FEDERAL COURT OF AUSTRALIA

MZYEH v Minister for Immigration & Citizenship [2010] FCA 524

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             Before the Court is an appeal from orders of the Federal Magistrates Court pronounced on 27 January 2010: MZYEH v Minister for Immigration & Anor [2010] FMCA 27.  The proceedings before the learned Federal Magistrate were, in turn, by way of an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The grounds of appeal before this Court are in the following terms:

1          RRT 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 refused my application on my hearing date. It is not fair.

3          I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear go back to China. Chinese government persecutes underground house church members.

2                                             In his affidavit filed 15 February 2010, the appellant deposed as follows;

My application for a protection visa was refused by DIAC and RRT.  I lodged my application to be reviewed at Federal Magistrate Court.  The judge did not consider all information provided fairly.

The judge did not consider my risk to return to China as an underground church Christian and my case was dismissed.  It is not fair.

3                                             It will be readily appreciated that, as a matter of law, whether or not the Federal Magistrate’s decision was “fair” (as that term is used in grounds 1 and 2 of the notice of appeal) is not a question which arises for determination on an appeal to this Court.  Before turning to the issues raised by the appellant’s notice of appeal, it is convenient to set out, so far as it is relevant, the factual and procedural background to the present appeal.

Factual and procedural background

4                                             The appellant is a citizen of China who arrived in Australia on 29 September 2007 as the holder of a subclass 456 Business (short stay) visa, which had been issued to him on 29 September 2007.  On 16 October 2007, he lodged an application for a protection (class XA) visa with the Department of Immigration and Citizenship (“the Department”).  On 20 January 2009, a delegate of the first respondent refused him a protection visa on the basis that he was not a person to whom the Commonwealth owed protection obligations under the Refugees Convention.

5                                             On 2 February 2009, the appellant applied to the Tribunal for review of that decision.  On 18 March, the Tribunal conducted a hearing, during which the appellant gave evidence through an interpreter.  On 2 April 2009, the Tribunal handed down its decision (dated 31 March 2009) affirming the decision to refuse the appellant a protection visa.  The Tribunal’s decision was based on, amongst other things, its doubts:

•           as to the authenticity of various documents said to evidence the appellant’s detention at the hands of the Chinese government;

•           whether the detention to which the appellant claimed to have been subject, in fact had occurred;

•           whether a video tape said by the appellant to depict a raid on his home in fact depicted such a raid; and

•           whether the appellant was actually a member of the church of which he claimed to be a member.

  6                                             Ultimately, the Tribunal’s conclusion was that;

  As the Tribunal does not accept that the applicant has been persecuted in the past, and having regard to the country information referred to… the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm capable of amounting to persecution for the purposes of s 91R(2) in the reasonably foreseeable future if he returns to his home region of China, whether for the Convention reasons of religion and/or his imputed political opinion, or for any other reason.

  …

  Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2) for a protection visa.

  …

  The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa

  
  

  7                                             As mentioned, the appellant then sought, in the Federal Magistrates Court, judicial review of the Tribunal’s decision.

  The Federal Magistrates Court

  8                                             In his application for review, filed in the Federal Magistrates Court on 30 April 2009, the appellant sought to advance these grounds;

  1          RRT did not take into account my case fairly. Chinese government did a lot of harm to me. RRT did not consider my situation in China.

  2          RRT did not use favourable cases to my application. RRT did not consider the risk for me to go back.

   

  9                                             Following a hearing on 7 December 2009, the Federal Magistrates Court, on 27 January 2010, dismissed the application.

  10                                          In relation to the first ground, the learned Federal Magistrate considered, at [9]-[12] of his reasons, that if MZYEH was alleging bias,

  There is nothing to show that the RRT acted dishonestly, or arbitrarily or capriciously.  A claim of bias cannot be substantiated.

  
  

  If the appellant meant, by ground 1, to allege a denial of procedural fairness, his Honour considered that allegation also could not be made out because (at [21]):

  A failure to comply with a requirement in Division 4 [of Part 7 of the Migration Act 1958 (Cth) (“the Act”)] has not been established.  A denial of natural justice has not been established.

  
  

  The learned Federal Magistrate therefore rejected ground 1.

  11                                          At [23] of his reasons, his Honour recorded that he understood ground 2 of the appellant’s notice of appeal:

  to mean that the RRT failed to consider and accept country information in support of his application, and failed to follow a decision in a similar case, and did not consider the risks if the applicant was to return to the Fujian Province.

