SZRST v Minister for Immigration
[2012] FMCA 1135
•29 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRST v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1135 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – show cause hearing held pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) – no arguable case raised – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 425, 425A, 426, 426A, 441A, 441C, 476 Federal Magistrates Court Rules 2001 (Cth), r.44.12 Migration Regulations 1994 (Cth), reg.4.35D |
| Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 Haros v Linfox Australia Pty Ltd [2012] FCAFC 42; (2012) 287 ALR 507 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 |
| Applicant: | SZRST |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1820 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 21 November 2012 |
| Date of Last Submission: | 21 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2012 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 22 August 2012 is dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,239.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1820 of 2012
| SZRST |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 22 August 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision made by the Refugee Review Tribunal (“the Tribunal”) on 6 August 2012, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
When the matter was called today, the Minister’s representative made an application that the Court hold an “immediate” show cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) for reason that although the applicant had been put on notice at the last Court occasion that his grounds as pleaded were deficient in merit, and in the adjourned time had sought and received free legal advice through the Court’s RRTLAS, the applicant had not taken the opportunity to file an amended application nor any evidence in support.
In the circumstances, I agreed with the Minister’s representative that it was appropriate to proceed in this fashion. Further, it was appropriate that the show cause hearing be heard immediately as I could not see any utility in further delaying the hearing where it was clear that the applicant had no intention of filing any further documentation or evidence in support of his application. Even further where the applicant had already received legal advice from the Court’s panel lawyer prior to the directions hearing and where the applicant had nothing of relevant substance to say to the Court. It was also of note that the applicant continued to be held in at the Villawood Immigration Detention Centre.
Background
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 22 March 2008 with a student visa valid until 29 March 2011. After the expiration of that visa he became an “illegal” immigrant (Court Book – “CB” – CB 13).
On 6 February 2012, the applicant, with the assistance of a migration agent, applied for a protection visa with the Department (CB 1 – 34).
Claims to Protection
In his protection visa application the applicant claimed to fear persecutory harm for reason of his being a “Shouter” and attending an “underground” church (“Local Church”) in China. He also claimed to fear persecutory harm for reason of his father’s “mistakes” (CB 17 – CB 18).
The Delegate
On 14 February 2012, the applicant was invited to attend an interview before the delegate, which he attended (CB 41 – CB 45). The delegate noted the ease with which the applicant departed China (CB 59.7), the delay in the applicant applying for a protection visa (CB 59.8 – CB 60.5), and the applicant’s lack of knowledge of the Local Church for someone who claimed that they had been involved in the church for most of his life (CB 61.6). These findings ultimately led the delegate to find that the applicant did not face a real chance of persecution if returned to China. Therefore, on 5 March 2012, the delegate refused the grant of a protection visa application to the applicant (CB 61.8)
The Tribunal
On 9 March 2012, the applicant, with the assistance of the same migration agent, applied to the Tribunal for review of the delegate’s decision (CB 65 – CB 70). On 16 March 2012, the Tribunal invited the applicant to appear before it at a hearing scheduled for 16 May 2012 (CB 76 – CB 79). The applicant appeared on that occasion, along with his migration agent (CB 83 – CB 85). On 25 May 2012, the applicant’s migration agent wrote to the Tribunal providing further information for its consideration (CB 86 – CB 88).
On 6 August 2012, the Tribunal affirmed the decision under review and, on 7 August 2012, notified the applicant of its decision (CB 93 – CB 94).
The Tribunal noted the “inordinate length of time” between the cessation of the applicant’s student visa and his applying for a protection visa ([56] at CB 101). The Tribunal noted the applicant’s explanation that “he was not aware of immigration law”, but rejected this explanation on the basis that if the applicant had a subjective fear of persecution then it expected the applicant would have made efforts to determine what avenues were available to him to avoid removal to China ([56] – [57] at CB 101). Consequently, for this reason, it found that the applicant’s claims that he would come to the adverse attention of the authorities if returned to China were “greatly undermined”, and, therefore assessed his claims in this light ([57] at CB 101).
