SZTMI v Minister for Immigration

Case •

[2015] FCCA 228

•

6 February 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMI & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 228
Catchwords:
MIGRATION – Application for review of a decision of the Refugee Review Tribunal – whether Tribunal failed to consider an integer of the applicant’s claims – whether Tribunal failed to afford the applicant procedural fairness –allegation of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 65, 424A, 476
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
SZUAE v Minister for Immigration & Anor [2014] FCCA 2107
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection v  SZSRS  [2014] FCAFC 16
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
First Applicant: SZTMI
Second Applicant: SZTMJ
Third Applicant: SZTMK
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2722 of 2013
Judgment of: Judge Nicholls
Hearing date: 15 September 2014
Date of Last Submission: 15 September 2014
Delivered at: Sydney
Delivered on: 6 February 2015

REPRESENTATION

First Applicant: In Person
Second Applicant: In Person
Third Applicant: By his Litigation Guardian
Solicitors for the Respondents: Ms K Hooper of DLA Piper Australia

ORDERS

  1. The application made on 5 November 2013 is dismissed.

  2. The first and second applicants pay the first respondent’s costs set in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2722 of 2013

SZTMI

First Applicant

SZTMJ
Second Applicant

SZTMK
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 Migration Act 1958 (Cth) (“the Act”) on 5 November 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 October 2013 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

  1. The Minister has filed a bundle of relevant materials (the “Court Book” – “CB”) which was in evidence before the Court. The following relevant background can be ascertained.

  2. The applicants before the Court are the primary applicant (“the applicant”), his de facto partner (“the second applicant”), and their child (“the third applicant”). All are citizens of the People’s Republic of China (“China”). They applied for protection visas on 4 July 2012 (CB 1 to CB 53). They were assisted by a registered migration agent (CB 9). The applicant set out their claims to protection in a written statement, submitted at the time of the making of the application (CB 43 to CB 45).

  3. The Minister’s delegate refused the visas on 4 October 2012 (CB 91 to CB 114). The applicants applied for review to the Tribunal on 31 October 2012 (CB 115 to CB 120). They were represented by a registered migration agent (CB 121). They attended a hearing before the Tribunal on 11 September 2013 (CB 161). The Tribunal’s account of the hearing is set out in its decision record ([32] - [56] at CB 198 to CB 202).

  4. The Tribunal summarised the applicant’s claims to protection in its decision record ([67] at CB 204):

    “[67] The applicant’s claims have been set out in full.  In summary:

    - His family background has disadvantaged him including discrimination in education and employment

    - He was persecuted because he took photos during the June Fourth Democratic Movement in 1989 and he believes the Government will persecute him again for this reason

    - If returned he would express strong opinions against the Chinese Government, as he has done on the internet, and which would lead to persecution.

    - He would not be able to get household registration (houkou) on return and he would face unsatisfactory living conditions in China

    - They will be punished for breaching the birth control law and as they are not legally married their son would be discriminated against in relation to social welfare, medical care and education; only by having household registration themselves can they get their son’s household registration, and they do not have household registration. 

    - His partner’s parents object to their relationship due to the age difference between them.

    - They have become Christian and in China he cannot enjoy religious freedom”

  5. Having regard to the evidence before the Court, I am satisfied that this is an accurate summary of the claims. The Tribunal made findings as against each of these matters ([68] - [91] at CB 204 to CB 208). The Tribunal found that ([65] at CB 203):

    “[65] In this instance the Tribunal had significant difficulties with the applicant's credibility in relation to his well-founded fear.  It was therefore unable to accept at face value the applicant’s assertions about the consequences of return to China.”

  6. The Tribunal noted ([66] at CB 203 to CB 204):

    “[66] A number of the applicant’s claims (essentially, only with the exception of those matters relating to household registration) are said to predate his initial arrival in Australia in 1997 – after which he was prepared to return to China on a large number of occasions over a period of several years up to his last visit to China in 2002, without seeking protection in Australia.  When the applicant’s visa expired in February 2002, he then remained in Australia unlawfully without a visa for ten years until he was located by Immigration in June 2012.  It was only then that he finally applied for a Protection Visa.  The exceedingly long delay in seeking protection in Australia, and then only after being apprehended by Immigration, raises very serious concerns about the genuineness of the applicant’s claimed fear of persecution on return to China.  It also goes to the well-foundedness of any such fear, given that nothing adverse is said to have occurred during any of his 18 visits from Australia to China.”

