SZTKN v Minister for Immigration and Border Protection
[2015] FCA 212
•16 February 2015
FEDERAL COURT OF AUSTRALIA
SZTKN v Minister for Immigration and Border Protection [2015] FCA 212
Citation: SZTKN v Minister for Immigration and Border Protection [2015] FCA 212 Appeal from: SZTKN v Minister for Immigration & Anor [2014] FCCA 2213 Parties: SZTKN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1060 of 2014 Judge: LOGAN J Date of judgment: 16 February 2015 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia affirming the decision of the Refugee Review Tribunal – where applicant has been denied protection visa – whether Federal Circuit Court failed to identify jurisdictional error on the part of the Tribunal – whether Tribunal by questions asked at the hearing concerning religious beliefs displayed bias against appellant and failed to engage with the basis of the appellant’s claim for protection
Held: questions asked by the Tribunal of the appellant were at a general level of abstraction and not indicative of bias – neither actual nor apprehended bias patent on the face of the Tribunal’s reasons – no failure by Federal Circuit Court to find jurisdictional error on the part of the Tribunal – appeal dismissed
Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 applied
Wide Bay Conversation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250 citedDate of hearing: 16 February 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1060 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTKN
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
16 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, which are fixed in the amount of $4,144.00.
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 1060 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTKN
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE:
16 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of the People’s Republic of China. She came to Australia with her husband as a visitor on 9 September 2012. On 11 September 2012, she applied to the Minister then known Minister for Immigration and Citizenship, a ministerial office now known as the Minister for Immigration and Border Protection (Minister), for that class of visa under the Migration Act 1958 (Cth) (the Act) known as a protection (class XA) visa. The appellant’s husband has a separate application for such a visa which is derivative in the sense that it depends upon his being a member of the appellant’s family unit and is wholly based upon the basis of her claim for a protection visa. With the assistance of an agent, the appellant detailed her claims for a protection visa in a statement received by the Department on 9 January 2013.
On 4 February 2013, a delegate of the Minister refused the appellant’s claim for a protection visa. That refusal decision governed the fate of her husband’s application. As was her right under the Act, the appellant then sought the review by the Refugee Review Tribunal (Tribunal) of the refusal decision by the Minister’s delegate. In this application she was also assisted by the same registered migration agent who had assisted with the provision of the statement of her claimed protection lodged with the Minister’s delegate. The appellant was invited to attend and did attend a hearing conducted by the member who constituted the Tribunal on 12 September 2013.
The following day, 13 September 2013, for reasons which were set out in writing, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant either the appellant or her husband protection visas. The appellant then sought the judicial review of the Tribunal’s decision by the Federal Circuit Court. On 26 September 2014 that court dismissed with costs the appellant’s judicial review application. From that judgment the appellant now appeals to this court. Her husband is not an appellant nor was he an applicant for judicial review in the Federal Circuit Court. The grounds of appeal are these.
1.The Refugee Review Tribunal was or appeared to be biased against me in making the decision.
In paragraph 36, 37 and 38 of the decision, the Tribunal found the applicant to be incredible. I just tell the truth about what happened to me when I was in China.
2.The Refugee Review Tribunal has ignored relevant considerations in making the decision.
In paragraph 52 of the decision, the Tribunal does not accept the applicant’s response is convincing. I believe my response was not fully considered by the Tribunal.
[sic]
The Minister put in submissions on appeal that these grounds of appeal did not reflect grounds of review taken before the Federal Circuit Court (Federal Circuit Court) on the judicial review application. That is true in relation to the first ground of appeal which alleges actual or apprehended bias. I am not persuaded that the second ground of appeal does not reflect a ground of review. The first and second grounds of review before the Federal Circuit Court respectively alleged that the Tribunal had failed to deal with an indice of the applicant’s case and that her claim included the practice of Falun Gong in Australia since her arrival thereby giving rise to a potential “sur place” claim. A failure to deal with the basis of a claim for a protection visa would, in my view, constitute a failure to take into account a relevant consideration by the Tribunal. So viewed there is an overlap between the second ground of appeal and the first and second grounds of review before the Federal Circuit Court. Even if this were incorrect in any event, there is, as the Minister correctly conceded, an ability by leave to allow an appellant to advance a ground of appeal in respect of a point not taken before the Federal Circuit Court. If, truly, the Tribunal’s reasons patently exhibited administrative law error, it would be possible nonetheless to allow an appeal on the basis of that patent error, on the basis that the court ought to have determined the application on the basis of that patent error.
More generally, the grounds of appeal reflect a vice frequently encountered in appeals of this kind of case. By that I mean that they engage with the Tribunal’s decision rather than focusing upon, as they should, an error alleged in respect of the judgment under appeal. It is necessary to recall that the original jurisdiction in respect of the judicial review of decisions of the Tribunal is vested in the Federal Circuit Court, not this Court. This Court exercises an appellate jurisdiction in respect of judgments of the Federal Circuit Court in the judicial review of Tribunal decisions.
I turn, then, to the two grounds of appeal.
The first ground of appeal needs to be understood against the background of the appellant’s claim for a protection visa. The essence of that claim is that she had practised Falun Gong in China and been persecuted as a result by the Chinese Government. That persecution, so she claimed, included having been jailed or placed in a detention centre on a number of occasions. The Tribunal member, as his reasons disclose, addressed in detail the claim for a protection visa as made by the appellant. Paragraphs 36 to 38 of the Tribunal’s reasons, referred to in the first ground of appeal, were expressed in this way:
36.The Tribunal can accept that the applicant would not mention the police visited her home in her application form because that was made in September 2012 and she was not told about this visit until early October 2012. However, the application form indicates it was intended a more detailed statement of the applicant’s protection claims would be provided and that statement was subsequently sent in early 2013.
