SZTJX v Minister for Immigration

Case •

[2014] FCCA 1876

•

25 July 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1876
Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – alleged failure to consider claim – allegation of bias –
no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Applicant: SZTJX
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2478 of 2013
Judgment of: Judge Nicholls
Hearing date: 25 July 2014
Date of Last Submission: 25 July 2014
Delivered at: Sydney
Delivered on: 25 July 2014

REPRESENTATION

Applicant: In Person
Counsel for the Respondents: Ms F Taah
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application made on 14 October 2013 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $3,700.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2478 of 2013

SZTJX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 October 2013. The applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) which was made on 18 September 2013, which affirmed the decision of the delegate of the Minister to refuse a protection visa to the applicant.

Background

  1. The Minister has put a bundle of relevant documents before the Court now in evidence (“the Court Book” – “CB”). The following background can be seen from that material.

  2. The applicant is a national of the People’s Republic of China (“China”) (CB 2). He arrived in Australia on 12 March 2008 with a student visa (CB 3). This visa ceased to have effect on 15 March 2010 (CB 3). Over two years later, on 25 May 2012, the applicant applied for a protection visa (CB 1 to CB 36). He was assisted in this application by a registered migration agent (CB 24).

  3. The applicant’s claims to protection were initially set out in a written statement (CB 30 to CB 33). His claims to fear harm were said to emanate from the resumption of his father’s land in 2008 by the Chinese authorities, and the inadequate compensation that was offered for that resumption (CB 30). The applicant claimed that his father sought an explanation from the local authorities, that he became involved in an altercation, and was arrested and detained by the police (CB 31).

  4. When his father sought to complain, he was again arrested and imprisoned for three years (CB 31 to CB 32). The applicant claimed his family was then harassed, forcing the closure of their business and that he feared persecution if he were to return to China because of these matters (CB 32 to CB 33).

  5. The applicant was interviewed by the Minister’s delegate who subsequently refused the application (CB 55 to CB 66). The delegate found that the applicant’s claims were not credible in the circumstances that he presented (CB 63). The delegate was also concerned at the delay in the making of the application for protection. That is, it is implicit from the delegate’s decision record that the delegate saw that delay, of over two years, to be inconsistent with someone who said they had a genuine fear of harm if they were to be returned to their home country (CB 63).

The Tribunal

  1. The applicant applied for review to the Tribunal on 24 September 2012 (CB 67 to CB 71). He continued to be represented by a registered migration agent (CB 69 and CB 77).  He attended a hearing before the Tribunal on 10 September 2013 (CB 85 to CB 87). He also provided a number of documents to the Tribunal in support of his claims (CB 88 to CB 98).

  2. The Tribunal affirmed the delegate’s decision to refuse a protection visa to the applicant on 18 September 2013 (CB 101). Central to the Tribunal’s decision was that it found that the applicant was not a witness of truth. The Tribunal comprehensively rejected the entire factual basis for the applicant’s claimed fear ([30] at CB 108).

  3. I note that the Minister’s written submissions filed in these proceedings summarise the Tribunal’s reasons for this finding.  I am satisfied that the Minister has fairly represented the Tribunal’s reasoning and findings in this regard. For convenience, therefore, I incorporate those paragraphs of the Minister’s written submissions into this judgment ([9] – [12] of the Minister’s written submissions):

    “[9] The Tribunal’s rejection of the applicant’s claims were based on the following reasons:

    - The Tribunal found aspects of the applicant’s oral evidence (other than those contained in his written statement) to be vague. Whilst the applicant had given oral evidence to the Tribunal that he visited his father in prison several times in 2010, he was unable to provide the name of the prison and was unable to specify exactly when he visited his father.

    - The Tribunal found it difficult to accept that the applicant would petition the Chinese courts if returned to China given he had not mentioned in his written statement that he had provided any direct or indirect support to his father whilst he petitioned the courts.  

    - The Tribunal did not accept that the applicant financially supported his family after his father was imprisoned as the applicant had provided inconsistent evidence to the Tribunal about when he stopped studying.

    - The applicant had provided contradictory explanations for his delay in seeking protection and the Tribunal did not accept any of those explanations as satisfactory. The Tribunal considered that the delay in seeking protection supported a conclusion that the applicant did not have a genuine fear of persecution in China.

    - The Tribunal was not satisfied that the applicant’s documentary evidence supported his claim that his family house was forcibly demolished, and in light of the Tribunal’s concerns about the applicant’s credibility and country information suggesting high levels of document fraud in China, gave the applicant’s supporting documentation little weight.

    [10] The Tribunal did not accept that the applicant had a genuine fear of harm of persecution, noting that the applicant’s evidence was that he had not experienced any difficulties in China, and was not satisfied that there was any reason why the applicant would come to the adverse attention of the Chinese authorities in the reasonably foreseeable future if returned to China.

    [11] The Tribunal considered the alternative criteria in s 36(2)(aa) of the Act but did not accept that there were substantial grounds for believing that as a necessary consequence of being removed from Australia to China there is a risk that the applicant will suffer significant harm .

    [12] On 18 September 2013, the Tribunal affirmed the decision not to grant the applicant a Protection visa.

Application Before the Court

  1. The grounds of the application to the Court are as follows:

    “1. RRT didn’t accept my evidence which is true.

    2.  RRT didn’t consider the risk of me going back to China.

    3.  RRT has bias against me with prejudice and misconceptions.”

Before the Court

  1. At the first Court date in this matter on 4 December of 2013, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Given the unparticularised nature of the grounds of his application to the Court, and that grounds one and two appeared simply to seek to engage the Court in impermissible merits review of the Tribunal decision, I gave the applicant some time to consider whether he should seek legal advice. I also made orders giving the applicant the opportunity to file an amended application and any evidence by way of affidavit in support of any grounds in such an application.

