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MIGRATION - Review of the Refugee Review Tribunal decision - affirming a delegate's refusal of protection visa - disputed findings of fact - no reviewable errors found.

SZASO v Minister for Immigration [2004] FMCA 608 (24 September 2004)

SZASO v Minister for Immigration [2004] FMCA 608 (24 September 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASO v MINISTER FOR IMMIGRATION
[2004] FMCA 608




MIGRATION - Review of the Refugee Review Tribunal decision - affirming a delegate's refusal of protection visa - disputed findings of fact - no reviewable errors found.




Migration Act 1958 (Cth), ss.36(2), 65(1), 91R, 91S, 474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1995) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

NAGQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 167

Li v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 19

Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421

Minister for Immigration & Ethnic Affairs v Guo & Anor [1997] HCA 22

Nagalingam v Minister for Immigration, Local Government and & Ethnic Affairs (1992) 38 FCR 191

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:
SZASO




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1014 of 2003




Delivered on:


24 September 2004




Delivered at:


Sydney




Hearing date:


18 August 2004




Judgment of:


Lloyd-Jones FM



REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Miss K Morgan




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The applicant pay the respondent's costs set in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1014 of 2003

SZASO



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This judgment arises from an application filed by the applicant on

5 June 2003 seeking judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 17 April 2003, affirming a decision of a delegate of the Minister on 20 June 2002 to refuse to grant the applicant a protection visa.

The history

2. The applicant is a single male from Seoul in the Republic of Korea. He was born on 22 February 1967. There are no details in his application for protection visa as to his family circumstances or their location. The applicant has completed his secondary school education, which amounts to nine years of schooling. The applicant speaks, reads and writes Korean and lists his occupation, when in Korea, as that of a builder.

3. The applicant arrived in Australia on 21 April 2002. On 4 June 2002 he lodged an application for a protection (Class XA) visa.

4. According to the information in the protection visa application, the applicant is a single man who worked continuously for twenty years (from the time of leaving secondary school until departure from Seoul) for the one construction company as a builder.

5. The applicant claims that the company for which he had worked had completed a number of major projects which were awarded to the company as a result of bribes paid to government officials. The applicant claims that, as he had been with the company for such a long time, he had slowly become involved in the managerial responsibilities of its operations. In that role he became aware of the bribery and corruption that was taking place in order to obtain these construction contracts.

6. The applicant claims that he did not endorse this type of activity and his knowledge of this corruption had made him potentially dangerous should the organisation be investigated by the authorities. Because of this knowledge he had acquired and his potential to expose the company should they be investigated, others within the organisation wanted him to leave. To enforce this, the unidentified objectors either denied him work or placed him on tasks where he was in extreme danger. He believed this was a deliberate orchestration to encourage him to leave. This ultimately occurred but he did not seek further employment within the construction industry because of the belief that all of the construction companies were interlinked and he would not receive further employment within that industry.

7. On 20 June 2002 the delegate of the Minister refused the application for a protection visa. The applicant sought a review by the Tribunal.

The Tribunal's decision and reasoning

8. On 5 March 2003 the Tribunal invited the applicant to attend a hearing in order to give evidence and present arguments in support of his claim. On 13 March 2003 the applicant returned the notice &qu;
ot;Response to Hearing Invitation from the Refugee Review Tribunal" declining the invitation to appear and consenting to the Tribunal to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

9. On the very limited information that was placed before both the delegate of the Minister and the Tribunal, together with the failure of the applicant to appear before the Tribunal to give oral evidence in support of his application, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee Convention as amended by the Refugee Protocol.

10. On 7 May 2003 the Tribunal handed down its decision which affirmed the decision of the delegate not to grant the applicant a protection (Class XA) visa.

The application for review of the Tribunal's decision

11. The applicant filed an application under the provisions of s.39B of the Judiciary Act 1903 seeking a review of the Tribunal's decision. The application contained two grounds, being:

a) the decision of the Tribunal was induced by actual bias of the officer; and

b) there was no evidence or other material to justify the making of the decision.

12. There was a directions hearing on 24 July 2003 in which the Short Minutes of Order required the applicant to serve and file an amended application by 3 September 2003. The applicant's file contains a typed sheet of paper dated 3 September 2003 which has the applicant's name, file number and application name recorded at the top of the page. It is not, however, in the form of a normal Court document. The document contained the following statement:

"The officer of RRT did not consider my application thoroughly. I could not see any evidence to support his decision. At page 5 of the decision letter, the officer said: "The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that `well-founded' or that it is for the reasons claimed", the officer is wrong, this is induced by his actual bias. The officer stated: `Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as necessary to enable the examiner to establish the relevant fact. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritical any or all of the allegations made by the applicant.' The officer did not consider my application thoroughly. He could not provide any evidence to support his claim of the decision on my application.

I believe the decision was wrong, the officer has made mistakes in the way he considered the application. I hope that my application can be re-assessed. Yours sincerely [applicant's name]"

13. The majority of the first paragraph is an extract from page 5 of the Tribunal's decision. No other material or submissions were lodged by the applicant.

The law

14. The present application is affected by the privative clause contained in s.474 of the Migration Act 1958 ("the Act"). The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms, that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

15. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

16. The applicant appeared in person at the hearing with the assistance of an interpreter. When invited to speak on his application or make any further submissions, he declined the invitation.

17. The initial application seeking judicial review is limited to the two grounds raised by the applicant, which allege:

a) the Tribunal decision was induced by actual bias; and

b) the case was not thoroughly considered by the Tribunal.