  
  

  12                                          His Honour then referred, at [24]ff of his reasons, to authority for the proposition that the weight to be given to, or reliance to be placed on, “country information” was a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.  “The deciding factor in the present case”, his Honour observed, at [27] of his reasons, “is that the RRT did not find the applicant to be a credible witness”.  Accordingly, it was concluded, at [30], after referring to the Tribunal’s obligations in dealing with evidence, that;

  The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

  
  

  His Honour further considered, as he recorded at [33] of his reasons, that the findings of fact which the Tribunal had made were “open to it on the material before it and were not amenable to review”.  Ground two was therefore similarly rejected and it was said, by way of conclusion, that:

  The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

  
  

  Appeal to this Court

  13                                          I have already set out, at [1] of these reasons, the basis of MZYEH’s appeal to this Court above, at [1]. On 4 March 2010, directions were given by a Registrar of this Court for the filing and service by the appellant of a written outline of submissions in support of the appeal.  Those directions were not complied with because, as the appellant explained today, he has been unable to obtain a translation into English of submissions which he prepared in Chinese  By way of oral submissions today, the appellant through an interpreter has simply reiterated his contention that the decision of the Tribunal was unfair and that it was wrong not to have made findings of fact favourable to the appellant on the basis of the video tape to which I have already referred.  It is convenient now to address in turn each of the grounds advanced by the appellant.

  Ground 1

  14                                          Ground 1 before me mirrors what had been ground 1 before the Federal Magistrate, and I have already set out how his Honour approached that ground and his reasons for rejecting it.  An allegation of bias is not easily made out.  As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, at 532;

  The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

  
  

  To establish bias of this type, the authorities make clear, the appellant must demonstrate that a fair-minded lay observer informed as to the nature of the proceedings might entertain a reasonable apprehension that the decision-maker would not bring an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal;  Ex parte H (2001) 179 ALR 425, at 434-5.

  15                                          As the learned Federal Magistrate pointed out at [11] of his reasons, referring to SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, an allegation of bias has to be “distinctly made and clearly proven”.

  16                                          The only indications of alleged bias to which the appellant pointed were the findings which the Tribunal made in its written reasons for decision which were adverse to his credibility.  Without more, such a finding will not demonstrate prejudgment on the part of a decision-maker; see VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, per Kenny J, at 107, and the authorities there cited.  In SBBS v Minister for Immigration (2002) 194 ALR 749, to which I was referred by counsel for the respondent Minister, a Full Court of this Court (Tamberlin, Mansfield and Jacobson JJ) said, at 756, that;

  [44]… the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review: SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547; BC200202335 at [35] per Mansfied J and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668; BC200202778 at [38] per von Doussa J.

  
  

  17                                          In my view, the learned Federal Magistrate was correct to find, as he did at [11] of his reasons, that there was, in this case as in SBBS, supra, “nothing to show that the RRT member acted dishonestly or arbitrarily or capriciously”.  It is not possible to discern, in the circumstances of the present case, any basis on which the fair-minded lay observer spoken of in Ex parte H, supra, might entertain a reasonable apprehension that the Tribunal would not bring an impartial mind to the evaluation of the appellant’s claim.  The mere fact that the Tribunal ultimately made adverse findings about his credit does not, as the authorities to which I have referred emphasise, evince bias on its part.  I do not consider that any appellable error attends the learned Federal Magistrate’s dismissal of that part of the appellant’s appeal which invoked the concept of bias.

  18                                          I turn, then, to the second part of the first ground of appeal raised by the appellant, which is that the Tribunal “did not make fair decision for my application”.  As I have said, judicial review of an administrative decision is not concerned with broad notions of “fairness”, however those notions might be articulated.  Counsel for the Minister submitted, correctly in my view, that I might read this part of ground 1 in one of two ways: either as a contention that the Tribunal failed to consider the evidence which the appellant put before it, or, alternatively, as a contention that the Tribunal failed to discharge its statutory obligation to accord procedural fairness in entertaining his application.

  19                                          If the contention be read in the first way suggested by counsel for the Minister, it must fail.  It is clear, as the learned Federal Magistrate pointed out at [12] of his reasons, that the Tribunal took extensive account of the evidence put before it by the appellant, including evidence about the injuries he claimed to have suffered in detention which were recounted at [38] of the Tribunal’s decision and the alleged facts of his arrest, detention and mistreatment in April 2004 and again in May 2007.  His Honour noted the paragraphs of the Tribunal’s reasons where this evidence was discussed and the sources in which it was contained were identified.  In my view, in the light of those matters, it is not open to the appellant to contend that the Tribunal failed to consider the evidence he put before it.

