SZUEV v Minister for Immigration

[2015] FCCA 525

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUEV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 525

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision to refuse to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SZFDE & Anor (2006) 154 FCR 365
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
SZEIV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs& Anor [2006] FCA 1798
SZUNZ v Minister for Immigration & Anor [2014] FCCA 2256

Applicant: SZUEV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1021 of 2014

Judgment of: Judge Lloyd-Jones

Hearing dates: 9 December 2014, 11 February 2015

Delivered at: Sydney

Delivered on: 18 March 2015

REPRESENTATION

The Applicant: The Applicant appeared in person with a Mandarin interpreter

Counsel for the First Respondent: Ms B Tronson

Solicitors for the First Respondent: DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice

ORDERS

1. The application filed on 14 April 2014 be dismissed.

2. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1021 of 2014

SZUEV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in the Federal Circuit Court on 14 April 2014 under the Migration Act 1958 (Cth) (the “Migration Act”), seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa. The Minister’s delegate refused to grant the applicant a Protection visa on the basis that he was not a person to whom Australia had protection obligations under s.36 of the Migration Act.

2. The solicitors for the Minister filed a folder on 2 July 2014 which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representatives.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a citizen of the People’s Republic of China (CB 1, 93 at [2]). He arrived in Australia in 2007 as a student (CB 93 at [2]).

3. He commenced employment in Australia in 2009 (CB 3 at [4]).  During July 2009 he had a serious work injury, out of which arose a worker’s compensation claim (which has been dealt with) and a motor accident compensation claim (which was ongoing at the time of the Tribunal’s decision) (CB 3 at [4]-[5]; CB 94 at [13]).  In May 2012, the applicant’s Student visa was cancelled (CB 4 at [8]).  He claimed his injury affected his ability to study, causing the low attendance rate which was the reason for the cancellation of his Student visa (CB 3-4 at [6]-[8]).

4. On 16 December 2013, after unsuccessfully seeking both review in the Migration Review Tribunal of the decision to cancel his Student visa and Ministerial intervention (CB 3-5; CB 94 at [13]), the applicant applied for a Protection visa (CB 6-34).  The reason he gave for that application was his fear that he would be harmed by creditors and debt collectors, including his father’s workers and his uncle (CB 25).  He further claimed that “[t]he authorities will deny the liability” and that, if he “pursue[d] the matter and call[ed] for the public support … [he would] be harmed and mistreated” (CB 25).

5. On 23 January 2014, a delegate of the Minister refused the applicant’s application for a Protection visa (CB 48-65).

6. On 25 January 2014, the applicant made an application to the Tribunal for review of the delegate’s decision (CB 66-72).

7. On 11 March 2014, the Tribunal conducted a hearing of the applicant’s application for review (CB 85-87; CB 95 at [17]).

8. The Tribunal accepted (albeit “[n]ot without some doubt”) some of the underlying evidence given by the applicant as to his family’s debts, his father’s bankruptcy and that his elder brother is repaying the debts from his earnings in South Africa (CB 96 at [29]).

9. However, the Tribunal rejected the applicant’s evidence as to his fear of harm, including the applicant’s evidence that his mother had only been able to avoid harm “because she is in hiding/avoiding going out on the streets” (CB 96-97 at [30]).

10. Further, the applicant gave evidence to the Tribunal that he did not want to return to China because his motor vehicle accident case had not been finalised (CB 95 at [23]). The Tribunal accepted this evidence as truthful and, by implication, as the real reason the applicant did not wish to return (CB 97 at [31]). In this regard, the Tribunal also took into account the applicant’s delay in applying for a Protection visa, and the timing of that application (CB 97 at [32]).

11. At the hearing before the Tribunal, the applicant also raised a claim following the possible disclosure of his name on the website of the Department of Immigration and Border Protection (CB 97-98 at [34]). He claimed that, as a result of this, he feared he was “in danger from authorities in China because the government will know about his protection visa application in Australia” (CB 98 at [34]).

12. For the purposes of its decision, the Tribunal accepted the applicant’s “name was on the list and could have been seen by Chinese authorities … and that this would have revealed his protection visa claim in 2013” (CB 98 at [35]).

13. However, the Tribunal found there was no risk of harm, in the relevant senses, because (CB 98 at [35]):

    35. …In the case of this applicant the Tribunal does not accept that Chinese authorities including local Chinese authorities have, or will have an adverse interest in the applicant if he returns to his country from Australia.

14. For all of these reasons, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a Protection visa (CB 89-99).

Judicial review proceedings

1. On 14 April 2014, the applicant applied to the Court for judicial review of the Tribunal’s decision.

2. The grounds of that application are:

   1. The decision of the Tribunal:

   a) is affected by the procedural unfairness.

   b) failed to take into account relevant considerations.

