BZAEI v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Judge Jarrett of the Federal Circuit Court given on 23 December 2013. His Honour dismissed the appellant's application for constitutional writs in respect of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed the decision of a delegate of the first respondent dated 8 May 2012 to refuse to grant a Protection (Class XA) Visa to the appellant. 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on a student visa on 13 April 2011. On 16 December 2011, he applied for a protection visa. He had the assistance of a migration agent. The appellant set out his claims to fear harm in a detailed statement accompanying his visa application. 3 The appellant claimed to fear persecution from the Chinese authorities because of his and his family's Christian faith. He asserted that his grandmother was a Christian who was very religious and held church gatherings at her home. His mother was also a devoted Christian who attended such church gatherings. His father was an official in the Commercial Bureau, and a member of the Communist Party. His father became concerned by corruption at his work. His mother asked his father to read the Bible, and his father began attending church gatherings and talking about Jesus and spreading the gospel to his colleagues. When the appellant left for Australia, his father said that he hoped the appellant would become a good Christian. The appellant claimed that after he arrived in Australia, he attended church and studied the Bible. 4 The appellant alleged that on 4 June 2011 he received a telephone call from his mother's friend in China stating that his father had been arrested for "attending cults". He claimed that his father was detained for one month and then sentenced to two years imprisonment for spreading religious activity in government office, encouraging people to be against the government and holding illegal gatherings at his home. As a result, his mother was sacked from her job. He claimed that the family's home telephone line was being monitored by the authorities. He claimed that he was considered by the Chinese authorities to be a "black hand" and to have conducted illegal activities in China. He feared going back to China. 5 In a decision dated 8 May 2012 the delegate refused to grant the visa to the appellant. On 4 June 2012, the appellant lodged an application with the Tribunal for review of the delegate's decision. He appointed the same migration agent to assist him with the review. 6 The appellant appeared at a hearing before the Tribunal on 7 August 2012. The hearing was adjourned after the Tribunal formed the view that the standard of interpretation being provided was not adequate. The appellant appeared again before the Tribunal on 13 August 2012. On 9 May 2013, the Tribunal affirmed the delegate's decision to refuse the application for a protection visa. 7 The Tribunal found at paragraph 17 of its reasons, that: [The] applicant has fabricated his claims. It finds the applicant was not a credible witness. His responses in the hearing were often vague and evasive. Importantly, there were substantial and material inconsistencies and variations in the applicant's claims in his written statement and his oral evidence to the Tribunal. 8 The Tribunal then set out in detail the inconsistencies and other issues that led to its finding that the appellant was not a credible witness. One inconsistency was set out in paragraph 17(d) where the Tribunal referred to a new claim that the appellant moved from Sydney to Brisbane as he feared the Chinese police would arrest him. The Tribunal noted that he did not mention that fear in his written statement and said that it considered the appellant had made up the claim during the hearing and was evasive as to why he had not mentioned that fear in his written statement. The Tribunal concluded, at paragraph 18 of its reasons: When asked why he did not mention that fear in his written statement, the applicant was evasive and then said he forgot…[The Tribunal] considers the applicant made up the claim during the hearing. 9 The appellant filed an application in the Federal Circuit Court on 6 June 2013 seeking constitutional writs in respect of the Tribunal's decision. The application contained two grounds in the following terms: 1. In Paragraph 17(d), Department of Immigration and Citizenship didnt have any specific format about how to write a statement. RRT cannot assert that I made up my new claim. I afraid to go back. 2. In Paragraph 18, RRT doubted my credibility as I can not provide any supporting documents regarding my father. It is not fair. I am a Christian, I do not lie after sworn. [Errors in the original.] 10 The primary judge rejected the first ground on the basis that there was no requirement that the claims in the appellant's statement take any particular form, and this ground went no further than to impermissibly invite the Court to review the merits of the Tribunal's decision. The primary judge rejected the second ground on the basis that the Tribunal did not impermissibly impose a burden of proof on the appellant, and the Tribunal's reference to a lack of supporting evidence simply meant there was nothing before the Tribunal to overcome or alleviate its concerns in relation to the appellant's credibility. 11 On 13 January 2014, the appellant filed a notice of appeal in this Court. It contains two grounds of review as follows: 1. The Refugee Review Tribunal (RRT) made an error of law in my case. I am under the serious risk of persecution, which was undervalued by the RRT. 2. The FCC did not consider my situation. Once I back to China, I will experience fear and threat. [Errors in the original.] 12 The appeal is brought pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), which provides that the Court has jurisdiction to hear and determine appeals from a judgment of the Federal Circuit Court of Australia exercising original jurisdiction under a law of the Commonwealth. Section 25(1)(AA) provides that such an appeal may be heard by a single judge of the Federal Court. Such an appeal is by way of rehearing: SZSYM v Minister for Immigration and Border Protection [2014] FCA 174 at [28]; Rowe v Emmanuel College [2013] FCA 939 at [50]. Accordingly it is necessary for the applicant to demonstrate error in the primary judgment: Coal and Allied v AIRC (2000) 203 CLR 194 at 203-204. 13 The first ground of appeal does not identify any error on the part of the Federal Circuit Court. Neither is the error of law that is alleged to have been made by the Tribunal identified. The ground appears to seek merits review of the Tribunal's decision. The application to the Federal Circuit Court could only succeed if the appellant demonstrated jurisdictional error on the part of the Tribunal. It was for the Tribunal to assess the merits of the appellant's claims and his evidence to make findings on questions of credibility. The findings made by the Tribunal were open to it for the reasons it gave. The appellant failed to demonstrate jurisdictional error in the Tribunal's decision, and the primary judge made no error in so holding. 14 The second ground of appeal suggests that the Federal Circuit Court was required to but failed to consider the appellant's "situation". It appears to be alleged that the Federal Circuit Court was required to consider the merits of the application for a protection visa. The role of the Federal Circuit Court was only to consider whether the appellant had demonstrated jurisdictional error in the Tribunal's decision. There was no error on the part of the primary judge in failing to consider the appellant's "situation". 15 In his oral submissions, the appellant repeated the grounds that he relied on before the Federal Circuit Court. The primary judge was correct to reject those grounds for the reasons he gave. 16 In his oral submissions, the appellant also alleged that the Tribunal was prejudiced against him. That serious allegation was not raised before the Federal Circuit Court. There was no error on the part of the primary judge in failing to consider an argument never raised before him. In any event, there is no evidence that the Tribunal was prejudiced or biased against the appellant, and there is nothing in the reasons to suggest any such prejudice or bias. The Tribunal was entitled to decide that the appellant had fabricated his claims and was not a credible witness. The appellant requires leave to raise this ground and leave should be refused because the ground has no merit: cf VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. 17 As no error has been demonstrated in the judgment of the Federal Circuit Court, the appeal must be dismissed. The appellant must pay the costs of the first respondent to be taxed, if not agreed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.