SZSJL v Minister for Immigration & Anor [2013] FCCA 1388 (4 September 2013)

Last Updated: 23 September 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJL v MNISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1388

Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal properly considered complementary protection – whether Tribunal’s decision could give rise to apprehension of bias – whether tribunal fell into jurisdictional error.

Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 65

Minister for Immigration & Anor v Jia Legeng (2001) 205 CLR 507 SZHVL v Minister for Immigration & Anor [2008] FCA 356 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; [2001] 179 ALR 425

Applicant:

SZSJL

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2924 of 2012

Judgment of:

Judge Raphael

Hearing date:

4 September 2013

Date of Last Submission:

4 September 2013

Delivered at:

Sydney

Delivered on:

4 September 2013

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Ms A Douglas-Baker

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 2924 of 2012

SZSJL

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who first arrived in Australia from New Zealand on 2 May 2010. On 13 October 2011 he applied to the Minister for a protection (Class XA) visa under s.65 of the Migration Act 1958^[1]. On 2 March 2012 a delegate of the Minister refused to grant the applicant a protection visa and on 29 March 2012 he applied for review of that decision from the Refugee Review Tribunal. The applicant was invited to attend a hearing before the Tribunal and did so in the company of his agent on 30 May 2012. On 15 November 2012 the Tribunal determined to affirm the decision not to grant the visa.
2. The factual background to the applicant’s claim to be a person to whom Australia owed protection obligations was that he was a departmental manager at a coal washing plant where the chief officer of the plant was a cousin or a brother of the mayor of the city in which the applicant lived. Between 2005 when he commenced work in the plant and August 2009 he discovered that the manager was participating in corrupt activity with the local government officers. As a result of this activity, which seems to have consisted of lavish entertainment for the government officials and the passing of money, the plant got government development funds and was able to avoid being audited. This, the applicant said, enabled the manager to live a luxurious lifestyle which would not have been paid for by his normal wages.
3. The applicant told that in about August 2009 he reported these matters to the local provincial government. About a month later he received a telephone call from someone in the government and was told that it was not the truth, that the mayor was a good public servant and that he should stop making up rumours about him. At the end of September 2009, shortly after the call he was approached by his boss and three workers and challenged about the report he had made and was beaten. He said he was beaten several times and decided that he would have to leave the country for his own safety. He already had a passport but he obtained another one and arranged to travel to Australia by way of New Zealand which he did in the end of April, beginning of May 2010. The applicant told that he had reported the incidents in which he was beaten to the police. He had been hospitalised on two occasions.
4. The Tribunal questioned the applicant upon his story and noted that he had provided no corroborative evidence of any of the facts:
   • “[57] The applicant has provided no documentary or any other corroboration for his claims to have discovered, and to have made a written report of, corruption or to have been assaulted and had his house damaged for that reason. The applicant stated that he had reported to the police two assaults which led to his hospitalisation and three instances of property damage, but he has not provided any corroborating material for those matters, such as hospital or medical records or a copy of his own report of corruption or any of the material upon which he based the report.
   • [58] The applicant’s only explanation for not providing corroborative material was that at the time he left China he was not thinking of seeking protection. This is contrary to his evidence that he was in fear when he left China and that he intended not to return.” [CB 86 – 87]

