SZSDX v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 903

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSDX & ORS v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 903

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal complied with Part 7, Division 4 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was biased – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 422B, 424, 424A, 474

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
SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD 15
SZBYR v Minister for Immigration and Citizenship(2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
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
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
Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723
Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant: SZSDX

Second Applicant: SZSDY

Third Applicant: SZSDZ

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2594 of 2012

Judgment of: Judge Emmett

Hearing date: 23 July 2013

Date of Last Submission: 23 July 2013

Delivered at: Sydney

Delivered on: 23 July 2013

REPRESENTATION

The applicants appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Julian Pinder (Minter Ellison)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2594 of 2012

SZSDX

First Applicant

SZSDY

Second Applicant

SZSDZ

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & 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 15 October 2012 and handed down on 16 October 2012 (“the RRT”).

2. The first named applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith. The second named applicant claims to be the defacto partner of the first named applicant and the third named applicant is their dependant child. The first named applicant was appointed as the litigation guardian of the third named applicant.

3. The second named applicant completed an application for a protection visa as member of the first named applicant’s family unit with no claim of his own. The third named applicant completed an application for a protection visa, making her own claim for protection arising from consequences that may flow to her in China as a result of being born out of wedlock.

4. 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 applicants’ protection visa application claims and the decision of the delegate of the first respondent and a summary of the RRT’s review and decision.

Background

1. The first named applicants arrived in Australia on 4 March 2008, having departed legally from China on a passport issued in her own name and a subclass 571 student valid until 30 April 2008.

2. On 28 November 2011, the applicants lodged applications for a Protection visas (Class XA) with the Department of Immigration and Citizenship under the Act (“the Department”).

3. On 29 May 2012, a delegate of the Department (“the Delegate”) refused the applicants’ applications for protection visas.

4. On 25 June 2012, the applicants lodged an application for review by the RRT of the Delegate’s decision.

5. On 15 October 2012, the RRT affirmed the decision of the Delegate not to grant protection visas.

6. On 9 November 2012, the applicants 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.”

Claims in support of Protection visa application

1. In a statement in support of her protection visa application, the first named applicant (“the Applicant”) stated that she was brought up by her father who is a dedicated Christian. She said she was baptised as a Christian in December 2005.

2. The Applicant claimed that on 16 April 2006, she and other worshippers were arrested and detained because they were attending an illegal religious gathering.

3. On 4 March 2008, the Applicant came to Australia on a student visa.

4. The Applicant claimed that in October 2009, her father broke his leg in a traffic accident in China. However, the Applicant did not return because of her fear of arrest in China.

5. The Applicant claimed that in 2010, she met her husband, the second named applicant, and together they attended a church in Padstow.

6. In June 2011, the Applicant became pregnant with the third named applicant and the Applicant was again baptised in December 2011.

7. The Applicant claimed that her father continues to be persecuted in China because of his religion.

The Delegate’s decision

1. On 4 April 2012, the applicants attended an interview with the Delegate.

2. On 29 May 2012, the Delegate refused the applicants’ application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate found that the Applicant displayed little religious knowledge. The Delegate doubted that the Applicant is a genuine Christian and was not satisfied that she genuinely fears persecution in China given her three-and-a-half year delay in seeking protection in Australia. The Delegate was not satisfied that the Applicant was of any adverse interest to authorities in China for a Convention related reason.

4. In relation to the third named applicant, the Delegate was not satisfied that she would face serious harm amounting to persecution if she was to return to China.

The RRT’s review and decision

1. On 6 August 2012, the RRT wrote to the applicants informing them 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 applicants to attend a hearing on 30 August 2012 to give oral evidence and present arguments.

2. On 30 August 2012, the Applicant attended the RRT hearing and gave evidence.

3. The decision of the RRT is accurately summarised by the solicitor for the first respondent in written submissions as follows:

“TRIBUNAL DECISION

14. In its decision dated 15 October 2012,[1] the Tribunal affirmed the delegate's decision to refuse to grant the applicants protection visas.

[1] CB200ff.

