SZSMZ v Minister for Immigration & Border Protection

[2013] FCCA 1985

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1985

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s adverse findings were open to it – no jurisdictional error  – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474.
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
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
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
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: SZSMZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:   REFUGEE REVIEW TRIBUNAL

File Number: SYG 74 of 2013

Judgment of: Judge Emmett

Hearing date: 26 November 2013

Date of Last Submission: 26 November 2013

Delivered at: Sydney

Delivered on: 26 November 2013

REPRESENTATION

The applicant  appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr Richard Baird
(Clayton Utz Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 74 of 2013

SZSMZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

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 and handed down 21 December 2012(“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China and of Han ethnicity. The applicant claims to fear harm from authorities in China by reason of their compulsory acquisition of his factory to make way for the expansion of an airport.

3. 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 claims in support of a protection visa, the decision of a delegate of the first respondent (“the Delegate”)  and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 22 March 2012 having departed legally from China on a passport issued in his own name and a (Subclass TR) 676 visa issued on 20 March 2012.

2. On 4 April 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 1 August 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 23 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 21 December 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 16 January 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. 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 (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a 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, 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.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. 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.”

6. Under s.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.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.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.”

8. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.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. (see 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 his protection visa application in which he stated the following: 

   a)In 2004, the applicant established a successful garment making business.

   b)In 2011, the applicant was informed by the County government that the expansion of a nearby airport meant that his factory would need to move.

   c)The applicant entered into discussions with the government to seek compensation for the relocation of his business. Ultimately, the applicant’s land was compulsorily acquired without compensation and his factory demolished by force. The police did not assist the applicant when he tried to stop the demolition workers.

   d)Shortly after, the applicant complained to the local municipal government. The officials did not meet with the applicant. Instead the police arrested him and charged him with “disturbing public service.” The applicant was detained for a week.

   e)After his release, the applicant was warned that if he continued to complain, he could expect “more severe punishment”.

   f)The applicant was concerned for his safety and his family, and so came to Australia for protection, and to continue fighting for his legal rights whilst safe. 

The Delegate’s decision

1. On 19 July 2012, the applicant attended an interview with the Delegate.

2. On 1 August 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.

The RRT’s review and decision

1. On 23 August 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 his review application.

3. On 16 November 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 10 December 2012 to give oral evidence and present arguments.

4. On 10 December 2012, the applicant 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 explored the applicant’s claims with him in detail and put to him matters of concern it had about his evidence, noting his responses.

7. The RRT noted the short timeframe between the demolition of the applicant’s property in January 2012 and when he departed China in February 2012. The RRT put to the applicant that he did not seem to have given much time to resolve the matter with the relevant authorities. The applicant responded that he had no alternative. The RRT did not accept this as a “plausible or a logical response” The RRT did not accept that the applicant would then come to Australia seeking protection from local Chinese authorities, and leave the issue of compensation for his business unresolved. 

8. The RRT put to the applicant country information which contradicted the applicant’s claim that his factory had been demolished in 2012 to make way for a new airport. The RRT put country information to the applicant that disclosed that the airport extensions took place in 2009/2010. The RRT did not find the applicant’s explanation to be satisfactory.

9. The RRT found that the applicant’s evidence at the hearing was unpersuasive, noting that the applicant gave “limited and evasive responses to questions when asked, and, when invited to provide further detail and make out his case, he gave generalised statements”.

10. The applicant requested the RRT allow him more time in order for him to obtain further information and documents from overseas. The RRT put to the applicant that he had applied for the visa eight months prior to the hearing and had received ample opportunity to obtain the necessary document to make out his case.

11. Ultimately, the RRT rejected the applicant’s claims that his business was acquired by local authorities, his factory demolished and that he was arrested following his objections to the acquisition.

12. The RRT accepted that the applicant may be questioned by authorities regarding his absence from China, were he to return to China. However, the RRT was not satisfied that such questioning would amount to serious harm as envisaged by the Convention or any such questioning would lead to any mistreatment for a Convention reason.

13. Further, for the same reasons, the RRT did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there would be a real risk of him suffering significant harm. 

14. The RRT concluded that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, and consequently affirmed the decision under review.

The proceeding before this Court

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

2. On 18 April 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application for judicial review. 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 also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that he wished to continue with his application.

4. 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 his own language.

5. At the commencement of the hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

6. The applicant confirmed that he relied on the grounds contained in his application filed on 16 January 2013 as follows:

   “1. I was not considered fairly according to law.

   2. I will be harmed by local government.

   3. My evidence was not accepted by RRT.”

7. 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.

8. In support of his application, the applicant referred the Court to two factual findings made by the RRT with which he disagreed. The first was the RRT’s finding that the airport expansion was underway in 2009, whereas the applicant claimed his business was confiscated to make way for the expansion in 2011 and 2012. The RRT put to the applicant the country information before it in relation to the airport extensions and noted the applicant’s responses. The RRT remained unsatisfied by the applicant’s responses and rejected the applicant’s claims of having his business acquired by local authorities in the circumstances claimed or his subsequent arrest following his claimed objections to the acquisition.

9. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

10. In the circumstances, 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). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

11. The second finding that concerned the applicant, was the RRT’s finding that the applicant may face some questioning about his absence when he returned to China which may lead to mistreatment. However, the RRT did not accept that the questioning would amount to serious harm and, if questioned by the authorities on his return, that this questioning would not be for a Convention reason or lead to any mistreatment of the applicant for a Convention reason.

12. The RRT’s decision record makes clear that the RRT discussed with the applicant what the applicant believed would happen to him, should he return to China and noted his claim to fear mistreatment. However, there was no other evidence before the Court that the applicant provided any further evidence of that claim to the RRT.

13. 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 18 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 he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. 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).

14. 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).

15. In the circumstances, the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave. Otherwise, the applicant’s complaints do not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT.

16. 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). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

1. In relation to the applicant’s written grounds of review, none discloses any error capable of review by this Court. Each is a bare assertion unsupported by evidence. I understand the substance of those grounds to be the complaints articulated by the applicant to the Court this morning.

2. Accordingly, none of the applicant’s complaints demonstrate jurisdictional error on the part of the RRT and none is apparent on the face of the RRT’s decision record.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. 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.

3. 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.

4. 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.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  26 November 2013