SZTLX v Minister for Immigration

[2014] FCCA 2215

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2215

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – allegation of bias – whether Tribunal failed to consider a claim – no legal error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 476

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
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
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; (2004) 144 FCR 1
Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106

Applicant: SZTLX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2683 of 2013

Judgment of: Judge Nicholls

Hearing date: 5 September 2014

Date of Last Submission: 5 September 2014

Delivered at: Sydney

Delivered on: 5 September 2014

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms B Griffin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 31 October 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2683 of 2013

SZTLX

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 31 October 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 October 2013, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The Minister has put into evidence before the Court a bundle of relevant documents to which I will refer as the Court Book (“CB”). The following, relevantly, can be seen from that material.

2. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia as the holder of a student visa on 18 November 2007 (CB 14). That visa ceased on 18 February 2011 and thereafter he remained in Australia without authority (CB 54).

3. The applicant applied for a protection visa on 18 July 2012 (CB 1 to CB 32). His claims to protection were set out in a written statement attached to his application (CB 33 to CB 34). The basis of the applicant’s claim to fear harm in China was that he had been in a relationship with a young woman, whom he subsequently described as his girlfriend. Her father, who was a policeman, did not approve of this relationship. He claimed that when her father found out about the relationship he “hit” the applicant and “framed” him by saying that the applicant had instigated that particular incident of assault. He claimed to have been detained by police for three days.

4. Further, that after the applicant left for Australia, his father told him that he had been accused of raping the young woman, and that her father harassed his family. Even further, that the applicant’s mother paid compensation, as has been demanded by the girlfriend’s father, but the girlfriend’s father saw that as being an admission of guilt that the applicant had done something wrong. 

5. The applicant also claimed that subsequently his father faced a number of difficulties, including business and financial difficulties, and that he was charged by police with a number of offences, including offering bribes and tax evasion. The applicant claimed that his father had been targeted by the police because of his relationship with the policeman’s daughter. The applicant claimed that he feared that if he was returned to China he would be harmed and imprisoned.

6. The applicant attended an interview with the Minister’s delegate on 16 October 2012 (CB 57). The delegate refused the grant of the visa to the applicant by a decision made on 25 October 2012 (CB 46 to CB 68).

The Tribunal

1. The applicant applied for review of the delegate’s decision to the Tribunal on 22 November 2012 (CB 69 to CB 73). He attended a hearing before the Tribunal and gave his evidence on 25 September 2013 (CB 94 to CB 95).

2. The Tribunal found that the applicant was not a witness of truth. It found that the claimed factual events in China were false ([19] at CB 107, and [65] at CB 112 to [74] at CB 113).

3. The Tribunal based this conclusion on an accumulation of a series of concerns with the applicant’s evidence, which it said was inconsistent. These inconsistencies were said to be about, and to be revealed in relation to, the following matters:

   1)When the girlfriend’s father learnt of the relationship between the applicant and his daughter ([20] at CB 107 to [28] at CB 108).

   2)What was done for the applicant to achieve his release from detention ([29] ‑ [32] at CB 108).

   3)The applicant’s father’s financial difficulties and related events ([33] at CB 108 to [47] at CB 110).

   4)The applicant’s delay in applying for a protection visa after his arrival in Australia, and, what the Tribunal found to be, the applicant’s unconvincing explanation for that delay ([48] at CB 110 to [64] at CB 112).

4. The Tribunal also considered three matters which it said were raised by the applicant at the hearing. These were that he had attended a Christian church in China and Australia, that his family had been fined for breaching the one child policy, and that his mother was forced to undergo a sterilisation procedure. However, the Tribunal noted that the applicant made no claim to fear harm in China for any, or all of, those matters ([71] at CB 112 to [72] at CB 113).

