SZSNB v Minister for Immigration & Border Protection
[2013] FCCA 2012
•27 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSNB v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2013] FCCA 2012 |
| 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 – whether the Refugee Review Tribunal failed to take into account relevant information – 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: NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZSNB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 88 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 27 November 2013 |
| Date of Last Submission: | 27 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2013 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Elizabeth Warner Knight (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 88 of 2013
| SZSNB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
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 20 December 2012 and handed down on 21 December 2013 (“the RRT”).
The applicant claims to be a citizen of the People’s Republic of China, of Han ethnicity, and to fear harm from the authorities in China if returned on the basis on claimed past detention and mistreatment.
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, a summary of the decision of a delegate of the first respondent (“the Delegate”) and a summary of the RRT’s review and decision.
Background
The applicant arrived in Australia on 5 July 2010 having departed legally from Papua New Guinea on a passport issued in her own name and a TR-676 (Visitor) visa valid until 5 October 2010.
On 19 December 2011, the applicant was located working on a farm in rural New South Wales by Immigration Compliance officers. The applicant was granted a Bridging Visa valid until 5 January 2012 on condition that she departs Australia.
On 5 January 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 29 May 2012, the Delegate refused the applicant’s application for a protection visa.
On 22 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 20 December 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 17 January 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
Pursuant to section 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).
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”).
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 herself 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.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
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.”
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.
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.”
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.
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.
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
The applicant provided a statement in support of her protection visa application in which she stated the following:
a)The applicant is from Guangdong province, where she owned a farm with her husband.
b)In 2008, the applicant was advised by the Office of House Demolishing and Relocation of Wen Village that the local government would take her farming land to build a free agriculture market.
c)The applicant did not want to move and sought a higher level of compensation from the government. The applicant’s request was declined and she and her husband visited the local Government to give them a petition letter. They argued with the representatives of the local government and refused to move. The police arrived and detained the applicant and her husband for 15 days accusing them of intervention with a public function. The police beat the applicant and her husband and threatened to break their legs.
d)In August 2008, the applicant’s land was forcibly occupied and the applicant and her husband received some compensation.
e)In September 2008, the applicant visited the Taishan City Government to petition a higher level of government. The applicant was interviewed and 4 days later, the applicant was detained, tortured for 3 months and charged for “intervening with the public function.” After her release, the police demanded that the applicant report weekly to their office for education lessons.
f)The applicant was told that if she refused to attend the education lessons, the police would track her down. The applicant did not feel free and went to Papua New Guinea before arriving in Australia in 2010 for the purpose of seeking protection as a refugee. However, she delayed making her refugee application because she had no money and gradually forgot about it, until she was found by Australian Immigration officers.
The Delegate’s decision
On 10 May 2012, the applicant attended an interview with the Delegate.
On 29 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 and does not meet the alternative complementary protection criterion.
The RRT’s review and decision
On 22 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
The applicant provided further documents in support of her review application.
On 12 September 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. The letter invited the applicant to attend a hearing on 18 October 2012 to give oral evidence and present arguments.
On 18 October 2012, the applicant attended the RRT hearing and gave evidence.
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.
The RRT explored with the applicant her claims relating to the expropriation of her land by the Chinese government for an amount which the applicant considered unsatisfactory. The RRT also explored her subsequent complaints to the local authorities.
The RRT accepted that the applicant and her husband were notified by the government that their land was to be expropriated.
However, the RRT expressed doubts about the truthfulness and genuineness of the applicant’s other claims.
The RRT first examined the applicant’s claim to have been detained 15 days in the local police station. The RRT found her evidence to be vague and lacking in detail; the applicant could not recall between which dates she had been detained and her evidence was simply that she had been detained and subsequently assaulted by the local police on the basis that she had torn up the contract for expropriation as she would not agree to its terms. The RRT found that this claim was consistent with independent information, and while expressing some doubt about the claim, was prepared to accept it as plausible.
