FEDERAL COURT OF AUSTRALIA

SZIBY v Minister for Immigration and Citizenship [2007] FCA 1974

SZIBY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1150 OF 2007

FLICK J

13 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.          The appeal be dismissed.

2.          The Appellant pay the costs of the Respondent of and incidental to the hearing of this appeal.

3.          The Refugee Review Tribunal be added as Second Respondent to the proceedings.

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 the Federal Magistrates Court delivered on 1 June 2007. 

2                     The Federal Magistrate dismissed an application seeking judicial review of a decision of the Refugee Review Tribunal given on 23 November 2005.  The Tribunal affirmed a decision not to grant a protection visa to the now Appellant.

FACTUAL BACKGROUND

3                     The Appellant is a citizen of the People’s Republic of China who arrived in Australia on 16 August 2005.  On 22 August 2005 the application for the visa was lodged.  In support of her original application the Appellant provided a one paragraph statement as follows:

I am a Christian and together with my friends and relatives, I was actively participating in religious activities in China.  Nowadays, we could enjoy limited freedom of religious compared with the real freedom of religious in Australia.  Twenty years ago, if only you mentioned about Christianity, you were regarded to be connected with overseas, and you would accused of being too much involved with the western culture.  You would always have bad luck if you dared to do things like that.  Because of my personality I suffered being detained for three times.  I don’t think I would get away from any further persecution from the Chinese Communist Party if I had not come to Australia for protection.  I suffered persecution because of my religious belief as well as my political opinions.  I was detained in 1981 because I was found to have religious activities at my relative’s home.  They said I was attending illegal religious gathering.  I was persecuted by the Chinese authorities.  I was taken to the police station in 1989 because I supported the student movement.  In 2003 because I supported Falun Gong members I was once called to the local police for investigation.  I can not enjoy freedom of religion and political opinions in China.  I worry that I would suffer endless persecution as long as I stay in China. 

That statement was provided notwithstanding the fact that the application for the visa as completed by the Appellant asked in Part C the following:

12.          Your religion (if any)

and then a box.  The box was left empty.  Although it is a matter initially for the Minister or his delegate and thereafter the Refugee Review Tribunal, it may be observed that such a statement as provided with the application could well be considered as falling short of establishing any well-founded fear of persecution. 

4                     Notwithstanding the fact that the Appellant was given notice of the hearing before the Tribunal, she failed to appear and the Tribunal proceeded to make its decision in her absence.  The Tribunal had written to the Appellant on 20 October inviting her to attend a hearing on 15 November 2005.  The Tribunal was entitled to proceed in her absence: Migration Act 1958 (Cth), s 426A. See: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs 2004 FCAFC 134 at [16]. 

THE GROUNDS OF APPEAL

5                     The Notice of Appeal as filed in this case on 8 June 2007 set forth three purported grounds of appeal namely:

1.     The Tribunal failed to refer to independent information for the consideration of my application for a protection visa.

2.     The Tribunal did not believe I am a Christian without reasonable ground, and evidence.

3.     The tribunal failed to notify me the reason or part of the reasons for affirming the decision.

6                     At the outset of these proceedings the Appellant informed the Court that she wished to raise a number of further contentions as to why the Tribunal had erred.  Those contentions, it was understood, sought to contend that:

(1)          The Tribunal’s decision was affected by bias or prejudice.

(2)          The Tribunal proceeded upon the basis of assumptions rather than evidence.

(3)          The Tribunal failed to comply with s 91R(3) of the Migration Act 1958 (Cth).

(4)          There had been a failure to comply with section 424A of the 1958 Act.

7                     The statement as read by the Appellant via her interpreter was treated as being an application to amend the Notice of Appeal. Before this Court the Appellant is unrepresented.

