SZTRE v Minister for Immigration and Border Protection

[2014] FCA 1257

FEDERAL COURT OF AUSTRALIA

SZTRE v Minister for Immigration and Border Protection [2014] FCA 1257

Citation:	SZTRE v Minister for Immigration and Border Protection [2014] FCA 1257
Appeal from:	SZTRE & Anor v Minister for Immigration & Anor [2014] FCCA 2150
Parties:	SZTRE and SZTRF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 876 of 2014
Judge:	NICHOLAS J
Date of judgment:	10 November 2014
Legislation:	Migration Act 1958 (Cth) ss 424(2), 424A(2A) and 425
Cases cited:	SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Date of hearing:	10 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Appellants:	The appellants appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms S Burnett of Clayton Utz
Solicitor for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 876 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTRE
First Appellant

SZTRF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	10 NOVEMBER 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs of the appeal fixed in the amount of $1500.

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 876 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTRE
First Appellant

SZTRF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	10 NOVEMBER 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)

1. The second appellant is the mother of the first appellant.  They are both nationals of the People’s Republic of China (China).  The second appellant arrived in Australia on 1 January 2013 under a visitor’s visa which expired on 18 April 2013.  The first appellant arrived in Australia on 3 May 2013 under a temporary student visa which is valid until 8 September 2016.

2. The first appellant applied for a protection visa on 11 June 2013.  He included the second appellant in the application as a member of the family unit.  The first appellant’s application for a protection visa was refused by a delegate of the Minister on 9 September 2013.  The appellants applied for review of the delegate’s decision on 13 September 2013.  The appellants attended a hearing before the Tribunal on 21 October 2013 at which they both gave evidence.  By its decision given on 18 November 2013 the Tribunal affirmed the delegate’s decision rejecting the first appellant’s application for a protection visa.

3. On 16 December 2013 the appellants brought a proceeding in the Federal Circuit Court seeking orders (inter alia) quashing the Tribunal’s decision.  Following a hearing of that proceeding, the primary judge ordered that it be dismissed with costs.  Now before me is the appellants’ appeal against his Honour’s orders.

   THE GROUND OF APPEAL

4. At the commencement of the hearing, I granted the appellants leave to rely upon the following ground of appeal:

   1. His Honour fell into jurisdictional error by making an irrelevant consideration in [48] of the judgment.

   Particulars

   a.His Honour relied upon SZBYR v MIAC [2007] HCA 26; (2007) 235 ALR 609 that inconsistencies in themselves in the applicant’s evidence are not “information” for the purposes of s424A(1) of the Act, thereby misconstruing the applicant’s claim;

   b.The record of interview on the department file as quoted by the Tribunal was incorrect and not inconsistent;

   c.The incorrect interview record relied upon by the Tribunal at [37]-[38] of the Tribunal’s decision record formed part of the basis of the credibility finding; and

   d.The appellants were denied the opportunity for a fair hearing under s425 of the Act.

5. This is the only ground of appeal relied upon by the appellants.  To understand the ground of appeal it is necessary to refer to both the Tribunal’s statement of decision and reasons and the primary judge’s reasons for judgment.

6. At the hearing of the appeal the appellants were assisted by an interpreter qualified in Mandarin and English.  They were not legally represented.  The second appellant made various submissions that were directed solely to the merits of the Tribunal’s decision and the correctness of its assessment of the appellants’ claims.  There were no oral submissions made by the appellants directed to the ground of appeal upon which they rely.  There was, however, a short written submission provided to the court by the appellants to which I have had regard.

   PROCEEDING BEFORE THE TRIBUNAL

7. The evidence before the Tribunal included the written application for a protection visa lodged by the first appellant (an English translation of which is included in the appeal book).  There were also departmental records before the Tribunal relating to an interview conducted by a departmental officer with the second appellant whilst she was in immigration detention in August 2013 (the compliance interview). 

