SZRKI v Minister for Immigration

[2015] FCCA 3013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRKI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3013

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – no arguable case for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Jia Legeng, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328

Applicant: SZRKI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1244 of 2014

Judgment of: Judge Nicholls

Hearing date: 20 March 2015

Date of Last Submission: 20 March 2015

Delivered at: Sydney

Delivered on: 20 March 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Mr M Weise of Clayton Utz

ORDERS

1. The application made on 9 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1244 of 2014

SZRKI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 April 2014 which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

Background

1. The Minister has filed a bundle of relevant documents (“the Court Book” – “CB”) which was in evidence before the Court. The following background can be ascertained from those documents.

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 18 August 2005 on a visitor visa (CB 1 to CB 5). She applied for a protection visa on 15 March 2011 (CB 1 to CB 33). Documents were provided by the applicant in support of her application (CB 34 to CB 40).

3. The applicant’s claims to protection were that she feared that if she returned to China “she will be arrested by the Chinese authorities” as she has “followed the Christian religion since she was a child” (CB 73), has previously been detained by the authorities, and had distributed religious brochures to her friend, which resulted in the authorities searching her friend’s house. The applicant feared arrest and homelessness if she returned to China.

4. The applicant was represented by a registered migration agent (CB 52 to CB 55). The delegate interviewed the applicant on 23 June 2011. The delegate subsequently refused the grant of the visa on 30 June 2011 (CB 43 to CB 87). Essentially, the delegate found that “her fear of being persecuted for a Refugees Convention reason in [China] [was] not well founded” (CB 74). I note that that decision predated the introduction of the complementary protection criterion in the Act.

The Tribunal

1. The applicant applied for review to the Tribunal on 18 July 2014 (CB 88 to CB 91). She attended a hearing before the Tribunal on 10 October 2011. The Tribunal (as differently constituted) affirmed the decision of the delegate to refuse the grant of the protection visa to the applicant (CB 103 to CB 187). Essentially, the Tribunal (as differently constituted) was not satisfied, having regard to her evidence as a whole, and looking to the reasonably foreseeable future, that the “applicant had a well-founded fear of persecution in China on a Convention-related ground” (CB 186).

2. The Federal Magistrates Court, as it then was, remitted the application for review to the Tribunal for reconsideration on 3 December 2012. The applicant attended a hearing before the Tribunal on 18 December 2013 in Sydney conducted by video conference (CB 218 to CB 219) (the Tribunal whose decision is currently under review). The Tribunal’s account of the hearing is set out in its decision record ([20] – [98] at CB 225 to CB 242).

3. The applicant gave evidence of her religious activities in China. The Tribunal had concerns relating to the credibility of the applicant’s claims, and evidence, which led it to reject key elements of the applicant’s claims.

4. The Tribunal noted that there were several matters which reflected adversely on the applicant’s credibility. Variously, these were that she had fabricated aspects of her claims, she had made new claims at the hearing and that there were internal inconsistencies in her evidence and inconsistencies with available country information ([28] at CB 227 to CB 228).

5. The Tribunal put to the applicant concerns it had as to inconsistencies in her evidence about the explanation for the delay in applying for a protection visa. The applicant did not apply for the protection visa until some five and a half years after first arriving in Australia. The relevance of that delay was that her claims to protection arose from, and were related to, events that she said had occurred in China prior to her coming to Australia. The Tribunal found that the applicant had provided two different reasons, at different times, for her delay in applying for a protection visa, and that the failure to apply at an earlier time “indicated that she was not fearful of returning to China and affects the overall credibility of her account” ([25] at CB 227).

6. At the hearing the applicant claimed that her husband was arrested at Christmas 2012 ([22] at CB 226).  The Tribunal put to the applicant its concerns that her husband could be missing for a year and no one had made any inquiries as to his location. The Tribunal found that this claim was fabricated, as it was “vague and lacking in detail” and was “internally inconsistent” ([42] at CB 229). It found that it reflected “badly” on her overall credibility ([44] at CB 229).

7. The Tribunal found the applicant’s evidence regarding her church attendance in Australia “very evasive” ([45] at CB 229 to CB 230). The applicant notified the Tribunal in January 2013 of her new residential address in Sydney. The applicant gave evidence that she frequently travelled between her respective daughters’ homes in Melbourne and Sydney ([45] at CB 229). The applicant claimed that she was familiar with Melbourne, and “seldom” went to church in Sydney as she did not know her way around, as she only stayed in Sydney for short periods ([45] at CB 229 to CB 230).

8. The Tribunal found the applicant was evasive in providing details as to “where she was living and at what time”, but accepted that she attended church in Melbourne ([45] at CB 230). The Tribunal was of the view that the applicant wanted to “give the impression she was living mostly in Melbourne because she had not attended church since she moved to Sydney, over 12 months ago” ([45] at CB 229 to CB 230). The Tribunal found the applicant’s attempted explanation for this to be evasive and not genuine ([46] at CB 230). Ultimately, the Tribunal found that she had not attended church whilst in Sydney and that this cast doubt on her “commitment to following the Christian Religion” ([45] at CB 229 to [46] at CB 230).