  20                                          If the contention be read in the second way suggested on behalf of the Minister, it still fails.  By s 422B(1) of the Act, Division 4 of Part 7 thereof is to be “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters [the Tribual] deals with”.  Relevantly to this case, there is this requirement (in s 424AA) that, where an applicant appears before the Tribunal pursuant to an invitation issued under s 425:

  (a)        the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review

  
  

  21                                          As is clear from what is recorded in the Tribunal’s reasons for decision in the present case, s 424AA(a) was complied with.  Before me, the appellant sought only to argue again what had been put, under this head, to the learned Federal Magistrate.  Nothing has been raised on appeal to warrant the drawing of a different conclusion from that expressed by his Honour at [16]ff of his reasons where, after setting out the potentially adverse information which had been put to the appellant by the Tribunal, he continued:

  16.       The RRT explained the relevance of the information to the applicant.

  17.       The information which formed the basis of the Tribunal’s finding that the applicant’s claims to have been detained by the Chinese authorities were fraudulent, was therefore put to the applicant.

  18.       The applicant was invited to comment on the information and he was told that he could request an adjournment to confer with his representative before responding (Court Book 185, para.118). After a brief adjournment to confer with his representative, the applicant replied orally to the information put to him (Court Book 185, para.119).

  19.       It has not been shown that the applicant requested further time to respond to the information put to him. Section 424AA(b)(iv) was therefore complied with, as were the other requirements of s.424AA.

  20.       Section 424AA having been complied with, there was no obligation to comply with s.424A [s.424A(2A)].

  21.       A failure to comply with a requirement in Division 4 has not been established. A denial of natural justice had not been established.

  
  

  22                                          In my view, no error of any type suggested by ground 1 of the notice of appeal has been made out and that ground must therefore be rejected in its entirety.

  Ground 2

  23                                          Ground 2, as will be appreciated from its terms (which are set out above, at [2]), overlaps to a significant degree with ground 1.  In the written outline of submissions for the Minister the terms of grounds 2 and 3 were said to demonstrate that “the appellant continues to misunderstand the role of the Federal Magistrate in judicial review of administrative decisions”.  Reference was then made to familiar authorities as to the allocation to the executive decision-maker (either the original decision maker, or, as here, the Tribunal) and the limited function of correcting errors of law on judicial review which is reposed in the Federal Magistrates Court, and, on appeal, in this Court. 

  24                                          I was referred to what was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, at 423, and, as well, to SZVLM v Minister for Immigration and Citizenship [2008] FCA 1245, where Gordon J said, in terms which can be paraphrased to apply with some force to the present case, that:

  12        The applicant appears to misconceive the role of the Federal Magistrate.  Findings of fact, including findings of credibility, are the exclusive province of the Tribunal subject to issues of unreasonableness: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67].  As discussed earlier, the Tribunal’s conclusion was supported by sufficient evidence and did not disclose any irrationality on the part of the decision-maker. 

  13                  To the extent that the applicant is complaining that the Federal Magistrate failed to consider the merits of her claim for a protection visa, the applicant is impermissibly seeking merits review…

  
  

  25                                          As I have already said, it is not open to the appellant to contend that the Tribunal failed to consider the evidence which he adduced before it.  That contention is excluded by the Tribunal’s extensive canvassing of the relevant materials, which has been described in detail in the reasons for decision of the learned Federal Magistrate.  I am therefore compelled also to reject ground 2.

  Ground 3

  26                                          Ground 3 (set out above, at [1]), on a benevolent reading, alleges that the appellant’s application for judicial review in the Federal Magistrates Court was not treated “reasonably”.  This appears to me to travel no further than a contention that the Federal Magistrate erred in not agreeing with the case put to him by the appellant.  I do not consider that there is anything in the Federal Magistrate’s reasons for decision to suggest that he failed to set out the legal or factual bases for the decision he made, or that he failed to discharge any obligation imposed on him by law.  That is the only species of “reasonableness” which this Court is empowered to consider on an appeal from an exercise of judicial review, and so this ground, too, cannot be upheld.

  Conclusion

  27                                          The reasons of the Federal Magistrate from which this appeal was brought disclose that he engaged in the limited task of judicial review of the decision of the Tribunal in an unexceptionable fashion, and came to a conclusion that was open to him.  I do not consider that those reasons contain appellable error of the type contended for by the appellant.  I will therefore order that this appeal be dismissed, and that the appellant pay the Minister’s costs.

   

  I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

  
  
  

  Associate:

  
  

  Dated:         26 May 2010