SZRVJ v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 857
•20 August 2013
FEDERAL COURT OF AUSTRALIA
SZRVJ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 857
Citation: SZRVJ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 857 Appeal from: SZRVJ v Minister for Immigration & Anor [2013] FCCA 259 Parties: SZRVJ v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL File number: NSD 989 of 2013 Judge: FARRELL J Date of judgment: 20 August 2013 Catchwords: MIGRATION – judicial review – Refugee Review Tribunal – Federal Circuit Court – raise new grounds of appeal on appeal – no prospects of success Legislation: Migration Act 1958 (Cth) s 65 Cases cited: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
SZRVJ v Minister for Immigration & Anor [2013] FCCA 259Date of hearing: 20 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Solicitor for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr J Pinder of Minter Ellison Solicitor for the Second Respondent: The Second Respondent submits save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 989 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRVJ
Appellant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
20 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to change the name of the first respondent to “Minister for Immigration, Multicultural Affairs and Citizenship”.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs as agreed or assessed.
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 989 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRVJ
Appellant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
20 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By notice of appeal filed on 5 June 2013, the appellant appeals from a decision of the Federal Circuit Court of Australia dated 17 May 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal dated 5 September 2012.
BACKGROUND
The appellant is a citizen of China who arrived in Australia on 26 September 2011. On 6 October 2011 she applied for a Protection (Class XA) visa. On 24 February 2012, a delegate (Delegate) of the Minister refused the application.
The appellant claims to fear harm because of her activities (as a representative of her village) protesting action by the local government from April 2006 to repossess forcibly and without compensation land claimed by her village, including her husband’s family farm land. As a result of protests at a local level and an attempt to petition relevant authorities in Beijing about it, she claims to have been beaten and detained, harassed and watched by the police, her home searched and materials confiscated. She claims that an arrest order has been made against her, and she fears arrest and detention if she returns to China.
THE TRIBUNAL’S DECISION
The Tribunal affirmed the decision of the Delegate. The Tribunal did not accept that the appellant gave truthful evidence regarding her involvement in the land repossession dispute and did not accept her evidence about involvement in the petition system or that she represented her husband’s village in petitions to the government. It considered that the evidence regarding the dispute the appellant provided at the hearing was vague, general, less than that contained in her written statement which accompanied her visa application, and inconsistent with the documents provided in support of her application (which included an Application for Determination for Land Usage Right Dispute dated 25 February 2004, a Resolution Decision to the Land Ownership Dispute dated 18 April 2006 and a Decision to Withdraw Resolution Decision to the Land Ownership Dispute dated September 2006). The Tribunal noted that the appellant failed to elaborate when pressed for more information and her answers were vague, for instance, about the petition process which was inconsistent with her involvement in that process for over a year. She was unable to recall specific dates that were referred to in the written statement which accompanied her visa application. The Tribunal noted the applicant’s inability to provide evidence (for instance, photographs or hospital records) to support her claims of being beaten in a protest when the government sent in bulldozers to the land, inconsistencies in her oral evidence, and the absence of further development of the disputed land after attempted forcible repossession by the government which the Tribunal found was implausible. The Tribunal was not convinced that if the appellant returned to China she would petition about the land dispute given the credibility of her evidence.
The Tribunal was also not satisfied that the appellant was of any interest to Chinese authorities. The Tribunal had regard to country information suggesting that citizens of China who had come to the attention of authorities would be prevented from leaving China. As the appellant had no difficulty in obtaining a passport or leaving the country, the Tribunal found that this supported the conclusion that the appellant could not have a well-founded fear of persecution if she returned to China.
PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT
The appellant’s application to the Federal Circuit Court relied upon the following grounds:
1. RRT has bias against me.
2. RRT and DIAC breached procedural fairness.
The application was dismissed. In relation to the first ground, his Honour noted that it would be an exceptional case which could succeed on an allegation of bias on the basis of a decision record alone. His Honour agreed with the Minister’s submission that there was no evidence before the Court to establish an allegation of actual or apprehend bias, noting that mere disagreement with an outcome is an insufficient to ground a claim of bias.
His Honour accepted the Minister’s submission that the Tribunal had accorded the appellant procedural fairness. This included a submission that any breach of procedural fairness by the Delegate would be “cured” by the Tribunal’s decision. His Honour held that the Tribunal’s adverse findings, including those going to the appellant’s credibility, were a matter for the Tribunal par excellence. His Honour was satisfied that the findings were open to the Tribunal on the material before it, and that no error was disclosed in its treatment of the appellant’s credibility.
THE APPEAL PROCEEDINGS
The appellant filed her notice of appeal on 5 June 2013, and sought to rely upon the following grounds:
1. The RRT made an error of the applicable law in that it considered that for it to be satisfied that the applicant had a well-founded fear of persecution required the applicant to satisfy it of lots of facts and that this was a fairly high bar.
2. RRT’s decision involve unreasonably exercise of discretion which the Circuit Court judge failed to identify.
These grounds of appeal concerning the Tribunal’s decision were not raised in the Federal Circuit Court. Accordingly, the appellant required leave to raise these grounds before this Court. The approach to be taken by this Court on appeal is summarised by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48]:
The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.
As to the first ground, having reviewed the Tribunal’s reasons, I consider that it was open to the Tribunal to makes its findings based on the evidence before it and its findings disclose no irrationality or illogicality. The Tribunal properly informed itself of the approach which it should take at [75] of its decision record. In the face of oral evidence which was vague and inconsistent with the statement provided by the appellant with her visa application and the other documents which she had supplied concerning the disputed repossession of the land, it was open to the Tribunal to doubt her truthfulness and therefore the credibility of her claims. I find no error in the approach of the Tribunal in the steps it took to satisfy itself of whether the criteria for a grant of a protection visa had been satisfied, as required by s 65 of the Migration Act 1958 (Cth).
The second ground is not particularised and its meaning is unclear. The representative for the Minister suggests that this ground might be construed as a complaint that the Tribunal fell into an error by unreasonably exercising a discretionary power. However, no discretion is particularised and none has been suggested by the appellant at the hearing. I can see no error of that type in the Tribunal’s decision.
The grounds of appeal fail to identify any appealable error in the reasons of the Court below or any jurisdictional error in the reasons of the Tribunal. Nothing was advanced orally by the appellant at the hearing to improve her position in this regard. I find that it is not in the interests of justice for leave to be granted to raise these new grounds. In any event, the grounds are bound to fail for the reasons above.
Accordingly, the appeal should be dismissed with costs. Leave is granted to the change of name of the first respondent to Minister for Immigration, Multicultural Affairs and Citizenship.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 22 August 2013
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