SZRJX v Minister for Immigration and Anor
[2014] FCCA 348
•20 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRJX v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 348 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – where respondent’s submissions filed in court out of time – whether to grant adjournment. |
| Legislation: Migration Act 1958 (Cth) ss.5E, 36(2)(aa), 420, 422B, 425 |
| Ling v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 Minster for Immigration and Citizenship v Li (2013) 87 ALJR 618 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZRJX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1083 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 20 February 2014 |
| Date of Last Submission: | 20 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondents’ costs assessed in the sum of $5,400.00.
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1083 of 2013
| SZRJX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 22 June 2011. On 4 July 2011 he applied to the Department of Immigration for a protection (Class XA) visa. On 22 September 2011 a delegate of the Minister refused to grant a protection visa, and the applicant sought review of that decision from the Refugee Review Tribunal. The Tribunal determined to affirm the delegate’s decision on 23 March 2012, but that decision was remitted to the Tribunal by this court on 5 December 2012. On 9 April 2013 the applicant appeared before the Tribunal, differently constituted, gave evidence and made arguments supporting his claim for the protection visa. On 22 April 2013 the second Tribunal determined to affirm the decision under review.
The basis of the applicant’s claim that he was a person to whom Australia owed protection obligations arose out of an incident in which he was supporting his aunt who was protesting against the unfair compensation given to her by the local authority when they compulsorily acquired her land. In the protest, the applicant says that he was hit on the head and told that rather than take the matter up with the developer, whose servants or agents had caused him the injury, he tried to take it up with the government. He was unable to find any lawyers to help him, but he approached the local government appeals office four or five times. Eventually, on 16 February 2011, the applicant and his aunt had an argument with a government officer, who called the police. They were both the subject of 15 days administrative detention for disrupting public service.
The applicant was released after signing a promise that he would not appeal any more, and he has not done so. He then left and came to Australia. Whilst in this country he has not taken any further steps in relation to the appeal, although he told the Tribunal he would do so if he returned to China. One of the consequences of the administrative detention was that he was dismissed from his employment and his doctor’s licence was cancelled. At that time he was working in a public hospital.
After his dismissal, he began to work in a private hospital and was paid more than he was in the public hospital, even though his licence had been cancelled and he only had an assistant doctor’s licence. The applicant sought to corroborate his claims by producing a document purporting to be an order requiring him to attend the PSB on 28 June 2011. He said that the developer and the PSB continue to harass his parents and wife whilst he was absent, and he believed that should he return to China, this persecution would continue.
The Tribunal questioned the applicant upon his story and pointed out to him certain inconsistencies between what he had told in previous hearings and what he was saying to the Tribunal in this one. It told the applicant that it had serious concerns about the genuineness of the alleged summons, given that the independent country information indicated that the obtaining of false documents from China was quite common. Translations of these documents are found at [CB79 and 80].
At [[34] CB157] the Tribunal states:
“Overall, I have serious doubts about the truth about the applicant’s claims. However, even if I accept that the applicant was involved in a protest against the demolition of his aunt’s house; that he subsequently lodged a written appeal with the local government office about the demolition and the fact that he was injured at the protest; and that he and his aunt were detained following an argument with an official after they had attended the office numerous times to inquire about the progress of the appeal, I do not consider that the applicant has established that he has a well-founded fear of continuing persecution now or in the reasonably foreseeable future. Nor do I accept that any future harm would be directed at him for a Convention reason.”
The Tribunal’s conclusion above was explained in the subsequent paragraphs of its decision. Most importantly, it took the view that given the time that had now expired since the incidents the applicant complained of, it did not believe that the State authorities would be in any way interested in the applicant should he return. The Tribunal also took the view that the applicant’s real complaint was against the developer and could not understand why he had not taken out proceedings against that person rather than raise the matters with the government.
Finally, the Tribunal concluded that it could not take anything from the fact that the applicant’s doctor’s licence was cancelled because it was clear from his evidence that this would not amount to any economic disadvantage. The Tribunal, as it was required to, took into account these matters for the purposes of consideration of complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth) and found that he was not likely to suffer significant harm should he be returned to China.
On 20 May 2013 the applicant applied for review of that decision from this court. At the time, he was represented by a solicitor. That solicitor has since ceased to act on his behalf. There were four grounds of application, with which I shall deal in turn. The first ground was:
“The applicant appeals against or in the alternative seeks a declaration specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 22 April 2013 on the grounds that it was not a decision under the Act.
Particulars
i. Section 5E.
ii. Transcript and evidence.
iii. To be provided in detail when the transcript becomes available in written form.”
Section 5E of the Migration Act is headed:
“Meaning of purported privative clause decision”
And states:
(1) In this Act,purported privativeclause decisionmeans a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be aprivative clause decisionif there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section,decisionincludes anything listed insubsection 474(3).
Providing a court with an extract from an Act of the Parliament, which is otherwise unexplained, cannot assist a court to be satisfied that some jurisdictional error has occurred. The transcript in evidence referred to in (ii) of the particulars has never been produced, and nor have the particulars that were intended to be provided in detail when the transcript became available. In those circumstances there is no merit whatsoever in ground 1, and it must be dismissed.
Ground 2 states [as it appears]:
“The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.
Particulars
i. The general finding of the Tribunal indicates on the balance of reasonableness that it was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented (Minister for Immigration V Jia (2001) 205 CLR 507 ). See decision generally. See especially whereby the Tribunal disregarded despite its unavoidable character, evidence of significant harm that would arise if the Applicant was forced to return to China
ii. Transcript, to be particularised when it becomes available in written form.
Iii. Evidence and submissions.”
