FEDERAL COURT OF AUSTRALIA

SZMIK v Minister for Immigration and Citizenship [2008] FCA 1726

SZMIK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1405 of 2008

COWDROY J

17 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The Applicant pay the costs of the First Respondent.

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.

REASONS FOR JUDGMENT

1                     The applicant applies to this Court for leave to appeal from the interlocutory judgment of Federal MagistrateSmithdelivered on 19 August 2008. The application before Smith FM sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 22 April 2008. The Tribunal 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 (‘the protection visa’) to the applicant.

BACKGROUND

2                     The applicant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 22 October 2007. On 29 October 2007 the applicant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused such application on 14 December 2007. On 28 December 2007 the applicant applied to the Tribunal for a review of the delegate’s decision.

3                     The applicant claimed to have well-founded fear of persecution in the PRC resulting from his practice of Falun Gong. He claimed to have practised Falun Gong since early 1999 and that he practised underground after Falun Gong was banned in July 1999. The applicant claimed that he became the organiser of a Falun Gong group.

4                     The applicant claimed that in 2006 he was arrested by the police and detained for 10 days, during which time he was tortured. He claimed that he was forced to sign a confession and pay a fine before he was released. The applicant claimed that he was again caught practising Falun Gong in 2007 and that the police consequently confiscated his business licence.

THE TRIBUNAL DECISION

5                     The Tribunal found that the applicant’s evidence demonstrated a lack of theoretical and practical knowledge of Falun Gong. The Tribunal also found that there were numerous inconsistencies and contradictions in the applicant’s evidence regarding his practice of Falun Gong. Such inconsistencies and contradictions led the Tribunal to find that the applicant was not a witness of truth and that he was ‘prepared to fabricate his claims to give himself the profile of a refugee’.

6                     The Tribunal did not accept that the applicant was a Falun Gong practitioner. The Tribunal accordingly found that there was no real basis for the applicant’s claims to fear persecution. The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967. The Tribunal accordingly affirmed the decision of the Minister’s delegate.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

7                     By application filed in the Federal Magistrates Court of Australia on 28 May 2008 and by amended application filed on 12 August 2008 the applicant sought judicial review of the Tribunal decision. The applications raised the following grounds:

1.             The Tribunal was biased against the applicant and made its decision based on ‘the officer’s assumption’.

2.             The Tribunal failed to comply with its obligations under s 424A of the Migration Act 1958 (Cth) by failing to notify the applicant in writing of its reasons for affirming the delegate’s decision.

3.             The Tribunal referred to irrelevant independent information.

4.             The Tribunal failed to consider the applicant’s claims ‘because of the limited knowledge of China’.

8                     In considering the first ground of review, Smith FM found that there was no evidence to support a claim of actual or apprehended bias by the Tribunal against the applicant.

9                     Smith FM found that as the Tribunal followed the procedure under s 424AA of the Migration Act 1958 (Cth) (‘the Act’), s 424A(2A) of the Act rendered s 424A(1) inapplicable. Further, his Honour observed that the Tribunal only relied upon information which was excluded from the obligations under s 424A(1) by s 424A(3) of the Act. Smith FM accordingly found that the second ground of review was without merit.

10                  As to the third ground of review, Smith FM found no jurisdictional error in the Tribunal’s use of independent country information. His Honour found that such information was relevant and that it was open to the Tribunal to take it into account.

11                  Smith FM observed that the fourth ground of review sought an impermissible merits review of the Tribunal’s conclusions.

12                  Smith FM found that the application did not raise an arguable case for the relief claimed. His Honour accordingly dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (‘the FMC Rules’).

APPLICATION TO THIS COURT

13                  Smith FM’s decision is interlocutory (see r 44.12(2) of the FMC Rules) and accordingly leave is required to appeal from such decision to this Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

14                  On 8 September 2008 the applicant filed in this Court an application for leave to appeal from the decision of Smith FM. In support of the application for leave to appeal the applicant filed an affidavit and a draft notice of appeal in which the applicant claims that:

1.        The Tribunal decision did not make a fair decision and such decision is affected by bias.

2.        The Federal Magistrate unfairly refused the applicant’s application on the hearing date.

3.        The Federal Magistrate did not consider the applicant’s application reasonably.

The affidavit also alleges that Smith FM did not consider the information provided by the applicant.

FINDINGS

15                  In determining whether leave should be granted, the Court is required to determine whether, in all the circumstances, the decision sought to be appealed from is attended by sufficient doubt to warrant it being reconsidered by the Full Court and secondly whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184; Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441.

16                  In respect of ground one of the draft notice of appeal the Court observes that Smith FM considered such ground in his decision. His Honour found that there was no evidence to support the allegation of bias and that he was unable to find anything in the material before the Court ‘to give any arguable substance to a ground of actual or apprehended bias or a failure by the Tribunal genuinely to consider the claims before it’.

17                  No particulars have been provided in support of the applicant’s allegation of bias. The applicant has not provided the Court with a transcript of the Tribunal proceedings. In its absence, the only evidence before the Court of the Tribunal’s conduct of the proceeding is the Tribunal hearing record and the Tribunal decision itself. The Court observes that ‘[i]t 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’: see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16]; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. The Court considers that the Tribunal decision reveals no bias against the applicant.

18                  At the hearing before the Court the applicant submitted that the manner in which the Tribunal conducted the hearing made the applicant nervous and that the Tribunal only asked the applicant questions relating to Falun Gong. The Court considers that such submissions do not constitute a claim of either apprehended or actual bias.

19                  The Court finds that the first ground of the draft notice of appeal is without merit.

20                  The second ground of the proposed appeal claims that ‘[t]he Judge refused my application on my hearing date. It is not fair’. Such ground raises no matter of substance and could not succeed.

21                  The third ground of the proposed notice of appeal claims that the Federal Magistrate unfairly refused the application.

22                  An examination of Smith FM’s reasons for judgment establishes that his Honour considered the applicant’s claims that the Tribunal had been biased against him, had breached s 424A(1) of the Act, and had failed to consider his claims. His Honour was unable to discern any jurisdictional error. Upon the Court’s reading of his Honour’s reasons and the Tribunal decision, no jurisdictional error is apparent in either. Accordingly, the Court is satisfied there is no merit in the applicant’s third ground.

23                  As to the applicant’s additional claim that Smith FM did not consider the information provided by the applicant, the Court observes that there is no evidence that his Honour ignored any information provided by the applicant.

24                  The Court is not satisfied that there is any basis to hold that the decision of Smith FM is erroneous. It follows that his Honour’s decision is not attended with sufficient doubt to warrant its reconsideration by this Court. The Court is also satisfied that no substantial injustice would result should leave be refused supposing Smith FM’s decision to be wrong.

25                  For the above reasons the Court dismisses the applicant’s application for leave to appeal.

Associate:

Dated:         17 November 2008