8. In the first appellant’s written statement annexed to his application for a protection visa, he stated, in substance, the following:

   ·He and his wife, who he says are farmers living in a rural area, had a daughter.  However, he said that they both needed and wanted a son.  His wife subsequently gave birth to a second daughter.  He claimed that some time after the birth of his second daughter, family planning officials in their local town then sought to recover a fine from the first appellant and his wife (he referred to this as a “penalty payment”) before the birth of the second daughter could be registered.

   ·In January 2013 his wife became pregnant again. The family planning officials visited his home and later forced his wife to undergo an abortion.  The first appellant understood that the family planning officials were also proposing to force him to undergo a surgical sterilisation.  This led the first appellant and his wife to decide to go into hiding for several years by travelling to an overseas country.  He left China, arriving in Australia on 3 May 2013.

9. According to evidence given by the appellants before the Tribunal, the family planning officials told the first appellant that if the fine remained unpaid, his house would be confiscated.  According to the second appellant, the officials returned to the house in November 2012.  The first appellant was not there, but the second appellant was.  She told the officials that her son could not pay the fine.  According to the appellants, the officials then beat the second appellant.  Because of this, according to their evidence, the second appellant then travelled to Australia on a visitor’s visa.  She arrived here in January 2013.  The appellants gave evidence before the Tribunal of the pregnancy, and the forced abortion, and the first appellant’s departure to Australia as referred to in the written statement.  In his evidence to the Tribunal the first appellant claimed to be afraid to return to China because he would be made to undergo a sterilisation operation which would prevent him from having any other children.  He said that he was also concerned that his second child could not be registered due to his inability to pay the fine and the official’s threats to confiscate the family home.  The second appellant also raised the same concerns with respect to the possible confiscation of the family home and the difficulties in registering the second child. 

10. The record of the compliance interview contains the following statement from the second appellant:

    When I was in China my son got married and gave birth to a daughter and is pregnant again. The authorities force my daughter-in-law to abort the baby and tried to stop them due to the incident we fought with the officials and the official was injury. The officials asked for compensation for the injuries and we escaped China.

    THE TRIBUNAL’S DECISION

11. The Tribunal found that the appellants were not witnesses of truth. The Tribunal gave the following reasons for reaching this conclusion:

    (a)a number of “significant” claims were omitted from the first appellant’s written statement but were raised for the first time at hearing before the Tribunal. The first appellant reasoned that these omissions were caused by his “anger and sadness”. The Tribunal did not accept that explanation and considered that if the first appellant was giving a truthful account of events, neither anger nor sadness would have resulted in such omissions;

    (b)the appellants gave inconsistent evidence during the review process. These inconsistencies were numerous and related to key events in the appellants’ narrative, including:

    (i)whether the second appellant was involved in a physical fight with the family planning officials; and

    (ii)the circumstances in which the appellants’ other family members left the family home.

12. The Tribunal did not consider the appellants’ claims to be credible and rejected them.  In particular, the Tribunal did not accept that:

    (a)family planning officials came to the appellants’ home in November 2012 and assaulted the second appellant;

    (b)family planning officials came to the appellants’ home in February 2013 to take the first appellant’s wife to force her to have an abortion;

    (c)the first appellant would be forced to undergo a sterilisation operation or that members of his family ceased living in the family home because of the difficulties associated with the Chinese authorities.

13. Based upon the compliance interview of the second appellant referred to earlier in these reasons, the Tribunal asked the first appellant whether there was any occasion when the officials came to his home and received injuries in the course of a struggle.  In its reasons for decision, the Tribunal contrasts the first appellant’s evidence on this issue with the statements made by the second appellant in the compliance interview, in which the second appellant was recorded as stating that there was a fight involving the officials, that an official was injured and that there was a request for compensation for the injuries inflicted.  During the course of her evidence before the tribunal, the second appellant, as did the first appellant, denied that any such statement was made during the course of the compliance interview.  It was also alleged by the first appellant, during the course of his evidence, that an officer of the department had told the second appellant, that after checking the departmental records, it was satisfied that the second appellant had made no such statements.

