SZTDZ v Minister for Immigration & Border Protection
[2014] FCCA 2683
•13 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTDZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2683 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal failed to afford the applicant procedural fairness – whether Refugee Review Tribunal demonstrated bias – whether Refugee Review Tribunal failed to consider the applicant’s evidence according to law – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.36, 424A. 474 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZTDZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1811 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 13 November 2014 |
| Date of Last Submission: | 13 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter. |
| Counsel for the Respondent: | Mr Oliver Jones |
| Solicitors for the Respondent: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1811 of 2013
| SZTDZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal dated 5 July 2013 and handed down on 8 July 2013 (“the RRT”). The applicant claims to be a citizen of China and of Christian faith, who fears harm from the Chinese Government on the basis of her religious beliefs and her non-adherence and fears forcible sterilisation if she was to return to China.
The background to this matter and a summary of the RRT’s decision is accurately set out by the in the submissions of the first respondent as follows:
“Background
4. On 7 May 2012, the Applicant, who is from Fujian province in the People’s Republic of China (PRC), applied for a protection visa.[1] On 25 September 2012, a delegate of the Minister refused to grant the protection visa to the Applicant (Delegate's decision).[2]
[1] CB 1-84.
[2] CB 126-157.
5. On 8 October 2012, the Applicant applied to the Tribunal for review of the Delegate’s decision.[3] This was within the time limit prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations).
[3] CB, 158-164.
6. By letter dated 19 April 2013, the Tribunal wrote to the Applicant inviting her to a hearing before the Tribunal.[4] On 24 April 2013, the Applicant indicated that she would, together with her migration agent, attend the hearing.[5]
[4] CB 177-182.
[5] CB 183-184.
7. On 17 June 2013, the Applicant, through her migration agent, submitted to the Tribunal copies of the birth certificates of her two daughters, a copy and translation of her marriage certificate and newspaper articles concerning Christianity and family planning in the PRC.[6]
[6] CB 185-198.
8. On 18 June 2013, the hearing before the Tribunal took place.[7] The Applicant provided the Tribunal with her passport for copying.[8] Later that day, the Tribunal wrote to the Applicant inviting the Applicant to comment on material which the Tribunal considered would, subject to the applicants' comments, be the reason, or part of the reason, for affirming the Delegate's decision (Tribunal letter).[9]
[7] CB 203, 266 [35].
[8] CB 199-200.
[9] CB 203-210.
9. The Tribunal letter relevantly stated:
On 18 June 2013 you attended a hearing at the Tribunal. At the hearing you were invited to comment on or response (sic) to information pursuant to s 424AA and you requested the information be put in writing and time to provide your comments or response
424AA information
At the Departmental interview on 7 August 2012 it is recorded that the following conversation occurred:
Q. Which festival celebrates Jesus birth?
A. Easter.
Q. What about his death?
A. We don’t have that festival in my village.
The above information is relevant to the review because the Tribunal may find that your answers are not consistent with your statement that you have been attending Church where you read the Bible since 3 April 2011. The Tribunal may also find that you do not demonstrate a level of knowledge at the Departmental interview that is consistent with your claimed Christian faith or practice.
This may lead the Tribunal to find it does not accept that you were Christian in China or that you were detained and told at the police station that you were threatened to go to Jiangjing Town family planning station to accept sterilisation voluntarily within three months otherwise they would use forcible methods.
Please see attached country information related to “Forced sterilisation in Fujian” for your information.
At the hearing it was agreed that you would provide … your comments or response to the Tribunal in writing. Your comments or response should be received at the Tribunal by 5.00 pm, 25 June 2013 [10]
[10] CB 202.
10. On 25 June 2013, the Applicant, through her migration agent, responded to the Tribunal letter.[11]
[11] CB 211-250.
