SZVJU v Minister for Immigration

[2016] FCCA 3110

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3110

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – where second protection visa application made by Applicants – whether the Tribunal erred in confining its consideration to complementary protection and family unit criteria – no jurisdictional error. 

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 424AA, 425

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA

48

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013]

FCAFC 71

SZVCH v Minister for Immigration and Border Protection (2015) 303 FLR 403; [2015] FCCA 2950

First Applicant: SZVJU

Second Applicant: SZVJV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3008 of 2014

Judgment of: Judge Barnes

Hearing date: 17 November 2016

Delivered at: Sydney

Delivered on: 17 November 2016

REPRESENTATION

The Applicants: In Person

Counsel for the Respondents: Mr Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $7,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3008 of 2014

SZVJU

First Applicant

SZVJV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 23 September 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas. 

2. The Applicants are husband and wife and citizens of the People’s Republic of China.  A somewhat complicated procedural background to this matter is described in the delegate’s and Tribunal’s reasons for decision.  The First Applicant came to Australia from China in March 2002.  In June 2002 he applied for a protection visa.  The Tribunal recorded that he claimed to fear returning to China as a Falun Gong practitioner.  That application was considered by reference to the Refugees Convention criterion.  The application was refused by a delegate of the First Respondent.  The decision was affirmed by the (differently constituted) Tribunal in September 2003.  It appears that the First Applicant sought judicial review, but was ultimately unsuccessful, in 2005. 

3. The Second Applicant is the wife of the First Applicant.  After arriving in Australia in 2007 she lodged an application for a protection visa in 2009.  She claimed to fear persecution in China because she was a Christian.  That application was also made and considered on the basis of the Refugees Convention criterion. It was unsuccessful.  The delegate’s decision was affirmed by a (differently constituted) Tribunal in November 2009.  

4. The complementary protection criterion was introduced by amendments to the Migration Act 1958 (Cth) (the Act) which came into effect on 24 March 2012.

5. The next event of significance for present purposes was the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71. Relevantly, the Full Court held that s.48A of the Act, as it stood at the relevant time, did not prevent a person from making a second application for a protection visa, provided the second application was based on a different criterion from that on which the first protection visa application was based.

6. On 24 February 2014 the Applicants did precisely what was contemplated in SZGIZ, in that they made the application for a protection visa that is the subject of the Tribunal review in issue in these proceedings.  The First Applicant made this application on the basis that he feared harm on return to China.  He claimed that his land had been expropriated without fair compensation and his house demolished to build a road; that he had protested against the authorities and public figures; that he had been detained twice by the authorities and had escaped on the first occasion and on the second occasion had been granted bail after his family bribed corrupt officials.  He claimed that he obtained a fraudulent passport to travel to Australia.  He claimed to fear he would be detained for “skipping the bail” and would not be able to claim his rights to compensation or return of the land and that he would continue to protest and to seek compensation. 

7. The Second Applicant completed a Part D application form, which is used for a person who is a member of the same family unit who does not have his or her own claims for protection.  The printed form advised applicants to complete Part C if they had their own claims.  At the time of their protection visa application, the Applicants had the assistance of a solicitor/migration agent who lodged a Form 956 with the Department, witnessed both Applicants’ signatures on the application forms and was appointed authorised recipient. 

8. On 20 June 2014 a delegate of the First Respondent refused to grant the Applicants protection visas.  In reasons for decision, the delegate considered whether the First Applicant met either the Refugees Convention criterion or the complementary protection criterion.  He was not so satisfied and on that basis also concluded that the Second Applicant was not owed protection obligations based on her membership of the First Applicant’s family unit. 

9. The Applicants sought review by the Tribunal. In their review application form, they indicated that they had the assistance of the same registered migration agent, who was the authorised recipient to whom the Tribunal sent relevant documents, including an invitation to a Tribunal hearing on 2 September 2014. Both Applicants attended the hearing. They had the assistance of an interpreter described in the RRT hearing record as a NAATI Level 3 interpreter. They also provided the Tribunal with a photograph of what was said to be their home being demolished and a post-hearing submission responding to matters raised at the hearing under s.424AA of the Migration Act.