5. The applicant was also questioned about his reasons for his delay both in leaving China from September 2009 until April 2010 and then his delay in not applying for protection between his arrival in Australia on 2 May 2010 and 13 October 2011.
6. In its findings and reasons the Tribunal came to the conclusion that the applicant’s story could not be believed. The Tribunal’s decision was heavily influenced by the delays in leaving China and the delay in applying for protection, the fact that the applicant did not apply for protection in New Zealand and the lack of any corroborative evidence. The Tribunal was also concerned at the fact that the applicant did not report the corruption at some earlier stage and whilst the Tribunal’s concern on this matter and upon the fact that the applicant was permitted to leave the country without any difficulty might not have been considered of importance by another Tribunal, it is not for this court to interfere in what is essentially a merits review.
7. The Tribunal found that the applicant did not have a genuine fear of persecution for a convention reason if he were to return to China and in relation to the complementary protection criteria stated:
   • “[67] Having concluded that the applicant does not meet the refugee criteria in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under section 36(2)(aa).” [CB 88]
8. Now this formulation of the Tribunal’s decision in relation to the complementary protection obligations is fraught with danger. The criteria for the two forms of protection are different and this court has expressed in the past its concern that formulations such as the one adopted here could fall to be considered in error because it is not sufficiently explained how the Tribunal has considered the particular criteria in s.36(2)(aa) of the Act. In the instant case it could be inferred, should the applicant return to China, there would not be a real risk that he would suffer significant harm in that country. The gravamen of the Tribunal’s conclusions is that he is a Chinese citizen who has not run into any trouble with the authorities. But this court does not consider it appropriate that it should have to delve into these matters. They should be expressed clearly on the face of the decision and whilst it may not be a jurisdictional error not to do so, it is a practice that the court considers to be inappropriate.
9. On 11 December 2012 the applicant filed an application for review of the Tribunal’s decision with this court. There were three grounds. The first was:
   • “1. The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.”

As has been said on many occasions by this court and the courts above it, it is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration & Anor v Jia Legeng (2001) 205 CLR 507 [69] per Gleeson CJ and Gummow J.

10. In SZHVL v Minister for Immigration & Anor [2008] FCA 356 McKerracher J at [17] noted:
    • “[17] It would be a rare and extreme circumstance that bias on the part of a tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration & Anor [2002] FCA 668 [38] per von Doussa J.”

The test for apprehended bias as set out in Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; [2001] 179 ALR 425 at [27] is:

“[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
[28] ...To a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings. ...

If the court applied this test to the only evidence before it, namely the court book, there is nothing found there that would indicate that the Tribunal could be thought of as having such a closed mind. This ground cannot be sustained.

11. The second ground of the application was:
    • “2. RRTs unreasonable suspect of the truthfulness of the applicant’s claims just because of the lack of evidence.”
12. I agree with Ms Douglas-Baker, in her helpful written submissions, that this ground would appear to refer to the Tribunal’s concern about the lack of corroborative evidence. As there was a concern raised by the delegate about the lack of corroborative evidence, and there was some considerable time between that decision and the applicant’s appearance before the Tribunal, the applicant would have been well aware that this was an issue that he needed to address in order to satisfy the Tribunal that he did indeed have a well founded fear of persecution. The Tribunal considered his explanation, but did not find it convincing. That is a matter for the Tribunal. The Tribunal did not act unreasonably in this regard. It did not require a particular quality or quantity of corroborative evidence; just some, and none was forthcoming.
13. I do not consider that there is any merit in this ground. The Tribunal came to a conclusion to which it was entitled to come based upon the information before it.
14. The third ground of application was:
    • “3. Tribunal’s over-objective in judging the explanation of the applicant, such as the explanation of the delay in applying for the protection visa and the delay in reporting the corruption of the applicant’s boss and his mayor brother.”

Whilst this ground does look suspiciously like a request for merits review the best that can be said of it is that it is particulars of the first ground of apprehended bias. If one considers the Tribunal’s decision in some detail, one will find at [61] and [62] set out in a clear and anodyne form the Tribunal’s reasons for its conclusions about the delay questions which at [63] [CB 87] it also applies to his failure to have sought protection in New Zealand.

15. As noted in [6] of these reasons the court is of the view that another Tribunal may not have found the applicant’s delay in reporting the alleged corruption to have been indicative of fabrication but the fact that this Tribunal did does not indicate apprehended bias. It merely indicates the view that this Tribunal held and which it was entitled to hold and which cannot be interfered with by this court.
16. For the reasons outlined above I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. The application must therefore be dismissed and the applicant must pay the first respondent’s costs which I assess in the sum of $5,500.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate:

Date: 18 September 2013

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^[1] “Act”