SZTVZ v Minister for Immigration and Border Protection

[2015] FCA 1277

FEDERAL COURT OF AUSTRALIA

SZTVZ v Minister for Immigration and Border Protection [2015] FCA 1277

Citation:	SZTVZ v Minister for Immigration and Border Protection [2015] FCA 1277
Appeal from:	SZTVZ v Minister for Immigration and Border Protection [2015] FCCA 2245
Parties:	SZTVZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 953 of 2015
Judge:	FARRELL J
Date of judgment:	18 November 2015
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 25(2B)(ba), 25(2B)(bb)(ii) Federal Court Rules 2011 (Cth) sch 3 Migration Act 1958 (Cth) s 91R(3) (repealed)
Cases cited:	Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 SZTVZ v Minister for Immigration and Border Protection [2015] FCCA 2245
Date of hearing:	18 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	The appellant did not appear
Solicitor for the First Respondent:	Ms S Burnett of Clayton Utz, Lawyers
Counsel 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 953 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTVZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	18 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in an amount of $3,700.

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 953 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTVZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	18 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Tribunal made on 8 January 2014: see SZTVZ v Minister for Immigration and Border Protection [2015] FCCA 2245 (“SZTVZ”). The Tribunal had affirmed a decision of a delegate of the Minister made on 24 July 2013 to refuse to grant the appellant a Protection (Class XA) visa.

   BACKGROUND

2. The appellant is a male citizen of the People’s Republic of China. He applied for a protection visa on 17 January 2013. The primary judge summarised the basis for the appellant’s protection claim in SZTVZ as follows:

   [5]       In his protection visa application the applicant claimed that:

   a) in 2001 and 2002 he and his wife had difficulties with the Chinese authorities after the birth of their second child. He had to pay 20,000 Yuan to stop his wife having a “ligation operation”;

   b) he was introduced to Christianity in April 2012 and started attending an unregistered house church. On 28 October 2012 he was arrested while attending a gathering and accused of participating in a cult. At the time he held a visa to travel to Australia so he asked to use the toilet and took the opportunity to escape the police station and flee to Australia;

   c)        he had been attending church in Australia; and

   d) he would not have the freedom to practise his religion if he returned to China. The authorities would seek to harm him for his Christian beliefs and for having had a second child.

   [6] The applicant made the following additional claims at a Tribunal hearing on 7 January 2014:

   a) he had been arrested on 28 September 2012. He later said it was on 28 October 2012;

   b) he first became involved with Christianity in September 2012. He then said it was in August 2012 and later that it was in July 2012;

   c)he was embarrassed by his body when naked. He became a Christian because reading the Bible reduced his feelings of shame over his physical appearance. He had been afraid that if he had remained in China he would have been arrested for being a Christian, taken to a police station and forced to remove his clothing, which would have humiliated him;

   d) his second child was adopted. When it was put to him that this was inconsistent with his evidence in his protection visa application, the applicant said that his wife had been pregnant with their second child but had suffered a miscarriage. He said that she then went into hiding and returned a month later with an adopted child and he paid a fine for the adopted child;

   e) when he was seventeen some land belonging to his family had been taken by the Chinese authorities; and

   f) he was unable to recall anything from the Bible because he was tired and inarticulate. The inconsistencies in his evidence arose because he was tired and could not remember some things.

   [7] The applicant provided to the Tribunal a membership certificate issued to him by the Campsie Chinese Congregational Church on 8 December 2013 and photographs he claimed were taken on the day he received the certificate.

   TRIBUNAL DECISION

3. The appellant applied to the Tribunal for review of the delegate’s decision on 19 August 2013. The Tribunal affirmed the decision on 8 January 2014 in a Statement of Decision and Reasons (“Decision Record”).

4. The Tribunal found that the appellant “contrived his main claims relating to religion in the belief that it would enable him to obtain a protection visa”: Decision Record at [28]. It found that the appellant was unable to recall and repeat consistently throughout the processing of his application information concerning his religious involvement in China: Decision Record at [28]. The Tribunal also found that the appellant was unable to discuss his religion or provide information about it because he was not a Christian and had no real interest in religion, rather than because he was “tired and inarticulate” as he suggested: Decision Record at [30].

5. The Tribunal was not satisfied that the appellant would participate in any activities of a religious nature in China which would attract adverse attention from PRC authorities in the reasonably foreseeable future. The Tribunal accepted that the appellant had attended church in Australia but found that the involvement in religious activities was solely for the purpose of enhancing the protection visa application. Accordingly, the Tribunal disregarded the appellant’s conduct in Australia pursuant to the former s 91R(3) of the Migration Act 1958 (Cth): Decision Record at [31]-[32].

6. The Tribunal found that the appellant’s evidence concerning a second child was “vague and inconsistent” and the Tribunal was not satisfied that the appellant experienced difficulties with the authorities in China relating to family planning provisions at the time he departed from China in 2012 or that he was at risk of harm in China in the reasonably foreseeable future from that cause: Decision Record at [33].

7. Finally, the Tribunal was not satisfied on the information provided for the first time at the hearing that land owned by his family had been seized when he was seventeen, that the appellant had difficulties with the authorities in China in 2012 relating to the land or that he was at risk of harm in China in the reasonably foreseeable future for any reasons relating to land or land seizures: Decision Record at [34].

8. On the basis of those findings, the Tribunal found that the appellant was not owed a protection obligation either as a refugee or as a beneficiary of complementary protection.

   FEDERAL CIRCUIT COURT DECISION

9. The appellant applied to the Federal Circuit Court for review of the Tribunal’s decision by an application filed on 11 February 2014. The primary judge dismissed the application on 23 July 2015. The application listed two grounds (as written):

   1. The Tribunal is not satisfied that there is a real chance that I will suffer harm or for any other Convention reason. The Tribunal made error in this finding.

