SZUOZ v Minister for Immigration
[2016] FCCA 990
•1 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUOZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 990 |
| Catchwords: MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 424A, 426A, 474 Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 |
| Applicant: | SZUOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1747 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 1 April 2016 |
| Date of Last Submission: | 1 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr D. Hughes |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Pursuant to rule 44.12 of the Court’s Rules, the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.00.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1747 of 2014
| SZUOZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who arrived in Australia as the holder of a student visa on 10 June 2012. On 26 April 2013 he lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that he feared persecution in China because he had contravened China’s family planning laws. On 13 November 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.
At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.
For the reasons which follow, the application will be dismissed.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. As summarised by the Tribunal, the applicant relevantly made the following claims in his protection visa application and in a statement attached to that application:
a)his wife gave birth to two daughters, one in November 2006 and another in March 2010;
b)his wife became pregnant in December 2011 and an ultrasound indicated that the baby was a boy. Fearing that she would be subjected to a forcible abortion, his wife went to live with her parents one-hundred kilometres from their home. Family planning officials subsequently found his wife and forced her to terminate the pregnancy in March 2012;
c)under the family planning policy he was also supposed to undergo a sterilisation procedure. He decided that his wife and daughters would go and live with his wife’s family while he went overseas until the family planning laws changed; and
d)he feared that he would be subjected to a forcible sterilisation if he returned to China.
The applicant made the following additional claims at a Tribunal hearing on 18 March 2014:
a)his daughters were born in October 2006 and September 2010. The specific dates in his application may have been incorrectly recorded because of differences between the solar and lunar calendars. People in China had only recently started using the lunar calendar which caused a lot of confusion; and
b)after the birth of his second child he was told that he needed to have a sterilisation procedure but when he did not have one no action was taken against him. Further, no sterilisation procedure was imposed on his wife probably, he said, because he had left China and the authorities had not been worried that she would fall pregnant again.
On 23 April 2014 the Tribunal wrote to the applicant advising him that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited him to attend a further hearing session on 23 May 2014. On 29 April 2014 the Tribunal wrote a further letter to the applicant to advise him of information which had come to its attention following its first hearing and which it considered could be the reason, or part of the reason, for affirming the delegate’s decision. As set out in the Tribunal’s letter, that information was that in his student visa application made in 2012 the applicant had declared that his family was limited to him and his wife and in response to a question which asked if he had dependent children he had responded “not applicable”. The applicant had also provided a family composition form, in which he indicated that he and his wife were the only members of his family, and a copy of his household registration card (hukuo) which listed his household as only him and his wife. The Tribunal noted that that information was inconsistent with the applicant’s claims made in relation to his protection visa application that he had two dependent children. It noted that that information might lead it to find that he had not provided credible evidence and to not accept his claims that he had two children, that his wife had been subjected to a forcible termination of pregnancy or that he and his wife had been notified that they would both be sterilised. The Tribunal invited the applicant to comment on, or respond to, that information at an interview to be held at the commencement of his further Tribunal hearing on 23 May 2014. The applicant was advised in those letters that if he did not attend the interview and the further hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice.
The applicant did not respond to the invitation to attend an interview or the invitation to attend a further hearing and he did not appear before the Tribunal on 23 May 2014 at the time he was scheduled to appear. In those circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.
The Tribunal did not find the applicant to have been a reliable or credible witness. In that regard, it noted the inconsistent evidence he had given in relation to the dates he claimed his daughters had been born. The Tribunal also referred to the applicant’s student visa application, and the information he had provided in support of it, which indicated that he and his wife were the only members of his family unit, which contradicted his claim that he had two children in China, a claim which underpinned his claims to fear persecution there. The Tribunal noted that it had written to the applicant setting out the information in his student visa application and explaining its concerns arising out of that information and had also written to him inviting him to attend an interview and a further hearing to discuss that information. It noted that if the applicant had attended the interview and further hearing it would have had an opportunity to discuss the information with him, to have received his comments on and responses to the information and to have tested the veracity of his responses and comments but that it had been unable to do so because he had failed to attend the interview and further hearing.
On the evidence before it, the Tribunal did not accept that the applicant had two children in China. It therefore did not accept that his wife had been subjected to a forcible termination of her pregnancy in March 2012 or that he and his wife were at risk of being forced to undergo sterilisation procedures. The Tribunal concluded that the applicant would not face any material risk of serious or significant harm if he returned to China.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.Jurisdictional error has bee [sic] made. The Tribunal does not accept my claims because they rely on incorrect evidence and make wrong conclusion.
In order to flee China, I sought help from an agent, who arranged my application for visa to Australia. I followed their instructions to provide relevant materials. But I did not realise they provided incorrect information to immigration office such as my Hukou, which lead to wrong understanding of my family composition by the Tribunal.
2.The Tribunal considers my case with bias and does not consider the evidence before them properly, which leads to the decision which is not in my favour.
The grounds of the application principally debate the outcome of the Tribunal’s review and argue that the Tribunal should have reached a different conclusion. However, the Court cannot reconsider the merits of a visa application or substitute its views on such matters for those of the Tribunal. To the extent that those allegations seek merits review, they do not raise an arguable case of jurisdictional error on the Tribunal’s part.
The second ground of the application also alleged bias against the Tribunal, which was said to be manifested by a failure to consider the evidence before it or to find for the applicant. The applicant did not further particularise or support with evidence that element of this allegation and so it cannot be made out. An allegation of bias is a matter of great seriousness and needs to be clearly alleged and distinctly proved. In this case, it is apparent from the Tribunal’s decision record, whose accuracy was not challenged, that the Tribunal undertook a thorough consideration of the comparatively thin material advanced by the applicant and applied a process of reasoning which was unexceptionable.
In the latter connection, the applicant submitted at the hearing of this application that the Tribunal had formed a prejudice against him because of the contradictory evidence before it concerning whether he was a father. However, rather than being evidence of prejudice, the Tribunal’s concerns on that issue were nothing more than natural, logically arising out of the existence of evidence of such a contradictory nature on an issue of central relevance to its review. Those concerns were not, in my view, evidence of bias.
For these reasons, even fortified by the applicant’s submissions at the hearing of this application, the allegation of bias is not arguable.
In discharge of his model litigant obligations, the Minister also raised the possibility that the Tribunal’s decision to proceed to a decision after the applicant’s failure to attend the second hearing session or the s.424A interview manifested unreasonableness of a quality which affected its ultimate decision on the review with jurisdictional error. I am not of the view that it did. The applicant had failed to attend an interview with the delegate, a fact which the applicant explained at the Tribunal hearing and which the Tribunal recorded in para.27 of its reasons in dryly sceptical terms. Further, the applicant was invited not once but twice to attend the Tribunal on 23 May 2014. It is probable that the applicant received at least one of those letters even if he did not receive both. They were sent by post to an address at which he had previously been contacted. The Tribunal would have been aware of these matters. The possibility that the Tribunal’s discretion to proceed to a decision might have miscarried is, in my view, so slight that it should not affect the outcome which flows from my findings that the applicant’s allegations are not arguable.
Conclusion
I am not satisfied that the applicant’s application has raised an arguable case for the relief claimed.
Consequently, it will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 29 April 2016