SZTME v Minister for Immigration and Border Protection

[2015] FCA 574

FEDERAL COURT OF AUSTRALIA

SZTME v Minister for Immigration and Border Protection [2015] FCA 574

Citation:	SZTME v Minister for Immigration and Border Protection [2015] FCA 574
Appeal from:	SZTME v Minister for Immigration & Anor [2014] FCCA 2790
Parties:	SZTME v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1351 of 2014
Judge:	PERRAM J
Date of judgment:	12 June 2015
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court dismissing application for review of Refugee Review Tribunal’s decision – whether Court erred – whether Tribunal’s decision vitiated by jurisdictional error
Legislation:	Migration Act 1958 (Cth) s 424A
Date of hearing:	6 May 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms E Warner Knight of the Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1351 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTME
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	12 JUNE 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent’s costs.

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 1351 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTME
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE:	12 JUNE 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the Federal Circuit Court.  That Court dismissed the appellant’s application for an order quashing an earlier decision of the Refugee Review Tribunal (‘the Tribunal’).  In turn, the Tribunal had determined that the appellant was not eligible for a protection visa.

2. The appeal should be dismissed with costs as no error is demonstrated in the reasons of the Court below.  That Court was empowered to grant an order quashing the decision of the Tribunal only if the Tribunal had made a jurisdictional error in reaching its conclusion that the appellant was not eligible for a visa.

3. To answer that question the Court below was obliged to consider the nature of the appellant’s claims and the manner in which the hearing before the Tribunal had been conducted.  It did so by reference to the arguments which were developed before it.  Before turning to those arguments it is useful to note the nature of the basic elements of the case.

4. The applicant is a Chinese national.  The principal basis of his claim for a protection visa is that he is a Christian and faces persecution on the grounds of his religion if returned to China.  His application was originally refused by a delegate of the Minister and this conclusion was affirmed by the Tribunal on review which was similarly sceptical of his claims.  The formal basis of the Tribunal’s decision was that it did not accept that the appellant was a Christian.

5. Before the Federal Circuit Court eleven arguments were developed.  These were:

   (i)the Tribunal was biased against the appellant.  This was said to be the case because the Tribunal member had asked the appellant to keep his voice down and had, inter alia, rolled his eyes;

   (ii)his interpreter at the Tribunal had made errors in translation.  Before this Court the appellant explained that these errors occurred whilst the Tribunal was asking various questions about basic Christian beliefs;

   (iii)he was continuing to practice his Christian faith in Australia and hence faced a future risk of persecution if returned to China;

   (iv)the Tribunal had erred in concluding that his Church in China was an ‘underground’ church.  He had instead said that it was a ‘nice looking building’;

   (v)the Tribunal had been ‘scornful’ of a letter written by a priest from the church he attended in Australia;

   (vi)the interpreter before the Tribunal had made several errors in translation with respect to the issue of an application by the appellant for a visa from the United States;

   (vii)     the Tribunal was biased because it used reports which were not reliable;

   (viii)that the Tribunal denied him a fair hearing.  Substantively, this was the same point as (i) above;

   (ix)the Tribunal had based some of its critical findings on an unreliable website;

   (x)the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth); and

   (xi)the Tribunal erred in its consideration of whether he suffered a well-founded fear of persecution because it failed to assess whether he had such a fear in the reasonably foreseeable future.  This argument was based upon the alleged worsening of persecution of family church members.

6. These first six arguments appear to have been advanced orally.  Arguments 7-11 reflected the appellants grounds as articulated in his application. 

7. The Court below rejected each of these arguments.  As to (i) and (viii), the Court listened to a recording of the Tribunal’s proceedings and, in particular, to segments at 6 and 24 minutes into the recording on what was referred to as CD2.  At the six minute mark the Tribunal asked the appellant to ‘stop’ in the context of preventing him from giving a speech rather than asking a question. The Court below detected no bias in this.  At the 24 minute mark the Tribunal asked the appellant whether there was anything further he wanted to say. The Court detected no bias in this either.

8. In this Court the recording provided was but a single CD which did, however, contain a recording of the whole Tribunal hearing.  I have listened to the whole of this CD.  Whilst the questioning is not what I would necessarily call friendly nor is it accurately described as hostile.  If one had to describe its tone I would say weary low level annoyance best captured it.  The questioning was certainly sceptical and was directed to exposing weaknesses in the appellant’s account.  I do not think, having regard to the Tribunal’s functions, that this was inappropriate.  The highlights of any bias case on the recording are as follows:

18.08	the words ‘Keep your voice down’ are said by the Tribunal. However, the appellant was speaking loudly.  Whilst I might have used the word ‘please’, the failure to do so does not constitute bias;
25.11	at which the Tribunal courteously extended the appellant the offer of a glass of water;
45.56	at which the Tribunal asked whether Mark was an apostle;
46.49	at which the Tribunal asks whether Luke and John were apostles;

1. I conclude that nothing on the recording indicates bias on the part of the Tribunal. Further, there was no evidence before the Court below or before this Court to make good the allegation that the Tribunal member rolled his eyes or grimaced.  More relevantly, I detect no error in the reasoning of the Court below in dismissing these arguments.

