SZHCR v Minister for Immigration & Anor [2007] FMCA 646

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) ("the Act") filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 September 2005 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 22 July 2005 and handed down on 11 August 2005, affirming a decision of the delegate of the first respondent made on 22 April 2005, refusing to grant the applicant a Protection (class XA) visa. The applicant seeks relief against the decision of the Tribunal.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym "SZHCR".

A Court Book ("CB") prepared by the first respondent's solicitors was filed on 17 October 2005. I have marked this as Exhibit "A" and the contents were read into evidence.

The Tribunal decision of Mr B MacCarthy, reference N05/51303, provides the following background information:

The applicant claims to be a citizen of the People's Republic of China ("the PRC" or "China"), and claims to have arrived in Australia on 30 January 2005. On 23 February 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 22 April 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 17 May 2005 the applicant applied for review of that decision.(CB 95)

The applicant stated in his protection visa application that he was a 24 year old unmarried farmer from Fujian province in the People's Republic of China ("the PRC"). He claims he is Christian and has no immediate family or other close relatives. He states he left illegally as a stowaway on board a ship, to avoid persecution because of his role in promoting Christianity in the PRC. He fears returning to the PRC because he belongs to a religious-based organisation that is perceived as a threat to the Chinese government. He also fears government officials because he caused "social disorder" in his community. The applicant entered Australia with a Japanese passport, but claims to be a citizen of the PRC and that he had lost his Chinese ID card. The applicant also claims that the government confiscated his land, depriving him of his livelihood as a farmer.(CB 97)

The Tribunal did not accept the applicant's claim that he was Christian and, consequently, found that he would not face harm from Chinese authorities because of his religion should he return in the reasonably foreseeable future. The Tribunal also did not accept that the applicant's farming land had been confiscated due to his religion. It would not accept that a farmer whose livelihood depended on his land holding was unable to produce official documents in respect of that land. Nor was he able to describe the conditions of the land holding. The original visa application listed his occupation as businessman but the material subsequently presented to the Tribunal claimed he was a farmer. In the circumstances, the Tribunal did not accept the applicant's claims of alleged persecution and found that he was not a refugee.

Application for review of the Tribunal's decision

On 13 September 2005, the applicant filed an application for review, under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, he field an amended application on 16 December 2005 which contained the following grounds:

1. RRT breached the rules of procedural fairness. RRT did not invite me to give oral evidence and present arguments at a hearing.

2. Migration Act 1958 (s 420) requires the Tribunal to do substantial justice, deciding each case on its merits and avoiding technicalities.

3. I found that the RRT decision does contain some bias as alleged by the fact. Further, there are obligations on the RRT, in this particular matter, to refer to resources about China and its democratic system.

The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant confirmed that he had filed an amended application but had not prepared any written submissions. When invited to make oral submissions, he raised a number of issues not directly relevant to the Court proceedings. He stated that he had in his possession letters from a Christian church in Australia of which he was now a congregation member, subsequent to the Tribunal decision. I explained to the applicant that those letters were irrelevant to the current proceedings before this Court. The applicant raised other irrelevant issues which demonstrated that he had no real comprehension of the purpose of these proceedings and was unable to make any meaningful submissions in support of his application. The applicant has participated in the Court-sponsored Panel Advice Scheme. He stated that his amended application was prepared by a friend. Regrettably, these grounds of review were unparticularised and general in nature, which does little to assist the applicant in this review.

Mr Braham, appearing for the respondents, stated that the only ground of review in the amended application which raises any issue matter of substance is that the Tribunal did not invite the applicant to a hearing. However, that the material in the Court Book does not support this allegation and this ground of review cannot be sustained for the following reasons.

In the Tribunal application form lodged on 17 May 2005, the applicant identified a person as his authorised recipient for correspondence from the Tribunal.

Section 441G of the Act provides:

Authorised recipient

(1) If:

(a) a person (the applicant) applies for review of an RRT-reviewable decision; and

(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient ) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.

(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.

(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.

Attached to that application is a letter written by the applicant with additional information.(CB 54, 55) On 15 June 2005, the Tribunal wrote a s.424A letter to the applicant, addressed to the authorised recipient, raising a number of issues in respect of his application and requesting a response to the questions raised therein. The following information appears at the top of the letter:

As the authorised recipient, all correspondence on this case will be sent to you as requested by [SZHCR]. Please note that after this acknowledgement of lodgement of this review application and your appointment to receive correspondence on [SZHCR's] behalf, no further correspondence will be sent to [SZHCR]. It is important that you tell the review applicant about all future correspondence.(CB 56)

On 30 June 2005, the applicant forwarded a letter to the Tribunal in response to the s.424A letter of 15 June 2005.(CB 61-62)

On the same date, the applicant also forwarded a change of address form to the Tribunal with his new home and mailing address details.(CB 63) However, there was no entry under the heading 'Changed authorised recipient contact details'.

