SZROW v Minister for Immigration and Citizenship

[2013] FCA 487

FEDERAL COURT OF AUSTRALIA

SZROW v Minister for Immigration and Citizenship [2013] FCA 487 

Citation:		SZROW v Minister for Immigration and Citizenship [2013] FCA 487
Appeal from:		SZROW v Minister for Immigration & Anor [2013] FMCA 219
Parties:		SZROW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 544 of 2013
Judge:		BARKER J
Date of judgment:		21 May 2013
Catchwords:		MIGRATION – appellant claimed well-founded fear of persecution on account of her Christian religion in China – whether Tribunal failed to consider appellant’s evidence – whether bias on part of Tribunal
Legislation:		Migration Act 1958 (Cth) s 36(2)(aa), s 474(1)(a), s 474(2)
Cases cited:		Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZROW v Minister for Immigration & Anor [2013] FMCA 219
Date of hearing:	21 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms S Given
Solicitor for the First Respondent:	Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 544 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZROW
appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	21 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal to be taxed, if not agreed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 544 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZROW
appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BARKER J
DATE:	21 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

OVERVIEW

1. The appellant appeals from the whole decision of the Federal Magistrate (as his Honour then was) delivered on 13 March 2013 following a hearing on that day: SZROW v Minister for Immigration & Anor [2013] FMCA 219. The Federal Magistrates Court (now the Federal Circuit Court) reviewed a decision of the second respondent (Tribunal) dated 30 May 2012 which had earlier affirmed a decision of the delegate for the first respondent (Minister) refusing a Protection (Class XA) visa.

   APPLICATION FOR A PROTECTION VISA

2. The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia as the holder of a Student (Class TU Subclass 571) visa on 23 December 2007.  A subsequent student visa was cancelled on 9 May 2009 after which she remained in Australia unlawfully.

3. On 8 August 2011, the appellant lodged an application for a Protection (Class XA) visa.  In a statement provided with the application the appellant claimed that her mother was persecuted in China because she attended and organised an underground Church.

4. The appellant claimed that she was a Christian too and that the authorities had issued a summons after they discovered she sent Christian materials to her mother.

5. The delegate refused the application, essentially because she was not considered to be a Christian.

   REVIEW APPLICATION IN THE REFUGEE REVIEW TRIBUNAL

6. The appellant then sought review of the delegate’s decision in the Tribunal.

7. On 30 May 2012, the Tribunal affirmed the decision not to grant the appellant a protection visa.  The following findings and observations were made by the Tribunal in reaching that decision:

   ·The Tribunal stated it had “serious concerns” about the appellant’s claim to be a member of the local church, given that she did not specifically claim to be a member until after the delegate’s interview.

   ·The Tribunal also found that although the appellant demonstrated knowledge of local church beliefs and practices at the hearing, she had not done so at the delegate’s interview.

   ·It further found that not all of the appellant’s responses accorded with the available information about the local church.

   ·The Tribunal concluded that the appellant’s knowledge was obtained in Australia.

   ·The Tribunal noted that a letter submitted indicated that the appellant began attending gatherings in Australia two weeks before 8 October 2011. It considered her claim that she had attended earlier gatherings, but found the evidence vague and did not accept this was so.

   ·The Tribunal also stated it had concerns about the appellant’s claims concerning her mother’s arrests.  In light of identified inconsistencies, the Tribunal specifically did not accept that her mother was arrested in 2005 or 2011.

   ·The Tribunal found that it was not credible that the appellant would have sent Christian materials to her mother from Australia in 2011 when she claimed she did, if her mother had been previously arrested twice on account of her underground Christian activities and was of interest to the authorities.

   ·The Tribunal also regarded the appellant’s delay in lodging an application for protection.

8. As a result, the Tribunal found that the appellant was not a credible witness and did not accept there was a real chance she would be persecuted by reason of “her real or perceived religious beliefs” in China.

9. The Tribunal also considered whether the appellant met the alternative criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).  However, in light of the factual findings outlined above, and based on the information before it, the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to China, there was a real risk that she would suffer serious harm.

   APPLICATION FOR JUDICIAL REVIEW

10. The appellant then applied to the Federal Magistrates Court for review of the Tribunal’s decision, raising the following three grounds of judicial review:

    1. I provided an important letter from the Local Church in China to support my claim that I am a Local Church member since I was in China. However, the RRT places no weight on the letter only because it is without dates. (RRT decision record para 87). RRT didn’t consider my evidence sufficiently and held prejudice against me as RRT didn’t properly examine the letter. The intrinsic value of the contents of this letter should not be ignore simply because of its omission of the dates. The letter is important and its evidentiary value of the letter should not be ignored due to the technique omission of dates. The mind of the RRT is questionable as it failed to consider the apparent contents of the letter. RRT failed to explain why it is ‘general information’ and why the ‘general information’ should not be weighted accordingly.

    2. The RRT said it did not believe that I sent the Christian material back to my mother in China because RRT considers that it would put my mother at risk. Therefore, RRT didn’t accept that my mother was arrested and detained in 2011. (RRT decision record Para 91).  RRT failed to raise the doubts to me before its decision and didn’t give me chance to prepare the relevant evidence to prove that I did send the Christian materials to my mother. If I was asked about this question, I would have prepared the proof of the fact that I sent the materials. This evidence would help RRT to remove its concerns on this issue. However, RRT didn’t give me this chance. So it would be unfair to me.

