SZTPP v Minister for Immigration and Border Protection
[2015] FCA 508
•12 May 2015
FEDERAL COURT OF AUSTRALIA
SZTPP v Minister for Immigration and Border Protection
[2015] FCA 508
Citation: SZTPP v Minister for Immigration and Border Protection [2015] FCA 508 Appeal from: Application for leave to appeal: SZTPP v Minister for Immigration and Border Protection & Anor
[2015] FCCA 78Parties: SZTPP v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 73 of 2015 Judge(s): BENNETT J Date of judgment: 12 May 2015 Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 91R(3)
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Circuit Court Rules 2001 (Cth) rr 44.12(1)(a), 44.12(2)Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507Date of hearing: 12 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 25 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms R Krishnan for Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 73 of 2015
BETWEEN: SZTPP
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
12 MAY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs as agreed or taxed.
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 73 of 2015
BETWEEN: SZTPP
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE:
12 MAY 2015
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
This is an application for leave to appeal from a decision of a Judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) to affirm a decision of a Delegate of the Minister for Immigration and Border Protection (the Minister) refusing the applicant a protection visa. The application was dismissed in the Federal Circuit Court as his Honour was not satisfied that the application raised an arguable case for the relief claimed.
The applicant is a national of the People’s Republic of China. In essence, he claimed to fear harm because of his underground Christian church practice in China and his religious activities in Australia.
In broad summary, the Tribunal did not accept the applicant’s claims concerning his religious activities in China and found that they had been fabricated for the purposes of his visa application. The Tribunal accepted that the applicant had been attending church in Australia but was not satisfied that he engaged in religious activities in Australia other than for the purpose of strengthening his claim to be a refugee. The Tribunal disregarded these religious activities pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act). The Tribunal considered and rejected the applicant’s claims against the complementary protection criteria in s 36(2)(aa) of the Act.
The grounds of the application for leave to appeal are:
(1)Error of the honour, Judge of the Federal Magistrate Court, in failing to identify the procedural unfairness given by the Second Respondent.
(2)Bias of the Honour, Judge of the Federal Magistrate Court against the Applicant.
(3)The process at present out of the expectation which had ran out of my financial ability. I hope the Federal Court can judge fairly.
[Errors in the original.]
Grounds 1 and 3 were not raised in the proceedings in the Federal Circuit Court. The Minister formally opposes the grant of leave to raise them on this occasion as he submits they are doomed to fail. In any event, the Minister addressed those grounds in written submissions and at the hearing. The issue of bias was raised in the Federal Circuit Court but the ground was that there was bias on the part of the Tribunal. The grounds of the application in the Federal Circuit Court were:
(1)When the Tribunal member asked me about the first time the police came to the house, the questions that they asked me are misleading.
(2)The Tribunal member have biased against me.
(3)The Tribunal member did not take into account the explanation that I provided.
[Errors in the original.]
Judge Nicholls observed at [9] and found at [13] that the applicant sought to challenge the factual findings made by the Tribunal and that his complaints did not rise above such a challenge. His Honour also dealt with the applicant’s complaints about his migration agent as an explanation for discrepancies in his evidence, noted the Tribunal’s findings in relation to the same complaints (at [16]) and stated that those findings were reasonably open to the Tribunal (at [18]).
There was no evidence before his Honour to support the applicant’s asserted grounds of bias on the part of the Tribunal or the nature of the Tribunal’s questioning. His Honour rejected the assertion that the Tribunal’s questions were misleading and also rejected the allegation of bias.
There is no draft notice of appeal. The Minister has addressed the grounds in the application and I will do the same. The Minister submits that the grounds are of insufficient merit to justify the grant of leave. As the application was dismissed in the Federal Circuit Court, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the decision was interlocutory (Federal Circuit Court Rules 2001 (Cth) r 44.12(2)). That is, leave is required to appeal from this decision (Federal Court of Australia Act 1976 (Cth) s 24(1A)). On an application for leave to appeal, an applicant is required to establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave to appeal (Bienstein v Bienstein (2003) 195 ALR 225 at [29]).
The applicant appeared in person at the hearing. He was assisted by an interpreter. The applicant was given an opportunity to explain and elaborate, and did explain and elaborate, the grounds for leave to appeal and any underlying substantive allegations as against the Tribunal or the Federal Circuit Court decisions.
Ground 1: Asserted Procedural Unfairness in the Tribunal
The applicant has not filed written submissions. The Minister submits that without particulars or submissions, it is impossible to understand the nature of the complaint.
