SZRXP v Minister for Immigration and Border Protection

[2013] FCA 1200

FEDERAL COURT OF AUSTRALIA

SZRXP v Minister for Immigration and Border Protection [2013] FCA 1200

Citation:	SZRXP v Minister for Immigration and Border Protection [2013] FCA 1200
Appeal from:	SZRXP v Minister for Immigration & Anor [2013] FCCA 724
Parties:	SZRXP v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1452 of 2013
Judge:	FARRELL J
Date of judgment:	14 November 2013
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 SZRXP v Minister for Immigration & Anor [2013] FCCA 724
Date of hearing:	14 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Solicitor for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms M Stone of DLA Piper Australia
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 1452 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRXP
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	14 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, as agreed or taxed.

3.The title of the first respondent be amended to “Minister for Immigration and Border Protection”.

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 1452 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRXP
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	14 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia handed down on 4 July 2013: SZRXP v Minister for Immigration [2013] FCCA 724 (SZRXP). The Judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 28 September 2012. The Tribunal’s decision affirmed a decision of a delegate of the Minister to reject the appellant’s application for a Protection Class (XA) visa (protection visa).  The appellant did not attend a scheduled interview with the Minister’s delegate in connection with his application and the delegate refused to grant the protection visa on 18 May 2012.  The appellant applied to the Tribunal for review of the delegate’s decision on 13 June 2012 and the appellant was invited to, and attended a hearing before the Tribunal on 19 September 2012.

2. The appellant is a citizen of China who arrived in Australia on 19 January 2012 having departed legally from China on a passport issued in his name and as the holder of a TR-676 Tourist Visa (visitor’s visa).  He applied for a protection visa on 20 February 2012 and provided a written statement supporting the application.

   CLAIMS IN SUPPORT OF APPLICATION

3. The appellant claims to have married in 2006 and that he has two daughters. His wife and daughters remain in China.  He and his wife were overjoyed when, following an ultrasound in August 2011, they learned that she was pregnant with a son because: “According to the thousand-years-long tradition in our rural area, each family must have a son so that there is some kind of family support when one gets old.  Only a son will look after his elderly parents as the daughter will leave the family after her marriage”.   Fearing that the family planning authorities would discover her pregnancy when they examined her (as they advised her that they would do at a time scheduled for a few days later), she went into hiding with her aunt who lived one hundred kilometres away.  However, in October he arrived home to find that his wife had been found and been forced to undergo an abortion after which she was confined to bed for a month as a blood vessel had been cut accidentally. He claims that he was told by his wife’s brother, who had a friend who worked in the family planning office, that the appellant would be forced to undergo a surgical sterilisation. He fears that he will be forced to undergo surgical sterilisation if he returned to China and be denied the opportunity to have a son to care for him when he is old.

   THE TRIBUNAL’S DECISION

4. The Tribunal affirmed the decision of the Minister’s delegate to refuse to grant a protection visa on the basis that it found the appellant was not a witness of truth.

5. The Tribunal found that the appellant had not given a truthful account about his circumstances in China, including his education, employment, marital status and whether he had children. The Tribunal had regard to the information in the appellant’s visitor’s visa application and the Hukou (household registration document) which stated that the appellant had no spouse or children. The Tribunal also relied upon inconsistencies between the appellant’s written statement and oral evidence regarding when he was married, the birth dates of his supposed children and about his education and employment.

   THE FEDERAL CIRCUIT COURT’S DECISION

6. On 10 October 2012, the appellant filed an application raising the following grounds for review of the Tribunal’s decision (errors in the original):

   1.   On10 October 2011, the applicant found his wife licated and forcibly taken to the hospital for an absortion. The local family planning officer would take the applicant to hospital for surgical sterlisation and the applicant was very frightened to fear it.

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

7. At a directions hearing in relation to the application, the Judge advised the appellant that the “Court has 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” and went on to explain that the grounds proposed by the appellant were bare assertions which were unsupported by particulars and did not by themselves disclose an error capable of review by the Court.  The appellant was given leave to file and serve an amended application with particulars and supporting evidence (including the transcript of the Tribunal hearing) as well as submissions in support.  The Judge referred the appellant to the Federal Circuit Court’s Legal Advice Scheme for free legal advice.  However, the appellant did not avail himself of that advice and confirmed at the hearing of the application on 4 July 2013 that he had not he filed any amended application, evidence or submissions in support of his application and he did not do so at the hearing: see SZRXP [21]-[24]. At the hearing on 4 July 2013 the appellant appeared unrepresented but he was assisted by a Mandarin speaking interpreter.