8                     It must be accepted that a frequent consequence of parties being unrepresented is that the Court itself must assume to some extent the burden of endeavouring to ascertain the rights of parties: see Neil v Nott (1994) 68 ALJR 509 at 510 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Even so, the role of the Court is limited. In Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 147, Beaumont, Conti and Crennan JJ observed:

[59]As noted, we were referred to Minogue [Minogue v Human Rights & Equal Opportunity Commission(1999) 84 FCR 438], where (at [28]) the Full Federal Court cited observations in Rajski v Schitec Corp Pty Ltd (CA (NSW), 16 June 1986, unreported) (‘Rajski’s Case’) by Samuels JA that —

… the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

Wherever the bounds of the duty of the Court are to be drawn, it is considered that the application to amend must be rejected. 

9                     Some of the grounds articulated at the commencement of the proceeding may in some circumstances have given rise to jurisdictional error.  The additional grounds, however, may properly be described as but a litany of complaints largely unrelated to the present proceedings.  None were particularised or elaborated upon. Some have nothing to do with the present case, such as reliance upon s 91R(3); that provision relates to a factual issue not pursued before the Tribunal. 

10                  Others of the proposed grounds, if they were to be pursued, should have been more clearly articulated.  An allegation of bias or prejudice must, of course, be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], 205 CLR 507. No particulars or further elaboration of the ground of bias or prejudice was forthcoming. 

11                  Moreover, the Notice of Appeal was filed on 21 June 2007.  It is too late to now seek to amend the notice at the hearing itself.  The only explanation provided was an assertion by the Appellant that she could now advance the claims for consideration.  The application to amend the Notice of Appeal is rejected. 

12                  None of the grounds of appeal, as set forth in the Notice of Appeal as filed, have been made out.

The first ground: Failure to refer to independent information 

13                  It may be accepted that the Tribunal may make inquiries and get information that it considers relevant.  So much is expressly provided for in s 424(1) of the 1958 Act.

14                  In the present proceedings there was no further particularisation of the “information” to which this ground referred, and no request made in the Application for Review as made to the Tribunal for further inquiries to be made.  So much may be sufficient to reject this ground. 

15                  In any event, however, it is not normally the function of an administrator to make out a case for a claimant. Procedural fairness does not require a decision-maker to make the case for an Applicant: see Luu v Renevier (1989) 91 ALR 39 at 45.  The Full Court there cited with approval the following observations of Mason J in Kioa v West (1985) 159 CLR 550 at 587:

The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter…

16                  The Tribunal is in no different position.  In Abebe v Commonwealth of Australia [1999] HCA 14, 197 CLR 510, their Honours Gummow and Hayne JJ at [187] concluded that the Refugee Review Tribunal was not in the position of a contradictor.  Their Honours held that:

It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

See also Brehoi v Attorney-General (Cth) [2000] FCA 1747 at [35] per Hely J.  The function of the Tribunal is to “respond to the case that the applicant advances”:  see SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709 at [17], 199 ALR 364 at 368, quoting Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78], 197 ALR 389 at 405 per Kirby J.

17                  The Appellant was given the opportunity to attend before the Tribunal to make out her claim.  She was given notice of the Tribunal hearing.  She failed to attend.  The first ground of  the appeal is dismissed. 

The second ground: Failure to believe

18                  The Appellant applied for a protection class XA visa.  Section 65 of the Migration Act provides that the Minister is to grant the visa “If satisfied that the prescribed criteria have been made out”.  Section 36 of the Act provide as follows:

(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:

(i)   is mentioned in paragraph (a); and

(ii) holds a protection visa.

19                 The phrases “Refugees Convention” and “Refugees Protocol” are defined in s 5.  Section 5 defines the “Refugees Convention” as meaning “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.” Article 1A(2) of the Convention defines a “refugee” as a person who:

…owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

20                  The second ground of this appeal seizes upon the finding of the Tribunal that the Appellant was not a Christian.  The Tribunal concluded:

On the evidence before me and in the absence of an opportunity to explore the detail and veracity of the applicant’s unsupported assertions, I am unable to be satisfied that the Applicant is a Christian or that she has participated in illegal religious activity. Or that she supported the student movement of Falun Gong or that she has ever been investigated or detained for the reasons that she claims.