    3. The RRT didn’t consider the risk that I might be persecuted if I were to return to China. RRT therefore breached its obligation to consider the alternative criterion of Migration Act. There was no reasoning or evidence that RRT has considered the alternative criterion other than the Conventional definition of refugee. Therefore, the risk of that I might be suffer a certain form of harm if I were return to China was not considered.

11. The first ground centred on the Tribunal’s treatment of the letter purportedly from the local church which the appellant provided to the Department of Immigration and Citizenship and to which the Tribunal had had regard.  The Tribunal had noted that there was no indication that it was from the local (as opposed to a state sanctioned) church. It also had noted that the letter provided only general information without dates. For these reasons, the Tribunal “placed no weight on this letter as evidence that she was a Local Church member in China”.

12. His Honour in the Court below noted that the Tribunal had not said the document failed some formal test, but that the absence of dates in it did not assist it to be satisfied that the appellant had the claimed connection with the church.

13. The second ground of review referred to the appellant’s claims that she had sent materials to her mother in China in 2011, and that her mother was arrested and detained in 2011, and complained that the Tribunal did not raise its doubts with the appellant.  His Honour found that this ground was without basis as the Tribunal had in fact done so at [60] of its findings and reasons.

14. The third ground of review contended that the Tribunal did not consider the risk that the appellant would be persecuted if she returned to China, and therefore breached its obligation to consider the “alternative criterion” in the Act. His Honour considered the brevity of the Tribunal’s finding in relation to the complementary protection criterion. His Honour noted that it would be helpful if the Tribunal’s findings were more expansive in respect of the criterion, but found there was no error in the Tribunal’s decision.

15. The application was therefore dismissed.

    APPEAL TO THIS COURT

16. By a notice of appeal filed on 28 March 2013, the appellant appeals from the whole judgment of the Federal Magistrates Court and states the following grounds:

    1.The Refugee Review Tribunal (RRT) made an error of law in my case.  I am under the serious risk of persecution which was undervalued by the RRT.

    2.The FMC did not consider my situation.  Once I back to China I will experience fear and threat.

17. In her accompanying affidavit she develops the grounds of appeal as follows:

    1. My application for a protection visa was refused by DIAC and RRT. I lodged my application to be reviewed at Federal Magistrate Court. The judge did not consider all information provided fairly.

    2. RRT has bias against me and did not make fair decision for my application.  Because RRT didn’t consider my evidence.

    3. The protection visa I applied to the Department was refused. This result was affirmed by the Refugee Review Tribunal (RRT). I lodged application to Federal Magistrate Court (FMC) for justice. My case was dismissed.

    4. I am a Christian.

18. The Minister submits that overall these complaints do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal and invite a merits review by this Court, an exercise which the Court cannot undertake: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

19. To the extent the appellant seeks to re-agitate ground one from the Court below, and allege that the Tribunal failed to consider her evidence, the Minister contends it is well established that the weight to be accorded to evidence is a matter for the Tribunal, par excellence, with which the Court cannot interfere: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (SZNPG) at [24] (North and Lander JJ) and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS) at [33].

20. The Minister notes the appellant submitted in the Court below that the “intrinsic value” of the contents of the letter should not have been ignored. To this extent, the Minister accepts the ground might be construed as a complaint comparable to that considered by the High Court in SZJSS, or an allegation that the reasoning was illogical in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.

21. However, the Minister observes that in SZJSS the High Court found that the question whether documents were “highly supportive” (as contended), or otherwise, was a question upon which “reasonable minds might come to different conclusions” (at [35]). As such, no jurisdictional error of any variety was found. Similarly, in the present case the Minister submits that the question of whether the letter had “intrinsic value” was a matter on which reasonable minds might differ and no jurisdictional error is indicated.

22. The Minister submits the appellant also makes a bare assertion that the Tribunal’s decision is affected by bias and that it is well established that an allegation of bias is a serious allegation that must be clearly made and distinctly proved; and that apprehended bias on the part of an administrative decision-maker will only be found to exist if a fair-minded and properly informed lay observer might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]-[28]. The Minister adds that ordinarily bias must be established by reference to the conduct of the relevant decision-maker, apart from the decision-maker’s expression of the decision-maker’s reasons: SZNPG at [18] (North and Lander JJ).

23. In the absence of any further particulars, the Minister submits that the grounds of appeal are incapable of further response; otherwise, there is no jurisdictional error extant on the part of the Tribunal or error of law by the Court below. As a result the Tribunal’s decision is a privative clause decision under s 474(2) of the Act and final and conclusive pursuant to s 474(1)(a): Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

24. At the hearing the appellant confirmed the complaints made but did not further particularise them.

25. For the reasons advanced in the Minister’s submissions laid out above, no error is disclosed in the judgment of the Court below and the appeal should be dismissed.

26. The difficulty for the appellant is that the Tribunal considered all the evidence relied upon by the appellant that she said supported her claim to be, like her mother, an underground Christian in China, but was not persuaded that she was.  The Federal Magistrate rightly observed the findings of fact made by the Tribunal in coming to a conclusion that the appellant was not a Christian in China as claimed do not reveal any jurisdictional error in decision‑making.  These were findings open to the Tribunal and are not apt to be disturbed on appeal.

    CONCLUSION AND ORDERS

27. The appeal should be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:        22 May 2013