SZTLX v Minister for Immigration and Border Protection

[2015] FCA 215

FEDERAL COURT OF AUSTRALIA

SZTLX v Minister for Immigration and Border Protection [2015] FCA 215

Citation:

SZTLX v Minister for Immigration and Border Protection [2015] FCA 215

Appeal from:

SZTLX v Minister for Immigration a& Anor [2014] FCCA 2215

Parties:

SZTLX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL

File number:

NSD 960 of 2014

Judge:

LOGAN J

Date of judgment:

18 February 2015

Catchwords:

MIGRATION – appeal from decision of Federal Circuit Court of Australia affirming the decision of the Refugee Review Tribunal – where applicant had been denied protection visa on the basis that claim did not entail a reason for protection which engaged the refugee conventions – whether Federal Circuit Court ought to have set aside the Tribunal’s decision and erred in not so doing – whether Tribunal displayed bias against applicant – whether applicant otherwise denied procedural fairness – whether Tribunal did not consider risk of persecution based on appellant’s religious belief

Held:  findings of fact were reasonably open to Tribunal – no procedural unfairness – Tribunal adequately addressed asserted adherence to Christianity by appellant – no failure by Federal Circuit Court to find jurisdictional error on the part of the Tribunal – appeal dismissed   

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 applied

Date of hearing:

18 February 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

27

Counsel for the Appellant:

The appellant appeared in person with the assistance of an interpreter

Solicitor for the Respondents:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 960 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTLX
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	18 FEBRUARY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of an incidental to the appeal to be taxed if not agreed.

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 960 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTLX
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	18 FEBRUARY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China.  He came to Australia on 18 November 2007.  He entered Australia pursuant to a student visa.  That visa expired in 2011.  The following year, by an application lodged with the Minister known as the Department of Immigration and Border Protection (Minister) on 18 July 2012, the appellant applied for that class of visa under the Migration Act 1958 (Cth) (Migration Act) known as a Protection (class XA) visa. On 25 October 2012, a delegate of the Minister refused to grant that visa to the appellant. The appellant then sought the review on the merits of the Minister’s delegate’s decision by the Refugee Review Tribunal (Tribunal).

2. That Tribunal offered the appellant the opportunity, prior to the making of its decision, to attend at a hearing and there to give evidence and make submissions concerning his review application.  The appellant took advantage of this offer and gave evidence before the Tribunal.  Thereafter, on 4 October 2013, for reasons which accompanied the decision, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa. 

3. The appellant then sought the judicial review of that decision by the Federal Circuit Court of Australia (Federal Circuit Court).  On 5 September 2014, that Court dismissed, with costs, the appellant’s judicial review application.

4. It is from that judgment that the appellant now appeals to this Court.  The grounds of appeal, as stated in the notice of appeal, are these:

   1.        RRT has bias against me as I was deprived of the benefits of doubts.

   2.RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

   3.RRT unfairly reviewed my case.  The Tribunal did not examine the risk of persecution I will face if return to China. 

   [sic]

5. The appellant’s reference, in his notice of appeal, to “RRT” is, plainly enough, a reference to the Refugee Review Tribunal.  As formulated, the grounds of appeal exhibit the vice, not uncommon in cases where appellants represent themselves in proceedings of this kind, of not engaging with the judgment under appeal, which is that of the Federal Circuit Court.  It is to be remembered that this Court does not exercise, in respect of matters of this kind, an original jurisdiction entailing the judicial review of the Tribunal’s decision but, rather, an appellate jurisdiction in respect of a judgment of the Federal Circuit Court.

6. Even so, it seemed to me it would render an injustice to the appellant were the grounds of appeal not to be read as, in effect, a statement as to why the Federal Circuit Court ought to have set aside the Tribunal’s decision and erred in not so doing.  The Minister, for his part, very fairly conducted his response to the appeal on the basis that the grounds of appeal should be so construed.  Such an approach is particularly apt in this case as, on analysis and as will be seen, the grounds of appeal, in essence, reflect the grounds of review which the appellant pursued before the Federal Circuit Court.

