SZHNE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 597

FEDERAL COURT OF AUSTRALIA

SZHNE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 597 SZHNE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 335 of 2006 COWDROY J 22 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 335 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHNE

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

AND: REFUGEE REVIEW TRIBUNAL

Second Respondent JUDGE: COWDROY J

DATE OF ORDER: 22 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent in the amount of $2,500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 335 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHNE

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

AND: REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J

DATE: 22 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court delivered on 1 February 2006. In that decision, Scarlett FM dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 16 September 2005. The Tribunal's decision affirmed a decision by a delegate of the respondent ('the Minister') to refuse a protection visa to the appellant. 2 The appellant is a Chinese national. On 31 January 2005 he lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') for a protection visa. In that application, the appellant claimed to have been subjected to harassment and extortion by government officials in China. He also claimed to have been tortured by Chinese authorities because of his connection with Falun Gong. 3 On 8 April 2005, a delegate of the Minister refused the appellant's application for a protection visa. 4 On 14 May 2005, the appellant lodged an application with the Tribunal for a review of the delegate's decision. The application was acknowledged by the Tribunal by letter dated 17 May 2005. On 29 July 2005, the Tribunal sent a letter to the appellant advising that it was unable to make a decision in his favour on the basis of the material before it, and invited the appellant to appear before the Tribunal. On 15 August 2005 the Tribunal received a response from the appellant to its hearing invitation which indicated that he wished to attend a hearing. 5 On 16 September 2005 the appellant attended a hearing of the Tribunal. At that hearing the appellant provided the Tribunal with a statutory declaration dated 14 September 2006. In the statutory declaration, the appellant stated that since late 2002, under the influence of a man named Li Ming Hua, he had been involved in an illegal religious organisation called 'Shouters'. The appellant said that he had begun to study the Bible and had secretly assisted to distribute Shouters propaganda materials to villages, whilst apparently working as a self-employed salesperson. He said that in September 2003, following a secret Shouters gathering, he was detained and tortured by Chinese authorities, and was released only after bribing the authorities. The appellant said he continued secretly to assist Shouters until late 2004, when he was warned that he would face persecution again and went to Australia for protection. 6 The Tribunal's decision made on 16 September 2005 (the date of the hearing) was handed down on 11 October 2005. The Tribunal rejected the appellant's claims and affirmed the decision of the Minister's delegate not to grant the appellant a protection visa. Its reasons for decision stated: 'The applicant claimed that he practised Falun Gong during the second half of 2002. However, he did not know when the Chinese authorities banned Falun Gong. He said it "seems to be 1998 … I'm not sure … I'm … a minor figure". The applicant did not know who the founder of Falun Gong was. He did not know the main text of Falun Gong. He did not even know the number of Falun Gong exercises. Given the applicant's lack of knowledge of basic facts pertaining to Falun Gong, the Tribunal does not accept that the applicant was ever a Falun Gong practitioner or that he was involved in any Falun Gong activities. … Looking at the evidence as a whole, the Tribunal is satisfied that the applicant has fabricated the claims of being involved in Falun Gong activities, reflecting adversely on his credibility. The applicant has claimed that he was involved with a "key member of an illegal religious organisation Shouters". He claimed that government officials came to his company asking for money because they suspected that they had set up a religious sect. When the Tribunal asked the applicant about this alleged sect, the applicant was evasive and gave very vague answers. Specifically, when the Tribunal asked the applicant what kind of sect they were accused of setting up, he said "we set up a religion". The Tribunal asked the applicant what religion and he replied "Qi Gong" (a form of exercise). The applicant said he is a Christian. He said he goes to Church in Australia and when asked by the Tribunal, he said he does not know the location of the Church or the denomination. The applicant claimed that he set up a religion in China and when the Tribunal asked what that religion was, the applicant said "similar to monks". The Tribunal asked the applicant of which Church Li Ming Hua was a key member. The applicant said Li Ming Hua had thousands of followers and "well, he belongs to a kind of religion … underground Church". The applicant gave evidence that he practised his religion by "folding up" his hands and arms in the morning. The applicant said for a while, he was involved in liaison. He confirmed that he was not involved in any other religious activities, contradicting his claims in the Statutory Declaration of 14 September 2005 that "I assisted Mr Li to distribute Shouters propaganda material to secret gathering places in different villages". Given the applicant's inability to give clear details about his religion and or religious activities as well as the fact that he provided contradictory information, the Tribunal does not accept that the applicant was involved with any "key member of an illegal religious organization Shouters", or in any religious activities, or that from late 2002, he began to study the Bible, or that during the following year, he assisted in the distribution of Shouters' propaganda to secret gathering places in different villages, or that in September 2003, he participated in a secret gathering during which the police from the PSB came … In essence, the Tribunal does not accept that the applicant had suffered any of the claimed harm. Looking at the evidence as a whole, the Tribunal is satisfied that the applicant has fabricated the claims that he was involved in religious activities.' 