10. In its reasons for decision the Tribunal summarised the First Applicant’s claims in connection with the protection visa application. It recorded that he had made this application after he was located by “compliance” in February 2014 at a time at which, according to the Tribunal, he was unlawful.  The Tribunal stated that it was determined that the matter was “SZGIZ-affected” and the First Applicant (referred to for convenience hereafter as the Applicant) was permitted to make the further visa application.  The Tribunal observed that while he had lodged a previous protection visa application claiming to fear harm as a Falun Gong practitioner, he had told it that he had ceased to practise Falun Gong. 

11. The Tribunal recorded that the Second Applicant had completed a Part D application as a member of her husband’s family unit who did not have her own claims for protection.  It also stated:

    At hearing she confirmed she was making no claims in her own right but appearing as a witness for her husband’s claims.  She confirmed that she was not claiming a fear of return but is included in the application as a member of the family unit. 

12. The Tribunal considered the effect of SZGIZ. It stated that while the Full Court of the Federal Court had found that s.48A of the Act did not prevent a non-citizen who had made a valid protection visa application on the basis of the Refugees Convention criterion (in s.36(2)(a) of the Act) from making a further application on the basis of the complementary protection criterion (in s.36(2)(aa)) whilst remaining in the migration zone, “the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application”.  The Tribunal indicated that it had raised these issues and their procedural history with the Applicants at the hearing. 

13. The Tribunal found that the visa application was a valid application because the Applicant was considered “SZGIZ-affected” and had not left Australia since the final determination of his previous protection application before the introduction of the complementary protection criterion. It found that he had standing to make the application to afford hearing of his complementary protection claims, but that as he had previously had his claims for protection assessed under s.36(2)(a) (the Refugees Convention criterion), the Tribunal “must confine its consideration” to whether he satisfied the requirements of s.36(2)(aa) (the complementary protection criterion) and s.36(2)(c) (the family unit criterion in relation to a person who relied on the complementary protection criterion).

14. The Tribunal stated that, as it had indicated at the hearing, it had considered the Applicant’s claims in relation to the complementary protection requirements of s.36(2)(aa) of the Act.

15. The Tribunal summarised the complementary protection criterion and went on to consider the claims and evidence before it, including the post-hearing response to matters raised with the Applicants under s.424AA of the Act.

16. It described the claims made in the protection visa application and recorded that in the Applicant’s departmental interview he had also claimed that if he returned to China he would sue the local government for compensation and that as the village head was like a gangster, he may kill him or harass him every day.  He had also agreed, when asked, that it was probable that the demolition of his house (which he said occurred in 2002) was linked to his claimed practice of Falun Gong.

17. The Tribunal recorded that at the Tribunal hearing the Applicant had indicated that “his” house (albeit still in his father’s name) had been demolished approximately two or three years before he left China (which he did in 2002); that he found out that the house was to be demolished on the day it happened and received no advance notice; and that he tried to stop the demolition and was arrested and detained for half a year until he escaped.  He claimed he fled, but that a month later he was again arrested and detained and released on bail after payment of a bribe.  He claimed he had received no compensation and that his house was demolished because someone more powerful lived across the road.  He produced a photograph of a house that had been demolished and claimed it was his house. 

18. According to the Tribunal, the Applicant also claimed he had practised Falun Gong in China and for about a year after he arrived in Australia, but that when he practised in China, he did not know Falun Gong was banned.  He claimed he had practised right up to the time he departed for Australia.  He confirmed he longer practised Falun Gong.

19. For reasons which the Tribunal set out at some length, it did not accept that the Applicant was a credible witness, that he ever faced the difficulties he claimed in China, or that he feared return for any of the reasons claimed. 

20. The Tribunal did not accept as true that the Applicant’s house was demolished and his farmland taken to build a road which he protested against; that he was detained twice; that he went into hiding and left China in 2002 while on bail. Nor did it accept that he was a Falun Gong practitioner. It found that his testimony was inconsistent and amounted to a fabrication. The Tribunal stated that in making its findings it had considered the photograph of the house and the post-hearing comments and responses to the concerns it had raised, including under s.424AA of the Act.

21. First, the Tribunal had regard to the fact that in his original protection visa application of June 2002, submitted soon after his arrival, the Applicant had not referred in any way whatsoever (either to the Department or the Tribunal) to any fear of return to China because of demolition of his home or the taking of his land to build a road. Rather, he claimed to fear return as a Falun Gong practitioner. When this was put to him via the s.424AA process, the Applicant had claimed that his adviser told him that it was not a Convention reason. The Tribunal did not accept this response as a reason for the Applicant not referring to demolition of his house and his other recent claims, being of the view that if he departed China because of the demolition and detention, he would have raised this in his initial application in 2002, particularly as he told the Tribunal he was living from house to house and had left China in fear of the authorities because of the demolition and subsequent events. The Tribunal found that this added to its finding that the Applicant was not a credible witness as to his claims.