Application before the Court

1. The application to the Court contains three grounds, in  narrative form:

   “1. The Refugee Review Tribunal (the Tribunal) did not make its decision carefully. I claimed fear of persecution for a particular reason and accordingly established the genuineness of the asserted fear and that it is ‘well-founded. The concept of onus of proof is not appropriate to administrative inquiries and

   
   

   decision-making, the relevant facts of my case was supplied to enable the Tribunal to establish the relevant facts. Although a decision-maker is not requirement to make the applicant’s case for him or her, the Tribunal did not examine the credibility of my case in a fair way (ie. The Decision Record, para. 33 to 47).

   2. The Tribunal did not make it decision in a fair way. I evidenced that because my girlfriend and I were in love we met secretly and then, in august 2006, while we were in a supermarket my girlfriend’s father saw us together; struck me and then had me detained for three days alleging me assaulted him. Also, I confirmed the account I had given to the Tribunal was correct; the agent who assisted me to prepare the statement made a mistake and the threat to break my legs was made by my girlfriend’s father after the supermarket incident. Although the explanation for the inconsistency on this matter between my written statement and my evidence to the Tribunal was reasonable, the Tribunal unfairly rejected that this was due to a mistake in the preparation of the written statement.

   3. The Tribunal did not examine the risk of persecution I will face if return to China. Because of my religion believes as an underground Christian, the Chinese authorities wishes to harm me. I evidenced that when I was very young my mother took me to a Christian church and after arriving in Australia I had been to a church a few times with friends. This is credible evidence that I follows underground Christianity in China but ignored by the Tribunal.”

   [Errors in the original.]

Before the Court

1. At the first Court date in this matter the applicant appeared in person and was assisted by an interpreter in the Mandarin language. A number of orders were made for the progress of the applicant’s case before the Court. Orders were made which granted the applicant leave to file an amended application with particulars of his legal complaints and any evidence by way of affidavit in support. Further, both parties were given the opportunity to file written submissions. The applicant did not take up that opportunity and nothing further has been filed by the applicant. I have the Minister’s written submissions before me today.

2. At the hearing today the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms B Griffin appeared for the Minister. 

3. When given the opportunity to speak to the Court, the applicant explained that he was “appealing” the migration decision. I understood that he meant the Tribunal’s decision. The applicant explained that the Tribunal’s decision was not “fair” or “correct” because the Tribunal’s suspicions were not reasonable. By that I understood that his complaint was that the Tribunal’s concerns about his credibility were not reasonable. The applicant posed the question as to whether the Tribunal made its findings, and came to its conclusions, according to the law, or whether the Tribunal proceeded in a “subjective” way and relied simply on its suspicions about the applicant’s claims. 

4. The applicant explained that the basis for his complaint was that he knew that his experiences were “true and real”. That he did not know what caused the Tribunal’s suspicion. Further, that he speculated as to whether the Tribunal came to its conclusion, not because of the facts that he had presented, but because of a large number of other cases involving applicants for protection visas, and that the Tribunal was influenced by these other cases.

Consideration: The Applicant’s Grievance Before the Court

1. Dealing first with the matters raised by the applicant orally before the Court today. In the sense that the applicant has used the word “correct” I understood it to mean that the Tribunal’s decision was not a fair decision. It is the case that the Tribunal is not required by law to make the “right” or a “correct” decision. It is required to provide a fair process, but in terms of the outcome, the Tribunal’s obligation is to consider an applicant’s claims to fear harm, and, relevantly, to make findings of fact (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1). So long as those findings of fact, including any findings on credibility, are reasonably open to the Tribunal to make on what is before it there is no legal error (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 (“Durairajasingham”)).

2. I cannot see, in the circumstances of this case, that the Tribunal made findings of fact that were not reasonably open to it to make. As I sought to explain to the applicant, unreasonableness is not established in circumstances where minds may differ as to the particular view that is taken of the material before the decision-maker. The obligation on the decision-maker, in this case the Tribunal, is to give reasons probative of the material before it and to explain and sustain its findings. So long as those findings are open to it, even if another decision-maker were to have come to another conclusion, it does not reveal legal error on the part of this Tribunal. 

