SZMOB v Minister for Immigration and Citizenship [2009] FCA 140 (24 February 2009)

Last Updated: 25 February 2009

FEDERAL COURT OF AUSTRALIA

SZMOB v Minister for Immigration and Citizenship [2009] FCA 140

SZMOB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1861 OF 2008

COWDROY J
24 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1861 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMOB Appellant

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

JUDGE:	COWDROY J
DATE OF ORDER:	24 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the costs of the First Respondent in the amount of $2,100 pursuant to O 62 r 40C(4) of the Federal Court Rules.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1861 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMOB Appellant

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

JUDGE:	COWDROY J
DATE:	24 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Federal Magistrate Cameron delivered on 11 November 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 26 June 2008. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2. The appellant was born on 28 January 1963 and is a citizen of the People’s Republic of China (‘the PRC’). He arrived in Australia on 15 December 2007. On 28 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 6 March 2008. On 2 April 2008 the appellant applied to the Tribunal for a review of that decision.
3. Before the Tribunal the appellant claimed to fear persecution in the PRC due to his practice of Falun Gong. He stated in his application for a visa that he began practising in 2000 to improve his health problems. However, at the Tribunal hearing he said he could not remember when he began practising. He stated that he practised secretly in his home town before leaving for Shandong in 2004 after the PSB (Public Safety Bureau) became aware of such practice. In the statement supporting his visa application the appellant claimed that he was detained by the police and tortured for two months because of his Falun Gong practice. However, at the Tribunal hearing he claimed that he was not detained by the authorities. The appellant also claimed that he was supervised by the police after his release and that the PSB came and visited his house on two occasions after he left for Shandong. He stated that he feared the government ‘would give him trouble’ in the PRC so he left for Australia.

THE TRIBUNAL DECISION

4. The Tribunal found that the appellant was not a witness of truth and was not a genuine Falun Gong practitioner. The Tribunal found that the appellant had limited knowledge of Falun Gong which was not commensurate with someone who had practised Falun Gong for the period of time he had claimed. The Tribunal further observed that the appellant was able to depart the country using a passport in his own name which was not consistent with his claims of persecution by the authorities. It also noted that his evidence was vague and inconsistent in respect of the appellant’s principal claims. Finally, the Tribunal noted that his family, who remained in the PRC, had not been subject to harassment by the authorities. The Tribunal was not satisfied that the appellant was a genuine Falun Gong practitioner and therefore was not satisfied that he held a well-founded fear of Convention-related persecution.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

5. By application filed in the Federal Magistrates Court of Australia on 23 July 2008 and by amended application filed on 9 September 2008 the appellant sought judicial review of the Tribunal’s decision. The amended application was based upon two grounds. The appellant raised further grounds in the hearing.
6. Before Cameron FM the appellant claimed that the Tribunal had made its decision based on an assumption that he was not a genuine Falun Gong practitioner; had failed to consider the fact that he participated in Falun Gong activities in Australia; had failed to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’); had failed to ask him questions about Falun Gong; and claimed that the Tribunal decision was not fair.
7. Cameron FM noted that the findings of the Tribunal in relation to the appellant’s adherence to Falun Gong were based on an assessment of his credibility and could not be reviewed in judicial review proceedings. His Honour was satisfied that the Tribunal based its decision principally on the finding that the appellant was not a genuine Falun Gong practitioner. The Tribunal did consider the appellant’s conduct in Australia, however, this conduct did not form part of its reasons.
8. The second ground relied upon alleged that the Tribunal failed to consider the application for a visa in accordance with s 424Aof the Act because it did not notify the appellant in writing of the reason or part of the reason for affirming the decision. The appellant also claimed that he was not given an opportunity to comment.
9. As to such ground of appeal, his Honour found that the Tribunal’s decision was based on information provided by the appellant during the hearing, information which was excluded from the operation of s 424A(1) by s 424A(3)(b) of the Act.
10. His Honour rejected the appellant’s claim that the Tribunal did not ask any questions concerning Falun Gong. His Honour was satisfied that the Tribunal had clearly considered the appellant’s primary claim based around his alleged Falun Gong adherence and addressed such issues with the appellant at the hearing.
11. As to the claim regarding fairness, his Honour stated that this amounted ‘to an impermissible invitation to this Court to review the Tribunal’s finding on the merits of the application before it’.
12. Having found no jurisdictional error, Cameron FM dismissed the application.