Application Before the Court

  1. The application to the Court sets out the following:

    “Orders sought by Applicant

    1, I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

    2, RRT did not consider my statement and comments given to the questions asked in the hearing.

    3, RRT failed to prudently consider our risk, especially my child due to my commitment of paralyzing if we return to origin.

    4, RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

    5, RRT treat my case unfairly and did not consider that I will be punished by the Chinese government due to family planning issue”

    [Errors in the original.]

  2. The grounds of the application are in the following terms:

    “1, I am a Chinese citizen and have faithful and committed Christian faith. I have fears to be persecuted and discriminated by Chinese authority due to my political stance and will of evangelization, and have a fear of return to origin.

    2, I have been actively involved in church actives in Australia. My action and religious performance has been evidenced by church with reference.

    3, RRT unreasonable suspect of the truthfulness of my claims

    4, Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing”

    [Errors in the original.]

Before the Court

  1. At the first Court date on 11 December 2013, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Given the nature of what was set out in the application to the Court, I urged the applicant to consider seeking legal advice, including approaching relevant community legal centres. If for no other reason, other than for the applicants to attempt to gain an understanding of the nature of the proceedings he had sought to institute in this Court. On this date the applicant was appointed as the litigation guardian for the third applicant.

  2. As is apparent from the above ([8] and [9]), the application to the Court follows a path not consistent with the nature of judicial review of an administrative decision. The “orders” sought make no reference to the relief the applicants seek. Rather they embody complaints about the delegate’s and Tribunal’s decisions, and their claimed conduct. The “grounds” of the application are expressions of claims for the grant of the protection visas. In short, they appear to be assertions of “grounds” on which the visa should be granted to the applicants.

Consideration

  1. At the final hearing the first and second applicants appeared in person and were assisted by an interpreter in the Mandarin language. The applicants made a number of complaints in their submissions before the Court. It was not clear whether they were relevant to any of the grounds or meant as additional complaints.

  2. The applicants argued that the Tribunal did not give proper consideration to their application, that the application was not considered fairly, and that the Tribunal was biased. They relied on five complaints to make good these propositions.

  3. First, the applicants complained that as a “legal document”, the Tribunal’s decision should be “correct” in all respects. The submission was that the Tribunal made a “legal mistake” when it described the second applicant as being “31” years of age (see [7] at CB 195).

  4. The applicants’ submission was that the second applicant was, in fact, 41 years of age. When regard is had to the second applicant’s age, as otherwise stated in the evidence before the Court, the applicants are correct to say that the reference in the Tribunal’s decision to her age was incorrect (see CB 1.7, CB 97.8, CB 116.7 and CB 167).

  5. However, I agree with the Minister that, at its highest, the error as to her age, was not material to the Tribunal’s findings, or its consideration. There is nothing in the Tribunal’s decision to suggest that the applicants’ claims to fear harm in China were rejected because the second applicant’s age was said by the Tribunal to be 31.

  6. The Tribunal noted in its decision record, that in his written statement of claims, the applicant stated that their relationship was “rejected” by her parents because of their “age differences”. The applicant stated that this would place strain on their family ([15] at CB 196 and [4] at CB 43).

  7. However, there is nothing in the Tribunal’s decision to indicate that their claims to fear harm were based on, or included the fact, that her age was, specifically, 41, instead of, 31. The claim was that her parents objected to their relationship “due to the age difference between them” ([67] at CB 204). The Tribunal considered this claim (see [90] at CB 208). Its finding, that this would not lead to serious or significant harm, was reasonably open to it on what was before it. The claim, and the finding, did not depend on any exact age difference. The complaint, therefore, that this error revealed unfairness, or bias, is not made out.

  8. Second, the applicant complained that the Tribunal was in error in mistakenly thinking he had claimed to be a member of the Jehovah’s Witnesses. He stated that he never made such a claim.

