SZSHZ v Minister for Immigration and Border Protection

[2013] FCA 1179

FEDERAL COURT OF AUSTRALIA

SZSHZ v Minister for Immigration and Border Protection [2013] FCA 1179

Citation:	SZSHZ v Minister for Immigration and Border Protection [2013] FCA 1179
Appeal from:	SZSHZ v Minister for Immigration & Anor [2013] FCCA  752
Parties:	SZSHZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1255 of 2013
Judge:	JACOBSON J
Date of judgment:	11 November 2013
Legislation:	Migration Act 1958 (Cth) ss 65, 91R(3), 425
Date of hearing:	11 November 2013
Date of last submissions:	11 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	33
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr R White of Sparke Helmore
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1255 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZSHZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	11 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended from “Minister for Immigration and Citizenship” 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 1255 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZSHZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	11 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from orders made by a judge of the Federal Circuit Court of Australia (Judge Cameron) delivered on 12 June 2013.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 November 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). 

2. The appellant is a citizen of China who claimed to have a well-founded fear of persecution on the grounds of religion, political opinion or membership of a particular social group.  The essence of the claimed belief was that the appellant was persecuted in China by reason of his alleged involvement with Falun Gong. 

3. The claims which he made were set out in a written statement dated 3 January 2012 which formed part of his application for a protection visa.  The appellant was assisted in his application by a migration agent who is referred to in the written application. 

4. A delegate of the Minister handed down the decision refusing to grant the protection visa on 29 May 2012.  The delegate said that she had considered the information in the appellant’s statement and the recording of an interview with the appellant in which he was asked to elaborate on his claims, including the reasons for his conversion to, and knowledge of Falun Gong. 

5. The delegate found that the appellant’s written claims were vague and unsubstantiated, despite being legally represented and despite the four months that had elapsed between the lodgement of his protection visa application and the time of his protection visa interview.  The delegate found that the appellant was not a genuine Falun Gong practitioner. 

6. The delegate stated that in relation to the appellant’s practice of Falun Gong in Australia, the appellant had engaged in that conduct solely for the purpose of strengthening his claim to be a refugee under s 91R(3) of the Act.

   THE TRIBUNAL’S FINDINGS

7. The appellant made an application for review to the Tribunal.  He was assisted in that application by the same migration agent who had assisted him in his application for the protection visa.  The Tribunal’s decision is a lengthy one which occupies 30 pages of the Appeal Book commencing at page 79. 

8. The essential findings of the Tribunal commence at [118] which sets out the essence of the Tribunal’s reasons.  The Tribunal found that the appellant was not a truthful witness and it came to the conclusion that he had fabricated his claims for protection. 

9. The Tribunal went on to set out the reasons why it had formed that adverse view of the appellant’s credibility.  It referred at [119] to what it called significant inconsistencies in respect of central elements of the appellant’s claims for protection. 

10. It referred, at [119], to what is described as an inconsistency between the appellant’s written claims which stated that the police put him in detention, whereas at the hearing, the appellant is said to have given evidence that he was never charged with or accused of any crime in China. Another inconsistency to which the Tribunal referred is set out at [121]. There, the Tribunal states that:

    The applicant’s evidence in the hearing about his treatment in detention was inconsistent with his written claims.  In particular, the appellant’s written statement referred to being tortured by the police but in his evidence to me he claimed he was mistreated by his cellmates, not the police.

11. It is unnecessary to refer to the other inconsistencies or concerns expressed by the Tribunal but insofar as they are relevant to the matters raised in the submissions, I will return to them shortly. 

    THE COURT BELOW

12. The decision of the Circuit Court judge sets out in some detail the background facts, including details of the protection visa application and the proceedings before the Tribunal. 

13. The judge also refers, commencing at [8], to the grounds which were raised in the application for judicial review.  The first of the grounds was bias, which the judge rejected at [11] to [12] of his reasons. 

