SZTSI v Minister for Immigration

[2014] FCCA 2149

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2149

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – alleged failure to consider claim – allegation of bias – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham
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
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant: SZTSI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3255 of 2013

Judgment of: Judge Nicholls

Hearing date: 8 August 2014

Date of Last Submission: 8 August 2014

Delivered at: Sydney

Delivered on: 8 August 2014

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The title of the first respondent be amended to ‘Minister for Immigration and Border Protection’.

2. The application made on 24 December 2013 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3255 of 2013

SZTSI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 24 December 2013, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 November 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence is a bundle of relevant documents that the Minister has filed (“the Court Book” – “CB”). The following background can be ascertained from those documents. 

2. The applicant is a citizen of the People’s Republic of China (“China”) (CB 2). He first arrived in Australia on 27 May 2008 as the holder of a Short Stay Business visa (CB 59). He departed Australia on 15 June 2008, and subsequently returned on 5 September 2008, again as the holder of a similar visa (CB 59).

3. The applicant applied for a protection visa on 2 July 2012 (CB 1 to CB 28). He was assisted by a registered migration agent (CB 24). He attended an interview with the Minister’s delegate on 27 September 2012 (CB 63). The delegate refused the application on 26 October 2012 (CB 53 to CB 73).

The Tribunal

1. On 22 November 2012, the applicant applied for review of the delegate’s decision to the Tribunal (CB 74 to CB 78). The applicant attended a hearing before the Tribunal on 13 November 2013 ([3] at CB 91).

2. The applicant made claims in a written statement provided with his protection visa application (CB 34 to CB 36). He claimed to fear harm from the Chinese authorities if he were to return to China. He gave two reasons for this. First, he had complained against corrupt local officials who he said had demolished his family home. Second, he feared harm if he were to return to China because of his practice of Falun Gong in Australia.

3. The Minister’s written submissions filed in these proceedings contain a summary of the factual claims made by the applicant in support of his claimed fears. Having read the material in the Court Book, I am satisfied that they are a fair summary of the applicant’s claims as they were presented to the Tribunal. For convenience, I adopt that part of the Minister’s submissions for the purposes of this judgment ([8] of the Minister’s written submissions):

   “The applicant claimed to fear persecution from the Chinese authorities because he appealed against corrupt local officials who demolished his family home in China. He also claimed to fear persecution as a practitioner of Falun Gong. In support of his application for a protection visa the applicant claimed that:

   (a) on 12 May 2008, the local villagers in his village were called to evacuate their houses. At that time the applicant was in Australia and his wife, who continued to reside in China, was unwilling to move. The applicant telephoned his wife and told her that she should not sign any ‘agreement’ to evacuate their home.  He then rushed back to China;

   (b) on his return to China, the applicant wrote to the County Government. On 18 June 2008, the chief of police and a group of more than 10 police broke into his home and took his camera, mobile and other equipment. He was taken to the town police station and detained for 1 day. To secure his release, he had to sign a guarantee that he would move out of his home before 1 July 2008;

   (c) he decided not to move out of his home and appealed to the Nanjing Government. However, no-one was willing to listen to his case. Accordingly, on 17 August 2008 he appealed to the ‘State Bureau for Letters and Calls’ in Beijing. He learnt that the Haian Public Security Bureau (PSB) considered that he was causing unrest and wanted to arrest him. He dared not go home and went into hiding. On 28 August 2008, he went to Nanjing to appeal again and received advice from his wife's brother that he should not return home because the PSB had sent 3 police cars and dozens of police to capture him. They even took his wife away. On 5 September 2008, he fled to Australia;

   (d) after he arrived in Australia, he telephoned home and his father informed him that his wife had been ‘administratively’ detained for 2 weeks;

   (e) in Australia, Chinese friends advised him that Falun Gong would assist and empower him. With their help, he began to practice in October 2010 and it was at this time that he realised he could apply for a protection visa.”

4. The Tribunal had regard to the applicant’s claims as they were presented. That is, as they were presented in the application for the protection visa, including a written statement from the applicant, the interview with the delegate and from his evidence at the hearing before the Tribunal ([9] at CB 92).

5. The Tribunal concluded that the applicant was not a truthful and credible witness. It rejected the applicant’s factual claim to have come to the adverse attention of Chinese authorities because of the proposed demolition of his home. Further, the Tribunal found that he had not become a genuine practitioner of Falun Gong in Australia ([10] at CB 92).

6. The Tribunal gave reasons for these conclusions. In relation to the demolition of the applicant’s home, the Tribunal found that his evidence in relation to the events and circumstances, which went to the core of his claims, were inconsistent as between each of the various occasions he presented his claims. Further, that his evidence was internally inconsistent, vague and unconvincing. The Tribunal also found that “[a]spects of his evidence were frequently revised in response to the [Tribunal’s] further attempts to seek clarification and explanation” ([26] at CB 95).

