SZSIS v Minister for Immigration
[2013] FCCA 1836
•15 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSIS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1836 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 91X |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 |
| Applicant: | SZSIS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2862 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 17 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the First Respondent: | Ms N. Johnson of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Border Protection”.
The application filed on 5 December 2012 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSIS.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2862 of 2012
| SZSIS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) filed in this Court on 5 December 2012 seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1200805, a decision of Tribunal Member A. Rozdilsky dated 5 November 2012, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.
In accordance with the Court’s orders of 19 February 2013, the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant was granted leave to file evidence in affidavit form, but elected not to do so. The applicant was further granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 15 April 2013. The applicant elected not to file an amended application.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.
The applicant is a male citizen of the People’s Republic of China (“China”) and is 43 years old. He arrived in Australia in July 2011 and lodged a Protection (Class XA) visa application on 18 October 2011 (CB 1-23). The applicant also provided written claims with his Protection visa application in the form of a typed statement (CB 24-26).
The applicant claimed to fear harm in China because of a land dispute with the Chinese authorities. The applicant’s claim was that the authorities sought his agreement to acquire land he owned in order to widen a road in Zhengkou Town, Gucheng County during March 2010, but the applicant refused as he considered the compensation being offered to him inadequate. The authorities allegedly demolished the applicant’s building by force on 29 April 2010 and detained the applicant for 15 days after attempting to stop the demolition where he was mistreated. After being released the applicant then applied to the Court in China to seek compensation, but received an unfair ruling by the Judge. The applicant then tried to appeal to a higher court, but was stopped and threatened by “thugs” on his way to lodge the appeal. The applicant went into hiding for approximately one year before coming to Australia.
The applicant provided a number of other documents to the Minster’s delegate, namely:
a)A Property Title Certificate of the People’s Republic of China (CB 32);
b)A Summons for the People’s Court of Gucheng County Hebei Province (CB 33);
c)A Business Licence for Private Sole-Trader Business and related business documents (CB 34-37);
d)A Certificate for Use of Collectively Owned Land (CB 38);
e)A Detention Notice from the Public Security Bureau (CB 39);
f)Photographs (CB 40-41);
g)A Ruling of the People’s Court of Gucheng Country (CB 42-46); and
h)A Tax Registration Certificate (CB 47).
It should be noted that all the documents above appear as English translations performed by the Yetao Language & Education Service.
The applicant was invited to attend an interview with a delegate of the Minister on 14 December 2011.
The Delegate’s Decision
On 3 January 2012 the delegate of the Minister made a decision refusing to grant the applicant a Protection visa (CB 65-80). The delegate noted there were a number of inconsistencies in the applicant’s evidence and was not satisfied the applicant’s property had been demolished or that the applicant had been arrested for obstructing any demolition work (CB 76). The delegate was also not satisfied the applicant commenced court action, was attacked by thugs or went into hiding for his safety (CB 77). The delegate did not accept that the documentary evidence that had been provided by the applicant were genuine documents and gave them little weight as to their authenticity (CB 79). Ultimately, the delegate was not satisfied the applicant was a person to whom Australia owed protection obligations under the Refugees Convention (CB 79).
Proceedings before the Tribunal
On 22 January 2012 the applicant lodged an application with the Tribunal seeking review of the delegate’s decision (CB 81-84). By letter dated 14 April 2012, the Tribunal invited the applicant to attend a hearing before it scheduled on 13 June 2012 (CB 87-90). The applicant attended the hearing which was adjourned to 16 October 2012 (CB 93-95). The applicant also attended the hearing on 16 October 2012 and gave evidence (CB 91-92, 95-96).
The Tribunal’s Decision
By decision dated 5 November 2012, the Tribunal affirmed the decision of the delegate to refuse the applicant’s application for a Protection visa (CB 97-112).
The Tribunal noted there were credibility concerns in relation to the applicant’s claims, but it found it unnecessary to make any adverse credibility findings against him. The Tribunal found that even accepting his claims in relation to the land dispute, he was not owed protection obligations on a number of alternative and independent bases (CB 107 at [74]).
The Tribunal found that the applicant’s delay in applying for a Protection visa until two months after his arrival in Australia was inconsistent with the applicant holding a subjective fear of persecution and demonstrated that he lacked any intention to further pursue any remedy in relation to the land dispute in China. The Tribunal found that the applicant did not have a subjective fear of persecution in China (CB 107 at [74]).