22. The Tribunal also had regard to inconsistencies between the Applicant’s evidence to the first Tribunal and to it as to when and for how long he was detained (including whether he was first detained in 1999 or in May 2001).  The Tribunal stated that it had raised with the Applicant that if he had been detained it would expect he would be consistent as to when he was detained and for how long.  It had given the Applicant the opportunity he sought to respond in writing to this concern, but found that the post-hearing letter did not directly address this issue, except in indicating that inconsistencies in evidence arose because he was nervous and it was a long time ago and that he was under pressure.  The Tribunal accepted that the Applicant may be nervous and under pressure during Department and Tribunal hearings, but was unable to accept that this would account for the divergent dates as to when he was detained.  It was of the view that if he was detained, the Applicant would be consistent as to when this occurred and for how long. 

23. Further, the Tribunal had regard to inconsistencies in the evidence as to when the house was demolished.  The Applicant claimed that his house was demolished in 1999 for a road.  At the hearing, his wife (who, according to the Applicant, lived with him at the time) also stated that the house was demolished in 1999.  However, in connection with her earlier (separate) protection visa application, the wife had told the differently constituted Tribunal in October 2009 that their house was demolished in October 2001. 

24. The Tribunal had regard to the written explanation from the Applicants for the inconsistent dates: that horrible things happened between 1999 and 2001; that it was a long time ago; and that the local government had come to the house twice to demolish it before the actual demolition. They claimed they had been mixed up about dates. However while taking into account that the wife had indicated to it that the house was demolished in 1999, the Tribunal found that there was nonetheless an inconsistency in her evidence. It was unable to accept the Applicants’ reasons for this inconsistency, observing also that while the s.424AA response stated that the fact that the authorities came twice before the house was actually demolished accounted for the difference in dates and confusion, at the hearing the Applicant had indicated “in direct contrast” that he had not received any notice before the house was demolished and had only found out on the day it occurred.  Nor did the Tribunal accept that the inconsistency was due to stress, pressure or nervousness.  It was of the view that demolition of a person’s home was such a significant event that if it had occurred as claimed, the Applicants would be consistent between 2009 and currently as to when it occurred.   

25. The Tribunal also had regard to the fact that, despite his claim to the delegate, the Applicant had not claimed in his protection visa application or at the Tribunal hearing that his house was demolished and land taken because he was a Falun Gong practitioner.  That was so despite the fact he was asked at the hearing on numerous occasions why his house was chosen for demolition. The Tribunal was of the view that if the Applicant’s practice of Falun Gong was a reason, he would have raised it, particularly when questioned on a number of occasions as to the reason for the demolition and his land being taken. 

26. The Tribunal had difficulty in accepting that the Applicant was ever a Falun Gong practitioner in China or Australia.  It recorded that, as it had put to him, contrary to his evidence in the 2014 hearing that he did the exercises and read the texts, he had previously told the first Tribunal that he had not read any Falun Gong publications and did not know any of the basic physical exercises.  It also had difficulty accepting that the Applicant did not know Falun Gong was banned in China at the time he was practising, given that it was banned in 1999 and illegal up to the time he left China in 2002.  It found that he was not credible as to ever being a Falun Gong practitioner.  The Tribunal acknowledged that the Applicant had since claimed that he was no longer a Falun Gong practitioner and was not relying on such practice in the present application, but it found that his evidence as to his past practice added to the finding that he was not a credible witness.

27. The Tribunal also had regard to inconsistencies in the Applicants’ evidence as to where they had lived, whether there was another house at the same address, where the First Applicant’s father had lived and where the wife lived after the demolition, which it detailed.  It found that these inconsistencies were significant.  It was of the view that if their house was demolished, they would be consistent in evidence as to where they were living before and after the claimed demolition and where the Applicant’s father lived. 

