SZSJK v Minister for Immigration

[2013] FCCA 559

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJK & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 559

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

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 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
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
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
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
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant: SZSJK

Second Applicant: SZSQM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2922 of 2012

Judgment of: Judge Emmett

Hearing date: 18 June 2013

Date of Last Submission: 18 June 2013

Delivered at: Sydney

Delivered on: 18 June 2013

REPRESENTATION

The first named applicant appeared in person on behalf of both applicants with the assistance of an interpreter

Solicitors for the Respondents: Ms Michelle Stone
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2922 of 2012

SZSJK

First Applicant

SZSQM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

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 19 November 2012 and handed down on 21 November 2012 (“the RRT”).

2. The applicants claim to be a citizen of the People’s Republic of China (“China”) and of Christian faith. The first named applicant (“the Applicant”) is the defacto wife of the second named applicant. The second named applicant completed an application for a protection visa as a member of the Applicant’s family unit without claims of his own.

3. To the extent that the second named applicant was intending to do no more than join in the Applicant’s application for judicial review of the RRT’s decision as a member of the Applicant’s family unit, his claims are dependent on those of the Applicant.

4. For those reasons, these Reasons deal only with the claims of the Applicant.

5. 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 and a summary of the RRT’s review and decision.

Background

1. The Applicant arrived in Australia on 12 March 2008 having departed legally from China on a passport issued in her own name and a TU571 Student visa issued on 19 February 2008. The second named applicant arrived in Australia on 9 March 2008 having departed legally from China on a passport issued in his own name and a TU571 Student visa.

2. On 21 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 11 May 2012, the Delegate refused the Applicant’s application for a protection visa.

4. On 5 June 2012, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 19 November 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 11 December 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)When the Applicant was young, she attended a house church with her family.

   b)The Applicant’s father was a successful businessman and they held church gatherings in their home, and took turns attending different members’ houses.

   c)In March 2006, the police raided a church bible study gathering and took all the members to the police station. The Applicant was released after a few days due to her young age and her mother paid bribe money to secure her father’s release. The Applicant’s father was mistreated and tortured during his detention.

   d)From that time on the police would come regularly and ask the family questions.

   e)The Applicant’s teachers and school leaders asked her to write a letter of assurance that she would not attend the house church. After she finished junior high school, no school would admit her because her student record indicated that she had been captured by the police.

   f)Since the Applicant arrived in Australia, she has attended different bible study sessions. Her family in China was captured again during a house gathering and her father was detained for 5 months and her mother was detained for 1 month. They had to pay large amounts of money to get released.

The Delegate’s decision

1. On 11 April 2012, the Applicant was invited to attend an interview with the Delegate on 1 May 2012. The Applicant did not attend the interview. 

2. On 11 May 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 Applicant did not provide any evidence in support of her claims and the Delegate found the information given by her at her interview to be limited and vague regarding her Christian beliefs. The Delegate did not accept that the Applicant is a Christian or is of adverse interest to authorities in China for any Convention-related reason. The Delegate also had regard to the fact that the Applicant had not applied for protection until three years after her arrival in Australia which it found to indicate that she had no fear of persecution.

The Tribunal’s review and decision

1. On 5 June 2012, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The Applicant provided no further documents in support of her review application.

3. On 1 August 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.

4. On 12 September 2012 and 24 October 2012, both applicants attended the RRT hearing and gave evidence.

5. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The RRT found the Applicant was not a witness of truth.

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

   “12. The RRT did not accept that the applicant had attended Church in Australia, that she was a Christian, or that she had participated in Church gatherings in China.   The RRT accordingly dismissed all of the applicant's associated claims. These findings were based on an assessment of the applicant's evidence, which the RRT considered was vague, internally inconsistent, and demonstrated a lack of knowledge of the Christian faith.  The RRT also considered that the delay in the applicant lodging her Protection visa application undermined her claims.

   13. On the basis of country information, the RRT did not accept that the applicant would be persecuted for being a failed asylum seeker.

   14. The RRT found on the basis of country information that the applicant would need to pay a social compensation fee to register her child, and found that the applicant would be able to pay this fee given the applicant's evidence that her parents are wealthy.  The RRT did not accept that the applicant would otherwise suffer harm or discrimination due to her child being born out of wedlock.”

The proceeding before this Court

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

2. On 7 March 2013, the Applicant attended a directions hearing. 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.

3. 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.

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

5. The Applicant confirmed that she relied on the grounds contained in the application filed on 11 December 2012, as follows:

   “1. The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.

   2. Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing, as such, the explanation of the delay in applying for the protection visa and about the Bible as well as the response to the questions about whether anything further happened to her parents in relation to their continued involvement in the house church and about how she applied Christian teachings in her everyday day.

   3. RRT’s unreasonable suspect of the truthfulness of the applicant’s claims just because of the lack of evidence. ”

6. 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.

7. I explained to the Applicant that the role of this court was very different to the RRT and that the only issue before this court was whether or not the RRT’s decision was made according to law.  I explained to the Applicant that the Court has no power to interfere with the decision of the RRT unless the Court is satisfied that there is a mistake in the decision of the RRT that goes to its jurisdiction. I explained that disagreement with the findings and conclusions of the RRT rarely, by itself, establishes such a mistake.

Ground 1

1. Ground 1 asserts that the RRT’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.

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

3. I asked the Applicant in what way the RRT was biased and she answered that the RRT had said that her claims are not comprehensive. She chose not to elaborate any further.

4. 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).

5. 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]).

6. There was no transcript of the RRT hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 19 April 2013, the Applicant was given an opportunity to file a transcript of the RRT hearing. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence.

7. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

8. A fair reading of the RRT’s 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]).

9. A fair reading of the RRT’s 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]).

10. Accordingly Ground 1 is not made out.

Ground 2 and Ground 3

1. Ground 2 and Ground 3 complain about various findings of the RRT.

2. Neither Ground 2 nor Ground 3 was supported by particulars, evidence or submissions.

3. The Applicant said nothing further in support of either ground other than to assert that the RRT had not believed her or accepted her claims.

4. In the circumstances, Ground 2 and Ground 3 do not identify any jurisdictional error on the part of the RRT and do no more than disagree with the findings and conclusions of the RRT. Such complaints invite 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).

5. A fair reading of the RRT’s decision record makes clear that the RRT explored the Applicant’s claims with her at two hearings and put to the Applicant concerns it had about her claims including inconsistencies that the RRT found to arise in her evidence. The RRT also put to the Applicant country information before it and invited her to comment.

1. The RRT found the Applicant’s evidence to be “often very hesitant, general and lacked specificity despite the Tribunal’s attempts to elicit information from her.” The RRT found the evidence in relation to her claiming to be Christian to be vague. The RRT found that the Applicant demonstrated no understanding or knowledge of the Christian faith when questioned. The RRT made that finding in the context of noting that care needs to be taken to ensure that the RRT does not take on the role of an arbiter of doctrine with respect to a religion. Ultimately, the RRT comprehensively rejected the Applicant’s claims to be a Christian or to have participated in Christian activities either in China or in Australia. 

2. The RRT also rejected the Applicant’s claims to be a failed asylum seeker or to fear persecution as an unmarried mother. The RRT also found that even if the Applicant was required to pay a penalty to register her child in China, she had the resources to pay such a fine, based on her consistent evidence that her parents were wealthy. The RRT also found that there was no evidence before it that a person who gives birth overseas in breach of family planning regulations will face difficulty re-entering China.

3. The RRT’s 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).

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicants; explored those claims with the Applicant at two hearings. 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 fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  18 June 2013