FEDERAL COURT OF AUSTRALIA

SZICM v Minister for Immigration Citizenship [2007] FCA 1094

SZICM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 775 OF 2007

COWDROY J

18 OCTOBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be joined as Second Respondent to these proceedings.

2.                  The appeal be dismissed.

3.                  Pursuant to Order 62 rule 4(2)(c) of the Federal Court Rules 1979 (Cth) the Appellant pay the costs of the First Respondent in the sum of $ 1800.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Nicholls dated 16 April 2007 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 15 December 2005. The Tribunal had affirmed a decision of a delegate of the extant Minister for Immigration and Multicultural and Indigenous Affairs (‘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’) who arrived in Australia on 27 April 2005. On 4 May 2005 the appellant lodged an application for a protection visa which was refused on 6 August 2005. On 6 September 2005 the appellant applied to the Tribunal for a review of that decision.

3                     The applicant claimed that he feared persecution from authorities in the PRC because he had expressed concern about the treatment, at the hands of the authorities, of Catholics who had been detained because of their involvement in underground churches. The appellant, in his claimed capacity as a medical practitioner, says that he had provided medical certificates to persons indicating that they had been injured by police. The appellant claimed that such certificates were used in legal proceedings brought against the police and that he was consequently accused by the police of issuing false certificates. The appellant claims that he was persecuted by the police who came to his home and detained him in 2005 and that after the payment of bribes he was released four days later.

4                     The Tribunal did not accept that there was a genuine basis for the appellant’s claim that he feared harm from the police if he was to return to the PRC and found that the appellant’s oral evidence regarding the fear of harm from police was hesitant, vague and ad hoc. The appellant was unable to provide relevant details as to the alleged court proceedings, including the outcome of the proceedings. The Tribunal found that the appellant was undecided as to whether he feared the police in general or whether his fear was limited to the police involved in the court matter. The Tribunal did not accept that the appellant was involved in issuing medical certificates to persons tortured by police which were then used in Court proceedings, nor that he would be harmed by police. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he were to return to the PRC. The Tribunal was not satisfied that the appellant met the requirements of s 36(2) of the Act which provides the criteria for a protection visa, and was under no obligation to seek further independent information. The Tribunal affirmed the Minister’s decision.

Application to Federal Magistrates Court

5                     By application filed on 13 January 2006, the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court claiming that the Tribunal’s decision was not based on any rational or logical foundation; was biased; failed to consider the appellant’s claims; and did not refer to any independent information. By Amended Application filed on 2 May 2006 the appellant claimed that the Tribunal had failed to carry out its statutory duty, in particular, that it failed to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’). On 13 January 2006 the appellant filed an affidavit which raised claims of bias. The appellant’s oral submissions restated the grounds related to s 424A of the Act but also made reference to s 91R of the Act and claimed that the Tribunal had made an incorrect finding that the appellant was hesitant.

6                     Nicholls FM found that the Tribunal based its decision on the finding that there was ‘no genuine basis’ to the claims and that the appellant’s claim of fear was ‘ambivalent and ambiguous’. His Honour found that the Tribunal relied on information which the appellant had provided at hearing which fell within the exception to the Tribunal’s obligations under s 424A(1) of the Act as provided by s 424A(3)(b) of the Act. His Honour found that there was no evidence to support the claims of bias, that the Tribunal’s findings lacked foundation, nor that the Tribunal failed to consider the appellant’s claims.

7                     Nicholls FM also specifically addressed the claims raised by the appellant at the hearing. His Honour found that the appellant was given an opportunity to comment about his claims and observed:

 The applicant’s complaint that the Tribunal’s description of his evidence as “hesitant” and “vague” was not correct, is not supported by any evidence whatsoever.

8                     His Honour also could not see how any reference to s 91R of the Act could assist the appellant when the Tribunal’s decision turned on its inability to accept the appellant’s claims. As Nicholls FM did not discern any jurisdictional error in the decision, the application was dismissed.

Appeal to this Court

9                     By Notice of Appeal filed on 3 May 2007, the appellant claimed that the Tribunal was biased; failed to consider his claims; failed to consider independent information; and failed to comply with s 424A of the Act. The appellant submitted that he believed that Nicholls FM had failed to consider his Application for Review adequately as he had given an ex tempore judgment at the conclusion of the hearing.

Findings

10                  The appellant was told at the hearing that the function of this Court is to determine whether there was any error made in the decision of the Federal Magistrate and not in the findings of the Tribunal: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]; SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4].

11                  The appellant has provided no particulars in respect of his claim that the Tribunal was biased. An allegation of bias is a very serious allegation of personal fault on the part of the decision maker. Such allegation must be specifically pleaded and clearly proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. Further it is rare for a Court to find that an administrative decision maker acted in bad faith especially when all the Court has before it in support of the allegation is the record of the decision being challenged: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48]; VFAB v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102. In NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] the Full Court, in considering a challenge to a decision of the Federal Magistrates Court in circumstances where the transcript of the Tribunal hearing was not adduced in evidence said:

In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.

12                  In the absence of transcript evidence, the Court will be reluctant to make a finding of bias by the Tribunal. In this appeal there is no evidence before the Court to suggest that the Tribunal had acted in a manner that would give rise to a reasonable apprehension of bias. In the absence of particulars the Court must dismiss this ground of appeal.

13                  The appellant similarly has not provided any particulars in support of his claim that the Tribunal failed to consider his claims. It is clear from the decision of the Tribunal that it comprehensively considered each of the appellant’s claims and came to the conclusion that it could not be satisfied of their truthfulness. This was a finding that was open to the Tribunal to make. Accordingly the Court dismisses this ground of appeal.

14                  Similarly there is no obligation on the Tribunal to take into account any independent country information and it is for the appellant to present the evidence to which he wishes the Tribunal to have regard. In the absence of particulars the Court must dismiss this ground.

15                  The appellant has provided no details of his claim that the Tribunal failed to comply with s 424A(1) of the Act. However it is apparent from the decision of the Tribunal that the Tribunal’s decision was based on the inadequate nature of the appellant’s oral evidence. The appellant’s oral evidence was information given by the appellant to the Tribunal for the purposes of his Application for Review and as such it is information which falls within the exception to s 424A(1) found in s 424(3)(b) of the Act. Accordingly the Court must dismiss this ground of appeal.

16                  For the above reasons the Court dismisses the appeal.

17                  The Minister has sought an order for costs in the fixed sum of $1800. As this amount is within a reasonable range for costs, the Court will make the order sought.

Associate:

Dated:         18 October 2007