  2. At the hearing today, the applicant again appeared in person, and he was again assisted by an interpreter in the Mandarin language.


    Ms F Taah appeared for the Minister.

  3. Nothing further has been filed by the applicant in these proceedings.  From what the applicant did say to the Court today, I accept that he did consider seeking legal advice, but was precluded from doing so because, as he said, he could not afford to pay for any such advice. [He did not say whether he considered approaching any community legal advice centres.]

  4. The applicant asked the Court to see if the Court could find anything adverse in the Tribunal’s decision record, such as could assist him.  There are two things, therefore, that I must say about what the applicant said to the Court today.

  5. The first is that the applicant’s inability to obtain legal advice is not a matter that ultimately can assist the applicant before the Court today. There is no right of legal representation before this Court in matters of this type (Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702).

  6. Second, and in any event, responding both to the applicant’s request that the Court look to see if there was anything adverse in the Tribunal’s decision, and also bearing in mind that the applicant is legally unrepresented before the Court today, I did look to the Tribunal’s decision record and the material before the Court to see if any jurisdictional error that might assist the applicant was apparent on the material before the Court. However, as I said to the applicant earlier today, there is nothing apparent in this material to indicate that the Tribunal made the kind of legal mistake such that the Court could intervene to assist him today.

Consideration

  1. Ground one of the application to the Court does not rise above an unparticularised challenge to the Tribunal’s adverse credibility finding. In short, it simply asks the Court to engage in impermissible merits review. As stated, the ground really asks the Court to intervene and make its own findings of fact as to whether the applicant should be given protection in Australia. As I said to the applicant earlier today, the Court is by law not permitted to engage in such a process (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). 

  2. The central reason for the Tribunal’s decision was its clear and comprehensive finding that the applicant was not telling the truth ([30] at CB 108). The Tribunal’s findings that informed that conclusion, that is the conclusion as to the applicant’s lack of credibility, were all reasonably open to it to make on what was before it. The Tribunal gave reasons for these findings probative of what was before it.  In essence, these findings were all within the proper exercise of the Tribunal’s jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)). 

  3. In relation to the documents that the applicant provided to the Tribunal in support of his claims, the Tribunal decided to give those documents little weight. It did so for essentially two reasons. First, it had significant concerns about the applicant’s credibility based on his own evidence to it. Second, the Tribunal had regard to relevant country information about the prevalence of document fraud in China.

  4. The assignment of weight to documentary evidence before it is a matter for the Tribunal in the proper exercise of its jurisdiction (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 and Wu Shan Liang). No legal error is revealed in that regard.

  5. The applicant’s complaint as expressed in his ground now, that what he said to the Tribunal was “true”, invokes the response that the Tribunal was not obliged to uncritically accept his evidence (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). The Tribunal is required to consider all of an applicant’s claims to fear harm, and to make findings of fact based on the evidence before it. As stated above, provided the Tribunal makes findings that are reasonably open to it on the material that is before it, and so long as it gives reasons probative of that evidence, then no legal error is apparent (Durairajasingham). That is the situation in the current case.

  6. A proper understanding of ground two turns on the applicant’s use of the word “consider”. If the applicant means that the Tribunal failed to consider his claims in the sense that it failed to turn its mind to some aspect of his claims (in the sense of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1) then the answer to the applicant is that there is nothing in the material before the Court to provide a factual basis for any such assertion. In the circumstances of what is before the Court, what the applicant really complains about is that the Tribunal did not accept that what he said would lead to the risk of harm if he were to return to China. This again seeks impermissible merits review from this Court (Wu Shan Liang). Ground two is not made out.

  7. Ground three asserts bias on the part of the Tribunal. Such an allegation is unfortunately often seen from applicants before the Court in matters of this type who have had no legal advice. It is perhaps understandable that an applicant who is not legally represented or who has not had access to legal advice, would fail to understand the seriousness of such an allegation being made against the Tribunal member.

  8. I say this for the applicant’s benefit, such an allegation is especially serious because unlike other assertions of legal error, an assertion of bias strikes at the very integrity of the Tribunal member. It is for this reason that the law requires that any allegation of bias be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  9. The ground itself provides no particulars or details about why the applicant asserts that the Tribunal was biased. As I said earlier, when I made orders at the first Court date I gave the applicant the opportunity to file any evidence in support of the grounds of his application. I note that, for whatever reason, there is no evidence from the applicant before the Court to support his allegation of bias. It is the case that it is only in rare circumstances where bias can be made out simply having regard to the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

  10. The legal test for bias is well known and well settled (see [24] above). In that regard, there is nothing in the material before the Court to show that the Tribunal did not bring an open mind to the proceedings before it. There is nothing in the material to suggest that the Tribunal misunderstood or misconstrued the applicant’s claims and even beyond any allegation of bias, there is nothing to show that the Tribunal overlooked or inadvertently misconstrued any claim made by the applicant.

  11. What remains is that the allegation of bias is the applicant’s way of expressing his dissatisfaction or the applicant’s explanation for the Tribunal’s adverse finding as to his own credibility and claims to protection. That dissatisfaction does not reveal bias on the part of the Tribunal nor, it must be said, any other relevant legal error.

Conclusion

  1. In all, I cannot see jurisdictional error in the Tribunal’s decision.  It is appropriate that the application to the Court be dismissed. I will make the order accordingly as the Minister seeks.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 25 July 2014

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Cases Citing This Decision

1

SZTJX v Minister for Immigration and Border Protection [2014] FCA 1360