SZOWX v Minister for Immigration

[2011] FMCA 217

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWX v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 217

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal was biased – whether the Tribunal complied with the Act – whether there was a denial of procedural fairness – Tribunal’s exercise of discretion – whether the Tribunal failed to consider the applicant’s claims – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 425A, 426A, 441C 476
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
SCAA v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCA 668
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204; (2010) 84 ALJR 507
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471

Applicant: SZOWX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2801 of 2010

Judgment of: Nicholls FM

Hearing date: 31 March 2011

Date of Last Submission: 31 March 2011

Delivered at: Sydney

Delivered on: 31 March 2011

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Ms K Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 23 December 2010 is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2801 of 2010

SZOWX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 23 December 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), which seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 November 2010 which affirmed a decision of a delegate of the respondent Minister to refuse a protection visa to the applicant and her family.

Background

1. The applicant before the Court today is a citizen of Malaysia. She arrived in Australia in July 2008. She applied for a protection visa on 11 June 2010 (see Court Book – “CB” – CB 1 to CB 39 with annexures). Included in this application as her family members were her husband and her infant child. Only the applicant is an applicant now before the Court.

Claims to Protection

1. The applicant’s claim to protection was set out in her application for a protection visa (CB 19).

2. The applicant feared persecution and discrimination in Malaysia on the basis of her Chinese ethnicity. She claimed, amongst other things, that she had to: “…hide behind Muslim names to get a good job. We need to hide our ethnicity, our religion and our language.” She also feared that discrimination would be occasioned against her husband and her baby (CB 19), and that the source of this harm would be the Malaysian authorities, including the police and the army (CB 20).

3. At the interview before the delegate, the applicant also claimed that it was not safe in Malaysia, as ethnic Chinese women and children were often the victims of abduction by ethnic Malays and Indians (CB 77).

The Delegate

1. While the delegate acknowledged that country information indicated that Malaysians of Chinese ethnicity experienced discrimination in Malaysia, she found that such discrimination was not sufficiently serious to amount to persecution (CB 78 and CB 79). Further, the delegate found that the applicant gave vague and non-specific responses to questions of the type of harm to which she had been subjected to in Malaysia (CB 79). Further, that claims that ethnic Chinese women and children were at risk of abduction were not supported by independent country information to which the delegate had regard (CB 79).

2. Additionally, the delegate did not accept the applicant’s explanation for the two year delay in applying for a protection visa after she had come to Australia. She found that the applicant’s primary motivation for lodging of the application was to prolong her stay in Australia (CB 79).

3. The delegate therefore refused the application for the protection visa on the basis that the applicant did not face a real chance of persecution in the reasonably foreseeable future if she were to return to Malaysia (CB 80).

The Tribunal

1. The applicant applied for review to the Tribunal on 13 October 2010 (CB 81). Her husband was not an applicant to the Tribunal.

2. In all, the Tribunal sent three letters to the applicant at the address provided. The Tribunal acknowledged the application by letter dated 13 October 2010 (CB 85). By letter dated 29 October 2010 she was invited to attend a hearing on 25 November 2010 (CB 86). The letter was sent to the applicant’s address for correspondence which she had provided to the Tribunal for this purpose. In particular the letter contained a statement to the effect of s.426A of the Act. These letters were not returned as undeliverable.

3. The applicant did not attend the hearing scheduled for 25 November 2010 (CB 90). The Tribunal subsequently proceeded to make its decision on what was before it.

4. The Tribunal found that, on the limited evidence before it, it could not be satisfied that the applicant had experienced discrimination or disadvantage amounting to persecution, but that she may have experienced some lesser degree of discrimination ([46] at CB 103). The Tribunal was not satisfied that, in these circumstances, she had a

   
   

   well-founded fear of Convention-related persecution if she were to return to Malaysia ([48] at CB 103).

5. The applicant’s child was also found not to have a well-founded fear, essentially for the same reasons as related to his mother.

6. The Tribunal therefore affirmed the delegate’s decision ([51] at CB 103). In response to her request, the Tribunal sent a letter to the applicant notifying her of its decision. This appears to have been sent to a different address (CB 105). It was returned to the Tribunal (CB 106). The Tribunal sent a subsequent letter to the previously notified address for service (CB 108).