  9. There is no transcript before the Court of what was said at the Tribunal hearing. The Tribunal’s account of the hearing reveals that it understood the applicant to give evidence that, “he attended a Chinese congregation of a Christian Church at Campsie, Jehovah’s…” (see [46] at CB 200).

  10. At the hearing, the Tribunal also put to the applicant, amongst a number of other matters relevant to his claimed fear on the basis of religion, “…that Jehovah’s Witnesses were well-known in Australia for their active outreach for example door-knocking…” ([47] at CB 200 to CB 201).

  11. Following the hearing, the Tribunal wrote to the applicants, pursuant to s.424A of the Act (CB 172 to CB 175). The Tribunal drew their attention to the following information (at CB 174.5):

    “…Information from the Jehovah’s Witnesses (after consulting their website as well as contacting their office by telephone) is that the Jehovah’s Witness meeting hall in Campsie does not have Chinese-language meetings and that its meetings are held on Wednesdays and Saturdays, not on Sundays…”

    It explained the possible relevance to the review (CB 174.8).

  12. The applicants’ responded by letter dated 25 September 2013 (CB 179 to CB 181). In essence, the applicants’ response was that the church in Campsie, which the applicant had said he attended, was a Congregational Church, and by implication, not associated with the Jehovah’s Witnesses.

  13. The Tribunal set out this sequence of events in its decision record ([57] – [60] at CB 202 to CB 203). The Tribunal explained ([61] – [62] at CB 203):

    “[61] The Tribunal has re-listened to the hearing audio in light of this response.  In answer to the question what church he attended, the interpreted response was ‘Church of Chinese Congregation in Campsie’ (although the interpreter said this might not be the precise name) and in answer to the succeeding question, ‘what denomination?’ the applicant simply replied ‘Jehovah.’ The Tribunal has also considered the documentation now provided by the applicant in relation to the Campsie Chinese Congregational Church, including a letter of support from its Minister, dated 13 September 2013 and stating that the applicant and his family have been regular attendees and participants since July 2012, as well as certificates of baptism for the applicant and his partner dated 18 November 2012 and photographs of the applicant's baptism on the same date.

    [62] The applicant also provided a copy and translation of what purports to be a blog dated March 2008 referring to his Christian belief.  It appears that the blog uses the pseudonym ‘World Wanderer’ and does not identify the applicant.  A brief translation of a second blog of January 2011 reveals nothing of consequence.”

  14. When it came to assess the applicants’ claims in relation to religion, the Tribunal proceeded on the basis that the applicant claimed to be a Christian and attended the Campsie Chinese Congregational Church in Sydney ([86] at CB 207 to CB 208). There is nothing in the Tribunal’s analysis to indicate that the applicant’s claims were, at the time of the making of the decision, misunderstood, or that the applicants did not satisfy the criteria at s.36(2) of the Act, because of anything to do with the Jehovah’s Witnesses. No legal error is revealed here.

  15. Third, the applicants complained that the delegate was unfair when (at CB 108.5):

    “…It was suggested to the applicant that perhaps he has not declared all of his income. He did not comment on this other than to say that he and his spouse would be unable to afford the fine to register their child…”

  16. The Court has no jurisdiction to review the delegate’s decision (s.476 of the Act). Any errors in that decision, if not repeated and adopted by the Tribunal, could not reveal jurisdictional error in the Tribunal’s decision.

  17. In its decision record, the Tribunal records that at the hearing ([55] at CB 202):

    “[55] The applicant raised and disputed the conclusions drawn by the delegate in his decision about the applicant's actual income, as opposed to the amount the applicant had said he paid tax on, based on the amount for rent he paid.  The applicant insisted that the modest income declared was correct.  Asked further about the savings he had brought with him from China and which he said he had been drawing upon, the applicant said he had brought A$250,000 with him to Australia and that there was now about $27,000 left.  The Tribunal put to the applicant that that was a substantial amount in China and certainly enough to pay the social compensation fee.  The applicable fee in Fujian for an urban registered person was only of the order of A$3,000 and even if it was greater in Shanghai it would be substantially less than the amount he had.”