15. The Tribunal formed the view that the applicant was not a credible witness and rejected the applicants' claims having regard to the following:

(a) The Tribunal did not accept that the applicant was a genuine follower of the Christian faith or that there was a real chance she would suffer persecution for that reason. Specifically, the Tribunal did not accept that the applicant was a practising Christian prior to arriving in Australia, and instead found that she had begun attending religious activities in Australia for the sole purpose of strengthening her protection claims (at [67]–[70]), having regard to its findings that:

·the applicant's lack of religious observation on arriving in Australia was not consistent with the level of devotion to religion she claimed;

·there was an inconsistency between the applicant's claims of being arrested and detained in Fujian province and the available country information; and

· the applicant lacked knowledge of Christian concepts,

and

(b) The Tribunal did not accept the applicants' claims that there was a real chance that the applicant would be subject to serious harm now or in the foreseeable future because of her membership of the particular social group 'women with children born out of wedlock' , or that the third applicant would suffer harm as a member of the group 'children born out of wedlock'. The Tribunal noted that the applicant had given evidence that was inconsistent with the available country information in relation to the marriage age in China and her ability to obtain household registration for the third applicant. It found that the third applicant had a right to Chinese citizenship and that her birth could be registered upon payment of a 'social compensation fee' which did not constitute discriminatory conduct under the Act (at [71]–[77]).

16. Having regard to the above findings, the Tribunal concluded that the applicant would not come to the attention of Chinese authorities, and that, even if she did, authorities in Fujian province were tolerant of Christians. The Tribunal rejected the applicants' claims that the applicant and/or the second applicant would suffer inhumane or degrading treatment by reason of their membership of the particular social groups alleged (at [79] – [81]). Accordingly, the Tribunal considered there to be no real risk that either the applicant or the second applicant would suffer significant harm if the applicants were removed to China, and that the applicants were not persons in respect of whom Australia owes protection obligations (at [82]).

17. In reaching that conclusion, the Tribunal made dispositive findings both in respect of the refugee criterion (pursuant to subsection 36(2)(a) of the Act) and the complementary protection criterion (pursuant to subsection 36(2)(aa) of the Act).”

The proceeding before this Court

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

2. On 14 February 2013, the Applicant attended a directions hearing before me. I explained to the Applicant that this 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. The Applicant confirmed that the applicants wished to continue with the application for judicial review. 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 applicants were referred to the Court’s Legal Advice Scheme for free legal advice. The applicants have participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

4. At the commencement of the hearing, the Applicant confirmed that she appeared on behalf of all three applicants and that they had not filed any amended application, evidence or submissions in support of their application. The Applicant also confirmed that she had no further documents to present to the Court this morning in support of the application for judicial review of the RRT’s decision.

5. The Applicant confirmed that she relied on the grounds contained in an application filed on 9 November 2012 as follows:

   “1. The Refugee Review Tribunal and the Department of Immigration and citizenship did not act in a fair and just manner in the assessment of my application. It is in contrary to S422B of the Migration Act 1958.

   2. The Refugee Review Tribunal has acted unjustly and has not fulfilled its obligations under S.424A to ask me to clarify the incident of my father when it unilaterally accuses that I had given contradictory accounts for what had happened. In fact, what I told the tribunal during the hearing was in conststence (sic) with the letter provided by the neighbourhood committee.

   3. The Refugee Review Tribunal erred in law because it had based on incorrect information to assess my application and says that I was not a credible witness. I was therefore deprived on natural justice under the Migration Act 1958. ”

6. 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.

Ground 1

1. Ground 1 was not supported by particulars, evidence or submissions.

2. I asked the Applicant in what way the RRT had not acted in a fair and just manner in the assessment of her application. The Applicant responded that the RRT had found her statement about the reason for her father’s injury due to a car accident to be contradictory to a letter provided by her neighbourhood village which stated that her father had suffered a workplace injury. The Applicant said that she told the RRT that her father had a car accident and that this was not contradictory to the letter because her father had a car accident at work.

3. The RRT’s decision record makes clear that the RRT explored the Applicant’s claims of her father’s accident with the Applicant at the hearing in light of the content of the neighbourhood letter. The RRT noted the Applicant’s explanation, but nevertheless found her evidence surrounding the father’s accident to be both internally inconsistent and inconsistent with the neighbourhood letter which was given by the applicants to the RRT in support of their review application.

4. 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).

5. A fair reading of the RRT’s decision record makes clear that the RRT’s findings were open to it on the evidence and materials 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).

