SZSIS v Minister for Immigration and Border Protection
[2014] FCA 146
•27 February 2014
FEDERAL COURT OF AUSTRALIA
SZSIS v Minister for Immigration and Border Protection [2014] FCA 146
Citation: SZSIS v Minister for Immigration and Border Protection [2014] FCA 146 Appeal from: SZSIS v Minister for Immigration & Anor [2013] FCCA 1836 Parties: SZSIS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 2444 of 2013 Judge(s): FARRELL J Date of judgment: 27 February 2014 Catchwords: MIGRATION – appeal from Federal Circuit Court – decision of Refugee Review Tribunal – refusal of protection visa – jurisdictional error – whether Refugee Review Tribunal’s findings open on evidence – allegation of bias on part of Refugee Review Tribunal – no particulars provided – no actual or apprehended bias – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749Date of hearing: 27 February 2014 Date of last submissions: 27 February 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr C Lenehan Solicitor for the First Respondent: 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 2444 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSIS
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
27 FEBRUARY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed, or failing agreement, as assessed.
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 2444 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSIS
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
27 FEBRUARY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of Judge Lloyd-Jones of the Federal Circuit Court delivered on 15 November 2013: SZSIS v Minister for Immigration & Anor [2013] FCCA 1836 (SZSIS). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 5 November 2012. The Tribunal affirmed the decision of a delegate (Delegate) of the first respondent (Minister) made on 3 January 2012 to reject the appellant’s application for a Protection Class (Class XA) visa (protection visa) lodged on 18 October 2011.
CLAIMS
The appellant is a citizen of the People’s Republic of China (China). He arrived in Australia in July 2011 travelling on a Subclass 456 Business (Short Stay) visa. On 18 October 2011 he applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) (Migration Act). The appellant first lodged an incomplete application for a protection visa on 16 September 2011.
The essential elements of the appellant’s claims for a protection visa are summarised by the primary judge at [5] of SZSIS:
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 TRIBUNAL’S DECISION
The Delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention. The Tribunal summarised the Delegate’s decision at [27] of the Tribunal’s decision record as follows:
The delegate noted that the applicant departed the PRC legally. The delegate noted that the applicant had further avenues of complaint available to him in relation to the land dispute. The delegate found the applicant not to be credible in relation to his claimed detention. The delegate noted that the applicant delayed lodging his protection visa application. The delegate questioned whether the applicant had title to the land in question. The delegate further related irregularities in the summons, ruling, tax certificate and detention notice provided by the applicant in support of his claims.
The appellant attended a hearing with the Tribunal on 13 June 2012 which was adjourned to 16 October 2012, and the appellant attended the later hearing as well.
The Tribunal’s decision record of 5 November 2012 reveals at [74] that notwithstanding several areas of concern about the appellant’s credibility identified, the Tribunal did not find it necessary to make any adverse credibility findings “having found that the applicant’s fear of persecution has no nexus to the Convention refugee definition, that his fear is not well founded, and that there is no real risk that he would face significant harm in the PRC.” The Tribunal found that the appellant’s delay in applying for a protection visa for two months after arriving in Australia was not consistent with a subjective fear of persecution and demonstrated his lack of intention to pursue further legal remedy in the land dispute in China.
The Tribunal found that the appellant’s dispute with the Chinese government related only to the level of compensation offered to the appellant for the expropriation of his land. He did not dispute the purpose of the expropriation and demolition and his testimony reflected the fact that the project was an infrastructure program that would appear to have been undertaken due to population growth in the local area, traffic congestion and a bottleneck in the roadway where his building once stood; the expropriation was therefore for a legitimate public purpose and for no other reason. The appellant did not appear to have voiced any concerns he may have had about possible bribes paid by contractors to government officials in connection with the project. Any possible harm to befall the appellant concerning this grievance would not be essentially or significantly for reasons of his actual or imputed political opinion. Given the appellant’s apparent failure to pursue available appeal processes open to him, the fact that he did not appear to have any intention to pursue those processes and the passage of time, the Tribunal found that the appellant’s fear of persecution related only to the quantum of the compensation offered to him, and any possible future harm would bear no nexus to the Convention refugee definition. The Tribunal found that, in the year preceding his arrival in Australia, the appellant had not suffered significant harm in China. It found that he had been able to leave China legally and that his family had not suffered significant harm since his departure. The Tribunal therefore did not accept there was a real risk the appellant would suffer significant harm on his return to China.
