SZTSI v Minister for Immigration and Border Protection

[2014] FCA 1225

FEDERAL COURT OF AUSTRALIA

SZTSI v Minister for Immigration and Border Protection [2014] FCA 1225

Citation:	SZTSI v Minister for Immigration and Border Protection [2014] FCA 1225
Appeal from:	SZTSI v Minister for Immigration & Anor [2014] FCCA 2149
Parties:	SZTSI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 889 of 2014
Judge:	NICHOLAS J
Date of judgment:	10 November 2014
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) and 430
Cases cited:	Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Date of hearing:	10 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms S Zarucki 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 889 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTSI
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 appellant is to pay the first respondent’s costs of the appeal fixed in the amount of $2200.

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 889 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTSI
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

REASONS FOR JUDGMENT
(Revised from Transcript)

1. The appellant is a citizen of the People’s Republic of China (China) who first arrived in Australia on 27 May 2008 as the holder of a Short Stay Business Visa.  He left Australia on 15 June 2008.  He returned to Australia on 5 September 2008.  On 2 July 2012 he applied for a protection visa.  His application for a protection visa was refused by a delegate of the Minister on 26 October 2012.  The appellant then applied to the Refugee Review Tribunal (the Tribunal) for review of the decision refusing him a protection visa.  On 21 November 2013 the Tribunal affirmed the delegate’s decision.  The appellant then commenced a proceeding in the Federal Circuit Court challenging the validity of the Tribunal’s decision.  On 8 August 2014 the primary judge (Judge Nicholls) dismissed the proceeding with costs. The appellant now appeals against the primary judge’s orders.

2. The appellant’s notice of appeal raises four purported grounds of appeal which, in substance, are as follows:

   1.The Tribunal was biased against the appellant, and denied him the benefit of the doubt.

   2.The Tribunal denied the appellant procedural fairness by failing to provide adequate reasons for the finding of a fact.

   3.The Tribunal ignored the fact that the appellant’s family suffered serious threats of harm in China.

   4.The Tribunal unfairly reviewed the appellant’s case.

3. There are two obvious points to make about the appellant’s grounds of appeal.  First, none of the grounds of appeal specify any error on the primary judge’s part.  Secondly, the grounds of appeal are not supported by any particulars and were not the subject of any meaningful elaboration.  There were no written submissions filed by the appellant and, when invited to make oral submissions, the appellant had nothing to say in support of his appeal.  With regard to Ground 2, it is not apparent what the fact referred to in this ground is said to be.  With regard to Ground 4, it is not apparent in what respect it is suggested that the Tribunal unfairly reviewed the appellant’s case.

4. The primary judge adopted the following summary of the appellant’s claims which his Honour drew from 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 [sic] 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.

   (I note in relation to para (a) above, that the appellant’s written statement to the delegate dated 1 July 2012 states that the appellant was told by his wife in June 2008 that their house would be demolished.  However, nothing turns on this for the purposes of the appellant’s appeal.)

5. The appellant appeared before the Tribunal on 13 November 2013 to give evidence and present his arguments.  He was assisted in doing so by an interpreter in the Mandarin and English languages.

6. It is apparent from the Tribunal’s reasons for decision that the Tribunal did not consider the appellant to be a reliable witness.  It did not accept that he was wanted by the local police or that he was of interest to the Public Security Bureau or government officials in his local area or elsewhere in China.  Nor did it accept that he is a genuine Falun Gong practitioner, that he has a genuine interest in Falun Gong or that he will practice Falun Gong if he returns to China.

7. The primary judge concluded, correctly in my view, that the appellant was seeking impermissible merits review and that none of the appellant’s criticisms of the Tribunal’s decision pointed to jurisdictional error.

8. So far as the specific grounds of appeal relied upon in this Court are concerned:

   ·The primary judge found that there was no substance to the allegation of bias.  I agree with his Honour’s conclusion.  Nothing on the face of the decision record suggests any pre-judgment or the existence of a mind closed to persuasion on the part of the Tribunal member. 

   ·Nor is there any substance in the appellant’s complaint that the Tribunal failed to provide adequate reasons for decision. The Tribunal’s reasons extend over some eight pages in which the Tribunal summarises the appellant’s claims, the evidence and its reasons for not being satisfied that the appellant satisfied the requirements of either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Callinan J said (at [235]) that the “reason for the decision” as referred to in s 430(1)(b) of the Act:

   … do not mean reasons in detail with respect to each and every argument advanced by an applicant. “Reasons” mean reasons why the Tribunal considers that the application should be dismissed. And so long as the reasons given are sufficient for that purpose, the requirements of s 430 are satisfied.

   The Tribunal’s decision record plainly satisfies the statutory requirement to provide a written statement which sets out the decision on review.

   ·There is no substance to the complaint that the Tribunal failed to consider relevant facts.  To the extent that any threat to the appellant’s family was relevant to appellant’s position, it stood or fell with the appellant’s claim that he was himself at risk of suffering serious or significant harm at the hands of the Chinese authorities if he was to return to China.

9. The appeal will be dismissed.  The appellant must pay the Minister’s costs of appeal fixed in the amount of $2200. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:       13 November 2014