SZULX v Minister for Immigration

[2015] FCCA 1135

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1135

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.1, Part 44

SZTBV v Minister for Immigration & Anor [2014] FCCA 2106
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Multicultural 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
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263, (2004) 144 FCR 1
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99
Minister for Immigration & Ethnic Affairs v Wu Shan  Liang [1996] HCA 6; (1996) 185 CLR 259
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Attorney-General (NSW) v Quin [1990] HCA 21, (1990) 170 CLR 1
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1

Applicant: SZULX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1508 of 2014

Judgment of: Judge Nicholls

Hearing date: 30 March 2015

Date of Last Submission: 30 March 2015

Delivered at: Sydney

Delivered on: 30 March 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

ORDERS

1. The application made on 3 June 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 $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1508 of 2014

SZULX

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 3 June 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence before the Court, is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

2. The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia as a student on 7 August 2007 and applied for a protection visa on 17 July 2013 (CB 1 to CB 31, including attachments). He was assisted in his application by a registered migration agent (CB 23).

3. The applicant’s claims to protection were included in a “Personal Statement” (CB 29 to CB 30). In essence, the applicant’s claims to fear harm in China were said to be because of his religious beliefs and practice. He claimed to have believed in “Jesus since [he] was young and became a Christian later” (CB 29). He claimed that he had been harmed by the Chinese authorities as a result of his Christianity and his worship at an “underground Christian Church”. Further, that he had initially come to Australia after his “father and friends spent all their savings to get a student visa” for him so that he would “avoid more torture and persecution” after he was detained and tortured in 2006 (CB 29 to CB 30).

4. He claimed that he was told by a “church friend” in Australia in June 2013 that what he had “experienced” would allow him to receive refugee protection in Australia (CB 30).

5. The delegate refused the application on 19 December 2013 (CB 54 to CB 64). The delegate was “not satisfied that the applicant [had] provided sufficient information to substantiate his claims” (CB 58.6). This was in circumstances where the applicant did not attend at an interview before the delegate. In all, the delegate did not accept the applicant’s claims for protection (CB 59).

6. The applicant applied for review to the Tribunal on 13 January 2014 (CB 65 to CB 71). He attended a hearing before the Tribunal on 29 April 2014 (CB 81). The Tribunal affirmed the delegate’s decision on 30 April 2014.

7. The Tribunal was not satisfied that the applicant was a “truthful witness or that he [was] a Christian or that he [had] ever been harmed for this reason” ([8] at CB 89). The Tribunal found that the applicant’s own evidence indicated that his “primary reason for coming to Australia was to work and earn money” ([10] at CB 89). Further, that

   
   

   “it was only after some prompting that the applicant appeared to recall that the ‘other reason’ he had come to Australia was due to his problems relating to this religion” ([10] at CB 89)

8. The Tribunal did not accept that applicant’s explanation for the “significant delay” in the lodgement of the application for the visa ([12] at CB 90). The Tribunal found that the delay was “indicative” that the applicant had not come to Australia because he had been “arrested and detained” in China ([12] at CB 89).

9. Further, the Tribunal found that the applicant, on his evidence, had “fabricated some of his claims” ([13] at CB 89). The Tribunal stated that the applicant had “acknowledged that he knew false information had been included in his statement to the Department”, including the claimed detainment and torture in 2006 ([13] at CB 89). The applicant claimed that the migration agent had “thought his claims were ‘too weak’” ([13] at CB 89).

10. The Tribunal found that the applicant’s evidence indicated that he had “extremely limited knowledge of basic aspects of Christianity”, and this was not consistent with the applicant’s claims to have been a Christian and to have believed in Jesus since he was young ([15] at CB 90 to [16] at CB 91).

11. The Tribunal did not accept that the applicant had “attended any Christian churches in Australia or that he had any involvement with Christianity in Australia” ([18] at CB 91). In all, the Tribunal did not accept any of the applicant’s relevant factual claims ([19] at CB 91 to CB 92).

12. The Tribunal was “prepared to accept” the applicant’s claim made at the hearing before it that “his family has had difficulty earning a living in China and a mine that was owned by his grandfather was taken away from them”([22] at CB 92). However, the Tribunal did not accept that this had occurred because of his family’s Christianity, or that these circumstances would result in the applicant suffering serious harm on return. Nor that he would suffer significant harm as a result of these circumstances ([22] at CB 92).

Application Before the Court

1. The application before the Court is in the following terms:

   “1. RRT HAVE DESCRIMINATIO ON ME, FAILED TO TAKE MY EVIDENCE AND MY REAL SITUATION INTO CONSIDERATION.

   2. RRT IS UNFAIR TO ME, THEY DON’T BELIEVE ME.”

   [Errors in the original.]

Before the Court

1. This is the third occasion that the applicant has appeared before this Court. The matter has previously come before the Court at a first Court date on 6 August 2014, and for mention at a callover on 12 November 2014. At the first Court date, I made a number of orders, including orders allowing the applicant to file any amended application and evidence in support by way of affidavit. The applicant has filed nothing beyond his initiating documents.