Application to the Court

1. The application to the Court contains three bare, unparticularised grounds:

   “1. The Tribunal bad bias against me and did not consider my application in according with the Migration Act 1958.

   2. The Tribunal failed to consider my claims.

   3. The Tribunal failed to consider my application according to S424A of the Migration Act 1958.”

Before the Court

1. Before the Court today the applicant appeared in person. She was assisted by an interpreter in the Cantonese language. Ms K Hooper appeared for the first respondent.

2. In addition to the Court Book, the affidavit of Ms Hooper made on 8 February 2011, with annexures, was also read in to evidence.

3. Before the Court today the applicant, in one sense understandably, sought to put to the Court those matters which she had put in support of her application for a protection visa. In essence, that there was racial discrimination against persons of Chinese ethnicity in Malaysia, that security was “bad”, and that it was unsafe for women and children of Chinese ethnicity.

4. Further, the applicant stated that her child had a hearing problem and that it would be of benefit to the child to remain in Australia.

5. I sought to explain to the applicant the difference in the role and function between the Tribunal and this Court.

6. The applicant sought a fair judgment from the Court. Plainly, what she was really seeking was a different outcome to her application for a protection visa. That is, that this Court engage in impermissible merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272).

7. As I sought to explain to the applicant, such an approach could not be of assistance to her before this Court, and that the matters properly for consideration now were centred around whether the Tribunal had fallen into a particular legal error.

Consideration

Ground One

1. The applicant’s first ground of the application asserts bias on the part of the Tribunal, and that the Tribunal did not consider the application according to the Act.

2. It is the case that any claim of bias, or for that matter a complaint of an apprehension of bias, must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]. See also generally Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 (“Ex parte H”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] – [44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102).

3. Any claim of bias is of course a serious charge to bring against any decision maker. It is serious because it goes to questioning the very core of the integrity of the decision maker. In charging bias the complaint really is that the Tribunal did not bring an open mind to the proceedings, or was not open to persuasion by anything that the applicant may have put to it.

4. This element can also be seen in the relevant test for the apprehension of bias. The test here of course being whether a well-informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the consideration of the application.

5. In light of this it is a rare circumstance where an allegation of bias can be made out with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCA 668 per von Doussa J at [38]).

6. Beyond mere assertion, the applicant has brought nothing further to this Court to support her very serious charge. In the absence of any such evidence there is nothing before the Court to support an allegation of bias, or for that matter the apprehension of bias, on the part of the Tribunal.

7. There is no bias, nor in my view can any apprehension of bias be properly asserted, let alone made out, merely because the Tribunal put the applicant on notice that, on what was before it, it could not make a favourable decision. This is particularly so because in the same letter the Tribunal invited the applicant to come to a hearing to give evidence and further arguments and material in support of her claims.

8. Nor can bias be made out simply because, after considering the limited information that had been put before it, the Tribunal reached a view with which the applicant now disagrees. In all, therefore, that part of ground one must fail.

9. The applicant also complains in ground one that the Tribunal did not consider the application in accordance with the Act.

10. It is difficult to understand exactly what the complaint is here because of the lack of particularity. But to the extent that this may be understood as some assertion that the applicant was denied procedural fairness by the Tribunal, then the Tribunal’s obligations in this regard are exhaustively set out in Div.4 of Pt.7 of the Act to the extent of the matters that are dealt with in that Division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204; (2010) 84 ALJR 507).

11. In accordance with its obligations, the Tribunal did a number of relevant things:

    1)It invited the applicant to a hearing pursuant to s.425.

    2)In this invitation the Tribunal advised of the time, date and location of the hearing. I say this with reference particularly to s.425A of the Act.

    3)The letter of invitation was sent to the applicant by registered post to the last notified address for receipt of communications.

    4)It included a statement to the effect of s.426A.

    5)The Tribunal complied with the relevant period of notice, and in particular I note here s.441C(4)(a) and reg.4.35D(b) of the Act.

12. In addition to the material provided in the Court Book, the affidavit of Ms Hooper provides the evidentiary basis for what I have just said. Having been invited to the hearing, the applicant’s unexplained failure to attend at the hearing meant that the Tribunal was entitled to consider the exercise of the discretion given to it by s.426A of the Act to proceed to make a final decision. There is nothing before the Court to reveal that the Tribunal exercised its discretion in any arbitrary or capricious way.