 The Tribunal, given all of the above and based on the unsupported claims made by the Applicant, accordingly finds that it is unable to be satisfied that there is a real chance that the Applicant will be persecuted for a Convention based reason if she returns to China.  I am not able to be satisfied that the Applicant has a well founded fear of being persecuted for a convention reason if she returns to China.  It follows she is not a person to whom Australia has protection obligations under the Refugees Protocol.  Consequently, the Applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa.

This was a finding of fact open to the Tribunal to make.  It was for the Appellant to “satisfy” the Tribunal as to the claim being advanced.  She failed to do so.  In the absence of “satisfaction” a claim must be rejected:  see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF (2005) FCAFC 73 at [13], and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 at 274–5.  It was a matter for the Tribunal and not for the Federal Magistrates Court, nor this Court, to make a decision on the merits.  Appellants to this Court cannot seek to revisit the factual merits of decisions made by the Tribunal. 

21                  The Tribunal is not required to accept uncritically any evidence and all allegations made by a claimant.  The conclusion of the Tribunal that the Appellant was not a Christian however, is but part of the reasoning process of the Tribunal.  The reasons provided by the Tribunal are not to be read “over-zealously”: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 at 271–2 per Brennan CJ, Toohey, McHugh and Gummow JJ. There, their Honours observed that:

…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (citations omitted).

Read in their entirety, the reasons for the Tribunal are but a statement that it was not “satisfied” that the Appellant had made out her claim on any one of a number of bases.  The finding as to whether or not the Appellant was a Christian was but part of a much broader basis upon which her claim was rejected. 

22                  The reasons of the Tribunal start with an exposition of the statutory provisions and the definition of “refugee”.  The evidence is thereafter recounted and the Tribunal concludes with the passage set forth above.  It will be recalled that in Inglewood Olive Processes Ltd v Chief Executive Officer of Customs (2005) FCAFC 101, Kiefel, Weinberg and Edmonds JJ observed that:

[26] Where an administrative decision-maker both starts and ends their deliberations with the correct legal test, a court should not readily infer legal error as a consequence of infelicitous or loose language somewhere in between: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259 at 271.

The reasons of the Tribunal in the present proceedings, it is considered, are based in fact, were findings of fact open to it and display no looseness of language. 

23                  The Tribunal in the present proceedings was in a like position confronting the Tribunal in Nast v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208.  There, Beaumont, Merkel and Hely JJ stated:

[3] By a letter dated 6 March 2003 the [Refugee Review Tribunal] informed the first appellant that it had considered the material before it in relation to her application for a protection visa, but was unable to make a decision in the first appellant’s favour on the basis of that information alone. Accordingly, the appellant was invited to a hearing before the RRT to be held on 7 May 2003. The first appellant did not attend this hearing. Pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’) the RRT decided to make its decision on the review without taking any further action to enable the appellants to appear before it. That was a course which the RRT was entitled to adopt.

[4] In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.

[5] In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.

24                  No jurisdictional error is exposed in the reasons for the decision of the Tribunal in the present appeal.  The second ground of the appeal is also dismissed.

The third ground: Failure to notify

25                  The third ground of appeal contends that the Tribunal “Failed to notify me the reason or part of the reasons for affirming the decision.”

26                  There is no general obligation upon a decision-maker to disclose a process of reasoning and to invite further submissions.  In Hoffman-La Roche AG and Co v Secretary of State for Trade and Industry (1975) AC 295 at 369, Lord Diplock observed:

…the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: see Applicant S 214 of 2003 v Refugee Review Tribunal (2006) FCA 375 at [32], 90 ALD 632 at 641, per Edmonds J.  An appeal against this decision has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.

27                  The Appellant has had an adequate opportunity to present her case. There is no obligation to ensure that a party fully avails itself of any such opportunity.  The failure to notify her of the reasons or part of the reasons for affirming the decision was not an obligation imposed upon the Tribunal.

28                  The third ground of the appeal is also dismissed. 

ORDERS

29                  The orders of the Court are that:

1.          The appeal be dismissed.

2.          The Appellant pay the costs of the Respondent of and incidental to the hearing of this appeal.

3.          The Refugee Review Tribunal be added as Second Respondent to the proceedings.

Associate:

Dated:         27 November 2007