11. On 5 July 2013, the Tribunal affirmed the Delegate’s decision, notifying the Applicant by letter dated 8 July 2013.[12] On 2 August 2013, the Applicant applied to this Court for judicial review of the Tribunal’s decision. The application, therefore, satisfied the time limit prescribed by s 477(1) of the Act.
[12] CB, 252-282.
Tribunal's decision
Background and attachments
12. The Tribunal’s decision record is divided into three parts:
a. Statement of decision and reasons;[13]
[13] CB, 256-258.
b. Attachment 1 – Relevant Law;[14] and
[14] CB 259-261.
c. Attachment 2 – Claims and Evidence.[15]
[15] CB 262-282.
13. Attachment 1 is uncontroversial. In particular, the Tribunal sets out the criteria under the Act for a protection visa, being obligations under the Refugees Convention and the complementary protection criterion.[16]
[16] CB 259-260.
14. Attachment 2 is a description of the material before the Tribunal. The Tribunal details:
a. the contents of the Applicant’s Personal Statement attached to her application to the Delegate for the protection visa;[17]
[17] CB 262-266.
b, evidence given by the Applicant at the hearing before the Tribunal;[18]
[18] CB 266-267.
c. information comprising statements made by the Applicant to the Delegate, which the Tribunal considered relevant to s 424AA of the Act;[19]
[19] CB 267-268.
d. the Tribunal letter and attachments;[20]
[20] CB 268-275.
e. The response of the Applicant’s migration agent,[21] including:
[21] CB 275-276.
i. United States Department of State (USDOS) Report of 2012 as to family planning in the PRC;[22]
[22] CB 276-278.
ii. United States Congressional Executive Commission on China (CECC) reports as to family planning in the PRC;[23]
[23] CB 278-279.
iii. Immigration and Refugee Board of Canada material as to family planning in the PRC;[24]
[24] CB 279-280.
iv. Other reports and articles as to family planning in the PRC.[25]
[25] CB 280-281.
Tribunal identifies issue
15. The Tribunal identified the issue before it in the following terms:
The issue in this case is whether the applicant is Christian and, if so, then what will happen as a result and secondly, whether there is a real chance that the applicant will face involuntary sterilisation if she returns to China.[26]
[26] CB 256 [3].
Christianity
16. On the question of Christianity, the Tribunal reasoned in the following way:
a. The Applicant, by identifying at the Departmental interview Easter as the festival celebrating the birth of Jesus and denying in her village any festival concerning the death of Jesus, did not demonstrate a level of knowledge that was consistent with her claimed Christian faith or practice;
b. The Applicant, by confusing Christmas with Easter, and not knowing at least the names or significance of the birth and death of Jesus, could not have been practising Christianity since 2011 in the manner she claimed;
c. The subsequent explanation of the Applicant’s migration agent that the Applicant’s incorrect reference to Easter as concerning the birth of Jesus was because the Applicant was anxious and confused at the Departmental interview was not provided at the hearing; and
d. The Applicant, though she demonstrated some knowledge at the Tribunal hearing about the Bible by identifying 3 stories that Jesus told, was unable to tell the Tribunal that the Gospels dealt with the life of Jesus or which book followed the Gospels. This was inconsistent with her statement that she had been attending Church activities since April 2011 where participants read the Bible.[27]
[27] CB 256 [5].
17. On this basis, the Tribunal concluded that the Applicant had a “lack of basic knowledge about Christianity and the Bible”.[28] The Tribunal stated that it:
[28] CB 256 [6].
… does not accept that the Applicant is credible or that she is Christian or has attended Church in Australia or that she was a Christian in China or attended religious gatherings or that she was baptised or attended a Sunday gathering when eight police arrived or that she was detained or approached by family planning officials who threatened forced sterilisation.[29]
[29] CB 256 [6].
18. The Tribunal also found that it:
does not accept that any of the events the applicant alleges occurred in China have in fact occurred or that she is Christian, that the applicant will not be perceived as a Christian or participate in Christian gatherings if she returns.[30]
[30] CB 257 [7].
