SZHMJ v Minister for Immigration and Citizenship & Another [2007] FCA 102 (12 February 2007)

Last Updated: 14 February 2007

FEDERAL COURT OF AUSTRALIA

SZHMJ v Minister for Immigration and Citizenship & Another [2007] FCA 102

SZHMJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1910 OF 2006

COWDROY J
12 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1910 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHMJ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	12 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed
2. The appellant pay the costs of the first respondent in the sum of $2800.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1910 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHMJ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	12 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from the judgment of Scarlett FM delivered on 13 September 2006 which dismisses an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 13 September 2005 handed down on 4 October 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection visa to the appellant.

2 The appellant is a citizen of the People’s Republic of China (the ‘PRC’). Before the Tribunal the appellant claimed to have a well founded fear of persecution as he is a Falun Gong practitioner in the PRC. The appellant claimed to have been a Falun Gong practitioner since 1997. He claimed that he had been arrested and detained for questioning for one day in 1999; for a period of four days in October 2000; and on numerous subsequent occasions. The appellant claimed that as a consequence of his Falun Gong practice he was adversely forced into employment on a casual basis.

THE DECISION OF THE TRIBUNAL

3 The Tribunal found that the appellant was reticent and vague in his knowledge of, past experiences with, and prospective fears relating to his practise of Falun Gong and found the appellant’s knowledge of Falun Gong to be inconsistent with claims that he had a genuine interest in and commitment to the movement. The Tribunal found the account of the appellant contained no elements which supported assertions that he suffered adverse attention because of his affiliation to Falun Gong especially considering the appellant retained employment and obtained a passport and was able to depart the PRC.

4 The Tribunal found that the delay in the appellant leaving the PRC after his claimed detention and forced redundancy was not adequately explained and was inconsistent with his claims to be a refugee. Further the Tribunal found that the conduct of the appellant in Australia did not support his claims to be a Falun Gong practitioner.

GROUNDS BEFORE THE FEDERAL MAGISTRATE

5 On 31 October 2005 the appellant filed an application for judicial review of the decision of the Tribunal in the Federal Magistrates Court of Australia. In an amended application the appellant outlined an additional ground of review, namely that the Tribunal failed to carry out its statutory duty and in particular that it breached s 424A of the Migration Act 1958 (Cth) (‘the Act’). At the hearing before Scarlett FM the appellant claimed that he thought the Tribunal decision was unfair, complaining that the Tribunal member had, from time to time, interrupted him.

DECISION OF THE FEDERAL MAGISTRATE

6 Scarlett FM, found that there was no evidentiary basis for procedural unfairness as claimed by the appellant at the Tribunal hearing as no transcript was presented and therefore procedural unfairness could not be demonstrated. There was also no evidence of any bias by the Tribunal.

7 As to the alleged breach of s 424A of the Act as claimed by the appellant in the amended application Scarlett FM considered the findings and reasons of the Tribunal and found that the Tribunal did not rely on information, other than that given by the appellant for the purposes of the review. The essential finding of the Tribunal rested upon its dissatisfaction with the content of the evidence of the appellant. His Honour considered, in particular, the reference to the departure date of the appellant, information which could have been garnered from the appellant’s passport, provided to the Tribunal for the purpose of review.

NOTICE OF APPEAL

8 By notice of appeal filed on 28 September 2006 the appellant raises the following grounds:

‘1. The Tribunal acted with bias;
2. The Tribunal failed to carry out its statutory duty under s 424A of the Act;
3. The decision of the Tribunal was not based on sufficient evidence; and
4. The Federal Magistrate failed to find error in the decision of the Tribunal.’

9 At the hearing of the appeal before me the appellant was unable to specify any specific error by Scarlett FM.

SUBMISSIONS OF THE APPELLANT

10 The appellant gave oral submissions at the hearing before me. He claimed that he was very nervous before the Tribunal. He claimed that bias existed because the member disbelieved everything he said. He said that he was a Falun Gong practitioner and had been forced to sign numerous confessions. He reiterated that he was persecuted for his Falun Gong membership and that the Tribunal did not trust him. He claims that he was retrenched because of his Falun Gong membership. Subsequently he said that he was not a professional Falun Gong practitioner but that he practised because it was beneficial to his health. He said that he had not practised Falun Gong in Australia and that he had not seen it practised in this country. He was not able to provide further details of his claims set out in the notice of appeal.

FINDINGS

(a) Bias

11 The appellant alleges that the Tribunal was biased in its determination of his application before it. As was explained to the appellant, the purpose of this appeal is to determine whether Scarlett FM erred in his determination, rather than to examine the conduct of the Tribunal (see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]). The Court will nevertheless deal with the issues raised by the appellant as grounds of appeal even though the errors complained of are alleged errors of the Tribunal.

12 The judgment of Scarlett FM contains the following relevant paragraphs:

‘He told the Court that he thought that the Tribunal decision was unfair; he said that he was scared when he went to the Tribunal, and the Tribunal conducted its proceedings by asking a question and requiring him to answer. He said that the Tribunal asked questions in a stern manner, but corrected that in his submissions in reply to say that the tone of the questions was stiff rather than stern.
The applicant complained that the Tribunal member had from time to time interrupted him and that this was apparent from the tape of the proceedings. The applicant did not produce a transcript of the Tribunal proceedings.
...
It was conceded on behalf of the first respondent that unfairness in the sense of lack of procedural fairness on the part of the Tribunal may constitute a jurisdictional error. Her submission was that even taken at its highest the applicant's claims did not amount to a breach of procedural fairness. Even if the Tribunal asked questions in a stern tone, or if the applicant were interrupted, or that the proceedings were conducted by means of question and answer, this would not necessarily amount to procedural unfairness.’

