SZSCM v Minister for Immigration

[2013] FCCA 697

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSCM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 697

Catchwords:
MIGRATION – Protection visa – impermissible attempt to review merits of Tribunal’s decision.

Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NBMB v Minister for Immigration and Citizenship [2008] FCA 149
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicants: SZSCM, SZSCN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2479 of 2012

Judgment of: Judge Jarrett

Hearing date: 28 June 2013

Date of Last Submission: 28 June 2013

Delivered at: Brisbane

Delivered on: 1 July 2013

REPRESENTATION

The Applicants appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Ms O’Connor

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 30 October, 2012 is dismissed.

2. The Applicants pay the First Respondent’s costs of the application fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

SYG 2479 OF 2012

SZSCM, SZSCN

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of the People’s Republic of China.

2. Both have sought from the first respondent, the grant of a protection visa.  Only the first applicant has made specific claims under the Refugees Convention.  The second applicant is the first applicant’s wife and relies upon her membership of the first applicant’s family as the basis of her application for a protection visa.

3. The first applicant claims to have been born in Liaoning, China in 1963 and to have lived in Shenyang City, Liaoning Province from June, 1990 to June, 2007.  He travelled to Australia on a subclass 457 (Temporary) Skilled Migration visa on 6 June, 2007.

4. On 20 December, 2011 the first applicant applied for a Protection (Class XA) visa. He set out his claims in a statement attached to his visa application.  His claims are summarised at paragraph [24] of the Tribunal’s decision record.

5. The first applicant attended a departmental interview on 7 May, 2012.

6. On 18 May, 2012 the Department notified the first applicant that his application for a Protection (Class XA) visa had been refused by a delegate of the first respondent.

7. On 14 June, 2012 the first applicant applied to a refugee review tribunal for review of the delegate’s decision.

8. The first applicant attended a hearing before the Tribunal on 13 September, 2012.  The hearing was conducted with the assistance of a Mandarin interpreter.   On 12 October, 2012 the Tribunal affirmed the decision not to grant the visas.

9. The applicant applied on 30 October, 2012 for judicial review of the decision of the Tribunal to affirm the decision to refuse to grant the Protection visas.

10. The Tribunal found the first applicant’s claims to have opposed corruption as a manager of a bank and to have suffered harm as a result not to be credible.  It concluded that the first applicant did not satisfy the criteria for a Protection (Class XA) visa.  The Tribunal thought that the following matters supported that conclusion:

    a)the first applicant submitted no documentary corroboration for his claim to have been a manager in a bank in Shenyang City;

    b)the first applicant’s account of key events at the Tribunal hearing was “notably brief and lacking in circumstantial detail”;

    c)the first applicant made the decision to come to Australia before his claimed discovery of corruption in the bank. Therefore, the harm the first applicant claims to have suffered as a result of his discovery of corruption cannot have played a part in his decision to leave China;

    d)at the hearing the first applicant agreed that his reason for seeking protection was because it provided an alternative, and potentially faster, migration path than the application for permanent residence which he and his wife had lodged previously.

11. The applicants raise three grounds of review.  None establish that the Tribunal’s decision is affected by jurisdictional error.

12. The first ground relied upon by the applicants is that the Tribunal was biased against the first applicant.  The basis of this ground articulated in the Application is different to the argument presented by the second applicant on behalf of both applicants at the hearing.  In the Application, it is said that the Tribunal demonstrated bias against the first applicant because the first applicant failed to attend the Tribunal hearing due to sudden illness.  But that assertion is factually incorrect.  The first applicant attended the Tribunal hearing.

13. At the hearing before me the bias asserted against the Tribunal was said to arise because the Tribunal did not accept the first applicant’s claims about working in a bank, uncovering and then reporting corruption.

14. As the first respondent points out, to make out apprehended bias the applicants must show that “a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”:  Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] and [28]. The required standard for a finding of actual bias is that:

    …the state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

    Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72].

15. Allegations of apprehended or actual bias must be firmly established: NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [18].

16. In my view, the applicant has not established that the Tribunal’s decision was subject to either apprehended bias or actual bias. The failure to give credit to the first applicant’s claims is not, of itself, sufficient to engage the principles concerning bias on the facts of this application.  The Tribunal’s reasons disclose a thorough and reasoned approach to the first applicant’s claims and his credibility. No jurisdictional error is made out by this ground.

17. The second ground relied upon by the applicants is that the Tribunal erred “in failing to hear evidence given by the Applicant”.  No particulars of this ground have been given.  I accept that it is clear from the Tribunal’s decision record that the Tribunal did hold a hearing at which the applicants both gave evidence, and that the Tribunal considered their evidence.  No jurisdictional error is made out by this ground.

18. The third ground relied upon by the applicants is the “RRT’s denial of the Applicant’s evidence without conscience”.  No particulars of this ground have been given.  In the absence of particulars, it is unclear what error the applicants allege by this ground.  To the extent that their claim rests upon the findings of credit made against the first applicant, I repeat what I have set out above.

19. It is clear from the Tribunal’s decision record that the Tribunal carefully considered the applicants’ evidence before coming to its conclusions. 

Conclusion

1. The applicants seek to have the Court engage in merits review of the Tribunal’s decision.  As is well settled, merits review in this Court is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v The Commonwealth (1999) 197 CLR 510 at [195].

2. No jurisdictional error is made out by the grounds relied upon by the applicants.  The Tribunal’s decision record does not reveal any other matter that might permit a finding that jurisdictional error has occurred.

3. The application for review must be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 1 July 2013.

Date:  1 July 2013