SZTOL v Minister for Immigration & Border Protection
[2014] FCCA 709
•8 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTOL v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 709 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – application has not raised an arguable case for the relief claimed – application dismissed. |
| Legislation: Cases cited: |
| Applicant: | SZTOL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2920 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 8 April 2014 |
| Date of Last Submission: | 8 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2014 |
REPRESENTATION
The applicant appeared in person with the assistance of a Mandarin interpreter
| Solicitors for the Respondents: | Ms Melissa Ardita (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2920 of 2013
| SZTOL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 30 October 2013 (“the RRT”).
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commended by way of application on 25 November 2013, be dismissed on the basis that the grounds of the applicant’s applicant have not raised an arguable case for the relief claimed.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
On 12 March 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose a particularised error capable of review by this Court.
I also explained to the applicant that in circumstances where his application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to r.44.12 of the Rules.
The applicant confirmed that he wished to continue with his application for judicial review. For that reason, the applicant was given leave to file and serve an Amended Application, any further evidence and written submissions in support by 28 March 2014.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, by 28 March 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 28 March 2014.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was then set down for a show cause hearing today pursuant to r.44.12 of the Rules.
The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise.
In the applicant’s application for judicial review, filed on 25 November 2013, the applicant identified the grounds for review as follows:
“1. Tribunal member does not consider my explanations of my evidence that I have suffered.
2. Tribunal member misled me to answer questions, which caused I probably did not understand.
3. There exists a jurisdictional error. Tribunal member has prejudice against me.”
The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
The applicant responded that the RRT had failed to consider the consequences to him if he was returned to China; the RRT had asked him the same questions many times; and, the applicant believed that he was correct in asserting that the RRT’s decision was affected by jurisdictional error.
The solicitor for the applicant, Ms Ardita, tendered a copy of the RRT’s decision record, dated 30 October 2013, which was annexed to an affidavit of the applicant filed in support of his application for judicial review on 25 November 2013. That affidavit was marked Exhibit 1R.
The background of the applicant’s application for judicial review and his claims are summarised in the submissions of the first respondent as follows:
“Background
2. The applicant is a male citizen of the People's Republic of China (China) born on 12 December 1973. He last arrived in Australia on 20 August 2012 as the holder of a Subclass TR-676 (Tourist) visa.
3. The applicant applied for a Protection visa on 3 October 2012. His claims were set out in a statement accompanying the application.
4. The applicant attended an interview in relation to his Protection visa application on 15 February 2013.
5. The application was refused by a delegate of the first respondent (the delegate) in a decision dated 26 February 2013.
6. The applicant applied to the RRT for review of the delegate's decision on 25 March 2013.
7. The applicant was invited to, and attended, a hearing before the RRT on 22 October 2013.
8. The RRT made its decisions on 30 October 2013. The RRT affirmed the decision not to grant the applicant a Protection (Class XA) visa.
The applicant's claims
9. The applicant claimed that he suffered persecution in China from corrupt and ruthless government officials.
10.The applicant noted that he began setting up his own cardboard box factory in October 2010, which went into production in March 2011, and that in his first year of business he was required to pay 10,000 yuan as a local tax , which he paid.
11. The applicant claimed that in 2012, Mr Wang Xueqiang (Mr Wang) demanded a further 10,000 yuan as a local tax and drove the applicant to the bank to withdraw the money.
12. The applicant then claimed that fees for the use of arable land were demanded from him on 25 May 2012. The applicant was granted a one week extension to get the money. The applicant made enquiries with a person who ran a vegetable processing factory, who confirmed that he had never had to pay any fees for use of arable land.
13. On 30 May 2012, the applicant claimed that Mr Wang returned to see the applicant, with Mr Wang becoming very angry when the applicant queried why he was being asked for the fees for use of arable land.
14. On the evening of 31 May 2012, the applicant made a complaint to the town chief about Mr Wang, the applicant claimed he was visited by about 30 people and was brutally beaten because of the complaint he had made. The applicant claimed that he was threatened he would be taken away.
15. The applicant claimed to have fled his home as he was aware of a fellow villager who had been detained for a month. The applicant claimed he was concerned that something similar would happen to him. The applicant claimed that the people who had beaten him returned to his home to chase him on a few occasions.”
The RRT decision record commenced by reciting the background to the applicant’s application for review, before moving on to the RRT’s consideration of the applicant’s claims and evidence. The decision record also summarised its findings and reasons before ultimately concluding that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) of the Act.
The RRT did not find the applicant to be a credible, truthful or reliable witness. A fair reading of the RRT’s decision record makes clear that the RRT explored extensively applicant’s claims with him at the hearing and put to the applicant matters of concern it had about his evidence, noting the applicant’s responses.
The RRT also had regard to various internal inconsistencies and inconsistencies with information given by the applicant in applying for visas other than his protection visa. The RRT asserted that it gave this information to the applicant, pursuant to s.424AA of the Act and there was no complaint made by the applicant to the contrary.
In the absence of any particularisiation by the applicant of the complaints made in his application, and in the absence of any evidence to the contrary, the bare assertion that the RRT member did not consider the applicant’s explanations of his evidence and misled him to answer questions which he did not understand do not raise an arguable case for the relief claimed.
The RRT, in its decision record, specifically states that it considered the various explanations offered by the applicant for deficiencies in his evidence and concerns that the RRT put to him. A fair reading of the RRT’s decision record does not suggest that the RRT’s adverse credibility findings were not open to it on the evidence and material before it and for the reasons it gave.
Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)
In relation to the applicant’s assertion in ground 3 that the RRT was prejudiced against him, to the extent that such a statement is alleging bias on the part of the RRT, a claim of bias is serious and requires proper particulars and evidence. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. The mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
Otherwise, both the written complaints made by the applicant and the applicant’s submissions this morning suggest that at the heart of the applicant’s complaints is a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commended by way of application on 25 November 2013, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 16 April 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Standing
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