SZSKO v Minister for Immigration
[2013] FCCA 558
•17 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSKO v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 558 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – application to the Court fails to raise an arguable case – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 91R, 476 |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZSKO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3007 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 17 May 2013 |
| Date of Last Submission: | 17 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2013 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondent: | Ms N Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application made on 17 December 2012 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3326.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3007 of 2012
| SZSKO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me today an application, made on 17 December 2012, pursuant to s.476 of the Migration Act1958 (Cth), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 15 November 2012, which affirmed the earlier decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse a protection visa to the applicant.
Background
The Minister has put before the Court a bundle of relevant documents (Court Book - “CB”). The following can be ascertained.
The applicant before the Court is a national of the People’s Republic of China (“China”) (CB 12). He arrived in Australia on 6 November 2011 (CB 13). He applied for a protection visa on 9 January 2012 (CB 1 to CB 52, including attachments).
The applicant’s claims, as initially made, were that he feared harm from the Chinese authorities because he had brought Falun Gong materials illegally into China from Japan, and that he had given these materials to a friend (CB 50). He also claimed that he had assisted the friend in copying those materials. The friend was subsequently arrested and the applicant fled China because he feared that the friend would “confess”, and that the applicant also would be arrested (CB 51).
The Delegate
The applicant was interviewed by the Minister’s delegate and, amongst other things, the delegate found that the applicant was not a reliable witness. The delegate said (CB 77):
“Frequently, during the interview the applicant’s testimony appeared evasive, contradictory and contrived, and I found significant elements not to be plausible and contradicted known country information. Based on this I formed the view that many elements of his claims were exaggerated, omitted or fabricated in the belief that it would enhance the success of his application.”
Not surprisingly, in light of that, the application for a protection visa was refused.
The Tribunal
The applicant then applied to the Tribunal for review of that decision. Before the Tribunal, the applicant expanded his claim to fear harm to include a fear because, as he said, his factory was bankrupt, he had not paid his taxes ([48] at CB 120 to [53] at CB 121). Further, because he had, what he described as, a “fatal illness” for which he could not afford medicine in light of his “bankruptcy” ([70] at CB 124).
It is quite clear that the Tribunal’s key finding is to be found at [97] of its decision record (CB 131). The Tribunal said as follows:
“I find that the applicant was not a truthful witness and I have come to the conclusion that he has fabricated his claims for protection. In reaching this view, I have had regard to significant inconsistencies within the applicant’s evidence and the vague and contradictory character of his evidence to the Tribunal. The applicant’s claims are not otherwise credible by reason of corroborating evidence, internal logic, consistency over time, consistency with country information, or persuasive or relevant detail.”
The Tribunal then proceeded to set out, in some detail, its findings as against each of the subset of claims that the applicant had put forward as the basis of his fear of harm. I note that in relation to the claims relating to his support of his Falun Gong practitioner friend, the Tribunal found the applicant’s evidence was “vague and hesitant” and contained “inconsistencies” ([98] at CB 131). The Tribunal said it was particularly concerned about his “vague” description of the Falun Gong materials he said he had brought back to China from Japan ([99] at CB 131). The Tribunal found that this contrasted with the detailed description of the Falun Gong material that the applicant had given in his written statement which he had initially provided with his protection visa application. The Tribunal said that the applicant’s explanation for this cast further doubt on his credibility ([98] at CB 131 to [99] at CB 132).
The Tribunal also found that further doubt was cast on this particular claim by the fact that the applicant was able to depart China without difficulty, two months after he claimed that his friend had been arrested ([100] at CB 132). The Tribunal also found the applicant’s evidence that the authorities visited his factory after he arrived in Australia to be “vague and unconvincing”, “hesitant and lacking in detail” ([101] at CB 132).
In relation to his claims relating to the “bankruptcy” of his factory, debts and financial hardship, the Tribunal found that its doubts about the credibility of these claims were also reinforced by the applicant’s “vague and unpersuasive” evidence that he was suffering from a “fatal illness” and, further, that his factory was now “bankrupt”. In all, the Tribunal found that that evidence was also “evasive and unconvincing”. It therefore formed the view that the claims had been fabricated ([102] at CB 132 to [104] at CB 133).
