SZRVJ v Minister for Immigration

[2013] FCCA 259

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRVJ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 259

Catchwords:
MIGRATION – Application for review of a decision of the Refugee Review Tribunal to refuse the grant of a Protection (Class XA) visa – no reviewable error – complementary protection criteria – no applicable criteria – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91X, 411, 422B, 424A, 425, 474(2)

Cases cited:
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507
Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Durairajasingham & Anor (1999) 168 ALR 407
Re Refugee Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609
SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495

Applicant: SZRVJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2120 of 2012

Judgment of: Judge Lloyd-Jones

Hearing date: 12 April 2013

Date of Last Submission: 12 February 2013

Delivered at: Sydney

Delivered on: 17 May 2013

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the First Respondent: Ms L. Weston of Minter Ellison

The Second Respondent: The Second Respondent filed a submitting notice of appearance

ORDERS

1. The application filed on 27 September 2012 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRVJ.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2120 of 2012

SZRVJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1203912, a decision of Tribunal Member M. Sripathy dated 5 September 2012, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the “Minister”) to refuse the applicant a Protection (Class XA) visa.

2. In accordance with the Court’s orders made on 23 October 2012, the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  This order was complied with and the volume of material provided is identified as the Court Book (“CB”), marked Exhibit A and is the only evidence before the Court.  

3. At the first court date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme.  This referral was made and written advice was provided after a conference with the allocated Panel Adviser.  The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 18 December 2012.  The applicant elected not to file an amended application or any further evidence.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representatives.  I have not made further attribution as this would make the summary unwieldy.  Where this information is extracted from the Court Book, each item contains a reference for that material.

2. The applicant is a citizen of the People’s Republic of China (“China”) and arrived in Australia on 26 September 2011 (CB 3).  On 6 October 2011 the applicant lodged an application for a Protection (Class XA) visa (CB 1 – 52) with the assistance of a registered migration agent (CB 26 – 28). 

3. The applicant provided a statement in support of her application (CB 29 - 31) which was translated by a National Accreditation Authority for Translators and Interpreters Ltd (“NAATI”) accredited interpreter (CB 32 – 34).  In this statement the following claims were raised:

   a)The applicant would face harm if she returned to China as a result of her actions opposing the repossession of her land and other local villagers’ land by the Government in April 2006;

   b)She became involved with a representative group from her local area to protest about the repossession of land;

   c)After losing compensation entitlements the protest group tried to keep watch over and protect the land;

   d)The applicant was assaulted by police on 6 August 2007 while trying to protect her land from repossession, was hurt and spent a lot of money to get medical treatment;

   e)The protest group made a number of complaints at the regional level from 2007 – 2009 which yielded no result;

   f)The protest group decided to go to the National Bureau for Letters and Calls in September 2009 to protest, but were taken away by officials and detained for a week in a hotel.  They were only allowed to leave after signing guarantee letters and paying fines;

   g)The applicant faced constant harassment from the police and had her house searched by them in February 2011.  The police confiscated some material from the applicant’s house and arrested her.  She was then deprived of sleep and questioned for a number of days before being released; and

   h)The applicant has been under constant police surveillance and has had an arrest warrant issued against her.

4. The applicant provided a number of other documents in support of her application (CB 39 – 54), including:

   a)A document in the Chinese language titled “Decision to withdraw ‘Resolution to the Land Ownership Dispute between Huajia Village, Aji Township and Gaoqiang South Village, Fanhe Township in Tieling County’” dated 7 September 2006 with an English translation;

   b)A document in the Chinese language titled “Application for Determination for Land Usage Right Dispute” dated 25 February 2004 with an English translation; and

   c)A document in the Chinese language titled “Resolution Decision (sic) to the Land Ownership Dispute between Zhujia Village, Aji Township, and Gaoqiang South Village, Fanhe Township in Tieling County” dated 18 April 2006 with an English translation.

5. The applicant was invited to an interview on 3 February 2012 with a delegate of the Minister by letter dated 9 January 2012 (CB 58), which she attended.  A delegate of the Minister, by decision dated 24 February 2012, refused the grant of a Protection (Class XA) visa to the applicant (CB 72 – 82).

6. The applicant then applied to the Tribunal for review of the decision of the Minister’s delegate on 27 March 2012 and nominated a registered migration agent of Juris Bridge Legal as her representative and authorised recipient (CB 83 – 89).  The applicant appointed another authorised recipient on 28 May 2012 (CB 113).  The applicant appeared before the Tribunal to give evidence and present arguments in support of her claim on 6 June 2012 (CB 115).

