SZSSO v Minister for Immigration & Border Protection

[2013] FCCA 2026

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSO v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 2026

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision was affected by jurisdictional error – whether the decision of the Refugee Review Tribunal was effected by bias – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 137J, 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
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
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

Applicant: SZSSO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 651 of 2013

Judgment of: Judge Emmett

Hearing date: 28 November 2013

Date of Last Submission: 28 November 2013

Delivered at: Sydney

Delivered on: 28 November 2013

REPRESENTATION

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

Solicitors for the Respondents: Reuben Ray
(Clayton Utz Lawyers )

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 651 of 2013

SZSSO

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 25 February 2013 and handed down on 26 February 2013 (“the RRT”).

2. The applicant 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.

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 8 February 2012 having departed legally from China on a passport issued in his own name and a student (Subclass TU 570) visa issued on 21 January 2012.

2. On 19 March 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”). The applicant was granted an associated Bridging Visa A.

3. On 15 May 2012, the applicant’s student visa was cancelled due to non-attendance under s.137J of the Act. The applicant’s Bridging Visa A was also cancelled and the applicant became unlawful non-citizen.

4. On 5 July 2012, the Delegate refused the applicant’s application for a protection visa.

5. On 31 July 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

6. On 25 February 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

7. On 2 April 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)The applicant is from Shandong Province in China where he and his wife established a successful cat breeding business.

   b)During 2009, the applicant’s mother told him about Christianity and how his aunt had recovered from cancer with the help of a Christian nurse. The applicant’s aunt and mother had both become devout Christians and practised their faith with the nurse.

   c)On 18 November 2011, the police detained the applicant’s aunt and the Christian nurse and told the aunt that she was not to participate in any more religious gatherings. The police also told the applicant’s aunt that the nurse had engaged in unlawful missionary activities and would be gaoled as punishment.

   d)On or about 26 November 2011, the applicant, at his aunt and mother’s request, copied 100 leaflets that detailed the mistreatment that the nurse had suffered whilst in detention.

   e)On 30 November 2013, the applicant was informed by a friend that his act in copying the documents had been reported to the police and he was advised to go overseas for several years to escape punishment.

   f)On 23 January 2012, the applicant’s aunt was detained by the police for distributing anti-government material.

   g)The applicant fears the risk of being punished, arrested or sentenced to a gaol term if he returns to China.

The Delegate’s decision

1. On 6 June 2012, the applicant was invited to attend an interview on 5 July to discuss his application and claims for protection. The applicant did not attend the interview and no reason was provided to the Department for the applicant’s non-attendance.

2. On 5 July 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

1. On 31 July 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 18 December 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 22 January 2013 to give oral evidence and present arguments.

4. On 22 January 2013, the applicant attended the RRT hearing and gave evidence.

5. The RRT summarised the applicant’s written claims and his interview with the Delegate. The applicant confirmed the accuracy of the content of his application forms and statement.

6. 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.

7. The applicant gave “vague and unsubstantiated” answers during the course of the RRT interview.

8. The RRT found the applicant to be an unreliable witness, who “was prepared to give false evidence or to amend and contradict his own evidence in an attempt to address issues raised by the RRT”

9. The RRT found that the applicant was not a Christian in China and did not believe that the applicant had converted to Christianity whilst in Australia.

10. The RRT found that the applicant’s claim that he first thought to come to Australia after the his aunt was arrested, was false as his student records show enquiries to Australian learning centres prior to the alleged arrest.

11. The RRT also found that the applicant’s relatively minor role in the event that caused his aunt to be arrested would not cause the applicant to have a well-founded fear of persecution or serious harm for a Convention reason.

12. Ultimately, the RRT found that there were no grounds for believing that there was a real risk that the applicant will suffer significant harm if he was to return to China now, or in the reasonably foreseeable future.

13. Accordingly, 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 21 June 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.

3. 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.

4. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court. I explained to the applicant the consequences that would flow for him if a costs order was made against him. Namely, that whilst any costs order remains 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.

5. 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.

