SZSDV v Minister for Immigration and Border Protection
[2013] FCA 1357
•28 November 2013
FEDERAL COURT OF AUSTRALIA
SZSDV v Minister for Immigration and Border Protection [2013] FCA 1357
Citation: SZSDV v Minister for Immigration and Border Protection [2013] FCA 1357 Appeal from: SZSDV v Minister for Immigration & Anor [2013] FCCA 1242 Parties: SZSDV v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1851 of 2013 Judge: NICHOLAS J Date of judgment: 28 November 2013 Legislation: Migration Act 1958 (Cth), s 36 Date of hearing: 28 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1851 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSDV
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
28 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Border Protection.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal.
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 1851 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSDV
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
28 NOVEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an appeal from the judgment of a judge of the Federal Circuit Court of Australia (the primary judge) delivered on 23 August 2013. By his decision the primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 September 2012.
The appellant is a citizen of China who arrived in Australia on 19 November 2011 on a tourist visa. He applied for a Protection (Class XA) Visa on 2 February 2012. His application was refused on 15 May 2012. The appellant applied for review of this decision on 13 June 2012. He participated in a hearing before the Tribunal on 20 September 2012 during which he gave evidence.
The appellant claimed that his family owned a burial plot in a desirable location. He claimed that in September 2011 he was approached by a person whose brother was a Party Secretary with the Chinese Government. According to the appellant, this person told the appellant that he wished to acquire the burial plot for his father. The appellant’s family refused to relinquish the burial plot. He claimed that he was then falsely accused by the police of being a member of a banned religious group known as Yi Guan Dao and taken into custody for several days. The appellant claimed that this was part of a plan to pressure his family into giving up the burial plot. The appellant claimed he would be falsely accused of being a member of Yi Guan Dao and forced into a labour camp if he were to return to China.
The Tribunal considered the appellant’s claims by reference to s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth). It was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967. Nor was it satisfied that the appellant was a person to whom Australia had protection obligations of the kind referred to in s 36(2)(aa).
The Tribunal rejected the appellant’s claims on the basis that it did not regard his evidence as credible. It considered that his evidence was vague and unpersuasive, and that he was not a truthful witness (see [47] of the Tribunal’s reasons). In particular, it did not accept that the appellant had ever been accused of being a Yi Guan Dao practitioner. It considered that the appellant had “manufactured” his claims.
The appellant’s application to the Federal Circuit Court raised a number of grounds. All but one of these involved challenges to the Tribunal’s credibility finding and, in substance, disputed the merits of the Tribunal’s decision. The only ground relied upon by the appellant before the Federal Circuit Court that might conceivably have pointed to jurisdictional error on the Tribunal’s part was a ground that alleged that the Tribunal was biased.
The primary judge held that the material before him did not disclose any evidence of either actual or apprehended bias on the part of the Tribunal. His Honour therefore rejected this ground of review.
The primary judge also gave independent consideration to the question whether the Tribunal may have fallen into jurisdictional error in some other respect. His Honour concluded that the Tribunal did not commit any jurisdictional error.
The appellant’s notice of appeal dated 11 September 2013 raises three grounds. The first merely restates his claims in relation to the burial plot and the false accusations alleged to have been made against him. The second asserts that the Tribunal failed to take all of the appellant’s claims and evidence into account and thereby committed a jurisdictional error.
The third ground is not well expressed but, as I understand it, does no more than summarise the decision of the primary judge and the order made by him. However, if it is to be read as an assertion that the Federal Circuit Court’s decision was itself affected by bias then this is something that I would reject as entirely without substance.
The appellant did not file any written submissions. He appeared today with the assistance of an interpreter. He was given an opportunity to say what he wished to say in support of his appeal. Apart from requesting that I make an order sending the matter back for reconsideration by the Tribunal he had nothing of substance to say in support of the appeal.
There is nothing in the material before me that would suggest that the Tribunal’s decision was affected by bias or that the primary judge’s finding on that question was incorrect. I also agree with the primary judge that there is nothing in the Tribunal’s reasons for decision to suggest that it committed any jurisdictional error.
Nor do I think there is any substance to the appellant’s assertion in his notice of appeal that the Tribunal failed to consider his claims and evidence. As is apparent from the Tribunal’s reasons, it gave careful attention to the appellant’s claims and the evidence given in support of them.
I am satisfied that there is no substance to any of the appellant’s grounds of appeal. In my view the primary judge’s decision was plainly correct. In the result, the appeal will be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 12 December 2013
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