SZSFH v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 1256

FEDERAL COURT OF AUSTRALIA

SZSFH v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1256

Citation:	SZSFH v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1256
Appeal from:	SZSFH v Minister for Immigration & Anor [2013] FCCA 1290
Parties:	SZSFH and SZSFI v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1903 of 2013
Judge:	WIGNEY J
Date of judgment:	20 November 2013
Catchwords:	MIGRATION – Appeal – Appeal from the Federal Circuit Court – Judicial review of a decision of the Refugee Review Tribunal
Legislation:	Migration Act 1858 (Cth)
Date of hearing:	20 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
First Appellant:	The first appellant appeared in person
Second Appellant:	The second appellant appeared in person
Solicitor for the First Respondent:	B. Rayment of Sparke Helmore
Second Respondent:	The second respondent filed a submitting notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESNSD DISTRICT REGISTRY
GENERAL DIVISION	NSD 1903 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSFH
First Appellant

SZSFI
Second Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	20 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first respondent's name be amended to 'Minister for Immigration and Border Protection'.

2.The appeal be dismissed.

3.The appellants pay the costs of the first respondent

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 1903 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSFH
First Appellant

SZSFI
Second Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE:	20 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of appeal filed on 13 September 2013, the appellants appeal from a decision of a judge of the Federal Circuit Court of Australia, delivered on 27 August 2013, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 22 October 2012.

   Background and Claims

2. The appellants are de facto spouses and are citizens of China.  The first appellant arrived in Australia on 4 November 2007 as the holder of a student visa.  On 22 August 2011, the first appellant applied to the first respondent (the Minister) for a protection visa.  The second appellant applied for a protection visa on the basis that he was a member of the first appellant's family unit. To the extent that the second appellant advanced any claims, they were derived from or depended entirely on the first appellant's claims.  On 20 October 2011, a delegate of the Minister refused the appellants' protection visa applications.   

3. The claims made by the first appellant in support of her protection visa application are set out at great length in the Tribunal's reasons.  They are summarised by the learned Federal Circuit Court judge at paragraphs [2]-[3] of the judgment under appeal.  In very brief terms, the first appellant claims that her family in China owned a restaurant that was compulsorily acquired by the Chinese government in 2011. Her parents received no compensation but were offered a small amount of money by the government, apparently, to "save face".  In response to the actions of the government, the first appellant and her family began organising and participating in anti-government protests.  As a result, her parents were detained for a period of time. 

4. The first appellant said that she then began to post anti-government information and statements on a website.  She claimed that as a result of her actions she would face persecution if returned to China.  She said that a summons for her arrest was currently active.

   The Tribunal's Decision

5. The Tribunal found that the first appellant was not a witness of truth and rejected virtually all of her factual claims.  In its reasons for decision the Tribunal sets out in great detail the facts and circumstances that led it to conclude that the first appellant was not a reliable witness and that her evidence was not credible.  The Tribunal had the benefit of seeing and hearing the first appellant give evidence, as well as having before it the first appellant's written claims and the evidence given by her during an earlier interview with the delegate.   

6. To a large extent, the Tribunal's adverse credibility findings were based on material inconsistencies between the first appellant's written claims and her evidence before the Tribunal.  These inconsistencies are detailed at length in the Tribunal's reasons.  They include inconsistent accounts given by the first appellant in seeking to explain why she had not provided, to either the Minister or the Tribunal, copies of documents which supported or corroborated her claims that she said were in existence.  The Tribunal also referred to other inconsistencies and difficulties arising from other aspects of the first appellant's evidence.  Having rejected the first appellant's claims, the Tribunal reasoned that it followed that any derivative claims advanced by the second appellant must also be rejected. 

7. Having rejected the appellants' claims, the Tribunal found that there was no real chance that the appellants would suffer persecution should they return to China.  As a result, the Tribunal affirmed the delegate's decision to refuse the protection visa applications.

   Proceedings in the Federal Circuit Court of Australia

8. On 16 November 2012 the appellants filed an application in the Federal Circuit Court seeking an order that the decision of the Tribunal be quashed and a writ of mandamus directed to the Tribunal requiring it to determine the appellants' applications according to law.  The appellants advanced two grounds in support of the application.  As set out in the application for review, they were:

   1.        Immigration Department was unfair to us.

   2.        We are not treated fairly according to law.

9. In relation to the first ground, in oral submissions made at the hearing before the Federal Circuit Court, the appellants submitted that the relevant "unfairness" was that the Tribunal failed to inform the appellants of the documents they needed to prepare their case.  In relation to that submission, the learned Federal Circuit Court judge held that in the circumstances the Tribunal was under no such general obligation and that it was for the appellants to satisfy the Tribunal that they were persons to whom Australia owed protection obligations.  Significantly, his Honour found that it was apparent that throughout the history of the appellants' application it was the appellants who were volunteering to provide documents that they were not ultimately able to provide.  The existence of documents supposedly supporting the first appellant's claims was referred to in her initial written claims and was the subject of discussion with both the delegate and the Tribunal.  As has already been noted, the first appellant's reasons for not producing the documents were not always consistent. 

