SZUPV v Minister for Immigration & Border Protection

[2014] FCCA 2699

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPV v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2699

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZUPV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1813 of 2014

Judgment of: Judge Emmett

Hearing date: 14 November 2014

Date of Last Submission: 14 November 2014

Delivered at: Sydney

Delivered on: 14 November 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents:  Mr David McLaren (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1813 of 2014

SZUPV

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 r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) for an order requiring the respondent to show cause why the court should not grant the relief sought in the application filed on 1 July 2014. 

2. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

3. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

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

5. On 16 October 2014, the applicant attended a directions hearing before me, again with the assistance of an interpreter.  On that occasion, I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to its jurisdiction.  I also explained to the applicant that the present grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this court.

6. I also explained to the applicant that in circumstances where the grounds of his application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of the Court.  I also provided the applicant with a copy of the relevant costs schedule of this Court and explained to him the consequences that would flow if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

7. The applicant confirmed that he wished to continue with his application for judicial review of the Tribunal’s decision dated 6 June 2014, and was therefore given leave to file and serve an amended application, together with any further evidence and submissions in support by 24 October 2014. The matter was set down for hearing today, pursuant to r.44.12 of the rules of this court, and a copy of those rules was given to the applicant at the directions hearing.

8. The applicant was also provided at the directions hearing with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.  The applicant confirmed to the court this morning that he had not filed any further documents, either in accordance with the directions made by the court on 16 October or otherwise.  The applicant confirmed that he relied on the grounds as reflected in his application filed on 1 July 2014. Those grounds are as follows:

   “1. The Tribunal considers my case with bias and does not consider my full situation.

   2. The Tribunal does not fully consider potential harm I will suffer upon return of China.”

9. The grounds of the application were interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds. 

10. The applicant had nothing to say in relation to ground 2.

11. In relation to ground 1, the applicant’s complaint was to the effect that the Tribunal did not accept what he told him as truthful. 

12. The first respondent filed written submissions on 31 October 2014. Those submissions summarise the background of this matter, including the applicant’s claims, the failure of the applicant to attend an interview with a delegate of the Department, and summarise the Department’s decision. The first respondent’s submissions also address the Tribunal’s review and decision, including its key findings. That summary is as follows:

    “2. The applicant is a citizen of China who arrived in Australia on 21 March 2013 (Court Book “CB” 13) travelling on a subclass 676 Tourist (Short Stay) visa (CB 48).  The applicant departed Australia on 22 March 2013 for New Zealand to go sight-seeing in that country, and re-entered Australia on 24 March 2013 (CB 49).

    3. On 24 April 2013 the applicant applied to the Department for a protection (Class XA) visa (folio 29). In a separate statement of claims (CB 26 to 27) the applicant claimed to fear persecution in China by reason of a dispute with his neighbour over the height of the applicant’s house and the bad feng shui it created for his neighbour.  The neighbour was said to be the deputy director of the taxation bureau in their province, and a powerful man.  The applicant claimed that when he foreshadowed taking the dispute to court, two persons wearing hoods forced their way into his home the next day, whereupon they punched and kicked the applicant and warned him against proceeding to court.

    4. On 16 October 2013 a delegate of the Minister refused to grant the protection visa (CB 48).  The delegate noted the applicant had travelled to New Zealand for sight-seeing immediately after entering Australia, and found that if the applicant had genuinely feared harm in China, he would have immediately approached the authorities on arrival in Australia to seek protection, and not travelled to New Zealand in pursuit of tourism.  The delegate also noted that he did not seek protection in Australia until approximately one month after returning from New Zealand (CB 52).

    5. The delegate also noted that the applicant did not attend the interview to which he was invited, and at which the delegate would have wished to explore with him whether he had left his wife and child in the house next to the neighbour while in Australia.  The delegate found it difficult to accept that the applicant would rather have relocated himself to Australia, expending funds to do so and leaving his family, rather than spend this money lowering the roof of his house (CB 52 to 53).

    6. The delegate noted that the applicant had not raised any Convention ground but that, potentially, threatening to take a senior government official to court might be considered to impute the applicant with a political opinion.  However, the delegate was not satisfied that the applicant was of any adverse interest to the authorities at the time of his departure or that he faced a real chance of persecution for a Convention reason on return (CB 53 to 56).