28. On the basis of these cumulative concerns, the Tribunal did not believe that the Applicant was being truthful.  It was of the view that he had fabricated claims and concocted evidence to achieve an immigration outcome.  It did not accept his claims that his house was demolished, that he protested and was detained as claimed, or that he was ever a Falun Gong practitioner.  It found that when he left China the Applicant was of no interest to the authorities or the village head or chief for the reasons he claimed. 

29. The Tribunal acknowledged that the First Applicant had been consistent as to some aspects of his claims in his current application, the departmental interview and the Tribunal hearing.  However it was of the view that such information could be easily learnt and that it did not overcome the significant concerns and findings as to his credibility.  Similarly, the Tribunal took into account the fact that the Applicant’s wife was consistent in her evidence to it about the time of demolition and location of the property, but had regard to the inconsistencies with her earlier evidence.  It placed no weight on her supportive evidence as to those matters. 

30. The Tribunal considered the photograph said to be of the Applicant’s house being demolished, but indicated that, as it had raised at the hearing, the photograph could be of any house that had been demolished.  It found that the photograph did not indicate that it was the Applicant’s house that was demolished for the reasons he claimed.  The Tribunal placed no weight on the photograph as evidence of the Applicant’s claims. 

1. The Tribunal did not accept that if the Applicant were to return to China he would be arrested, detained or prosecuted for leaving while on bail; that he would seek compensation from the authorities and the village head and be killed or harassed; that he would seek compensation from the authorities and would be arrested, detained or harmed; that he would continue to protest and would face difficulty from the authorities or anyone else as a result; or that he would sue the local authorities.  As it did not accept that the Applicant was of any interest for these reasons at the time he departed China in 2002 and as nothing further had happened, the Tribunal did not accept that, were he to return, the authorities or anyone else would have any interest in the Applicant.  Given it did not accept the Applicant had ever been a Falun Gong practitioner, it did not accept he would be harmed in any manner whatsoever on this basis. 

2. Further, as the Applicant had submitted a passport that was valid at the time he departed China and had not claimed he would face difficulty because he left on a fraudulent passport, the Tribunal found that it could not be satisfied he would face any difficulty were he to return to China because of the manner in which he departed. 

3. Therefore the Tribunal did not accept that the Applicant met the complementary protection criterion. 

4. The Tribunal was not satisfied that any of the Applicants was a person in respect of whom Australia had protection obligations under s.36(2(aa) of the Act. It found that it followed that they were also unable to satisfy the family unit criterion in s.36(2)(c). It affirmed the delegate’s decision.

5. The Applicants sought review by application filed in this court on 29 October 2014.  There are three grounds in the application.  The Applicants filed written submissions and made oral submissions today. 

6. Before turning to the grounds in the application and raised in submissions, I note that counsel for the Minister provided helpful and detailed submissions addressing the issue of whether the Tribunal’s decision was affected by the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127. The hearing in these proceedings had been adjourned to await that decision. In SZVCH, as in this case, a visa applicant had made an initial application for a protection visa in reliance on the Refugees Convention criterion.  He also made a second application after the complementary protection criterion was introduced.  As in this case, the delegate who refused that claim considered both the complementary protection criterion and the Refugees Convention criterion.  As in this case, the Tribunal in SZVCH affirmed the decision but, in doing so, expressly confined its consideration to the complementary protection criterion and the associated family member criterion.  

7. At first instance (see SZVCH v Minister for Immigration and Border Protection (2015) 303 FLR 403; [2015] FCCA 2950) it had been held that although the visa applicant could only make a valid application in respect of the complementary protection criterion, it was open to the delegate to consider the application by reference to both the complementary protection criterion and the Refugees Convention criterion. Judge Driver also held that as the Tribunal was “bound to review that decision in its entirety” it was obliged to consider the applicability of both criteria where the delegate had elected to do so (at [26]). 

8. However on appeal the plurality (Kenny, Siopsis and Besanko JJ), with whom Dowsett J and Mortimer J largely agreed in separate reasons, held at [44] that the primary judge had erred in holding that it was open to the delegate to consider the second protection visa application by reference to the Refugees Convention criterion in s.36(2)(a) of the Act as well as the complementary protection criterion in s.36(2)(aa) and also in finding that the Tribunal was obliged to consider the applicability of both criteria since the delegate had elected to do so.

