SZUUF v Minister for Immigration & Border Protection

[2015] FCCA 1886

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUF v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1886

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.424AA
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
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
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
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
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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: SZUUF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1564 of 2015

Judgment of: Judge Emmett

Hearing date: 9 July 2015

Date of Last Submission: 9 July 2015

Delivered at: Sydney

Delivered on: 9 July 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Ms Hervee Dejean
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1564 of 2015

SZUUF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 9 June 2015, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal, dated 19 May 2015 and handed down on 20 May 2015 (“the RRT”).

2. On 1 July 2015, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT.

3. I further explained to the applicant that under the Rules of this Court, where the application does not disclose an arguable case for the relief sought, the application may be dismissed forthwith.

4. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remained unpaid, it will be a debt owed 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.

5. The applicant confirmed that he wished to continue with his application for judicial review. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support of his application, by 7 July 2015.

6. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

7. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant.

8. 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.”

9. 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.”

10. The first respondent, in written submissions, summarised the background of the applicant’s claims and the RRT’s decision, as follows:

    “Background

    3.   The applicant is a citizen of China who arrived in Australia on a visitor visa on 27 May 2013.  He applied for the visa on 19 August 2013: Relevant Documents (RD) pp 1-36. A delegate refused the visa on 20 December 2013: RD 43-53. The applicant lodged an application for review with the Tribunal on 17 January 2014 and attended a hearing on 19 May 2014: RD 54-69, 78.

    4.   The applicant claimed:

    4.1    In writing, that he and his wife were living in China and have been Falun Gong practitioners since about July 2010, as that practice had miraculously cured his wife’s kidney cancer. They continued to practise when the applicant worked and they both lived in Macau from 2011

    4.2    In May 2013, they decided to visit Australia. Before leaving, they returned to China, put up some Falun Gong posters and his wife was captured by security guards. The applicant gathered his belongings and left for Australia. The wife’s whereabouts is unknown and the police went to his house and took books, money, his computer and a printer. The police informed the neighbours that the applicant deserved punishment and they were told to inform the police if they saw him

    4.3    At hearing, the applicant confirmed that the above events and history were the only reasons for which he feared persecution in China. By the time of the hearing, it was asserted that the wife had been detained, but since released from detention, was in hiding and was in telephone contact with the applicant

    4.4    In response to specific questions from the Tribunal, the applicant stated that he has only ever performed exercise ‘No 1’ daily at home, and has never performed the other four exercises. He also accepted that he had not read two particular Falun Gong books

    4.5    The applicant believes that he will be arrested if he returns to China by reason of his practice of Falun Gong and putting up posters in 2013.

    5.   On 20 June 2014, the Tribunal affirmed the decision of the delegate.  The applicant sought review of that decision in the Federal Circuit Court, and on 19 February 2015, that decision was set aside by consent.

    6.   On 12 May 2015, the applicant appeared at a hearing before the Tribunal in the remitted proceedings.   He provided no further documents to the Tribunal.  The applicant made the same claims in the remitted proceedings, although various inconsistencies about claims made in writing, given orally to the first Tribunal and those made to the current Tribunal were put to the applicant for comment: see for example RD 119 at [9], RD 122-123 at [23], RD 124 at [28]-[34], RD 127 at [45].

    Tribunal Decision

    7.   On 19 May 2015, the Tribunal affirmed the decision of the delegate. The Tribunal found as follows:

    7.1    The applicant’s evidence about how he and his wife commenced practising Falun Gong was inconsistent.  The evidence he gave at hearing was materially different to the statement he had given to the Department.  The applicant was unable to adequately explain these inconsistencies, and the Tribunal concluded that he would have been able to do so if his claims were true: RD 122-123 at [23]

    7.2 The Tribunal had concerns about the applicant’s claimed practice of Falun Gong, which involved repetition of phrases and obtaining miracles, and found that it was not consistent with practice of the religion. His changing evidence between that given to the delegate, the first Tribunal and the current Tribunal (put to him pursuant to s 424AA of the Migration Act 1958 – the Act) further undermined his credibility: RD 124 at [27]-[28]

    7.3 The applicant initially could not name the central Falun Gong text. He told the first Tribunal that he had never read any Falun Gong books, but to the second Tribunal he said that he read the central Falun Gong text every day while in China. His evidence about participation in events in Australia and his understanding of the practices was also inconsistent. This changing evidence (put to him pursuant to s 424AA of the Act) also undermined his credibility: RD 125 at [31]-[38]

    7.4    The Tribunal disbelieved the applicant’s claims to practise Falun Gong and outlined detailed reasons for this disbelief, including lack of demonstrated knowledge of Falun Gong, inconsistent evidence generally, delay in claiming protection in Australia, the fact that he left his sick wife behind in China to be caught by the authorities (his evidence was that he ‘did not worry about his wife’), the failure to mention that he practises Falun Gong in Australia, and his preparedness to give false information to the authorities: RD 126 at [39]-[46]

    7.5    The Tribunal concluded that the applicant and his wife were not Falun Gong practitioners, had not put up posters or spread the word about Falun Gong and had not come to the adverse attention of the authorities.  The authorities would not now have any adverse interest in the applicant.  Further, the applicant has not practised Falun Gong in Australia and has never had any interest in the practice.  The applicant was not at risk of persecution: RD 128, [52]-[56]

    7.6    In relation to complementary protection, for reasons previously given, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm because he learned a few concepts of Falun Gong in Australia (or for any other reason): RD 129 at [57]-[63].”

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

12. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise.

