SZUDR v Minister for Immigration & Border Protection

[2015] FCCA 516

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 516

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal failed to consider relevant evidence – whether the Refugee Review Tribunal offered the applicant a real and fair hearing – whether Refugee Review Tribunal failed to adhere to proper procedure – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 474
Federal Circuit Court Rules 2001 (Cth), r.44.12

Minister for Immigration and Border Protection v SZSRS [2014] FCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212

Applicant: SZUDR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 887 of 2014

Judgment of: Judge Emmett

Hearing date: 6 March 2015

Date of Last Submission: 6 March 2015

Delivered at: Sydney

Delivered on: 6 March 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondent: Mr Tim Reilly

Solicitors for the Respondent: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 887 of 2014

SZUDR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 6 March 2014 and handed down on 7 March 2014 (“the RRT”) affirming a decision of a delegate of the first respondent refusing the applicant a protection visa (“the Delegate”)

2. The background and claims of the applicant are set out in the submissions of the first respondent filed on 14 July 2014 as follows:

   “3. The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 16 December 2006 on a student visa: Relevant Documents (RD) 14.3. On 8 May 2013, he lodged an application for a protection visa: RD 1. On 7 November 2013, the delegate refused the application: RD 53. On 3 December 2013, the applicant lodged an application for review with the Tribunal: RD 54. On 3 March 2014, the applicant appeared at a hearing before the Tribunal: RD 63. On 6 March 2014, the Tribunal affirmed the delegate’s decision: RD 80.

   4. In short, the applicant claimed to have a well-founded fear of persecution in China because of his Christian religious activities. He made the following claims.

   4.1 He was baptised when he was 12 and attended church activities with his parents every week: RD 31.3.

   4.2 In May 2001, the applicant and his father went to hospital to attend a prayer session for a sick person. The police came and arrested his father, who was detained for one week. The applicant was warned by the authorities and forced to write a letter of guarantee relating to his religious practice: RD 31.7.

   4.3 The authorities forced his family fish farming business to pay fines, on the pretext of enforcing hygiene standard violations, because of his family’s religious beliefs. The business lost money and had to close: RD 31.7

   4.4 On 24 November 2002, the police raided a religious gathering at his house. All the attendees were arrested, his father was injured and detained for 3 months: RD 31.9. His father subsequently left for the UK in August 2003, and was granted permanent residence in October 2010: RD 32.7.

   4.5 He was not accepted by a public middle school because he was implicated by his father. He came to Australia as an international student in 2006: RD 32.3.

   4.6 In July 2007, he was informed that his mother had been arrested because she had meetings with other practitioners. His mother was detained for 2 months: RD 32.5.

   4.7 On 26 February 2013, there was a religious gathering at his family home. His neighbours reported that gathering to the police. The police beat the attendees, including his grandparents. His grandfather is confined to a wheelchair because of his injuries: RD 32.8.

   4.8 His mother, sister and grandparents remain in China. They are not able to practice Christianity in public: RD 32.7.”

3. The applicant failed to attend an interview with the Delegate, and on 7 November 2011 his application for a protection visa was refused on the basis that he was not a person to whom Australia has protection obligations either in relation to s.36(2)(a) or s.36(2)(aa) of the Act in that he does not satisfy those criteria.

4. The applicant attended a hearing before the RRT at which the RRT explored with the applicant in some detail the claims that he made and put to the applicant concerns it had about his evidence and noted his responses.

5. The RRT ultimately found the applicant to have fabricated his claims of past events in China for the purpose of his protection visa, and that he was not a person of credibility. The RRT noted that the applicant had provided a number of photographs which the applicant claimed depicted his grandparents being beaten by authorities. The RRT found those photographs not to be of probative value and gave them no weight because the RRT stated it had no way of determining that the photographs depicted the applicant’s family members; and as the RRT said, “more importantly” because the RRT was unable to determine from the photographs that the injuries inflicted on the persons in the photographs were by authorities as a result of the religious beliefs of those persons.

