SZBWY v Minister for Immigration & Citizenship

Federal Court of Australia|2008-08-12|Before: Gyles J, Gordon J

REASONS FOR JUDGMENT 1 This is an appeal against an order of Federal Magistrate Nicholls of 12 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 18 October 2006. The Tribunal affirmed a decision of a delegate of the first respondent ("the first respondent") to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth)("the Act").

PROCEDURAL HISTORY 2 The appellant is a citizen of the People's Republic of China ("China") who first entered Australia on 7 April 2002. On 19 April 2002, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known). The first respondent refused the application for a protection visa on 21 June 2002. 3 On 23 July 2002, the appellant applied to the Tribunal for a review of that decision. On 25 September 2003, the Tribunal affirmed the decision of the first respondent. The appellant sought review of the Tribunal's decision and by consent, on 13 April 2006, Gyles J quashed the decision of the Tribunal and remitted the matter to the Tribunal. The matter was reconsidered by the Tribunal and, on 17 October 2006, the Tribunal again affirmed the decision of the first respondent not to grant a protection visa. On 27 February 2007, again by consent, Cameron FM quashed the decision of the Tribunal and remitted the matter to the Tribunal. 4 On 18 October 2007, the Tribunal again affirmed the decision of the first respondent. 5 Before the Tribunal, the appellant claimed to fear persecution in China as a Falun Gong practitioner and due to his opposition to the Chinese Government. He claimed, before coming to Australia, to have practised Falun Gong in Papua New Guinea where he lived from June 1995 to April 2002. Whilst in Australia, he claimed to have participated in demonstrations in front of the Chinese Consulate in Sydney. If he were to return to China, he claimed he would not be allowed to take his collection of Falun Gong material back to China and would not be allowed to practise Falun Gong. The appellant also claimed to fear returning to China for two additional reasons - that his wife was pregnant in breach of the one-child policy and because he did not have household registration in China.

THE TRIBUNAL DECISION 6 The Tribunal concluded, based on the appellant's lack of knowledge, that it was not satisfied the appellant's application invoked protection obligations in Australia. The Tribunal was not satisfied on the evidence before it that the appellant was a Falun Gong practitioner. The Tribunal did not accept that the appellant was a witness of truth in relation to the events he alleged took place in China or about his Falun Gong practice. The Tribunal did accept that whilst the appellant was in Australia he had attended some Falun Gong practises and protests but was not satisfied that the conduct was engaged in otherwise than for the purpose of strengthening his claim to be refugee. Accordingly, the Tribunal disregarded that conduct in accordance with s 91R(3) of the Act. Further, the Tribunal found that if the appellant returned to China, he would not suffer harm or persecution because of his wife's pregnancy. In relation to the allegation that the appellant might be refused household registration, the Tribunal found that the refusal did not amount to serious harm and was, in any event, not a Convention reason invoking protection obligations in Australia.

THE COURT BELOW 7 Before the Federal Magistrate, the appellant filed an application. The stated grounds were in the following terms: 1. The Tribunal failed to consider the claism [sic] of my application because of the Tribunal's bias against me. The Tribunal failed to refer to proper independent information for the consideration of my application. 2. The Tribunal failed to consider my application according to s 424A of the [Act]. The Tribunal had not notified in writing the reason or part of the reason for affirming the decision. 3. The Tribunal disbelieved that I am a Falun Gong member because of the Tribunal's bias against me.

APPLICATION TO THIS COURT 8 The Notice of Appeal filed in this Court on 24 June 2008 was substantially a reproduction of the application filed in the Federal Magistrates Court (see [7] above). The grounds of appeal in this Court were: 1. The Tribunal failed to consider the claims of my application for a protection visa because of the bias against me. 2. The Tribunal failed to consider my application according to s 424A of the [Act]. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons. 3. The Tribunal failed to refer to proper independent information for the consideration of my application. The changes are in italics. 9 The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate. For the reasons that follow, I cannot identify an appellable error. An appeal would have no prospects of success.

GROUND 1: CLAIM FOR BIAS OR APPREHENDED BIAS 10 The first possible ground for review considered by the Federal Magistrate was a claim for bias or apprehended bias. 11 It is not sufficient for the appellant to have a "vague sense of unease or disquiet" about the manner in which the decision was made (Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424, at 441 per Weinberg J). Rather, it would require the possibility that "a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct" could form an apprehension of bias: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-5. As has been said on many occasions, an allegation of bias must be distinctly made and clearly proved: see by way of example Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [69]. There is nothing in the present case to support such an allegation whether as alleged or at all. 12 Despite the appellant's claim to be a Falun Gong practitioner, the Tribunal's decision to reject an application for a protection visa is not so unreasonable that no reasonable person could have made such a decision: cf Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. While I understand that the appellant finds the decision unfavourable, given the Tribunal's findings that the appellant was not a witness of truth, an appeal would have no prospects of success. What the appellant seeks is merits review of the Tribunal's fact finding function. That is not the role of this Court: see Part 8 of the Act and Abebe v Minister of State for Immigration and Multicultural Affairs (1997) 49 ALD 603 at 604.

