SZVBK v Minister for Immigration

[2015] FCCA 387

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVBK & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 387

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicants Protection (Class XA) visas – application set down for show cause hearing pursuant to r.44.11(1)(b) of the Federal Circuit Court Rules 2001 (Cth) – whether application raises an arguable case for the relief claimed – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Federal Circuit Court Rules 2001 (Cth), rr.44.11(b), 44.12(1)(a)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

First Applicant: SZVBK

Second Applicant: SZVBL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2547 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 9 February 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

The Applicant: The First Applicant appeared in person with a Mandarin interpreter.

Solicitor for the First Respondent: Ms N Johnson of Mills Oakley

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2547 of 2014

SZVBK

First Applicant

SZVBL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 15 September 2014 by the applicants, SZVBK and SZVBL, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member L. Symons on 19 August 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicants Protection (Class XA) visas.

2. The applicants, pursuant to s.91X of the Migration Act 1958 (Cth) (the “Migration Act”), have been granted a pseudonym and cannot be identified by name.

3. The solicitors for the Minister filed a folder on 27 November 2014 which was indexed, labelled and paginated, containing all documents that may be relevant to the hearing.  The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Johnson, representing the Minister.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. The first applicant (the “Applicant”) is a citizen of the People’s Republic of China and the mother of the second applicant.  She applied for a Protection (Class XA) visa on 4 October 2013 (CB 27-52). The second applicant applied for protection as a member of his mother’s family unit and made no independent claims for protection (CB 53-59, CB 132 at [41]).

3. In a typed written statement attached to her application for Protection visa application, the Applicant claimed that she became pregnant with a second child in August 2012.  She decided with her husband to have the baby and go to her husband’s aunt’s house in Hengshui city on 5 September 2012 to avoid government detection. However, District Family Planning officers came to her home on 1 September 2012, forcibly took her to a hospital and made her have an abortion against her will. This caused the Applicant distress and sadness, so she came to Australia to look after the second applicant who was studying here. She claimed further that on 30 October 2013 her husband’s business in China went bankrupt and he could no longer support their son’s studies in Australia (CB 60-61).

4. The applicants also provided copies of pages from their passports (CB 64-72).

5. On 3 February 2014, the applicant was invited to an interview before a delegate of the Minister scheduled on 24 February 2014 (CB 82-84), but she failed to attend (CB 92.8). As the delegate was unable to verify the authenticity of the applicant’s claims for protection at an interview, he was not satisfied that the applicant satisfied the criteria for the grant of a Protection visa: (CB 89-97).

Tribunal’s decision

1. On 26 March 2014, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 98-104).

2. On 11 July 2014, the Tribunal wrote to the applicants inviting them to appear at a hearing to be held on 12 August 2014 (CB 107-108). The applicants accepted the invitation (CB 109-110) and appeared at the scheduled hearing (CB 111-114). The Applicant provided the Tribunal at the hearing with copies of pages from her and the second applicant’s passports (CB 115-122).

3. In a decision dated 13 August 2014, the Tribunal affirmed the delegate’s decision not to grant the applicants Protection visas (CB 124-132).

4. The Tribunal found that the Applicant was not a witness of truth and had fabricated her claims to obtain Protection visas for her and her son (CB 130 at [33]). It regarded as “implausible” the Applicant’s evidence that although she did not have any pregnancies between 1995 and 2012, she became pregnant in 2012 at the age of 45, and performed a pregnancy test when she was only two weeks pregnant (CB 127 at [16]). It also found it “implausible” that the District Family Planning Office (“DFPO”) found out so quickly that she was pregnant. The Tribunal also believed that if the Applicant wanted to have the baby in secret, in breach of China’s one child policy, then she would not have told people who could not be trusted (CB 127 at [17]). The Tribunal also considered that her failure to leave her home when she found out that she was pregnant in August 2012 and before September 2012 when the next lot of pregnancy tests were scheduled by the DFPO raised concerns about the credibility of her claims (CB 128 at [18]-[19]).

5. The Tribunal identified a further concern with the Applicant’s evidence. At the hearing she gave evidence that the second applicant had already left for Australia when she planned to go to Hengshui city, but he in fact did not arrive in Australia until 22 October 2012 (CB 128 at [20]).

6. The second applicant also gave evidence to the Tribunal that his mother was forced to have an abortion after he came to Australia, but this contradicted the Applicant’s evidence that the abortion occurred on 1 September 2012, which pre-dated the second applicant’s arrival in Australia (CB 128 at [21]). The inconsistency was put to the applicants pursuant to s.424AA of the Migration Act, but the Tribunal did not accept the explanation given (CB 128 at [21]-[22]).