  18. The Tribunal considered the matter of the claim concerning household registration, and the third applicant’s registration ([73] – [81] at CB 206 to CB 207). The Tribunal’s findings were probative of the applicant’s evidence. The Tribunal’s relevant findings did not turn on whether the applicant had declared all of his income for taxation purposes. This complaint does not support the claim of unfairness or bias.

  19. Fourth, the applicants complained about the Tribunal’s finding that they would be able to pay the social compensation fee for the registration of their child (see [55] at CB 202 and [76] – [77] at CB 206 to CB 207). The specific complaint relates to the applicants’ claim that the fee would be higher in Shanghai than in other relevant areas. The Tribunal dealt with this claim ([77] at CB 206 to CB 207). The complaint therefore seeks to challenge the Tribunal’s relevant findings.

  20. Fifth, the applicants’ complaint was that in assessing the applicant’s claims to fear harm, as it was said to arise from his perceived political opinion, the Tribunal unfairly dealt with his claim to have posted criticism of the Chinese government on the internet.

  21. The Tribunal considered this claim at [71] – [72] (at CB 205 to CB 206) of its decision record. Amongst other matters, the Tribunal found that the applicant’s blog did not contain any political comments or indeed details, such as to identify him ([71] at CB 205). The Tribunal found that the applicant would not make criticisms of the Chinese government if he were to return to China ([72] at CB 205 to CB 206). The Tribunal’s findings were reasonably open to it, and based on the applicant’s own evidence.

  22. It is the case, as the Minister submits, that the second to fifth complaints are no more than a request to the Court to engage in impermissible merits review. While the factual basis for the first complaint is correct, neither it, nor the other complaints, reveal that the Tribunal did not bring an open mind to the review (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 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). None of the complaints reveal jurisdictional error in, and of, themselves. Nor is bias made out.

  23. The “orders” sought by the applicants are, other than for a few differences in the use of the personal pronouns, highly similar with the “orders” sought in SZUAE v Minister for Immigration & Anor [2014] FCCA 2107 (see at [12]), a case recently before this Court, and involving a protection visa applicant from China. As in that case, “order 3” makes reference to “paralysing” instead of, in context of, an applicant claiming to fear harm on religious grounds, “proselytizing”. The “orders”, to the extent that they assert error, are formulaic. Further, the applicants’ submissions before the Court, were not helpful in any assertion of jurisdictional error on the part of the Tribunal. They were directed to complaints about the Tribunal’s findings of fact and an expression of grievance about its conclusion.

  1. Notwithstanding this, the issue before the Court is whether the application reveals jurisdictional error on the part of the Tribunal, or whether jurisdictional error is apparent on the evidence presented.

  2. In essence, as the Minister submitted, the essential nature of the applicants’ complaints, and grievances, is an appeal to the Court to conduct impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). In the absence of any apparent understanding from the applicants about what they have caused to be put in their application, the application can only be dealt with at face value.

  3. In the current case, the Tribunal did consider all of the applicant’s claims to fear harm based on the applicant’s claimed religious belief and practice ([82] – [89] at CB 207 to CB 208). The Tribunal accepted he had some general identification as a Christian prior to 2012, as a result of his family background ([86] at CB 207 to CB 208), even though he had not practiced Christianity or attended any church.

  4. Contrary to the assertion in “order 1”, the Tribunal accepted that the applicant, and the second applicant, would continue to practice as Christians in China as they had done in Australia since July 2012 ([86] at CB 207). However, based on the applicant’s own evidence, the Tribunal found that they would not be compelled to attend any underground church in China and, therefore, they would not face harm for their religious practice on return. This was reasonably open to the Tribunal on what was before it.

  5. “Order 2”, complains that the Tribunal did not consider the applicant’s evidence, in response to the Tribunal’s questions at the hearing. The applicants have not put any evidence before the Court, such as by way of transcript, to support any claim as to any evidence the applicants gave at the Tribunal hearing. The only relevant evidence before the Court is that contained in the Tribunal’s decision record. That reveals that the Tribunal did consider the applicant’s evidence, as to his religious practice. No jurisdictional error is revealed here.

