WAMI v Minister for Immigration
[2007] FMCA 759
•25 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAMI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 759 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – bias – misunderstood information – failure to consider application according to s.91R – failure to consider independent information – assumption – no reviewable error. |
| Migration Act, 1958 (Cth), s.91R |
| Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal, ex parte H (2001) 179 ALR 425; [2001] HCA 28 |
| Applicant: | WAMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 28 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 16 May 2007 |
| Date of Last Submission: | 16 May 2007 |
| Delivered at: | Perth |
| Delivered on: | 25 May 2007 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The First Respondent’s name be amended to “Minister for Immigration & Citizenship”.
The Application be dismissed.
The Applicant pay the First and Second Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 28 of 2007
| WAMI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This application (“the Application”) seeks judicial review of a decision made by the Refugee Review Tribunal (“the Tribunal Decision” and “Tribunal” respectively) to uphold the decision of a delegate of the First Respondent to refuse to grant the Applicant a Protection (Class XA) visa.
Background
The Applicant is a citizen of the People’s Republic of China. He first arrived in Australia on 25 June 2006 on a Class UL Subclass 459 Sponsored Business Visitor (Short Stay) visa granted on 21 March 2006.
The Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs on
28 July 2006. The Applicant claimed to fear persecution if he returned to China because as a cadre in charge of social order in his village, he had failed to report persons he knew were practising Falun Gong activities in the village. The Applicant said he would inform them to leave before police arrived to arrest them.
A delegate of the First Respondent made a decision refusing to grant a protection visa to the Applicant on 12 October 2006 (“the Delegate’s Decision”). The Applicant was advised of the Delegate’s Decision by letter dated 13 October 2006.
The Applicant applied to the Tribunal for review of the Delegate’s Decision on 15 November 2006.
By letter dated 22 November 2006 the Tribunal advised the Applicant that, having considered the material before it concerning his application for review of the Delegate’s Decision, it was unable to make a decision in his favour on that information alone. The Tribunal invited the Applicant to a hearing on 20 December 2006 to give oral evidence and present arguments in support of his application.
By letter dated 22 November 2006 the Tribunal also advised the Applicant that it had information that would, subject to any comments he might make, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. The Tribunal advised the Applicant of the nature of the information and why it was relevant in the following terms:
“The information is as follows:
·You were granted the Temporary Business visa on 21 March 2006 but you did not depart China until three months later
This information is relevant as it may indicate to the Tribunal that you did not have a well founded fear while residing in China. It may also cause the Tribunal to question your credibility and the authenticity of your claims”: CB 62.
The Tribunal invited the Applicant to comment on the information in writing by 15 December 2006. The Applicant responded by that date.
The Applicant attended the Tribunal hearing on 20 December 2006 and gave extensive oral evidence to the Tribunal.
The Tribunal Decision was made on 28 December 2006. The Tribunal Decision affirmed the Delegate’s Decision refusing to grant the Applicant a Protection (Class XA) visa. The Tribunal’s Decision was handed down on 18 January 2007. The Tribunal Decision was forwarded to the Applicant on that date.
The application
On 22 February 2007 the Applicant filed the Application in this Court. The grounds of the Application are as follows:
Ground 1 – The Tribunal failed to consider my claims because of bias against me. The Tribunal made a decision based on some information which had been misunderstood by the Tribunal member. The Tribunal failed to consider my application according to s.91R of the Migration Act 1958.
Ground 2 – The Tribunal did not refer to proper independent information for the consideration of my application.
Ground 3 – The Tribunal’s decision was made based on an assumption.
Ground 1
Tribunal failed to consider Applicant’s claims because of bias
The Tribunal Decision demonstrates that the Tribunal considered all of the Applicant’s claims as to why he feared persecution if he returned to the People’s Republic of China. The Tribunal said that it “considered all of the applicant’s claims, individually and cumulatively” (CB 92). That the Tribunal did so is borne out by the extensive and thorough discussion of those claims with the Applicant at the Tribunal hearing (CB 82-89), and the detailed consideration of those claims in the Tribunal Decision (CB 90-93).
The Tribunal did not accept the Applicant’s claims about warning Falun Gong practitioners in his village of the actions of authorities, or that as a result he was investigated by the authorities (CB 90-92). The Tribunal in its detailed consideration of the claims made by the Applicant made a finding that the Applicant was “not … a credible witness” (CB 90), that it did not or could not accept the Applicant’s evidence (CB 90-92) and that the Applicant was “implausible” (CB 91). The Tribunal concluded that there was no real chance of the Applicant being persecuted in China now, or in the foreseeable future, because of his support for Falun Gong practitioners, or on the basis of his express or implied political opinion (CB 92). Not to accept the Applicant’s claims concerning the Falun Gong practitioners in his village was a course reasonably open to the Tribunal. Non-acceptance does not demonstrate bias by the Tribunal.
The Tribunal also found there was no chance of persecution based on the Applicant’s warning of political dissidents in the village prior to 1999. The Tribunal found that if the Applicant’s home was destroyed, or his son expelled from school, it was not for the reasons which he claimed. The Tribunal did not accept the Applicant’s claim that a warrant for his arrest had been issued (CB 92). These findings and conclusions were also reasonably open to the Tribunal. Non- acceptance does not demonstrate bias by the Tribunal.
To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; [2001] HCA 17 at para 72 per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para 27 per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision does not demonstrate pre-judgment, nor does it give rise to reasonable apprehension of pre-judgment. Rather, the Tribunal’s detailed questioning of the Applicant demonstrates that the Tribunal gave the Applicant every opportunity to persuade the Tribunal (to the requisite degree of satisfaction) that he had a well-founded fear of persecution for a Convention reason. The Applicant’s allegation of bias has not been made out.
Tribunal misunderstood information
Ground 1 also alleges that the Tribunal Decision was based on information misunderstood by the Tribunal. The Applicant has not provided particulars of the information allegedly misunderstood. No misunderstanding is apparent on the face of the Tribunal Decision, and in the absence of particulars this claim cannot succeed.
Tribunal failed to consider application according to s.91R
The Applicant also claimed under Ground 1 that the Tribunal failed to consider his application according to s.91R of the Migration Act 1958 (Cth). That claim is misconceived. The question of whether the treatment suffered or feared by the Applicant amounted to persecution within the meaning of s.91R did not arise. It did not arise because the Tribunal did not accept the Applicant’s claims and evidence. The Tribunal was thus not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.
Ground 2 – Tribunal did not refer to “proper independent information”
The Tribunal considered independent country information about the practice and treatment of Falun Gong practitioners by the People’s Republic of China government and authorities. That evidence is referred to in the Tribunal Decision (CB 90). The Applicant does not suggest that he asked the Tribunal to consider any other specific or “proper” independent information concerning the practice and treatment of Falun Gong practitioners by the People’s Republic of China government or authorities.
In any event, the Tribunal Decision rejected the Applicant’s claims and evidence for reasons unrelated to any independent country information. Therefore, this ground of review can not be made out.
Ground 3 – Tribunal’s decision was based on assumption
The Applicant has not provided particulars of the allegation that the Tribunal Decision was based upon an assumption (and presumably a wrong assumption). Without particularisation this ground cannot establish jurisdictional error in the Tribunal Decision.
Conclusion
None of the Applicant’s grounds have been made out.
The Application will therefore be dismissed. The Applicant will be ordered to pay the costs of the First and Second Respondents. The Court will hear the parties as to costs.
There will also be an order that the name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 25 May 2007
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