6. The RRT’s decision is otherwise summarised in the first respondent’s submissions filed on 14 July 2014 as follows:

   “6. The Tribunal found that the applicant's description of events in China had been fabricated for the purpose of his protection visa: RD 85[13]. It found that the applicant had not been truthful, and rejected the entirety of his factual claims about incidents in China: RD 86-87[20]. It found that the applicant’s evidence was evasive in some aspects, and that his answers were inconsistent and contradictory in relation to other aspects of his claims: RD 82[12]. It set out these problems in detail: RD 83-85.

   7. The Tribunal also took into account the delay of over 6 years between the applicant’s first arrival in Australia (16 December 2006: RD 14.4) and the time he lodged his application for protection (8 May 2013: RD 1). It did not accept the applicant’s explanations for that delay: RD 86[17]. It referred to the applicant’s evidence that he wished to help his mother service a large debt to conclude that the applicant’s presence in Australia was for the purpose of employment: RD 86[17].

   8. The Tribunal accepted that the applicant had attended church and religious activities in Australia: RD 87[21]. However, it was not satisfied that the applicant had engaged in that conduct otherwise than for the purpose of strengthening his protection claims. In this regard, the Tribunal relied on its findings that the applicant was not a credible witness and had fabricated his claims: RD 87[22]; see also RD 85[13]. The Tribunal disregarded that conduct, in accordance with s.91R(3) of the Migration Act 1958 (Migration Act): RD 87[22].

   9. The Tribunal rejected the applicant’s Convention claims: RD 87[24]. It also found that the applicant was not entitled to complementary protection: RD 87[25]. The Tribunal was mindful that the applicant’s conduct in Australia could not be disregarded for the purpose of assessing his complementary protection claims, but observed that the country information before it suggested that unregistered churches operate freely and openly in Fujian (the applicant’s home province): RD 88[26], see also RD 15.6. It concluded that there was nothing to indicate that Chinese authorities were aware of the applicant’s conduct in Australia, or would be concerned with such conduct if they were aware of it: RD 87-88[26]. “

7. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

8. The applicant attended a directions hearing before me on 17 June 2014. On that occasion the matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 21 July 2014 before me. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any additional evidence and submissions in support. However, the applicant filed no documents either in accordance with those directions or otherwise.

9. On 21 July 2014 the applicant attended the hearing and was afforded a further opportunity to file and serve an amended application, further evidence by way of affidavit, and submissions in support of his application. The matter was set down for final hearing today before me.

10. On 14 August 2014, the applicant filed an affidavit, sworn 13 August 2013, annexing a transcript of the RRT hearing. The applicant read that affidavit in support of his claims this morning. The applicant confirmed that he relied on the grounds of his initiating application filed on 1 April 2014, as follows:

    “1. RRT failed to consider my evidence, including photo, my father’s visa, etc

    2.  RRT didn’t follow procedures and interrupted me when I answer questions

    3.  RRT always stop me or didn’t give me enough time to respond the questions before my next question.”

11. Ground 1 asserts that the RRT failed to consider his evidence including photos and his father’s visa. I asked the applicant what he meant by that complaint and the applicant stated that he had given to the RRT at the hearing photographs of persons whom he said were his grandparents. Those photographs were tendered by the applicant this morning without objection, and together were marked Exhibit 2A.

12. The applicant said that at the conclusion of the RRT hearing the photographs were returned to him. He said that he was invited by the RRT to send any further evidence to the RRT, and if he did so that it would be considered. The applicant gave sworn evidence that within a day or two of the RRT hearing he sent through to the RRT identification cards of his grandparents-in-law and a copy of his father’s passport in order to support his claim that the persons depicted in the photographs were his family members.

13. The applicant submits that the RRT did not compare the identification photographs of his grandparents-in-law with photographs of them given to the RRT by him at the hearing and which were returned to him following the hearing. The applicant contended that in failing to make that comparison and satisfy itself that the persons in the photographs were his family members, the RRT fell into jurisdictional error.

14. The finding by the RRT as recorded in its decision record is as follows:

    “The applicant provided to the Tribunal a number of photographs which he claims depict his grandparents being beaten by the authorities and he provided a medical report relating to his grandmother. The Tribunal does not consider these to be of probative value, first, because the Tribunal has no way of determining that the photographs depict his family members and the medical report relates to his grandmother and, secondly, more importantly, because the Tribunal is unable to determine from these photograph and the medical report that the injuries were inflicted by the authorities as a result of the grandparents’ religious beliefs. The Tribunal gives these photographs no weight in support of the applicant’s claim.”