The Tribunal case notes refer to communications between it and the applicant's agent as follows:

290605 Adviser phoned to advise that in reply to the Member's request by letter that the requested items and information noted within the s424 letter will be supplied as requested but the a/n is trying to locate his Chinese ID (misplaced) and will note within his letter to the member that as soon as ID is available he will forward same. I told the AR [authorised recipient] to ensure that he has the information, as, requested, to be at the Tribunal by the required time as outlined within the s424 letter. P. Merrick.

300605 At member's request I phoned the AR, on 0416 218 628, who identified himself as [SZHCR], and advised that all info as requested in s424 letter is required to be faxed to the Tribunal today. I questioned the AR as to what information was available for faxing at present. It was apparent that the AR had not sourced the required information from the a/n and also mentioned that the applicant has been living in Carlingford for about a month. Following this, I advised the AR that the Japanese passport is to be hand-delivered to Tribunal counter tomorrow, the PRC identity card as claimed as misplaced should be described in writing as to its whereabouts within the reply to be faxed to the Tribunal today. Also advised that should the member not receive this information as explained above, that the Member has the authority to go ahead and make a decision on the information before him. The AR said he understood the deadlines and would adhere to the Member's requests. Advised Member of same. P Merrick.

1/7/05 Positive RTHI [response to hearing invitation] and passport received from applicant. M. Haynes

040705 Above note relates to positive RTHI but I haven't rec'd this and M Haynes does not have recollection as the Counter was extremely busy at the time. The passport is accompanied by a COA form. Address updated on CMS and passport opassed to Member.(CB 108)

On 1 July 2005, the Tribunal wrote to the authorised recipient inviting the applicant to a Tribunal hearing on 21 July 2005.(CB 75-76) That request was faxed to the authorised recipient at the number provided by the applicant.(CB 52, 74) The provision for forwarding of documents via facsimile is contained in s.441B of the Act:

Methods by which Tribunal gives documents to the Secretary

Coverage of section

(1) For the purposes of provisions of this Part or the regulations that:

(a) require or permit the Tribunal to give a document to the Secretary; and

(b) state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

...

Transmission by fax, e-mail or other electronic means

(4) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by:

to the last fax number, e-mail address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.

The invitation sent on 1 July 2005 satisfies the requirement under reg.4.35D of the Migration Regulations 1994 (Cth) for the Tribunal hearing scheduled on 21 July 2005. Regulation 4.35D of the Regulations reads:

Prescribed periods -- notice to appear before Tribunal (Act, s 425A)

For subsection 425A (3) of the Act, the prescribed period:

(a) ...

(b) in any other case -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.

By operation of ss.441A and 441C, the authorised representative, and so the applicant, is taken to have received the document if it is sent by facsimile to the nominated number.

Mr Braham referred to Le v Minister for Immigration [2007] FCAFC 20 in support of the contention that the hearing invitation is taken to have been received by the applicant whether or not his agent actually caused it to come to his attention. In Le, the authorised recipient had abandoned that role. As this became known to the Department, it wrote to the applicant at his residential address. This was based on the assumption that if an authorised recipient ceases to act as one without providing a forwarding address, email address or telephone number, there is no authorised recipient from that time. The Full Court held that that assumption was not in accordance with the express language of s.494D (being the equivalent section to s.441G) and made the following observations:

18. ...The clear object of that provision is to empower the Minister to give documents to an applicant who has satisfied the requirements of s 494D (1). Once an applicant gives the Minister written notice of the name and address of another person as being authorised to receive documents, the Minsiter must give that other person any documents that the Minister would otherwise have given to the applicant, instead of giving them to the applicant.

19. Section 494D says nothing about how the Minister is to give documents to the Authorised Recipient. That matter is dealt with by s 494A. Thus, where a provision of the Act requires the Minister to give a document to a person, which must include an Authorised Recipient, and the provision does not state that the document must be given by one of the methods specified in s 494B or by a prescribed method, the Minister may give the document to the person by any method that the Minister considers appropriate, including one of the methods specified in s 494B.

20. Section 494D may present problems where the Authorised Recipient dies or where the name and address of which written notice was given to the Minister by an applicant were fictitious. Neither of those circumstances arises in the present case. That is to say, it has not been suggested that Mr Johnstone did not exist and did not have the address specified in the Authorisation. Nor has it been suggested that Mr Johnstone is no longer living.

21. There is nothing in s 494D to suggest that the requirement of s 494D (1), for the Minister to give documents to the Authorised Recipient, comes to an end otherwise than as provided for in s 494D (3). Thus, until an applicant withdraws a notice given under s 494D (1) or varies such a notice, for example by substituting a different person or perhaps a different address, the Minister must give documents to the Authorised Recipient.

22. However, the method by which the document is given to the Authorised Recipient is a matter for the Minister. That is to say, under s 494A, the document is to be given by a method that the Minister considers appropriate. As s 494A contemplates, it may be that the Minister would consider that one of the methods specified in s 494B is appropriate.

