SZVBX v Minister for Immigration
[2015] FCCA 2463
•8 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVBX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2463 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425, 425A, 441A Migration Regulations1994 (Cth) |
| Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re JRL; Ex parte CJL (1986) 161 CLR 342 SZBYR v Minister for Immigration (2007) 235 ALR 609 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 |
| First Applicant: | SZVBX |
| Second Applicant: | SZVBY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2576 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2015 |
REPRESENTATION
| The Second Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Maddocks of DLA Piper |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to the Administrative Appeals Tribunal.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2576 of 2014
| SZVBX |
First Applicant
| SZVBY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 20 August 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants who are a wife and her husband. The first applicant is the applicant wife. They claimed a fear of persecution in China by reason of the Chinese one child policy.
Background facts relating to the claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions, filed on 1 September 2015.
The applicants are wife and husband citizens of China.[1] They arrived in Australia on 20 November 2012 as the holders of tourist visas.[2]
[1] Court Book (CB) 101-102
[2] CB 15, 30
The applicants applied for the visas on 19 February 2013.[3]
[3] CB 2-42
The applicants both claimed to fear persecution by Chinese authorities as a result of breaching China's family planning scheme, and that such a breach would result in an imputed anti-Chinese government political opinion. The applicants also claimed to generally fear discrimination, harassment, and mistreatment if they were to return to China.
The first applicant claimed to fear harm as a result of having to forcibly abort her third pregnancy in July 2012, her husband bribing a family planning official a couple of months prior to this, her husband's arrest in August 2012, and her father's death in September 2012 following an incident where he expressed his concern in relation to the second applicant's arrest to the local Public Security Bureau (PSB).[4] The applicant also claimed to fear future harm in that she would be forcibly sterilised if she returned to China, or forced to abort any future pregnancies should she fall pregnant again.[5]
[4] CB 70-73
[5] CB 74
The second applicant claimed to fear harm by Chinese authorities following his arrest and detention in August 2012.[6]
[6] CB 76-78
The delegate refused to grant the visas on 19 August 2013.[7] The delegate found that the applicants were not credible witnesses with regard to their key claims.
[7] CB 139-159
The first applicant applied to the Tribunal for review of the delegate's decision on 20 September 2013.[8] On 23 September 2013, the Tribunal received a facsimile from the applicants' agent requesting that the application be amended to include the second applicant,[9] and the application was amended accordingly.[10]
[8] CB 161-166
[9] CB 199
[10] CB 200-203
The applicants attended two hearings before the Tribunal on 9 May 2014[11] and 14 May 2014.[12]
[11] CB 260-261
[12] CB 282-284
On 16 May 2014, the Tribunal wrote to each applicant separately pursuant to s.424A of the Migration Act 1958 (Cth), and invited them to comment on aspects of their claims for which they had given inconsistent evidence.[13] After receiving an extension of time to respond, the Tribunal received a response from the applicants' agent on 13 June 2014.[14]
[13] CB 306-312, 313-319
[14] CB 333-340
The Tribunal decision
The Tribunal found that the applicants’ account of events appeared to be inconsistent and contradictory over time, having regard to their written evidence to the Department, evidence provided at the delegate’s interview, evidence provided within their written submissions, and evidence provided at the hearing.[15] The Tribunal outlined the inconsistencies at [85] to [109]. The Tribunal considered the applicants’ responses, and while accepting that the applicants may not have perfect memory recall, may have been nervous in their interview with the delegate, and at the Tribunal hearings, it did not accept that their responses provided a satisfactory explanation for the Tribunal’s concerns.[16]
[15] see [82], [110]
[16] see [111]
The Tribunal ultimately found that the applicants were not reliable or credible witnesses[17] and rejected the applicants' claims as fabricated:[18]
a)the Tribunal did not accept that the first applicant was pregnant in early 2012 or at any other time in 2012.[19] The Tribunal also did not accept that the first applicant had any contact with family planning officials in 2012, or that her pregnancy was forcibly terminated in July 2012;[20]
b)as a result, the Tribunal did not accept that the second applicant bribed an official to obtain a birth permit or that he was ever arrested as claimed.[21] The Tribunal also did not accept that the first applicant’s father made a complaint in 2012;[22]
c)the Tribunal did not accept that the applicants were persons of interest to the Chinese authorities in relation to the Family Planning laws or regulations, or for any other reason;[23]
d)the Tribunal was prepared to accept that the applicants had two children, but did not accept that Family Planning officials had tried to contact the applicants since they departed China, as claimed.[24] As such, the Tribunal did not accept that there was a real chance that either applicant would suffer serious harm by way of forced sterilisation or other penalty through the application of the Family Planning laws and regulations of China;[25]
e)in respect of claims raised by the second applicant at the second hearing before the Tribunal, the Tribunal did not accept that the applicants had been trying to have a third child while they were in China and did not accept that they would attempt to do so on return to China.[26] The Tribunal also did not accept that the applicants would be at risk of harm for reason that the government would assume that they had engaged in anti-government activities in Australia, as claimed.[27]
[17] see [84] and [110]
[18] see [113]
[19] see [113]
[20] see [113]
[21] see [113]
[22] see [113]
[23] see [114]
[24] see [115]
[25] see [115]
[26] see [116]
[27] see [117]
In consequence, the Tribunal did not accept that there was a real chance either applicant would suffer serious harm for a Convention reason if they were to return to China now or in the reasonably foreseeable future.[28]
[28] see [118]
The Tribunal also found that there were no substantial grounds for believing there was a real risk either applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.[29]
[29] see [120]-[123]
The present proceedings
These proceedings began with a show cause application, filed on 17 September 2014. The applicants continue to rely upon that application. The grounds in it are:
1. RRT have descriminatio on me, failed to consider my real situation and my husband's real situation.
2. RRT is unfair to me and my husband.
(errors in original)
Only the second applicant, the applicant husband, has participated in today’s hearing and in the first court date hearing on 30 October 2014. He told me that his wife was afraid to come to court because of her fear of authority. He told me that he was authorised to speak on behalf of her, as well as on behalf of himself.