THE CURRENT APPEAL
The appellant filed his Notice of Appeal on 3 December 2013 and set out the following grounds (errors in the original):
1.I appealed againg the unfair compensation for the demolition of my residence abd business prenises, I have been beaten and threatened by the Chinese authorities. So I am forced to flee from China in order to escape from the Chinese authorities’ contuning persecution. If I returned to China, I will surely meet with persecution.
2.But, the Tribunal member’s concluding is:” … that his fear is not well-founded, and that there is no real risk that he will face significant harm in the PRC.” [ In No. 74 of the Tribunal decision]
3.The Ribunal member failed to consider my application according to S91R of the Migration Act 1958 because of the Tribunal’s bias against me.
4.The Federal Circuit Court dismissed my appeal on 17 Nov. 2013
The first three grounds are the same as the grounds as those set out in the appellant’s application for judicial review to the Federal Circuit Court (then the Federal Magistrates Court) on 5 December 2012.
The appellant appeared in person at the hearing of the appeal but did not provide written submissions. The Minister’s representative provided written submissions and appeared at the hearing.
The appellant submitted that the Tribunal had failed to accept his truthful evidence about the demolition of his property, his detention and the proceedings in the Court in China. He was concerned that due to language barriers and unfamiliarity with the process, he did not express himself well enough before the Tribunal. He did not understand why the Tribunal made the decision that it did and the one-sidedness of that decision makes him suspect that the Tribunal was biased against him.
Grounds 1 and 2
The primary judge considered that the first two grounds should be read together, and accepted the Minister’s submission that these grounds invited the Court to undertake impermissible merits review and relied on the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272: SZSIS at [20]-[21]. Having considered the Tribunal’s decision record, the primary judge considered that the Tribunal’s findings of fact in respect of the appellant’s claims were open to it on the evidence and dismissed Grounds 1 and 2 accordingly: SZSIS at [24]-[25]. I find no error with this reasoning and I dismiss these grounds of appeal.
Ground 3
The appellant did not provide to the primary judge particulars of his complaint in Ground 3 and neither the appellant nor the Minister provided to the primary judge either the transcript or a recording of the Tribunal hearings attended by the appellant.
The Minister’s submissions to the primary judge noted that: (1) an allegation of bias must be firmly and distinctly made and clearly proven, relying on Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J, and (2) that 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, relying on SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]: SZSIS at [22]. The primary judge considered those cases and the terms of s 91R of the Migration Act. He found that a review of the Tribunal’s decision record “reveals no instance where an allegation of bias against the decision maker could be sustained”: SZSIS [28].
The Minister’s submissions to this Court noted that the appellant had not made it clear whether he claimed actual or apprehended bias. The Minister’s Counsel submitted that no claim of actual bias had been distinctly made or proven. In relation to apprehended bias, Counsel referred to the decision of the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[30]. I consider that [31] of the High Court’s reasons is also relevant:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided . That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
The only particular of Ground 3 which the appellant provided to this Court is his statement that he did not understand why the Tribunal made the decision that it did and the one-sidedness of that decision makes him suspect that the Tribunal was biased against him. This is not sufficient to sustain a claim of actual or apprehended bias. I consider that the primary judge properly informed himself of the relevant law and, on my review of the Tribunal’s decision record, I agree with the primary judge’s findings and perceive no error in his decision to dismiss Ground 3.
Ground 4
This ground is a generalised complaint that the primary judge dismissed the appellant’s application to the Federal Circuit Court. He has provided no particulars of complaint under this heading and, on my review of the primary judge’s reasons, I perceive no error. This ground cannot be sustained.
CONCLUSION
The appellant’s appeal should be dismissed. The appellant should pay the first respondent’s costs as agreed, or failing agreement, as assessed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 27 February 2014
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