8. Her Honour’s reasons for dismissing the application are accurately summarised in the submissions provided to this Court by the Minister’s representative (footnoted references have been inserted into the text):

   13Following the hearing on 4 July 2013, Judge Emmett delivered an ex tempore judgment ordering inter alia that the application be dismissed.

   13.1Her Honour found that the RRT accurately summarised the appellant's claims, and explored those claims with him in some detail at the RRT hearing (SZRXP at [30]). Her Honour found that the RRT complied with its obligations pursuant to section 424A of the Migration Act 1958 (Cth) (the Act) with respect to information from the appellant's visitor visa application, by putting that information to the appellant orally at the RRT hearing pursuant to section 424AA of the Act (SZRXP at [31]-[33]).

   13.2Her Honour found that the RRT's findings that the appellant's claims were fabricated were open to it on the materials before it (SZRXP at [36]).

   13.3With respect to the appellant's allegation of bias on the part of the RRT, Judge Emmett noted that such an allegation is a serious matter and requires evidence, and that the mere fact that the RRT made adverse findings did not of itself give rise to an apprehension of bias (SZRXP at [38]). Her Honour found that a fair reading of the RRT decision did not disclose any prejudgment on the part of the RRT so as to establish actual or apprehended bias (SZRXP at [40]-[41]).

   13.4Her Honour concluded that the appellant's grounds did not identify any jurisdictional error on the part of the RRT, and appeared to be a disagreement with the findings and conclusions of the RRT, which invited merits review which the Court could not undertake (SZRXP at [42]). Her Honour concluded that the RRT decision was not affected by jurisdictional error and was therefore a privative clause decision with which the Court had no jurisdiction to interfere. Her Honour accordingly dismissed the application (SZRXP at [47]).

   THE APPEAL PROCEEDINGS

9. The appellant filed a Notice of Appeal against the judgment of the Federal Circuit Court on  24 July 2013 relying on the following grounds (errors in the original):

   In October 2011, I found our local family planning officials had located my wife and forcibly taken her to hospital for a abortion and I would be forced operated for a sterilization. I was frightened .

   The Tribunal member failed to take all my claims into account according to S91R of the Migration Act 1958 for his bias against me, making jurisdictional error.

   The Judge of the Federal Magistrate Court failed to point the error.

10. I will treat each of these paragraphs as a separate ground. 

11. The appellant appeared at the hearing today unrepresented and assisted by an interpreter in Mandarin.  He said that he put forward the second ground because the Tribunal did not believe him, and the third ground is based on the same reasoning.  He offered no other representations.

12. The Minister submits that the judgment of the Federal Circuit Court was correct for the reasons given by the Judge, and there is no error in her Honour’s reasoning and conclusions.  The detailed submissions in support of this are (footnoted references have been inserted into the text):

    17The appellant has not identified any error in her Honour's findings.

    17.1The first ground of appeal seeks impermissible merits review of the RRT's decision.  A Court undertaking judicial review cannot review the merits of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 per Gleeson CJ and McHugh J).

    17.2In relation to the second ground, the first respondent submits that the RRT considered and rejected all of the appellant's claims.  The only piece of evidence provided by the appellant apart from his own oral evidence was photographs on his mobile telephone which he showed to the RRT during the hearing (RRT decision at [51]). The RRT dealt with the photographs at [78] and did not accept that they depicted the applicant's wife and children as claimed.  This finding was open to the RRT and does not disclose any jurisdictional error.

    17.3The appellant's allegation of bias was considered by Judge Emmett, and was found not to be made out.  In so finding, her Honour applied the correct legal test with respect to both actual and apprehended bias.  It was open to her Honour to conclude that the appellant's allegation was not made out.  It is well established that it is a rare case in which actual bias on the part of the Tribunal will be apparent merely from its written reasons, and the mere fact of adverse findings at the end of the matter gives rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision (SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38]). In the present case there was, and is, simply no evidence to sustain a complaint of bias.

    17.4The third ground of appeal does not identify the error which the learned Judge ought to have found, and without particulars this ground lacks any meaningful content and does not establish any error on the part of the Court below or the RRT.

13. I accept the Minister’s submissions and accordingly dismiss the appeal and order that the appellant pay the Minister’s costs as assessed or taxed.  I also order that the title of the Minister be amended to read “Minister for Immigration and Border Protection”.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:       14 November 2013