As the Minister submits, an examination of the Tribunal’s reasons reveals that the applicant attended a hearing before the Tribunal and gave evidence assisted by an interpreter. Inconsistencies were pointed out to him and he was given an opportunity to explain. The applicant has said today, in further elaboration, that his speaking capacity was not good and that he has no knowledge of the law, that the hearing went for two hours and that the Tribunal was mistaken.
I accept the Minister’s submission that there is no identifiable denial of procedural fairness by the Tribunal. There is nothing in the Tribunal’s reasons or its report of the proceeding before it to suggest that the applicant was not given a fair hearing. The applicant has now asserted that there were mistakes of translation. However, I note that he was assisted by an interpreter in the Tribunal, that such mistakes were not raised in the Tribunal or in the Federal Circuit Court and that there is no evidence to support the claims that he now makes.
The applicant has not made out any procedural unfairness by the Tribunal.
Ground 2: Bias
The applicant asserted bias on the part of the Tribunal in the Federal Circuit Court. He now asserts bias on the part of the Federal Circuit Court.
It goes without saying that such an allegation must be ‘distinctly made and clearly proven’ (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). The applicant did not establish such a claim in relation to the Tribunal. The complaint now made is not clearly made or distinctly proven in relation to the Federal Circuit Court Judge. There is nothing apparent in the reasons or the conduct of the Federal Circuit Court which reveals or would support any allegation of actual or apprehended bias. There are no particulars given to support this claim. In further elaboration today, the applicant identified language as the problem. He said, ‘I feel that my friend organised “it for me”. There were interpreting mistakes’. This has been dealt with in part above and, in any event, does not go to bias.
In dealing with alleged bias on the part of the Tribunal, Nicholls J stated (at [28]) that ‘on the evidence that is before the court, it cannot be said, let alone proven, that the Tribunal did not bring an open mind to the review’. The same applies to proceedings before, and the decision of, the Federal Circuit Court.
Ground 3
I asked the interpreter to translate ground 3 for the applicant and I then asked him to explain what he meant by this. He said words to the effect “I came to Australia for three years. It was difficult to get a job and I want a judgment as soon as possible”.
To the extent that ground 3 is an assertion of financial impecuniosity on the part of the applicant, that is not a matter that he has shown to be relevant to this application as a proper ground of appeal. It cannot, in any event, be said to make out appellable error on the part of the Federal Circuit Court Judge or jurisdictional error on the part of the Tribunal. I note further that it was not raised before the Tribunal or the Federal Circuit Court.
Each of the grounds raises assertions that should necessarily have been supported by particulars, evidence and submissions. There has been no demonstrated error on the part of the Federal Circuit Court Judge in dismissing the application before him pursuant to r 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth).
In further oral submissions, the applicant said that the Tribunal did not consider the truthfulness of his claims or the persecution that he would face on return to China. That is not the case. The Tribunal dealt with the applicant’s claims in some detail, including its assessment of the truthfulness of those claims and considered specifically what would happen to the applicant if he returned to China (at [18]).
Conclusion
In summary, the Tribunal rejected the entirety of the applicant’s claims and found that the applicant was of no interest to the authorities in China because of anything he claims to have happened in China. The Tribunal considered his attendance at church in Australia, but having found that the applicant has no interest in or commitment to the church or Christianity, the Tribunal found that the applicant would not engage in any religious activities if he returns to China (at [18]). The Tribunal found that there was no real chance that the applicant would be persecuted for reasons of his religion if he returns to China now or in the reasonably foreseeable future. The Tribunal then turned to the question of complementary protection and concluded that there was no real risk that the applicant would suffer significant harm as a result of his religious beliefs if he returns to China. Therefore, the Tribunal found that there was no real chance of serious harm or a real risk of significant harm if the applicant returns to China.
Other matters raised by the applicant go only to factual matters which this court cannot revisit. The only other matter raised by the applicant was that he said that he could not understand “anything” because he does not speak English. He explained that “anything” included everything from the proceedings in the Tribunal through to and including the decision of the Federal Circuit Court.
I note again that the applicant has at all relevant stages been assisted by an interpreter and that he has filed applications to review the Tribunal decision and an application for leave to appeal from the decision of the Federal Circuit Court. In each case, it is reasonable to conclude that he must have had some understanding of the matters from which he was appealing or that he simply chose not to inquire into their contents.
There is no sufficient doubt as to the decision of Nicholls J.
The applicant has not made out any basis for his application for leave to appeal from that decision. It follows that the application for leave to appeal should be refused. The applicant should pay the Minister’s costs as agreed or taxed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 22 May 2015
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