13. The applicant’s application for judicial review, filed on 10 June 2015, stated the grounds of review as follows:

    “1. RRT was biased during the hearing, the country information that it referenced did not conform to the reality. Falun Gong is a physical and mental cultivation based on the principal of truth, compassion and forbearance. According to '2011 Amnesty International (China Chapter)', '201 0 human rights report' by the State Department,' Refugee identification and settlement policy' published in 10 June 2009 by the British Ministry of the interior and the most authoritative reports about human rights can confirmed that persecution by Chinese government is still in process. The attitude of government did not change. However, RRT undervalued the seriousness that I will be persecuted by Chinese government.

    2. RRT did not consider the factor that I felt nervous during the interview. Also, many events occurred a long time ago. It was very reasonable that I could not remember the details and appear vague memory problems. RRT ignored that both the hearing and interview were stressful situations. Also due to memory loss, I could not provide evidence for my Falun Gong knowledge.

    3. The Tribunal unfairly reviewed my case. I have a genuine fear of harm if I return to China. I have been truthful in my account to the Department and to the Tribunal. I am a Falun Gong practitioner and therefore there is high chance of harm if I return to China.”

    (Errors in original.)

14. 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.

15. The applicant declined to make any submission in support of any of the grounds. 

16. Ground 1 asserts that the RRT was biased and failed to consider particular country information. 

17. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes 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]).

18. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

19. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (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]).

20. I accept the first respondent’s submission that nothing in the RRT’s reasons or the conduct of its case would cause a hypothetical fair-minded layperson, properly informed as to the nature of the proceeding, to reasonably apprehend that the RRT might not bring an impartial and unprejudiced mind to its task or that its mind was not open to persuasion. 

21. The applicant has not identified any specific aspect of the RRT’s conduct which supports an allegation of bias other than the applicant’s assertion that the RRT did not refer to particular country information. 

22. To the extent that the RRT did not refer to country information, in light of the RRT’s adverse findings in respect of the applicant as to its rejection of the applicant’s claim to be a Falun Gong practitioner, there was no obligation on the part of the RRT to refer to country information relating to the persecution of Falun Gong practitioners. 

23. The RRT’s decision record discloses that at the hearing, it explored the applicant’s claims to be a Falun Gong practitioner and past events in China.  The RRT’s decision record discloses that it put to the applicant various matters of concern that it had about the applicant’s evidence and noted the applicant’s responses. 

24. In particular, the RRT was not persuaded by the applicant’s explanation for various inconsistencies that it found to exist in the applicant’s evidence, including inconsistencies in evidence given to a delegate of the first respondent and to the RRT. 

25. The RRT noted that, pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Act”), it put to the applicant those aspects of his evidence that caused it particular concern. 

26. There is nothing to indicate that the RRT did not fully comply with the requirements of s.424AA of the Act. The applicant has not sought to prove non-compliance by tendering a transcript of the RRT hearing. In the absence of such evidence, the Court should infer that the RRT did comply with its obligations (see SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J).

27. The RRT also found the applicant’s credibility to be undermined as a result of the applicant’s changing evidence. The RRT also expressed some concern about the applicant’s delay in claiming protection; having arrived in Australia in May 2013, the applicant did not claim protection until August 2013. The RRT was not satisfied by the applicant’s explanation as to that delay. 

28. The RRT also comprehensively rejected as unlikely the applicant’s claims to have left his sick wife in China to be caught by the authorities as a Falun Gong practitioner. The RRT explored its concerns with the applicant and did not accept the applicant’s explanation for those concerns.

29. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see 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 RRT 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).

30. The RRT’s findings would appear to be open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

31. In the circumstances, Ground 1 does not appear to establish any jurisdictional error on the part of the RRT. 

32. In Ground 2, the applicant asserts that the RRT failed to take into account his nervousness at the hearing. 

33. The RRT specifically states in its decision record that it considered that the applicant may have been nervous at appearing before the RRT or in presenting his evidence. However, the RRT was not persuaded that this explained the difficulties that it found to exist within the applicant’s evidence.

34. To the extent that the applicant complained that the remoteness of the incidents in time affected his memory and his assertion that these events occurred a long time ago, I accept the first respondent’s submission that the relevant events occurred after 2010 and particularly important events occurred from 2013. Whilst I make no final decision as to whether or not that constitutes a long time ago, the complaint by itself is not capable of establishing jurisdictional error. 

35. Further, there was no evidence provided to the RRT by the applicant about any medical condition or other factor that may have led to memory loss or affected his ability to give evidence at the hearing before the RRT. 

36. Accordingly, Ground 2 does not appear to establish any jurisdictional error.

37. In Ground 3, the applicant asserts that the RRT unfairly reviewed his case, reasserts that he is a Falun Gong practitioner at risk of harm and states that he has been truthful. These assertions are otherwise unsupported by particulars, evidence, oral submissions, or written submissions. 

38. In the absence of any further particulars, Ground 3 does not identify any jurisdictional error on the part of the RRT and appears more to be a complaint about the adverse findings and conclusions of the RRT. Such complaints cavil with the merits of the RRT’s decision, thereby inviting 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).

1. On its face, the RRT’s decision record does not support the applicant’s allegation in Ground 3 that the RRT unfairly reviewed his case. The documents contained in Exhibit 1R, being a bundle of relevant documents tendered by the first respondent, identified as ‘Court Book’ and filed on 1 July 2015, disclose that the RRT complied with the statutory regime in the conduct of its review as well as in the conduct of its hearing.

2. In the circumstances, it would appear that Ground 3 does not establish any jurisdictional error on the part of the RRT.

Conclusion

1. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

3. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 9 June 2015, should be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  22 July 2015