10. In relation to the second ground, at the hearing before the Federal Circuit Court the appellant essentially complained that the Tribunal did not accept the appellant's reasons as to why she was unable to provide supporting documents.  The Federal Circuit Court judge found, in effect, that this complaint amounted to no more than impermissible merits review.

11. The appellants also submitted before the Federal Circuit Court that the Tribunal failed to consider relevant country information.  The learned Federal Circuit Court judge found that this allegation had no merit and pointed out that the Tribunal's reasons contained a lengthy discussion of the relevant country information. 

12. The Federal Circuit Court judge ultimately found that the Tribunal's findings were open to it on the evidence before it and for the reasons it gave.  The grounds advanced before the Federal Circuit Court did not reveal any jurisdictional error on the part of the Tribunal. 

    The Appeal to this Court

13. The notice of appeal filed by the appellants on 13 September 2013 in this Court raises three grounds of appeal:

    1.        RRT didn't follow the procedural fairness.

    2.        RRT made jurisdictional error by not considering my evidence.

    3.        RRT didn't give me opportunity to explain my situation.

14. It can be readily seen that the broad and sweeping contentions of error on the part of the Tribunal are bereft of any meaningful particulars.  They are directed at the findings and reasons of the Tribunal, not the judgment of the Federal Circuit Court on review, and raise different arguments to those that were advanced in the Federal Circuit Court.  No written submissions have been filed by the appellants.  Oral submissions were made by the first appellant on behalf of both appellants.  Regrettably, but perhaps understandably given that the appellants are both unrepresented, the submissions that were advanced did not provide any meaningful details or assistance in relation to the asserted errors on the part of the Tribunal. 

15. In relation to ground 1, the appellants contended that the relevant "unfairness" was that even though the appellants were unable to obtain documents to support their case, they should have been given more time to fully consider their case.  It was submitted, in the context of this ground, that the Federal Circuit Court delivered its judgment too quickly and that the appellants did not have time to consider it.  In relation to ground 2, the appellants were unable to explain in their oral submissions what evidence they contended the Tribunal did not consider.  In relation to ground 3, the appellants' submissions were again to the effect that the judgment was delivered too quickly. 

    Consideration and disposition

16. The appellants have not advanced, let alone made out, any error on the part of the Federal Circuit Court beyond making broad and unparticularised assertions.  Those assertions are devoid of substance and any merit.  No error capable of amounting to a jurisdictional error on the part of the Tribunal has been articulated, let alone demonstrated. 

17. In relation to ground 1 of the notice of appeal, Division 4 of Part VII of the Migration Act 1958 (Cth) provides an exhaustive statement of the natural justice hearing rule in relation to the conduct of reviews by the Tribunal. The appellants did not contend that the Tribunal failed to comply with any provision in Division 4. Nor is there any indication in the Tribunal's reasons or the materials before this Court to suggest any such non-compliance.

18. Even if broader principles of procedural fairness were applicable, there is no basis for any claim that the appellants' application for review was dealt with unfairly by the Tribunal.  The appellants were given ample opportunity to advance their case and explain any potential inconsistencies or issues with their claims or evidence.  As the learned Federal Circuit Court judge found, they were given ample opportunity to produce any supporting documents or explain why they could not be produced.  The Tribunal's reasons reveal that it was the appellants who raised the potential existence of documents and the fact that they might be able to be obtained.  As the Tribunal found, the appellants' explanations for why they could ultimately not produce the documents were not always consistent or plausible. 

19. As for the second ground of appeal, as already indicated the appellants were unable to identify any evidence that was not considered by the Tribunal.  A fair reading of the lengthy reasons of the Tribunal reveals that the Tribunal gave detailed consideration to all of the appellants' claims and evidence, both written and oral. 

20. Ground 3 of the notice of appeal also has no merit.  The appellants were given every opportunity to present their case to the Tribunal.  The appellants both gave evidence at the Tribunal hearing.  There is no substance to the contention that the Tribunal did not give them the opportunity to explain their "situation". 

21. The Federal Circuit Court was correct to reject the broader grounds that were raised before it for the reasons given in the judgment under appeal.  No error in the reasons for judgment of the Federal Circuit Court has been pointed to, let alone made out by the appellants.

22. There was, and is, no basis for any claim that the appellants' claims were dealt with unfairly or not in accordance with the law.  It is readily apparent from the appellants' submissions, both before the Federal Circuit Court and this Court, that they are under the misconception that the Federal Circuit Court and this Court are able to review and consider the merits of their visa applications and review application before the Tribunal.  Their real complaint amounts to no more than a complaint that their claims were not accepted by the Tribunal.  The Federal Circuit Court was correct to dismiss the application before it on the basis that no jurisdictional error on the part of the Tribunal was revealed. 

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:

Dated:       20 November 2013