Forced sterilisation
19. The Tribunal then dealt with the Applicant’s claim that, if she were to return to China, she would be forced to undergo sterilisation surgery. The Tribunal reasoned as follows:
a. it noted country information tending against the occurrence of forced sterilisation, including that “forced sterilisation is not a widespread practice” in Fujian;[31]
b. the Tribunal concluded that “it is more likely that coercion is through public and other pressure, but not through physical forced (sic) employed in connection with sterilisation”;[32]
c. in reaching this conclusion, the Tribunal had regard to country information submitted by the Applicant’s migration agent, but was not persuaded to a contrary conclusion. In particular, this was because the information largely concerned China generally, rather than Fujian province;[33]
d. as already indicated, the Tribunal did not accept that the Applicant had been approached previously by family planning officials whilst she was in China.[34]
20. On this basis, the Tribunal held:
… if the applicant returns to Fujian, then there is only a remote chance that she would face forced sterilisation in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied she faces a real chance of serious harm in the reasonably foreseeable future.[35]
[31] CB 257 [10].
[32] CB 257 [11].
[33] CB 257 [11].
[34] CB 257 [12].
[35] CB 257 [13].
General
21. The Tribunal also noted that, having considered the Applicant’s claims singularly and cumulatively, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for any other Convention reason.[36]
[36] CB 258 [14].
Complementary protection
22. The Tribunal noted that it had accepted that forced sterilisation in Fujian was not widespread. The Tribunal was, therefore, not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to the PRC there was a real risk that she would be, in particular, subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.[37]”
[37] CB 258 [17].
The applicant attended a directions hearing before a Registrar of this Court on 25 October 2013. On that occasion, the applicant was given leave to file and serve an amended application and any further evidence by 6 December 2013. The applicant was also directed to file and serve written submissions in support of her application 14 days before the hearing.
At that directions hearing, the applicant was assisted by a Mandarin interpreter and was provided with the contact details of Legal Services providers and translating and interpreting services in documents headed in her own language. The applicant also was provided with a copy of the costs schedule of this Court and the consequences of a costs order being made against her in a final hearing were explained to her.
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant confirmed that she had not filed any further documents in support of her application, either in accordance with the directions of the Court or otherwise. The applicant confirmed that she relied on the grounds of her application for judicial review and they are set out as follows:
“1. RRT breached procedural fairness.
2. RRT is biased against me.
3. RRT didn’t consider my evidence according to law”
Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever she wished in support of those grounds.
Ground 1
Ground 1 asserts that the RRT breached procedural fairness. I asked the applicant how the Tribunal breached procedural fairness. The applicant responded that the fact that her church did not celebrate Christmas and Easter was the focus of an argument between her and the Tribunal member. Plainly, that response does not identify how the RRT breached procedural fairness.
In its decision record, the RRT noted in some detail the exchange that it had with the applicant about Christian festivals. The RRT did not accept that a person who had been practising Christianity since 2011, as the applicant claimed to be, would not know the names or significance of Easter and Christmas. It is well established that the RRT is not obliged to accept uncritically the evidence of the applicants before it (see 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 (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The RRT comprehensively rejected the applicant’s claims of being a Christian and suffering harm for that reason. The RRT found that the applicant was unable to answer basic questions about her alleged faith and found that the applicant’s lack of basic knowledge about Christianity and the Bible indicated that the applicant was not a Christian. The RRT rejected the applicant’s claim to have attended church in Australia or that she was a Christian in China or attended religious gatherings or was baptised, or that she suffered harm in China for those reasons.
The RRT also considered the applicant’s claim that if she returned to China, she would be forced to undergo sterilisation surgery. The RRT had regard to country information before it that indicated that whilst there are reports of forced sterilisations in Fujian Provence, they are not widespread and do not have the support of the Fujian Provence Birth Planning Centre.