In regards to the applicant’s claim to be a Shouter and attend a Local Church in China, it noted that the “… applicant displayed a superficial and limited knowledge of Christianity which had been rehearsed and memorised” ([62] at CB 102), that his “… knowledge of the shouter denomination was scant at hearing despite being given ample opportunity to discuss it” ([60] at CB 102), and that he “… did not display a level of knowledge of Christianity commensurate with that of a person who was introduced to Christianity many years ago at a very young age” ([59] at CB 102). Further, it noted that the applicant’s failure to take advantage of religious freedom in Australia was not consistent with someone who was a genuine practicing shouter Christian who would attract the adverse attention of the authorities if returned to China ([62] at CB 102).
These findings, coupled with the finding that the applicant departed China with ease, led the Tribunal to conclude that the applicant did not face a real chance of persecutory harm if returned to China ([63] and [66] at CB 103).
The Tribunal also considered whether “complementary protection” applied to the applicant. However, it found that, if returned to China, the applicant would not face significant harm ([68] at CB 103).
Application to the Court
The application to the Court is in the following terms:
“1. I am a person to whom Australia has protection obligations.
2. The R.R.T member was racially prejudiced agaist me.
3. The solicitor recommended to me by R.R.T spoke in favour of R.R.T instead of protecting me.”
[Errors in the original.]
Before the Court
The matter was first before Court on 5 September 2012. The applicant appeared in person with the assistance of an interpreter in the Mandarin language.
At that time I sought to explain to the applicant, the process of judicial review and the different role that the Court played to that of the Tribunal. I emphasised that the grounds of his application were deficient and, as currently pleaded, for the most part did not assert jurisdictional error on the part of the Tribunal. I also sought to emphasise that the Court did not have the power to determine if he was a refugee or not.
I consequently referred the applicant to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. I urged the applicant to attend to the lawyer who would be assigned to him under that scheme. In this regard, I note that on the Court’s file there is a Certificate issued by Mr Norman Potts, of counsel, indicating that he met with the applicant and gave him written advice.
At the first Court date I also made orders affording the applicant the opportunity to file and serve any amended application and any evidence in support. I explained to the applicant that if legal grounds were properly articulated in an amended application, then when the matter was next before the Court then the matter could be set down for a final hearing. However, if nothing further was put before the Court, as is now the case, then the matter could proceed to an “immediate” hearing. That is, a show cause hearing.
When the matter was called on the adjourned date, the applicant was assisted by an interpreter in the Mandarin language. Mr M Alderton appeared for the first respondent. Given the first respondent’s request for a show cause hearing, the issue for consideration is whether the application made to the Court has raised an arguable case for the relief sought.
The Applicant
Before the Court the applicant submitted that he was not satisfied with the Tribunal’s decision and complained of the delay in the Tribunal handing down its decision from the time of hearing. That delay was said to have occurred because the Tribunal was “trying to find an excuse to find against [the applicant]”.
The applicant appeared to abandon ground three of his application to the Court. That is, he said that ground three had been typed in error (see further below).
Grounds One
As currently pleaded this ground is a statement of fact and does not, of itself, assert jurisdictional error on the part of the Tribunal. The applicant’s oral submissions, as stated above, do not cast any further light on this ground. They merely appear to cavil with the Tribunal’s findings.
The applicant’s complaint is that the Tribunal “delayed” in handing down its decision. That complaint does not reveal jurisdictional error. Recently, Gray J in Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177 stated at [32] that mere delay did not in itself constitute jurisdictional error, but what “… is required is the demonstration of some flaw in the process of arriving at the decision, that can reasonably be attributed to the passage of time” (reference was made to relevant authorities: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470, Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 and Haros v Linfox Australia Pty Ltd [2012] FCAFC 42; (2012) 287 ALR 507). As stated above, no evidence was put before the Court by the applicant in support of his grounds. On what is before the Court there is nothing to show what might constitute a “flaw in the process” of the Tribunal’s decision making.
