SZTQV v Minister for Immigration & Border Protection & Anor [2014] FCCA 724 (10 April 2014)

Last Updated: 2 June 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQV v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2014] FCCA 724

Catchwords: MIGRATION – Refugee Review Tribunal. PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.36, Pt.8, Div.2 Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 Cases cited: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant:

SZTQV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3088 of 2013

Judgment of:

Judge Emmett

Hearing date:

10 April 2014

Date of Last Submission:

10 April 2014

Delivered at:

Sydney

Delivered on:

10 April 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents:

Mr Weisse (Clayton Utz)

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 3088 of 2013

SZTQV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 7 November 2013 (“the RRT”).
2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application filed on 12 December 2013, be dismissed on the basis that the grounds of the applicant’s application has not raised an arguable case for the relief claimed.
3. Rule 44.12 of the Rules provides as follows:
   • “(1) At a hearing of an application for an order to show cause, the Court may:
     • (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
     • (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
     • (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
   • (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
4. Relevantly, r.44.13 provides:
   • “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

5. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
6. On 25 March 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
7. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to r.44.12 of the Rules.
8. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
9. The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. For that reason, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, by 31 March 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 31 March 2014.
10. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise.
11. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
12. The matter was then set down for a show cause hearing today pursuant to r.44.12 of the Rules.
13. In the applicant’s application for judicial review, filed on 9 December 2013, the applicant identified the grounds for review as follows:
    • “1. The RRT had bias against me and did not consider my application in accordance with s.91R of the Migration Act 1958, the tribunal failed to consider my claim.
    • 2. The RRT was or appeared to be biased.
    • 3. The RRT has ignored relevant considerations in making its decision.”
14. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
15. The applicant had nothing to say in support of ground 1.
16. In support of ground 2, I asked the applicant in what way he asserted that the RRT was biased, and the applicant responded that the time of the hearing was too short; he was not given time to say anything; and, he was telling the truth.
17. The first respondent tendered a copy of the RRT’s decision record, dated 7 November 2013, which was annexed to an affidavit of the applicant, affirmed 9 December 2013 and filed on 12 December 2013.
18. The decision record of the RRT sets out the details of a statement provided by the applicant in support of his protection visa application, which was lodged in April 2013. The RRT noted that the applicant was assisted in the lodgement of the application by his migration agent.
19. The claims that the applicant made in that statement relate to his commencement of Falun Gong practice in or around 1998-1999 following an injury he suffered at work.
20. The applicant claimed that he was arrested in October 1999 for distributing flyers about Falun Gong and was detained and tortured. The applicant claimed he was released in February 2002 when his family paid a fee for his release.
21. The applicant claimed that police regularly came to his home and harassed him. In July 2008, he was again arrested and detained for four months at a labour camp and again charged a fee for his release. Between September and October 2010, the applicant was again arrested and detained.
22. In May 2012, the applicant received a passport upon which he travelled to Australia, arriving on 9 September 2012.
23. On 5 December 2012, the applicant applied to the Department of Immigration and Citizenship for a protection visa.
24. On 9 July 2013, a delegate of the first respondent refused the applicant a protection visa.
25. In making its decision, the delegate of the first respondent, invited the applicant to attend an interview but failed to do so. The delegate found the applicant’s claims to be unsubstantiated in circumstances where the delegate had not been able to examine the applicant’s claims with him further at a hearing.
26. The delegate was not satisfied that the applicant had a well-founded fear of persecution or that there were substantial grounds for believing that there was a real risk he would suffer significant harm if he returned to China.
27. On 4 November 2013, the applicant attended a hearing before the RRT, at which the applicant departed from the claims made in his statement in support of his protection visa.
28. The RRT explored the applicant’s claims with him in some detail and noted concerns that it put to the applicant about the inconsistencies in his evidence and noted the applicant’s responses.
29. The RRT found the applicant’s knowledge of Falun Gong to be extremely limited and entirely inconsistent with claims to have been a committed Falun Gong practitioner since 1997.
30. Ultimately, the RRT comprehensively rejected the applicant’s claims of past harm in China and did not accept that the applicant is, or ever has been, a Falun Gong practitioner, or that he left China for that reason. The RRT found that the applicant has not had any association with Falun Gong or was ever detained, arrested, mistreated, or required to undertake re-education classes as claimed by the applicant.
31. The RRT did not accept that the applicant would seek to be involved in Falun Gong upon his return to China and was not satisfied that there was a real chance of harm as a result of any association with Falun Gong.
32. For the reasons above, the RRT found that the applicant did not satisfy the criterion for being a refugee pursuant to s.36(2)(a) of the Act.
33. The RRT also considered whether the applicant met the complementary criteria in s.36(2)(aa) of the Act. However, on the basis that the RRT had not accepted that the applicant has ever suffered harm due to him being a Falun Gong practitioner, or that he would suffer any harm for that reason if returned to China, the RRT concluded that it was not satisfied that there were substantial grounds for believing it is a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will suffer significant harm. Accordingly, the RRT affirmed the decision under review.
34. The first respondent filed written submissions in accordance with the Court’s directions made on 23 March 2014, which were filed on 4 April 2014. Those submissions accurately summarise the background, protection claims, and findings in relation to the applicant’s claims, as follows:
    • “Protection Claims and Findings
    • 3. The applicant is a citizen of the People's Republic of China (China). He arrived in Australia on 9 September 2012 on a Subclass 456 (Temporary Business) visa. The applicant applied to the Department for a Protection (Class XA) visa on 5 December 2012. He claimed to fear persecution on the basis of being a Falun Gong practitioner. The substance of his claims was as follows [Decision Record (DR) 4].
      • a) The applicant worked in various factories in China, between 1981 and 2012. In 1997 he was injured whilst working at a slaughter house when a piece of frozen meat hit his back. The applicant was hospitalised for six months, and his family suffered financially as there was no compensation available.
      • b) The applicant joined a Falun Gong group whilst recovering to prevent his muscles from atrophying. His practice assisted with his recovery.
      • c) The applicant was arrested in October 1999 for distributing Falun Gong flyers. He was detained until February 2000, during which time he was tortured frequently. The applicant was only released after his family paid an "education fee".
      • d) The applicant experienced employment difficulties subsequently, and he began practicing Falun Gong again. Although he was careful and only practiced at home, the police regularly came to his apartment and demanded money.
      • e) In July 2008, the applicant was arrested as police wished to prevent protests on National Day. The applicant spent four months at a labour camp and was required to attend education classes, for which the labour camp charged a considerable sum of money.
      • f) The applicant was arrested in September 2010 and detained until October that year. The applicant decided to leave China, and asked a friend to assist with his visa application to Australia.
    • 4. The Tribunal found that the applicant was not a credible witness - it did not accept that the applicant gave a truthful account of his circumstances in China or his reasons for leaving China, and considered that he manufactured the totality of his claims to fear harm in China [DR 6]. This was for the following reasons.
      • a) The applicant did not give a truthful account of his employment in China, and admitted as much in his Tribunal hearing. He did not work as a labourer, and instead owned and operated a business employing 80 employees before he left [DR 7 - 8].
        • i) The Tribunal considered that the applicant's willingness to provide untruthful evidence on the application form and in a statement to the Department cast serious doubts as to his overall credibility.
        • ii) The Tribunal also considered that the applicant's claims to have been a persecuted Falun Gong practitioner were inconsistent with his status as a successful business owner.
      • b) The applicant's evidence at the Tribunal hearing in relation to his knowledge of Falun Gong was extremely limited, which was inconsistent with his claims to have been a committed Falun Gong practitioner since 1997 [DR 9 - 10].
      • c) Although the delay of 3 months between the applicant's arrival in Australia and his claim for protection is not lengthy, the Tribunal considered it to be significant given the applicant's position as someone of means who had suffered serious harm in China [DR 11].
    • 5. For these reasons, the Tribunal did not accept that the applicant is or ever has been a Falun Gong practitioner, or that he left China because he is a Falun Gong practitioner. The Tribunal found that the applicant did not meet the convention or complementary protection criteria [DR 14 - 15].
    • 6. The applicant's grounds raise two discrete complaints - that the Tribunal was biased, and that it suffered from a failure to consider. It is submitted that neither complaint can be established on the material before this Court.
    • 7. First, the applicant's allegations of bias cannot be made out on the extant material. Allegations of bias are serious, and must be strictly alleged and strictly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The applicant has failed to do so. The applicant has made a bare allegation of bias, and provided no particulars, evidence or submissions in support. It is respectfully submitted that there is no material on the face of the decision record that would lead a reasonable person to apprehend bias on the part of the Tribunal.