25. It may be that one of the objects of s 494D is to benefit applicants. The fact that, under s 494D (4), the Minister must give the Authorised Recipient notice of a communication with the applicant, suggests that some protection for an applicant is contemplated. However, it is clear enough that the primary object of s 494D is to eliminate uncertainty as to whether a document has been given to an applicant. So long as the Minister has given a document to an Authorised Recipient, by a method that the Minister considers appropriate, that applicant is taken to have been given the document. That consequence flows whether or not the document comes to the attention of the Authorised Recipient. A fortiori, the consequence flows whether or not the document ever comes to the notice of the applicant. That certainty is of considerable advantage to the Minister in the administration of the Act.

27. There is no warrant in the language of s 494D for concluding that, simply because the Minister concludes that an Authorised Recipient is no longer at the address specified in an applicant's notice under s 494D (1), s 494D ceases to operate. Section 494D is triggered by an applicant giving written notice of the name and address of another person. It operates until that notice is varied or withdrawn under s 494D (3), putting aside the possibility of a fictitious name and address or the death of the Authorised Recipient to the knowledge of the Minister. Those cases do not apply here and nothing said here should be taken as having any application in such a case.

29. It is incumbent upon an applicant to remain in communication with a person who is authorised to receive documents under s 494D (1) until the applicant withdraws the notice given under that provision or varies it pursuant to s 494D (3). It is not for the Minister to ascertain whether or not an Authorised Recipient has died or is inactive. So long as the Minister is able to give documents to that Authorised Recipient by a method that the Minister considers appropriate, the applicant will be taken to have received the documents. Furthermore, the Minister must give a document to the Authorised Recipient.

I accept the submission of Mr Braham that the applicant's claim that he was not provided with the opportunity to attend a Tribunal hearing cannot be sustained.

The second ground of the applicant's amended application appears to raise the issue of a merits review, which is clearly not available in this Court: Minister for Immigration v Wu Shan Liang.

The third ground is not particularised and alleges bias. Whether the applicant is suggesting actual or apprehended bias is not clear. The test for actual bias is set out in Sun Zhan Qui v Minister for Immigration (1997) 81 FCR 71 at 127 where Wilcox J states:

Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant...

Actual bias can be said to exist where a decision-maker had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, a proper evaluation of the material relevant to the decision to be made: Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72].

A party alleging actual bias carries a heavy onus which must be clearly proved: Jia at 531. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of a Tribunal member: Tin Shwe v Minister for Immigration [2000] FCA 988 at [27]; Yit v Minister for Immigration [2000] FCA 885 at [36].

Further, a case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal's reasons: VFAB v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].

Apprehended bias will exist when a fair minded lay observer, properly informed of the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal; Re Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294. Examples of such apprehended bias are:

a) The applicant is overborne or intimidated by the Tribunal:

Ex parte H at [31].

b) The fact finding of the Tribunal was conducted in a manner that is:

i)

substantially unreasoned;

ii)

in the nature of mere assertion lacking rational or reasoned foundation;

iii)

at times plainly and ex facie wrong; and

iv)

selective of material going one way: NADH of 2001 v Minister for Immigration [2004] FCAFC 328; (2004) 214 ALR 264 at [115].

A determination of whether an administrative decision is affected by apprehended bias should be informed by the following considerations:

a) Natural justice does not require the Tribunal member's mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion: Jia at [72] and [86].

b) Apprehended bias in the context of an administrative decision maker is not attended with the strictures that apply to a case of judicial prejudgment: Jia at [179]-[187], [244]-[245]; NADH at [19]. In NADH, Allsop J (Moore and Tamberlin JJ agreeing) described this difference as follows:

The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously: Ex parte H at [30]. The requirements of procedural fairness will often require that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question. Furthermore, the decision-maker's assessment of an applicant's credit will often depend upon their demeanour and the manner in which they give evidence: Ex parte H at [34].

Bias does not necessarily arise from illogical or irrational decision-making or inferences: Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30 at [52], [75], [99]-[101]. Further, a manifestly defective or illogical approach to the consideration of evidence, and even irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence. However, such an approach, without more, does not necessarily demonstrate apprehended bias: Applicant S20/2002 at [101] and [136].

The applicant has made no attempt to submit any evidence, in submission or affidavit form, to support his claim of bias. Consequently, the ground must be dismissed.

The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. I am satisfied the applicant has been given the opportunity to receive independent legal advice under the Court sponsored Panel Advice Scheme and did file an amended application containing three grounds of review, although there those claims were not particularised. The applicant is faced with a language barrier and has little comprehension of the legal system in which he has initiated these proceedings. Mr Braham assisted the Court with written submissions which were supplemented by oral submissions addressing all the material contained in the application. I acknowledge the obligation on the Court to independently consider whether any argument based on the material in the Tribunal decision and the Court Book could have been made out. However, I am satisfied that no grounds are identified in the applicant's amended application. Neither is it apparent that any other grounds of review exist to suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.

I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.