3. The applicant’s complaint today may have been an attempt to assert bias on the part of the Tribunal. That is, that the Tribunal did not bring an open mind to the task before it. In particular, I note the applicant’s assertion that the Tribunal may have been influenced by other cases that it had considered. Such an allegation made against a Tribunal member is a very serious allegation to make.

4. It is for that reason, and given the seriousness of the allegation, that the law requires that such allegations must be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and see 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

   
   

   (“Ex parte H”)). That is, there must be evidence brought before the Court to show that, on the balance, that the Tribunal member’s mind was not open to persuasion by the applicant, and that the Tribunal member had adopted a closed mind. 

5. Despite opportunity, the applicant has not brought any evidence to this Court to support this serious allegation. In effect, the applicant relies on the Tribunal’s own decision record. It is rare that bias can be made out in these circumstances (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]

   
   

   per von Doussa J). In any event, on any fair reading of the Tribunal’s decision record I cannot see that it can be said that the Tribunal brought a closed mind to the determination of the applicant’s case.

6. Further, I note in an abundance of caution that it if the applicant was seeking to establish an apprehension of bias on the part of the Tribunal, then with reference to the relevant test for the apprehension of bias, on the material before the Court I cannot see that the well-informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the proceedings (Ex parte H). 

7. In all, therefore, the applicant’s oral submissions before the Court today, while expressing the applicant’s grievance with the Tribunal’s decision, are insufficient to show any jurisdictional error on the part of the Tribunal.

Consideration: The Grounds of the Application 

1. Ground one of the application complains about the Tribunal’s findings as to the applicant’s credibility. It draws particular attention to that part of the Tribunal’s reasoning dealing with the Tribunal’s findings in relation to inconsistent evidence given by the applicant about his father’s financial difficulties ([33] at CB 108 to [47] at CB 110).

2. The applicant complains, through his ground, that the Tribunal “did not examine the credibility of [his] case in a fair way”, because, as he says, he had established the genuineness of his asserted fear. At best I understand this to be a complaint that it was not open to the Tribunal to find adversely to his claims, because he had claimed “fear of persecution for a particular reason and accordingly established the genuineness of the asserted fear” before it. The reference to “onus of proof” appears to be another way of saying that having made his claims, the applicant was not required to “prove” credibility.

3. The applicant’s assertion does not allow for a proper understanding of the statutory context within which the Tribunal was required to make its decision. That statutory context does not allow for a protection visa to be granted simply on the basis that an applicant has made a claim. The Tribunal, relevantly, is obliged to consider the applicant’s claims and to reach a requisite level of satisfaction that the claims are made out and satisfy the criteria for the grant of a protection visa (s.36(2) and s.65 of the Act).

4. The Tribunal is not obliged to uncritically accept what an applicant says or claims (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994)

   
   

   52 FCR 437). The Tribunal’s role is to evaluate the claims and evidence and make findings of fact probative of that evidence, and then to see if the facts as found satisfy either the criteria for the grant of a protection visa set out at ss.36(2)(a) or (aa) of the Migration Act.

5. On the only evidence before the Court, the Tribunal’s findings that informed its conclusion that the applicant was not a witness of truth were reasonably open to it to make. The Tribunal gave cogent reasons probative of the material before it Further, there is nothing in the decision record to indicate that the Tribunal imposed any onus or burden of proof on the applicant. In the current circumstances, and for that reason, no legal error is revealed. In these circumstances, ground one is not made out.

6. Ground two, in part, proceeds on the same mistaken assertion as ground one, and therefore to that extent also cannot reveal, and does not reveal, jurisdictional error.

