SZSFB v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCCA 799

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSFB v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP & ANOR [2013] FCCA 799

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal was biased – whether Refugee Review Tribunal considered the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 424A, 424AA, 474, Pt.8

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
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
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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
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

Applicant: SZSFB

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2656/2012

Judgment of: Judge Emmett

Hearing date: 12 July 2013

Date of Last Submission: 12 July 2013

Delivered at: Sydney

Delivered on: 12 July 2013

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Sparke Helmore Lawyers

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2656 of 2012

SZSFB

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 23 October 2012 and handed down on 25 October 2012 (“the RRT ”).

2. The applicant claims to be a citizen of the People’s Republic of China (“China”).

3. 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 applicant’s protection visa application claims and the decision of the delegate of the first respondent (“the Delegate”)  and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 23 July 2010 having departed legally from China on a passport issued in her own name and was included as a Student Guardian / parent on her daughter’s subclass 571 Student visa application. The visa was granted on 7 July 2010.

2. On 20 December 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.

3. On 5 June 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 25 June 2012, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 23 October 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 15 November 2012, the applicant 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.”

The applicant’s application for a protection visa

1. The applicant provided a statement in support of her protection visa application in which she stated:  

   a)The applicant was born in Jiagmen, Guangdong Province.

   b)In 2000, investment developers took an interest in the applicant’s home town and her house was in the dismantle area. She refused to accept the unfair compensation offered and move away. In 2008 the local government dismantled her home by force.

   c)On 6 March 2008, government officers told the applicant she had to leave her home by 23 June 2008. The applicant refused an offer for compensation because she believed it to be less than her entitlement.

   d)In June 2008, the Dismantle Office started to dismantle the properties in the area where the applicant lived. The trucks that passed her place caused cracks in the house and it became dangerous.

   e)On 24 June 2008, the applicant’s property was dismantled by force. All her furniture and personal belongings were buried. Her mother and sister tried to protect the property, but they were beaten. The house was burnt with gas and the applicant’s hands and feet were burnt badly. The applicant’s sister sent her to the hospital and she was treated by the doctors for 5 hours. The applicant’s sister called the police but the police did not stop the demolition.

   f)In August 2008, the applicant appealed to the government for proper compensation. During the 2 year appeal, she was threatened by the Huicheng Town government. As a result, she then applied for a guardian visa as her daughter was studying in Australia.

   g)The applicant planned to commence a law suit against the government, however, she could not find anyone willing to represent her. 

   h)In June 2010, the applicant appealed to the Guangdong Province Government. The applicant’s mother telephoned her to tell her that the police came past intending to arrest the applicant for fraud and extortion of the government.

   i)The applicant was scared and remembered she that had the visa to Australia. She left China on 23 July 2010.

   j)On 10 January 2011, the applicant returned to China and stayed for a week because her mother was sick.

   k)On 11 May 2011, the applicant again returned to China because her mother told her that the local government wanted to discuss compensation and she was worried about her mother’s health. During this time she stayed at a friend’s place and visited her mother late at night. The applicant was reported to the local police so left China on 21 May 2011 and returned to Australia.

   l)On 6 August 2011, the applicant’s sister telephoned her in Australia and said her mother was dying.

   m)On 8 August 2011, the applicant returned to China.  A friend met her at the airport and told her it was not safe in China because her home and her sister were under surveillance by the police. As a result, the applicant left China to return to Australia without seeing her mother.

The Delegate’s decision

1. On 7 May 2012, the applicant attended an interview with the Delegate.

2. On 5 June 2012, the Delegate refused the applicant’s 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 significant elements of the applicant’s evidence to be “contradictory, far fetched and lacking in specific detail.” The Delegate accepted that the applicant had been burned on various parts of her body but was not satisfied that they were inflicted as alleged. Ultimately, the Delegate comprehensively rejected the applicant’s claims of past harm in China and found that the applicant was not of interest to the Chinese authorities.

The Tribunal’s review and decision

1. On 21 September 2012, the RRT wrote to the applicant informing her 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 applicant to attend a hearing on 19 October 2012 to give oral evidence and present arguments.

2. On 19 October 2012, the applicant attended the RRT hearing and gave evidence.

3. The RRT found the applicant was not a witness of truth.

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

   “The Tribunal’s decision

   16. In a decision dated 23 October 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa: CB 102-111.

   17. The Tribunal found that the applicant had fabricated her claims for protection and it rejected these claims in their entirety: CB 109, pars 37-39. The Tribunal reached these findings on the basis of the independent information that it had discussed with the applicant at the hearing. It found that two of the photographs in the media article were identical to the photographs provided by the applicant in support of her claims. It also found that the applicant was unable to provide a satisfactory response to alleviate the concerns that the Tribunal had with the credibility of her claims when this information was discussed with her at the hearing: CB 109, par 36.