In relation, specifically, to the health related aspect of the applicant’s claims, the Tribunal accepted that the documents that the applicant had provided were genuine. However, the Tribunal was not satisfied that the applicant’s health problems would place him at risk of “serious harm”. It gave reasons for this.
In all, therefore, the Tribunal found that its concerns about the applicant’s credibility were significant and that the combination of these concerns was said to be fatal to the applicant’s credibility. It rejected the applicant’s factual claims in this light and found that the claimed events in China were fabricated in their entirety ([109] at CB 134 to [113] at CB 135)
The Tribunal also considered the applicant’s claims in light of the complimentary protection criterion found in s.36(2) of the Act and found that there was not a real risk that the applicant would suffer significant harm if he returned to China ([114] at CB 135 to [115] at CB 136).
Before the Court
The grounds of the application to the Court are as follows:
“1. My school mate, Mr Cui Yanzhi had saved my life and suffered cancer, but, his practising Falun Gong cured his illness. I bought some Falun Gong materials for him from Japan and copied 50 copies at his requirement. He was arrested by the local authorities. His wife informed me of the terrible news, therefore, I had to flee to Australia due to fearing being found that I had given Falun Gong materials to him for which I will be persecuted.
2. The Refugee Review Tribunal failed to comsider my aplication according to S91R of The Migration Act 1958 because of the Tribunal member had bial against me.
3. The Tribunal member made jurisdictional error while making hid decision.”
[Errors in the original.]
At the time of the first Court date in this matter the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. I attempted to explain to the applicant the nature of these proceedings. I noted that the grounds of the application, as stated, would be of little assistance to him.
In this light, he was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. Orders were made providing the applicant with the opportunity to file any amended application, and any evidence in support of any such application. The applicant was specifically put on notice at that time that if he filed nothing further his case may not proceed beyond the next Court event.
That next Court event was today. The applicant again appeared in person. He was similarly assisted by an interpreter in the Mandarin language. Ms N Johnson appeared for the respondent Minister.
Nothing further has been filed by the applicant in these proceedings. Unsurprisingly, the Minister today sought that the Court proceed immediately to a “show cause” hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
In the circumstances, I agreed that this was an appropriate course of action. It is important to note that the relief the applicant seeks is essentially an order that the decision of the Tribunal be quashed. In essence, I saw this as a request for relief in the nature of a writ of certiorari, which is a matter of discretion in this Court. He also sought relief in the nature of a writ of mandamus requiring the Tribunal to
re-determine, or to determine, his application according to the law.
Before the Court today, the applicant confirmed that he had received legal advice. I note on the file of the Court, a Certificate from a lawyer on the panel of the “RRT Legal Advice Scheme” that the applicant had met with the lawyer and that written advice had been provided to him. I should also note that the lawyer in this case was Mr Julian Gormley of Counsel who, it must be said, regularly appears for applicants before the Court in matters of this type.
It was quite clear that the applicant’s complaints as made before the Court, did not assist or expand on the grounds of the application as stated.
The issue before the Court today is, in essence, whether the application itself raises any arguable case for the relief that the applicant seeks. The applicant’s submissions to the Court were simply an expression of his grievance and his disbelief that the Tribunal, in turn, disbelieved him. His claim was that the Tribunal did not believe him, in essence he had told the truth, and he could not accept that the Tribunal did not believe him.
As I sought to explain to the applicant, in the circumstances, it was not of assistance to him in raising an arguable case for the relief sought. As is quite clear, findings of fact, including findings on credibility, are for the decision maker (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). That is, for the Tribunal to make in its role, or function, as the decision maker “par excellence”.
In essence, as I also sought to explain to the applicant, the Court has no power to intervene where the Tribunal makes an adverse credibility finding in circumstances where that finding, and its constituent findings are reasonably open to the Tribunal to make on what was before it, and for which it gave reasons. Even if the Court were to disagree with the Tribunal, the Court cannot intervene.