9. In this case, as the Minister submitted, the protection visa application was valid.  The fact that the delegate erroneously considered both the Refugees Convention and the complementary protection criteria did not render that decision a nullity.  The Tribunal’s approach in considering only the complementary protection and family unit criteria was correct, in accordance with the approach of the Full Court of the Federal Court in SZVCH. The Tribunal did not fall into jurisdictional error by considering the Applicant’s claims by reference solely to the complementary protection criterion, notwithstanding that the delegate had erroneously considered both the complementary protection criterion and the Refugees Convention criterion.  No jurisdictional error is apparent on this basis. 

10. The first ground in the application is a generally expressed and unparticularised contention that the decision of the Tribunal was affected by procedural fairness.  There was no identification of the basis for this contention in the application.  As pleaded and having regard to the Tribunal decision and the material in the Courtbook, this ground is not made out.

11. The Applicants did not identify any non-compliance by the Tribunal in respect of its procedural obligations in Part 7 of the Migration Act. Nor is any apparent. Insofar as in submissions the Applicant took issue with the conduct of the Tribunal hearing, the difficulty that faces them is, as I pointed out to them in December 2015 when this matter was originally listed for hearing, in the absence of a transcript there is no evidentiary basis for any contention taking issue with what occurred or did not occur in the Tribunal hearing. The Applicants were afforded opportunities, both after their application was filed and after December 2015, to file a transcript of the Tribunal hearing. They did not do so.

12. Further, on the Tribunal’s account of what occurred in the hearing (the only evidence before the court in that respect), it would appear that the Tribunal not only raised dispositive issues with the Applicants as required under s.425 of the Act, but also put to them a number of items of information pursuant to s.424AA of the Act, gave them the opportunity to respond orally or in writing and to seek additional time and that the Applicants answered orally in part but also sought and were given additional time to reply in writing. The Applicants’ written response was considered by the Tribunal.

13. Ground 1 is not made out. 

14. Ground 2 is also generally expressed (without particulars).  It contends that the Tribunal failed to take into account “relevant considerations”.  As expressed, this ground is not made out.  The Tribunal considered the integers of the Applicants’ claims.  It properly confined its consideration to the complementary protection and the family unit criteria.  I note that the Second Applicant expressly confirmed to the Tribunal that she made no claims in her own right, that she was not claiming a fear of return to China and that she was included in the application as a member of her husband’s family unit.  The Tribunal considered this claim.

15. Insofar as the Applicants intended to assert that the Tribunal failed to have regard to factual or other matters, such as the circumstances of the Applicant or material they provided, such claim is not made out.  In particular, there is nothing in the material before the court to indicate that the Tribunal failed to have regard to critical evidence in the sense considered in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317. If this is intended to be a contention that the Tribunal should have made further inquiries or conducted its own investigation, the Tribunal is under no general obligation to make inquiries and no critical fact, the existence of which was easily ascertained, in relation to which the Tribunal may have had an obligation to inquire has been identified (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39). The Tribunal had regard to the photograph provided by the Applicants and to their post-hearing submission. Ground 2 is not made out.

16. Ground 3 is that the decision of the Tribunal gave rise to an apprehension of bias in the mind of a reasonable observer.  It is usually unhelpful to look at the reasons of a decision-maker to confirm an apprehension of bias because, of necessity, at the time reasons are given the decision-maker has made up his or her mind (see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63). Beyond this, insofar as the Applicants may have intended to rely on what occurred in the Tribunal hearing, there is no transcript. There is nothing in the Tribunal reasons that is in any way supportive of a claim of apprehended bias seen from the perspective of the hypothetical fair-minded lay person properly informed as to the nature of the proceedings, the matter in issue and the conduct said to give rise to an apprehension of bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28.

17. Insofar as this ground might also be taken as an allegation of actual bias, it is well-established that it is a rare and exceptional case in which actual bias would be established from tribunal reasons alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). The Tribunal’s reasons are not indicative of prejudgment. Its findings were reasonably open to it on the material before it. Neither actual nor apprehended bias is established on the material before the court. That is so not only having regard to the ground as pleaded but also having regard to the specific issues raised by the Applicants, which I will address.

18. In written submissions filed on 1 December 2015 the Applicants complained that at the beginning of the Tribunal hearing the Tribunal member had “instructed” them on the definition of refugee and had pointed out that there were two different criteria (the Refugees Convention criterion and the complementary protection criterion), but informed them that the Tribunal would only consider the complementary protection criterion, having regard to the earlier consideration of the Refugees Convention criterion in the Applicant’s first protection visa application.  The Applicants submitted that the Tribunal erred in failing to consider both criteria as the delegate had done.  

