SZSPS v Minister for Immigration & Border Protection

[2014] FCCA 405

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSPS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 405

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, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474,
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
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
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
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
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
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
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: SZSPS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 369 of 2013

Judgment of: Judge Emmett

Hearing date: 5 March 2014

Date of Last Submission: 5 March 2014

Delivered at: Sydney

Delivered on: 5 March 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Mr David McLaren
(Sparke Helmore Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 369 of 2013

SZSPS

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 1 February 2013 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China who fears harm from local police authorities in China.

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, 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

1. The applicant arrived in Australia on 12 May 2007, having departed legally from Fuzhou, China, on a passport issued in his own name and a Student visa issued on 13 April 2007.

2. On 23 August 2011, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 25 October 2011, the Delegate refused the applicant’s application for a protection visa.

4. On18 November 2011, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 1 February 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 26 February 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:

   a)The applicant’s family is wealthy owing to a family-run seafood wholesale business in Fujian Province.

   b)The family was informed that the land upon which the business was located would be demolished to make way for an urban development project.

   c)The family was offered a sum of money well below what they believed to be fair compensation. The family refused to exit the premises until adequate compensation was offered.

   d)On 11 January 2007, a demolition crew and over ten police officers came to demolish the building. After a “physical conflict” several of the family and staff members were injured and the applicant’s parents were detained for several days.

   e)After the parents were released, they started a petition seeking reasonable compensation for their business, however they received no response from the government.

   f)A protest was organised, however the protest was stopped by the police and his parents were again arrested for “unapproved demonstration and disturbing the public order.” The parents were detained for half a month.

   g)Following the arrest, the other family members were “regularly stalked and harassed by the government.”

   h)Having “lost confidence”, the applicant’s parents decided to send him overseas, accompanied by the mother. The father remained in Fujian to continue the campaign for adequate compensation.

   i)As encouragement, the applicant sent his father materials found on the internet in Australia that were banned in China.

   j)After posting an anti-government placard in public, the police came to the father’s residence, searched his house, and found the banned materials. Subsequently, the father and the applicant’s younger brother were arrested.

   k)On 20 June 2011, the applicant received a telephone call from his grandmother, saying that she had received a subpoena ordering him to report to the Public Security Bureau to answer questions regarding the spread of anti-government materials.

   l)The applicant fears that if he returns to China he will lose his freedom and be persecuted.

The Delegate’s decision

1. On 24 October 2011, the applicant attended an interview with the Delegate.

2. The Delegate found that the applicant was not a credible witness.

3. The Delegate found that much of the applicant’s testimony was vague, evasive, inconsistent, and implausible. Moreover, all assertions and claims were unsupported by evidence.

4. The Delegate concluded that the detention of the applicant’s parents and family was made only to create a Convention nexus in his application for protection.

5. On 25 October 2011, 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

1. On 18 November 2011, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided further documents in support of his review application.

3. On 26 March 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 15 May 2012 to give oral evidence and present arguments.

4. On 15 May 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 some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT identified with particularity the country information to which it had regard.

7. The RRT was mindful of the youth of the applicant and the position of refugee candidates in general. Further, the RRT noted that the credibility of the applicant claims relied on the credibility of the applicant’s own testimony.

8. The RRT formed the opinion that the applicant was not truthful when answering the RRT’s questions or in his claims for protection.

9. The RRT considered the evidence given by the applicant in relation to his departure from Fujian. It found that that the applicant’s accounts of intentions, people, events, and dates were inconsistent, changeable and conflicted with his student visa application and his oral testimony. The information in the applicant’s student visa application, being his failure to make mention of his claims regarding the compulsory acquisition of his family’s land, was given to the applicant at the hearing for comment.

10. The RRT rejected the applicant’s claim that his parents decided to send him to Australia as a result of a dispute between them and the local government.

11. Further, the RRT found that the delay between his cessation of studying in October 2007 and application for protection on 23 August 2011 was significant, combined with his efforts to remain in Australia without a legitimate reason in the meantime. The RRT found that the events and claims were fabricated so as to support his application for protection.

12. The RRT expressed concerns regarding the applicant’s evidence about his communication with his family in China. The RRT found that the applicant’s answers to be evasive and unsatisfactory and further diminished the applicant’s credibility. At the hearing, with the applicant’s consent, the RRT accessed online telephone records and noted that there was a recent, long telephone call to China. Further time was given to the applicant to provide documentary evidence of his cell phone records for the previous two years, however, ultimately no such evidence was provided. The RRT stated that it drew no adverse inference from the fact that the applicant did not produce the telephone records given that the RRT had the opportunity to subpoena the records but chose not to do so.

13. The RRT had regard to the material banned in China that the applicant claimed to have sent to his father to encourage him during his campaign to receive adequate compensation for the loss of the family business. The RRT found that the applicant’s intention to encourage his father by sending him banned materials after the father had been supposedly detained for protesting several times and whilst the father was supposedly under police surveillance was “unbelievable”.

