SZSDV v Minister for Immigration

[2013] FCCA 1242

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSDV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1242

Catchwords:
MIGRATION – Review of Refugee Tribunal decision – whether actual or apprehended bias – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 65

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 178 ALR 421
A165 of 2003 v Minister for Immigration & Anor [2004] FCA 877
SZHVL v Minister for Immigration & Anor [2008] FCA 356

Applicant: SZSDV

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2589 of 2012

Judgment of: Judge Raphael

Hearing date: 23 August 2013

Date of Last Submission: 23 August 2013

Delivered at: Sydney

Delivered on: 23 August 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2589 of 2012

SZSDV

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 19 November 2011. On 2 February 2012 he applied to the Department of Immigration for a protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth)[1].  On 15 May 2012, after he had been invited to an interview with a delegate but not appeared, the delegate refused to grant a protection visa.  The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.  He was invited to a hearing by the Tribunal and did appear before it.  On 28 September 2012 the Tribunal determined to affirm the decision not to grant the protection visa. 

   [1] “Act”

2. The circumstances surrounding the applicant’s claim to be a person to whom Australia owed protection obligations were that his family owned a burial site in their home town which had been sought out by his grandfather who had hired a noted Feng Shui exponent to seek out the most appropriate site for their family to be buried.  It in statement at [CB 26] the applicant says that:

   “The plot is on the slope of a small hill, with the hill behind it and a wide river flowing in front.  It is always bathed in sunshine every day from sunrise.”    

3. The applicant claims, and it would so appear, that this is a very auspicious site.  So auspicious was the site that the applicant told that an influential family in his village sought to negotiate the purchase of the site and the removal of those remains that were already contained therein in order to bury the father of fellow villager who was, at the time (September 2011) alleged to be suffering from final stage bowel cancer with a prognosis of only six months to live. 

4. The applicant told that another son of this gentleman was the party secretary of the City Political and Legislative Commission, an important local functionary.  The applicant told that his family refused to sell the plot to this family and some time later two polices officers from the PSB took the applicant to the public security and order unit and suggested to him that they had evidence that he was a member of the Yi Guan Dao, a counter-revolutionary religious group, which had been targeted in a government crackdown.  The applicant was told that he had three days to make a confession.  The applicant had never heard of Yi Guan Dao but its relevance was told to him by an elder member of his family.  It was generally considered that the reason for this action on the part of the PSB was because he had refused to sell the burial plot and the applicant was told by his family that he had to leave the country to escape. 

5. The applicant was questioned by the Tribunal upon his story and there was also put to him certain information that the Tribunal had about an attempt that he made to leave to the country for the United States.  The Tribunal felt that the applicant’s answer to its questions concerning the sale of the burial plot and his arrest were vague and inconsistent and unpersuasive.  At [51] and [52] the basis for the Tribunal’s eventual finding are clearly laid out:

   “[51]The Tribunal considers that the highly problematic nature of the applicant’s account of the family in his village attempting to acquire his family’s burial plot and subsequently attempting to frame him as a Yi Guan Dao practitioner is indicative of the fact that his claims are manufactured.  The Tribunal considers it evident that the applicant has manufactured his claims in an attempt to provide a basis for protection in Australia.  The Tribunal is strengthened in this view by evidence, discussed with the applicant pursuant to s. 424AA during the hearing, indicating that the applicant was attempting to leave China in at least March 2010, several months before he claimed to have experienced any fear in China in relation to the acquisition of his family’s burial plot or any other reason.  Thus, the evidence indicates that the applicant made an application for a visa to the United States and was fingerprinted in relation to that application in March 2010.  When the Tribunal asked the applicant twice at the hearing whether had had made any applications for visas to leave China to visit other countries, he confirmed on both occasions that he had not done so.  When the information regarding his application to the United States was discussed with him during the hearing, the applicant then claimed that it was in relation to another passport, until reminded that his passport was granted in 2009 which meant that it was in relation to that passport.  He then claimed that although he was a welder earning only 1500 Yuan a month in China, he was intending to go the United States for a holiday. 

   [52]The Tribunal does not accept that the applicant has given truthful evidence in relation to this issue and considers that his denial of his application to the United States is indicative of the fact that he is not a truthful witness and indicative of the fact that he was making plans to leave China before he claims to have experienced difficulties relating to his family’s burial site.  The Tribunal does not accept that the applicant’s evidence that he obtained his passport in 2009 because people in his area have a passport even though they may not be intending to go somewhere. …The Tribunal considers it evidence that the applicant obtained a passport in 2009 because he was planning on leaving China for reasons entirely unrelated to those he put forward.  The Tribunal considers that the evidence in relation to this issue is further indicative of the fact that his claims have been manufactured.”  [CB 119] 

6. The Tribunal comprehensively rejected the applicant’s claims [53-54] [CB 119, 120] and having considered that rejection determined that the applicant had no grounds for pursuing a claim for complementary protection under s.36(2)(aa) of the Act.

7. On 9 November 2012 the applicant filed an application for review of that decision with this Court.  There were four grounds of application.  The first and second merely set out in short form the claim concerning the burial plot.  The third states:

   “3.     I had to flee China to Australia for seeking protection.”

8. And the fourth is in the following form:

   “4.The Refugee Review Tribunal made a decision of refusing my application. The Tribunal failed to take all my claims into account according to s91R of the Migration Act 1958 because of the Tribunal bias against me making jurisdictional error.”

9. The applicant appeared before me today.  He told me that in terms of an error in law he did not know what to say but he could say that his claims were truthful and the Tribunal did not make a decision based upon the true claims.  He said that, to the extent that the Tribunal felt that his claims were vague, it was because he was nervous. 

10. It would seem that the only claim that raises the question of jurisdictional error is the claim of bias made by the applicant.  The principles relating to actual bias arising out of pre-judgment were considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 178 ALR 421 where Gleeson CJ and Gummow J said, at [22]:

    “[22]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. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

11. In Applicant A165 of 2003 v Minister for Immigration & Anor [2004] FCA 877, Lander J said at [59]:

    “[59]Actual bias is not easily proved. It requires proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker’s predetermined decision would not vary.”

12. In SZHVL v Minister for Immigration & Anor [2008] FCA 356 McKerracher J said at [17]:

    “[17]It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 668 at [38] per von Doussa J.”

13. In this case there is no evidence whatsoever of actual or even apprehended bias and nothing can be seen of that nature from the thorough and reasoned decision of the Tribunal.  That ground must be rejected.

14. In accordance with the court’s usual practice it has considered the Tribunal decision as  whole and has come to the conclusion that there is nothing in it that indicates that the Tribunal fell into jurisdictional error in any other manner.  The Tribunal’s grounds for declining complementary protection were based upon the fact that it could not accept that any of the things the applicant said occurred to him did in fact occur.  The Tribunal was satisfied that the applicant had manufactured his claim, and the evidence certainly supports this. 

15. In those circumstances the court is unable to provide the applicant with the review he seeks.  The application is dismissed.  The applicant shall pay the first respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael.

Associate: 

Date:  29 August 2013