GROUND 2: THE TRIBUNAL FAILED TO CONSIDER MY APPLICATION ACCORDING TO S 424A OF THE ACT. 13 This complaint was not particularised by the appellant before the Federal Magistrates Court. As the reasons for decision of the Federal Magistrate record, the Tribunal complied with s 424A of the Act. I can identify no appellable error. This ground of complaint should be dismissed.

GROUND 3: TRIBUNAL FAILED TO REFER TO PROPER INDEPENDENT INFORMATION 14 As noted earlier, this ground formed part of Ground 1 of the Application considered by the Federal Magistrate: see [7] above. The Federal Magistrate dealt with this complaint in the following terms: The applicant was unable to say what proper information the Tribunal should have referred to, and considered. In any event, it is now settled that the Tribunal's use of independent country information, and in particular the weight given to that material, is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11], VQAB v Minister for Immigration and Multicultural Affairs[2004] FCAFC 104 (at [32]). This complaint also does not succeed. 15 I can identify no appellable error. This ground of complaint should also be dismissed.

NEW GROUNDS RAISED FOR THE FIRST TIME ON THE HEARING OF THE APPEAL 16 The appellant's oral submissions identified four areas of complaint with the conduct of the hearing by the Federal Magistrate: that the Federal Magistrate was biased against him, that prior to the hearing the Federal Magistrates Court had lost materials that he had submitted, that the first respondent's solicitor had asked him questions during the course of the hearing and finally, that the decision of the Federal Magistrate was delivered "instantly". For the reasons that follow, each of those complaints should be dismissed.

BIAS 17 The appellant has not pointed to any material to support such an allegation and there is nothing in the present case to support such an allegation whether as alleged or at all. Moreover, to the extent that the appellant appeared to equate the fact that the Federal Magistrate found against him as evidence of bias or unfairness, the appellant seeks merits review of the Tribunal's fact finding function. That is not the role of this Court. Consistent with the authorities referred to earlier (see [11] and [12]), this ground of complaint should be dismissed.

LOST MATERIALS 18 The appellant's second complaint was that he was curious how the Federal Magistrate could decide his application for review when the Federal Magistrates Court had lost his "original materials". This issue was dealt with by the Federal Magistrate at [24] in the following terms: The [appellant] stated that he had received a telephone call two days before the hearing from the Court and was told that the Court had "lost [his] original documents". He explained this to be his application to the Court. I advised the [appellant] that his application was before the Court. [The Court's registry has advised that a telephone call had been made to the [appellant], but that it arose out of circumstances to do with an error of filing by a former employee]. 19 Not only were materials not lost but the reasons for decision of the Federal Magistrate records that (1) after the first court date orders were made for the appellant to file further material relevant to his application, (2) the appellant was given access to the Court's legal advice scheme and was referred to Counsel on that panel and (3) after the hearing before the Federal Magistrate, the appellant was granted a further opportunity (which he availed himself of) to file further written submissions concerning matters arising from a Supplementary Court Book which he had received on the morning of the hearing. I can identify no appellable error.

QUESTIONS BY THE FIRST RESPONDENT'S SOLICITOR 20 This allegation was not particularised by the appellant. As Counsel for the first respondent submitted, the decision of the Federal Magistrate records that the first respondent engaged counsel to appear at the hearing and there is no record of the appellant being cross examined. This ground of appeal is dismissed.

DECISION OF THE FEDERAL MAGISTRATE WAS DELIVERED "INSTANTLY" 21 As Jacobson J said in NAOL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 840 at [12] "Courts regularly give ex tempore judgments. That does not indicate bias. It merely indicates that the trier of fact or law was in a position to decide all of the issues immediately after hearing the evidence and argument." Moreover, as these reasons for decision record (see [19] above), this ground of appeal is factually inaccurate. The hearing took place on 27 May 2008. The appellant filed written submissions on 6 June 2008 and the first respondent filed submissions on 10 June 2008. The Federal Magistrate delivered judgment on 12 June 2008. This ground of appeal is dismissed.

CONCLUSION 22 I would dismiss the appeal and order the appellant to pay the first respondent's costs of the appeal to be taxed in default of agreement. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 12 August 2008 The Appellant: Self Represented

Counsel for the First Respondent: Ms V McWilliam

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