SZKOX v Minister for Immigration

[2015] FCCA 789

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZKOX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 789

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal (RRT) – whether RRT “over-relied” on previous findings of differently constituted RRT – whether RRT breached rules of procedural fairness – no jurisdictional error – application dismissed.

Legislation: 

Migration Act 1958 (Cth), ss.36(2)(aa), 416
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.12(1)(c)

NANX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 734
Soboleva v Minister for Immigration and Multicultural Affairs [2001] FCA 528
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZHSE v Minister for Immigration and Multicultural Affairs [2006] FCA 1459
SZNOL v Minister for Immigration and Citizenship [2012] FCA 917 FCR 153

First Applicant: SZKOX

Second Applicant: SZVGL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2817 of 2014

Judgment of: Judge Manousaridis

Hearing date: 26 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

First applicant appeared by video link from Darwin assisted by an interpreter.
Solicitors for the Respondent:	Ms H Musgrove of Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.44.12(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The first applicant pay the first respondent’s costs which are set in the amount of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2817 of 2014

SZKOX

First Applicant

SZVGL
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicants, nationals of the Peoples Republic of China, seek judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a protection visa. 

2. The first applicant had previously applied for a protection visa.  That application was based on claims the first applicant was a Falun Gong practitioner.  A differently-constituted Tribunal (First Tribunal) did not accept those claims.  The first applicant unsuccessfully applied for judicial review of the First Tribunal’s decision.

3. The application for a protection visa which has given rise to these proceedings was made following the decision of the Full Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship.[1] The application for protection was restricted to a claim based on the complementary protection criteria provided by s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).  The second applicant, who is the de facto partner of the first applicant, applied for a protection visa as a member of the first applicant’s family unit.  In the remainder of these reasons, I will refer to the first applicant simply as “the applicant”.

   [1] (2013) 212 FCR 235

Claims made to Tribunal

1. The alleged facts on which the applicant claimed a protection visa before the Tribunal are as follows.  In 2002, before he left China, the applicant conducted a business for the storage of fruit.  Local authorities imposed exorbitant taxes on the applicant which the applicant could not pay.  The local authorities ceased supplying electricity to the applicant’s business.  Without electricity, the applicant did not have power to keep refrigerated the fruit he stored on behalf of the farmers.  The fruit therefore was ruined, and the farmers for whom the applicant stored the fruit claimed compensation from the applicant.  The applicant could not afford to pay compensation.  The farmers and other creditors threatened, harassed, and beat the applicant.  The applicant left China to avoid harm from the farmers and his other creditors.

The Tribunal’s reasons

1. The Tribunal found the applicant was not a witness of truth.  The Tribunal disbelieved the applicant’s claims about being harmed by Chinese authorities, farmers, and creditors in relation to the fruit storage business he was operating in China. The Tribunal found false the applicant’s claims about being in debt or liable to pay money to any of these people, and being harassed, threatened, and assaulted by them. 

2. The Tribunal’s adverse credit findings were based on a number of matters.

   (a)First, when asked at the First Tribunal hearing why he had left China, the applicant did not include as a reason for his leaving China his fear of harm by local government authorities, farmers, and creditors.

   (b)Second, in submissions he made for ministerial intervention after his first application for a protection visa failed, the applicant did not mention any fear of harm from various people demanding money from the applicant. 

   (c)Third, the applicant did nothing between 2008, when the applicant exhausted his rights of judicial review of the First Tribunal decision, and February 2014, when he was apprehended by officers from the Department of Immigration and Border Protection, to seek advice about his status, given his claimed fear of harm from groups in China demanding money from him.

   (d)Fourth, although he arrived in Australia in 2002 it took the applicant some 12 years to apply for protection on the ground of fear from harm from persons claiming money from him.

   (e)Fifth, in a compliance client interview held on 27 February 2014 the applicant responded “no” to a question about whether the applicant had any debts in Australia or overseas.  Further, when asked at the interview whether there were any reasons he could not return to China, the applicant did not mention any fear arising from business activities in China, but instead said that he was worried he would be persecuted because he had applied for a protection visa.

3. The Tribunal also considered whether the applicant had a valid claim under the complementary protection criteria in relation to his having claimed to be a Falun Gong practitioner.  The Tribunal considered that question, even though the applicant made no claim in his second application based on his being a Falun Gong practitioner.  The Tribunal found to be correct the First Tribunal’s findings as to the applicant’s Falun Gong practice and political activities in Australia. 

4. The Tribunal also accepted as correct, however, the First Tribunal’s findings that the applicant’s name or photograph was on the internet as a result of his activities and that there was no risk of harm to the applicant in China for that reason.  The Tribunal found there was no credible evidence as to what activities the applicant undertook about his practice of Falun Gong, and no credible evidence as to what activities he undertook on behalf of that movement or against the Chinese Government after the First Tribunal made its decision in March 2007.

