SZVBX v Minister for Immigration and Border Protection
[2016] FCA 113
•19 February 2016
FEDERAL COURT OF AUSTRALIA
SZVBX v Minister for Immigration and Border Protection [2016] FCA 113
Appeal from: SZVBX & Anor v Minister for Immigration & Anor [2015] FCCA 2463 File number: NSD 1127 of 2015 Judge: MARKOVIC J Date of judgment: 19 February 2016 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
SCAA v Minister for Immigration [2002] FCA 668
SZVBX & Anor v Minister for Immigration and Border Protection [2015] FCCA 2463
Date of hearing: 11 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 35 Counsel for the Applicants: The Second Applicant appeared in person and on behalf of the First Applicant Solicitor for the Respondents: Nicole Maddocks, DLA Piper Australia ORDERS
NSD 1127 of 2015 BETWEEN: SZVBX
First Applicant
SZVBY
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
19 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal from the judgment of the Federal Circuit Court filed on 21 September 2015 be dismissed.
2.The applicants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an application for leave to appeal from a judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the second respondent (at the time the Refugee Review Tribunal) (the Tribunal): see SZVBX & Anor v Minister for Immigration & Anor [2015] FCCA 2463 (SZVBX). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicants Protection (Class XA) visas.
The orders made by the primary judge were made pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (FCC Rules). The orders are therefore interlocutory and the applicants require leave to appeal the orders and judgment in SZVBX pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
The applicants filed their notice of appeal on 21 September 2015 which was within the 14 day period required by rule 35.13(a) of the Federal Court Rules2011. On that basis the Minister submits, and I accept, that the notice of appeal filed by the applicants ought to be treated as an application for leave to appeal.
BACKGROUND
The applicants, a wife and husband, are citizens of China. They arrived in Australia on 20 November 2012 holding tourist visas. On 19 February 2013, the applicants applied for Protection (Class XA) visas. The applicants claimed to fear persecution from government authorities in China because they had breached China’s family planning laws and because, as a result of that, they would be imputed with anti-Chinese government political opinion.
The applicants set out their claims in statutory declarations which accompanied their application for the Protection (Class XA) visas. The first applicant, the wife, made the following claims:
(1)she married the second applicant, her husband, on 26 December 2002. They had two children born in about 2003 and on 16 March 2008 respectively. Birthing permits were issued for both children prior to their birth;
(2)in 2012, the first applicant fell pregnant with her third child. Attempts were made by the applicants to give birth outside China but those attempts failed. The second applicant then attempted to bribe a family planning official with RMB150,000 but, despite the payment, the official did not provide a birthing permit;
(3)on 6 July 2012, the first applicant was forcibly taken from her home by family planning officials and subjected to a forced termination of her third pregnancy;
(4)after the termination, the second applicant tried, but failed, to contact the family planning official who he had bribed. He then decided to complain to the Ministry of Health about the family planning official’s conduct but was told no action would be taken;
(5)in August 2012, the second applicant decided to travel to Beijing to make a complaint to the State Bureau for Letters and Visits (SBLV). However, he was arrested at the airport prior to departure by SBLV and Police Security Bureau (PSB) officers for disruption of social stability, illegal petitioning and harassment of the family planning official. The second applicant was detained for about 15 days;
(6)in early September 2012, the first applicant’s father attended at the local PSB office to voice his concerns about the second applicant’s detention. He became angry while there and shouted at the officials. Later that night her father developed headaches and was dizzy. They took him to hospital. He passed away one week later;
(7)in late September 2012, family planning officials told the first applicant that, due to her breach of the family planning laws, she would need to have a sterilisation operation. The first applicant told the officials that she had not yet recovered from her termination operation. They told her that they would come back after she recovered and make her have the procedure;
(8)in late October 2002, the applicants applied for tourist visas to Australia;
(9)the first applicant fears that if she returns to China and falls pregnant she will be forced to have an abortion, she fears that she will be forced to undergo a sterilisation procedure and she fears that she will be discriminated against, harassed, harmed and mistreated.
In his statutory declaration, the second applicant sets out the details of his arrest on his way to meet with representatives of the SBLV in Beijing and of his detention at Zheng Zhou City, Jinshui District where he says he was mistreated. The second applicant fears that if he returns to China he will be detained, discriminated against, harassed, harmed and mistreated.
On 30 May 2013 the applicants attended an interview with a delegate of the Minister and on 19 August 2013 the delegate refused to grant the visas.
On 20 September 2013, the applicants applied to the Tribunal for review of the delegate’s decision.
On 14 January 2014 the Tribunal invited the applicants to appear before it to give evidence and present arguments relating to the issues arising in their case. The applicants attended two hearings on 9 and 14 May 2014.