9. The Tribunal did not accept the applicant’s claim that she had paid a large amount of money for her passport and visa due to her Christian activities, and her arrest, or that she encountered problems with the authorities at the airport. The Tribunal rejected her claims in this regard due to inconsistencies in her evidence ([47] - [48] at CB 230).

10. The Tribunal variously found that she had not been involved in evangelising activities in the past or would be in the future ([53] at CB 231 to CB 232), that she had not attended an underground church service on 30 April 2004 as it was “implausible” ([60] at CB 232 to CB 233), or that she was arrested, interrogated and had to report to the authorities monthly ([60] at CB 232 to CB 233). The Tribunal also did not accept that members of the applicant’s underground church service were arrested on 30 April 2004 as claimed.

11. Further, the Tribunal did not accept that her departure from China was in any sense “unauthorised” or that it had any claimed consequence on her family ([62] at CB 2343). The Tribunal did not accept that the applicant had sent religious texts to a church elder, Sister Lin, from Australia ([68] at CB 234) and found this to be another “instance where the applicant seemed to be making up answers as she went along” ([67] at CB 233 to CB 234).

12. Despite its concerns, the Tribunal accepted that the applicant attended an underground Church in China ([59] at CB 232). Having regard to country information before it, and her religious practice in Sydney and in China, the Tribunal found that the applicant would, on return to China, at most, occasionally attend “small gatherings” ([71] at CB 234).

13. The Tribunal considered country information pertaining to the risk of harm faced by a Christian person in China, and in the Fujian province ([72] – [85] at CB 234 to CB 240), to find that there was no relevant risk of harm to the applicant if she were to return to China ([86] – [87] at CB 240).

14. The Tribunal considered the applicant’s claims under the complementary protection criterion (s.36(2)(aa) of the Act) and was not satisfied that the applicant was a person in respect of whom Australia has protection obligations ([96] at CB 242) in relation to that criterion and, indeed, for the purposes of the Refugee Convention criterion.

The Ground of the Application to the Court

1. The application to the Court was in the following grounds:

   “1. RRT has unfair presumption when it comes to where I live.

   2. RRT has bias from beginning and my credibility was denied.

   3. RRT says I was trying to give the impression I was living mostly in Melbourne. It’s true. AND It’s not relevant to my claims.”

The Issue

1. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

2. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Before the Court

1. At the first Court date in this matter the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. The application before the Court at that time was expressed in general terms and lacked particularity.

2. I made orders giving the applicant the opportunity to file an amended application and any evidence by way of affidavit. I set the matter down for mention on 8 October 2014 at 9.30am. The Minister made clear that if the application remained without amendment, or in circumstances where any amended application did not raise an arguable case for the relief sought the Minister would press for an immediate hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) (“show cause hearing”). Nothing further has been filed by the applicant.

3. At the directions listing on 8 October 2014, the Minister pressed for a show cause hearing pursuant to r.44.12 of the FCC Rules. I understood the Minister’s position to be that the grounds did not raise an arguable case for the relief sought. I agreed with the Minister that the matter should proceed to a hearing pursuant to r. 44.12 of the FCC Rules. However, I gave the applicant further time to seek legal assistance, and to properly prepare for her case.

4. The applicant confirmed to the Court today that she did not seek any legal advice because she had insufficient funds.  I note that, in matters of this type, there is no entitlement to legal advice or representation (Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702). Nonetheless, it is, and was, important that the applicant be given the opportunity to seek such advice.

5. At the hearing before the Court, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mr M Wiese appeared for the Minister. The Minister has filed written submissions to which I have had regard.  Nothing further has been filed by the applicant. She confirmed to the Court today that there was nothing further, in terms of documents, that she wished to put before the Court.

6. It is the case that, at a hearing of this type, that the applicant is confined to the grounds of the application (r.44.12 of the FCC Rules). I am satisfied that the applicant has been given a reasonable opportunity to amend her application.

7. Before the Court today, the applicant asked the Court to give her a fair judgment. To the extent that this may be understood, the applicant sought that the Court grant her a protection visa. That is, to make a fair judgment in relation to her claims for protection. As I explained to the applicant, this Court has no power to do so. Finally, the applicant repeated what is set out at ground two of the application. That is, that the Tribunal had bias against her. I will deal with that assertion below.

Consideration

1. Ground one of the application appears to complain about the Tribunal’s finding that the applicant wanted to give the impression to the Tribunal that she lived mostly in Melbourne, even though she had moved to Sydney over 12 months earlier ([45] and [46] at CB 229 to CB 230).  The Tribunal found that the applicant wanted to give that impression for the purpose of being able to say that she had attended church regularly while in Australia, in circumstances where she was only able to name a church in Melbourne, which she had claimed to have attended, and was unable to name any church in Sydney, where the Tribunal found that she had been living for the last 12 months.