Minister’s Submissions

1. The Minister submits that the applicant cannot succeed on either ground.

Ground 1(a) – procedural fairness

1. Division 4 of Part 7 of the Migration Act is an exhaustive statement of the requirements of natural justice: s.422B(1).

2. The effect of that provision and s.474 of the Migration Act is that:

   a)a breach of natural justice must amount to jurisdictional error in order for an application for judicial review to be successful; and

   b)this is only the case where there is a significant breach of one of the provisions of Division 4 of Part 7.

3. The applicant has identified no such breach, and none is apparent.  The Minister submits Ground 1(a) must fail.

Ground 1(b) – relevant considerations

1. The Minister contends the applicant has not identified the considerations which he says were relevant and which the Tribunal did not take into account.

2. The Tribunal considered both the test pursuant to s.36(2)(a) of the Migration Act, being whether the applicant was a person to whom Australia owes protection obligations under the Refugees Convention, and the test pursuant to s.36(2)(aa) of the Migration Act, being the complementary protection obligations.

3. The Tribunal gave consideration to the integers of the applicant’s claim in relation to his father’s debts. What was fatal to the applicant’s claim in this regard was that the Tribunal did not believe the applicant in fact feared harm as he claimed (CB 97 at [32]-[33]).  In addition to the implausibility of the applicant’s evidence to this effect, the applicant had given evidence that the reason he did not want to return to China was that his motor vehicle accident case was not finalised (CB 97 at [31]).

4. The Minister submits that the Tribunal was entitled to make those findings and its reasoning reveals no failure to take any relevant considerations into account.

5. The Tribunal also considered the applicant’s claim in relation to the possible disclosure of his name on the Department’s website (CB 97-98 at [34]-[35]) and made the finding set out at [15] above.

6. The applicant’s claim was that the authorities in China would “know about his protection visa application in Australia” (CB 98 at [31]).  The applicant did not otherwise articulate his protection claim on the basis of the data release.

7. As the Court has held, “[t]he mere existence of the data release, without more, falls far short of [the] requirement” that it is a “consideration which bear[s] upon the material elements” of the applicant’s claim: SZUNZ v Minister for Immigration & Anor [2014] FCCA 2256 at [34], citing Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99 at [122].

8. The Tribunal’s consideration of the applicant’s claim in relation to the data release is best characterised as a finding that, because the Tribunal was not satisfied that the Chinese authorities had an adverse interest in the applicant, the Tribunal was also not satisfied that the data release would result in either a real chance of serious harm or a real risk of significant harm for the applicant if he were to return to China (CB 98 at [35]).

9. Again, the Tribunal was entitled to make those findings and its reasoning reveals no failure to take any relevant considerations into account.  Accordingly, the Minister submits that Ground 1(b) must fail.

Consideration

1. At the time the judicial review application was filed, the applicant was located at Yongah Hill Immigration Detention Centre, Western Australia and the application was signed and dated by the applicant himself.  On 12 June 2014, the Court was contacted by the Minister’s representative and a solicitor purportedly acting for the applicant.  Draft consent orders were provided in that communication which set out a procedural timetable including listing the matter for final hearing.  The consent orders were signed by a solicitor from Wang & Associates, purporting to act on behalf of the applicant, and the Minister’s representative.  Orders were made for filing and service of an amended application, any affidavit evidence and submissions for each party respectively.  The matter was listed for hearing in Sydney on 9 December 2014 at 10.15am.  At some stage the applicant was transferred from Yongah Hill to Villawood Immigration Detention Centre (“Villawood IDC”) in Sydney.

2. On 9 December 2014, the applicant was transported from Villawood IDC in Sydney to appear at the hearing.  At the hearing the applicant was self-represented and being assisted by a Mandarin interpreter.   It became immediately apparent at the hearing that the applicant had not previously been made aware of the orders made on 12 June 2014 or the purpose of the hearing on 9 December 2014.  The Court asked the applicant if he was aware why he was at Court.  The applicant’s response was that he was not aware why he was before the Court.  He stated that his lawyer had not informed him of the purpose of the hearing before the Court.  It also became apparent that the applicant had not received a copy of the Court Book prior to his arrival to Court.  After a short adjournment counsel for the Minister, Ms Tronson, was able to assist the Court in establishing that representations had been made that a law firm, Wang & Associates, were representing the applicant at the time the consent orders were made, however, they were never formally put on the record.  The Minister’s solicitors served the Court Book on the law firm on 2 July 2014 and about a month before the hearing Wang & Associates instructed the Minister’s solicitors that they would not be acting on behalf of the applicant.      