APPEAL TO THIS COURT

13. On 1 December 2008 the appellant filed in this Court a Notice of Appeal from the decision of Cameron FM. The appellant raises the following grounds of appeal:
    1. The Tribunal believed that I was not a Falun Gong practitioner without any evidence or materials. The Tribunal had bias against me when considered [sic] my application for a protection visa.
    2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. 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’s decision to refuse my application for a protection visa was not made based on a rational and reasonable foundation.

SUBMISSIONS OF THE APPELLANT

14. The appellant appeared before the Court and was assisted by an interpreter. He said that before his ‘first time’ at Court he was not allowed to say much and the ‘judge [sic] was talking all the time.’ He was not able to provide any particulars to support his claim of bias. He claimed that he practised Falun Gong in Australia near Darling Harbour, ‘usually on Sundays when there was nothing else to do’. He was not able to tell the Court the last time he practised Falun Gong. He did not seek to provide any further submissions.

FINDINGS

Absence of evidence or materials to make findings

15. The Tribunal, in its decision signed on 4 June 2008, recorded that pursuant to an invitation given on 21 April 2008 the appellant appeared before it on that day to give evidence and present submissions. At the hearing the appellant was provided with such opportunity.
16. Independent country information generally supported the appellant’s claims concerning the persecution of Falun Gong practitioners by the PRC authorities, and the decision of the Tribunal shows that it considered the appellant’s claims both in his protection visa application and his oral evidence given to the Tribunal. However, the Tribunal observed that it had to determine whether the appellant had a genuine fear founded upon a real chance of persecution for a Convention reason if he returned to the PRC.
17. The Tribunal did not accept that the appellant had left the PRC for the reason he claimed. It did not accept that the appellant was a witness of truth. Further, the Tribunal did not accept that the appellant would suffer persecution for the reasons he claimed. Accordingly, the Tribunal rejected the appellant’s claims to be a Falun Gong practitioner based upon the evidence presented by the appellant. The Tribunal did not rely upon any material or evidence other than the appellant’s evidence and independent country information.
18. To demonstrate a legal error in the factual finding of the Tribunal, the appellant must demonstrate that there was no evidence at all for the inference drawn by it: see Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321. Deane J said at 367:

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably.

19. Later in the same passage his Honour said:

When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

20. The Tribunal’s decision observed that the appellant was vague and inconsistent in his evidence; that he a had limited knowledge of Falun Gong for someone who had practised for the length of time he claimed; and that he was able to depart the PRC holding a passport issued in his own name. There was accordingly evidence before the Tribunal upon which it was entitled to make its finding that the appellant was not a genuine Falun Gong practitioner.
21. The Notice of Appeal did not seek to rely upon any alleged wrongful application of s 91R(3) of the Act in respect of the appellant’s claimed practice of Falun Gong in Australia. The Court observes that the Tribunal, by its rejection of the appellant’s claims that he was a Falun Gong practitioner in the PRC and in Australia, impliedly found that s 91R(3) had no application. Accordingly, no obligation arose before the Tribunal to consider s 91R(3). The Court accordingly rejects the first ground of appeal.

Bias

22. The ground of bias was not raised before Cameron FM. Accordingly, leave is required before such ground can be considered: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]- [24]. Leave may be granted if it is ‘expedient in the interests of justice to allow the new ground to be argued and determined’: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [26]. Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26].
23. The transcript of the hearing before the Tribunal has not been tendered. In this circumstance insurmountable difficulties arise for the Court to determine bias unless it is plainly apparent from the Tribunal’s decision or other material. In SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] the Court observed that it is:

... likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves...