8. Second, the allegations of a failure to consider are not supported by the decision record. This allegation is entirely unparticularised. Even so, the Tribunal's decision record illustrates a comprehensive consideration of the totality of the applicant's claims.”

35. In relation to the applicant’s grounds of review, they remain entirely unparticularised.
36. The bare assertion that the RRT was or appeared to be biased in Ground 2 was supported only by the applicant’s statement that the time of the hearing was too short and he was not given a sufficient time to say anything.
37. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
38. The applicant was directed on 25 March 2014 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 31 March 2014. The applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit. However, no document was filed by the applicant either in accordance with those directions or otherwise.
39. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
40. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115]).
41. A fair reading of the Tribunal’s decision record does not suggest that the hearing was unduly short. A large part of the RRT’s decision record recounts its exploration of the applicant’s claims with him at the hearing. There is nothing on the face of the RRT’s decision record to suggest that there were further claims or evidence which the applicant was not given an opportunity to provide.
42. Accordingly, Ground 2 is not made out.
43. In relation to Ground 3, I asked the applicant what was the relevant consideration that the RRT failed to consider. The applicant gave no relevant response and was unable to identify any consideration.
44. In the circumstances, the three grounds of the application and the complaints made by the applicant this morning do not identify any jurisdictional error on the part of the RRT and appear more to be a disagreement with the findings and conclusions of the RRT.
45. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
    • “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356.”
46. The RRT’s findings and conclusions, including its adverse credibility findings, appear to be open on the face of the RRT’s decision record, on the evidence and material, and for the reasons it gave. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547)
47. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J).
48. The RRT’s decision record makes clear that the RRT rejected the applicant’s claims because the RRT found that the applicant was not a credible witness.
49. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
50. The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
51. In the circumstances, I am not satisfied that the grounds of the applicant’s application have raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commended by way of application on 12 December 2013, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 29 April 2014