   18. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations and it affirmed the decision under review: CB 110, pars 40-44.”

The proceeding before this Court

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

2. On 22 February 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court had 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.

3. I also explained to the applicant that the grounds of her application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that she wished to continue with the application. 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.

4. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has 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.

5. At the commencement of the hearing, the applicant confirmed that she has not filed any amended application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her application.

6. The applicant confirmed that she relied on the grounds contained in the application, filed on 15 November 2012 as follows:

   “1. Bias of RRT against the Applicant.

   2. Judicial Error of RRT in failing to take into account a relevant consideration, namely the evidence given by the Applicant.

   3. RRT’s denial of the Applicants evidence without conscience.”

7. 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 - “Bias of RRT against the Applicant”

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

2. I asked the applicant in what way she said the RRT was biased towards her. The applicant responded that she had burns and that the RRT had not believed her. A fair reading of the RRT’s decision record makes clear that the RRT accepted that she had burns but was not satisfied that they occurred in the circumstances alleged by the applicant.

3. 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).

4. Otherwise, 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]).

5. The applicant was directed on 22 February 2013 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the RRT hearing, by 12 April 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 12 April 2013.  However, no document was filed by the applicant either in accordance with those directions or otherwise.

6. A fair reading of the RRT 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]).

7. At the hearing before the RRT, the applicant confirmed that she feared persecution due to her house being demolished by Chinese authorities and her subsequent petitioning of the Chinese Government. The RRT then explored the applicant’s claims with her in some detail and put to her matters of concern it had arising from her evidence. In particular, as stated above, the RRT put to the applicant that two photographs from an article sourced from country information were copies of photographs submitted by the applicant as her own. The RRT explained the relevance of that information and invited the applicant to comment or respond immediately or in writing. The Applicant said she wished to respond immediately and the RRT noted her response. That information was given to the applicant in accordance with s.424AA of the Act.

8. There is nothing to indicate that the RRT did not fully comply with the requirements of s.424AA of the Act in giving information to the applicant that may be the reason or part of the reason for affirming the decision under review. Again, the applicant has not sought to prove non-compliance by tendering a transcript of the RRT hearing. In the absence of such evidence, the Court accepts that the RRT did comply with its statutory obligations in giving relevant information to the applicant for comment: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J.

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

1. The RRT noted that twice it invited the applicant to say anything else before closing the hearing. Ultimately, the RRT comprehensively rejected the applicant’s claims and found them to have been a fabrication. The RRT found that the applicant had not satisfied the refugee criterion in s.36(2)(a) of the Act for a protection visa.

2. The RRT also considered the alternative criterion of complementary protection in s.36(2)(aa) of the Act. Based on the information before it, the RRT found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Accordingly, the RRT affirmed the decision under review.

3. The RRT findings were open to it on the materials and evidence 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).

4. In the circumstances, A fair reading of the RRT 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]).

Ground 2- “Judicial Error of RRT in failing to take into account a relevant consideration, namely the evidence given by the Applicant”

1. Ground 2 was not supported by particulars, evidence or submissions.

2. I asked the applicant what the evidence was that she claimed the RRT had failed to take into account. The applicant responded that it was the evidence of her burns. The RRT considered the applicant’s claim that she had suffered burns as a result of the demolition by the authorities of her property in China. However, the RRT did not accept that the applicant’s burns occurred in those circumstances. The RRT did not reject the applicant’s claim to have burn marks on her body. It rejected the source of those burns.

3. The applicant’s complaint in support of Ground 2 misunderstands the RRT’s decision record and does not demonstrate any jurisdictional error on the part of the RRT.

Ground 3 - “RRT’s denial of the Applicant’s evidence without conscience”

1. Ground 3 was not supported by particulars, evidence or submissions.

2. I asked the applicant what was the complaint she was intending to make in Ground 3. The applicant responded that she did not know, but that she would be persecuted if she returned to China.

3. Ground 3 does not disclose any error capable of review by this Court. It appears more to be a disagreement with the findings and conclusions of the RRT. Such a complaint invites 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).

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material and submission 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. The RRT also identified independent country information to which it had regard. 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.

2. 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.

3. 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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 July 2013