It will be immediately noticed that the quotation from the cited decision is, not a quotation referable to apprehended bias, but to actual bias. Apprehended bias was defined by Branson J in Ling v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 at [57] as:
“whether a hypothetical fair-minded lay person, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to have given rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.” [citing Re Refugee Review Tribunal; Ex Parte H (2001 ALJR 982 at [28])].
The transcript has not been provided nor have any submissions, and I do not believe it is appropriate for the court to second-guess an applicant in relation to the submissions he might have made or his solicitor might have made for him had his solicitor attended the court. Suffice to say this, the court has read the Tribunal’s decision with care. It gives no indication of any form of bias, and as McKerracher J said in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17]:
“It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal:SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 668at[38]per von Doussa J. See alsoSBBF v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCAFC 358at[16]per Tamberlin, Mansfield and Jacobson JJ.”
The third ground states:
“The Tribunal asked itself the wrong question and thus did not arrive at an effective decision that is protected by Section 474.
Particulars
i. See the Decision generally, and the evidence and submissions.
ii. The Tribunal addressed the issue of “well founded fear of being persecuted”, and wrongly interpreted the criteria.”
To the extent that the wrong question referred to at the commencement of this ground may be something other than the definition of well-founded fear of being persecuted, the question is not identified, and the court, again, cannot hazard a guess as to what that question might have been that was wrong. The suggestion that the Court should look at the decision generally, the evidence and the submissions is a generous one, but there are no submissions, and the court has looked at the decision generally and finds nothing wrong with it.
The second particular of this ground makes a bold assertion that is not really dealt with in any submissions. The Tribunal, in its usual form, deals with the relevant law at [CB 100 to 102] including reference to Article 1 of the Convention and Article 1A(2) which defines a refugee by reference to the well-founded fear of being persecuted. The court cannot assist the applicant by making a finding in his favour on the basis of this ground.
The final ground is in the following form:
“The Tribunal breached Section 420 and made a jurisdictional error by denying the applicant procedural fairness by reason of there being a reasonable apprehension of bias
Particulars
i. See requirements as to verification and all other grounds above, and failure to give the Applicant the “benefit of the doubt”.
ii. See approach generally “to not believe” in the absence of verification, which could not be provided.
iii. See the evidence and submissions.
iv. See the transcript, to be particularised when it becomes available in written form.”
To the extent that it is being suggested that a breach of s.420 can constitute a jurisdictional error, this has been clearly negated by the decision of the High Court in Minster for Immigration and Citizenship v Li (2013) 87 ALJR 618.[1] At [12] French CJ makes reference to the decision on s. 420, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611[2] stating:
“Nevertheless, it was the broad facultative language of s 420 that supported the conclusion that it did not give rise to grounds for judicial review based on a failure to comply with its exhortations. Gleeson CJ and McHugh J described its function as “intended to be facultative, not restrictive” and “to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals”.”
[1] Li.
[2] Eshetu
His Honour’s view was supported by the majority at [52] which also made reference to Eshetu and to the judgment of Gleeson CJ and McHugh J in that case. They went on:
“Their Honours,and Gummow J,agreed with what Lindgren J had said in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs respecting the relationship between ss 420 and 476. Lindgren J found it difficult to accept that the legislature intended to provide a ground of review where a mechanism of review in its application to a particular case, although “fair” and “just”, was not “economical”, “informal” and “quick”. Gummow J endorsed Lindgren J’s observation that the difficulty, if not the practical impossibility, of proving a failure to pursue a specific objective would suggest that s 420 could not have been intended to provide a ground of review.”
Nothing that fell from the Court in Li deviated from that position.
The other matters referred to in the particulars, namely, the failure to give the applicant the benefit of the doubt, seems to be attempting to imply a cricketing analogy, or perhaps one from the criminal law, into matters coming before the Tribunal. Whilst one commonly sees indications from a Tribunal that it has given an applicant the benefit of the doubt, there is no requirement so to do, and no cases suggesting such a requirement have been referred to me. The reference probably comes from the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 (reissued December 2011) at [196]. However, the Handbook states at [204]:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”
The second particular, whilst difficult to comprehend grammatically, may, it is suggested by the respondent, be some reference to the applicant’s provision of a corroborating document. The treatment of that document by the Tribunal was a matter for it alone. Its grounds for not giving it any weight were discussed with the applicant, and it was his duty to provide the Tribunal with he best case he could, including corroborative evidence; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ.
The applicant appeared before me today. He was at something of a disadvantage because the respondent’s submissions had only just been produced to him. He was given time to have them translated to him. The court explained the nature of the case to him, and these matters were all translated by the interpreter. Given what is essentially the hopelessness of the applicant’s case, the court did not think it appropriate to adjourn the matter further and permitted the filing of the submissions by the respondent out of time. Whilst the applicant’s difficulties with comprehending the nature of “jurisdictional error” and his lack of legal representation are understood, the court is of the firm opinion that nothing that could be said on his behalf would alter the situation. The Tribunal dealt with this matter appropriately and no jurisdictional error appears on the record.
When the applicant did address me, he told me that he believed that the Tribunal had rejected his claims without giving proper reasons. He said that if he had not produced any evidence, then he could understand it. But he had produced some evidence and that was why he felt that he had been treated unfairly. Again, this is an understandable concern but it goes to the Tribunal’s own function, the function of coming to a conclusion on the basis of the evidence produced to it as to whether or not the applicant satisfies the statutory tests. Provided that it gives consideration to the evidence, then the Tribunal’s decision cannot be impugned. It did give that consideration. It explained that consideration to the applicant. It offered the applicant an opportunity to address it and, thus, all the requirements of s.425 and s.422B would appear to have been complied with. The application must be dismissed. The applicant shall pay the respondent’s costs which I assess in the sum of $5,400.00.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Date: 26 February 2014
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