2. At best, I understood the reference in the ground to an “unfair presumption” to be an attempt by the applicant to challenge the Tribunal’s finding of fact in this regard.  However, as the Minister, in my view, correctly submits, in the circumstances there is no evidence of any such presumption here.  Rather, on the evidence available to the Court, the Tribunal engaged in a process of evaluation of the evidence before it regarding the applicant’s place of residence. 

3. The Tribunal noted an inconsistency, that is, as at December 2013, between the applicant’s oral evidence and a notification that she had provided to the Tribunal some time earlier that she had moved to Sydney from Melbourne. ([45] at CB 229 to CB 230).

4. The Tribunal found her evidence as to this to be evasive and rejected her explanation.  The Tribunal’s finding, on what is before the Court, was reasonably open to it to make on what was before it.

5. I agree with the Minister’s submission that the weight to be given to evidence before the Tribunal is for the Tribunal to decide in the circumstances. Whether the Tribunal accepts or rejects the evidence before it is not a decision that is amenable to review by this Court in circumstances where the resulting findings of fact were reasonably open to the Tribunal to make.

6. In relation to the applicant’s reported oral evidence to the Tribunal, despite the opportunity provided to her, the applicant has not provided any evidence to the Court to challenge the Tribunal’s account of what it said she said to it at the hearing, such as a transcript of the hearing.  In all, no arguable case arises as a result of ground one. 

7. Ground two, as the applicant repeated before the Court today, alleges bias on the part of the Tribunal.  At best, this is said to be because the Tribunal took an adverse view of the applicant’s credibility “from the beginning”. 

8. The test for bias is well settled (Jia Legeng, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 (“Jia Legeng”), VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425(“Ex parte H”)).

9. The Minister, in submissions, emphasised that ground one, at best, is an allegation of actual bias. I agree with the Minister.  In any event, even if the applicant had sought to raise any allegation of any apprehension of bias, the relevant test is also well-settled. That is whether a well-informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the proceedings (Ex parte H at [27] – [28].

10. It is the case that an allegation of bias is a very serious allegation to make.  It must be said that unlike many other allegations of error on the part of a Tribunal member, bias, at its core, seeks to impugn the very integrity of that Tribunal member.  For this reason, such allegations of bias must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]).

11. In the current case, it appears that the basis for the allegation is that the Tribunal found adversely to the applicant’s credit and was said to have done so “from the beginning”.  Whether that be from the beginning of the hearing, or at some earlier point, has not been explained.  In any event, there is no evidence now from the applicant or, indeed, otherwise on the evidence before the Court, that the Tribunal brought a closed mind to the applicant’s claims, or the assessment of her evidence and credibility at any time. 

12. The adverse credibility findings, expressed by the Tribunal in the decision record, do not provide any basis to establish a claim for bias or the apprehension of bias.  The Tribunal gave detailed and cogent reasons based on the evidence before it for its findings.  I note, in this regard, the Minister’s reliance on what Justice Allsop, as he then was, said in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [20]:

    “At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.”

1. At its highest, and in the absence of any evidence, the applicant’s complaint that the Tribunal had a closed mind from the beginning, can only be seen as an expression of grievance, by the applicant, that the Tribunal simply did not believe central and key parts of her evidence. 

2. The Tribunal wrote a letter to the applicant inviting her to attend a hearing before it.  In that letter (CB 27), the Tribunal told the applicant that it could not reach the requisite level of satisfaction such that the visa must be granted on the material that had been put before it.

3. In the circumstances of this case, it cannot be said that this forms any basis to argue that the Tribunal had brought a closed-mind to the proceedings, or that it was biased against the applicant from the beginning. The Tribunal was, on the evidence, properly acting in compliance with its relevant statutory obligation pursuant to s.425 of the Act.

4. There is no prejudgment or bias exhibited in the Tribunal looking at the material that had been provided, and forming the view that the requisite level of satisfaction could not be reached.  In such circumstances, the Tribunal then proceeded to invite the applicant to a hearing for the purposes of giving her evidence and making her arguments, with a view to ascertaining whether the Tribunal could, in fact, reach such a requisite level of satisfaction.  In all, ground two does not raise any arguable case for the relief that the applicant seeks.

5. Ground three also seeks to complain about the Tribunal’s approach to the matter of the applicant’s city of residence during the twelve month period prior to the making of its decision.  For the reasons that I have already set out in relation to ground one, ground three also does not raise an arguable case for the relief that applicant seeks in that regard.

6. An additional element may arise in ground three. This could be that the applicant seeks to assert that the Tribunal took into account an irrelevant consideration in its consideration of the question of where the applicant was living during that period.  However, in my view, it is clear, on the evidence, that the applicant’s city of residence was relevant to the question of assessing the applicant’s claim of continuous attendance at church after her arrival in Australia. Therefore, no arguable case arises in relation to that complaint.

Conclusion

1. In all, therefore, none of the grounds of the application raise an arguable case for the relief that the applicant seeks. There is nothing further in the evidence before the Court that would cause the Court to waive the application of rule 44.13(1) of the FCC Rules. Therefore, for, the reasons that I have just given, it is appropriate that the application to the Court be dismissed pursuant to r.44.12(1)(a) of the FCC Rules.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  9 November 2015