6. To the extent that Ground 1 asserts that the RRT did not comply with its obligations under s.422B of the Act, such a complaint is not made out. The RRT complied with the requirements of Part 7, Division 4 of the Act. Section 422B of the Act states that compliance with Part 7, Division 4 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule (see SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD 15 at [15] per Emmett, Kenney and Jacobson JJ.)

1. In compliance with Part 7, Division 4, the RRT invited the applicants to appear before the RRT to give evidence and present arguments relating to the issues arising in relation to the decision under review. The evidence in the bundle of documents identified as Court Book filed on 31 January 2013 by the first respondent and marked Exhibit 1R, makes clear that the RRT’s invitation was sent in accordance with the legislative regime.

2. Further, there was no information that enlivened any obligation on the part of the RRT pursuant to s.424A of the Act. The inconsistency that the RRT found arising from the neighbourhood letter and the Applicant’s evidence does not enliven s.424A in light of s.424(3)(b) in circumstances where the neighbourhood letter was given by the Applicant to the RRT for the purpose of the review application.

3. There was no other information before the RRT and to which it had regard that enlivened any obligation under s.424A of the Act.

4. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

5. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the RRT did not comply with s.424A of the Act in that it failed to clarify the Applicant’s evidence about her father’s accident and found that her evidence was inconsistent with the neighbourhood letter.

2. The Applicant made no submissions in support of Ground 2.

3. For the reasons given in Ground 1 above, Ground 2 is not made out. There was no information before the RRT that enlivened any obligation under s.424A of the Act. As stated above, the RRT explored the Applicant’s evidence with her about her father’s accident and put to her concerns that it had arising from that evidence, particularly in light of the neighbourhood letter and noted the Applicant’s responses. Ultimately, the RRT did not accept the Applicant’s explanation and found the Applicant’s evidence to be inconsistent with that of the neighbourhood letter.

4. As stated above, the RRT’s findings were open to it on the evidence and materials before it and for the reasons it gave.

5. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the RRT erred in law because it deprived the Applicant of natural justice and based its decision on incorrect information in finding that the Applicant was not a credible witness.

2. The Applicant had nothing to say in support of Ground 3.

3. For the reasons referred to above in Grounds 1 and 2, Ground 3 is not made out

4. Ground 3 appears 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).

5. Accordingly, Ground 3 is not made out.

Complaints made in a statement attached to the Applicant’s affidavit sworn 8 November 2012

1. In a statement attached to the Applicant’s affidavit sworn 8 November 2012 and filed 9 November 2012, the Applicant identified various findings made by the RRT with which she disagreed. They appear to be the foundation for an allegation by the Applicant that the RRT was biased.

2. 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]).

1. The Applicant was directed on 14 February 2013 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 21 March 2013. The Applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit and that if she wished to rely on a tape recording of the RRT hearing, she needed to give notice by 21 March 2013 to the Court and the first respondent.  However, no document was filed by the applicants either in accordance with those directions or otherwise.

2. 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]).

3. 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]).

4. To the extent that the Applicant’s complaints are capable of amounting to a complaint about the quality of the interpretation, there is nothing to suggest that the misinterpretations, even if correct, were of such poor quality that the Applicant was effectively deprived of her right to appear (see Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231at 245 para.[38] per Kenny J, and VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 Finkelstein J at [27]).

1. Further, even if the Applicant’s complaints about the mistakes of fact made by the RRT were accepted, none would be dispositive of the Applicant’s claims and none is capable of suggesting that the RRT has not considered the applicants’ claims (see Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51).

2. Otherwise, the Applicant’s particularised complaints in her statement are no more than disagreements with findings made by the RRT that were open to it on the evidence and material before it and for the reasons given, including its adverse credibility findings.

3. Accordingly, none of the complaints referred to in the Applicant’s statement is capable of establishing jurisdictional error on the part of the RRT either on the conduct of its review or in its decision record.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicants; 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 her evidence and noted the Applicant’s responses. The RRT also put to the Applicant independent country information before it and invited the Applicant to comment upon it.

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 in considering whether Australia has protection obligations to the applicants either under s.36(2)(a) of the Act, or s.36(2)(aa) of the Act.

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 sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  23 July 2013