7. In particular, ground two focuses on the Tribunal’s findings concerning the applicant’s evidence about the timing of his girlfriend’s father’s knowledge of their relationship. Before the Tribunal, the applicant sought to explain the inconsistency between his written statement concerning this matter and his oral evidence to the Tribunal. The applicant gave the explanation to the Tribunal that his agent made a mistake in the written statement. The applicant says now, through his ground, that this explanation was “reasonable” and the Tribunal should have accepted it.

8. The Tribunal’s decision record reveals that it put its concerns about the inconsistencies in the applicant’s evidence to him at the hearing. This included inconsistencies on the matter of when girlfriend’s father knew of the relationship. What is evident, on the material before the Court, is that the Tribunal considered the applicant’s explanation that it was the agent’s mistake. However, the Tribunal did not accept that explanation. In the circumstances that finding again was reasonably open to the Tribunal to make (Durairajasingham). Therefore, ground two does not reveal any jurisdictional error on the part of the Tribunal. 

9. Ground three asserts that the Tribunal did not consider his claim that he would be persecuted on return to China because of his religious beliefs. That is, his beliefs as an “underground Christian”. It is the case that a claim to fear harm expressly made or clearly arising on the material presented must be considered by the Tribunal (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; (2004) 144 FCR 1). That is part of its statutory task to review the delegate’s decision. Whether the Tribunal failed to carry out its task in this regard must be focused on, and assessed by reference to, the evidence before the Court.

10. The Minister referred the Court to Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106, where the Full Court said as follows (at [33]):

    “In the present case, the immediate focus is not whether the Tribunal failed to consider a claim not expressly advanced (NABE (No 2) at [68]) but whether, as a matter of fact, the visa applicant said anything about taking up cigarette selling again in the event that he was returned to Iran. As the Full Court said in NABE (No 2) at [62], “[w]hatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made”. Moreover, the claim must emerge clearly from the materials: NABE (No 2) at [68]. Put another way, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made: see AppellantS395 at [1] per Gleeson CJ, citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte ApplicantsS134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [31].”

1. That paragraph provides relevant direction to this Court. The Full Court dealt with the scope of the Tribunal’s obligations and, in essence, the proposition that the Tribunal is not required to deal with a claim that was never made.

2. When the propositions as expressed by the Full Court are, respectfully, applied to the circumstances before the Court now, I agree with the Minister that the Tribunal did not fall into error, as asserted by the applicant. There is no reference to the applicant’s religion, let alone a claim to fear harm for reason of his religion, in his protection visa application, in his written statement, in the delegate’s decision, or in any of the material that the applicant otherwise put before the delegate and the Tribunal.

3. The Tribunal’s decision record states the following (at [69] at CB 112):

   “At the hearing, the applicant said that when he was very young his mother took him to a Christian church and after arriving in Australia he had been to a church a few times with friends. Although the applicant made no claim to fear harm on this ground, as he is not a witness of truth, the Tribunal rejects this evidence. There is no credible evidence that the applicant follows Christianity or any other religion.”

4. As stated above, despite the opportunity given to the applicant in these proceedings the applicant has not put any evidence, for example by way of a transcript of the Tribunal’s hearing, before the Court. In these circumstances, the Tribunal’s account of what occurred at the hearing remains unchallenged. On that basis, there is nothing to challenge the Tribunal’s account that, although the applicant made reference to attending a church with his mother when he was young, and that he went to church a few times after arriving in Australia, there was nothing from the applicant to say that he feared harm for that reason if he were to return to China.

5. There is no obligation on the Tribunal to consider a claim not expressly made or clearly arising in the circumstances presented. Further, there is no legal error in the Tribunal, in an abundance of caution, noting that a statement made by the applicant at the hearing did not form part of his claims to fear harm. That view of the applicant’s evidence to it was reasonably open to the Tribunal. No jurisdictional error is revealed.

Conclusion

1. In all, nothing that the applicant has put to the Court today has revealed jurisdictional error on the part of the Tribunal. Nor do the three grounds of the application reveal jurisdictional error. The application to the Court, therefore, should be dismissed. I will make the order accordingly. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 2 October 2014