5. The applicant also claimed he feared harm because he was a Christian.  The Tribunal did not accept that claim.  The Tribunal found his evidence to be vague and unconvincing, and the applicant did not raise this ground until the hearing before the Tribunal. 

6. The Tribunal summarised its overall findings on credit at paragraph 43 of its reasons as follows:

   Accordingly, the Tribunal finds there is no credible evidence as to why the applicant left China and why he does not want to return there. There is no credible evidence that anybody in China harmed the applicant and there is no credible evidence that Chinese authorities or any person or group in China wish to harm him. The applicant will not practice Falun Gong in China because he has no commitment to it. He will not undertake any political activities because he has no commitment to opposing the Chinese government. The Tribunal does not accept that the applicant holds any genuine commitment to Christianity. The risk of him suffering significant harm on the basis of minimal political and Falun Gong activities undertaken before the previous Tribunal’s decision was released in March 2007 and because he has applied for protection, for the reasons given above, is remote. Accordingly, there are not substantial grounds for believing that as a necessary and foreseeable consequence of their removal from Australia to the receiving country, China, the applicants will suffer significant harm.

Ground 1

1. The applicant, who is not legally represented, raises two grounds of review in the application filed in this Court.  The first ground is as follows: 

   The Tribunal fell in jurisdictional error by relying upon the previous decision made by the Department and affirmed by the Tribunal to refuse my claim under the Refugee Convention in the previous application, in that this approach constituted a failure to take into account a relevant consideration.

2. At the hearing before me, the only submission the applicant made in relation to this ground is that the Tribunal used the findings made by the First Tribunal to reject the applicant’s claims and that this was unfair. 

3. Taken literally, ground 1, as it is stated in the application, appears to claim that the Tribunal made an error by relying on the previous findings of the First Tribunal and, to the extent it did so, the Tribunal took into account irrelevant considerations. 

4. That a Tribunal may have regard to and accept as correct a finding made by a previous and differently constituted Tribunal does not by itself manifest any jurisdictional error. That is so because s.416 of the Act authorises the Tribunal to do so. Relevantly, s.416 provides:

   If a non-citizen who has made:

   (a)an application for review of an RRT-reviewable decision that has been determined by the Tribunal . . .

   ...

   makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

   (c)is not required to consider any information considered in the earlier application . . . ; and

   (d)may have regard to, and take to be correct, any decision that the Tribunal . . . made about or because of that information.

5. It has been held that s.416 is permissive. Thus, in SZNOL v Minister for Immigration and Citizenship, Emmett J said:[2]

   [I]n considering a further application, the tribunal is not required to consider certain information, although it is not precluded from doing so, and the tribunal may have regard to and take to be correct any decision made about or because of that information, but is not obliged to do so.

   [2] [2012] FCA 917 at [23]

6. It appears, however, that the applicant intends to raise by ground 1 the same ground that was raised in SZHSE v Minister for Immigration and Multicultural Affairs.[3]  In that case it was claimed the Tribunal made a jurisdictional error by “over relying” on findings a previously constituted Tribunal had made.  The applicant in that case relied on a passage from the judgment of Moore J in Soboleva v Minister for Immigration and Multicultural Affairs that included the following passage:[4]

   …the nature of the Tribunal’s task in reviewing a decision requires a consideration of all available evidence.  In performing that task, the Tribunal cannot, in principle, be constrained by what it had decided in earlier cases.

   [3] [2006] FCA 1459

   [4] (2001) 113 FCR 353 at [21]

7. The applicant in SZHSE also relied on a passage from the decision of Gyles J in NANX v Minister for Immigration and Multicultural and Indigenous Affairs[5] as authority for the proposition that “over reliance” on such previous findings of fact by the deciding Tribunal may very well amount to the taking into account of an irrelevant consideration.[6]

   [5] [2003] FCA 734

   [6] SZHSE v Minister for Immigration and Multicultural Affairs [2006] FCA 1459 at [13]

8. In SZHSE Nicholson J appeared to accept, although his Honour did not expressly decide, that “over reliance” by the Tribunal of findings by a differently constituted Tribunal may amount to a jurisdictional error, and that in so doing his Honour appeared to regard the passages from Soboleva and from NANX, on which the applicant in SZHSE relied, as being relevant to the construction of s.416 of the Act. The passages on which the applicant relied in SZHSE, however, did not relate to s.416 of the Act. The passage from Soboleva was directed to the submission that the Tribunal made a reviewable error because it was inconsistent with decisions the Tribunal had made on other occasions; and the passage from NANX concerned a claim that the Tribunal improperly relied on the findings of the delegate of the Minister.

