SZUVB v Minister for Immigration and Border Protection

[2015] FCA 993

FEDERAL COURT OF AUSTRALIA

SZUVB v Minister for Immigration and Border Protection [2015] FCA 993

Citation:	SZUVB v Minister for Immigration and Border Protection [2015] FCA 993
Parties:	SZUVB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 499 of 2015
Judge:	REEVES J
Date of judgment:	9 September 2015
Catchwords:	MIGRATION – application for leave to appeal from a decision of the Federal Circuit Court – where Minister refused to grant the applicant a protection visa – where Refugee Review Tribunal affirmed the decision of the Minister – where application for judicial review dismissed by the Federal Circuit Court – whether decision of the Federal Circuit Court attended by sufficient doubt to warrant its reconsideration – whether proposed grounds of appeal identify any error by the Federal Circuit Court – where applicant has only alleged errors by the Tribunal and not by the Federal Circuit Court – where applicant has provided no submissions in support of application – where no identifiable error – where no substantial injustice would result if leave were to be refused
Legislation:	Federal Court of Australia Act 1976 (Cth) Federal Circuit Court Rules (Cth)
Cases cited:	Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 SZUVB v Minister for Immigration & Anor [2015] FCCA 1031
Date of hearing:	11 August 2015
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms Zaruchi, Clayton Utz
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 499 of 2015

BETWEEN:

SZUVB
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	9 SEPTEMBER 2015
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The name of the second respondent, “Refugee Review Tribunal”, be amended to “Administrative Appeals Tribunal”.

2.The applicant’s application for leave to appeal is dismissed.

3.The applicant is to pay the first respondent’s costs of this application, fixed in the sum of $1,700.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 499 of 2015

BETWEEN:

SZUVB
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	9 SEPTEMBER 2015
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant has applied for leave to appeal a decision of a Judge of the Federal Circuit Court:  see SZUVB v Minister for Immigration & Anor [2015] FCCA 1031 (SZUVB).

2. The orders of the Federal Circuit Court were made under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). They were therefore interlocutory in nature: see r 44.12(2). Accordingly, the applicant requires leave to appeal from those orders: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). To obtain such leave, the applicant has to establish that the decision concerned is attended with sufficient doubt to warrant its reconsideration on appeal and that substantial injustice will result if leave to appeal were refused: see Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 and Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [25].

   THE GROUNDS OF THIS APPLICATION

3. The applicant has provided three proposed grounds of appeal.  They are expressed as follows:

   1.RRT has bias against me as I was deprived of the benefits of doubts.

   2.RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

   3.RRT has made an offensive finding based on no evidence.

   (Errors in original)

   THE FACTUAL BACKGROUND

4. The factual background to the applicant’s claim was aptly summarised in SZUVB in the following terms:

   [2]The applicant, a citizen of China, arrived in Australia in May 2008 on a student visa. On 15 March 2011, he became an unlawful non-citizen.

   [3]On 2 April 2013, the applicant applied for a protection visa. On 26 July 2013, the Minister’s delegate refused the grant of the visa.

   [4]On 21 August 2013, the applicant applied to the Tribunal for review of the delegate’s decision. On 22 November 2013 the applicant attended a hearing before the Tribunal.

   [5]On 30 June 2014 the Tribunal affirmed the delegate’s decision. On 25 July 2014, the applicant applied for judicial review of the Tribunal's decision.

   Applicant’s claims

   [6]The applicant claims to fear harm in China on the basis of his Christianity, specifically, being a member of an unregistered “Local Church”. In support of his application for protection the applicant claimed that:

   a)his grandfather introduced him to the Local Church at a “young age”. He attended church with his grandfather two or three times a week where they would “sing, pray and listen to stories”.

   b)when he was 13 or 14 years old, police came to the Local Church which was being held at a neighbour’s house, and arrested and detained “several people”. Neither he nor his grandfather were arrested;

   c)the applicant’s mother became an adherent of the Local Church. Church activities were held at their home on Thursdays;

   d)in 2005 or 2006 his mother was arrested by the police and detained for two days because of her “Church activities”;

   e)his mother did not want to see the applicant or his brother persecuted and sent them overseas;

   f)the applicant continued to attend a Local Church in Australia two or three times a week and was baptised in 2012; and

   g)if he were to return to China he would proselytise, which would bring him to the adverse attention of the authorities.

