SZVXS v Minister for Immigration

[2016] FCCA 415

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 415

Catchwords:
MIGRATION – Review of decision of the former 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)

Minister for Immigration v Jia (2001) 205 CLR 507
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982

SZRUI v Minister for Immigration [2013] FCAFC 80

Applicant: SZVXS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3636 of 2014

Judgment of: Judge Driver

Hearing date: 1 March 2016

Delivered at: Sydney

Delivered on: 1 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong of DLA Piper

INTERLOCUTORY ORDERS

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

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is 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 3636 of 2014

SZVXS

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 to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 5 December 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The background to the applicant’s claims, and the decision of the Tribunal on them, are set out in the Minister’s outline of submissions, filed on 16 February 2016. 

3. The applicant is a male citizen of China, who applied for a protection (Class XA) visa on 1 July 2013.  In a statement submitted with the application, the applicant made the following claims:

   a)the applicant's parents had run a successful business in China until 2013.  China launched a campaign against Triads and regulating authorities;

   b)the applicant's parents witnessed other business owners being falsely accused of illegal activities.  In response, the applicant's father hired a solicitor and wrote to anti-corruption agencies at the Provincial level.  As a result, the applicant's father was arrested, tortured and forced to sign a false confession.  The applicant's father travelled to Indonesia to look for new opportunities and escape further persecution;

   c)as the applicant's father left China while he was on bail, the applicant's mother and younger sister have been called to the police station for questioning and are under surveillance.  The applicant has been pressured to return and make a full statement.

4. On 28 November 2014, the delegate refused the grant of the visa and did not accept that the applicant's parents ran a business and rejected all associated claims regarding past circumstances.

5. The applicant appeared before the Tribunal on 28 November 2014.

The decision of the Tribunal

1. The Tribunal did not accept that the applicant's father was harassed, detained or mistreated by the authorities as claimed because the applicant's evidence was implausible, there was a lack of any independent evidence to support the applicant's claims[1].

   [1] at [16]

2. The Tribunal held the applicant was not a credible witness and had fabricated his evidence in order to prolong his stay in Australia, on the basis that:

   a)the applicant's travel history, and failure to contact the Department after his student visa expired, indicated that he had a long term plan to remain in Australia and that he had claimed protection to prolong his stay;

   b)the applicant's failure to engage with the Australian and/or Chinese authorities after his passport expired in January 2011, indicated that the applicant had little/no regard for the conditions and requirements set on his visa and/or his entry to Australia.  It also indicated that the applicant wished to stay in Australia for the long term;

   c)the applicant had not contacted his mother and/or his sister for a period of over one year.  The Tribunal found that if the applicant was concerned about their welfare he would have made efforts to try and contact them in China.

3. At the hearing, the applicant's agent raised issues about the standard of interpreting and made submissions based on what she believed the applicant has said or meant.  The Tribunal found that at no stage during the hearing, did the applicant indicate that he was unable to understand the interpreter or that he objected to the interpreter.  The Tribunal concluded that the interpreting was completed competently and that the applicant had the opportunity to provide all evidence that was relevant to his claims[2].

   [2] at [20]

The present proceedings

1. These proceedings began with a show cause application filed on 24 December 2014.  The applicant continues to rely upon that application.  The grounds in it are:

   1. RRT has bias against me when I say I didn't study in Australia.

   2. RRT didn’t give me procedural fairness.

   3. RRT asked too many questions in a short time, and I didn’t have enough time to respond and even didn’t remember the questions.

2. The application is supported by a short affidavit which I received. 

3. I also had before me, as evidence, the court book filed on 13 March 2015. 

4. Only the Minister had prepared written submissions in accordance with orders made by Registrar Morgan on 19 March 2015. 

5. I invited oral submissions from the applicant today and reminded him of the grounds set out in his application.  He said, in relation to Ground 3, that the Tribunal had asked him many questions in quick succession towards the end of the Tribunal hearing and had not given him any opportunity to respond.  The difficulty with that submission is that there is no evidence to support it.  The applicant has not complied with order 3 made by Registrar Morgan on 19 March 2015.  There is no transcript available of the Tribunal hearing.  Indeed, the applicant conceded that he had not brought with him the sound recording of that hearing.  As I explained to the applicant, the allegation goes nowhere in the absence of supportive evidence.

6. I asked the applicant to expand upon his assertion of bias.  He referred to the Tribunal repeatedly asking him questions in circumstances where he had already explained his reasons for remaining in Australia to the Minister’s delegate.  That, however, does not indicate any bias.  The applicant had sought review of the delegate’s decision before the Tribunal and the Tribunal appropriately explored the issues with him.  When I invited further submissions to the applicant going to the process followed by the Tribunal, he referred instead to what he sees as the unsatisfactory outcome.

7. In my opinion, the applicant is not able to demonstrate any arguable case of jurisdictional error by the Tribunal.  The Minister’s submissions deal adequately with the grounds of review advanced. 

Ground 1

1. The applicant appears to suggest that because he told the Tribunal that he had not successfully completed any course of study in Australia, and that he had not contacted the Department or any other government agency, that the Tribunal was "biased" against him in finding that the applicant wanted to stay in Australia for the long term.

2. An allegation of bias must be firmly established and distinctly made and clearly proved[3]. 

   [3] 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)

3. The Tribunal gave cogent reasons as to why it found that the applicant wished to stay in Australia for the long term; the fact that the applicant arrived on a student visa and had not left Australia since first entering; that the applicant had only studied for a two month period upon arriving in Australia; and the applicant's failure to engage with the authorities when his passport expired. These reasons are set out in some detail at [16]. The Tribunal's conclusions were open to it to make, on the evidence before it.

Ground 2

1. The second ground is too broad to be meaningful.

Ground 3

1. In relation to the allegation that the Tribunal “asked too many questions in a short time and I didn’t have enough time to respond”, the inquisitorial nature of the Tribunal’s proceedings must be taken into account, such that the Tribunal is necessarily required to test an applicant’s evidence, often vigorously[4].  

   [4] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982

   Ex parte H at [29]-[30]; SZRUI v Minister for Immigration [2013] FCAFC 80 at [4] per Allsop CJ, [24] per Flick J, [87] per Robertson J

2. The applicant has not put on a transcript to make good the assertion that the Tribunal asked “too many questions” in a short space of time. 

3. Accordingly, this ground must fail.

4. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

6. I will order that the applicant is 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 twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 March 2016