7. The Tribunal found that its findings were supported by what it found to be the applicant’s delay in his departure from China. The Tribunal found that his evidence in this regard led it to conclude that he did not fear harm in China ([28] at CB 95). In relation to Falun Gong, the Tribunal found his knowledge of Falun Gong was limited and it gave reasons for this, probative of the material before it. It concluded that the applicant was not a genuine Falun Gong practitioner and would not suffer serious or significant harm if he were to return to China ([37] at CB 96 to [38] at CB 97).

Application Before the Court

1. The grounds of the application before the Court are in the following, narrative, form:

   “1. During the hearing, I evidenced that my house was scheduled for demolition to make way for development, and on 1 July 2012 the local villagers were called on to evacuate our houses to make way for a housing project. On the basis of the evidence before it, the Refugee Review Tribunal (the Tribunal) had unfairly concluded that I was not a truthful witness. Nevertheless, the Tribunal did not accept that I came to the adverse attention of the authorities in my home town because of my actions related to the proposed demolition of my house.

   2. The Tribunal ignored the fact that my family suffered serious threaten in China. I provided evidence that my wife was unwilling to move but she was afraid that if she refused to sign the agreement she would be in trouble. I rushed back to China and appealed to the County Government. I was subsequently detained for one day at the town police station. The police chief and a group of more than ten police broke into my home and I was taken to the town police station and detained for one day. The Tribunal did not accept that I engaged in an appeal process in relation to any such demolition and it did not accept that I was detained in relation to this. It followed that the Tribunal did not accept that my wife was detained for two weeks in China for reasons related to either the demolition or my actions in relation to it. Thus, the Tribunal did not fairly value my evidence.

   3. The Tribunal unreasonably rejected my explanation to why I did not leave China until 5 September 2008 if I was afraid or feared harm for any reason. The truth ignored by the Tribunal was that I had to wait for the visa to be approved. I had no clue to know how long I had to wait for the visa. My colleagues from work took care of everything. Although the visa contained in my passport was issued in Shanghai on 8 August 2008, I did not leave China at that time but rather waited for almost one month as my colleagues were waiting to obtain their visas.

   4. According to 36(2)(aa) of the Act, the Tribunal should consider the alternative criterion other than the refugee criterion in s.36(2)(a). The Tribunal did not count the evidence with support my rights of complementary protection. As a learner of Falun Gong, I will face significant harm if returning to China. There are substantial grounds for believing that as a necessary and foreseeable consequence of I being removed from Australia to China, there is a real risk that I will be arbitrarily deprived of my life, that the death penalty will be carried out on me, that I will be subjected to torture, I he will be subjected to cruel or inhuman treatment or punishment.”

   [Errors in the original.]

Before the Court

1. At the hearing today, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Mr R Baird appeared for the Minister.

2. At the first Court date in this matter on 26 February 2014, I made a number of orders relating to the conduct of this case before the Court. In setting the matter down for a final hearing today, I made various orders giving the applicant the opportunity to file an amended application, any evidence by way of affidavit in support of his application and written submissions in support of his claims.

3. The applicant has filed nothing in the intervening period to support the grounds of the application that he has made to the Court. Those grounds, it must be said, are in long narrative form and, on their face, do not appear to make any proper assertion of legal error on the part of the Tribunal.

4. When the applicant was given the opportunity to make submissions today, the only thing that he submitted to the Court was that he had put everything in the “document” that he had given to the Minister’s department.

5. It is not clear whether the applicant sought any legal advice before initiating the proceedings or coming to Court today. It would appear that the applicant has misunderstood the nature of the proceedings which he has instituted in this Court. The applicant’s reference to his reliance on the document that he gave to the Minister’s department, which, in context, I understood to be the written statement of his claims for the protection visa, only serves to reinforce what is also apparent from the grounds of the application to the Court. That is, that the applicant has come to this Court in the mistaken belief that the Court can intervene and grant him a protection visa.

6. In short, the applicant’s bare reference to this document, and his assertion that he had nothing further to add, is a request for impermissible merits review and forms no basis for the Court to exercise its discretion and grant the relief that the applicant otherwise says that he seeks (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Consideration

1. It is the case that all of the applicant’s grounds seek impermissible merits review from this Court. In essence, the grounds assert claims in support of the applicant’s protection visa application made by him before, initially, the Minister’s department and then the Tribunal, and complain that the Tribunal did not accept his evidence. Further, that the Tribunal was “unfair” in finding that he was not a truthful witness. There are a number of points in answer to this.

2. First, the Tribunal is not obliged to accept the applicant’s claims uncritically (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). Rather, the Tribunal is required to consider each of the claims and all aspects of the claims expressly made by the applicant or which can be said to be clearly arising from what is presented to it (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1). The Tribunal is also required to then evaluate the claims and evidence, that is, to consider them by actively turning its mind to the claims and assigning weight and either accepting the factual claims made by an applicant or not accepting them. As the Minister submits, in this exercise, and this task, the Tribunal is entitled to apply its own reasoning processes to the material that is put before it.

3. Second, from what is before the Court, it is the case that the Tribunal’s findings, including its findings as to the applicant’s credibility, were all reasonably open to the Tribunal to make on what was before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal gave reasons for its findings, probative of that material. In these circumstances, no jurisdictional error is revealed. Further, as I sought to explain to the applicant during the course of the hearing today, the Court cannot intervene in those circumstances to make its own findings of fact in relation to his claims.