19. It appears this submission was based on reasoning such as was adopted at first instance in SZVCH.  However, for the reasons set out above, the Tribunal was correct to proceed on the basis that it should consider only the complementary protection (and family unit) claims, consistent with SZGIZ (and now SZVCH).  It did not fall into error in not considering the First Applicant’s claims to protection against the Refugees Convention criterion as well as the complementary protection criterion.  It had regard to the Second Applicant’s claims based on her membership of the First Applicant’s family unit.

20. It was also contended that the standard of interpretation at the Tribunal hearing was such that it led the Tribunal to misunderstand the Applicant’s evidence.  Examples were given of what the Applicant now claims he told the Tribunal about the length of his detentions and what the interpreter was said to have said, and as to the name of the detention centre.  However, as was pointed out to the Applicants in December 2015, if they wished to substantiate such claims, they had to file a transcript of the Tribunal hearing identifying errors in interpretation.  They did not do so.  In the absence of a properly translated transcript, this contention cannot be made out. 

21. Third, the Applicants contended that in “the whole hearing the Tribunal member did not ask the detail of what we have suffered in China”.  In the absence of a transcript, any jurisdictional error based on this claim cannot be made out.  In any event, it was for the Applicants to make good their claims, to advance whatever evidence or argument they wished to advance and for the Tribunal to decide whether the claims were made out (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60). The Tribunal’s obligation to make its own inquiries is strictly limited (see SZIAI).  It is generally not obliged to make out an applicant’s case. 

22. The Applicants also took issue with the fact that in what was described as a “short one hour”, the Tribunal member “has said several times of my credibility” (sic).  This would appear to take issue with the fact that the Tribunal raised credibility concerns with the Applicant at the hearing.  Again, there is no evidentiary basis for any concern in this respect.  However, having regard to the Tribunal’s obligation to raise dispositive issues with an applicant, even if this were the case (and the Tribunal reasons do indicate that the Tribunal raised issues of concern with the Applicant), that would not in itself be indicative of jurisdictional error ,whether consisting of a lack of procedural fairness, an apprehension of bias, actual bias or otherwise.

23. Finally, in written submissions the Applicants contended that the delegate may have misstated the First Applicant’s visa issue, having regard to a document headed Visa Entitlement Verification Online annexed to their submission (in particular, as to whether the First Applicant had held a valid visa at all times).  Whether or not this is so is not a matter that I can determine on the material before me, but there is no need that I do so.  That issue was not the subject of the Tribunal consideration or decision.  Even if the Applicants’ concerns in that respect were to be justified, this would not be indicative of jurisdictional error on the part of the Tribunal. 

24. None of the matters raised in the written submissions establish jurisdictional error. 

25. The Applicants also raised a number of issues at the hearing today.  First, the Second Applicant, who spoke for both Applicants, suggested that the fact that circumstances had changed since the earlier protection visa application was not a basis for refusal of the visa application. 

26. However a change in circumstances was not the basis on which the Tribunal refused the application.  Rather, it understood that the First Applicant’s original claims had been based on being a Falun Gong practitioner, but that his 2014 claims were based on the house demolition and related issues.  It considered the claims that were made to it in 2014.  It was open to it to have regard to inconsistencies and concerns in relation to the Applicants’ earlier evidence in the manner in which it did. 

27. Insofar as the Applicants, both initially and in reply, reiterated that they had a fear of return to China, this seeks impermissible merits review. 

28. It was also submitted that the case was not properly reviewed by the Tribunal.  In that context issue was again taken with what occurred at the Tribunal hearing.  It was suggested that the Tribunal had just briefly asked them questions and then repeated what was in the previous decision and that it seemed to have assumed that because the previous application was declined, this application should also be declined. 

29. Again, the fundamental difficulty that faces any such contention is the absence of a transcript of the hearing.  Moreover, the Tribunal did not reject the Applicant’s credibility or find that he did not meet the complementary protection criterion on the basis of the earlier refusal.  It engaged in an independent assessment of the claims under the complementary protection criterion.  These were new claims which had not been raised in the earlier protection visa application or previously considered by the Tribunal. 

30. The Second Applicant also submitted, somewhat confusingly, that they had had no help from a migration agent or solicitor while the matter was before the Department or the Tribunal.  This is contrary to the material in the Courtbook and in any event is not indicative of jurisdictional error.  