14. The Tribunal did not believe the appellants’ evidence that no such statement had been made by the second appellant during the course of the compliance interview nor did it believe the first appellant’s evidence that the department had subsequently advised his mother that no such statements had been made.  These were key matters upon which the Tribunal’s consideration of the appellants’ credibility as witnesses rested.

15. Ultimately, the Tribunal found that the appellants were not witnesses of truth and the account of events upon which their protection claims were based were false. 

    PROCEEDING BEFORE THE PRIMARY JUDGE

16. Before the primary judge the appellants relied upon the following ground of review:

    1.The Tribunal committed jurisdictional error in that it failed to comply with Section 424(2) or Section 424A(2A) of the Migration Act (1958).

    Particulars

    (a) Failure to disclose to the applicants, in either way prescribed by Section 424(2) or Section 424A(2A) that it had quoted the record of the interview at the Villawood Detention Centre;

    (b)     That record of Interview on the department file which was quoted by the Tribunal was incorrect in terms of the [second appellant’s] statement.

17. His Honour rejected this ground of review and concluded that there had been no failure to comply with the requirements of either ss 424(2) or 424A(2A) of the Migration Act 1958 (Cth) (the Act). Relevantly, these sections of the Act provide as follows:

    424(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

    …

    424A(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

18. His Honour understood the appellants’ ground of appeal to raise two matters.  First, he understood the appellants to contend that the Tribunal did not disclose to them that it wanted to rely upon the compliance interview between the second appellant and the departmental officer.  Secondly, his Honour took the ground of review to contend that that part of the compliance interview relied on by the Tribunal (referred to in [10] above) was not a true record of what the second appellant had said.  The primary judge dealt comprehensively with the first of these contentions.  His Honour found that the Tribunal did give the appellants the opportunity to comment on that matter, both in writing and, prior to that, orally at the hearing.  This was in spite of the fact that, on the primary judge’s findings, the Tribunal was not required to take that step.  In relation to the second contention, his Honour held that the appellants were seeking to have the court engage in impermissible merits review.

    CONSIDERATION

19. The ground of appeal set out above focuses on para [48] of the primary judge’s reasons in which his Honour said:

    I also note, as was held by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, that inconsistencies in themselves in the applicant’s evidence are not “information” for the purposes of s.424A(1) of the Act.

20. His Honour’s observation was directly relevant to the case apparently argued by the appellants below which seemed to be that the Tribunal was required to inform the appellants about inconsistencies in their evidence which caused it concern.  There are various trains of thought that emerge from the ground of appeal.  To the extent it is suggested that his Honour’s observation was irrelevant to the matter before him, then this is, for reasons I have indicated, a complaint that lacks substance.  To the extent that it is suggested that his Honour failed to take into account the fact that the appellants contested in the Tribunal that the second appellant made these statements attributed to her, then I think this complaint also lacks substance.

21. It is very clear that his Honour appreciated the contention that was advanced by the appellants in relation to the compliance interview before the Tribunal.  His Honour properly considered, as I read his Honour’s reasons, that the appellants were attempting to engage in merits review by challenging the finding of the Tribunal in so far as it rejected the appellants’ contention that the statements attributed to the second respondent in the compliance interview were never made by her.  The same comment can be made in relation to paragraphs (b) and (c) of the ground of appeal relied upon by the appellants.

22. Finally, the appellants contend in paragraph (d) that they were denied the opportunity of a fair hearing under s 425 of the Act. There is no substance to this complaint. The appellants were given the benefit of an oral hearing before the Tribunal. They were also given the opportunity to make written submissions in relation to various matters, including in relation to the concerns the Tribunal expressed in respect to the compliance interview.

23. In the circumstances, I am satisfied that the appeal should be dismissed with costs. 

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        21 November 2014