 2007. Particularly, the Tribunal has failed to consider that I have been under huge pressure at the Tribunal’s hearing; and that I have been tested by the presiding member in different language. In such a particular difficult situation, it has been extremely difficult for me to demonstrate my religious knowledge.
This ground of review appears to be an attempt by the applicant to explain her inability to demonstrate to the Tribunal her knowledge of Christianity. It was open to the Tribunal to find that the applicant’s knowledge as demonstrated at the hearing was inconsistent with that of someone who had participated in bible study classes since October 2006. I acknowledge that a different decision-maker may have had a more sympathetic view of the applicant’s situation. However, the ground does not identify a jurisdictional error on the part of the Tribunal. In effect, the applicant appears to be inviting the Court to undertake an impermissible merits review.
Merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at [31] where their Honours stated:
…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.
Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision. Judicial review asks whether the decision maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision that could have been made under the circumstances. Merits review provides a complete rehearsal of all the issues relevant to the application by reviewing all relevant material previously presented, as well as any new evidence.
Mark Aaronson, Bruce Dwyer and Matthew Groves, “Judicial Review, Administrative Action” (Third Edition, 2004) at paragraph [14] focused on this distinction and the differences:
His Honour [Justice Brennan] stated in Attorney General (NSW) v Quin that judicial review often remedies administrative injustice or error, but this is an occasional occurrence rather than its rationale, which is simply to enforce obedience to the law. His Honour acknowledged the occasional difficulty in distinguishing between administrative action, merits and its legality, but insists that, to the extent that the distinction was feasible, the “merits of administrative action [were] …for the repository alone”. The High Court has repeatedly endorsed His Honour’s cautionary words in Quinn, emphasising the need to distinguish an administrative decision, merits and its legalities. (citations omitted)
As has been explained on numerous occasions, in SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 and NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 and the Full Federal Court in NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354, the Court cannot engage in merits review and it is not part of its task to do so. This ground should be rejected.
Ground four (paragraph 6 of the original application)
Regarding the second issue, the Tribunal has never clearly informed me or ensure me to understand that I should not repeat the content in my written materials. Particularly, at the Tribunal’s hearing, the Tribunal rarely clearly ensured me to understand the issue, such as the issue in relation to my religious knowledge or the issue in relation to my repeating the content in my written materials. As a result, I actually lost my chance to present my arguments against these issues.
This ground alleges that the Tribunal never clearly informed nor ensured that the applicant understood that she should not repeat the contents of her written materials and, as a consequence, the applicant lost her chance to present her arguments against these issues. This appears to be an assertion that the Tribunal breached s.425 of the Migration Act 1958 (Cth) (“the Act”). I note that the Tribunal did not reject the applicant’s claim because she repeated the contents of her written application as alleged in this ground. Rather, the Tribunal stated the following:
When I asked her at the beginning of her hearing to give me in detail her full story, she began her account in January 2008. At no time during the hearing did she repeat much of the history contained in her written application. (CB 101 at [33])
Contrary to the applicant’s claim, it was the failure of the applicant to mention the substantial part of what was in her statement that led the Tribunal to doubt whether the events contained in her statement had in fact occurred. Mr Reynolds submits in written submissions that a review of the delegate’s comprehensive objection to the applicant’s claims concluded that the events claimed did not in fact occur. The applicant was on notice that this was an issue in the review and, accordingly, there was no breach of s.425 of the Act.
At the first Court date directions hearing of 3 March 2009, I granted the applicant leave to file an amended application and any supporting affidavit material. The applicant has not filed and served a transcript (verified by affidavit) of the Tribunal hearing of 9 January 2009. In the absence of any evidence as to what occurred at that hearing, it is not open to this Court to infer that matters were not put to the applicant by the Tribunal for comment: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ:
[21] We cannot accept this submission, for several reasons.
For one thing, as the respondent submitted, the appellant’s case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this ‘appeared’ to be the case ‘from the record of the [Tribunal] decision’. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.
This has been followed subsequently in SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 at [21] and SZILD v Minister for Immigration and Citizenship [2008] FCA 1703 at [14].
The correspondence contained in the Court Book indicates that the applicant was assisted by a registered migration agent when the Protection visa application was lodged and the delegate’s decision was issued. This agent also assisted the applicant in filing the application to the Tribunal. The registered migration agent would have been well aware of the significance of the contents of the delegate’s decision and in a position to advise the applicant of the significant issues before the Tribunal. Further in the absence of a verified transcript of the hearing, the argument that the Tribunal did not clearly inform the applicant of the issues involved and failed to ensure that she understood them cannot be sustained and the ground should be dismissed.
Conclusion
The applicant appeared as a self-represented litigant with the assistance of a Fuqing interpreter. The applicant appeared to rely on an unidentified third party in preparing her application and it is apparent that she had little or no understanding of the grounds pleaded in her application or the issues before the Court. I am satisfied that none of the grounds pleaded in this application can be sustained. Neither it is apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision to reject the applicant’s application for a Protection visa. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 28 August 2009
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