24. The allegation of bias contains no details and accordingly it is impossible to know whether actual bias or apprehended bias is claimed. An allegation of actual bias involves a state of mind that is ‘so committed to a conclusion already formed as to be inescapable of alteration, whatever evidence or arguments may be present’: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72]. Further, at [69] the Court held that such claim must be ‘distinctly made and clearly proved’. To prove bias it is necessary that the decision maker ‘acted dishonestly or arbitrarily or capriciously’: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [56]- [59].
25. As to apprehended bias, in Re Refugee Tribunal and Another: Ex parte H and Another [2001] HCA 28; (2001) 179 ALR 425 at [28] the Full Court observed that the appropriate test for apprehended bias should be determined by reference to a ‘hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias’.
26. There is nothing in the Tribunal’s decision which suggests that it considered the application before it with a closed mind, nor any factor suggesting that it would be possible to find apprehended bias. In the absence of any particulars of this claim and the Tribunal record not revealing any basis for the allegation, the Court cannot find any basis to grant leave.

Failure to comply with s 424A of the Act

27. This issue was raised before Cameron FM who found that the appellant had not identified the information which should have been given to him for his comment. His Honour observed that the Tribunal’s decision revealed that it reached its decision upon information supplied by the appellant in the course of the hearing which it did not accept having concluded that he was untruthful. The Tribunal’s findings are factual, and this Court cannot review such findings: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]; Abebe v Commonwealth of Australia; Re The Minister of Immigration and Multicultural Affairs of the Commonwealth of Australia and Another; Ex parte Abebe [1999] HCA 14; (1999) 197 CLR 510 at [137].
28. The Tribunal is required, pursuant to s 424A(1) of the Act, to provide particulars to an applicant of any information that it considers would be the reason or part of the reason for affirming the decision under review for the purpose of allowing the applicant to comment on it. However, s 424A(3)(a) provides an exception where the information does not specifically concern the applicant or another person and s 424A(3)(b) exempts information provided by the applicant for the review.
29. It is apparent that the Tribunal’s decision was based upon the appellant’s evidence provided to it and independent country information. Such information by virtue of s 424A(3)(a) and (b) falls within the exception to s 424A(1) of the Act. The Tribunal’s conclusion concerning the appellant’s claims does not constitute ‘information’: see SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18] and the Tribunal was under no obligation to provide reasons for its belief concerning the appellant’s credit.
30. There is no foundation for the claim that s 424A of the Act was breached and such claim is rejected.

Basis of the Tribunal’s decision

31. The appellant submits that the Tribunal’s decision to refuse the application for a protection visa was not based upon a rational and reasonable foundation.
32. No particulars have been provided to support the claim and such claim was not made before Cameron FM. Accordingly, for the same reasons discussed in relation to the bias claim, leave must be granted before the appellant can rely on such a ground.
33. The Court observes that irrationality or illogicality may exist where there has been a complete absence of a logical nexus between the evidence before the decision maker and the findings made, or inference of fact drawn, such that the decision is unreasonable in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230.
34. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 Gummow and Hayne JJ said at [38]:

... the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. Footnote omitted.

35. In Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Santow JA at [62] referred to the abovementioned standard as a high threshold that must be crossed before it can be found that a decision is unreasonable.
36. In SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 Madgwick J at [59] said:

Accordingly, it seems to me that the salient points to determine are first, whether there was any evidence for the Tribunal’s finding in relation to the independent country information; and secondly, if there was no evidence, whether that was simply an error within the Tribunal’s jurisdiction, or whether (a) the Tribunal erred in relation to a ‘jurisdictional fact’, or (b) that lack of evidence points to irrationality in the sense mentioned.

37. In the absence of any particulars relied upon, and having considered the decision of the Tribunal, no such error is apparent. Accordingly, the Court does not grant leave to raise this issue which has no merit and could not succeed. It follows that the appeal must be dismissed with costs.

COSTS

38. The Minister claims costs in the amount of $2,100 and relies upon the affidavit of Rowan John White sworn 23 February 2009 in support of such claim. The Court considers that the evidence satisfies the requirements to justify an assessed sum being awarded to the Minister in that amount pursuant to O 62 r 40C(4) of the Federal Court Rules.
    

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 24 February 2009

Counsel for the Appellant:	Appellant appeared in person
Counsel for the Respondents:	Mr Tynan
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	23 February 2009
Date of Judgment:	24 February 2009