   THE DECISION OF THE TRIBUNAL

5. The Tribunal found that the applicant’s fear of harm was not well-founded, nor was there a real risk that he would face harm if he returned to China.  In reaching this finding, the Tribunal made a number of observations and comments about the applicant’s credibility.  These are summarised in SZUVB at [7], as follows:

   a)the Tribunal had considerable doubts about the credibility of the applicant. In particular, the applicant’s inconsistent evidence about when he went to live with his grandfather. The Tribunal held that the applicant should have a “better recall of events which he claimed to be of such significance in his life”, and thus concluded that the applicant appeared to be changing his story in response to its questions;

   b)the Tribunal observed that by the applicant’s own account, the applicant’s mother was of little interest to the authorities and suffered no adverse consequences since 2005 or 2006;

   c)the Tribunal noted that the applicant’s primary concerns are the religious activities of his grandfather and mother. The Tribunal found it highly improbable that any adverse consequences “would flow” to the applicant out of his mother’s arrest. The Tribunal noted that the applicant did not leave China for two or three years after his mother’s arrest and “[did] not accept that his mother’s arrest and detention was the reason he left China to come to Australia”;

   d)the Tribunal considered independent country information, which indicated that Christians who attend Local Churches in the Fujian province face a low risk of being harmed for their religious beliefs. Accordingly, the Tribunal found that the applicant could return to Fujian and continue his involvement in the Local Church without facing a real chance of persecution, because the country information indicated that “that official religious policy is applied relatively liberally in the province”;

   e)the Tribunal, noting that the applicant had acknowledged that he had not proselytised in Australia, was not satisfied that the applicant would actively encourage others to join the Local Church if he returned to China.

6. Accordingly, the Tribunal concluded as follows:

   Having found that the applicant does not have a well-founded fear of being persecuted in China for a Convention reason in the reasonably foreseeable future, the Tribunal has considered whether he faces a real risk of significant harm as defined in the Act. However, no discrete protection claims have been raised other than the Convention claims considered above, and for the reasons set above (sic) in respect of those claims, and in the absence of any claims suggesting that the applicant is at risk of significant harm for any other reason, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to a (sic) China, there is a real risk that he will suffer significant harm.

   THE DECISION OF THE FEDERAL CIRCUIT COURT

7. The applicant’s application for judicial review, which was filed in the Federal Circuit Court in July 2014, raised only one ground of review.  It was expressed as follows:

   During the interview, I can feel discriminatory and prejudice from the Tribunal officer.

   During the interview, she had done some gestures told me to stop talking. She can’t deprive me of the right to speak.

   (Errors in original)

8. The applicant subsequently asserted two supplementary grounds of review in an affidavit he filed in November 2014.  They were expressed as follows:

   1.RRT was biased during the hearing, the country information that it referenced did not conform to the reality. According to country information, RRT claimed that Christians who attend non-registered churches in China, particularly in Fujian province face a low risk of being harmed or arrested because of their religious beliefs. However, it did not necessarily mean that nothing had occurred. Moreover, there are many differences between non-registered church and registered church. People are not allowed to spread gospel to children in the registered church which was against the Lord. RRT officer accepted that I am Christian. After I return to China, I will attend non-registered churches for sure, so the possibility that I would be persecuted by the government is very high. RRT ignored this possibility which is unfair.

   2.The Tribunal did not examine the risk of the persecution I will face if return to China. Because of my religion believes as an underground Christian, the Chinese authorities in China wishes to harm me. I evidenced that when I was very young my grandfather took me to a Christian church and after arriving in Australia I had been to a church regularly. This is credible evidence that I follows underground Christianity in China but ignored by the Tribunal.

   (Errors in original)

9. The Federal Circuit Court judge rejected the applicant’s original ground of review for the following reason:

   [18]By the second sentence of the applicant’s pleaded ground the applicant asserts that the Tribunal member “deprive me of the right to speak”. This grounds appears to be an attempt to invoke the protection of s.425 of the Migration Act 1958 (Cth), by claiming that the Tribunal failed to fulfil the dictates of the invitation to the hearing. However, this ground cannot be made out for at least two reasons: first, because it is unparticularised; and secondly, because the Tribunal decision reflects a thorough consideration of the dispositive issues and the discussion between the applicant and Tribunal member relating to the applicant's claims. Additionally, it is to be observed that there is no evidence to support the applicant’s claim that he was “deprive[d] ... of the right to speak”. To repeat the dicta of Raphael FM (as he was then) in SZLOA v Minister for Immigration and Anor [2008] FMCA 881 in addressing a similar claim:

   ... one would say that in order for the applicant to establish that the length of the hearing and the nature of the questioning was such as to negative any ability of the [applicant] properly to put his case, he would have to produce, at the very least, the tape-recording and preferably a transcript of the hearing. The applicant has not done this and has not requested an adjournment to do so. I am unable to assist the applicant in relation to this ground.

10. In respect of the first of the applicant’s supplementary grounds of review, the Federal Circuit Court concluded:

    [12]In the first ground the applicant asserts bias. The allegation of bias is based upon the Tribunal’s use of country information which did not support the well-foundedness of the applicant’s fear of persecution. The country information in issue is set out in footnotes at pages 84 and 85 of the court book. There is no basis to the allegation of bias. It is for the Tribunal to determine the country information on which it chooses to rely. It will be a rare case indeed in which the selection of country information gives rise to an apprehension of pre-judgement or bias. I agree with the Minister’s written submissions on that question.

    [13] In order to establish that a decision has been affected by apprehended bias, the court must be satisfied that a fair-minded lay observer might apprehend that the Tribunal was not impartial: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]-[28]. Whether or not there is apprehended bias is determined by the Court: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68] per McHugh J. Apprehended bias must be “firmly established: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J, at 359–360 per Wilson J and at 371–372 per Dawson J. It is not sufficient to merely show that the Tribunal has formed a preliminary view of the appellant’s credit: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [72].

    [14]Most of the applicant’s submissions on the ground of apprehended bias were directed to the issue of the country information relied upon by the Tribunal. In NAHI v Minister for Immigration [2004] FCAFC 10 the Court held at [11]:

    By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on “country information“. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court.

    [emphasis added]

    [15]It was appropriate for the Tribunal to consider the country information, and that the findings made on the basis of that information were reasonable and open.

11. The Federal Circuit Court judge also rejected the applicant’s second supplementary ground of review.  He did so in the following terms:

    [16]In the second ground the applicant asserts that the Tribunal did not examine the risk of persecution he faces should he return to China. As elaborated upon in the applicant’s oral submissions, this does not rise above a dispute over the merits of the Tribunal’s reasoning process. The applicant remains concerned that he will face a real risk of harm in Fujian Province in China as an underground Christian. Although the Tribunal accepted that he is a Christian and would adhere to the unregistered church in China, the Tribunal did not accept that he had a profile which would bring him to the adverse attention of the Chinese authorities. In particular, the Tribunal did not accept the applicant’s claim that he would proselytise in China. The Tribunal’s reasoning was based on the fact that the applicant had not done so in Australia.

    [17]I see no arguable case of legal error in the Tribunal’s approach. To the extent that the grounds in the original application have any continuing relevance, I agree with and adopt the Minister’s written submissions.

12. Having concluded that the applicant had failed to demonstrate “an arguable case of jurisdictional error by the Tribunal”, the Federal Circuit Court judge therefore dismissed the applicant’s application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

    THE CONTENTIONS

13. The Minister contended that the decision of the Federal Circuit Court is not attended by sufficient doubt to warrant its reconsideration on appeal. He contended that none of the applicant’s proposed grounds of appeal (see at [3] above) identified any error on the part of the Federal Circuit Court, nor did they provide any basis upon which to impugn the decision in SZUVB.

14. The applicant did not file any written submissions and when he appeared at the hearing of this application, he said he had nothing to say in support of it.

    CONSIDERATION

15. The primary purpose of an appeal to this Court from a judgment of the Federal Circuit Court is the correction of error on the part of the latter Court:  see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [21]–[22] per Allsop J (as his Honour then was), with whom Drummond and Mansfield JJ agreed.

16. This requirement is reinforced in this application by the fact that the applicant needs to show sufficient doubt in the decision of the Federal Circuit Court to warrant it being reconsidered on appeal (see at [2] above). This, in turn, requires attention to the error, or errors, the applicant alleges were made by the Federal Circuit Court. In this respect, the applicant’s proposed grounds of appeal are bereft. They are all directed to alleged errors on the part of the Tribunal and none identify any error on the part of the Federal Circuit Court. To compound this, the applicant has not sought to put forward any written or oral submissions which identify any such error. In this instance, these deficiencies may not be surprising because, as appears from the summary of the reasons of the Federal Circuit Court judge (see at [10]–[11] above), his Honour correctly identified the relevant binding authorities bearing upon each of the three grounds of review before him and then carefully considered the Tribunal’s decision by reference to those authorities. No error is apparent in any aspect of his Honour’s considerations.

17. Since no error has been identified by the applicant, and since none is apparent from his Honour’s reasons for decision, it necessarily follows that the applicant’s three proposed grounds of appeal have no merit.

    CONCLUSION

18. For the above reasons, the applicant has not demonstrated that the decision in SZUVB is attended by sufficient doubt such that it should be reconsidered on appeal, nor that substantial injustice would result if leave were to be refused.

19. The applicant’s application for leave to appeal the decision in SZUVB must therefore be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        9 September 2015