SZTZZ v Minister for Immigration and Border Protection
[2015] FCA 1356
•22 May 2015
FEDERAL COURT OF AUSTRALIA
SZTZZ v Minister for Immigration and Border Protection
[2015] FCA 1356
Citation: SZTZZ v Minister for Immigration and Border Protection
[2015] FCA 1356Appeal from: SZTZZ v Minister for Immigration & Anor [2015] FCCA 451 Parties: SZTZZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 157 of 2015 Judge: WIGNEY J Date of judgment: 22 May 2015 Legislation: Migration Act 1958 (Cth), s 36 Date of hearing: 22 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 34 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 157 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTZZ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
22 MAY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the costs of the first respondent.
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 157 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTZZ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE:
22 MAY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)
The appellant, who is referred to in these proceedings by the pseudonym SZTZZ, is a citizen of China. She is an unsuccessful applicant for a protection visa. In these proceedings, she appeals from a judgment of the Federal Circuit Court of Australia, which dismissed her judicial review challenge to a decision of the Refugee Review Tribunal (Tribunal), which affirmed the original decision by a delegate of the then Minister for Immigration and Citizenship (Minister), to refuse her protection visa application.
For the reasons that follow, the appellant’s appeal is without merit and must be dismissed.
BACKGROUND
The appellant arrived in Australia in January 2008 on a valid visa issued on the basis of her guardianship of her son, who had a student visa. Almost three years later, she applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) (the Act).
The protection visa application was refused by a delegate of the Minister in June 2012. The appellant applied for a review of that refusal in the Tribunal. That application was unsuccessful, however the appellant successfully challenged that decision in judicial review proceedings in the Federal Circuit Court. It is unnecessary to give any further consideration to either the initial decision of the Tribunal or the reasons it was quashed by the Federal Circuit Court. It is sufficient to say that the review application was remitted to the Tribunal to be redetermined according to law.
The appellant did not, however, fare any better in her second round in the Tribunal. The Tribunal, differently constituted, again affirmed the initial refusal decision. The Tribunal's reasons for doing so will be addressed later in these reasons. Undeterred, the appellant once again challenged the Tribunal’s adverse determination of her review application in the Federal Circuit Court. She was not, however, able to replicate her initial success in that court. On 6 February 2015, the primary judge dismissed her application and ordered her to pay the Minister’s costs fixed in the sum of $6,646.
It is against that judgment that the appellant now appeals to this Court.
The appellant’s claims for protection
It is unnecessary to set out in any detail the appellant’s claims made in support of her application for a protection visa. They are summarised at length in both the reasons of the Tribunal (Reasons) at [3]-[22], and the judgment of the primary judge (Judgment) at [5] and [6]. Suffice it to say that the appellant claimed that she feared persecution and serious harm in China on two bases: first, on the basis of her religious beliefs and activities as a devout Catholic; and second, on the basis of her husband’s environmental protest activities that she claimed she was inclined to become involved in if she returned to China.
The appellant provided evidence in documentary form and gave oral evidence at a Tribunal hearing in relation to past actions of the Chinese police and other “authorities” that she contended provided a reasonable basis for her fears. She also gave evidence about her continuing religious activities and her inclination to be involved in her husband’s protest activities if returned to China.
Unfortunately for the appellant, the Tribunal did not believe her.
The Tribunal proceedings and decision
It is unnecessary to refer at length to the Tribunal’s conduct of the appellant’s review application. It suffices to refer to one aspect of the proceedings that appears to have been the subject of the appellant’s judicial review application in the court below.
In the course of the hearing in the Tribunal, the Tribunal member expressed some doubts about the credibility of the appellant’s evidence concerning, amongst other things, her religious activities in China. The Tribunal gave the appellant an opportunity to obtain further evidence and to call witnesses in relation to her activities in China. The Tribunal adjourned the hearing to allow the appellant time to take up that opportunity should she wish to. At the second or adjourned hearing, however, the appellant called no witnesses and adduced no evidence other than a piece of paper with the name of a person on it who the appellant said was her priest in China. The appellant did not, however, provide any contact details for that person.