  6. “Order 3” refers to the applicant’s commitment to “paralysing” as referred to above. Even if this is some mistaken reference to “proselytizing” then no error is revealed. In short, the Tribunal did consider that issue.

  7. The following from the Tribunal’s account of the hearing ([47] at CB 200 to CB 201):

    “…[47] The Tribunal asked the applicant what specific activities he undertook with the church in Campsie, apart from attending on Sundays.  He replied that they have other activities but he only participates in Sunday worship,  The Tribunal queried why he said he would have to actively spread the gospel in China when he had not been involved in such activity in Australia.  The applicant said that this can occur through personal contact and he sometimes shares his joy with others after the Sunday services.  The Tribunal observed that Jehovah’s Witnesses were well-known in Australia for their active out-reach for example door-knocking, whereas he appears only to be talking to fellow-believers.  The applicant explained that it takes time to have a good understanding to be able to join in such activities fully; but if he goes back to China he will be sharing the word with people he comes across, in talking to family and friends, but this would be regarded as spreading rumours and he might be persecuted by the authorities.”

  8. As set out above, following the hearing, the Tribunal wrote to the applicants, in accordance with s.424A of the Act, by letter dated 12 September 2013 (CB 172 to CB 175). The Tribunal invited comment on certain information concerning Jehovah’s Witnesses. The Tribunal had obtained this information from its search of relevant websites and an inquiry directed to the Sydney office of the Jehovah’s Witnesses (CB 170).

  9. The applicants responded through their agent on 25 September 2013 (CB 179 to CB 190, particularly at CB 180 to CB 181). The applicants’ response, in essence, was that the applicant did not attend a Jehovah’s Witness Church. He provided evidence of his attendance at the Campsie Chinese Congregational Church.

  10. In relation to the applicants’ religious practice, and to the matter of possible proselytizing, the Tribunal found ([87] at CB 208):

    “[87] The applicant stated at hearing that he did not know about the different Christian denominations in 2012 but the particular church was close to where he lived; if he had first gone to another church and found their teachings to be in line with what he believed, he might have attended that church.  The Tribunal is satisfied that the applicant’s belief would not impel him to attend a specific church or congregation so long as he could attend Sunday services, as he does in Australia.  There was no evidence before the Tribunal to support the suggestion that to attend the authorised churches in China (as millions of Chinese regularly do) one must explicitly ‘accept the absolute authority of the Party.’  Nor does the Tribunal accept that there is anything in the applicant’s established pattern of Christian practice in Australia (including conversations with fellow-Christians) which, if continued in China, would attract the adverse interest of the authorities.  The Tribunal does not accept that on return to China the applicant would feel impelled to (or would) attend underground churches.”

    [Emphasis added.]

    No legal error is revealed in circumstances were these findings were reasonably open to the Tribunal to make.

  11. I also note, as the Minister submitted, that the Tribunal was not obliged to write to the applicants in relation to country information concerning churches in China, given the relevant exception to the obligation in s.424A(1) of the Act, found at s.424A(3)(a) of the Act. In any event, no legal error is revealed in these circumstances.

  12. “Order 4” lacks particularity. A failure to consider a claim, or, in certain circumstances, evidence, may lead to jurisdictional error being revealed (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No.2)”), Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”) and Minister for Immigration and Border Protection v  SZSRS [2014] FCAFC 16).

  13. However, there is nothing from the applicants, nor is it apparent on the material before the Court, as to what claims, or evidence, were not considered by the Tribunal. In the circumstances, this again seeks to challenge the Tribunal’s findings of fact, including findings on credibility.

  14. “Order 5” asserts that the Tribunal considered the case “unfairly” and did not consider that the applicant would be punished by the Chinese government, due to the “family planning issue”.

  15. Contrary to the applicant’s assertion, the Tribunal did consider this claim ([73] – [81] at CB 206 to CB 207). The Tribunal found that none of the applicants would face harm arising out of the family planning issue. This finding, and the findings antecedent to it, were all reasonably open to the Tribunal to make on what was before it.

