SZULC v Minister for Immigration

[2015] FCCA 790

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 790

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth), s.424A

SZSNU v Minister for Immigration & Anor [2013] FCCA 1219

Applicant: SZULC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1435 of 2014

Judgment of: Judge Manousaridis

Hearing date: 25 March 2015

Date of Last Submission: 18 March 2015

Delivered at: Sydney

Delivered on: 25 March 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Mr M. Glavac of
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1435 of 2014

SZULC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, who is a national of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. The applicant first set out the alleged facts on which he relied for a protection visa in a statement that formed part of the form of application for a protection visa the applicant submitted to the Minister.  The alleged facts in that statement are as follows.

3. The applicant comes from a farming family that owned land and on which there had been erected a four-storey house.  In May 2007 the town government had issued the applicant’s family with a notice of demolition. The notice required the applicant’ family to move. The applicant’s family was unhappy with the amount of compensation that was offered.

4. The applicant accompanied his father to meetings with government officials in which the applicant’s father claimed the compensation was insufficient.  At one of the meetings, the government official pushed the applicant’s father to the ground and hit the applicant and the applicant went to stop him. 

5. The applicant and his father were then detained for 15 days having been charged with “public service disruption”.  The applicant and his father were released after the applicant’s mother paid a fine of 5,000 Yuan.  The applicant “went to the county to sue for costs or treatment and medicine”, but no one paid any attention to the applicant.  The family also went to the city government, but no one accepted the family’s appeal.

6. The applicant’s family lost their home and then lived in a small house.  In September 2007 the applicant and his father, again, visited the city government. On the way home, the applicant’s mother informed the applicant that the town hall police station had issued a summons to report to the town police station.  That led the applicant to leave China in December 2007.  After he left, the family’s home was “crazily attacked by a local government”.

7. The Tribunal do not accept the applicant’s claims because it found the applicant was not a witness of truth, and that the applicant’s account of the events on which his protection visa was based was false.   The Tribunal based its conclusions on two matters.  The first is there were discrepancies between, on the one hand, the applicant’s account contained in the statement that formed part of the application for protection visa and what the applicant said to the delegate and, on the other, what the applicant said to the Tribunal.  One discrepancy was the applicant’s claiming in his statement that he had been arrested and detained, yet stating to the Tribunal he was never arrested in China.  Another discrepancy was his claiming in his statement that his family home had been demolished, yet his stating to the Tribunal that he had lived at home until September 2007 when the family fled to Fuzhou and that he did not know if the family home was ever demolished. 

8. The second matter on which the Tribunal relied for not accepting the applicant to be a witness of truth was his delay in applying for protection and the absence of what the Tribunal considered to be an adequate explanation for that delay.  The applicant left China in December 2007.  After his arrival in Australia, he undertook studies for a few months, but, in June 2008, he went and lived in Perth.  The applicant did not apply for a protection visa until 2013. The Tribunal found that if the applicant was genuinely in fear of harm in China, he was sufficiently resourced to be able to make inquiries, including through qualified professionals, about his circumstances and how he could stay in Australia and not have to return to China where he claimed a fear the authorities would harm him. 

9. In his application for review, the applicant, who is not legally represented, raises five grounds of review.  The first is “RRT has bias against” him.  Despite being invited to do so, the applicant made no submissions before me in support of or in relation to this ground.  On its face, the applicant alleges actual bias against the Tribunal.  It is well established that any allegation of actual bias must be clearly alleged and proved, and that it is only in rare and extreme cases that a Tribunal’s reasons would disclose any actual bias.  I accept the Minister’s submissions that, in this case, the applicant has not identified any particular material or findings to support the claim that there was any actual bias. 

10. I have also considered whether there is anything in the material before me that may disclose apprehended bias.  I have considered elsewhere the relevant principles that should guide me when determining a claim of apprehended bias where I concluded:[1]

    In light of these authorities, the apprehension of bias principle as it applies to the Tribunal may be stated as follows:  there will be an appearance of bias by the Tribunal if a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review.  While the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Tribunal member, the reasonableness of the apprehension is to be considered in the context of the statutorily mandated functions and procedures of the Tribunal.

    [1] SZSNU v Minister for Immigration & Anor [2013] FCCA 1219 at [30]

11. The applicant has identified nothing that could conceivably be considered as giving rise to a reasonable apprehension of bias.  Having reviewed the Tribunal’s reason for decision, there is nothing in those reasons or in any of the other materials that are before me that could lead me to even consider there is a basis for claiming the Tribunal made its decision in circumstances that may give rise to a reasonable apprehension of bias.

12. The second ground of review is “RRT’s decision is not fair”.  The applicant made no submission in relation to or in support of this ground.  That a decision may be unfair is not a recognisable ground on which a decision can be held to be affected by jurisdictional error.  For that reason, that ground is not made out.

13. The third ground of review is the “RRT didn’t tell me where my evidence is not credible”.  It is not clear what the applicant intends to claim by this ground.  One possible view is that the applicant claims that the Tribunal does not indicate in its reasons for decision why it did not consider the applicant’s evidence to be credible.  If that is the intended ground, it is not made out. 

14. The Tribunal set out in its reasons for decision the reasons it did not accept the applicant’s claims.  One was the presence of inconsistent statements, and the other was delay in applying for a protection visa without any adequate explanation for the delay.  It was reasonably open to the Tribunal to find the applicant made inconsistent statements and that the applicant provided no acceptable explanation for the delay in applying for a protection visa.  And it was reasonably open to the Tribunal to rely on those matters as grounds for not accepting the applicant as a witness of truth. 

15. The second possible interpretation of ground 3 is that the Tribunal did not give the applicant any advance notice that the Tribunal might not accept the applicant to be a credible witness.  If that is the intended ground, it, too, cannot succeed.  The Delegate did not find the applicant to be a satisfactory witness and found the applicant had either embellished or entirely fabricated his material claims.  Those findings of the Delegate were dispositive of the applicant’s claims before the Delegate.  The applicant, therefore, had notice that his credibility would be in issue before the Tribunal. 

16. The Minister, in his written submissions, sees ground 3 potentially as claiming the Tribunal did not comply with s.424A of the Migration Act 1958 (Cth) (Act). I do not interpret the ground in that way. In any event, there is nothing in the material before me that could reasonably suggest that s.424A of the Act was engaged by the Tribunal’s decision not to accept the applicant as a witness of truth.

17. Finally, I turn to ground 4, which states that “RRT choose to believe some of my evidence, but doesn’t believe some other evidence.  It’s not fair”.  The applicant made no submission in relation to this ground. 

18. This ground may be read as claiming the Tribunal acted unreasonably or irrationally.  There is nothing in the material before me that could reasonably suggest the Tribunal’s conclusion concerning the applicant’s credibility or about the disposition of his application as a whole was unreasonable or irrational.  As I have already said, it was reasonably open to the Tribunal to find the applicant made inconsistent statements and that the applicant provided no acceptable explanation for the delay in applying for a protection visa.  And it was reasonably open to the Tribunal to rely on these matters as grounds for not accepting the applicant to be a witness of truth.  

19. For the reasons I have just given, it follows that the applicant has made out none of his grounds of review.  I propose, therefore, to dismiss the application and order that the applicant pay the Minister’s costs. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  1 April 2015