Further, and for completeness, even if the ground could be taken as a complaint that the Tribunal failed to consider a relevant claim made by the applicant, the ground does not raise an arguable case for the relief sought.
The applicant’s only claim to fear persecutory harm in China was for reason of his Christian faith. This claim was squarely dealt with by the Tribunal at [22] (at CB 98) to [28] (at CB 99) and at [58] – [62] (at CB 102) of its decision record. However, the Tribunal could not reach the requisite level of satisfaction to find that the applicant was a “refugee” as defined by the Refugees Convention for reason that the applicant delayed in applying for refugee status while in Australia, and his knowledge of the Christian faith was lacking given he claimed to have practiced Christianity since his youth ([66] at CB 108 – [73] at CB 109) (see s.65 and 36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Ground Two
In support of ground two the applicant submitted that the Tribunal asked him about the Bible and that the Tribunal Member “… told him that during his detention he had spent time memorising the Bible”. The applicant also submitted that that the Tribunal “… was saying that if you are rich you can get a protection visa, if you are poor you cannot”.
On its face, ground two appears to be a complaint that the presiding Tribunal Member exhibited bias against the applicant. No evidence was put in support of this ground.
From the applicant’s submissions it appears that the applicant is cavilling with the Tribunal’s finding that he had “… limited knowledge of Christianity which had been rehearsed and memorised” ([62] at CB 102, emphasis added). This finding was open to the Tribunal to make on the evidence and material before it, and for the reasons it gave.
In regard to the applicant’s submission that the Tribunal informed the applicant that if he was rich he could obtain a protection visa, whereas if he was poor he could not, this remained unexplained. However, it appears that the applicant is asserting that because he is poor he was denied a protection visa. This is pure confounded speculation on the part of the applicant.
As has been noted on many occasions in this Court, an allegation of bias against an administrative decision-maker is a serious allegation which is required to be “… distinctly made and clearly proved.” (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
The Court Book is the only evidence before the Court, and, therefore, the Tribunal’s decision record is the only document before the Court which gives an account of what occurred at the hearing. Again, as has been mentioned on many occasions, it is a rare case where an allegation of bias is made out on the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668).
The Tribunal’s letter of invitation (CB 78 – CB 79) complied with the relevant statutory and regulatory requirements (see ss.425, 425A, 426, 426A, 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth)). The post-hearing submission sent to the Tribunal by the applicant’s migration agent (CB 86 – CB 87) was an opportunity that the applicant took to expand on submissions made by him at the hearing. Although this post-hearing submission was not addressed in the Tribunal’s decision record no new claims were raised in this submission, such as to require the Tribunal to have addressed it in its decision record (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1).
There is nothing before the Court to suggest that the Tribunal did not bring an open mind to the hearing, nor that it was prejudiced against the applicant for reason of his financial situation. Therefore, no arguable case has been raised by the applicant in this ground in support of the relief sought being granted.
For completeness, the reference to “racially” prejudiced remained unexplained by the applicant before the Court. At best, it also probably fell into the category of being “typed in error” as the applicant submitted ground three was (see below).
Ground Three
Before the Court this ground was abandoned by the applicant because he said that he and his friend who assisted him in drafting his application to Court “made a mistake” as it was “typed in error”.
Conclusion
As stated above, no particulars or evidence was given in support of any of the applicant’s grounds. The submissions proffered by the applicant do not cast light on what jurisdictional error the Tribunal is alleged to have made.
None of the grounds as pleaded raise an arguable case such that the relief sought should be granted. Therefore, accordingly, I will dismiss the application pursuant to r.44.12(1)(a) of the Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 29 November 2012
19
3