9. Notwithstanding these observations, the authorities to which Nicholson J was referred to in SZHSE illustrate a point that is relevant to s.416 of the Act. Although that section is a permissive section, it is always subject to the Tribunal’s obligation to review an application before it. That means that it is not open to the Tribunal to utilise s.416 in a manner that prevents or constrains it from considering all evidence and submissions that are before it.

10. The question, therefore, is whether the Tribunal in the case before me has used s.416 in that manner. That requires me to identify the occasions on which the Tribunal had regard to any decision of the First Tribunal. A starting point, as noted by Ms Musgrove, who appeared for the Minister, is paragraph 12 of the Tribunal’s reasons for decision where the Tribunal said:

    The applicant was invited to comment on or respond to other issues in the Tribunal’s letter of 19 August 2014 and they are discussed further below. The applicant’s representative made submissions in response dated 25 August 2014 but did not make any submissions with respect to the Tribunal taking to be correct the decision of the previous Tribunal. Pursuant to s.416 of the Act, the Tribunal has regard to and takes to be correct the decision of the previous Tribunal.

11. This passage does not manifest the Tribunal’s regarding itself as being constrained by the First Tribunal’s decision. Had the Tribunal considered itself so constrained, it would not have sent a letter to the applicant inviting him to make submissions about the correctness of the First Tribunal’s findings.  The Tribunal took the First Tribunal’s decision to be correct only after it had requested the applicant to make submissions about those findings.  It was reasonably open to the Tribunal to accept the First Tribunal’s decision to be correct in circumstances where the person with the most interest in disputing its correctness, namely the applicant, “did not make any submissions with respect to the Tribunal taking to be correct the decision of the previous Tribunal”. Further, although the Tribunal took the First Tribunal’s decision to be correct, it only had regard to specific findings of the First Tribunal’s decision, and only on two occasions. These related to a claim the applicant was a Falun Gong practitioner, which the applicant made before the First Tribunal, but did not make in connection with his claim for complementary protection. 

12. The first occasion relates to the First Tribunal’s findings that, although the applicant did engage in the practise of Falun Gong in Australia and did participate in political activities in Australia, the applicant’s activities were not such as would have resulted in any risk of harm befalling the applicant.  The Tribunal took these findings to be correct.  In addition, however, the Tribunal said it disbelieved the claims the applicant made before the First Tribunal because the Tribunal was of the view the applicant was not a witness of truth.

13. The Tribunal’s regard to the First Tribunal’s findings on this occasion does not manifest any abdication by the Tribunal of the need for the Tribunal to satisfy itself in relation to the claim it considered was before it arising out of the applicant’s having previously claimed to have been a Falun Gong practitioner. The Tribunal questioned the applicant about his activities as a Falun Gong practitioner in Australia and found his evidence to be vague.  The Tribunal’s noting that it took to be correct the First Tribunal’s finding as to the applicant’s Falun Gong practise and activities in Australia does not indicate that the Tribunal adopted the First Tribunal’s findings without giving that question its own consideration.  What the Tribunal intended to indicate is that it had arrived at the same conclusion as the First Tribunal and for that reason found the First Tribunal’s findings to be correct.

14. The second occasion on which the Tribunal had regard to a specific finding of the First Tribunal is at paragraph 38 of its reasons for decision, where the Tribunal simply took note of the First Tribunal’s finding that the applicant’s practise and activities were for the sole purpose of strengthening his then refugee status claim.  The Tribunal did not, however, simply adopt that finding.  As the Tribunal notes, it sent a letter dated 19 August 2014 to the applicant in which it advised the applicant of the First Tribunal’s findings, and put to the applicant that the finding by the First Tribunal was evidence suggesting that the applicant’s commitment to Falun Gong was not genuine, and undertaking activities in support of that movement or against the Chinese Government were not genuine. The applicant’s agent did not specifically respond to that issue.  The Tribunal then found that the applicant will not undertake any political activities or Falun Gong in China because he has no commitment to those issues or that movement. 

15. This, too, does not manifest a simple adoption by the Tribunal of a finding by the First Tribunal.  That the Tribunal gave the applicant notice that it regarded the First Tribunal’s findings as evidence and offered the applicant an opportunity to make submissions about that topic indicates the Tribunal had an open mind about the question and only made a decision about that after the applicant did not provide any response about the issue.

16. In my opinion, the Tribunal did not, when considering the application that was before it, treat itself as constrained by the findings of the First Tribunal.  There was no “over reliance” by the Tribunal on the First Tribunal’s findings.  The Tribunal exercised its independent judgment when considering the application for review that was before it.  Ground 1, therefore, is not made out.