31. She also submitted that she had not understood that there was a complementary protection criterion.  This claim is in contrast to the Applicants’ written submission, which states that this criterion was drawn to their attention in the Tribunal hearing.  I note also that the Applicant was permitted to make a second visa application on the basis of being “SZGIZ-affected”.  In any event, these concerns are not indicative of jurisdictional error on the part of the Tribunal. 

32. The Second Applicant also complained that she did not know that she could submit an application in her own right and stated that she thought that she could only apply as a member of her husband’s family unit.  She complained that she was not told by the delegate or the Tribunal that she could have applied a second time in her own right. 

33. This claim contrasts with the Second Applicant’s history as a separate applicant for a protection visa, but in any event the Tribunal recorded that at the hearing she had confirmed that she was making no claims in her own right and was not claiming a fear of return to China, but was included in the application as a member of the family unit.  Any lack of knowledge on the Second Applicant’s part as to whether she could make complementary protection claims in a separate second application is not indicative of jurisdictional error on the part of the Tribunal. 

34. More generally, it has not been established that the Tribunal erred in the manner in which it considered the Applicants’ claims, whether by reference to the complementary protection criterion or the family unit criterion, having regard to the Second Applicant’s acknowledgment (referred to in the reasons for decision) that she was making no claims in her own right. 

35. The Applicants also claimed that the fact that the Department made what was described as an “error” in referring to their visa history indicated that the matter was not taken seriously enough.  However, these proceedings involve a review of the Tribunal decision.  Nothing said in this respect in the delegate’s decision has any implications for or raises any issues in relation to the Tribunal’s de novo review and decision. 

36. The Applicants also appeared to assert a denial of procedural fairness on the basis that their claim failed simply because the first protection visa application failed, that it was unfair to doubt the Applicant’s claims and biased and that there should be a clear investigation by the Tribunal.  It was suggested that the Tribunal should look at the Applicants’ life in Australia over more than 10 years and that it would then understand and accept their credibility. 

37. As indicated, the Tribunal did not simply decide the case on the basis that the earlier application had failed.  The Tribunal’s credibility findings were reasonably open to it on the material before it for the reasons which it gave and are not indicative of bias.  The Tribunal was under no obligation to conduct a general investigation, particularly of the nature contended for by the Applicants. 

38. When I asked the Second Applicant if she wished to address the specific grounds in the application further, she had nothing to add to ground 1.  The issues she raised do not in any way to establish a denial of procedural fairness.

39. Relevant to ground 2, the Applicants appeared to contend that the Tribunal had failed to have regard to some extra information. However it considered the claims made by the Applicants, the documents they submitted and the response to the s.424AA material. The fact the Applicants disagree with the Tribunal conclusion is not indicative of jurisdictional error. Insofar as issue was taken with the nature and/or extent of the Tribunal questioning of the Applicants at the Tribunal hearing, there is no evidentiary basis for any complaints in that respect.

1. The Second Applicant repeated her understanding that there were two criteria for a protection visa and submitted that the Tribunal should have considered both the complementary protection criterion and the Refugees Convention criterion.  As indicated, the Tribunal did not fall into error in not considering the Refugees Convention criterion. 

2. The Applicants’ oral submissions do not establish or give rise to any concern as to the existence of possible jurisdictional error on the part of the Tribunal. 

3. As no jurisdictional error has been established on any of the bases contended for by the Applicants and nor is any apparent having regard to the decision of the Full Court of the Federal Court in SZVCH, the application must be dismissed.

4. The Applicants have been unsuccessful.  The Minister seeks costs in the sum of $7,500.  This is explained on the basis that there were two hearings in this matter and a need for additional extensive submissions in light of the legal issues arising.  The Applicants wondered whether there was any chance for an exception.  However, on the material before me there is nothing in the circumstances of this case to warrant a departure from the normal principle that unsuccessful applicants should meet the costs of the First Respondent. 

5. In the particular circumstances of this case and bearing in mind that the adjournment was not only for the purpose of awaiting developments in the law but also to enable the Applicants to file a transcript of the Tribunal hearing (although they did not, in fact, avail themselves of that opportunity) I consider that the amount sought is reasonable and appropriate having regard to the nature of this and other similar matters.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 2 December 2016