15. The RRT stated that it had no way of determining that the photographs provided by the applicant depicted his family members may well have been correct in circumstances where he had given those photographs back to the applicant. However, the issue before the Court is that whether the further evidence of the identification photographs and passport photographs is evidence of sufficient importance such that the RRT ignored evidence that acquired importance in the exercise of its discretion.

16. In Minister for Immigration and Border Protection v SZSRS [2014] FCA 16, the Full Court of the Federal Court confirmed the statement by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 that merely to ignore relevant evidence does not establish jurisdictional error:

    “58. …As Robertson J made clear in SZRKT (at [97] and [122]) merely to ignore relevant material does not establish jurisdictional error. In relation to similar reasoning by the Federal Magistrate whose judgment was under appeal in SZRKT, Robertson J said:

    122. For these reasons, although I do not agree with the reasoning of the federal magistrate I find that his Honour’s conclusion and orders were correct. In particular, the proposition that it is always a jurisdictional error to ignore “relevant material” is too widely expressed as is the reasoning in [36] of the federal magistrate’s reasons that it is always jurisdictional error unconsciously to ignore corroborative evidence.”

17. In the circumstances it is for the Court to consider the importance of that evidence. In considering that importance, a fair reading of the RRT’s decision record makes clear that the RRT’s adverse credibility findings were based on the applicant’s inconsistent and contradictory evidence that the RRT found to exist in relation to aspects of his claims. The RRT found that the applicant was evasive in his evidence. The RRT provided detailed reasons that led to those conclusions, and it is clear from the RRT’s decision record that its adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave.  Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

18. The RRT stated that whilst a reason why it did not place weight on the photographs was because it could not determine whether the photographs depicted the applicant’s family members, the RRT clearly stated that, “more importantly”, it was because those photographs were not capable of supporting the applicant’s claims of the source of the injuries, the perpetrators of the injuries and the reasons for the injuries. That finding is open to the RRT on the evidence before it and for the reasons it gave.

19. In the circumstances, I am not satisfied that the post-hearing evidence provided by the applicant in the identification photographs of his alleged grandparents-in-law, even if overlooked, was of sufficient importance such that its failure by the RRT to consider that evidence amounts to jurisdictional error.

20. The applicant further asserts in his application that the RRT did not follow procedures, interrupted him when he was being questioned, always stopped him and did not give him enough time to respond to questions before his next question. That allegation remains entirely unparticularised, despite the applicant having had two opportunities to do so. I asked the applicant what was the evidence he relied upon in support of those allegations. The applicant referred only to the exchange below of the transcript:

    “THE INTERPRETER: Then what else do you need?

    TRIBUNAL MEMBER: I don’t need anything, Mr [applicant]. It’s up to you to provide whatever evidence you with to provide me with. I will be making my decision hopefully some time this week. So I will consider anything that I receive.”

21. Plainly, that exchange is not capable of evidencing the applicant’s allegations and complaints in his second ground. The applicant was unable to identify any other part of the transcript in support of those allegations. Whilst I have not read the transcript in detail, there appears to be nothing on the face of the transcript to suggest that the substance of the allegations made by the applicant is made out. Further, there is nothing in either the RRT’s decision record or the transcript to suggest that the applicant did not have a real and fair opportunity to put whatever he wished and to participate in the hearing in a way from which it can be concluded that the hearing was real and fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [24] per Allsop CJ).

22. In the circumstances, the complaints made by the applicant, and further particularised to the Court this morning, are insufficient to demonstrate jurisdictional error on the part of the RRT. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant, explored those claims with him at a hearing and had regard to all material provided in support, subject to the comments I have made in relation to the post-hearing material.

23. The RRT put to the applicant matters of concern they had had about his evidence and noted the applicant’s responses. The RRT also identified with particularity the country information to which it had regard and which it put to the applicant for comment and noted his responses. The RRT made findings on the evidence and material before it that were open to it and for the reasons it gave. The RRT reached conclusions based on the findings it had made and to which it applied the correct law.

24. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

25. The proceeding before this court should be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  17 March 2015