7. The Applicant also told the Tribunal that she and her husband decided not to tell their son about what happened and that her husband telephoned their son after he went to Australia and spoke to him about it (CB 128 at [22]). However, the Tribunal found that this explanation was inherently inconsistent (CB 128 at [23]). It found that it was “implausible” that the second applicant, who was living at home with his parents, could not have been aware of what allegedly occurred to his mother on 1 September 2012 and why she was allegedly unable to work after 1 September 2012 (CB 128 at [22]).

8. Whilst accepting that the Applicant’s Protection visa application contained a typographical error and that she meant to record that she worked until November 2012 (rather than 2013 when she had already left for Australia), the Tribunal found that even the corrected date was inconsistent with her evidence that she did not work after 1 September 2012 (CB 129 at [24]). The Tribunal also found that this was inconsistent with the second applicant’s evidence that both his parents were working in the electronics shop when he left China on 21 October 2012 (CB 129 at [25]).

9. In addition, the Tribunal identified inconsistencies in the Applicant’s oral and written claims about the date she claimed her husband’s business went bankrupt (CB 129 at [26]-[27]). It also identified inconsistences between the oral evidence of the Applicant and her son, and inconsistencies between information contained in documents from the son’s Student visa application (CB 7-10) and the evidence of the Applicant about whether the husband also worked in the electronics shop (CB 129 at [27]-[28]). The Tribunal did not accept the applicant’s explanation for the identified inconsistencies when they were put to her at the hearing pursuant to s.424AA of the Migration Act (CB 129 at [27], CB 130 at [29]).

10. Further, the Tribunal identified inconsistencies between the Applicant’s evidence that her son had to stop studying because her husband’s business went bankrupt on 30 October 2013 and information from the records of the Department of Education that indicated the son stopped studying on 9 November 2012, his student visa was cancelled on 2 July 2013 and his tuition fees were pre-paid at the time (CB 130 at [30], CB 1-6).

11. The Tribunal also drew adverse inferences about the credibility of the Applicant’s claims given her delay in applying for protection on 4 October 2013, when she arrived in Australia on 4 November 2012 on a Visitor visa which expired on 4 February 2013 (CB 130 at [31]-[32]).

12. Accordingly, the Tribunal rejected the entirety of the Applicant’s claims for protection (CB 130-131 at [33]-[35]) and found that she did not face a real chance of persecution for any Convention reason (CB 131 at [38]).

13. Nor was it satisfied that there were substantial grounds for believing that she faced a real risk of significant harm in China (CB 131-132 at [39]-[40]). 

14. The Tribunal affirmed the delegate’s decision not to grant the Applicants Protection visas.

Current Proceedings

1. The application before this Court pleads the following grounds of review (verbatim):

   1.  My husband and me did want to have a daughter and I became pregnant in Aug. 2012.  On 1 Sep. 2012, The District Family Planning officers came to my home and forcibly took me to the hospital for an abortion.  My baby was forcibly aborted despite my resistance.  My distress and sadness was beyond words.  My husband suggested me to have a change of environment to recover and look after my son in Australia.

   2.  If I return to China, all my past suffering would come back to haunt me.  I am unwilling to return to China where I have been badly harmed.

   3.  The Refugee Review Tribunal failed to take all my claim into account and had bias against me.  Making decision of refusing my application.  The Tribunal’s decision is not justice.  The Tribunal made jurisdiction error.

2. At the first court date directions hearing, the application was set down for a show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth). The Applicant was given leave to file and serve written submissions in support of her claim, however, no such document was received by the Court or the Minister’s representative.

Applicants’ Submissions

1. The Applicant appeared at the show cause hearing.  She initially indicated she or her agent had sent a document to the Court, but was unaware of the contents of the document and did not have a copy of it.  Accordingly, without any further explanation or a physical copy of such document, the Court cannot be satisfied as to the nature of the document and whether it had any bearing on the application, so no further consideration was given to it.

2. The Applicant was invited to then make oral submissions.  She indicated she agreed there were no mistakes in the Tribunal’s decision and no procedural errors during the process, but that the decision itself was unfair.  The Applicant then recounted her substantive protection claims.  When given a chance to respond to the Minister’s written submissions the Applicant repeated her initial submissions.

