SZTKR v Minister for Immigration and Border Protection

Case [2018] FCA 1613

FEDERAL COURT OF AUSTRALIA

SZTKR v Minister For Immigration and Border Protection [2018] FCA 1613

Appeal from: SZTKR & Anor v Minister For Immigration And Border Protection & Anor [2014] FCCA 1705
File number: NSD 2094 of 2017
Judge: BURLEY  J
Date of judgment: 26 October 2018
Catchwords: MIGRATION – refusal of protection visa application – whether the decision of a differently constituted Tribunal could be used to show that the Tribunal’s decision was unreasonable – appeal dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth), s 24

Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa)

Federal Court Rules 2011 (Cth) , r 36.05

Cases cited:

Minister for Immigration and Border Protection v Singh [2016] FCA 575

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588

Date of hearing: 21 September 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 18
Counsel for the Appellants: The First Appellant appeared in person on behalf of the Appellants
Counsel for the First Respondent: Ms R Francois
Solicitor for the First Respondent: DLA Piper
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 2094 of 2017
BETWEEN:

SZTKR

First Appellant

SZTKS

Second Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:

BURLEY  J

DATE OF ORDER:

26 OCTOBER 2018

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellants pay the First Respondent’s costs of the appeal.

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


REASONS FOR JUDGMENT

BURLEY J:

1.               INTRODUCTION

  1. The first appellant is the mother of the second appellant. Both are citizens of the Republic of China. The first appellant  arrived in Australia on a student visa on 23 May 2008, and on 24 July 2012 she applied for a Protection (Class XA) visa (visa application) based on her fear that she would be persecuted in China as a result of her Christian faith. On 11 September 2012 her daughter, the second appellant was born, and was joined to her mother’s visa application on 22 October 2012. Only the mother has made specific claims under the Refugee Convention; the second appellant relies on her membership of the same family as the basis for her application.

  2. The visa application was refused by a delegate of the Minister for Immigration and Border Protection on 19 November 2012. The appellants then applied to the Refuge Review Tribunal (now known as the Administrative Appeals Tribunal) for a review of the delegate’s decision. On 19 September 2013 the Tribunal affirmed the decision of the delegate. The appellants then appealed to the Federal Circuit Court of Australia (FCCA) for judicial review of the Tribunal’s decision, and on 22 August 2014…

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SZTKR v Minister for Immigration and Border Protection [2018] FCA 1613
Case
[2018] FCA 1613
Decision Date

CaseChat Overview and Summary

In the matter of SZTKR v Minister for Immigration and Border Protection, the appellants sought review of a decision of the Administrative Appeals Tribunal (AAT) which dismissed their application for a protection visa. The appellants, represented by the first appellant with the assistance of an interpreter, contested the AAT's finding that the appellants' claims for protection were not credible and that there was no real chance they would suffer harm due to their religious beliefs if they returned to China. The Tribunal's decision hinged on its assessment of the credibility of the appellants' claims, particularly in relation to their involvement with a local church in China and their activities upon returning to Australia. The Federal Circuit Court of Australia (FCCA) dismissed the appellants' application for review, finding that the Tribunal's decision was not vitiated by any error, including apprehended bias.

The central legal issue before the court was whether the decision of the AAT was vitiated by jurisdictional error, specifically by being inconsistent with a decision made by a differently constituted Tribunal. This argument was not raised before the FCCA and was only presented for the first time on appeal. The court considered the principles governing the grant of leave to raise new grounds of appeal, emphasizing the importance of settling substantial issues at the trial level to maintain the integrity of the judicial process. The court found that the proposed ground of appeal had no merit and was not justified for consideration at the appeal stage.