Ground 2

1. The applicant’s second ground of review is as follows:

   The Tribunal fell in jurisdictional error by negating my claims of persecution by the money lenders as I did not mentioned it in the first application of protection in 2006, in that this approach constituted the breach of the procedural fairness. 

   Particulars 

   The Tribunal disregarded the then advice to me that the money lenders’ persecution did not meet the criteria of the Refugee Convention.  In this approach, the Tribunal therefore found unsatisfactory and not credible my claims in respect of the persecution.

2. The only submission the applicant made at the hearing in relation to this ground is that all he told the Tribunal was true. 

3. Ground 2, as stated in the application, is an expression of disagreement with the Tribunal’s rejection of the explanation the applicant gave for why he did not mention in his first application for protection his fear of harm based on his business activities in China.  The explanation the applicant gave was that a migration agent who assisted him at the time told him that his fear of harm based on his business activity in China would not be within the Refugee Convention.  The Tribunal rejected that explanation for a number of reasons.

4. First, the Tribunal said it found it inconceivable that, regardless of what advice was given to the applicant, if the applicant genuinely feared harm due to his business activities in China, he would not have mentioned that fear to the First Tribunal.  Second, the Tribunal noted that at a compliance client interview on 27 February 2014, when asked whether he had any debts in Australia or overseas, he answered: “no”.  Third, at the same interview, the applicant was asked whether there were any reasons he could not return to China.  The applicant answered he was worried he would be persecuted because he had applied for a protection visa.  Fourth, the Tribunal referred to a passage from the delegate’s decision which recorded the applicant saying that:

   He cannot offer an explanation regarding the differences in his responses for coming to Australia.

1. The Tribunal considered and dealt with the applicant’s explanation for why he did not include in his first application for a protection visa a claim based on his fear of harm arising out of his business activities in China.  It was reasonably open to the Tribunal not to accept the applicant’s explanation for the reasons the Tribunal gave for not accepting the applicant’s explanation.  Ground 2 therefore also fails.

2. I propose therefore to dismiss the application and to order that the applicant pay the Minister’s costs.

RECORDED:  NOT TRANSCRIBED

1. The reasons that I have just delivered were delivered on the assumption that the hearing before me was a final hearing.  I dealt with it on that basis.  In fact, the matter had been set down as a show cause hearing.  The question arises whether my being of the view on a final basis that the application should be dismissed should result in the application being dismissed or in my making some other order.  It is clear from my reasons for judgment that this case was not one which was not reasonably arguable and that therefore had I been astute to the fact that this was intended to be a show cause hearing, I would have set the matter down for further hearing.

2. I do not see there to be any prejudice to the applicant if I were to ignore the fact that today’s hearing was intended to be a show cause hearing, however that is not to the point.  The fact is, in considering what was a show cause hearing, I asked myself the legally incorrect questions and, in my opinion, that would vitiate any orders I make.

RECORDED :  NOT TRANSCRIBED

1. After delivering the last section of these reasons where I formed the view that I was bound not to make final orders, Ms Given, for the Minister, directed my attention to the options available to the Court under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules).  That rule provides that, at the hearing of an application for an order to show cause, the Court may do one of three things.  It may dismiss the application if the Court is not satisfied the application has raised an arguable case for the relief claimed.  Secondly, if the Court is satisfied the application has raised an arguable case for the relief claimed, it can adjourn the proceedings for hearing on another day and order the respondent to show cause at a final hearing.  The third option is for the court not to make an order adjourning the proceedings, but to make final orders. 

2. In effect, what occurred today was my hearing the Minister to show cause why an order for relief should not be made. I am of the opinion that I have the power under r.44.12(1)(c) of the Rules to make the final orders I was proposing to make. As I have indicated before, I cannot see any prejudice to the applicant and there is no prejudice obviously to the Minister because the Minister has presented whatever submissions the Minister wishes to present and, indeed, in the Minister’s written submissions no mention is made of the fact that this was a show cause hearing, apart from its significance as to costs, which is a matter I will address my mind to in a moment. It is apparent that the submissions were made on the assumption that the Minister would have to argue the matter as if it were a final hearing.

3. Now I turn to costs.  Although I am firmly of the opinion that no matter of consequence turns on my having proceeded today on the assumption that it is a final hearing rather than a show cause hearing and although I am loath to cast criticism on persons outside of myself, I do not think I am making an unreasonable finding by finding that the reason I assumed this was a final hearing today was because there was no mention in the Minister’s written submissions of the fact that it was a show cause hearing.  What alerted me to the fact that it was a show cause hearing was the amount of costs the Minister sought.  The Minister sought the scale amount referable to a show cause hearing.  The amount of costs that I propose to order are the costs that are appropriate to the show cause hearing.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 1 April 2015