13 Scarlett FM however found that there was no evidence of bias. He held:

‘As to the applicant's complaint about the tone in which the Tribunal addressed questions to the applicant, which he submitted was in a stiff tone and involved questions and answers and some interruptions, in certain circumstances it would be possible to find some evidence of bias on the part of a Tribunal member. There is however no evidence of any bias. This question was considered by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SBAN [2002] FCAFC 431 at [11] in the joint judgment of Heerey and Keifel JJ. Their Honours pointed out this important fact about Tribunal hearings:

"In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted (see s. 425(2)(a)) therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing does not of itself suggest actual bias in the relevant sense." ’

14 Accordingly, his Honour dismissed the submission that bias was demonstrated in the conduct of the application before the Tribunal.

15 As has been stated in SZEOQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1171 at [22] the principles relating to bias have been well established. Bias may be established if it can be demonstrated that the Tribunal member was actually biased, or if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question which the Court is required to decide: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 575; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263. As was held by the Full Court of the Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] – [48], an allegation of bad faith is a serious matter involving personal fault on the part of a decision maker; such allegation is not to be lightly made and must be clearly alleged and proved; there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition; the presence or absence of honesty will often be crucial; the circumstances in which the Court will find an administrative decision maker has not acted in good faith are rare and extreme; mere error or irrationality does not of itself demonstrate a lack of good faith; errors of fact or law and illogicality will not demonstrate bad faith; the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do; and it is not necessary to demonstrate that the decision maker knew the decision was wrong.

16 It must be also borne in mind that proceedings before an inquisitorial tribunal are of a different nature to proceedings before a Court: see Re Refugee Review Tribunal and Anor; Ex parte H and Anor [2001] HCA 28; (2001) 75 ALJR 982 at [5]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337 at [4].

17 The appellant essentially complains that he was treated sternly and was interrupted in the hearing before the Tribunal. No evidence of such conduct was found by Scarlett FM and none has been led before this Court. In Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] it was stated by Gleeson CJ and Gummow J that:

‘The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.’

18 The above observations are consistent with those of the Full Federal Court in Minister for Immigration & Multicultural Affairs v SBAN [2002] FCAFC 431, referred to by Scarlett FM in his judgment.

19 In Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128, Kirby J at [90] said that any allegation of bias should be ‘firmly established’. I am of the opinion that this test is not satisfied and accordingly that there is no basis for the ground of bias relied upon by the appellant.

(b) Alleged failure to comply with s 424A of the Act

20 This issue was raised before Scarlett FM who was unable to identify any information upon which the Tribunal relied other than that provided by the appellant. No details of this ground have been provided by the appellant to this Court. Accordingly the Court will refer to the events contained within the decision of Scarlett FM.

21 The appellant provided his passport to the Tribunal for the purposes of the review. Accordingly any information contained therein could be used by the Tribunal and did not breach s 424A(1) of the Act: see s 424A(3)(b) of the Act. It should also be observed that even if information other than that provided in the protection visa application was relied upon by the Tribunal, since no part of the information was used for the decision, no breach arises: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216].

22 Having considered the findings of the Tribunal it is obvious that it reached its decision adverse to the appellant, not because it relied upon any information other than that provided by the appellant, but rather because there was simply inadequate evidence upon which it could conclude that the appellant was a genuine Falun Gong practitioner and that he had suffered any resultant harm. It was also not satisfied that the appellant faced any real chance of prospective harm if he returned to the PRC for this reason. Accordingly the Tribunal’s decision was based on the lack of satisfactory evidence. In these circumstances it was entitled to reject the application: see SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201 at [24]. The Tribunal’s decision was based on information provided by the appellant himself at the hearing. There is therefore no breach of s 424A of the Act since such information falls within the exception provided by s 424A(3)(b).

23 Since no further evidence has been offered relating to this issue, the Court is unable to find any error by Scarlett FM in his conclusion that the Tribunal had not erred in reaching its decision on this question. It must also be remembered that proceedings before this Court are concerned with the existence of errors of law demonstrated in the Federal Magistrates Court. This Court has no power to undertake a merits review of the decision of either the Tribunal or the Federal Magistrate. The role of the Court in an appeal such as this was stated succinctly by Mason J (as he then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 40- 41, where His Honour said:

‘The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41].’

(c) Tribunal’s decision not based on sufficient evidence

24 In the absence of further submission or evidence the answer to this ground of appeal rests in the observation of Scarlett FM that the Tribunal’s decision resulted from its lack of satisfaction with the evidence adduced by the appellant in his application before it. The lack of detailed knowledge of the practice of Falun Gong displayed by the appellant, the time lapse of several years between his alleged detention and his departure for Australia, and his failure to engage in any Falun Gong activities in Australia led the Tribunal to consider that it was not satisfied that he was a genuine Falun Gong practitioner.

25 The Tribunal based its decision on the insufficiency of evidence. The Court is unable to find any jurisdictional error on the part of the Tribunal or in the decision of Scarlett FM.

(d) Failure by the Federal Magistrate to find error by the Tribunal

26 The Court has considered the decision of the Tribunal and the decision of Scarlett FM and is unable to determine any error in their respective decisions. The matters sought to be raised by the appellant essentially relate to the factual findings of the Tribunal.

27 It follows from the above findings that the appeal must be dismissed.

28 The first respondent has sought an order that the appellant pay the costs of the first respondent in the sum of $2800. Since this is within a reasonable range of costs, I will make the order sought.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 12 February 2007

Counsel for the First Respondent:	B.K Nolan
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	12 February 2007
Date of Judgment:	12 February 2007