The Tribunal affirmed the initial rejection decision. It gave detailed reasons for so doing. The essential reason was that, having considered all the evidence provided in support of the appellant’s application, the Tribunal was not satisfied that the appellant was a credible witness or that her claims were credible. The Tribunal was accordingly not satisfied that there was a real chance that the appellant would be subjected to persecution in China for reasons of religion, political opinion or any of the other reasons referred to in the Refugees Convention. Nor was the Tribunal satisfied that there was a real risk that the appellant would suffer significant harm if returned to China. She was accordingly not a person to whom Australia had protection obligations and did not meet the criteria for a protection visa as set out in s 36 of the Act.
There is no need to rehearse the Tribunal’s reasons for the adverse credibility finding and the rejection of the appellant’s evidence. The appellant’s grounds of review and submissions in the court below did not directly engage with the Tribunal’s reasons. Nor do her grounds or submissions on appeal. Suffice it to say that the Tribunal’s reasons for finding adversely to the appellant appear to be careful, thorough, comprehensive and logical.
The Federal Circuit Court proceedings and judgment
The appellant’s application in the Federal Circuit Court advanced three grounds upon which it was alleged that the Tribunal’s decision was infected by jurisdictional error. The grounds were in the following terms:
1.The Tribunal member reject my case should not base on that I couldn’t submit the information due to the persecution cause me difficulty/could not obtain.
2.The member should not reject my application by using his own personal capability to scale me.
3.The member should not reject me if he thinks that I still need 2nd interview.
The first ground, whilst not easy to comprehend, appeared to allege that the Tribunal decided the appellant’s case adversely to her because she was not able to, or did not, adduce further evidence at the second hearing. The primary judge appeared (at Judgment [13]) to interpret this ground as including an allegation of apprehended bias. In this respect, the primary judge concluded as follows (at Judgment [13]):
The Tribunal’s reasons do not record anything about its second hearing session which would suggest to the relevant lay observer that it might not have been bringing an open mind to the review and there was no other evidence on the topic before the Court.
Perhaps, more significantly, the primary judge concluded that there was no basis for the appellant’s contention that the Tribunal decided the matter adversely to the appellant because she failed to adduce further evidence at the adjourned hearing. His Honour concluded as follows (at Judgment [14]):
Overall, the Tribunal’s reasons, as summarised above at [9], disclose a thorough and careful analysis of the evidence and arguments advanced by the applicant. The applicant’s failure to produce more evidence at the Tribunal’s second hearing session was relevant only to the fact that she did not put before the Tribunal additional material which might have put its concerns regarding her credibility to rest.
The appellant’s second ground in the court below was, and is, even more difficult to understand. It would appear that the appellant’s submissions amounted to no more than an impermissible attack on the merits of the Tribunal’s decision or an allegation of bias or pre-judgment on the part of the Tribunal. The primary judge rejected both contentions. His Honour found (at Judgment [17]) that, contrary to the appellant’s submissions, the Tribunal’s reasons disclosed a thorough and careful analysis.
As for ground 3, the allegation appeared to be that the Tribunal made its decision even though it had not concluded its review. The appellant’s reasoning appeared to be that, because the Tribunal considered that the appellant needed a further hearing, it had not concluded its review.
The primary judge rejected that contention. His Honour considered that it was misconceived. His Honour said (at Judgment [19]):
The Tribunal afforded the applicant a second hearing session to give her an opportunity to put before it such further information as she might have been able to muster. In the result, all she submitted was the name of her priest in China. In such circumstances, no error is disclosed by the Tribunal thereupon proceeding to a decision.
GROUNDS OF APPEAL AND SUBMISSIONS
The appellant’s notice of appeal contains the following three grounds:
1. RRT has bias against me as I was deprived of the benefits of doubts.
2.RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.
3.RRT unfairly reviewed my case. The Tribunal did not examine the risk of the persecution I will face if return to China.
The appellant did not file any written submissions despite having been directed to do so.
In oral submissions at the hearing of the appeal, the appellant advanced two broad submissions.
First, she contended that the Tribunal had treated her unfairly and did not listen to her. She submitted that the Tribunal told her to provide documents. At the second or adjourned hearing, she said that she gave the Tribunal member the name of her priest in China but did not provide the contact details. That was because she was unable to do so. The appellant contended that, at that stage, the Tribunal member became angry, refused to listen to any further explanation from the appellant and terminated the hearing.
The second broad submission essentially was directed to the merits of the case. The appellant repeated a number of the claims that she originally made in support of her visa application. Her complaint appeared to be that the Tribunal refused to believe her and that that was unfair.