The applicant also asked the Court to return his matter to the Tribunal or, in the alternative to intervene and provide him with protection because he understood Australia was a “lenient country”. It is unhelpful to the applicant to pursue what may be meant by the term, “lenient country”. But I can simply note that such a submission does not assist in revealing any arguable case that the Tribunal fell into jurisdictional error. The Tribunal does not have to uncritically accept what the applicant put to it. The exercise of its statutory function such that a protection visa must be granted to the applicant (s.65 and s.36(2) of the Act), cannot be exercised capriciously.
None of the grounds of the application raise an arguable case for the relief sought. Ground one merely restates some of the applicant’s factual claims put before the Tribunal. It must be said that even on the most charitable view of what the applicant has put here, this does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
There are at least three connected elements to ground two. The first is an assertion of a failure by the Tribunal to consider the application made to it according to s.91R of the Act. Again, even looking at this at the most favourable, or charitable, level for the applicant, it is simply a disagreement with the Tribunal’s conclusion that the applicant’s claims do not reveal the likelihood of “serious” harm.
First, all of the applicant’s claims were considered. There is nothing before the Court to show that any claim, or any aspect of the applicant’s claims, that were expressly made or can be said to have been clearly arising from the circumstances presented were not considered by the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630).
Second, the Tribunal’s expressed understanding in its decision record of the definition of “persecution” and “serious harm” as the Refugees Convention terms are understood through the prism of s.91R(1) and (2) of the Act, was an orthodox expression. The decision record reveals that the Tribunal asked the correct question and properly applied this test to the facts as found. Here, again, the applicant’s complaint is a challenge to the facts as found.
Third, I understood that the word “bial”, as it appears in ground two is a typographical error and that it really should be understood as a reference to “bias”. This is a serious allegation to make against any decision maker, whether judicial officer or an administrative decision maker. This is because, unlike many other allegations of legal error, an allegation of bias strikes at the heart of the integrity of the decision maker. The relevant authorities are very clear that for this, and indeed other reasons, such an allegation must be distinctly made and clearly proven (Minister for Immigration & Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
I note also, in this context, that if such an allegation has any prospect of being made out, that there must be evidence to be provided in support of this serious allegation. It is also the case that it is a rare circumstance where an allegation of bias can be made out with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668).
It is clear, and it was certainly made clear before the Court today, that in the circumstances the applicant has sought to explain what was found to be his unsatisfactory evidence before the Tribunal, and its inability to believe him, as being an expression of bias on its part, rather than a proper evaluation of his evidence. In that sense, therefore, it cannot be said that this is an expression of what is understood in law to be a properly constituted allegation of bias.
In relation to ground three, again, the typographical error “hid decision” can only be properly read as “his decision”. The Minister suggested before the Court today that this may not even refer to this Tribunal decision, given that the Tribunal member was female rather than male. But it may be that with an unrepresented applicant who has told the Court that he drafted the grounds of this application himself, that it is in fact a mistaken reference to “her decision”, meaning the Tribunal member’s decision.
In any event, the ground as stated is a mere assertion of jurisdictional error. No particulars whatsoever are provided. The applicant said nothing today to support this claim. As the Minister correctly, in my view, submitted today, there is no substance to the allegation as presented. In any event, I have looked at the material that has been put before the Court and I cannot see that any jurisdictional error is evident, and relevant, to the consideration today. It is clear that this third ground also does not raise an arguable case for the relief that the applicant seeks.
As the grounds of the application raise no arguable case, and even taking, to borrow the applicant’s words, a “lenient view” of all that has been put before the Court, no arguable case for the relief sought can be otherwise discerned.
It is appropriate that this application be dismissed pursuant to r.44.12(1)(a) of this Court’s rules. I will make an order in that light accordingly.
The Minister seeks his costs set in the amount of $3,326.00. There are two questions that I must now consider in that regard. The first is whether it is appropriate to make such an order, and if it is, the second question is whether the amount sought is a reasonable amount in the circumstances?
It is appropriate that an order for costs be made in this matter in the usual way. Nothing has been raised by the applicant, nor can I otherwise see that there is any argument against making the order. As to the amount, I note that the amount sought is equivalent to what is set out in the relevant Schedule to the rules of this Court as being appropriate to a case that has reached this stage of proceeding. I am satisfied, in any event, in light of the actual work done by the Minister’s solicitors that it is a reasonable amount. I will make the order in that amount.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls.
Associate:
Date: 18 June 2013
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