7. By decision dated 5 September 2012, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (CB 127 – 154).  The Tribunal made a number of findings and observations in respect of the applicant’s claims and evidence in its Decision Record, including:

   a)The Tribunal found the applicant did not give truthful evidence about her involvement in the land repossession dispute at [76] (CB 148);

   b)The Tribunal did not accept the applicant was involved in the claimed dispute relating to the repossession of her family’s farm land at [80] (CB 149 – 150).  The Tribunal based this finding on its view that  the applicant’s evidence at the hearing was vague, general, contained far less evidence than her written statement and her oral evidence was inconsistent with the documents provided in support of her application at [78] – [80] (CB 149 – 150);

   c)The Tribunal did not accept the applicant’s claim she was involved in protest action to guard the farm land and was beaten by police when bulldozers had been sent on to the land at [82] (CB 150), after finding that it was implausible no further development action took place after the incident, noting the applicant’s inability to provide any evidence to support the claims or remember the date.  The Tribunal also found that her oral evidence was inconsistent with her written evidence;

   d)The Tribunal did not accept the applicant was a representative of her village as she had claimed at [83] (CB 150) based on the lack of support from independent information and because the applicant’s statement lacked credibility;

   e)The Tribunal had regard to country information that indicated the complaint system described by the applicant was an avenue for redress in land disputes and that there were risks of serious harm for people who pursued such petitions in China.  However, the Tribunal did not accept the applicant had been involved in these processes, as the applicant’s evidence about her participation was vague and lacking in detail for a person who claimed to have been making these complaints regularly for over a year at [84] – [85] (CB 150 – 151);

   f)The Tribunal had regard to country information that suggested citizens of China who had come to the attention of the authorities could be prevented from leaving China at [70] – [71] (CB 147) and considered that the applicant’s ability to leave China without difficulty and obtain a passport without problem indicated the applicant was not of interest to the authorities at [86] (CB 151 – 152);

   g)Given the Tribunal’s findings in respect of the credibility of the applicant’s evidence it did not accept she would petition about the land dispute if she returned to China or that she would be arrested, detained or otherwise be of interest to the authorities at [88] (CB 152); and

   h)Accordingly, the Tribunal was not satisfied the applicant had a well-founded fear of persecution if she returned to China at [89] (CB 152).

8. The Tribunal also considered whether the application was owed any complementary protection obligations as outlined in s.36(2)(aa) of the Migration Act. However, as the Tribunal rejected substantive aspects of the applicant’s claims and evidence it concluded there were no grounds for believing the applicant would suffer significant harm in China at [90] (CB 152 – 153).

Proceedings before the Federal Circuit Court

1. The applicant applied to this Court on 27 September 2012 seeking review of the Tribunal’s decision.  The two pleaded grounds of review are:

   1.  RRT has bias against me.

   2.  RRT and DIAC breached procedural fairness.

   The applicant elected not to amend her application, file any evidence or provide the Court with written submissions.  When asked at the hearing if she had any oral submissions to make, the applicant reiterated her claim that the Tribunal was being biased.

Minister’s Submissions

1. The Minister contends that the applicant must establish jurisdictional error on the part of the Tribunal in order for relief to be granted. Absent any jurisdictional error, the Tribunal’s decision is a privative clause decision under s.474(2) of the Migration Act which is, therefore, final and conclusive pursuant to s.474(1)(a): Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The Minister argues that the grounds of the application do not demonstrate any jurisdictional error and the application should, therefore, be dismissed with costs.

Minister’s Submissions – Ground 1

1. The Minister submits the first ground of the application raises an unparticularised allegation of bias on the part of the Tribunal.  It is unclear whether the allegation is of actual bias or apprehended bias, but it is contended that neither allegation should succeed.  It is well established that an allegation of bias is a serious charge to be made against a decision maker and must be clearly made and distinctly proved: Re Refugee Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425. Further, allegations of bias must ordinarily be established by reference to the conduct of the decision maker and not just their reasons for that decision. Accordingly, it is exceptional that an allegation will succeed on the basis of a decision record alone: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 per Von Doussa J at [38]. The Minister submits that in the present case there is no evidence before the Court to support such an allegation of either actual bias or apprehended bias and Ground 1 of the applicant’s application should accordingly be dismissed.

Minister’s Submissions – Ground 2

1. In respect of the Ground 2 of the application, the Minister contends that this ground raises an unparticularised allegation that the Tribunal and the Department of Immigration and Citizenship (the “Department”) breached their procedural fairness obligations to the applicant.

2. Insofar as the allegation takes issue with the actions of the Department or the delegate of the Minister it is submitted the ground does not provide a basis for the grant of relief sought in this Court. The decision of the Minister’s delegate was a primary decision which the Tribunal had jurisdiction to review pursuant to s.411 of the Migration Act. Accordingly, the Tribunal’s decision then superseded the primary decision made by the delegate and any error in the primary decision was “cured” and immaterial: Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at [92]. The Minister submits that for completeness there is no evidence before the Court to suggest the Department denied the applicant procedural fairness, in any event.