7 On 4 November 2005 the appellant applied for judicial review of the Tribunal's decision in the Federal Magistrates Court. That application was made on the ground that the Tribunal member was biased against the appellant. On 20 December 2005, the appellant filed an amended application. That application raised five grounds: first, that the Tribunal 'had bias against me when I provided my new claims to the Trilbunal' (sic); second, that the Tribunal 'did not believe that I was involved with any "key member of an illegal religious organization Shouters" without giving reasons and evidence'; third, that the Tribunal had not considered the application in accordance with the Migration Act 1958 (Cth) ('the Migration Act'); fourth, that the Tribunal 'failed to provide evidence to support its decision'; and fifth, that the Tribunal 'misunderstood my cliams [sic] and refused my application in a very simple way, but not with correct procedure'. 8 The application was heard by Scarlett FM on 1 February 2006 and judgment dismissing the application was delivered on the same day. In his Reasons for Judgment Scarlett FM addressed each of the appellant's grounds of appeal. In respect of ground 1 his Honour noted that 'the mere fact of an adverse finding even on the basis of credibility is not sufficient to establish bad faith or bias': at [11]. His Honour said he was 'not satisfied that there is any evidence of bias at all and that claim must fail': at [13]. 9 In respect of ground 2 his Honour stated (at [15]): 'It is clear to me that the Tribunal rejected the applicant's claims on the basis that the Tribunal did not find the applicant's evidence to be credible. The Tribunal does not need to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In this case the Tribunal relied on the applicant's evidence about his claimed religious activities and his evidence about his involvement with Falun gong to form the view that he was not a credible witness. This ground clearly fails.' 10 In relation to ground 3 Scarlett FM noted that the appellant had not provided any detail of the particular section or sections of the Migration Act which had been breached or ignored by the Tribunal. Mindful that the appellant was unrepresented, his Honour also said that he was unable to identify any breach of the Migration Act. 11 In relation to ground 4 his Honour repeated that the Tribunal was not required to have rebutting evidence in order to find that a factual assertion has not been made out, and referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451: at [17]. He noted that nonetheless, the Tribunal's adverse findings on the appellant's credibility was based on its view that the appellant's evidence was inadequate. Scarlett FM was satisfied that such a conclusion was open to the Tribunal on the evidence before it: at [18]. 12 In relation to ground 5, Scarlett FM said that there was no evidence that the Tribunal had misunderstood the appellant's claims. His Honour stated: 'It appears to me from my reading of the tribunal's decision that the Tribunal member understood the applicant's claims completely. The applicant's assertion also in ground 5 that the Tribunal did not follow a correct procedure is not supported by any evidence and indeed the applicant was not able to set out any procedural error.' 13 On 20 February 2006 the appellant lodged an appeal in this Court from Scarlett FM's decision. This is the appeal which is presently before the Court. The Notice of Appeal raises four grounds (numbered 2-5), namely: '2. Refugee Review Tribunal had bias against me and did not consider my application according to the Migration ACT [sic] 1958. 3. The Tribunal refused my application because I provided new claims at my hearing, and as a matter of fact, the Tribunal should consider anything I put forward at my hearing , can not have gias [sic] against me because I put new claims at my hearing. The Tribunal's function is to consider an application separately with DIMIA, as an independent organization. 4. I clarify all my points at the hearingof [sic] the Federal Magistrates Court, but the Jude [sic] did not seem to consider my application in more details and refused my application on the hearing date. 5. I don't think my application to be reviewed at the Federal Magistrates Court was considered reasonably.' 14 The appellant has not provided any written submissions to the Court. In his oral submissions, the appellant said that he believed the Tribunal had been biased and had not properly considered the new evidence he had put before it, specifically the evidence contained in the statutory declaration of 14 September 2005. 15 It is clear that the Tribunal considered all of the evidence which was put before it. The Tribunal's reasons for decision indicate that it asked the appellant questions about his claim to be a Falun Gong practitioner as well as about his claim to be a member of the 'Shouters' religious organisation. It found that his oral evidence was vague and, in one instance, contradicted his written evidence. On this basis, the Tribunal found that the appellant was not a credible witness and concluded that his claims were fabricated. 16 This approach does not demonstrate an error of law. The Tribunal clearly considered all of the appellant's claims, but was not satisfied that he had a well-founded fear of persecution if he were to return to China. 17 As in the Federal Magistrates Court, the appellant did not identify to this Court any specific provision of the Migration Act which he claims was breached by the Tribunal in determining his application. Scarlett FM considered the appellant's application and said he was unable to identify any breach of the Migration Act which had been committed by the Tribunal. I also am unable to identify any breach. 18 Similarly there is no evidence that the Tribunal was biased against the appellant. The notice of appeal claims that the Tribunal was biased against the appellant because he brought new evidence at his hearing before the Tribunal which had not been before the Minister's delegate. The appellant said at the hearing that his claim of bias was made on the basis that his case had been dismissed without being considered. I cannot accept that this is the case. As noted above, the Tribunal considered fully both of the appellant's claims and questioned him on each. I do not consider there is evidence of bias on the face of the reasons of the Tribunal and the appellant has not pointed to any other evidence which would suggest that the Tribunal was biased. I note the comments of the Full Court of the Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44], where the Court stated: '… 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 decision under review …' 19 I am unable to identify any error of law in the decision of Scarlett FM. I reject any suggestion in grounds 4 and 5 of the notice of appeal that Scarlett FM's consideration was inadequate because his decision was delivered on the same day as the hearing. The fact that a judgment is delivered ex tempore is not of itself an appellable error. The proper question is whether the evidence and submissions of a party were appropriately considered, and not how long the evidence and submissions were under consideration. In this case, Scarlett FM clearly considered and rejected each of the submissions raised by the appellant in his application. Accordingly there is no basis for the appellant's submission. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.