6. 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

7. The applicant confirmed that he relied on the grounds contained in his application filed on 2 April 2013 as follows:

   “1. I was involved in making 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 villages. My mother required me to do it, so I could not refused 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 failed to take all my claims into account according to S91R of the Migration Act 1958 because of the Tribunal member’s bias against me.”

8. 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.

Grounds 1 and 2

1. The applicant confirmed that the substance of his complaints in grounds 1 and 2 are that the RRT did not accept those claims and that such conduct put him at risk of harm in China.

2. 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. In the circumstances, grounds 1 and 2 do not identify any jurisdictional error on the part of the RRT and are no more than a disagreement with the findings and conclusions of the RRT.

4. 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.”

5. At the heart of the RRT’s adverse decision was its rejection of the applicant’s claims based on its finding that the applicant lacked credibility and had fabricated parts of his evidence. The RRT found the applicant’s evidence to be contradictory and inconsistent in relation to a large part of his claims, particularly:

   i)conflicting evidence in relation to dates of alleged significant events that led to his leaving China;

   ii)contradictory evidence as to whether the applicant was aware of the Delegate’s decision or had received a copy;

   iii)contradictory evidence as to whether the applicant attended a Christian church in Australia and whether he was a Christian;

   iv)inconsistent evidence in relation to the applicant’s role in the copying of the Christian leaflets;

   v)contradictory evidence of previous overseas travel;

   vi)contradictory evidence in relation to the applicant’s family’s knowledge of his aunt’s arrest;

6. The RRT explored the applicant’s claims with him in significant detail and put to him the concerns it had about the contradictory and inconsistent nature of his evidence. The RRT noted the applicant’s responses.

7. Ultimately, the RRT comprehensively rejected the applicant’s claim to have been involved in the typing, copying, printing, or distribution of anti-government leaflets and that he did not leave China for that reason. The RRT also rejected the applicant’s claims of involvement of family members in such conduct and rejected the applicant’s claims surrounding the alleged arrest of his aunt.

8. The RRT found that the applicant was not of interest to Chinese authorities for the reasons claimed. In light of the RRT’s rejection of the applicant’s claims, the RRT did not accept that the applicant would have ongoing involvement with a Christian group if returned to China.

9. In the circumstances, the RRT found that the applicant does not have a well-founded fear of persecution in China for the reasons claimed and therefore did not meet the refugee criterion in s.36(2)(a) of the Act.

10. 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 was a Christian either in China or Australia and did not face serious harm in China because of his purported Christianity. 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.

1. 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).

2. 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)

3. Accordingly, the applicant’s complaints made in grounds 1 and 2 about the RRT’s finding that it did not accept that the applicant was involved in making 100 copies of anti-government leaflets or that the Public Security Bureau was searching for the person who made the copies, do not demonstrate any jurisdictional error on the part of the RRT.

Ground 3

1. Ground 3 asserts that the RRT failed to take all of the applicant’s claims into account and was biased against him.

2. Ground 3 is not supported by particulars, evidence or written submissions.

3. Whilst the applicant claimed to have attended a church in Australia, no s.91R(3) of the Act-obligation arose on the part of the RRT because it found such claims to be false, based on the applicant’s own inconsistent and contradictory evidence.

4. I asked the applicant what were the claims that the RRT failed to take into account. The applicant responded that it was country information. I asked the applicant if he was asserting that he gave to the RRT country information that it ignored and he responded, yes. I asked the applicant what was that information and the applicant responded that it was his own oral evidence.

5. As stated above, the RRT was not bound to accept the applicant’s evidence. As stated above, the RRT findings were open to it on the evidence before it and for the reasons it gave

6. In relation to the assertion in ground 3 that the RRT was biased, I asked the applicant in what way was the RRT member biased. The applicant responded “my feeling.”

7. 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]).

8. 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 he wished to rely on a tape recording of the RRT hearing, he needed to give notice by 27 June 2013.  However, no document was filed by the applicant either in accordance with those directions or otherwise.

9. 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.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

10. 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 (see 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]).

11. Accordingly, ground 3 is not made out.

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.

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-three (73) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  28 November 2013