3. The Minister submits that Ground 2 also raises an allegation the Tribunal failed to accord the applicant procedural fairness.  This complaint, however, is wholly unparticularised and it is not apparent what facet of the Tribunal’s procedural fairness obligations are alleged to have been breached.  In any event, the Minister submits that Ground 2 should not succeed based on the evidence before the Court.

4. The proceedings before the Court are a matter where s.422B of the Migration Act applies, making the matters set out in Division 4 of Part 7 an exhaustive statement of the natural justice hearing rule in relation to the matter it deals with (see SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189 at [48]; Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427 at [8] – [18]). The Minister submits that the Court should not be satisfied any obligations arising from Division 4 of Part 7 were breached.

5. The Minister submits the Tribunal complied with its obligations as prescribed by s.424A of the Migration Act. The Tribunal’s Decision Record indicated the decision was principally based on the oral and documentary evidence submitted by the applicant, together with independent country information. “Information” falling within these categories is clearly excluded from the obligation to invite the applicant’s comments or response which might otherwise arise from s.424A of the Migration Act, by reason of the exclusionary provisions in s.424A(3). To the extent the Tribunal had regard to the applicant’s oral evidence presented to the delegate, the Minister submits no obligations arose under s.424A of the Act, notwithstanding this evidence was not excluded by reason of s.424A(3)(ba). The Minister submits that the claims presented orally by the applicant to the delegate, to the extent the may have been relied upon by the Tribunal, did not of themselves undermine, reject or deny her claims. Accordingly, it is submitted that those claims did not constitute “information” for the purposes of s.424A as that term has been explained; see SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 81 ALJR 1170 at 1195 – 1196; (2007) 235 ALR 609; Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507.

6. Further, the Minister contends the Tribunal should be found to have complied with the obligations arising under s.425 of the Migration Act. The evidence in the Court Book at CB 100 – 107 shows the applicant was invited to appear before the Tribunal to give evidence and present arguments. The Minister contends the Tribunal’s account of what transpired at the hearing as contained in the Decision Record at [26] – [55] (CB 135 – 141) supports the conclusion that the applicant was afforded an opportunity to give evidence and present arguments in relation to the decision under review at the Tribunal hearing. The primary issue that arose was in relation to the credibility of the applicant. The Decision Record clearly indicated the Tribunal expressed its concerns regarding the applicant’s credibility at the hearing and provided her with an opportunity to present evidence and arguments; see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47].

7. Accordingly, the Minister submits that Ground 2 of the Application should also be dismissed.

Consideration

1. At the first court date directions hearing the applicant indicated her desire to participate in the NSW RRT Legal Advice Scheme.  This request was forwarded to the co-ordinator and a panel adviser was appointed.  The applicant attended a conference with the panel adviser and received written advice.  The applicant was also granted leave to file an amended application after the panel advice had been received, but the applicant did not avail herself of this opportunity.  An order was also made requiring the applicant to file and serve a short written outline of submissions 14 days before the date of the final hearing.  This order was not complied with.

2. When the applicant was invited to make any oral submissions, the response was limited to a statement that the applicant thought the Tribunal was biased and a request of this Court to reconsider the decision.  Nothing further was raised by the applicant.  It has long been established that bias arises from prejudgment involving a state of mind that is so committed to a conclusion that it is incapable of alteration, as was emphasised by the High Court in the matter of Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [35] and [72]. That decision also stresses that a party asserting actual bias bears a heavy onus and an allegation of bias must be distinctly made and clearly proved: Jia Legeng (supra) at [69].

3. In this case, no evidence has been tendered by the applicant to support a claim and, on a fair reading of the material before the Court, there is nothing to support the allegation.  Mere disagreement with the outcome is an insufficient basis for grounding an allegation of bias, whether actual or apprehended.  As commonly seen in this Court and specifically this jurisdiction, dissatisfaction with the outcome of a Tribunal deliberation is often attributed as bias on the part of the decision maker.  This misunderstanding seems to be perpetuated by the group of unregistered and ill-informed advisers of assisting applicants from China making Protection visa applications and subsequent review and appeal applications.

1. In respect of the pleaded grounds I am satisfied the written submissions provided to the Court by Ms Weston, appearing for the Minister, correctly and adequately respond to the two grounds raised by the applicant.

2. As the applicant is a self-represented litigant and appears to be relying on some unidentified assistance, with questionable knowledge and understanding of the immigration law, when she attempted to obtain a Protection visa and, due to failure in that application, is now seeking review I have undertaken a review of the material supplied in the Court Book and, in particular, in the Tribunal’s Decision Record.

