SZMGJ v Minister for Immigration and Citizenship [2009] FCA 91 (12 February 2009)

Last Updated: 16 February 2009

FEDERAL COURT OF AUSTRALIA

SZMGJ v Minister for Immigration and Citizenship [2009] FCA 91

SZMGJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1754 of 2008

COLLIER J
12 FEBRUARY 2009
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 1754 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMGJ Appellant

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

JUDGE:	COLLIER J
DATE OF ORDER:	12 FEBRUARY 2009
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 1754 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMGJ Appellant

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

JUDGE:	COLLIER J
DATE:	12 FEBRUARY 2009
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Scarlett FM delivered on 17 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 17 April 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2. The appellant is a citizen of China who arrived in Australia on 19 November 2007. On 26 November 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 28 December 2007. On 29 January 2008 the appellant applied to the Tribunal for a review of that decision.
3. The appellant claimed to have a well-founded fear of persecution due to her practice of Falun Gong. She claimed that she began practising Falun Gong in March 1997, practising regularly with her colleagues in the park. She stated that after Falun Gong was banned, she participated in two protests in October 1999 and November 2001. She claimed that she was detained by the police in Beijing when she attended the second protest. She claimed that she was allowed to return home, however the next day police came to her house and she was arrested. She was interrogated and beaten by police, as they wanted her to confess to being a Falun Gong practitioner. She stated that she was detained for three months. After she was released she resided with her parents and continued to practice in private. She left China and came to Australia, and has been practising at Parramatta since February 2008.

PROCEEDINGS BEFORE THE TRIBUNAL

4. The Tribunal found that the appellant was not a credible witness. The Tribunal noted that her claims were vague and generalised, she was evasive in her responses, and her evidence often changed in response to the Tribunal’s concerns. The Tribunal further noted that the appellant’s knowledge of Falun Gong doctrines was limited and found many aspects of her claims to be completely implausible. The Tribunal formed the view that she had memorised a set of claims and had difficulty responding to the Tribunal’s questions which went beyond those claims. Therefore the Tribunal rejected all of the appellant’s claims about her involvement and practice of Falun Gong in China.
5. The Tribunal accepted that the appellant may have been involved in other Falun Gong related activities in Australia, however the Tribunal disregarded this conduct in accordance with s 91R(3) Migration Act 1958 (Cth) (“the Act”). The Tribunal found that the appellant would not engage in Falun Gong activities if she returned to China and there was no real chance that she would face persecution for a Convention reason.

APPLICATION FOR JUDICIAL REVIEW BEFORE THE FEDERAL MAGISTRATES COURT

6. On 15 May 2008 the appellant filed an application for judicial review of the Tribunal’s decision. In her application the appellant contended that the Tribunal did not give weight to her evidence and that the interpreter failed to properly interpret her claims at the hearing.
7. The Federal Magistrate found that it was clear that the Tribunal did consider the appellant’s claims and had asked her a number of questions about those claims. His Honour stated that the Tribunal’s finding as to the appellant’s credibility was a factual matter for the Tribunal, and the Court was not able to engage in a merits review.
8. Secondly, the Federal Magistrate was satisfied that the Tribunal did consider the appellant’s claim of failure by the interpreter to interpret and investigated the claim but ultimately rejected it. His Honour was satisfied that the Tribunal did not fall into error in the way it dealt with this claim.
9. The Federal Magistrate then dealt with the appellant’s claim that the Tribunal did not allow her to change an incorrect document provided with her initial application. His Honour found that this claim was not made out as the Tribunal did permit the appellant to make the corrections and correctly investigated her claim that she had been mislead by a person who claimed to be a migration agent.
10. The Federal Magistrate was unable to discern any jurisdictional error in the decision of the Tribunal and therefore the application was dismissed.

APPEAL TO THIS COURT

11. By Notice of Appeal filed on 7 November 2008, the appellant raised the following grounds of appeal against the decision of Scarlett FM:
    1. Refugee Review Tribunal had bias against me and did not make fair decision for my application.
       
    2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not consider my application fairly. The Judge refused my application on 17 Oct. 2008 It is not fair. I am Falun Gong practitioner. I will be persecuted if I return to China.
       
    3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.
       
12. In support of the notice of appeal the appellant also filed an affidavit sworn 6 November 2008. The affidavit reads as follows:

My application for a protection visa was refused by DIAC and RRT and I found jurisdictional error with RRT. I lodged my application to be reviewed at Federal Magistrates Court. The judge did not consider all information provided at my hearing. I have no chance to provide more evidence and my case was dismissed.

13. The appellant filed no written submissions in this appeal. Further, the appellant was self-represented.
14. The Minister was represented at the hearing by solicitors, who filed written submissions for the Minister.
15. At the hearing of the appeal before me the appellant submitted:
    • her memory was seriously affected by the torture she had experienced in China; and
    • she was nervous before the Tribunal and did not know what to say.

CONSIDERATION

16. In my view the grounds of appeal before the Court cannot be substantiated.
17. I note that the issue of bias raised in the first ground of appeal was not raised before the learned Federal Magistrate. In any event it is well established that bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision maker. It must be clearly articulated and proved by admissible evidence. It is rare for a Court to find that an administrative decision maker acted in bad faith, especially where the only thing said to be in support of this is the decision record: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at 756; and VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102. In the absence of any evidence as to the conduct of the Tribunal at the hearing or otherwise, no bias should be inferred solely from factual findings that were open on the material before the tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 519 and 531-532, re Refugee Review Tribunal, ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434, VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at 107. In this case:
    • the appellant has not pleaded bias other than a general statement that the Tribunal was biased against her;
    • it cannot be inferred that the Tribunal was biased against the appellant simply because it did not believe her claims;
    • there is no evidence to support a contention that the Tribunal was biased;
    • there is nothing evident in the materials before me which supports an allegation of bias.
18. The second and third grounds of appeal relate to the manner in which the hearing before the Federal Magistrate was conducted. While the Court notes the difficulty a self-represented litigant may experience in articulating grounds of appeal, I can identify no basis for an allegation that the hearing before his Honour was not properly conducted. Indeed, the true complaint of the appellant in relation to these grounds of appeal appears to be that the Federal Magistrate refused to conduct a merits review of the decision of the Tribunal, which of course is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [31].
19. In relation to the appellant’s oral submissions I note that it is for the appellant to make her case to the Tribunal, and to bring to the attention to the Tribunal any issue relevant to her presentation of her case. There is not evidence before me that the issues raised by the appellant before me today were brought to the attention of either the Tribunal or the Court below. In any event, I note that the Tribunal did not accept the appellant’s version of events in China, including her alleged torture. No jurisdictional error in the decision of the Tribunal, nor legal error in the decision of his Honour, is demonstrated by the oral assertions of the appellant.
20. No error has been demonstrated in the reasoning of the learned Federal Magistrate. In my view the appeal should be dismissed with costs.
    

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 12 February 2009

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	Mr A Markus of Australian Government Solicitor

Date of Hearing:	12 February 2009
Date of Judgment:	12 February 2009