14. The second ground was that the Tribunal had denied the appellant procedural fairness by failing to provide adequate reasons.  The judge also rejected that ground of review, stating at [14] that the Tribunal had expressed adequate reasons for the finding that the appellant had fabricated his claims.

15. The appellant raised a number of other grounds of review in an affidavit filed in the Federal Circuit Court.  The Circuit Court judge rejected those grounds at [15] to [18] of his reasons. 

16. His Honour also rejected a number of submissions made at the hearing, observing at [20] that any errors in translation, to which the appellant pointed, could not have led to a situation in which he was denied a hearing in accordance with the provisions of s 425 of the Act.

    THE CURRENT APPEAL

17. The notice of appeal from the Federal Circuit Court of Australia states three grounds of appeal, the first two of which merely repeat the matters stated in the application for judicial review which was rejected by the Circuit Court judge. 

18. The third ground of appeal is that the Tribunal made “an offensive finding” which was based on no evidence.  The finding of which the appellant complained appears to be the finding that he had fabricated his claims for a protection visa. 

19. The appellant appears in person this afternoon.  He has been assisted by a Mandarin interpreter.  The effect of what the appellant seeks to raise before me is that the Tribunal failed to address a number of his claims.

20. If he were able to make good those submissions that may amount to jurisdictional error on the part of the Tribunal.  So too, that may be sufficient to point to error on the part of the Circuit Court judge. 

21. The principal matters of which the appellant complains are as follows.  First he says that the Tribunal rejected his case because there was insufficient evidence in writing of matters that were central to his claim such as, for example, a certificate of his detention.  He submitted that he did not know before he came to Australia that he should bring such documents with him. 

22. A second matter of which he complains is that the Tribunal did not pay attention to scars on his face which he says he obtained when he was persecuted in China. 

23. A third matter to which he refers is in effect that the Tribunal mischaracterised his claims in relation to his involvement with Falun Gong.  In particular he says that he did not practise Falun Gong in China but that his crime was to become a Falun Gong organiser. 

24. The matters of which the appellant complains this afternoon do not sufficiently characterise the basis upon which the Tribunal dealt with his claims. 

25. First, the Tribunal did not simply reject his claims because he had insufficient evidence.  This can be seen by reference to [93] of the Tribunal’s reasons.  The Tribunal put to the appellant that in his interview with the delegate he said he could provide information that supported his claims. 

26. The Tribunal member therefore explained that the information upon which the Tribunal proceeded was his failure to provide corroborating documents after previously indicating he could arrange to provide such documentation.  This led the Tribunal member to conclude that the appellant did not have such documents. 

27. Second, as to the complaint about the scars on his face, it is sufficient to refer to a number of paragraphs of the Tribunal’s reasons.  The content of what took place at the hearing on this topic commences at [62] of the decision record. 

28. The Tribunal’s reasoning process is set out at [121], to which I have already referred.  That is to say, the Tribunal relied upon inconsistencies between the content of the written statement, in which he said that the scars had resulted in torture by the police, whereas in his evidence to the Tribunal he claimed he was mistreated by his cellmates, not by the police. 

29. Third, it is not correct to say that the Tribunal mischaracterised the appellant’s claim in relation to his involvement with Falun Gong.  That matter was clearly addressed at [119] of the reasons in which the Tribunal referred to the inconsistency between the appellant’s written claims and what he told the Tribunal at the hearing. 

    CONCLUSION AND ORDERS

30. It follows from what I have said that the appellant has failed to point to any jurisdictional error in the reasons of the Tribunal, nor has he made good the third ground of appeal in the notice of appeal, namely, that the finding against him was based on “no evidence”. 

31. The Tribunal’s reasons were comprehensive; they dealt in detail with his claims and with the matters which were raised in the court of the oral hearing.  The findings that the appellant’s evidence was untruthful are supported by the detailed reasons given by the Tribunal in its decision record. 

32. Finally, the first and second grounds in the notice of appeal are without substance for the reasons given by the Federal Circuit Court judge. 

33. Accordingly, the orders that I will make are that the appeal be dismissed with costs. 

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        11 November 2013