CONSIDERATION OF APPEAL GROUNDS
Each of the appellant’s grounds of appeal is entirely without merit.
As for ground 1, the allegation of bias on the part of the Tribunal is, with respect, baseless. To the extent that actual bias is alleged, it is well established that such a serious allegation should not be made lightly and requires proper proof. The appellant has led no evidence in support of her allegation of bias on the part of the Tribunal. The allegation appears to be based on nothing more than the terms of the Tribunal’s decision and reasons. Far from demonstrating bias on the part of the Tribunal, the Tribunal’s reasons reveal a careful, thorough and dispassionate analysis of the appellant’s review application.
Insofar as the appellant’s allegation of bias was based on her submission made on appeal concerning the actions of the Tribunal member at the second or adjourned hearing, that is, that the Tribunal member became angry and refused to listen to the appellant, it is sufficient to say that those submissions were entirely unsupported by evidence. There was no transcript of the Tribunal hearing tendered before the Federal Circuit Court judge, nor was any attempt made to tender the transcript in these proceedings. The appellant’s submissions concerning the demeanour and conduct of the Tribunal member at the second hearing are quite contrary to the recitation of the conduct of the second hearing which is contained in the Tribunal’s reasons. The Tribunal’s reasons also provide no basis whatsoever for any allegation of apprehended bias on the part of the Tribunal.
For the reasons already given, the hypothetical reasonable bystander would be likely to conclude that the Tribunal approached the review application with an open and dispassionate mind. It should also be noted that an allegation of bias was not clearly or squarely put in the court below. To the extent that it was hinted at in respect of ground 1 of the application in the court below, the primary judge was correct to reject it.
As for appeal ground 2, it was not alleged in the court below that there was a denial of procedural fairness because the Tribunal failed to provide adequate reasons. In any event, the allegation is entirely lacking in merit. The Tribunal gave detailed and comprehensive reasons for rejecting the appellant’s evidence and therefore deciding the matter adversely to her. The Tribunal’s reasons are clear. In short, and to put the matter in blunt but fair terms, the Tribunal found that the appellant was a liar who had fabricated her claims of fear of persecution. Accordingly, appeal ground 2 has no merit.
Much the same can be said of appeal ground 3. For the reasons already given, the allegation that the Tribunal unfairly reviewed the appellant’s case is baseless. Even the most cursory reading of the Tribunal’s account of the hearing reveals that the Tribunal acted scrupulously fairly. It fairly put to the appellant during the hearing its concerns about her credibility and the credibility of her evidence. It gave the appellant a further opportunity to adduce evidence in support of her case. For whatever reason, the appellant was either unable or unwilling to adduce any further evidence at the second hearing other than somewhat unhelpfully providing a name but no contact details in relation to her priest in China.
The contention that the Tribunal did not examine the risk of the appellant being persecuted if returned to China is, with the greatest respect to the appellant, nonsense. The Tribunal’s reasons revealed that it gave careful attention to whether there was any risk of the appellant being persecuted. It found that there was no such risk. It found that the appellant had fabricated her claims. Those findings were open to the Tribunal on the evidence before it. It should be added that findings in relation to the credibility of the evidence given by a visa applicant are entirely matters of fact for the Tribunal. As with the other grounds, appeal ground 3 was not squarely raised in the court below. In the circumstances of this case, that scarcely matters. Like the other grounds, it is wholly without merit and is rejected.
In relation to the oral submissions made by the appellant at the hearing of the appeal, the appellant’s submissions that the Tribunal treated her unfairly, including at the second hearing, have already been addressed. There was no evidential foundation for the assertion that the Tribunal treated the appellant unfairly at all. Indeed, as has already been said, the Tribunal’s reasons reveal nothing more than that the Tribunal member acted scrupulously fairly towards the appellant. The remaining submissions made by the appellant in support of her appeal did no more than address the merits of her visa application. They amounted to no more than a complaint that the Tribunal should not have disbelieved her. It may be readily understood why the appellant might feel aggrieved that the Tribunal rejected her case. That, however, does not provide the appellant with any ground of appeal in this appeal.
CONCLUSION AND DISPOSITION
The appellant has failed to establish any error, let alone a jurisdictional error, on the part of the Tribunal. Nor has she established any error on the part of the primary judge in finding that there was no jurisdictional error by the Tribunal.
The appeal must accordingly be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 24 December 2015
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