  16. The grounds of the application do not assist the applicants. Grounds one and two are repetitions of the applicants’ claims before the Tribunal. No assertion of legal error is made.

  17. Ground three asserts the Tribunal was unreasonable in “suspecting” the applicants’ claims. The Tribunal noted significant difficulties with the applicants’ credibility in relation to a well-founded fear. It explained these difficulties. This analysis is at [65] – [66] (at CB 203 to CB 204) of the Tribunal’s decision record. It is difficult to see how it can be said that the Tribunal’s findings, in this regard, were not reasonably open to it. For example, on the applicant’s own evidence, he arrived in Australia in 1997, and did not apply for protection until 2012, after he was located by the authorities as having lived in Australia without authority for ten years. In this context, the Tribunal noted that a number of his claims predated 1997.

  18. Ground four complains that the Tribunal was “over objective” in its judgement of his explanations and responses. It is not clear what the applicant meant by “over objective”. As the Minister submitted, the relevant legislative regime requires the Tribunal to evaluate an applicant’s evidence, and claims, and to reach the requisite level of satisfaction, such that the protection visa must be granted (s.36(2) and s.65 of the Act, and SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  19. A theme running through the “orders”, and the “grounds” of the application, is that the Tribunal was “unfair”. In this regard, I agree with the Minister’s submissions ([7] of the Minister’s written submissions):

    “[7] The RRT is required to provide a fair process in accordance with the procedural code set out in Division 4 of Part 7 of the Act. It may be that the applicants do not regard the decision arrived at through a fair process as being a fair decision.  However what is required by procedural fairness is a fair procedure.  As Brennan J said, in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [39]:

    The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

  20. The Minister, fairly, in his submissions made reference to a written statement by the applicant, submitted to the Tribunal on 9 September 2013 (CB 155 to CB 160, English translation CB 158 to CB 160). The Minister submitted that the Tribunal made no express reference to this statement in its decision record.

  21. It is the case that a failure to consider a claim expressly made, or clearly arising (NABE (No.2)), or evidence which could affect the outcome of the review (SZRKT), could reveal jurisdictional error.

  22. However, I agree with the Minister’s submission that the statement raised no new claims beyond those in the protection visa application, identified in the delegate’s decision record, or in the Tribunal’s record of the hearing. It is a restatement of the applicant’s factual claims to protection. The Tribunal’s summary of the applicant’s claims (at [67] at CB 204 and see [5] above) is an accurate summary of all the claims. Nor, given it was merely the applicant’s own restatement of his claims, was it of corroborative evidentiary value.

  23. Here also, I agree with the Minister’s submissions ([13] – [14] of the Minister’s written submission):

    “[13] It is the applicant for relief who bears the onus of proof of establishing jurisdictional error by the RRT, including the onus of establishing a basis for drawing an inference that the Tribunal overlooked or failed to consider material; there is no burden on the Minister to show demonstrate the proposition that material was considered. There is no evidence that the RRT overlooked the 9 September 2013 submission. The RRT was under no obligation to refer in its statement under section 430(1) to evidence that was not a reason for its decision and which was not evidence upon which its findings of fact were based. Accordingly, given the terms of section 430(1), and the particular nature and content of the 9 September 2013 submission, it cannot be inferred from the fact that the submission was not mentioned in the statement of reasons that it was not 'considered' by the RRT.

    [14] Further, if it was, that does not demonstrate jurisdictional error given the 9 September 2013 submission's insignificance.  The submission simply repeated elements of the applicant's factual claims, which the RRT considered.  It was not capable of providing independent corroboration of the applicant's claims.  A failure to consider an item of evidence may demonstrate jurisdictional error where it is found both that the evidence was overlooked, and that it was of some import when regard is had to its cogency and its significance to the decision-maker's reasoning.   The present is not such a case.”

  24. No jurisdictional error is revealed by this matter.

Conclusion

  1. In all, the complaints and grounds raised in the application, and by the applicants before the Court, do not reveal jurisdictional error. Nor can I otherwise see on the material before the Court any jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 February 2015

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Asu18 v Minister for Immigration [2020] FCCA 2107