At the first court date I provided the applicants with the opportunity to file and serve an amended application and additional evidence, as well as legal submissions. They have not taken up that opportunity.
The applicants nominated as their address for service the postal address: PO Box K1132, Haymarket, New South Wales 1240. At the first court date I had a discussion with the second applicant about that address. I was concerned that it may be the address of an unregistered migration agent and that correspondence sent to that address might not be received by the applicants. The second applicant conceded that the postal address was not his, and suggested that correspondence should be sent to an email address which he provided.
The second applicant confirmed today that he had received correspondence sent to that email address. He denied receipt of the court book which was filed on 6 November 2014 and sent, under cover of a letter dated the same day, to the postal address.[30] I accept that that letter was not received by the applicants, consistently with my fears expressed at the first court date. I provided the second applicant with a copy of the court book from the file and explained to him the contents of it. I do not consider that the applicants have been unfairly disadvantaged by the late provision of the court book.
[30] See exhibit R1
I received the court book as evidence, as well as the short affidavit made by the applicants in support of their application, on 17 September 2014.
I explained to the applicant husband the difficulty posed by the template grounds of review in the show cause application. He explained that he was ill-equipped to deal with legal issues and saw little point in repeating the protection claims that he and his wife had made. I agreed.
I explained to the second applicant the statutory nature of the Tribunal and what I saw as the more significant statutory obligations on the Tribunal. I invited him to tell me of anything that concerned him about the Tribunal decision or the process followed by it. He was not able to do so.
The Minister’s submissions deal with the grounds of review advanced. I agree with those submissions.
The grounds in the application take issue with the Tribunal’s findings and as such, seek impermissible merits review[31]. The Tribunal decision is comprehensive and sets out in detail its assessment of the applicants' claims and evidence. The Tribunal dealt with the integers of the applicants' claims and made findings of fact reasonably open to it.
[31] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
At its highest, Ground 1 may be viewed as an allegation of bias. Such an allegation cannot be sustained in the absence of proper particulars and evidence.
An allegation of bias must be firmly established, distinctly made and clearly proved.[32] The mere fact of adverse findings does not, in itself, reveal bias or pre-judgement.[33] Further, it is rare that an allegation of bias will be made out on the decision record alone.[34] There is nothing to suggest from the Tribunal decision that the Tribunal did not conduct the review with an open mind.
[32] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J); Minister for Immigration v Jia (2001) 205 CLR 507, 531 [69] (Gleeson CJ), 546 [127] (Kirby J)
[33] WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
[34] SCAA v Minister for Immigration [2002] FCA 668 at [38] per Von Doussa J, see also Minister for Immigration v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ
In so far as ground two alleges that the Tribunal was unfair, the Tribunal complied with its requirement to provide a procedurally fair review in accordance with Division 4 of Part 7 of the Migration Act:
a)the applicants were invited to, and attended, two hearings before the Tribunal. The dispositive issues on review were discussed at those hearings. The Tribunal complied with the hearing rule codified in s.425 of the Migration Act. Further, the hearing invitations complied with the statutory requirements as to content and dispatch provided in ss.425, 425A and 441A of the Migration Act, and regulation 4.35D of the Migration Regulations 1994 (Cth);
b)the Tribunal also sought to disclose information pursuant to s.424A of the Migration Act with the applicants by three invitations to comment, each dated 16 May 2014 (the first of which was issued jointly and withdrawn, by the Tribunal). The information put to the applicants concerned inconsistencies in their evidence and probably did not enliven the Tribunal’s ss.424A obligations because they did not, in their terms, contain a rejection, denial or undermining of the applicants’ refugee claims.[35] As held by the majority in SZBYR at [18]:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
[35] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]; SZTGV v Minister for Immigration [2015] FCAFC 3 at [18]
Nevertheless it was not an error for the Tribunal to put information to the applicants in circumstances where its s.424A obligations were not enlivened.[36]
[36] SZGIY v Minister for Immigration [2008] FCAFC 68, [30].
As I explained to the second applicant during oral argument, the Tribunal decision discloses that it examined in fine detail the applicants’ claims and evidence. It provided the opportunity for the first and second applicants to give evidence, both separately and together, over two hearings.
The Tribunal had concerns about inconsistencies in the applicants’ evidence on a range of specific matters which, considered singly, might not amount to matters of great significance but which, considered cumulatively, supported the adverse credibility conclusions reached by the Tribunal. The substance of the Tribunal’s concerns was put to the applicants purportedly pursuant to s.424A of the Migration Act.
In my opinion, neither the grounds in the show cause application nor my own examination of the Tribunal decision points to any arguable case of jurisdictional error by the Tribunal.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
I will further order that the name of the second respondent be amended to the Administrative Appeals Tribunal.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The second applicant claimed impecuniosity but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.
I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 September 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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