SZUBG v Minister for Immigration

[2014] FCCA 1661

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUBG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1661

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no arguable case raised by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.35, 65, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Minister for Immigration & Cultural 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
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 231; [2003] HCA 26
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZUBG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 695 of 2014

Judgment of: Judge Nicholls

Hearing date: 9 July 2014

Date of Last Submission: 9 July 2014

Delivered at: Sydney

Delivered on: 9 July 2014

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms F Taah

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application made on 19 March 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 695 of 2014

SZUBG

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 made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 March 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 February 2014 which affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.

Background

1. I have before me in evidence a bundle of relevant documents (“the Court Book” ‑ (“CB”)). The following can be ascertained from that material. 

2. The applicant is a citizen of the People’s Republic of China (“China”) (CB 14). She arrived in Australia on 19 October 2012 (CB 15). She applied for a protection visa on 12 April 2013 (CB 1 to CB 37). She was assisted by a registered migration agent (CB 10).

3. In a written statement submitted at the same time as the application, the applicant claimed that she had come to the adverse attention of local authorities in China because she had assisted a neighbour who was involved in seeking better conditions for retired “senior cadres” (CB 31). The applicant said that she came to the attention of the authorities and feared detention and further harm. She therefore found an agent who helped her to come to Australia to study (CB 31 to CB 32).

4. The delegate found that the applicant’s claims “were lacking in substance and credibility and without anything further are merely uncorroborated assertions” (CB 52.3).

5. The applicant applied for review to the Tribunal on 22 November 2013 (CB 57 to CB 64). She was again represented by a migration agent (CB 59) and she attended a hearing before the Tribunal on 20 February 2014 (CB 77).

6. The Tribunal found that the applicant was not a credible or truthful witness (see [20] at CB 89 and [28] at CB 92). It said ([20] at CB 89):

   “…I found her evidence to be contradictory, lacking in detail, improbable and contrived. I am not satisfied that she has adequately responded to my concerns about the inconsistencies and deficiencies in her evidence. In my assessment, the applicant’s ability to travel out of China on a valid passport in her own name indicates she was not, at that time, of interest to the Chinese authorities, and her delay in applying for protection also indicates [she] does not fear harm for the reasons claimed.”

7. The Tribunal then gave detailed reasons for, and made findings in support of, that conclusion. In all, the Tribunal found that the applicant had “fabricated her claims… in the hope of achieving a favourable immigration outcome” and that the applicant had not “ever been of adverse interest to the Chinese authorities” ([28] at CB 92). For these reasons the Tribunal was not satisfied that the applicant had a

   
   

   well-founded fear of persecution or would be at risk of significant harm if she returned to China (see s.36 of the Act and [29] at CB 93).

Application Before the Court

1. The grounds of the application to the Court are in the following terms:

   “1. RRT and DIAC have descriminatio on me, failed to consider my real situation and evidence.

   2. RRT and DIAC is unfair to me, their decision is subjective.”

   [Errors in the original.]

Before the Court

1. The applicant appeared in person at the first Court date in this matter on 16 April 2014. She was assisted by an interpreter in the Mandarin language. At that time I understood the applicant’s complaint to be, essentially, that the Tribunal did not bring an open mind to the consideration of her case. In short, she asserted bias on the part of the Tribunal. Given that the need for evidence to be produced to support such a serious claim, I noted at that time with the applicant that she should consider seeking some legal advice. I made orders granting leave for her to file any amended application and evidence in support of her application to the Court. Despite those orders nothing further has been filed by the applicant.

2. At that time I made an order setting down the matter for mention today.  The applicant again appeared in person. She was again assisted by an interpreter in the Mandarin language. Ms F Taah appeared for the Minister. 

3. Given the stated grounds of the application, and that the applicant had filed nothing further in support of her application or, indeed, sought to amend her application, the Minister applied an immediate show cause hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCCA Rules”). In all the circumstances I agreed that it was appropriate to proceed in this way.

The Issue

1. The question, therefore, for the Court today is whether the application raises an arguable case for the relief that the applicant seeks.

