SZSSO v Minister for Immigration and Border Protection

[2014] FCA 192

FEDERAL COURT OF AUSTRALIA

SZSSO v Minister for Immigration and Border Protection
[2014] FCA 192

Citation:	SZSSO v Minister for Immigration and Border Protection [2014] FCA 192
Appeal from:	SZSSO v Minister for Immigration and Border Protection & Anor [2013] FCCA 2026
Parties:	SZSSO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 2488 of 2013
Judge(s):	BENNETT J
Date of judgment:	5 March 2014
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 91R
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	Mr Reuben Ray of Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2488 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT OF AUSTRALIA

BETWEEN:

SZSSO
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	5 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the sum of $2,709.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2488 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSSO
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	5 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Circuit Court to dismiss an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 25 February 2013.  By that decision the Tribunal affirmed a decision of a delegate of the Minister dated 5 July 2012 to refuse to grant the appellant a protection (Class XA) visa.  The history of this matter is set out in the decision of Emmett J.  The appellant claims to be a citizen of China, and of Han ethnicity and to fear harm in China from authorities because he was involved in the copying of Christian leaflets that were regarded as anti-government. 

2. The appellant’s claims for protection were set out in a written statement accompanying his visa application, and were supplemented by his oral evidence before the Tribunal.  In summary, the appellant claims to fear persecution on the basis of actual and or imputed political and or religious opinions.  These protection claims were grounded in the following factual claims:

   ·In 2009 members of the appellant’s family, including his mother and aunt, converted to Christianity with the assistance of a nurse, Ms Wang.  On 18 November 2011, the authorities arrested five villagers, including Ms Wang and his aunt.  While his aunt was released, Ms Wang was detained on the basis that she had engaged in unlawful missionary activities, was a part of an evil cult organisation and must be ‘severely punished by serving a jail term’.

   ·An associate of Ms Wang’s, Ms Li, prepared leaflets detailing the circumstances of Ms Wang’s arrest and her brutal treatment in prison.  The appellant’s aunt requested that the appellant purchase paper and make 100 copies of the leaflet for her to distribute.  The appellant did so.

   ·The appellant was then informed by a friend, Mr Ming, on 30 November 2011 that the local police were searching for those involved in the printing and distribution of the leaflets.  The appellant confided in Mr Ming about his involvement.  The gravity of the matter escalated on 1 December 2011, with the Yantai City PSB and the City Political and Legislative Commission also becoming involved in what had now been classified as an ‘anti-government political case’.

   ·On 3 December 2011, Mr Ming recommended that the appellant ‘go overseas for several years and … could think about coming back when everything had calmed down’.  Mr Ming asked someone to organise the appellant’s overseas trip.  After discussions with his family, the appellant concurred with Mr Ming’s suggestion and left the country.

   ·On 23 January 2012, the appellant’s aunt was detained for her involvement in the distribution of leaflets. 

3. In his written statement the appellant claimed that his aunt had not implicated him.  However, during the Tribunal hearing he claimed that his aunt had confessed to the authorities that he was responsible for the copying. 

4. The Tribunal’s conclusion was summarised in [55] of its reasons:

   The Tribunal finds that the applicant lacked credibility.  The Tribunal also finds that the applicant did not give full and frank disclosure in giving evidence to the Tribunal and fabricated parts of his evidence.  This finding is based on the contradictions in the applicant’s evidence.

5. The Tribunal then set out its reasons in detail.  The Tribunal concluded, in essence, that the appellant gave conflicting evidence as to:  

   ·the dates of significant events;

   ·his knowledge of the delegate’s decision;

   ·his attendance at a church in Australia;

   ·the form of and signature on the leaflets that he said that he typed and his role in copying the leaflets;

   ·previous overseas travel; and

   ·his and his family’s knowledge regarding his aunt being arrested and the aunt providing his name to the Chinese authorities. 

6. The Tribunal did not accept that the appellant is or was a Christian or that he has been involved with the church in Australia as he claimed. In relation to his, or his family members’ involvement with Christianity, Christian groups, Ms Wang, or the production and distribution of leaflets, the Tribunal did not accept that the appellant had been involved with the church in Australia as he claimed. The Tribunal found that there was not a real chance that the appellant would be involved with the Christian church or group if he returned to China, not due to fear, but due to lack of commitment and/or interest. The Tribunal found that the appellant did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) as there were no grounds for believing that there was a real risk that the appellant will suffer significant harm if he were to return to China now or in the reasonably foreseeable future.  Accordingly, the Tribunal found that the appellant did not have a well-founded fear of serious harm or persecution on the basis of his religion or actual or imputed political opinion, concluding in particular that: 

   ·the appellant was not involved in the typing, copying, printing or distribution of anti-government leaflets, and did not leave China for this reason; 

   ·none of the appellant’s family members are Christians or were involved in the production and distribution of anti-government leaflets;

   ·the Chinese authorities have not arrested the appellant’s aunt, or attempted to pursue the appellant through contact with his family; and

   ·the appellant was not, and is not, of interest to the Chinese authorities. 

7. The Tribunal also considered Australia’s complementary protection obligations and found that the appellant did not face a real risk of significant harm within the meaning of s 36(2)(aa) of the Act, if removed from Australia to China.

