SZTLX v Minister for Immigration and Multicultural Affairs and Citizenship

[2015] HCASL 93

SZTLX

v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND CITIZENSHIP & ANOR

[2015] HCASL 93
S46/2015

1. This is an application for special leave to appeal from a judgment of the Federal Court of Australia (Logan J) given on 18 February 2015, dismissing an appeal from a judgment of the Federal Circuit Court of Australia (Judge Nicholls) given on 5 September 2014, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of the delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa ("protection visa").

2. The applicant is a citizen of the People's Republic of China and arrived in Australia as the holder of a student visa on 18 November 2007.  That visa expired on 18 February 2011 and thereafter he remained in this country without authority.   Over 12 months later, on 18 July 2012, he applied for a protection visa.  The basis of his claim was that he feared being harmed in China.  The alleged basis of his fear was that he had been in a relationship with a young woman whom he described as his girlfriend.  Her father was a Chinese policeman and did not approve of the relationship.  When he found out about the relationship he hit the applicant and "framed" him, saying the applicant had instigated the assault.  The applicant was detained by police for three days.  Then, after he left for Australia, his father told him that he had been accused of raping the girlfriend and that her father had harassed their family.  The applicant's mother had paid compensation as demanded by the girlfriend's father but the girlfriend's father saw that as an admission that the applicant had done something wrong.  He also claimed that his father had been targeted by Chinese police because of the applicant's relationship with the girlfriend.  He claimed his father had a number of problems in business and that he had been charged by police with a number of offences including offering bribes and tax evasion.  And the applicant claimed that he feared that if he returned to China he would be harmed and imprisoned.

3. The delegate refused the application for a protection visa on the basis that the claim did not entail a reason which engaged with the Refugees Convention.  The alleged actions of the girlfriend's father were motivated by personal considerations rather than because of anything to do with the applicant's or his parents' race, religion, nationality, political opinion or membership of a particular social group.

4. The Tribunal affirmed the decision for the different reason that the Tribunal was not satisfied of the truth of the applicant's claims and on that basis found that there was not a real chance that the applicant would suffer serious harm based on any Convention ground and that the applicant did not hold a well-founded fear of persecution based on any Convention ground.

5. The applicant's grounds of application for review by the Federal Circuit Court were:  (1) the Tribunal "did not make its decision carefully"; (2) "[t]he Tribunal did not make its decision in a fair way"; and (3) "[t]he Tribunal did not examine the risk of persecution I will face if return to China ... [b]ecause of my religion believes as an underground Christian [sic]".

6. Judge Nicholls held that the Tribunal's findings as to the applicant's mendacity were reasonably open to it and the Tribunal had given cogent reasons for its conclusion.  There had been no lack of fairness.  The Tribunal had put its concerns to the applicant during the hearing, including its concerns as to inconsistencies on the matter of when the girlfriend's father first learned of the relationship, and it was open to the Tribunal to disbelieve the explanations which were given.  The supposed failure of the Tribunal to take into account the applicant's Christian religion and its consequences was baseless.  The applicant had not made any mention of his religion or its consequences at any time before the delegate or the Tribunal.  No jurisdictional error was revealed.

7. The applicant's grounds of appeal to the Federal Court were:  (1) "RRT has bias against me"; (2) "RRT has denied me procedural fairness by failing to provide adequate reasons"; and (3) "RRT unfairly reviewed my case.  The Tribunal did not examine the risk of persecution I will face [if returned] to China".

8. Logan J agreed with Judge Nicholls' conclusion that the findings made by the Tribunal were reasonably open and as to the adequacy of the Tribunal's reasons.  The claim of bias was not established.  The Tribunal had addressed not only the claim as originally propounded but also as it evolved.  There was no jurisdictional error.

9. The applicant's proposed grounds of appeal to this Court are: (1) bias "as I was deprived of the benefits of doubts [sic]"; (2) lack of procedural fairness "by failing to provide adequate reasons for the finding of a fact"; and (3) "I believe that my application was not considered fairly" at the Federal Court.

10. The applicant does not have legal representation and so the application falls to be determined pursuant to r 41.10 of the High Court Rules 2004.

11. There is no reason to doubt the correctness of Logan J's judgment and the applicant does not advance an arguable ground of appeal against it.  Nothing stated in the applicant's written submissions provides any support for the contention that he did not receive a fair hearing before Logan J.  An appeal to this Court would, therefore, not enjoy sufficient prospects of success to warrant the grant of special leave.

12. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
13 May 2015 G.A.A. Nettle