3. In the Decision Record under the sub-heading “Findings and Reasons” the Tribunal clearly articulates the task that it is required to undertake and the approach to be adopted.  This is effectively summarised by the Tribunal in the Decision Record as follows at [75] – [76] :

   75.    The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (see Guo, referred to above; Minister for Immigration and Multicultural Affairs v Rajalingam (1993) FCR 220; Rajasundaram v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 682).  However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.  Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348)

   76.    Having considered all of the evidence before it, including the applicant’s written claims and oral evidence at hearing, the Tribunal does not accept the applicant’s claims.  Central to the applicant’s claims is her involvement in protesting against an unfair land repossession of her husband’s farm land since 2006.  For the reasons that follow, the Tribunal does not accept that the applicant has given truthful evidence about her involvement in the land repossession dispute.  Following from this finding, the Tribunal does not accept that the applicant has given truthful evidence of past persecution in China or her reasons for leaving China and does not accept that she will face persecution in future in China for this reason.

   (CB 148)

4. After reviewing the written statements and oral submissions made by the applicant the Tribunal makes the following observation at [80]:

   For the above reasons, the Tribunal finds the applicant’s oral account at hearing does not accord with her written statement, the evidence provided with the application or her claimed personal involvement in the matter.  This leads the Tribunal to doubt that the written statement is a truthful account of her claims.  The Tribunal finds that the applicant did not, at the hearing, demonstrate a level of knowledge of the land dispute, or of the documentation submitted in support of this claim or the dispute process that is consistent with her claimed involvement in this matter.  The Tribunal specifically put to her its concern about the level of knowledge she was demonstrating, and how this may suggest to the Tribunal that may not be telling the truth about her involvement.  The applicant offered no further comments.  On the evidence before it, the Tribunal does not accept that the applicant has given truthful evidence of her involvement in a land dispute involving her village and does not accept that she was involved as claimed in the dispute relating to the repossession of her family’s farm land.

   (CB 149 – 150)

5. The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims are a matter for the Tribunal par excellence: Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Durairajasingham & Anor (1999) 168 ALR 407. I am satisfied the Tribunal’s findings in this respect were open to it on rational grounds on the material before it and that no error is disclosed in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The Tribunal details at length the inconsistency, confusion and unreliability of the applicant’s evidence in a number of respects. The Tribunal’s Decision Record, which is the only evidence before the Court with reference to the conduct of the hearing, indicates the concerns the Tribunal had, in relation to aspects of the applicant’s evidence which were raised with her in the course of the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that she was not credible. As was said in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64] – [69], so long as the Tribunal’s credibility findings were open to it no error is demonstrated.

6. The findings of the Tribunal were such that it was relieved of the need to assess the applicant’s evidence against the complimentary protection criteria.  The Tribunal rejected the whole foundation of the applicant’s claim and, in doing so, necessarily rejected the only premise upon which a complementary protection claim could have been based.  Having made those findings, the Tribunal was relieved of the need to consider any other claim which rested on the same account of the applicant’s circumstances.

7. A complementary protection claim requires a real risk that the non-citizen will suffer significant harm if removed from Australia to a receiving country, whereas the Protection visa criteria is that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugee Protocol.  There is a real difference between these two criteria, however, on the general material before the Court, it is based on an allegation of the applicant’s actions opposing the reposition of her family’s land, as well as the land of other villagers, by the Chinese Government in April 2006.  Because of her initial involvement in this protest and the subsequent participation in a group complaining about the repossession the applicant claimed to face ongoing harassment from the authorities.  In respect of this claim the Tribunal made the following finding at [87]:

   The Tribunal has found that the applicant has not given truthful evidence about what happened to her in China, and does not accept her reasons for her departure from China.  The Tribunal does not accept that the applicant fled China because of her fear of persecution for reasons of her involvement in petitioning about a land dispute.  The Tribunal has not accepted that the applicant was involved as she claimed in a land dispute over her husband’s family’s land.  The Tribunal has not accepted that the applicant protested and was beaten by the authorities in relation to this in 2007.  The Tribunal has not accepted that the applicant was involved as claimed in petitioning about a land dispute at the local or national level, or that she was taken by Tieling authorities or detained in 2009 or 2011.

   (CB 152)

8. The Tribunal made findings of fact which, of their nature, excluded any complementary protection claim that might otherwise have been made.  The Tribunal came to the conclusion that the applicant was not involved in the events she claimed she had been.  Consequently, having not accepted that the applicant was involved in the alleged land dispute or that the applicant suffered past harm because of it, the Tribunal was not satisfied that she may face a real chance of persecution in the reasonably foreseeable future for reason of her involvement in petitioning these land repossession issues.

9. In these circumstances this application cannot be sustained and should be dismissed, with costs awarded to the Minister.  

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Date:  17 May 2013