7. A helpful starting point in respect of a consideration of the grounds of appeal is the statement which the appellant annexed to his protection visa application.  What emerges from that statement is that the basis upon which the appellant sought a protection visa arose from a relationship which he said he had with a high school sweetheart.  That young lady, so he stated, was the daughter of a police officer who was strongly disapproving of the relationship.  He stated that the father had sought him out and then framed him on the basis of having been struck first.  This, he said, had resulted in his being caught by the police and detained for three days.  He stated that, in order for him to be released, his sweetheart had written a letter, promising that she would break the relationship and that he also had had to write a letter of repentance. 

8. The appellant’s claim further was that a fine had to be paid prior to his release.  His further claim was that, after his student visa had been granted but before he departed for Australia, he had met his sweetheart again and that they had made love.  A further part of his claim was that some three months after having left China, he had received a call from his father who had told him that his sweetheart’s father had accused him of raping his daughter and making her become pregnant.  His claim was that he feared returning to China, because of the actions of his sweetheart’s father and, in effect, the influence that he could bring to bear, such that he would be persecuted by the police on return. 

9. It is a noteworthy feature of the statement annexed to the visa application that it does not contain a reference to the appellant’s adherence to the Christian faith or to any fear, on his part, of persecution on the basis of that religious belief were he to be returned to China.  The protection visa application was prepared with the assistance of a registered migration agent. 

10. In refusing the appellant’s protection visa application, the Minister’s delegate analysed the basis upon which the protection visa was sought, having regard to the annexed statement.  The Minister’s delegate’s reasons identify, as the basis of refusal, a conclusion on the part of the delegate that the claim, as made, did not entail a reason which engaged with the refugee conventions.  In other words, the actions of the appellant’s sweetheart’s father were motivated by personal reasons, mainly those of personal revenge, even accepting the appellant’s statement, rather than by virtue of either his or his parents’ race, religion, nationality, political opinion or membership of a particular social group.  The Tribunal, in affirming the delegate’s decision, did not do so for this reason but rather, because it was not satisfied as to the credibility of the claim as made by the appellant.

11. The Tribunal did find, at paragraph 74, that there was not a real chance that the appellant would suffer serious harm based on any convention ground were he to return to China and that he did not hold a well-founded fear of persecution based on any convention ground but that finding flowed from an absence of accepting, for reasons which the Tribunal gave in its conclusions on credibility (see paragraphs 65 to 73) the factual basis of the claim. 

12. The appellant made an attack before the Federal Circuit Court on the fairness of the Tribunal’s decision, including, I infer, the procedure that it had adopted and the conclusions which were reached by the Tribunal.

13. It is to be remembered, in respect of the reasons of the Tribunal, like those of any administrative decision maker, that they are not to be read narrowly and with an eye for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Further, findings as to credibility are par excellence for the administrative decision maker, including, materially, the Tribunal; see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67], per McHugh J. If there is no apparent rational or logical basis for an absence of satisfaction based on a finding as to credibility, jurisdictional error on the part of the Tribunal may be exposed. Here, the Tribunal set out its credibility findings at some length, prior to expressing conclusions as to credibility.

14. Delay in the application for a protection visa was part of the reason for the finding as to an absence of credibility.  Inconsistencies detailed at length by reference to the appellant’s evidence before the Tribunal, when compared with the statement supporting the protection visa application, also featured. 

15. I infer from the Tribunal’s reasons that the Tribunal did question him about his account at some length.  I am prepared to draw that inference just from the face of the Tribunal’s reasons and even in the absence of a transcript of the proceedings before the Tribunal. 

16. One ground of appeal which was not was that the Federal Circuit Court should have found that the Tribunal was biased.  The ground of appeal does not distinguish between actual and apprehended bias.  An allegation of bias must be distinctly alleged and proved by the person alleging the same. 

17. It is possible, in theory, for the jurisdictional error ground of bias to be established just from a scrutiny of the reasons of an administrative decision maker.  These might at least reveal an apprehension of bias in the sense that they might reveal that a fair minded lay observer might reasonably apprehend that the Tribunal member had not brought an impartial mind to the resolution of the review application, even though no actual bias was shown.