3. An adjournment of proceedings was consented to by the parties and a new set of procedural orders were made, granting leave to the applicant to file an amended application and any affidavit evidence by 9 January 2015, and any written submissions by 28 January 2015.  A copy of the Court Book was provided to the applicant and the resumed hearing was listed to be heard on 11 February 2015 at 2.15pm.

4. The Court has before it an application that contains two unparticularised grounds.  Despite having the opportunity to file and serve an amended application and any additional affidavit evidence the applicant did not file any further documents.  Ground 1(a) alleges the decision of the Tribunal is affected by procedural unfairness.  At the hearing the applicant did not identify any breach of natural justice.  Her Honour Bennett J in SZEIV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs& Anor [2006] FCA 1798 stated in relation to procedural fairness at [30]:

   30. The absence of a finding of a relevant fact may amount to jurisdictional error (NABE at [55]). A failure to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (NABE at [55] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at[24] and [95]). The task of the Tribunal and the way in which it discharges that function flow from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word “review” (NABE at [56]). That includes a requirement to consider all of the claims of the applicants (NABE at [57] approving Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration and Multicultural Affairs(2001) 194 ALR 244 at [42]).

5. In Minister for Immigration and Multicultural Affairs v SZFDE & Anor (2006) 154 FCR 365 his Honour French J (as he was then) stated in regards to procedural fairness at [76]:

   76.Procedural fairness lies at the heart of administrative justice. It is a long standing requirement of the common law and reflects, in this country as in other common law jurisdictions, ordinary concepts of justice. It is often regarded as an implication, albeit judge-made, in the grant of statutory power to make decisions affecting the interests of individuals, unless excluded expressly or by contrary implication. Where the requirement applies its breach can amount to jurisdictional error. A decision affected by such error is liable to be quashed by a writ of certiorari.

6. Division 3 of Part 7 of the Migration Act and is entitled ‘Exercise of Refugee Review Tribunal’s Powers’. Section 420 prescribes the way in which the Tribunal is to operate and states:

   (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

   (2) The Tribunal, in reviewing a decision: 

   (a) is not bound by technicalities, legal forms or rules of evidence; and 
   (b) must act according to substantial justice and the merits of the case.

7. Division 4 of Part 7 of the Migration relates to the conduct of reviews by the Tribunal, including in relation to natural justice. Section 422B provides:

   Exhaustive statement of natural justice hearing rule.

   (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
   
   (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

8. The applicant has not identified any breach of procedural fairness in the Tribunal’s decision. 

9. Ground 1(a) contends that the applicant was denied procedural fairness. It is apparent from the evidence before the Court that the Tribunal complied with its statutory obligations as set out in s.425 of the Migration Act by validly inviting the applicant to the hearing on 11 March 2014, which he attended and gave evidence at in support of his claims (CB 81-87; CB 95 at [17]-[18]). At CB 85-87 is the “RRT Hearing Record” which indicates that the applicant appeared before the Tribunal with the assistance of a Mandarin interpreter.  The RRT Hearing Record also indicates that the hearing lasted for more two hours (CB 85-87) Further, the Tribunal’s decision also indicates that it discussed with the applicant at the hearing the determinative issues on the review, namely that his evidence (CB 96 at [29], [30]) was not accepted nor consistent. Further, the applicant did not provide any new evidence or written submissions to the Tribunal (CB 85 and CB 95 at [16]). There is no basis to find that the Tribunal has breached its obligations under s.425 of the Migration Act by failing to ensure that the applicant was on notice of the determinative issues on the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152.

10. The Tribunal is not required to accept uncritically any and all claims made by the applicant:  Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559. The Tribunal was open to make the findings it did on the evidence it had before it: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. There is nothing else apparent from the evidence before the Court that is indicative of a failure to afford procedural fairness to the applicant by the Tribunal. Accordingly, Ground 1(a) cannot be sustained.

11. Ground 1(b) raises an unparticularised claim that the Tribunal failed to take into account relevant considerations.

12. On a fair reading of the Decision Record, the Tribunal thoroughly considered all of the claims advanced by the applicant, made detailed findings in respect of them, then assessed those findings by using the correct tests against the criteria in ss.36(2)(a) and 36(2)(aa) of the Migration Act. The findings made by the Tribunal were open to it on the material and evidence before it and for the reasons it gave. It cannot be said there has been a failure by the Tribunal to take into account a relevant consideration in respect of the applicant’s claims before it.