8. The grounds of appeal before this Court are in substance, with one exception, identical to the grounds of the application before Emmett J:

   1.I was involved in the making of 100 copies of leaflet to disclose The local PSB’s crime of brutal treatment to Ms Wang who engaged in unlawful missionary activities in my nearby village.  My mother required me to do it, I couldn’t refuse it.

   2.The local PSB got the leaflets and tried to find the person who made the copies of the leaflets.  So, I greatly feared to be found. I had to leave home to Australia.

   3.The Tribunal member filed to consider my claim into account according to S91R of the Migration Act 1958 because of his bias against me, and made jurisdictional error.

9. The additional ground is:

   4.The judge, EMMETT, dismissed my appeal on 28 Nov. 2013.

10. There is no need to consider ground 4 further.  It cannot be characterised as a ground of appeal.  Before turning to the reasons of Emmett J, I will first set out the submissions made by the appellant in support of his appeal.  The appellant submits that he was treated by the Tribunal in an unfair way.  The appellant says that the Tribunal suggested to him from the very beginning that he was fabricating his evidence.  The appellant observes that a DVD is available and that the Tribunal record could be examined.

    Grounds 1 and 2

11. As to grounds 1 and 2 of the Notice of Appeal, Emmett J found that the Tribunal’s findings were open to it on the materials and evidence before it and for the reasons it gave, including its adverse credibility findings, this being a matter for the Tribunal. 

12. No error has been identified or is apparent in her Honour’s decision.  These grounds of appeal do not assert or disclose any jurisdictional error on the part of the Tribunal but impermissibly seek merits review.  Judge Emmett found that grounds 1 and 2 did not identify any jurisdictional error on the part of the Tribunal and were no more than a disagreement with the findings and conclusions of the Tribunal.  I see no error in that conclusion.

    Ground 3

13. The Minister points out that ground 3 contains two elements. First, that the Tribunal failed to consider the appellant’s claims according to s 91R of the Act and secondly, that this was because the Tribunal was biased. The Minister points out that the first element is susceptible to two interpretations: that the Tribunal failed to consider some of the appellant’s claims, or that Tribunal misapplied s 91R in considering the appellant’s claims for protection. The Minister points out that there is no guidance from the appellant as to what he means, despite the fact that Emmett J pointed out that, in the Federal Circuit Court, no particulars, evidence, or written submissions were provided to support this ground. The appellant has not identified any claim which the Tribunal overlooked.

14. I accept the Minister’s submission that a review of the Tribunal decision shows that the Tribunal conducted a careful and thorough examination of the appellant’s protection claim, including claims that the appellant had not specifically put but that may have arisen on the material before the Tribunal. Nothing has been put by the appellant to support an assertion that the Tribunal failed to comply with s 91R of the Act. The Tribunal dismissed the factual basis of the appellant’s claim for protection, both with respect to conduct overseas and in Australia. The appellant was unable to satisfy either s 91R(1) or s 91R(3) of the Act. Turning to the allegation of bias on the part of the Tribunal, Emmett J pointed out at [64] that a claim of bias is serious and requires evidence, and that it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision.

15. Her Honour also noted that when asked for details of the alleged bias, the applicant respondent that it was ‘my feeling’.

16. Her Honour noted that the transcript of the Tribunal hearing was not available before her.  Despite this, it is not until today that the appellant has referred to the availability of the DVD, despite the fact that it was referred to by her Honour and that the lawyer who gave him pro bono legal advice was provided with a CD containing a recording of the Tribunal hearing.  The appellant has had sufficient opportunity to provide any evidence from that CD or from that transcript and has not done so.  The appellant has had sufficient opportunity to provide details and evidence in support of his allegation of bias.  The allegation remains un-particularised, except for the generalised assertion that he was treated in an unfair way by the Tribunal and this allegation is not supported by evidence.

17. In any event, even if the assertion from the appellant today was accepted as evidence, it is no more than an assertion which, even if accepted, does not establish that the Tribunal was acting otherwise than in accordance with a statutory obligation to accord the appellant procedural fairness.  It is apparent from a reading of the Tribunal’s reasons that during the course of the Tribunal hearing as the appellant advanced his evidence, the Tribunal explained to him difficulties that it had in accepting that evidence.  For example, at [43], the Tribunal said:

    The Tribunal raised that it had difficulty accepting the applicant’s evidence and that he appeared to amend his evidence once it was pointed out to him that he could not have done a signature on a document that he typed and printed.

18. The appellant has not advanced evidence or submissions sufficient to make out a case of bias on the part of the Tribunal.  There has been no evidence put before this Court that could lead a fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal reasonably to apprehend that the Tribunal may not have brought an impartial mind in determining the application before it.  I agree with Emmett J, that a fair reading of the Tribunal decision does not disclose any pre-judgment or other than a mind open to persuasion.  There is no evidence to the contrary.

    Conclusion

19. The appellant has not established any of his grounds of appeal.  He has not demonstrated jurisdictional error on the part of the Tribunal or error on the part of the Federal Circuit Court judge.

20. It follows that the appeal should be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:       5 March 2014