SZSIF v Minister for Immigration

[2013] FCCA 93

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 93

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal’s adverse credibility findings were open on the evidence and material before it – whether Refugee Review Tribunal failed to consider all claims made by the applicant – whether Refugee Review Tribunal’s decision was affected by bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 426A, 474.

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

First Applicant: SZSIF

Second Applicant: SZSIG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2835 of 2012

Judgment of: Judge Emmett

Hearing date: 10 April 2013

Date of Last Submission: 10 April 2013

Delivered at: Sydney

Delivered on: 10 April 2013

REPRESENTATION

The Applicants appeared in person with the assistance of an interpreter.

Counsel for the Respondents: Mr Riley

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2835 of 2012

SZSIF

First Applicant

SZSIG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is the applicants’ application for judicial review of a decision of Refugee Review Tribunal (“the Tribunal”) dated 26 October 2012.  The first named applicant is the husband of the second named applicant. Both applicants arrived in Australian on 17 April 2012 having departed legally from Malaysia on visitor’s visas. 

2. On 12 July 2012, the applicants lodged applications for protection visas on the basis that they feared persecution in Malaysia by reason of their Chinese ethnicity.

3. On 30 July 2012, a delegate of the first respondent refused the applicants’ application for a protection visa on the basis that the applicants were not persons to whom Australia owes protection obligations.

4. On 31 August 2012, the applicants lodged an application with the Refugee Review Tribunal for review of the delegate’s decision.

5. On 26 October 2012, the Tribunal affirmed the decision under review.

6. On 26 November 2012, the applicants filed an application for judicial review of the Tribunal’s decision.

7. The applicants were unrepresented before this court. 

8. On 7 March 2013, the applicants attended a directions hearing before a Registrar of this Court.  On that occasion, the applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 3 April 2013, and were directed to file and serve any evidence by way of affidavit by 3 April 2013. The applicants were also directed on that occasion to file and serve written submissions in support of their application for judicial review. 

9. The applicants confirmed to the Court this morning at the commencement of the hearing that no documents had been filed by them or on their behalf, either in accordance with those directions or otherwise.  I asked the applicants if they had any documents that they wished the Court to consider today in support of their application, particularly, any documents to explain their failure attend the scheduled hearing date before the Tribunal 29 October 2012.

10. The first applicant had some medical reports confirming his diagnosis of nasal cancer, however, none of the reports provided any explanation as to why the applicants were unable to attend the scheduled Tribunal hearing.  The applicants informed the Court that the first applicant did not attend the Tribunal hearing because of his medical condition and the second applicant said that she did not attend the Tribunal hearing because she was supporting the first applicant.

11. I explained to the applicants that the grounds of their application for judicial review to this Court made bare assertions that were wholly unparticularised and by themselves did not disclose an error capable of review by this Court. Each of the grounds was then interpreted for the applicants, who were invited to say whatever they wished in support of each of those grounds. 

12. Ground 1 asserts that the Tribunal failed to consider the applicants’ claims.  I asked the applicants in what way the Tribunal failed to consider the applicants’ claims, however, the applicants had nothing to say about that complaint. 

13. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the first named applicant’s claims of past harm, discrimination and threats by local Malays in Malaysia because he is Chinese.  The Tribunal’s decision record accurately summarised the first applicant’s claims made in support of his protection visa application.

14. The Tribunal’s decision record also makes clear that the Tribunal was aware at all relevant times of the first applicant’s medical condition.  The Tribunal recited the three occasions on which it wrote to the applicants advising the applicants that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone and invited the applicants to come to a hearing. Those letters of invitation informed the applicants that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.  The letters also invited the applicants to send to the Tribunal any further information that it wished the Tribunal to consider.

15. The last letter of invitation sent by the Tribunal to the applicants was dated 17 October 2012. The letter invited the applicants to come to a hearing on 29 October 2012 at 2.30 pm to give oral evidence and present arguments in support of the application. 

16. The Tribunal’s decision record notes that on 18 October 2012, an officer of the Tribunal contacted the Sydney Cancer Centre and spoke to Mr Thientosapol, who is the author of a letter sent to the Tribunal on 17 October 2012.  Mr Thientosapol confirmed to the Tribunal officer that the first applicant was to commence treatment for his cancer on 31 October 2012, but would be well enough to attend the Tribunal before that date.

17. On 25 October 2012, the Tribunal received from the applicants a facsimile copy of the Tribunal’s hearing invitation to the applicants, dated 17 October 2012, and a copy of the letter referred to above from Mr Thientosapol of the Sydney Medical Cancer Centre, dated 17 October 2012.  The Tribunal noted that the applicants did not formally request that the hearing be postponed to another day. However, the Tribunal accepted that by sending the Tribunal a copy of the letter from Mr Thientosapol, the applicants were in fact seeking a postponement of thier hearing.

18. The Tribunal noted that on 25 October 2012, it checked to see whether a response to its invitation had been received, and noted that no response had been received by the Tribunal.  The Tribunal noted that it then consulted Australia Post’s tracking system in relation to its letter of invitation dated 17 October 2012, which was sent by registered post.  The Tribunal noted that the inquiry to Australia Post revealed that the letter was “awaiting collection” on 18 October 2012, and had been “delivered” on 22 October 2012.