13. Further, I should note that the nature of the Tribunal’s decision is that it could not reach the requisite level of satisfaction that, in effect, the applicant met the definition of refugee such that the protection visa must be granted to her (s.65 and s.36(2) of the Act). (See SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] – [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at

    
    

    [4] – [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)

14. The relevant circumstances are that the Tribunal considered what had been put before it. It gave the applicant the opportunity to give evidence and present arguments in support of her claims. In these circumstances, where the applicant has been put on notice that what has been put before the Tribunal is not sufficient for it to reach this requisite level of satisfaction, is given the opportunity to address this and does not take up the opportunity without explanation, the applicant cannot complain that she was unfairly treated.

15. The applicant’s unexplained absence from the hearing can only lead, as it has in this case, to what a Full Federal Court has described as the inevitable consequence of the Tribunal finding adversely to the applicant (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287). In all, with nothing further, ground one in its entirety must fail.

Ground Two

1. Ground two asserts that the Tribunal failed to consider the applicant’s claims.

2. It is of course the case that a failure to consider a claim, or an aspect of an applicant’s claim, may lead to jurisdictional error (Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at

   
   

   [46] – [47]). But in the absence of any further particulars, this complaint cannot be made out.

3. The material before the Court reveals that the applicant’s claims were put in her statement with her protection visa application and were explained before the Minister’s delegate. The Tribunal’s decision record reveals, as Ms Hooper submits, that the Tribunal set out all of the applicant’s claims in his decision record (at [24] and [29] and CB 98 to CB 99). There is nothing in the material before the Court to show that the Tribunal failed to consider any claim.

4. In all the circumstances, this complaint can really only be understood as a complaint that the Tribunal was not persuaded by the claims as put that the protection visa should be granted. As I have said, the basis of the Tribunal’s decision was that the insufficiency of information before it left it in a situation where it could not reach the necessary level of satisfaction as is required by s.65 of the Act. I note further that in assessing whether the claims as put had this element of sufficiency, the Tribunal assessed each of the claims made by the applicant.

5. It found variously that these claims lacked sufficient information or did not rise above a lesser degree of discriminatory conduct in Malaysia. These findings were all open to the Tribunal on what was before it and for which it gave reasons. No error is revealed in this regard. Ground two also is not made out.

Ground Three

1. In ground three, the applicant complains that the Tribunal failed to consider her application in accordance with s.424A of the Act.

2. In the absence of particulars, it is unclear what the applicant seeks to complain about here. Section 424A of course is concerned to oblige the Tribunal to provide to an applicant particulars of information which it considers would be the reason or part of the reason for affirming the delegate’s decision. If this is a complaint that the Tribunal did not provide to the applicant particulars of country information, which is set out in its decision record, then this complaint cannot succeed. Section 424A(3)(a) operates to exclude such information from the obligation in s.424A(1).

3. Similarly, the Tribunal’s finding that it could not be satisfied on the evidence that the applicant was a person to whom Australia owed protection was not “information” for the purposes of s.424A (see generally SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [17] to [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471). In particular in this regard, for example, the Tribunal is not required to provide a draft of its reasons for decision to the applicant for comment before then making its decision.

4. In circumstances where it was the inability to reach a requisite level of satisfaction that would be the real reason for the Tribunal’s decision, it cannot be said that the Tribunal having regard to the applicant’s claims as they were enhanced or explained at the interview with the delegate meant that there was any failure in relation to s.424A(1).

5. The information that the applicant provided in her protection visa application was similarly excluded from the operation of s.424A(1) (s.424A(3)(ba)).

6. To the extent that what the applicant said to the delegate is not caught by the exception in s.424A(3)(ba), then in any event what was said did not, in its terms, contain any rejection or denial of her claims to protection.

7. The critical issue is that the nature of, or the reason for the Tribunal’s decision was its inability to reach the requisite level of satisfaction on what had been put before it. In essence, and critically, the Tribunal’s subjective appraisal of the information before it is not information for the purposes of s.424A(1).

1. In all, therefore, this ground does not succeed.

Conclusion

1. Unfortunately for the applicant, she was unable to put anything further before the Court today that would assist her in showing legal error on the part of the Tribunal. It is the case that, for the applicant to succeed today, the Court would need to discern, at the very least, some jurisdictional error on the part of the Tribunal. No such error is evident. The application is to be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  14 April 2011