14. Further, the claim made by the applicant that he did not know the internet was monitored by the Chinese government was rejected by the RRT as the applicant had supposedly made great efforts to clear his internet chat history so as to not be tracked by the Chinese government and the applicant was aware of the Chinese internet ‘firewall’.

15. As a result of the cumulative concerns about the credibility of the applicant’s testimony, the RRT found the applicant was not a witness of truth and rejected his claims in their entirety.

16. 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 he 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.

17. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that the applicant would be persecuted by police in China. 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.

18. Accordingly, having determined 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, the RRT 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 17 May 2013, the applicant attended a directions hearing before Registrar Segal. Registrar Segal explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court.

4. 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 MRT hearing, as well as submissions in support.

5. At the commencement of today’s 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 26 February 2013 as follows:

   “1. The RRT is not fair.

   2. The RRT was biased.

   3. The RRT has no justice.”

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. None of the grounds was supported by particulars, evidence and relevant submissions. In support, the applicant said no more than that he did not know the law, he told the truth, the RRT did not accept his evidence and he was not happy.

9. The applicant said that he had not received the first respondent’s submissions. I note that they were filed on 27 February 2014 in accordance with the directions made on 17 May 2013. The applicant confirmed that the address to which the submission were sent is his current address. The solicitor for the first respondent, Mr David McLaren, told the Court that the submissions had been sent by express post on 27 February 2014. However, given that the applicant said that he had not seen the submissions and Mr McLaren’s confirmation to the Court that he had no further oral submissions to make, the first respondent’s written submissions of the grounds of the application were interpreted for the applicant.

10. Following completion of the interpretation of the first respondent’s submissions, I invited the applicant to say anything by way of response to those submissions or anything further in support of his applicant generally. The applicant repeated only that he did not know the law.

Ground 1

1. Ground 1 asserts that the RRT was not fair. As sated above, this assertion was not supported by particulars, evidence or relevant submissions and does not by itself disclose an error capable of review by this Court.

2. A bundle of relevant documents identified “Court Book” and filed on 25 March 2013 was tended by Mr McLaren and marked Exhibit 1R.

3. Exhibit 1R discloses that the applicant was invited by letter dated 26 March 2012 to appear before the RRT in accordance with the statutory regime. As stated above, the applicant attended the hearing. The RRT identified the relevant law in determining whether the applicant has a well-founded fear of persecution for a Convention reason and the relevant law in determining whether the applicant met the complementary protection criterion found in s.36(2)(aa) of the Act. The RRT summarised the relevant background and cited the applicant’s statements of claims, dated 22 August 2011. The RRT summarised the applicant’s interview with the Delegate.

4. At the RRT hearing, the RRT explained the legal bases upon which a protection visa could be granted and gave the applicant an opportunity to say why he thought he was eligible for a protection visa. The RRT then explored the applicant’s claims with him in some depth and put to him matters of concern that it had about his evidence. The RRT noted the applicant’s responses, but, as stated above, was not ultimate persuaded by them. The RRT also noted country information about corruption in land transactions and compulsory property acquisition in China.

1. Based on its adverse credibility finding in respect of the applicant, the RRT comprehensively rejected the applicant’s claims for protection in their entirety. The RRT concluded that for the reasons given, the applicant was not a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

2. To the extent that the applicant complained that the RRT did not accept his 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).

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). 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)

4. The RRT’s conduct of its review as disclosed in Exhibit 1R was in accordance with the statutory regime and there is no evidence before this Court to suggest that the review was conducted otherwise than in accordance with Part 7 Division 4 of the Act. In particular, the information relating to the absence of evidence of the applicant’s claims of events in China was given to the applicant at the hearing in accordance with s.424AA of the Act. The RRT was not required to accept the applicant’s explanations, nor did it do so.

5. In the circumstances, ground 1 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. The applicant’s complaints, such as they are, 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.”

Ground 2

1. Ground 2 asserts that the RRT was biased

2. Ground 2 was not supported by particulars, evidence or relevant submissions and, again, does not by itself disclose an error capable of review by this Court.

3. 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]).

4. The applicant was directed on 17 May 2013 to file and serve any evidence by way of affidavit containing additional evidence to be relied upon, including a transcript of the hearing, by 2 July 2013. The applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the RRT hearing, he must give notice to the first respondent and to the Court by 2 July 2013. However, no document was filed by the applicant either in accordance with those directions or otherwise.

5. 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]).

6. 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]).

7. Accordingly, the applicant’s allegation of bias against the RRT is rejected.

Ground 3

1. Ground 3 asserts that the RRT has no justice.

2. Again, this assertion was not supported by particulars, evidence or relevant submissions and, again, does not by itself disclose an error capable of review by this Court.

3. Ground 3 raises no further complaint or issue beyond those dealt with in Ground 1 above and for the same reasons does not demonstrate any jurisdictional error by the RRT.

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. However, ultimately the RRT affirmed the decision under review on the basis of its comprehensive adverse credibility findings in respect of the applicant. 

2. The RRT 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 seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  5 March 2013