    7. On 11 November 2013 the applicant applied for a review of the delegate’s decision in the Refugee Review Tribunal (“Tribunal”).

    8. On 3 April 2014 the Tribunal invited the applicant to attend a hearing (CB 70) and, although he did not respond to the invitation, he did appear on 14 May 2014 at the hearing at which he gave evidence and presented arguments with the assistance of a Mandarin interpreter (CB 72 and 82 at [11]).

    The Tribunal's key findings

    9. In its decision record the Tribunal summarised the applicant’s oral evidence in detail (CB 82 to 84 at [12]).  In consideration of this evidence, the Tribunal noted that the applicant’s claims were unsubstantiated from any external source and amounted to simple assertions (CB 84 to 85 at [16]).

    10. The Tribunal was not satisfied that the applicant’s claims were true, for a number of reasons which it set out (CB 84 to 85 at [16]) including:

    (a) It was implausible that the applicant would have left his wife and child in the house and fled to Australia leaving them in danger (CB 84 to 85 [16] at bullet point 1).

    (b) There were other options other than departing China, such as modifying the house, which would have resolved the dispute with the neighbour. The Tribunal member discussed relocation with the applicant, but ultimately did not make a formal finding in this regard (CB 85 [16] at bullet point 2).

    11. The Tribunal was not satisfied that, even if the applicant had a dispute with the neighbour, he was ever threatened or harmed by him, or that he came to Australia for that reason (CB 85 at [17]).

    12. For the same reasons, the Tribunal was also not satisfied that the applicant met the complementary protection criterion (CB 84 at [20]).”

13. I have had regard to a copy of the Tribunal’s decision record, dated 6 June 2014 and annexed to an affidavit of the applicant sworn/affirmed 1 July 2014, filed in support of his initiating application. 

14. The Tribunal’s decision record makes clear that the applicant appeared before the Tribunal on 14 May 2014 to give evidence and present arguments. The applicant had the assistance of a Mandarin interpreter.  The Tribunal summarised the applicant’s evidence before it and noted matters of concern, that it then put to the applicant about his claim and noted the applicant’s responses. In short, the Tribunal was not satisfied that the applicant had provided a credible account of his circumstances in China. 

15. The Tribunal rejected the applicant’s claims to have had a dispute with a neighbour over the height of his house and rejected the applicant’s claim that he was ever threatened or harmed by this neighbour.  The Tribunal concluded that there was not a real chance that the applicant would suffer serious harm for such a reason if he was to return. The Tribunal noted that the applicant did not claim to fear harm in China for any other reason and that no other reason was apparent on the face of the information before the Tribunal. 

16. The Tribunal concluded that the applicant’s fear of persecution was not well-founded, and on that basis the applicant did not meet the protection criteria under either ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).

17. There is nothing on the face of the Tribunal’s decision record to suggest that its findings were not open to it on the evidence and material before it and for the reasons it gave, including the Tribunal’s credibility findings.  Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

18. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

19. In relation to ground 1, to the extent that the applicant asserts that the Tribunal was biased against him, there are no particulars or evidence either oral or written in support of such an allegation.  The mere fact that the Tribunal failed to accept the applicant’s claims is not sufficient to establish bias on the part of the Tribunal.  A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. The mere fact that the Tribunal made adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

20. There is nothing on the face of the Tribunal’s decision record to suggest that it approached its decision-making other than with a mind open to persuasion, nor is there anything to suggest that the Tribunal did not consider the applicant’s “false situation” (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115])..

21. The applicant’s assertion in ground 2 that the Tribunal did not fully consider the potential harm he would suffer upon return to China is not supported by particulars, evidence or oral or written submissions. 

22. It is clear that the applicant’s complaint with the Tribunal’s decision record is more in the nature of a disagreement with the Tribunal’s findings and conclusions.  Such complaints invite merits review, which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

23. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The Tribunal referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the Tribunal on the evidence and material before it and for the reasons it gave.

24. The applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error on the part of the Tribunal.

25. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 1 July 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, 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:  24 November 2014