4. The grounds of the application also make various references to the Tribunal making an “unfair” conclusion, as in ground one, or, as in ground two, that the Tribunal did not “fairly” value his evidence or, as in ground three, that the Tribunal “unreasonably” rejected his explanation as to why he delayed leaving China.

5. The applicant’s references here may be understood, possibly, as some attempt to say that the Tribunal’s decision was affected by actual bias or the apprehension of bias. In relation to those two matters, I note the relevant test set out in various High Court authorities and as further explained in various Full Federal Court authorities (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).

6. I note further that an allegation of bias against an administrative decision-maker such as the Tribunal member is an extremely serious complaint to make. That is because such allegations go to the very integrity of the Tribunal member. For that reason, the law requires that such allegations be clearly made and distinctly proven.  Having regard to the grounds of the application, it is not clear that the applicant was seeking to make such an allegation but, in any event, on the evidence before the Court, it is not made out.

7. If, indeed, this is what the applicant’s references seek to do, then the applicant relies essentially on the Tribunal’s decision record to make any such allegations. It is the case that such reliance can only assist an applicant in rare cases (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]

   
   

   per von Doussa J).

8. On the material that is before the Court, I cannot see that a

   
   

   well-informed lay observer might reasonably apprehend that the Tribunal did not bring a fair and open mind to the proceedings. Nor can I see that there is anything to suggest any pre-judgment or a closed mind, or a mind not amenable to persuasion on the part of the Tribunal member.

9. Ground three of the application asserts that the Tribunal unreasonably rejected the applicant’s explanation as to why he delayed his departure from China. In context, and at best for the applicant, I understood this to be a complaint that it was not reasonably open to the Tribunal to not accept his explanation for the delay.

10. Although not expressed as such in the grounds of the application, it is clear that this complaint is directed to what the Tribunal set out at [28] (at CB 95). First, it must be noted that the Tribunal’s findings there were expressed as being in support of the earlier conclusion that the Tribunal had reached rejecting the applicant’s factual account of past events in China. Second, it is also plain that the Tribunal considered the applicant’s explanation. However, it found that the explanation was of such nature, or character, that it could not alter the Tribunal’s earlier expressed findings as to why he delayed his departure from China.

11. In answer to the applicant’s complaint of unreasonableness, I note that the rejection of the applicant’s explanation was reasonably open to the Tribunal to make on what was before it. Further, I note the Minister’s submissions, and I agree that there is nothing illogical or irrational in the Tribunal’s relevant analysis ([14] of the Minister’s written submissions):

    “It is submitted that, in so far as the applicant asserts by Ground 3 that the Tribunal's decision was illogical because it ‘unreasonably rejected’ his explanation as to why he did not leave China until 5 September 2008, that contention must also fail. The Tribunal did not reject the applicant’s explanation but rather found that, notwithstanding the applicant’s explanation, this did not alter the Tribunal’s findings. There was nothing illogical or irrational about the basis upon which the Tribunal chose not to accept the applicant's explanation or any of his claims. Further, on judicial review, a Court cannot descend into the factual merits of a decision under review but, instead, must focus upon whether that decision is attended, in the way alleged, with jurisdictional error. To do otherwise is, as Brennan J observed in

    
    

    Attorney-General (NSW) v Quin (1990) 170 CLR 542, to remove the legitimacy of judicial review. The Tribunal was obliged to exercise fairly its core function of reviewing a-fresh and on the merits, the decision concerning the visa application. It is submitted that, contrary to the applicant's contentions, it did so and no error is disclosed in the Tribunal's reasoning or in the procedure it adopted.”

1. Ground four asserts that the Tribunal did not consider the alternative criterion for the grant of the protection visa as set out at s.36(2)(aa) of the Act. The complaint turns, in my view, on the meaning of the word “consider” as it is used in the applicant’s ground. In context, the applicant uses it to complain that the Tribunal did not “accept” his claims. The evidence before the Court reveals that the Tribunal did consider the applicant’s claims as against this criterion. That is, it turned its mind to the evaluation and analysis of the applicant’s claims, and the facts as found arising from those claims, as against the complementary protection criterion set out at s.36(2)(aa) of the Act.

2. In these circumstances, what the applicant’s ground really asserts is, not that the Tribunal did not consider the complementary protection criterion, but that it did not accept that the applicant’s claims satisfied the criterion such that the protection visa must be granted. In all, therefore, it must be said that, again, the applicant seeks to challenge the Tribunal’s factual findings. As I said earlier, this is a request for this Court to engage in impermissible merits review (Wu Shan Liang). There is no jurisdictional error on the part of the Tribunal in this regard.

Conclusion

1. In all, there is no jurisdictional error in the Tribunal’s decision arising from anything said in the grounds of the application, nor from what the applicant said to the Court today. Nor can I otherwise see any such error in the Tribunal’s decision having regard to the material that has been put before the Court. In these circumstances, it is appropriate that the application to the Court be dismissed. I will make an order accordingly.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  15 September 2014