13. The applicant has not raised the complementary protection argument either in written or oral submissions; nevertheless, the Court shall consider it below.  Since the Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act in March 2012, the Tribunal has been required to consider whether Australia has protection obligations to applicants for Protection visas under the complementary protection criterion. The applicant and those, if any, who are assisting him with his application in this Court are unlikely to be aware of the existence of this obligation in the Migration Act, but it was known to the Tribunal and the Tribunal has addressed this issue.

1. A convenient summary of these provisions are contained in the then Bill’s Second Reading Speech which occurred on 24 February 2011. The new provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and other refugee conventions and is summarised as follows:

   Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

   - the arbitrarily deprivation of life;

   - having the death penalty carried out;

   - being subjected to torture;

   -being subjected to cruel or inhuman treatment or punishment; or

   - being subjected to degrading treatment or punishment.

   (Hansard, 24 February 2011)

2. The claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal (see CB 98-99 at [39], [41]-[42]) on the evidence before it that there is not a real chance the applicant will face Convention-based persecution. The Tribunal Member noted the alternative criterion for complementary protection.  The Tribunal found that on the evidence before it was not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm under the complementary protection criterion.  On a fair reading no error is apparent in this respect.

3. At the hearing before the Court the applicant raised the issue of receiving a letter from the Department concerning the publication of his name on the Departmental website.  The applicant claimed to have received this letter which was issued in March 2014 after the delegate had handed down its decision on 23 January 2014.  This claim was brought to the Tribunal’s attention at the Tribunal hearing and the Tribunal noted the following at [34]-[35]:

   34.  Towards the end of the Tribunal hearing the applicant told the Tribunal that he also fears returning to his country after reports recently in the Australian press that thousands of names of those in immigration detention in Australia had been published on the department’s website.  He does not know whether his name was published or not but he believes that his name could have been published given the large number of names included in the list.  He said if that if this is so he is in danger from authorities in China because the government will know about his protection visa application in Australia.

   35.  The Tribunal accepts that recently the names of many immigration detainees were published/ available on the department’s website as the applicant claims and that this was reported upon by various Australian media sources.  While the Tribunal has no information available to it to enable it to make a finding about whether the applicant’s details were published on the department’s website as he claims, for the purposes of this decision the Tribunal accepts that his name was on the list and could have been seen by Chinese authorities as the applicant claims and that this would have revealed his protection visa claim in 2013.  Given his claims however, including his claim about local authorities and the corruption of Chinese authorities generally, the Tribunal does not accept that there is a real chance or real risk that this applicant will face serious or significant harm in his country on return there for this reason.  In the case of this applicant the Tribunal does not accept that Chinese authorities including local Chinese authorities have, or will have an adverse interest in the applicant if he returns to his country from Australia.

   (CB 97-98)

4. As the extracted passage from the Tribunal decision above indicates, towards the end of the Tribunal hearing the applicant raised the issue of his name being published on the Department’s website as an immigration detainee.  However, the applicant made no formal reference to the publication in the grounds of review, nor was the Department letter tendered in evidence.  A large number of Departmental letters were issued and relevantly state that the information made publically available was the applicant’s name, date of birth, nationality, gender, details about their detention and if they had any other family members on detention.  There is no attempt by the applicant to contend that the data released became an integer for his claim to fear harm from Chinese authorities.

5. If the claimed disclosure was somehow relevant as evidence, that would not be enough.  In Minister for Immigration and Citizenship v SZRKT & Anor (supra) at [122] his Honour Robertson J noted the proposition that it is always a jurisdictional error to ignore “relevant material” is too widely expressed because unconsciously corroborative evidence may be ignored. The applicant must demonstrate that the evidence raised “considerations which bear upon the material element which must be satisfied, or rejected when dealing with an applicant’s claim”. The mere claim by the applicant of such a release without more evidence falls far short of this requirement, having regard to the applicant’s claims. If the claimed released information raised some other unarticulated claim that needed to be considered in the way identified in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [58]. It would be a matter of pure speculation as to why the disclosure of the applicant’s personal information might create a real risk that he will be harmed by the civil authorities in Fujian Province, Fuqing City, given his absence from that area since May 2007 when he arrived in Australia as a student and given he did not seek to lodge a Protection visa application until 16 December 2013.

6. Further, the Minister’s submissions, reproduced above at [23]-[31] accurately address this ground. Accordingly, Ground 1(b) must also fail.

Conclusion

1. None of the grounds of review contained in the application nor any oral submission made by the applicant at the hearing reveal any error of law on the part of the Tribunal.  Further, on a fair reading of the Tribunal’s Decision Record, no error is apparent. Consequently, the application should be dismissed and the applicant ordered to pay the Minister’s costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  18 March 2015