The court reasoned that the AAT's decision was based on its own assessment of the appellants' claims and was not the result of template reasoning. The Tribunal's findings were supported by its questioning of the appellants during the hearing and were consistent with its duty to avoid pre-judgment and to assess each case on its merits. The court concluded that the Tribunal did not err in its decision and that the proposed ground of appeal was without merit. Accordingly, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The Appellants pay the First Respondent’s costs of the appeal.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister was represented at the hearing by Ms Rachel Francois of counsel, who filed written submissions in advance of the hearing and made submissions at the hearing. The appellants were represented at the hearing by the first appellant, who made submissions with the assistance of an interpreter. 2. THE DECISIONS OF THE TRIBUNAL AND THE FCCA The claims made by first appellant before the Tribunal were, in broad terms, that she was a member of a local church in Fujian, China and had attended Bible study classes on Friday and Saturday evenings with about 9 other students. After coming to Australia on a student visa, she regularly attended the Local Church in Sydney, from June 2008. She returned to China to visit her parents in December 2009. While she was there her father was badly injured in a traffic accident and she spent two months caring for him. During this time she contacted her aunt and friends in the Local Church, she attended secret church meetings and helped to produce copies of a bible to help to evangelise students. Her aunt was arrested in February 2010 while organising a bible study class in her home. The first appellant left China immediately for her own safety and arrived in Australia on 18 February 2010. Since she has been here she has remained in contact with friends in the church in China and on 6 occasions has sent them copies of the Local Church’s well-known religious book, the Holy Word for Morning Revival. In June 2012 two of her friends and 30 others were arrested at a church meeting and on the following day the police raided her home in China. She fears persecution if she returns to China as a faithful Christian and as an active member of the Local Church. The Tribunal ultimately did not accept the first appellant’s evidence as credible. Amongst other things, it was not satisfied that she had sent Local Church material to China from Australia, it did not accept that she was involved in any way with the Local Church when she visited China, it was not satisfied that she attended the Blacktown branch of the Local Church as she claimed and expressed doubts as to the credibility of her claims in general. Having regard to its findings as to the credit of the first appellant, the Tribunal was not satisfied that there is any reason to believe that there is a real chance that she would suffer harm of any kind because of her religion and concluded that there is no reason why she would suffer harm should she return to China. It rejected her claims for protection made pursuant to s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (Act). The application to the FCCA was based on one ground, namely that the decision of the Tribunal “was not a decision under the [A]ct”. The application also set out four further ‘grounds’ on which the first ground was based, which (the primary judge recorded) the solicitor representing the appellant accepted distilled to one matter in issue, that being whether or not the decision of the Tribunal was vitiated by apprehended bias. The substance of the appellants’ contention before the primary judge was that after a lengthy hearing in which the internal consistency and credibility of the appellants’ claims was closely tested, the first appellant successfully resisted all challenges to her credibility. Even so, the Tribunal found against her.

Ratio Decidendi

Legal Principle Established

The learned primary judge found at [18]-[19]:[18]The following may be readily acknowledged. First, a differently constituted Tribunal might have reached different subjective conclusions based upon the same material. Secondly, the transcript reveals that the first applicant proved both adept and eloquent in answering the Tribunal’s questions. Thirdly, decision makers dealing with hundreds, possibly thousands of similar claims, most of which fail, and many of which are advanced by a small number of well known representatives, must resist the temptation towards pre-judgement. Every case must be dealt with on its own facts and on its own merits. A curiosity in the present matter is that the applicant’s husband made a separate protection visa application which was separately considered and rejected. The risk of pre-judgement is a risk that the Tribunal needed to avoid. The question is whether the Tribunal failed to avoid it.[19]I am satisfied that the Tribunal did not fall into error. In that regard I agree generally with the Minister’s submissions. Despite suggestions to the contrary in the applicants’ written submissions, this is not a case of template reasoning. The Tribunal’s reasons are based squarely and directly upon its assessment of the particular applicants’ claims. Secondly, the Tribunal’s reasons at [20] do not emerge out of thin air but flow logically from the Tribunal’s questioning of the applicant at the Tribunal hearing.3. CONSIDERATION The only ground raised on the appeal is to the effect that the decision of the Tribunal (first decision) is vitiated by jurisdictional error because it is inconsistent with the findings made by a differently constituted Tribunal, being the decision made on 14 February 2017 (second decision). In the second decision the first appellant contends that her evidence entitling her to refugee status was accepted and that it was on the basis of that evidence that her son’s application for a visa was accepted. The first appellant’s son was not a party to these proceedings. This ground was not advanced before the FCCA. That is not surprising, because the second decision post-dated the decision of the primary judge by over three years. However, leave to rely on that ground is necessary. The relevant principles for deciding whether to grant leave are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows:[46]Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees(No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].[47]In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.[48]The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.