19. On 26 October 2012, a Tribunal officer spoke again to Mr Thientosapol who confirmed that the first applicant would commence his treatment on 31 October 2012, and that until then, there was no health reason preventing the first applicant from participating in a hearing. 

20. The Tribunal decided to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”) in light of the comments of Mr Thientosapol and the applicant’s treating doctor that there was no reason why the applicant could not attend his hearing. Further, the Tribunal had informed the applicant on three separate occasions that it may proceed to a decision if he did not attend his hearing, 

21. There is nothing before this Court to suggest that the exercise of the Tribunal’s discretion under s.426A of the Act in any way miscarried. On the evidence and material before the Tribunal, it was open to it to decide to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.

22. The Tribunal then considered in some detail the applicants’ written claims, however, found that they were general and lacking in detail in significant respects.  The Tribunal noted that the applicants had not provided any evidence to support their claims despite being invited to attend to do so.

23. The Tribunal found that the first applicant provided no detailed information regarding the discrimination and mistreatment he claimed to have suffered at his work place or of his allegations of assault, kidnapping and death threats.  The Tribunal also found that the applicant did not provide any detailed information about his claim to have sought protection from the police.  The Tribunal then stated that these were all matters that it would have explored with the applicants at a hearing. 

24. The Tribunal was not satisfied on the evidence before it that the events and circumstances alleged by the applicants had occurred. In the circumstances, the Tribunal was not prepared to accept that the applicant suffered discrimination, assault, kidnapping or death threats, or had been denied the assistance of protection from police in Malaysia because of his Chinese ethnicity.

25. On the basis of those findings, the Tribunal was not satisfied that there was a real chance that the applicants would face serious harm for Convention related reasons now, or in the reasonably foreseeable future, if they was to return to Malaysia.  The Tribunal was accordingly not satisfied that the applicants had a well founded fear of persecution for a Convention reason. 

26. The Tribunal then further considered its complementary protection obligations under s.36(2)(aa) of the Act. Due to the lack of information provided, the Tribunal rejected the applicants’ claims based on complementary protection. The Tribunal found that it did not have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they would suffer significant harm.

27. In the circumstances, it is apparent from the Tribunal’s decision record that it considered in some detail the applicants’ claims.  The findings that the Tribunal made were open to it on the evidence and material before it, and for the reasons it gave. 

28. Accordingly, Ground 1 is not made out. 

29. Ground 2 states that the Tribunal did not consider his application in accordance with s.91R of the Act. I asked the applicants what they meant by that complaint. The applicants were unable to tell the Court, although the first applicant did tell the Court that he dictated his grounds to a friend called William, who has already gone back to Malaysia.

30. I asked the first applicant if he would be assisted by having s.91R of the Act read to him. Both applicants said that would be of assistance. Following the interpretation of s.91R of the Act, I again read Ground 2 to the applicants and invited the applicants to say whatever they wished in support. The first applicant repeated that he was discriminated against and threatened in Malaysia due to his race.

31. Such complaints do not demonstrate any error in the Tribunal’s decision record of the nature suggested in Ground 2. In the absence of any further relevant particulars, Ground 2 is meaningless. 

32. Ground 3 alleges that the Tribunal had bias against the applicant in making its decision.  I asked the applicants in what way the Tribunal had demonstrated bias against the applicants.  The applicants responded that the Tribunal had not accepted applicants’ claims.  It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

33. As stated above, the Tribunal considered the applicants’ claims and made findings that were open to it on the evidence and material before it.  In relation to the applicants’ claim that the Tribunal was biased, a claim of bias is serious and requires evidence.  It is also a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision.  It is well-established that the mere fact that a Tribunal makes adverse findings in respect of an applicant does not give rise to an inference of bias, or of itself suggest that the decision maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

34. A fair reading of the Tribunal’s decision does not disclose any pre-judgment on the part of the Tribunal in the sense referred to in the Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17. Nor does a fair reading of the Tribunal’s decision suggest that the Tribunal approached its task other than with a mind open to persuasion. There is also no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review. (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115])

35. As stated above, the Tribunal’s decision record makes clear that the Tribunal was aware of the first applicant’s medical condition and adjourned the hearing on two occasions.  The Tribunal made inquiries on several occasions to the Sydney Cancer Centre about the first applicant’s condition and his ability to attend the hearing.

36. As stated above, on the third occasion on which the hearing was set down by the Tribunal, it made further inquiries shortly before that hearing with the first applicant’s doctors as to whether there was any health reason why the first applicant would be unable to participate in the hearing and was told there was not.  The Tribunal then set out in some detail the applicants’ claims and its concerns about those claims, and those matters that it would have wished to have explored with the applicants, had the applicants attended a hearing.

37. In the circumstances, there is no evidence of any bias on the part of the Tribunal in the making of its decision or the conduct of its review, and Ground 3 is rejected. 

38. The Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere, and the proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date:  19 April 2013