On 16 May 2014, the Tribunal wrote to the applicants, pursuant to s 424A of the Act, inviting them to comment on or respond to certain questions which the Tribunal considered would, subject to the response received, be the reason, or part of the reason for affirming the decision under review. In its letter the Tribunal raised a number of aspects of their claims in relation to which they had given inconsistent evidence. A response was provided by the applicants, through their representative, by letter dated 13 June 2014.
On 20 August 2014 the Tribunal made its decision affirming the delegate’s decision not to grant the applicants Protection (Class XA) visas.
THE TRIBUNAL’S DECISION
The Tribunal had significant concerns about the applicants’ reliability as witnesses and did not find either applicant to be a reliable witness. The Tribunal set out a number of aspects of the applicants’ evidence where it found that their statements appeared to be inconsistent and contradictory over time. This included their evidence in relation to:
(1)the form of contraception used after the birth of their second child;
(2)the check ups that the first applicant attended after confirmation of her third pregnancy in January 2012;
(3)seeking legal advice about the termination of the first applicant’s pregnancy and the second applicant’s detention;
(4)contact during the second applicant’s detention in 2012;
(5)the complaint by her father; and
(6)contact with the family planning officials after the termination.
In each case, the Tribunal carefully considered the applicants’ evidence and the explanations given for the inconsistencies in their evidence. The Tribunal accepted that the applicants may not have perfect memory recall, may not be able to recall precise details of events in the past and may have been nervous in their interviews with the delegate and at the hearings before the Tribunal. However, having done that, the Tribunal was not able to accept, in any case, that their responses to the concerns raised by it provided a satisfactory explanation of their inconsistent evidence. The Tribunal’s conclusions were supported by detailed reasons.
When it considered its concerns cumulatively, the Tribunal concluded that neither applicant was a witness of truth or a reliable witness and that the account of their events on which their protection claims were based were false.
In light of its findings on the applicants’ credit and its rejection of their claims, the Tribunal did not accept that, at the time of their departure from China, either applicant was a person of interest to the Chinese authorities in relation to the family planning laws or for any other reason, including the second applicant’s claimed attempts to have petitioned the government in relation to corruption. The Tribunal also considered and rejected the second applicant’s claim that the applicants would be at risk of harm because the Chinese government would assume that they had engaged in anti-government activities in Australia.
Having considered the claims individually and cumulatively, the Tribunal did not accept that there is a real chance that either applicant would suffer serious harm for a convention reason if they returned to China now or in the reasonably foreseeable future. Accordingly the Tribunal found that the applicants did not have a well founded fear of persecution in China. The Tribunal also considered the applicants’ claims based on the alternative complementary protection criterion in s 36(2)(aa) of the Act and found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of either applicant being removed from Australia to China, there was a real risk that they would suffer significant harm.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 17 September 2014, the applicants filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. Their application raised the following grounds (as written):
(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.
On 8 September 2015, the proceedings were listed for a show cause hearing pursuant to r 44.12 of the FCC Rules. Following the hearing, the primary judge dismissed the application pursuant to rule 44.12(1)(a) of the FCC Rules.
The primary judge found at [25] of SZVBX that, insofar as the grounds in the application sought impermissible merits review, the Tribunal’s decision was comprehensive and set out in detail its assessment of the applicant’s claims and evidence. He found that the Tribunal dealt with the integers of those claims and made findings of fact reasonably open to it.
The primary judge observed that, at its highest, ground 1 of the application would be seen as an allegation of bias but that such an allegation could not be sustained in the absence of particulars and evidence: SZBVX at [26].
In relation to ground 2, the primary judge found that the Tribunal provided a procedurally fair review in accordance with the requirements of Division 4 of Part 7 of the Act: SZVBX at [28].
The primary judge found that the Tribunal’s decision showed that the Tribunal examined the applicants’ claims and evidence in fine detail and that it put its concerns about the inconsistencies in the applicants’ evidence to them. The primary judge was of the view that those inconsistencies, considered cumulatively, did support the Tribunal’s adverse credibility findings. Based on his own examination of the decision and the grounds raised by the applicants the primary judge could not discern any arguable case of jurisdictional error by the Tribunal: SZVBX at [30] to [32].
THE DRAFT NOTICE OF APPEAL
The draft notice of appeal sets out the following grounds (as written):
(1).Bias of the Honour, Judge of Federal Magistrate Court against the Applicant.
(2).Error of the Honour, Judge of Federal Magistrate Court, in failing to hear the evidence given by the applicant.
(3).Error of the Honour, Judge of Federal Magistrate Court, in failing to identify the jurisdictional error made by the Second Respondent.