18. That type of finding might more readily be made in conjunction with a transcript of the proceedings before the Tribunal, which perhaps showed such an interrogation as to lead necessarily to an inference that nothing which an applicant could have said or done would have changed the Tribunal’s mind.  It is the possibility, real and not remote, of such bias which would be sufficient to establish error on the part of the Tribunal: see NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [17].

19. Here, the Tribunal’s reasons do not, in my view, admit of a conclusion as to such a possibility.  The Tribunal is not obliged to accept, uncritically, either the original statement made in support of a protection visa application or the evidence which an applicant gives at the hearing.  It may well be that there are matters of degree involved between a close scrutiny, which does nothing more than engage with the basis of a claim, including fairly putting to an applicant potential difficulties about its acceptance, and a case where it is taken to the extent of revealing a disposition not to accept an applicant’s account whatever that applicant might say.  Even approaching the case on the basis that bias was meant to be a feature of the grounds of review before the Federal Circuit Court, this is not a case, in my view, where such a jurisdictional error was present.

20. In any event, the Federal Circuit Court did apprehend that bias may be entailed in the challenge made by the appellant but concluded, as I have, that it was not revealed by the Tribunal’s reasons.  This apart, the grounds of review before the Federal Circuit Court are to be found at paragraph 12 of that Court’s reasons.  Those grounds were put in a discursive way.  The first of them entailed an allegation of an unreasonable rejection of the appellant’s account.  The Tribunal’s reasons did not, as the Federal Circuit Court correctly found, in my view, indicate an unreasonable as opposed to a reasoned rejection.

21. In other words, I respectfully agree with the Federal Circuit Court judge’s conclusion flowing from the Tribunal’s reasons, that the findings of fact were reasonably open.  Another ground sought to engage with fairness and that was dealt with on the basis of entailing a bias claim;  I have already made reference to that.  The third was a ground which sought to criticise the Tribunal’s decision as entailing the jurisdictional error of not considering a risk of persecution on the basis of the appellant’s religious belief.  The difficulty about that ground is that the Tribunal’s reasons do show an engagement with such an asserted belief; see paragraph 69.

22. The Tribunal rejected that bias of claim, because it had found that the appellant was not a witness of truth in his evidence as to his adherence to the Christian faith. 

23. In his submissions this morning, the appellant expressed the view that the Tribunal had a responsibility to undertake factual investigation.  It is true that the Tribunal has been described as inquisitorial in character but its core function is that of review.  It is for an applicant who seeks a favourable outcome on review to adduce such evidence as he or she is able and wishes to adduce to support such an outcome.  Sometimes, where it is apparent that there is an obvious enquiry which could have been made by the Tribunal, having regard to what was before it, and where the Tribunal has failed to make that obvious enquiry for no apparent reason, a conclusion can be made that the Tribunal did not carry out its statutory function.  In the ordinary course, though, the Tribunal is not obliged to embark on a roving enquiry. 

24. In short then, the conclusion of the Federal Circuit Court that the Tribunal’s decision did not exhibit jurisdictional error has not been shown, having regard to the grounds of appeal, to be erroneous.  The Tribunal’s reasons are adequate and do offer a reasonable explanation for the decision to affirm the Minister’s delegate’s decision as a result of an absence of satisfaction on the Tribunal’s part that the appellant was a person to whom Australia owed protection obligations. 

25. The Tribunal has addressed not only the claim as originally made but also, as it evolved in evidence before it a claim which included reference to an asserted adherence to the Christian faith.  The Tribunal has expressly addressed, in the Tribunal’s reasons, consequences which might flow were the appellant to be returned to China. 

26. I do not doubt that the appellant is disappointed, and genuinely disappointed, with the outcome before the Tribunal but that disappointment does not translate to demonstrating error on the part of the Federal Circuit Court in failing to find the jurisdictional errors alleged.  The appeal must, therefore, be dismissed.

27. The Minister has sought an order for costs on the dismissal.  There is no reason why costs ought not follow the event.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:        

Dated:        5 March 2015