Consideration

1. Before the Court today, the applicant stated only that she had “no legal grounds” to put forward in support of her case. In any event, based on the material that has been put before the Court I cannot see that the application has raised an arguable case for the relief that the applicant seeks. For the reasons that follow, it is appropriate that I make an order that the application be dismissed on that basis.

2. To the extent at the applicant’s grounds assert complaints against the Minister’s department, or as referred, the “DIAC”, which, in context, I would infer is a reference to the delegate and the delegate’s decision, then this Court has no jurisdiction to hear any such complaints or grounds asserted in that way. This is a case where not only was the delegate’s decision reviewable it was, in fact, reviewed by the Tribunal under Part 7 of the Act (s.476(4) of the Act).

3. In relation to the Tribunal’s decision, it is trite to say that any allegation of bias challenging the integrity of the relevant decision maker is a serious charge to make. For that reason it must be distinctly made and clearly proven (Minister for Immigration & Cultural 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 (“Ex parte H”)).

4. It is the case that the applicant has not articulated any distinct assertion of bias and has provided no particularity to what is essentially just a broad and general assertion. Nor, despite the opportunity provided to her, has she produced any evidence such that the allegation, whatever its nature, can be made out. It is a rare case where bias can be made out with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). A fair, if not plain, reading of that decision record does not reveal any such bias, instead it reveals that the applicant’s real complaint is that the Tribunal comprehensively rejected the credibility of her account.

5. That is, the applicant appears to be aggrieved that the Tribunal did not believe her and therefore seeks to explain that grievance by asserting that the Tribunal was biased against her. 

6. In the circumstances, that does not raise an arguable case for the relief that she claims, let alone that there is the possibility that bias can be revealed. In a similar light, and for that matter, nor is there anything in the material before the Court to say that an arguable case can be raised of an apprehension of bias (noting the relevant test set out in Ex parte H).

7. The complaint that the Tribunal failed to “consider” her “real situation” is not, in the circumstances, an assertion of a failure by the Tribunal to consider her claims. That is, in the sense of engaging with or dealing with, or giving thought to, or analysis of, her actual claims. Rather, it is again, in the circumstances presented before the Court, a grievance that the Tribunal did not accept her claim. 

8. I cannot see on the material before the Court that the Tribunal failed to consider a claim or a part of a claim as that concept is understood in law (Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 231; [2003] HCA 26). What is revealed from the Tribunal’s analysis is that it comprehensively rejected the truthfulness of the applicant’s claims and her credibility in making those claims. The Tribunal gave reasons for its findings that informed its conclusion. All those findings were reasonably open to the Tribunal to make on what was open before it and the findings were probative of the material that was before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal’s findings of fact, which in essence were the findings as to the applicant’s credibility, were findings that were made within the proper exercise of its jurisdiction.

9. The applicant makes a bald assertion that the Tribunal was “unfair” to her. There is nothing in the material before the Court to suggest, such that an arguable case may be discerned, that the Tribunal failed in any of its procedural fairness obligations in conducting the review. Noting, that the Tribunal’s obligation is to provide a fair process, not necessarily to make what the applicant believes to be the preferable or “correct” decision (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

10. The applicant also alleges that in making its decision, that the Tribunal was subjective. To the extent that there may be some inference to be drawn there that the Tribunal did not bring an open mind to the proceedings but had brought some pre-determined view to the review, then I have already dealt with the matter of bias above.

11. The relevant test for the Tribunal before it could, in effect, grant the visa to the applicant is that set out in s.65 of the Act. The Tribunal is required, amongst other things, to reach a requisite level of satisfaction that the applicant meets the relevant criteria for the grant of the visa before it can be said that the visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

12. To the extent, therefore, that the applicant’s complaint may be that the Tribunal, in its analysis, considered whether it could be satisfied, or was not satisfied, as to the matters raised by the applicant and that this is said to be a “subjective” analysis then such a complaint, plainly, does not raise any arguable case for the relief that the applicant seeks. If this is the case, the complaint misunderstands the role of the Tribunal. The Tribunal does not have to uncritically accept everything, or anything, that the applicant says to it (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). Such a complaint really seeks to challenge the findings of fact made by the Tribunal, including the findings as to her credibility. As such, the applicant seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Conclusion

1. In all, therefore, is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCCA Rules. I will make an order accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 29 July 2014