The RRT rejected as fabrications the applicant’s other claims of attending the government offices in Taishan city to object to the inadequate compensation for the land expropriation and resulted in her detention for three months.
The RRT considered the applicant’s evidence given at hearing in relation to a detention notice, purporting to prove that she had been detained by Chinese police. The RRT found the applicant’s evidence to be inconsistent and contradictory. The RRT put its concerns about the reliability of her evidence and the genuineness of the detention notice to the applicant, noting independent information indicating that fraudulent documents were easily obtainable in China. The applicant did not provide a response to these concerns. The RRT found that in relation to these claims, the applicant was not a reliable or truthful witness and that her claims had been fabricated. Further, the RRT found that the detention notice was a fraudulent document and placed no weight upon it.
Accordingly, the RRT did not accept that the applicant received a detention notice, nor that she was actually detained and tortured from September to December 2008.
The RRT accepted the applicant’s evidence that she and her husband received compensation for the expropriation of their farm and that as a result of receiving money, the matter was finalised and settled prior to her departure from China. The RRT also accepted that the applicant and her husband were unsatisfied with the amount of compensation that they were offered and ultimately received. In light of this, the RRT considered that there was no apparent reason why the applicant would be at risk of suffering harm in relation to this matter were she to return to China. The applicant offered no further evidence as to whether there was any reason she may be at risk of harm were she to return to China. While the RRT accepted that the applicant had suffered past harm because of her complaint over expropriation, which could amount to serious harm, it did not accept that she would suffer harm should she return to China by reason of her complaint.
The RRT went on to consider the applicant’s claims that she was not able to travel inside China to find work or live elsewhere owing to the fact that she is a woman. The applicant did not provide any evidence to support this claim, in the absence of which, the claim was rejected by the RRT.
Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were she to return to China, that the applicant did not have a well-founded fear of persecution in China and for this reason the applicant was not a person to whom Australia owed protection obligations.
Finally, the RRT considered the complementary protection criterion in s.36(2)(aa) of the Act. The RRT considered that, on the basis of its findings in relation to her claims, there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm by reason of her complaints or any other reason.
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Cantonese interpreter.
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. The applicant confirmed that she 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.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. However, the panel adviser was unable to contact the applicant. Nevertheless, the advisor provided free written legal advice to the applicant. At the directions hearing, 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.
At the commencement of the hearing, the applicant confirmed that she has not filed any amended application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her application.
The applicant confirmed that she relied on the grounds contained in her application filed on 17 January 2013 as follows:
“1. The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer. For example, the Tribunal was not satisfied with the fact of the applicant’s being contained for 15 days just because the applicant couldn’t recall the day. The applicant’s memory and “thinking” had decreased in the past one to two years.
2. Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing. Because the applicant is a real farmer and she can only communicate with others in her hometown language, Taishan Dialect, which is different with Cantonese. At the four hour hearing, the applicant was worried about whether the Cantonese interpreter correctly translated what she really wanted to express as the Tribunal asked her the same questions for many times, which made her more and more nervous. For example, the Tribunal asked the applicant many times where the receipt of the detention notice was sent which made the applicant too nervous to express herself at that time.
3. Judicial Error of DIAC and RRT in failing to take into account a relevant consideration, namely the evidence given by the applicant. ”
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.
Ground 1 – apprehension of bias
Ground 1 asserts that the RRT’s decision gave rise to an apprehension of bias. Ground 1 referred to an example, being that the RRT was not satisfied about the applicant’s claim of being detained for 15 days just because the applicant could not recall the dates of her detention. Ground 1 was otherwise unsupported by other particulars, evidence and written or oral submissions. The applicant told the Court that she had nothing to say in support of ground 1.
The applicant’s complaint made in ground 1 is entirely misconceived. Whilst it had doubts about the applicant’s claim about being detained for 15 days, the RRT was prepared to accept that she was detained and that during her detention that she was mistreated.