2. As to (ii) and (vi), the Federal Circuit Court considered a submission made by the appellant that he had a ‘feeling’ that there had been errors in translation about fifteen minutes and one hour into the hearing. The Federal Circuit Court observed, correctly, that it was not possible to detect errors in translation merely from listening to the recording.  I agree.  Before me this claim was repeated but at no time was any effort made to show that a nominated part of the recording contained an erroneous translation.  The Federal Circuit Court rejected this argument and was correct to do so.

3. As to (iii) and (iv), the Tribunal dealt with a particular contention that the appellant had been arrested at his church in the Hunan Province.  The Tribunal confronted the appellant with a third party account of this event which contradicted the appellant’s.  The Tribunal observed that the church to which the appellant claimed to belong – the Chinese House Church Alliance – was, in fact, not a church but an umbrella group.  It then considered the appellant’s claim to have been arrested at a meeting of this group on 10 May 2011 at Weishi County, Hunan Province.  Of importance was the appellant’s claim that the meeting took place on the ground floor and that following his arrest he had been held for five days.

4. The Tribunal suggested to the appellant that a report prepared by the China Aid Association dated 19 January 2012 described the incident in question but in a way which contradicted the appellant’s claim.   In particular, that report said that the meeting had been held on the third floor, not the ground floor, and that everyone who had been arrested, apart from one priest and his wife, was released the next day. The appellant, in effect, stood by his account.  At [21] the Tribunal concluded that the appellant had falsified this part of his application basing it on real events.  It concluded he was not a credible witness.

5. The Court below could detect no error in this approach. The China Aid report was, it correctly concluded, information to which s 424A(3) applied. Further, the Tribunal’s own conclusion that the appellant’s testimony was inconsistent with the report was not information under that section and hence that conclusion did not need to be put to him. As the Federal Circuit Court correctly observed, this was a matter for the Tribunal. I do not detect any error in the approach of the Federal Circuit Court to these issues.

6. As to (v), the letter provided by the priest said this:

   ‘[The Appellant] has been attending our Church’s Sunday worship since mid-2012.  He shows interest in Christianity.’

7. At the Tribunal’s hearing it discussed with the appellant the fact that the letter ‘was not particularly supportive’. In its reasons it explicitly took the letter into account: [27]. Before the Federal Circuit Court the appellant argued that he could not help what the priest said which was, no doubt, true. However, it is also besides the point. The Court below concluded that there was no error in the Tribunal’s treatment of this issue. I agree.

8. As to (vi), this has been dealt with as part of (ii).

9. As to (vii), this is the same as (iii) and (iv) above.

10. Turning to (viii) (which was ground one before the Federal Circuit Court) this is essentially the same as the bias argument dealt with above at [7] and following. There was an additional element to it, however, which the Federal Circuit Court treated as an argument that there had been a failure to give the appellant a real opportunity to put his case: s 425 of the Migration Act 1958 (Cth). This argument the Court rejected because of the absence of any evidence to substantiate the point. There was no evidence before the Federal Circuit Court on this point so this conclusion is correct.

11. As to (ix) and (x), these are both the same as (iii) and (iv) above.

12. As to (xi), the appellant’s argument below was that an incorrect test had been applied in considering the appellant’s refugee status.  However, as the Court below observed, this could hardly matter when the principal basis for the Tribunal’s conclusion was that it did not believe he was a Christian at all.  I detect no error in this.

13. The grounds of appeal pursued in this Court were as follows:

    ‘1.The Federal Circuit Court judge failed to find that the Refugee Review Tribunal denied the Appellant procedural fairness and/or a denial of natural justice and in doing so committed a jurisdictional error and/or error of law in that it failed to properly address a material issue of fact and carried out its review with closed-mind bordering bias.

    2.The Federal Circuit Court judge failed to find that the Refugee Review Tribunal denied the applicant a fair opportunity to give evidence and make his argument in relation to a critical fact and gave undue weight to arguably inaccurate information, thereby applying an [sic] wrong test in review.

    3.The Federal Circuit Court judge failed to find that the Refugee Review Tribunal had failed to comply with s 424A of the Migration Act 1958.’

14. As the case was developed in this Court, I did not apprehend grounds one and two to include any more than the complaints about:

    Ÿthe use of China Aid report;

    Ÿthe circumstances of alleged bias; and

    Ÿthe letter from the priest.

15. I have already given my reasons for concluding that no error was made by the Federal Circuit Court in its treatment of these issues.

16. As to ground 3, this is the same as the s 424A argument discussed above at [13]. For the reasons I have already given this ground should be rejected.

17. The appeal should be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       12 June 2015