CONSIDERATION
The applicants have not filed any written submissions. The second applicant appeared at the hearing and informed the Court that he was in attendance on his own behalf and on the behalf of the first applicant. When queried, the second applicant suggested that the applicants had not received the Minister’s submissions although he conceded that they may have arrived but, because he does not speak English, he did not take any notice of them. The solicitor for the Minister relied on an affidavit of Rachael Nadine Fresta affirmed 10 February 2016 in which Ms Fresta gave evidence of service of the Minister’s submissions at the two addresses included in the draft Notice of Appeal. Based on that evidence, I accept the submissions were properly served and, given the second applicant’s concession, probably received. In any event, I was informed that a copy of the Minister’s submissions were provided to the second applicant prior to the matter being called on for hearing and read to him by the interpreter.
When invited to make oral submissions at the hearing, the second applicant submitted that:
(1)the primary judge treated the applicants unfairly in relation to their experience of persecution in China; and
(2)the Tribunal member did not believe the applicants’ evidence about the forced termination or the second applicant’s experience in detention.
As already noted the primary judge’s judgment is interlocutory and the applicants need leave to appeal from it. In order to succeed on their application for leave to appeal the applicants must demonstrate that there is sufficient doubt about the correctness of the judgment of the primary judge to warrant review and that, if the judgment of the primary judge is assumed to be wrong, substantial injustice would be suffered by the applicants if leave to appeal were refused: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.
I turn then to consider each of the grounds raised in the draft notice of appeal.
Ground 1 alleges bias on the part of the primary judge. An allegation of bias needs to be distinctly made and clearly proved: see Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [127] (Kirby J). The applicants do not rely on any evidence in support of this ground. It is rare that an allegation of bias will be made out solely on the face of the published reasons: see SCAA v Minister for Immigration [2002] FCA 668 at [38]. In any event, the primary judge invited the second applicant, who appeared at the hearing on behalf of both applicants, to tell him anything that concerned him about the Tribunal’s decision and the process it had followed. The second applicant was not able to do so: SZVBX at [23]. I accept the Minister’s submission that there is nothing to suggest that the primary judge did not approach the hearing of the matter with an open mind. There is no error in the approach of the primary judge.
Ground 2 alleges that the primary judge failed to hear the evidence given by the applicants. The applicants did not file any evidence or submissions before the primary judge. The Minister assumes that this ground must then relate to an alleged failure by the primary judge to consider the applicants’ oral submissions. I agree that must be the intent of the ground. A transcript of the hearing before the primary judge has not been provided. The Minister submits that the second applicant submitted to the primary judge that the Tribunal had looked at the applicants’ case from its view point and rejected their case for certain reasons. Accepting that submission was made, it was considered by the primary judge in relation to ground 1 of the applicants’ application at [26] to [27] where the primary judge said:
26.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.
27.An allegation of bias must be firmly established, distinctly made and clearly proved. The mere fact of adverse findings does not, in itself, reveal bias or pre-judgement. Further, it is rare that an allegation of bias will be made out on the decision record alone. There is nothing to suggest from the Tribunal decision that the Tribunal did not conduct the review with an open mind.
It is also implicit in the primary judge’s findings at [31] of his judgment that he considered that submission more generally where he found:
31.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.
There is nothing before me to suggest that there was any other submission made by the applicants which was not considered by the primary judge. The applicants made no oral submissions in relation to this ground. There is no error in the approach of the primary judge. This ground cannot be made out.
Ground 3 alleges that the primary judge erred by failing to identify jurisdictional error on the part of the Tribunal. It is clear that the primary judge considered the Tribunal decision both on the basis of the applicants’ pleaded grounds and more generally. He could discern no error: SZVBX at [25] and [32]. The Minister submits that the applicants’ pleaded grounds before the primary judge went no higher than to seek impermissible merits review and that the primary judge was correct to find that no arguable case was raised. I accept that submission. There is no error in the approach of the primary judge. This ground cannot be made out.
In relation to the oral submissions made at the hearing, insofar as the applicants contended that the primary judge treated the applicants unfairly because he did not believe that they were persecuted in China, it is not the primary judge’s role to carry out a merits review of the decision of the Tribunal. Rather, the primary judge’s role, which he undertook, was to determine whether the Tribunal’s decision was affected by jurisdictional error. Insofar as the applicants took issue with the credit findings made by the Tribunal, they are seeking impermissible merits review. The applicants’ oral submissions do not disclose any error in the judgment of the primary judge.
The applicants have not demonstrated that there is sufficient doubt as to the correctness of the judgment of the primary judge to warrant review. Nor have the applicants demonstrated that substantial injustice would be suffered if leave were refused, assuming the decision to be wrong.
CONCLUSION
I will make orders dismissing the application for leave to appeal and order the applicants to pay the first respondent’s costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 19 February 2016
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