37.Considering the applicant claimed that she was told of this police visit in early October 2012, it is not credible that this important information would be omitted from a long and detailed statement lodged with the department almost three months later. Apart from stating that the representative simply did not mention it, the applicant has no other explanation for this discrepancy.
38.The statement contains the other protection claims advanced by the applicant about her difficulties with the authorities in China and the omission of this important information about police going to her home soon after she left China and threatening to arrest on her return is not credible.
An applicant for review on the merits by the Tribunal of a decision by the Minister or one of his delegates in respect of an application for a protection visa is entitled to have that review conducted by an impartial tribunal. An absence of impartiality can be established either by evidence of actual bias or by evidence which gives rise to a reasonable apprehension of bias measured by reference to what a lay observer acquainted with the facts would conclude (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at paragraphs 3 to 10 inclusive). It is for a person alleging impartiality of one or the other or each of these kinds to prove that.
In this case, the evidence available amounts to no more than the reasons of the Tribunal. Those reasons do not evidence either actual bias or give rise to an apprehension of bias. In particular, the paragraphs to which the appellant draws attention in the first ground of appeal do no more than provide a reasonable, rational basis upon which to make a credibility finding. It is important to recall in this regard an observation made by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 at paragraph 67 where his Honour observed that findings as to credibility are “par excellence” for primary decision-makers.
I was left upon hearing the appellant’s oral submissions with the distinct impression that her description of the Tribunal as biased or appearing to be biased was an emphatic way of her expressing disagreement with the conclusions on the merits of her claim reached by the Tribunal. There is no reason to doubt the genuineness of that feeling. However, on judicial review, the Federal Circuit Court and, on appeal, this Court must exercise a principled restraint in relation to reasoned findings of fact by the Tribunal. There is neither actual nor apprehended bias patent on the face of the Tribunal’s reasons. The first ground of appeal must, therefore, fail.
I turn then to the second ground of appeal. As I have already stated, a failure on the part of the Tribunal to engage with the basis of a claim for a protection visa and in turn a failure on the part of the Federal Circuit Court to hold that this amounted to a failure to take into account a relevant consideration would constitute a failure on the part of the Federal Circuit Court to find the jurisdictional error of failing to take into account a relevant consideration.
At paragraph 52 of his reasons, the Tribunal member makes reference to the putting of country information to the appellant and to what he describes as her unconvincing general and vague responses. More particularly, the Tribunal member there records that the appellant “appeared to have no real understanding of this basic aspect and the purpose of practice and this further reflected her untruthfulness.” The latter is a reference to an inability on the part of the appellant when asked by the Tribunal member to mention the important tenet of Falun Gong; namely, “That a Falun or wheel is installed in the abdomen of the practitioner in a spiritual sense and is part of the cultivation or benefits that practice is meant to achieve” (see paragraph 51 the Tribunal’s reasons).
Where a claim for a protection visa is based on adherence to a particular religion or set of beliefs, evidence as to detailed interrogation by a Tribunal member as to the intricacies of that religion or belief can, against other facts, provide a basis for an apprehension of bias. A hearing before the Tribunal is not an examination in advanced theology. To approach it as if it were can sometimes, upon reading a transcript of the proceedings before the Tribunal, lead to a conclusion that nothing that an applicant could say or do would persuade a Tribunal member of the genuineness of their claim to make particular religious belief or other belief. That is not this case.
The question evidently asked by the Tribunal was at a very general level of abstraction, indeed, in relation to the practice of Falun Gong. That the question was asked at all is evidence of an engagement by the Tribunal with the basis of the appellant’s claim for a protection visa. It is just that that claim, as paragraph 52 highlights in a reasoned way, was not accepted. The Federal Circuit Court noted, as I do, that there was also before the Tribunal a sur place aspect. There was no evidence, though, of the appellants following the practice of Falun Gong in Australia, such as might have further or alternatively provided a basis for a protection visa claim.
For these reasons neither of the grounds of appeal has any merit. The appeal must, therefore, be dismissed.
Application has been made by the Minister for costs and, further, that the court fix those costs. There is no reason why costs should not follow the event, and the appellant did not submit otherwise.
The Minister relied upon an affidavit of his solicitor. In that affidavit reference was made to the following tasks having been performed in relation to the appeal by the Minister’s solicitors; namely, preparation of the Minister’s submissions, filing and serving those submissions, preparing, filing and serving the appeal book, related liaison with officers of the Minister’s department, appearance on the appeal and post-disposal work such as the drafting of a letter to the appellant attaching the court-sealed orders. Amounts for this work were given in a general way based upon a computer-based time billing and recording system known as “Aderant Expert” used by the Minister’s solicitors.
Time costing is a form of costing which is contemplated under the courts’ rules. When fixing costs, as the court is entitled to do as an alternative to taxation, a robust approach is called for, but that approach must nonetheless take into account that time costing can be a reward for inefficiency: see Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250. Even so, the range of costs specified in the affidavit relied upon by the Minister; namely, between $4,144 and $4,782 does not strike me as inherently unreasonable or excessive having regard to my experience of this case, of others like it over they years and also item 15 in the Third Schedule to the Federal Court Rules 2011 (Cth).
I am satisfied that this is a case where it is appropriate to fix costs. I am further satisfied, having regard to the work entailed and my own scrutiny of the Minister’s submissions, that it is appropriate to fix costs in the amount of $4,144 and I do so.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 12 March 2015
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