The statement dated 3 September 2003 does not contain any further grounds nor does it refer to the initial grounds.

18. No particulars are provided on either ground, nor is there evidence provided in relation to the bias ground. The applicant has not identified any error in the Tribunal's decision.

19. Counsel for the respondent filed written submissions and supplemented those submissions orally during the hearing. The thrust of those submissions was that the decision of the Tribunal was a clear finding of fact in relation to the alleged harm suffered by the applicant and that it is in these findings the applicant is seeking to review the decision. Such a review is not available in this Court: NAGQ v Minister for Immigration per Raphael FM at [12]:

"Although the application seeks relief under s.39B of the Judiciary Act 1903 (Cth) and though the applicant's submissions suggest a `Hickman' reason for review, namely bias (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; R v Murray; Ex parte Proctor (1949) 77 CLR 387), an analysis of the applicant's affidavit and his oral submission would indicate that what he is really seeking is a further merits review. He believes that the matters which he put to both the Minister's delegate and the Tribunal were not given sufficient weight and the Tribunal was wrong to make a finding about his credibility on the basis of country information only. If this was an appeal by way of re-hearing one might indicate concern at the manner by which the finding that the applicant was not arrested or spoken to by the police at the 1999 demonstration was arrived at. But this is not an appeal and the fact that another Court or Tribunal may have come to a different decision is not sufficient to suggest that the Tribunal member in this case was actuated by bias or came to conclusion with a lack of bona fides. As von Doussa J said in SCAA v MIMIA [2002] FCA 668 at [38]:

`Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.'"

20. Actual bias requires proof as to the mind of the decision-maker rather than the fair-minded observer. A Court can only find actual bias if it is satisfied that the decision-maker approached the issue with a closed mind. Evidence that a decision-maker held preliminary, alternative conclusions is insufficient. The decision-maker must be shown to be unwilling or unable to decide an issue impartially and not amenable to persuasion by the evidence that may be led.

21. In Li v Minister for Immigration & Multicultural & Indigenous Affairs at [42] Drummond J states:

"Actual bias exists where the decision-maker has prejudiced the case against the applicant, or has acted with some partisanship or hostility as to show the decision-maker has her mind made up against the applicant and was not open to persuasion in favour of the applicant."

22. In Minister for Immigration & Multicultural Affairs v Jia at [71]-[72] per Gleeson CJ and Gummow J:

"Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias. [71]

The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. 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."

23. Any allegation of bias against a decision-maker will not succeed if the only basis of the allegation is the fact that the decision made was not favourable to the party who makes the allegation. In the absence of any material or evidence that would indicate that the Tribunal member's conduct was inappropriate, this ground cannot be sustained. There is no evidence that the Tribunal acted in any way that was biased against the applicant.

Conclusion

24. The Tribunal's decision clearly sets out the legislation and the definition of refugee in that, under s.65(1) of the Act, a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa has been satisfied. Section 36(2) of the Act provides that the criteria for protection visa is that the applicant for a visa is a non citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol. Article 1A(2) of the Convention that defines a refugee is reproduced in the Tribunal's decision. The cases in which the High Court has considered this definition are also quoted. Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of applications of the Act and the regulations to particular persons and identify four key elements that require to be satisfied for a person to qualify.

25. The second key element to be established is that the applicant must fear persecution. Section 91R(1) of the Act establishes that persecution must involve "serious harm" to the applicant and systematic and discriminatory conduct. The expression "serious harm" includes for example a threat to life or liberty, significant physical harassment or ill treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a living or, where such hardship or denial threatens the applicant's capacity to subsist.

26. In this case, the decision-maker was provided with very little information. The applicant did not put any details of any harm, let alone harm amounting to persecution, that he has suffered in the past. He suggested that pressure was applied for him to leave the company in which he had worked for twenty years because he was aware of corrupt activities that the company had been involved in to procure construction contracts. He has not provided any evidence to support his claim that he was threatened by those who wish to keep him silent on those matters of corruption.

27. The third key element to be established is that the persecution which the applicant fears must be for one or more of the reasons enumerated in the convention definition - race, religion, nationality, membership of a particular social group or political opinion. The Tribunal concluded that the applicant had not established membership of any of these convention categories. The highest standard in regard to these key elements that the applicant could claim, was that he had been forced out of a particular building group. The Tribunal, however, found, that he had not been dismissed from that organisation nor had he been threatened by members or associates of that organisation. The Tribunal points out in its findings that it is not required to accept any and all of the allegations made by an applicant and points to the authority in Minister for Immigration & Ethnic Affairs v Guo & Anor at [596], Nagalingam v Minister for Immigration, Local Government and & Ethnic Affairs, Prasad v Minister for Immigration & Ethnic Affairs at [169-70].

28. It is clear from the decision of the Tribunal, that the Tribunal made clear findings of fact in relation to alleged harm suffered by the applicant and it is these findings that the applicant is seeking to review. In so far as the applicant seeks merit review, merit review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. As the applicant in these proceedings was representing himself, I should not limit any consideration to the arguments put forward by the applicant. Where the applicant is self represented, the Court must independently consider whether there is any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Anor.

29. As the grounds in the application are general and without any particularisation, I have been unable to identify any arguable case.

30. No jurisdictional error has been committed by the Tribunal and the applicant's claim should be dismissed.

31. I am satisfied that an order for costs should be made in the circumstances of this matter. I order the applicant pay the Minister's costs and disbursements of and incidental to the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 24 September 2004
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