2. The applicant was on notice at the first Court date that if he did not provide further documents such as an amended application, it was the Minister’s intention to proceed to a show cause hearing under Part 44 of the Federal Circuit Court Rules 2001 (Cth). The Minister made such an application at the Court event on 12 November 2014. I agreed with the Minister that it was the appropriate way to proceed in this matter. The matter was set down for a show cause hearing today.

3. Given that there is a reference to bias on the part of the Tribunal in the applicant’s grounds, I also made an order on 12 November 2014 giving the applicant a further opportunity to file any evidence by way of affidavit on which he sought to rely. As stated earlier, the applicant did not file anything further.

4. The applicant appeared in person today. He was assisted by an interpreter in the Mandarin language. The applicant confirmed that he had filed nothing further in support of the bare grounds of the application to the court.  When the applicant was given the opportunity to speak, he said he had nothing to say.  I should note, as the Minister submitted (see [13] of the Minister’s written submissions), that the grounds of review that have been put forward in this case have been raised in recent times in other judicial review applications before this Court in similar, if not identical, terms.

The Issue Before the Court

1. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration according to law.

2. As I said in SZTBV v Minister for Immigration & Anor [2014] FCCA 2106, if the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. Ground one of the application appears to complain that the Tribunal discriminated against the applicant and that it did not consider his evidence or “real situation”.

2. The first element of this ground appears to make an allegation of bias. The tests for bias and the apprehension of bias are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 (“Jia Legeng”), 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”)). In the case of actual bias, said to arise from prejudgment by the decision maker, such a complaint must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]). On the evidence that is before the Court, and given in particular that the applicant has not taken the opportunity afforded to him to file any evidence, the allegations as to the Tribunal’s predisposition, attitude, or conduct towards the applicant on cannot be, and are not, made out.

3. For the sake of completeness, I also note what the Tribunal said to the applicant in its letter of invitation to the hearing, that it had considered the material before it but was unable to make a favourable decision to the applicant on this information alone. The Tribunal was clearly exercising the statutory obligation available to it pursuant to s.425 of the Act. That is, its obligation to invite the applicant to hearing in circumstances where it could not be satisfied on the material before it that a favourable decision should be made.

4. In the circumstances, this was not an expression of prejudgment as to the applicant’s claims, but rather the Tribunal’s initial consideration of those claims in the context of the obligation imposed on it by s.425 of the Act. Further, given the state of the evidence before the Court, it cannot be said that the well-informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the hearing, and the conduct of the review (Ex parte H).

5. The second element of the ground appears to complain that the Tribunal did not take into account a relevant consideration. It is the case that there can be jurisdictional error if the Tribunal failed to consider the applicant’s claims, expressly made or clearly arising, or the evidence in support of those claims, or where it failed to take into account a relevant consideration (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263, (2004) 144 FCR 1 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99). However, that is not the case here. On a fair, if not plain, reading of the Tribunal’s decision record, the Tribunal did consider all the applicant’s claims to fear harm.

6. On the evidence before the Court, the assertion that the Tribunal failed to take his evidence and his real situation into consideration is really a complaint that the Tribunal did not believe him in the factual assertions that he put to it. In essence, the applicant seeks to challenge the Tribunal’s factual findings, including findings as to his credibility. The applicant simply seeks to express his disagreement with what the Tribunal has done. It is the case that the Court cannot intervene to substitute its own findings of fact for those of the Tribunal. This is a request for the Court to indulge in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

7. As I stated earlier, when given the opportunity to address the Court, the applicant stated that he had nothing to say. Nor can I see anything on the material before the Court to indicate that the Tribunal did not consider all the applicant’s claims. In all, ground one does not raise an arguable case for the relief sought.

8. Ground two of the application appears to make another allegation of bias, with the use of the word “unfair”. It may also have been an attempt to complain that the Tribunal did not comply with its procedural fairness obligations.

9. I rely on what I said earlier in relation to any allegation of bias against the Tribunal. Further, in relation to the statement that the Tribunal did not believe him, it is the case that the Tribunal is not obliged to believe anything, or even everything, that an applicant puts to it (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). The Tribunal’s task in the proper exercise of its jurisdiction, is to weigh the evidence put before it. It is for the Tribunal to make findings of fact in relation to the applicant’s claims, including findings as to whether the applicant has been truthful or not. Where the Tribunal makes findings of fact which are reasonably open to it on the material before it, and for which it gives reasons probative of the evidence and the material before it, then no legal error can be said to arise in those circumstances.

10. I also note that in relation to a possible complaint in the grounds of the application of a breach of procedural fairness obligations, the Tribunal is required to provide the applicant with a fair process. However, it is not required to make the decision that the applicant considers is the preferable decision (Attorney-General (NSW) v Quin (1990) 170 CLR 1). Further, in the absence of particulars the applicant has not attempted to make out any such case before the Court (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1). In all, ground two does not raise an arguable case for the relief sought.

Conclusion

1. In all, the grounds of the application do not raise an arguable case for the relief sought. It is the case that the rules of this Court provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicant is confined to the grounds mentioned in the application to the Court (r.44.13(1) of the FCC Rules). The applicant did not raise anything today that would have made it appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules.

2. In the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 5 May 2015