The Tribunal also found that the applicant’s fear of persecution lacked a Convention nexus. It found the applicant’s own evidence was that the purpose of the demolition of his property was to widen a road due to population growth in the area. The Tribunal found that the demolition of the property was undertaken for a legitimate public purpose and not for a Convention reason (CB 108 at [75]-[76]). The Tribunal found the applicant’s only dispute with the project was with the level of compensation offered to him and that the applicant took no steps to challenge the project on its merits or in relation to the claimed corruption of an official named Mr Chen. The Tribunal found that any harm that may have befallen the applicant in relation to the land dispute was not for reasons of his actual or imputed political opinion or any other Convention reason. The Tribunal also found that any future harm that may befall the applicant as a result of the land dispute would not be for a Convention reason, on account of his failure to pursue avenues of appeal open to him in the year he remained in China and the absence of any indication he would do so on his return (CB 108 at [77]).
The Tribunal further found that there was no real chance the applicant would face persecution on his return to China in the reasonably foreseeable future (CB 108-109 at [78]-[84]). The Tribunal again had regard to the applicant’s failure to pursue avenues of appeal open to him while he was in China and the lack of indication he would do so on his return (CB 109-110 at [80], [82]). The Tribunal also found that, even accepting the applicant had been detained and then beaten by “thugs”, those events were “isolated and remote in time” (CB 109-110 at [81]-[83]). The Tribunal had regard to the applicant’s evidence that he had continued to work and live in China for a year after these events occurred without facing any harm and that no harm had come to the applicant’s family during this time or since the applicant had been in Australia. The Tribunal also found the applicant had departed China on a valid passport without hindrance, indicating that he was of no interest to the authorities in China (CB 109-110 at [81], [83]).
For the reasons summarised at [11]-[14] above the Tribunal concluded that the applicant’s fear of persecution was not well-founded and that he was not owed protection obligations under the Refugees Convention (CB 110 at [84]-[86]).
The Tribunal found that the applicant had suffered no significant harm in China for a year prior to his arrival in Australia, had been able to depart China legally and found that his family had suffered no significant harm since the applicant’s departure. The Tribunal did not accept there was a real risk the applicant would suffer significant harm on his return to China (CB 110 at [87]).
Current Proceedings
The applicant’s Application to this Court seeks orders that the decision of the Tribunal be quashed and a writ of mandamus be issued to the Tribunal requiring it to determine the applicant’s application according to law. It contains three grounds of review, namely:
1. I appealed against th (sic) unfair compensation for the demolition of my residence and business premises, I have been beaten and threatened by the Chinese authorities, so I am forced to flee from China to Australia in order to escape from the authority’s continuing persecution. If I return to China, I will surely meet with persecution.
2. But the Tribunal’s conclusion is: “… that his fear is not well founded, and that there is no real risk that he will face significant harm in [China].” [in No. 74 of the Tribunal decision]
3. The Tribunal member failed to consider my application according to S91R of the Migration Act 1958 because of the Tribunal’s bias against me.
(original emphasis)
Applicant’s Submissions
The applicant elected not to file any written submissions in the proceedings before this Court.
At the hearing, when asked if he had any oral submissions to make in support of his application, the applicant stated:
…[The Tribunal] has made a wrong decision regarding my life experience. This is a discrimination against me. So I request my case to be sent back to RRT to be reviewed. I’m hoping you Honour would make a fair decision.
When asked if he had any submissions in response to the Minister’s written submissions, the applicant stated:
The decision against me, that was a wrong decision. Those experiences were my real experiences, so why wouldn’t they believe me? I am a lawful taxpayer in China, but they persecuted me cruelly. Why didn’t they believe us?
…
I want your Honour to make a fair decision.
Minister’s Submissions
The Minister argues that ground one of the Application is simply a restatement of the applicant’s claims. At its highest, ground one amounts to no more than a request for impermissible merits review and should be dismissed (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272).
In respect of ground two of the Application, the Minister argues it appears to be a continuation of the first ground of review. This ground does no more than disagree with the Tribunal’s conclusion that the applicant’s claimed fear “is not well founded, and that there is no real risk that he will face significant harm in [China]” (CB 107 at [74]). The findings of fact the Tribunal made in assessing the applicant’s evidence were open to it for the reasons it gave. The applicant’s assertion that the Tribunal ought to have arrived at a different conclusion on the evidence before it essentially amounts to a request for the Court to undertake merits review, which it cannot do (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra). The Minister submits ground two should also be dismissed.
