SZRXP v Minister for Immigration

[2013] FCCA 724

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRXP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 724

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65, 424AA

Cases Cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZRXP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2229 of 2012

Judgment of: Judge Emmett

Hearing date: 4 July 2013

Date of Last Submission: 4 July 2013

Delivered at: Sydney

Delivered on: 4 July 2013

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Michelle Stone, DLA Piper Australia

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY

SYG 2229 of 2012

SZRXP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 28 September 2012 and handed down on the same day (“the RRT ”).

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and fear forced sterilisation if he was to return to China.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa and the decision of the delegate (“the Delegate”) of the First Respondent and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 19 January 2012 having departed legally from China on a passport issued in his own name and a TR-676 tourist visa issued on 17 January 2012.

2. On 20 February 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.

3. On 18 May 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 13 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 28 September 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 10 October 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s claims for a protection visa

1. The applicant claimed to have a wife and two daughters living in China. He claimed that in 2011 his wife became pregnant with a son and was forced to undergo an abortion by the family planning office when they discovered her pregnancy. The applicant claimed that his wife’s brother heard from a friend of his who worked in the family planning office that the applicant was going to be forced to undergo a surgical sterilisation. The applicant claimed he feared harm in China because he would be forced to undergo the sterilisation and be denied the opportunity to have a son to care for him when he was old.

The Delegate’s decision

1. On 2 May 2012, the applicant was invited to attend an interview with the Delegate. The interview was scheduled from 16 May 2012. The applicant did not attend the interview and did not provide any explanation for his non attendance.

2. On 18 May 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 13 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 20 August 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 19 September 2012 to give oral evidence and present arguments.

3. The applicant provided no further documents in support of his review application.

4. On 19 September 2012, the applicant attended the RRT hearing and gave evidence.

5. The RRT found the applicant was not a witness of truth.

6. The decision of the RRT is accurately summarised by counsel/the solicitor for the First Respondent in written submissions as follows:

   “8. The RRT found that the applicant had not given a truthful account of his circumstances in China, including in relation to his education, employment, marital status and whether he has any children.  The RRT did not accept that the applicant was married or had any children and found that he had fabricated the entirety of his claims (see [66] and [77]).

   8.1 This finding was reached in large part on the basis of information in the applicant's visitor visa application and the Hukou (household registration document) provided with that application, which appeared in the Departmental file.[1]  The application form stated that the applicant had no spouse or children, and the Hukou stated that the applicant was unmarried (see [75]-[76]).[2]

   8.2 The RRT also relied upon inconsistencies between the applicant's written statement and his oral evidence regarding when he was married and the birth dates of his children (see [68]-[71]) and about his education and employment (see [72]-[74]).”

   [1] See CB 56-80

   [2] The Hukou was translated by the interpreter at the RRT hearing, see CB 137 [49]

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 5 December 2012, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant failed to contact the panel advisor for advice. The panel advisor wrote to the applicant on 15 January 2013 providing his contact details and requesting the applicant to contact him as soon as possible. The panel advisor also made two subsequent telephone calls. The applicant did not respond either to the telephone calls from the panel advisor or his letter.

4. At the directions hearing, the applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

6. The applicant confirmed that he relied on the grounds contained in an application filed on 10 October 2012 as follows:

   “1. On 10 October 2011, the applicant found his wife licated (sic) and forcibly taken to the hospital for and absortion (sic). The local family planning officer would take the applicant to hospital for surgical sterilisation and the applicant was very frightened to fear it.

   2. The Refugee Review Tribunal member failed to tke (sic) all the applicant’s claims and evidence into account according to S91R of the Migration Act 1958 because the Tribunal member’s bias against the applicant making a jurisdictional erroe (sic).”

7. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

8. The Court confirmed with the applicant that the complaints in his application were that Tribunal member had failed to take his claims and evidence into account and was biased against him.

9. The applicant was asked which of his claims and evidence the RRT had failed to take into account. The applicant responded that the RRT had failed to believe him. The applicant confirmed that was also his reason for asserting that the RRT was biased against him. Neither complaint was supported by particulars, evidence or any further submission.

10. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

11. A fair reading of the RRT’s decision record makes clear that the RRT accurately summarised the applicant’s written claims. At the hearing before it on 19 September 2012, the RRT explained the Convention and the Complementary Protection provisions to the applicant. The RRT then explored the applicant’s claims with him in some detail and put to him questions it had arising out of his evidence. The RRT noted the applicant’s responses. The RRT also noted that it advised the applicant that it had some concerns in relation to some aspects of his evidence which it then identified and discussed with him.

12. The RRT advised the applicant that there was information before it that may be the reason or part of the reason for affirming the decision under review. The information was a document purporting to be a household registration provided by the applicant in support of his visitor visa application. The document indicated that the applicant has an undergraduate degree and is unmarried. The RRT advised the applicant of the relevance of the information and informed him the document was inconsistent with his protection claims and may lead the RRT to find that he has fabricated his protection claims. The RRT noted that the applicant responded following a short break. Following the applicant’s response, the RRT noted that it told the applicant that he was entitled to request a further opportunity to comment or respond and noted that the applicant did not wish for any further time.

13. There is nothing to indicate that the RRT did not fully comply with the requirements of s.424AA. The applicant has not sought to prove non-compliance by tendering a transcript of the RRT hearing and makes no such challenge of non-compliance. Moreover, in the absence of any evidence to the contrary, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

14. In the circumstances, the Court infers that the RRT complied with its obligations under s.424AA of the Act in giving information to the applicant that may be the reason or part of the reason for affirming the decision under review: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J.

15. The RRT identified with some specificity the country information to which it had regard. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

16. As stated above, the RRT found the applicant’s claims to have been fabricated and did not accept the applicant’s various explanations for the inconsistencies in his evidence that he provided.

17. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

18. It is for the applicant to satisfy the RRT, being the relevant decision-maker, that he meets the criteria for being a refugee. If the RRT, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the applicant must be refused a protection visa. The RRT concluded that the applicant did not meet the refugee criteria in s.36(2)(a) of the Act. The RRT was not satisfied that substantial grounds exist for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm. Accordingly, the RRT found that the applicant did not meet the Complementary Protection criterion in s.36(2)(aa) of the Act. The applicant does not challenge the validity of that finding and no error is apparent on the face of the RRT’s record in its consideration of the alternative criterion.

19. In relation to the applicant’s assertion in his grounds that the RRT was biased, a claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

20. The applicant was directed on 5 December 2012 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 15 February 2013. The applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit of the translator and that if he wished to rely on a tape recording of the RRT hearing, he needed to give notice by 15 February 2013.  However, no further document was filed by the applicant either in accordance with those directions or otherwise.

1. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT 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 and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

2. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

1. In the circumstances, the grounds of the application do not identify any jurisdictional error on the part of the RRT and appear more to be a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

2. Following the submissions of the solicitor for the first respondent, the applicant was again invited to say whatever he wished in support of his application and anything in support of his application generally. The applicant had nothing further to say.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT gave the applicant information that may be the reason or part of the reason for affirming the decision under review in accordance with s.424AA of the Act. The RRT also identified independent country information to which it had regard.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

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

Associate: 

Date:  4 July 2013
ate: