SZUXI v Minister for Immigration

Case •

[2015] FCCA 2106

•

30 July 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXI & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2106
Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal misconstrued s.36(2) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
SZQBN v Minister for Immigration and Border Protection [2014] FCA 686
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
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
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609

First Applicant:

Second Applicant

Third Applicant

SZUXI

SZUXJ

SZUXK
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 2247 of 2014
Judgment of: Judge Nicholls
Hearing date: 30 July 2015
Date of Last Submission: 30 July 2015
Delivered at: Sydney
Delivered on: 30 July 2015

REPRESENTATION

First Applicant: In Person

Second Applicant:

Third Applicant

In Person

By His Litigation Guardian
Solicitors for the Respondents: Ms H Dejean of Australian Government Solicitor

ORDERS

  1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

  2. The application made on 12 August 2014 is dismissed.

  3. The first and second applicants pay the first respondent’s costs set in the amount of $4000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2247 of 2014

SZUXI

First Applicant

SZUXJ
Second Applicant

SZUXK
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. This an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 August 2014 seeking review of the decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) made on 4 August 2014 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

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 first applicant (“the applicant”) is a national of Fiji who arrived in Australia on 22 February 2009 as the holder of a tourist visa. The applicant had made return trips to Fiji on a number of occasions in 2010, 2011, 2013 (CB 74). The applicant most recently arrived with a visitor visa on 30 July 2013 with his wife (“the second applicant”) and son (“the third applicant”).

  3. The applicant applied for a protection visa on 20 August 2013. The second and third applicants applied as members of his family unit. The applicant provided supporting documentation with his application (CB 40 to CB 58). The applicant’s claims to fear harm were that as a part of a minority in Fiji, “part-European”, he feared “discrimination and insecurity” arising from this (CB 1 to CB 58 and CB 76(8)).

  4. The delegate refused the grant of protection visas to the applicants on 6 February 2014. Essentially, the delegate was not satisfied that there was a real chance that the applicant would be subjected to serious harm on account of his race or for any Refugees Convention reason. Further, the delegate was not satisfied that the harm claimed by the applicant was “significant harm” for the purposes of s.36(2A) of the Act (CB 72 to CB 88).

  5. The applicants applied to the Tribunal for review of the delegate’s decision on 25 February 2014 (CB 89 to CB 94). The applicant provided further supporting documentation to the Tribunal, including,  a letter from the applicant’s sister, a letter from his former employer discussing racial discrimination in Fiji, a letter from a Fijian resident discussing discrimination in Fiji, and various commentary and articles concerning Fiji’s leader (CB 95 to CB 107).

  6. The applicants attended a hearing before the Tribunal on 28 July 2014 (CB 115 to CB 117). The applicant’s sister, who was his representative, and his brother, also attended. The second applicant was given the opportunity to provide post-hearing submissions to the Tribunal ([24] at CB 176).

  7. At the Tribunal hearing the applicant raised a new claim for the first time, which he claimed was the main reason for his seeking protection in Australia. This was, that in March 2013, he was assaulted by a group of Fijian boys on his way home from work. The applicant claimed that they called him by his name, and threatened further harm if he reported the incident to the authorities. The applicant claimed that he had not previously raised this claim as he had not gone to the police to report the incident, and as such, he had no evidence of the assault ([28] – [30] at CB 177).

  8. The applicant further claimed to fear harm arising from an expected coup in Fiji, and that this would affect his employment. This fear was prompted by statements made by the Fijian Prime Minister on radio which indicated that if he lost the election he would stage a coup ([37] at CB 178). The applicant was given the opportunity to provide post-hearing submissions on this issue.

  9. It was agreed at the hearing that further submissions and evidence could be provided to the Tribunal in writing by the applicant, the applicant’s wife and the applicant’s representative by no later than 4 August 2014 ([40] at CB 178).

  10. On 4 August 2014 the Tribunal received a letter from the applicant which set out his claims made before the Tribunal (CB 130 – CB 131). The Tribunal also received a letter from the second applicant stating that her former employer in Fiji had been threatened for speaking out against the government (CB 132). The applicant’s sister also sent a letter to the Tribunal setting out details of the March 2013 assault incident involving the applicant (CB 133 to CB 134). The applicants provided further various information to the Tribunal (CB 137 to CB 171). The Tribunal referred to these documents in its decision record ([41] – [44] at CB 179).

  11. The Tribunal affirmed the delegate’s decision on 4 August 2014 (CB 173 to CB 183).

  12. The Tribunal noted the applicant’s claim to have been assaulted in 1987 and to fear further physical abuse and discrimination because of his “part-European ethnicity” ([48] – [51] at CB 180).  The Tribunal accepted that the incident in 1987 had occurred ([58] at CB 181).

  13. The Tribunal noted the new claim that had arisen at the hearing that the applicant was attacked in March 2013. However, the Tribunal was not satisfied that the applicant was seriously assaulted in March 2013 or that he was anything more than “a random victim of any harassment or incident” ([54] at CB 180). This Tribunal stated ([53] at CB 180):

    “As put to the applicant at hearing, it is very hard to understand that such a significant claim could have been left to this point and not mentioned earlier (particularly in response to direct questioning at interview).  The Tribunal found the applicant's explanation that it was because he had no proof or evidence unpersuasive.  He had not provided any proof or evidence for other specific claims, including in relation to the assault in 1987.  It is plausible that an incident of minor harassment occurred in March 2013 which the applicant has now embellished, but the Tribunal is satisfied that if it were of any significant relevance to the applicant's claim it would have been mentioned earlier.”

  14. The Tribunal had regard to the fact that the applicant’s brother had been granted a protection visa in Australia. However, it found that his circumstances were different to that of the applicant. The Tribunal did not accept that political instability or curtailment of open criticism of the government in Fiji would affect the applicant differentially from the population generally or would give rise to a real risk of serious or significant harm ([61] at CB 181).

  15. The Tribunal did not accept the claim that a coup would result from the non-election of the Fijian Prime Minister, having regard to the post-hearing submissions provided by the applicants. The Tribunal held that this claim was not mentioned in these statements or materials provided to the Tribunal ([62] – [63] at CB 181 to CB 182). The Tribunal had regard to relevant country information sources, and found that these sources indicated that the Prime Minister said that there would not be a coup ([63] at CB 181 to CB 182).

  16. The Tribunal was unable to find relevant country information which supported the position (to the Tribunal’s relevant satisfaction) that persons of “part-European ethnicity” faced persecution in Fiji.

  17. The Tribunal noted that the applicant, and his sister, had made return trips to Fiji on several occasions and found that this suggested that he did not have a fear which precluded such return ([64] at CB 182).

  18. The Tribunal was not satisfied that any of the applicants were a person to whom Australia had protection obligations and did not satisfy any of the criteria at s.36(2) of the Act for the grant of protection visas ([69] at CB 182).

The Grounds of the Application

  1. The grounds of the application to the Court are in the following terms:

    “1. In the making of the decision the Refugee Review Tribunal committed jurisdictional error by its failure to accord us procedural fairness for failing to invite our comments and submissions before making the decisions.

    Particulars

    The Tribunal assertions that no significant assault occurred to me is contrary to the evidence that was before the Tribunal and the Tribunal did not give me and my wife any opportunity to put forward submissions and comments before the tribunal made its decision.

    2. The Tribunal fell into jurisdictional error as it did misconstrue the significant harm interpretation regarding the Complementary protection visa legislation pursuant to section 36(2A) aa of the Migration Act 1958.

    3. The Tribunal failed to have regard to relevant materials which the tribunal was bound by the Act to have regard to in oue claims to refugees and in need of Australia’s protection.”

    [Errors in the original.]

Before the Court

  1. The applicants appeared in person at the first Court date in this matter on 24 September 2014. A number of orders were made for the progress of the applicants’ case, including the opportunity for the applicants to file any amended application, or evidence by way of affidavit in support of their grounds. The applicant was appointed the “litigation guardian” of the third applicant, who is a child. Despite the opportunity given by orders made at the previous Court event, nothing further has been filed by the applicants in support of their grounds. The Minister has filled written submissions in these proceedings.

  2. The matter was set down for final hearing today. All three applicants appeared in person. I confirmed with the applicant that he would speak on behalf of his son, as the litigation guardian. He also stated that he would also speak on behalf of his wife, who was present in Court, and was available for him to consult with her.

  3. The applicant explained to the Court that he wanted to make sure that the Tribunal had made a “fair” decision. That was, in essence, the applicant's primary submission to the Court.  When taken through each of the grounds, the applicant also stated that he felt, at the hearing, that the Tribunal had already “made up its mind”.  That is, made up its mind to refuse the visas. He could not explain it further, other than he had a “feeling” that that is what had occurred. The applicant said that he had taken the post-hearing submissions to the Tribunal the next day after the hearing, and that the Tribunal then immediately proceeded to make its decision. I understood, from the applicant, that this was an indicator that the Tribunal had already made up its mind on the review. It then proceeded to make a decision immediately upon receipt of that additional material.

  4. The applicant was unable to assist the Court further in relation to the grounds of the application.  He explained that the grounds had been drafted by a person who had been approached by a friend of his, and although he had spoken to that person, the person had drafted the grounds for him.  The applicants also stated to the Court today that they would be subject to unfair treatment in Fiji, that there was racism in Fiji and that they wanted their son to grow up “where everyone was equal”.

Consideration

  1. Ground one asserts that the Tribunal fell into jurisdictional error because it failed to accord the applicants procedural fairness. This is explained in the ground by the assertion that the Tribunal failed to invite the applicants' comments, or submissions, before making the decision.  On the evidence before the Court, and indeed even based on what the applicant told the Court today, that contention must be rejected on a factual basis. 

  2. The Tribunal gave the applicants the opportunity to make further submissions and to provide further evidence (see [40] at CB 178). The applicant, the second applicant, and the applicant's sister, all provided statements after the hearing (CB 130 to CB 134). The letter from the applicant makes clear that the Tribunal gave them the opportunity to comment (CB 130):

    “I…am writing to thank you for giving me this opportunity to express myself in writing…”

  3. In light of the applicant's ground, it is also important to note that the Tribunal had regard to those submissions.  That consideration is set out at [41] – [44] of the Tribunal’s decision record (CB 179).

  4. The particular to ground one states that the Tribunal's assertion, that “no significant assault” had occurred, was contrary to the evidence that the applicant had given, and the applicant was not given the opportunity to make submissions or comments on this.  In context, this complaint must be a reference to the claimed assault in March 2013, raised for the first time at the hearing.

  5. Despite the opportunity to do so, the applicants have not provided any evidence of what may have occurred at the Tribunal hearing.  In particular, there is no transcript of the hearing before the Court. The only evidence that is before the Court, relevant to the Tribunal hearing, is what the Tribunal itself has set out in its decision record as having occurred at the hearing.

  6. That shows that the Tribunal raised its concerns with the applicant. In particular, that given the significance of such an assault, that it was concerned that he had not raised that matter earlier. The applicant was given the opportunity to explain that delay.  I note also that the applicant addressed this matter in his subsequent written submissions, albeit only to the extent of repeating what he had said at the hearing. The second applicant also addressed this matter in her written submissions.

  7. I am satisfied that the Tribunal complied with its relevant procedural fairness requirements at the hearing and with the opportunity given to the applicant to make further submissions.  The issue of the claimed incident in 2013, to the extent that it was a part of the disposition of the review, was discussed (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592). There is no obligation on the Tribunal to invite comment on any draft of its decision record, prior to the publication of that record, if that is what was meant by the applicant's first ground (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 and with reference to what was said by the majority of the Full Federal Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471).

  8. The ground as pleaded, and explained, in submissions by the applicants is not made out. However, given that the applicants were not legally represented before the Court, I did consider whether, in the circumstances, the claim of procedural unfairness may extend to the second applicant in a way not particularised in the ground of the application, or raised in submissions.

  9. The Tribunal invited the applicants to a hearing pursuant to s.425 of the Act by letter dated 23 June 2014 (CB 111 to CB 112). The letter enclosed a “Response to Hearing Invitation” form and leaflet “Information about Tribunal Hearings” which the Tribunal’s letter stated: “…contains important information about hearings and your rights” (CB 112).

  10. At part two of the “Response to Hearing Information” form, the Tribunal asked (CB 113):

    “Do you or any other person attending the hearing need an interpreter?”

  11. The applicant indicated: “No”(CB 113).

  12. The following is recorded in the Tribunal’s decision record ([24] at CB 176):

    “On arriving for hearing, the applicant requested a Fijian language interpreter.  The Tribunal discussed this with the applicant and his representative at the commencement of the hearing, noting that in his original Protection Visa application the applicant had stated that he speaks, reads and writes English and had listed no other language; in reply to the question in his RRT application form whether he needed an interpreter he had responded in the negative; and in his Response to Hearing Invitation form had replied "no" in response to a question whether he or any the person attending the hearing would need an interpreter.  The applicant's representative then stated that it was the applicant's wife who was intending to give evidence who would need a Fijian interpreter, not the applicant himself.  It was therefore agreed that the applicant's wife would be afforded an opportunity to provide evidence in writing (in English) subsequent to the hearing.”

  13. It is the case that the Tribunal is obliged to provide a meaningful opportunity to an applicant to give evidence and arguments at the hearing (SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 at [14] per Flick J, and SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [45]).

  14. The question that arises is whether the second applicant was denied a fair opportunity to give her evidence and arguments to the Tribunal.

  15. On balance, I am satisfied, that the second applicant was not denied that opportunity.  First, the second applicant made no claims in her own right to seek protection in Australia.  Her claims were based on, and derived from, the claims made by the applicant. Her application was as a member of his family unit.  There was no dispute before the Tribunal that she was in such a familial relationship.

  16. Second, there was no indication to the Tribunal, on the evidence before the Court, that the second applicant had any additional evidence going beyond the scope of what the applicant was intending to give to the Tribunal.  Having regard to her subsequent written statement, at its highest, it repeats the applicant's claim in relation to the incident of 2013, and in makes the same assertion in relation to the general situation in Fiji.

  17. The only other additional matter raised in the second applicant's written statement involved a claim relating to her former employer. Importantly, that reference was what was said to have occurred to that employer, and did not relate to any of the applicants. Rather the claim was used, at its highest, as an example of lawlessness, and the possibility of intimidation occurring in Fiji. 

  1. Third, there was no complaint by the applicant in her written statement that the statement was not an adequate avenue to make her arguments to the Tribunal, or that she was prevented from saying what she wanted to say. Nor for that matter that she had anything further to put to the Tribunal. Nor was any such complaint made on her behalf by the applicant, or their representative in their written statements, or elsewhere. Ultimately neither the second applicant, nor the application, or their representative, pressed for an interpreter to be made available. On the evidence the applicants, and their representative, appeared content with the opportunity afforded by the Tribunal to make written submissions.

  2. In all, therefore, I am satisfied that the second applicant was not denied a meaningful opportunity to give her evidence or present arguments.

  3. Ground two appears to assert that the Tribunal misconstrued the definition of “significant harm”, as that definition appears in s.36(2)(a) of the Act, and as it is relevant to the criterion at s.36(2)(aa) of the Act for the grant of a protection visa.

  4. The difficulty for the applicants is that there are no particulars to that complaint. As the Minister submits, on the evidence before the Court, the Tribunal set out its understanding of the relevant test, and the relevant law, at [12] to [15] of “Attachment A” to its decision (CB 185 to CB 186). I cannot otherwise see, having regard to the totality of the decision record, that the Tribunal did not understand the relevant test, or did not understand the relevant definition, or that it failed to properly apply the applicant's circumstances, and the relevant definition, as it considered the complementary protection criterion.

  5. The Tribunal considered the applicants' claims as against the criterion at section 36(2)(aa) of the Act (see [56], and [65] to [67], of the Tribunal’s decision record at CB 181 and CB 182). I cannot see any legal error in how the Tribunal approached this aspect of its task. As the Minister submits, the Tribunal's conclusion, and the findings that informed it, in relation to complementary protection, were reasonably open to it to make on what was before it. Ground two is not made out.

  6. Ground three asserts that the Tribunal failed to have regard to relevant materials to which the Act required it to have regard. Again, the ground has no particularity. I can only proceed on what is before the Court. On that basis, the Tribunal did consider all the material that was relevantly put before it. There is nothing to indicate that it did not turn its mind to that material. The Tribunal also had regard to relevant country information. No legal error is revealed in this regard. Ground three is not made out.

  7. During the hearing today, the applicant submitted that he had a “feeling” that the Tribunal “had already made up its mind”. As mentioned above, that feeling was compounded, in the applicant's view, when he provided documents and submissions to the Tribunal, the day after the hearing, and the Tribunal proceeded immediately to make its decision. 

  8. Some care must be taken as to the relevant sequence and the dates of those submissions.  The hearing before the Tribunal took place on 28 July 2014.  The documents, and the post-hearing submissions, were provided to the Tribunal “by hand” (the applicant initially submitted before the Court today that he delivered them to the Tribunal on the day after the hearing). However, the Tribunal's records show that those submissions were delivered, not the day after the hearing, but on 4 August 2014 at 10.36.  Presumably, that is 10.36 am (CB 130).  It is the case that the Tribunal then proceeded to make its decision at 2 pm of the same day. The applicant did not subsequently dispute this before the Court.

  9. It may be that the applicant's submission today seeks to invoke a claim that the Tribunal was biased, in that it had approached the hearing with a closed mind, or that an apprehension of bias might be reasonably discerned by the well-informed lay observer. 

  10. First, it must be noted, that no claim of bias, or the apprehension of bias, is made in the grounds. It is the case that in claims of bias, given the particular nature of such a claim, which goes to the very integrity of the decision-maker, the law requires that such assertions be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 (“Jia Legeng”) at [69] and [127]). The applicant's “feeling” that that is what had occurred, is not such that it could be said that it provides a distinct assertion of bias on the part of the Tribunal.

  11. The tests for bias, and the apprehension of bias, are now well-settled (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).

  12. On the evidence before the Court, and given in particular that the applicant has not taken the opportunity afforded to him to file any further evidence, the allegations as to the Tribunal's predisposition cannot be, and are not, made out. 

  13. On the evidence that is before the Court, that is, the Tribunal's decision record, 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 to the conduct of the review.  I say that for two reasons.  One, the Tribunal's account of the hearing shows that it gave the applicants the opportunity to explain their case, and gave them the opportunity to make subsequent written submissions.  Importantly in its decision record, the Tribunal had regard to those written submissions, and the detail of what was put in those written submissions.  In all, therefore, I cannot see that any claim as to bias can assist the applicants in the current proceedings.

  14. The final matter raised by the applicants today was that they felt that there was unfair treatment in Fiji because there was “racism”, and that they want their son to grow up in a country where “everyone is equal”.

  15. As to the first matter, this was a claim that, in essence, was put to the Tribunal. The Tribunal made relevant findings, and concluded that whatever the level of treatment in Fiji, in the applicants’ circumstances, it did not rise to serious or significant harm, as those terms are understood to arise from the relevant tests as set out in the Act. At its highest, the applicants ask this Court to engage in impermissible merits review.

  16. The second matter concerning their son’s future is not a matter on which the Court can intervene to assist them.  As I told the applicants today, the Court has no power to grant them a visa.

Conclusion

  1. The grounds of the application are not made out. No jurisdictional error on the part of the Tribunal is revealed. The application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 6 August 2015

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Cases Citing This Decision

1

SZUXI v Minister for Immigration and Border Protection [2015] FCA 1475