Ground three of the Application alleges the Tribunal failed to consider the applicant’s application in accordance with s.91R of the Migration Act and the Tribunal was affected by bias. This ground is a precedent ground, raised in a number of applications before this Court. In the absence of particulars the Minister contends it is meaningless. The Tribunal clearly considered the applicant’s claims of harm and the reasons for which he feared persecution in China in accordance with the statutory requirements. Further, to the extent that this ground is an allegation of bias, the applicant has made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made, and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J). It is a rare case where a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]). It cannot be said in respect of the proceedings before this Court that the Tribunal did not take a fresh look at the applicant’s claims or that it prejudged those claims. Further, no inference of bias or prejudgment can be drawn from the mere fact there are adverse findings against the applicant in the Tribunal’s reasons (see VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]). The Minister submits this ground should be dismissed.
The Minister submits that none of the applicant’s grounds of review can be sustained and the Application should accordingly be dismissed with costs.
Consideration
The first two grounds of review contained with the Application can, effectively, be read together. These grounds restate the applicant’s claims for protection and criticise the Tribunal’s finding that the applicant’s claimed fear of persecution is not well founded and there is not a real risk the applicant will face significant harm in China, made at [74] of the Decision Record.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) their honours Brennan CJ, Toohey, McHugh and Gummow JJ stated at 272:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
(footnotes omitted)
I accept the Minister’s submissions that these grounds ask the Court to undertake impermissible merits review, which it cannot do. The findings of fact made by the Tribunal in respect of the applicant’s claims were open to it on the evidence before it and for the reasons given. There is no discernible error in the applicant’s first two grounds, nor is any error apparent on a fair reading of the Decision Record. Accordingly, grounds one and two of the applicant cannot be sustained and should be dismissed.
Ground three of the Application alleges that the Tribunal failed to consider the applicant’s claims as it was required to pursuant to s.91R of the Migration Act because of its bias against the applicant.
Section 91R of the Migration Act states:
Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The applicant has not further particularised this contention in either written or oral submissions. Their Honours Tamberlin, Mansfield and Jacobson JJ in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (supra) stated at [42]-[45]:
42. There are a number of judgments of single judges of the court in which the principles applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review have been stated. They are set out fully and analysed by Mansfield J in SBAU. It is unnecessary to repeat in detail his Honour's comprehensive review of the authorities. The propositions which emerge are summarised by us below.
43. First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial: see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590; BC200202281 at [49] per Heerey J and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805; BC200203466 at [25] per Hely J.
44. The fifth proposition is that the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review: SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547; BC200202335 at [35] per Mansfied J and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668; BC200202778 at [38] per von Doussa J.
45. Sixth, mere error or irrationality does not of itself demonstrate lack of good faith: SBAU at [29]. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism: see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713; BC200202974 at [24] per Allsop J quoted with approval in NAAV at [107] by Beaumont J.
Their Honours’ reasons accurately set out the steps the Court must undertake when an allegation of bias is put before it. There is a complete absence of particularisation in the applicant’s claims and, notwithstanding, a review of the Tribunal’s Decision Record reveals no instance where an allegation of bias against the decision maker could be sustained. The Tribunal had regard to s.91R of the Migration Act when considering the applicant’s claims at [77]-[86] of the Decision Records (CB 108-110). Consequently, this ground cannot be sustained and should be dismissed.
A complementary protection claim requires a real risk that the non-citizen will suffer significant harm if removed from Australia to a receiving country, whereas the Protection visa criteria is that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugee Protocol. In respect of this the Tribunal made the following finding at [87] of the Decision Record:
87. The Tribunal has also considered whether there are 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 he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal has had regard to the evidence and the claims put forward by the applicant. It again concludes in this context given the applicant’s ability to depart [China] legally, and the fact that his family in [China] has suffered no significant harm since his departure from [China], that there is no real risk that the applicant would suffer significant harm if returned to [China] in relation to the land dispute under Australia’s protection obligations under s.36(2)(aa). It finds that there is no real risk the applicant would face harm at the hands of the authorities in China as a result of the land dispute. The Tribunal does not accept that there is a real risk the applicant would face a risk to his life, a danger of torture or of cruel or unusual treatment or punishment if he returns to [China]. On the evidence before it the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in [China]. The Tribunal is not satisfied on the evidence, that a real risk of significant harm exists for the applicant. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.
(CB 110-111)
The Tribunal has had regard to the complementary protection criterion and made the finding that the applicant is not a person to whom Australia has protection obligations under that criterion.
On a fair reading of the Tribunal’s Decision Record, no jurisdictional error is apparent.
Consequently, the applicant’s Application should be dismissed with costs awarded to the Minister.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 15 November 2013
10
2