Minister’s Submissions

Grounds one and two

1. The Minister submits grounds one and two of the application are not proper grounds of review. Instead, they simply re-state the applicant’s factual claims for protection. In substance, they are an impermissible attempt to review the merits of the Tribunal’s decision, which the Court is not permitted to undertake. Accordingly, they cannot succeed.

Ground three

1. The Minister contends ground three asserts without any meaningful particulars that the Tribunal made a jurisdictional error because it allegedly “failed to take all my claim into account and had bias against me” (sic) and the “Tribunal’s decision is not justice.”

2. This ground fails to even identify the claim that the Tribunal allegedly overlooked. In any event, the Tribunal’s decision reveals that it plainly considered the entirety of the applicants’ claims but rejected them on the basis of comprehensive adverse credibility findings. These findings were open to it on the available materials and for the reasons that it gave and were findings of fact for the Tribunal to make par excellence.

3. To the extent that the applicants allege in this ground that the Tribunal’s decision was affected by actual or apprehended bias, there is nothing to support this contention. The applicants have not provided any evidence to support such a serious allegation that must be firmly and distinctly made and clearly proven.  Nor should any inference of bias or prejudgment be drawn from the mere fact of adverse findings in the Tribunal’s reasons.  Accordingly, the allegation of bias is baseless and cannot succeed.

Conclusion

1. The applicants have failed to demonstrate an arguable case for the relief claimed in their application for judicial review. Accordingly, the application ought to be dismissed with costs pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Consideration

1. Grounds one and two of the application restate the applicants’ substantive protection claims.  They do not raise any error on the part of the Tribunal.  Rather, as the Minister correctly submits, they invite the Court to engage in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272). Accordingly, these grounds do not raise an arguable case for the relief claimed.

2. Ground three of the application raises two alleged errors on the part of the Tribunal.  The first claimed error is that the Tribunal failed to consider all of the claims made by the applicants.

3. The authorities make it clear that the obligation on the Tribunal to consider claims extends to considering claims arising squarely from the material before it, irrespective of whether that is precisely the way in which the claim is put by the applicant(s) (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1).

4. The applicants’ claims are contained in a statement attached to their Protection visa application (CB 60-61).  There was no other documentary evidence or claims submitted to the Tribunal by the applicants.  The two claims raised within that statement were that the Applicant had a pregnancy forcibly terminated by the Chinese authorities in 2012 and that her husband’s business partner in China “ran off” with their money in 2012.  On a fair reading of the Decision Record, no other claim was squarely raised on the material before the Tribunal.

5. The Tribunal summarised the applicants’ claims at [12] of the Decision Record (CB 138-139). At [15]-[39] of the Decision Record (CB 139-143) the Tribunal gave detailed consideration to the entirety these claims, but ultimately rejected the entirety of them at [39]. The applicants’ claims were rejected on the basis of adverse credibility findings it made in respect of the applicants. On a fair reading of the Decision Record, these credibility findings were open to the Tribunal to make on the material before it and for the reasons it gave. Further, findings on credibility are findings of fact which are a function of the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

6. Accordingly, this aspect of the ground raises no arguable case for the relief claimed.

7. The second aspect of ground three of the application raises a claim that the Tribunal was biased against the applicants.  This ground has not been particularised in any further detail, nor was it expanded on during the Applicant’s  oral submissions.

8. An allegation of bias or apprehended bias must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). This has not occurred in the application before this Court.

9. In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], his Honour Von Doussa J stated:

   In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

   The applicants in this proceeding have failed to furnish any evidence in support of their claim in respect of bias.

10. Accordingly, the allegation of bias or apprehended bias raises no arguable case for the relief claimed.

11. I now turn to the Applicant’s oral submissions. Her sole submission at the show cause hearing was that the Tribunal’s decision was unfair, however, she declined to indicate in what, if any, manner such unfairness arose. Having regard to the Court Book and Decision Record, the applicants were validly invited to a hearing before the Tribunal which they attended. At the hearing issues dispositive of the protection application were discussed. The Tribunal complied with its various procedural fairness obligations as prescribed by the Migration Act.

1. The Decision Record itself does not reveal any unfairness, except that the first applicant disagrees with the decision itself.  The findings made by the Tribunal were open to it on the material before it and for the reasons it gave.  Accordingly, this oral submission raises no arguable case for the relief claimed.

Conclusion

1. Neither the pleaded grounds in the application nor the oral submissions made by the first applicant at the hearing raise an arguable case for the relief claimed. On a fair reading of the Court Book and, particularly, the Decision Record no error on the part of the Tribunal is apparent. The application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with the applicants ordered to pay the Minister’s costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 5 March 2015