Otherwise, 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]).
The applicant was directed on 18 April 2013 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 27 June 2013. The applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit and that if she wished to rely on a tape recording of the RRT hearing, she needed to give notice by 27 June 2013. However, as stated above, no document was filed by the applicant either in accordance with those directions or otherwise.
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]).
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]).
Accordingly, ground 1 is not made out.
Ground 2 – complaint about interpreter
Ground 2 was not supported by particulars, evidence or any relevant submissions.
As best as I can understand, ground 2 appears to be a complaint that, because of poor interpretation, the RRT asked her the same questions repeatedly and made her more and more nervous.
As stated above, the applicant was given an opportunity to file and serve evidence and submissions in support of her claims and no such evidence or submissions were filed.
A complaint about interpreting at a hearing is clearly a matter for evidence. There was no evidence provided to this Court today by the applicant identifying any particular error made by the interpreter. Similarly, there is no evidence to support the applicant’s complaint that the RRT asked her the same question many times and made her “more and more nervous.”
The only example referred to in ground 2 is that the RRT asked the applicant “many times where the receipt of the detention notice was sent.” She claimed to have obtained from her mother in China the original copy of a “Detention Notice” from Taishan Municipal Public Security Bureau. The RRT’s decision record discloses exchanges it had with the applicant about this issue and its concerns about the authenticity of the detention notice.
Ultimately, the RRT found the detention notice to be fraudulent and that her claim to have been detained a second time from 26 September to 26 December 2008 to have been fabricated, having regard to the adverse credibility findings it made about the applicant and in the light of country information before it that disclosed that it is relatively easy to obtain fraudulent documents in China. The RRT also noted that it put the country information to the applicant for comment and that she provided no response.
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).
Accordingly, ground 2 is not made out.
Ground 3 – failure to take into account a relevant consideration, being the evidence of the applicant.
Ground 3 was not supported by particulars, evidence or relevant submissions. The applicant said that she did not know how to express herself and had a friend who would speak on her behalf. However, there was no friend in the courtroom at the time.
Ground 3 appears to be a complaint that the RRT failed to accept all the applicant’s claims.
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).
A fair reading of the RRT’s decision record makes clear that the RRT summarised in detail the applicant’s claims and explored those claims with her at a hearing. The RRT’s decision record makes clear that the RRT gave careful and comprehensive consideration to the exchanges it had with the applicant about her claims and identified with particularity country information to which it had regard. The RRT decision record also makes clear that the country information to which the RRT had regard was put to the applicant for comment.
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).
Ultimately, the RRT was not satisfied on the evidence before it that there is a real chance that the applicant would suffer serious harm in China for a Convention related reason, if she returned in the reasonably foreseeable future. The RRT found there was no evidence before it to indicate that the Chinese authorities have or would be likely to have any adverse interest in the applicant and, accordingly, found her claimed fear of persecution not to be well founded.
The RRT considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act but concluded that she did not.
As stated above, the RRT’s findings were open to it on the evidence before it and for the reasons it gave.
In the circumstances, Ground 3 does 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. 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.”
The RRT was not satisfied that the applicant met the criteria for being a refugee as required under s.36(2)(a) of the Act.
The RRT also considered whether the applicant met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that she did not. The RRT found that there was no credible evidence before it that the applicant would be persecuted because of her complaint made to local Chinese authorities about the amount of compensation she had received regarding the local government expropriating her farm.
The RRT also did not consider that there are substantial grounds for believing that there is a real risk that the applicant would suffer real harm because of her 15 day detention and mistreatment, or for any other related reason.
The RRT also concluded that there are no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm because she could not travel or find work as a woman. The RRT found that there was no independent country information or evidence to support such a claim.
Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, China, there is a real risk that the applicants would suffer significant harm.
As stated above, the RRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, ground 3 is not made out.
Conclusion
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.
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.
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.
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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 November 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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