   2. The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under Refugees Convention. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.

10. The appellant alleged in a supporting affidavit:

    I was denied procedural fairness in connection with the making of the decision.

11. The primary judge also identified additional grounds raised in written submissions received by the Court below on 21 July 2015 and at the hearing. The primary judge considered and dismissed each of the grounds raised in turn.

12. In regard to ground one, the primary judge held that the appellant was inviting the Court to reach a conclusion on the merits of the visa application different from the one reached by the Tribunal, which the Court had no power to do: SZTVZ at [12].

13. The primary judge dismissed ground two for two reasons: SZTVZ at [13]. First, the Tribunal was not obliged to refer to independent information. Secondly, the Tribunal did refer to independent information at some length in [18] of the Decision Record.

14. In relation to the ground raised in the affidavit (ground three), the primary judge found that the Tribunal satisfied its procedural fairness obligations because the appellant was invited to a hearing, which he attended, and the Tribunal put to the appellant issues which were determinative of the review: SZTVZ at [14]-[15].

15. The primary judge identified a fourth ground in [9]-[10] of the appellant’s written submissions, where the appellant stated that the Tribunal failed to consider whether he would continue to be a member of the Christian faith in China and whether he would be persecuted in China as a result: SZTVZ at [16]. The primary judge dismissed this ground because it failed to take account of the Tribunal’s findings at [30]-[31] of the Decision Record that the appellant was not a Christian and had no real interest in religion. Having found that, the primary judge held that the Tribunal had no reason to consider whether the appellant would pursue the Christian faith in China and whether he would suffer persecution as a result.

16. Ground five arose from [11]-[13] of the appellant’s written submissions; the primary judge found that the appellant implicitly alleged that the Tribunal had breached the former s 420(1) of the Migration Act. The primary judge referred to various decisions which have held that s 420(1) did not establish procedures that were required to be observed: see, eg, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [12] and [53]. The primary judge held that any perceived failure by the Tribunal to comply with s 420(1) did not ground a finding of jurisdictional error: SZTVZ at [18].

17. The appellant’s written submissions at [14] alleged that the Tribunal erred in reaching the findings which it expressed. The primary judge found that this ground did not disclose error on the Tribunal’s part as it was not the Court’s task to reconsider the Tribunal’s findings of fact but rather to discern whether there had been jurisdictional error: SZTVZ at [19].

18. Finally, the appellant alleged at [15] of his written submissions that the Tribunal’s decision was not in his “best interest”. The primary judge held that a matter of that sort was not a basis for finding jurisdictional error in that it misconceived the task of the Tribunal: SZTVZ at [21].

    APPEAL TO THIS COURT

19. The appellant filed a Notice of Appeal in this Court on 12 August 2015. The notice lists three grounds (as written):

    1.   The Tribunal member fails to consider carefully in relation to my claim.

    2.   I was denied procedural fairness in connection with the making of the decision.

    3.   The Tribunal does not amount to a proper basis for review in judicial review proceedings.

20. The Minister filed written submissions and appeared by his representative. The appellant filed no written submissions and failed to appear.

21. When the appellant failed to appear at the appointed time of 10.15 am, the matter was called outside the courtroom. Attempts to contact the appellant by telephone also failed as neither the application to the Federal Circuit Court nor the notice of appeal to this Court identified a telephone number for the appellant and the Minister’s representative was unable to locate a contact telephone number on file. However, I am satisfied that the appellant was notified of the time and place of the hearing. By a letter dated 9 November 2015 and sent by express post to the addresses advised by the appellant, the Federal Court’s Registry advised the appellant that the date for the hearing of his appeal was changed from 11 November to 18 November 2015. Clayton Utz, the Minister’s legal representative, sent a copy of the Court’s letter to the addresses provided by appellant on 11 November 2015.

22. The appellant having failed to appear by approximately 10.45 am, the Minister’s representative applied to the Court to dismiss the appeal pursuant to s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) for want of prosecution or s 25(2B)(bb)(ii) for failure of the appellant to attend the hearing of the appeal.

    CONSIDERATION

23. In his written submissions, the Minister submitted that the appellant has failed to establish error in the decision of the Court below and that accordingly the appeal ought to be dismissed with costs.

24. The Minister submitted that the first ground was not raised before the primary judge and that it is not appropriate or in the interests of justice that the appellant be permitted to raise the ground now because the appellant did not identify any claim the Tribunal failed to consider and the ground is not supported by any reasoning or articulation. I accept that submission; it is not apparent from the Decision Record that the Tribunal failed to consider any of the appellant’s claims.

25. The Minister submitted that ground two reflects the third ground of review considered by the primary judge. The ground is unparticularised, as it was in the Court below. The Minister submitted that the Tribunal discharged its obligation to provide the appellant with a fair hearing; the appellant was invited to the hearing which he attended and the Tribunal put to the appellant issues which were determinative of the review. Having considered the Decision Record, I perceive no material on the basis of which ground two may be made out; the primary judge did not err in dismissing this ground.

26. Finally, the Minister submitted that the third ground is meaningless and discloses no basis for jurisdictional error. I accept that submission.

27. I have carefully considered the Tribunal’s Decision Record and the primary judge’s reasons. The grounds raised by the appellant do not identify any arguable case of appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal. I will dismiss the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act.

28. Having considered item 15 of Schedule 3 of the Federal Court Rules 2011 (Cth) and the affidavit of Sharon Anne Burnett sworn on 18 November 2015 which was tendered by the Minister’s representative at the hearing, I am satisfied that I should order that the appellant pay the Minister’s costs in an amount of $3,700.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        18 November 2015