The RRT found that it was more likely that coercion through public pressure and other pressure may be the reason why a person would undergo sterilisation in China. In reaching this conclusion, the RRT considered the applicant’s adviser’s submission, dated 25 June 2013. The RRT noted that the submission referred to the situation in China generally and did not focus on Fujian. The RRT did not accept that the applicant had been approached previously by family planning officials while she was in China and considered that if the applicant returns to Fujian, then there is only a remote chance that she would face forced sterilisation in the reasonably foreseeable future.
Based on those findings, the RRT concluded that it was not satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future.
The RRT considered whether the applicant met the refugee criteria under both ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and concluded that she did not.
Further, following the hearing, the RRT wrote to the applicant pursuant to s.424A of the Act on 18 June 2013 inviting the applicant to comment or respond to information that the applicant had given at the department interview in response to questions about Christianity from the delegate of the Department (“the s.424A Letter”).
The s.424A Letter informed the applicant that the information was relevant, because it was not consistent with the applicant’s statement to have been attending church since April 2011 and that the RRT may find that the applicant did not demonstrate a level of knowledge at the department interview consistent with her claimed Christian faith or practice.
The s.424A Letter further informed the applicant that this may lead the RRT to find that it does not accept that the applicant was a Christian in China or was detained was threatened with forced sterilisation, as she had claimed. As stated above, the RRT had regard to the applicant’s adviser’s submission in response to the concerns expressed by it, but was not persuaded by them.
The RRT’s findings, including its adverse findings, were open to it on the evidence and material before it and for the reasons it gave. Credibility findings are a matter of par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The applicant was invited to a hearing, pursuant to the legislative scheme, which she attended and at which she gave evidence. There is nothing in the conduct of the review by the RRT or in the RRT’s decision record to suggest that there was any denial of procedural fairness.
Accordingly, ground 1 is not made out.
Ground 2
In ground 2, the applicant asserts that the RRT was biased against her. I asked the applicant in what way the RRT was biased against her. The applicant replied that the mood of the RRT member changed after she had given her evidence and that the RRT member had said she could have two weeks to provide further material after the hearing, but that her application was refused before that period.
The applicant’s complaint that her explanation was refused before the expiration of two weeks cannot be made out. The applicant attended a hearing before the RRT on 18 June 2013 and the decision record, dated 5 July 2013, was not handed down until 8 July 2013, some twenty days later. In any event, a post-hearing submission by the applicant’s adviser was considered by the RRT.
The applicant’s bare allegation of bias was wholly unsupported by evidence. An allegation of bias is serious and requires evidence, such as a transcript of the RRT hearing.
The applicant was directed on 25 October 2013 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 6 December 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 6 December 2013. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
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]).
There is nothing on the face of the RRT’s decision record or the conduct of its review to suggest that it 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 2 is not made out.
Ground 3
In ground 3, the applicant asserted that the RRT did not consider her evidence according to law. When I asked the applicant in what way the Tribunal had not considered her evidence according to law, the applicant responded that the hearing had been adjourned and she did not know why. Plainly, such a complaint does not establish the bare assertion made by the applicant that the RRT did not consider her evidence according to law.
As stated above, a fair reading of the RRT’s decision record makes clear that the RRT considered the applicant’s claims, wrote to the applicant pursuant to s.424A of the Act giving the applicant information that may be the reason or part of the reason for it affirming the decision under review and invited the applicant to comment.
The RRT refers in its decision record to exchanges that it had with the applicant about her faith and the concerns it had about her answers. The RRT decision record makes clear that the RRT raised with the applicant its concerns and noted her responses. The applicant’s complaints appear to be more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review, which this Court cannot undertake (see 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)..
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 both at the hearing and in writing matters of concern it had about her 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.
Accordingly, the proceeding before this Court commenced by way of application filed on 2 August 2013 should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 19 November 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Jurisdiction
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