MZZPK v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal against a decision of the Federal Circuit Court of Australia made on 12 December 2014. Judge Burchardt of the Federal Circuit Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal made on 21 June 2013. The Tribunal had affirmed a decision made by a delegate of the Minister for Immigration on 1 February 2013 to refuse to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). The Minister's delegate had refused to grant the appellant the visa because she was not satisfied that the appellant was a person to whom Australia owed protection obligations as required by s 36(2) of the Migration Act 1958 (Cth). 2 The appellant was represented before the Federal Circuit Court by counsel and solicitors. The appellant was not represented by a lawyer at the hearing of the appeal to this Court, but was assisted by an interpreter. The task of this Court on appeal is to determine whether the decision of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129, [11]. The task of the Federal Circuit Court was to determine whether the decision of the Tribunal was affected by jurisdictional error: see Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. It is not the task of this Court on appeal to review the original decision afresh or to substitute its view of the preferable decision on the facts. The Court's role is to correct legal errors and not to reconsider the case more generally. The appellant relies on the following grounds in his notice of appeal to this Court: 1. The judge failed to see the value of my evidence which lead the judge made the decision that I am not an active member of China Democratic Party. 2. The judge has been miss leaded by the lawyer of immigration the hearing was arguing if I am an active member of China Democratic Party. But I believe the most important point of this case is if I will be harmed by Chinese government when I go back to China. 3. I request that the Court should give a decision base on if I will receive harm when I reach China. The grounds in the notice of appeal, in their terms, ask this Court to reconsider the application on the facts. In other words, the grounds seek to have this Court engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The grounds relied upon do not identify any legal error in the decision of the Federal Circuit Court. They are not, accordingly, grounds on which this Court may set aside the Federal Circuit Court's decision. 3 In any event, the learned Federal Circuit Court judge did not make errors of the kind described in the appellant's notice of appeal. The ground of the appellant's application to the Federal Circuit Court had been as follows: The Tribunal asked itself the wrong legal question and/or failed to consider the real question that it had to decide, insofar as it assessed the risk of significant harm on account of applicant's membership of the [China Democratic Party] and association with a chairman of the [China Democratic Party] by assigning him to a generalised category of political dissidents/activists without considering the gradations and distinctive features within that category relevant to his individual circumstances - in particular, the risk associated with his and Mr Cheng's specific political party affiliation (the [China Democratic Party]) as distinct from the risk faced by political dissidents/activists generally. A reviewable error may be made by the Tribunal if it asks itself the wrong legal question or if it fails to consider matters it is required to consider, but such an error is not made merely because the Tribunal makes findings open for it to make on the evidence available to it but which are contrary to the findings sought by an unsuccessful applicant, or because it rejects evidence which it is in law able to reject. It is clear, from a reading of the Tribunal's decision, that it took into account the matters which the appellant sought to have put before it, but that it rejected the conclusions which he had sought and some of the evidence which he had adduced. It is also clear that the Tribunal disbelieved the appellant about the extent of his political activities. 4 The issue before the Federal Circuit Court was whether the Tribunal had asked the correct legal question or whether it had failed to take into account matters it was required to take into account. The learned Federal Circuit Court judge considered the Tribunal's decision and decided that the Tribunal had made no such error. After reviewing the Tribunal's decision in some detail, Judge Burchardt dealt with the ground in the application at [42]-[53] of his reasons: 42. The applicant's written and oral submissions concentrated on the proposition that the Tribunal had fallen into error by failing to consider the applicant's personal position and merely dealing with him as a particular category of political dissident. Complaint was made that the Tribunal had filed [sic] to have regard to relevant country information available to it, although some of that country information is plainly now somewhat out of date going back as far as 1999. 43. The complaint is effectively that set out at paragraph 15 of the written submissions: "However, (the Tribunal's) selection of the evidence available, the matters it considered relevant and the matter in which it applied that evidence to its assessment, reveal an underlying failure to address the real question it had to decide: the risk to (the applicant) as an individual, as a member of the CDP with links to the CDP's chairman in Melbourne." 44. Relevant extracts of the decisions of the High Court in NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 were set out in support of this proposition. 45. It does no disservice to the very thorough and comprehensive submissions made by counsel for the applicant to say that this characterisation of the applicant's case, albeit put very shortly, is exactly what was asserted. 46. It was submitted that in treating being a member of the CDP and being an activist as mutually interchangeable the Tribunal fell into error. 47. This is a peculiar case because although it has been necessary to traverse the materials in some detail, the answer can be put as shortly as the question. 48. It seems to me that read fairly and as a whole the Tribunal examined the applicant's particular case in considerable detail. It examined his claims to have been a CDP member and activist in Melbourne. It accepted that he had become a CDP member but found that this was only to enhance his Refugee Convention claims. It also roundly disbelieved the applicant as to the extent of his political activity. 49. The Tribunal was keenly aware that the CDP was a dissident body in China. The entirety of the decision proceeds on the footing that membership of the CDP could give rise to persecutory treatment. 50. In my opinion, the Tribunal did not simply lump the applicant inappropriately in a sort of large group of otherwise irrelevant political activists. Rather it examined the applicant's claims against the country information available. 51. In my view, no jurisdictional error is shown by this methodology. 52. In circumstances where the applicant's central claims that were said to give rise to a fear of significant harm upon return to China were roundly disbelieved, in my view the applicant cannot possibly succeed in this application. 53. The passages I have set out in my view show that the Tribunal quite properly understood its function and discharged it. It is clear from those reasons that the learned Federal Circuit Court judge understood that the Tribunal had correctly considered the questions it was required to consider, and that the Tribunal had not failed to take into account matters that it was required to take into account. The learned Federal Circuit Court judge correctly found that the Tribunal was entitled, having regard to the evidence before it, to find that the appellant was not a person to whom Australia owed protection obligations such as to be granted a Protection (Class XA) visa. The learned Federal Circuit Court judge was correct in dismissing the application for judicial review since the Tribunal's consideration of the matter disclosed no jurisdictional error. 5 At the hearing before this Court, the appellant also sought to rely upon two errors which he said had been made by the Tribunal. The two matters were, first, an error of interpretation said to have occurred before the Tribunal, and secondly, the questioning of two friends of the appellant in China. Neither of these matters was raised as part of the appeal to the Federal Circuit Court and they were not in the grounds of appeal to this Court. However, the Federal Circuit Court did refer to the matters, and the Tribunal had previously dealt with them. This can be seen in [38] of the reasons for decision of Judge Burchardt and is contrary to the claim which the appellant made orally at the hearing before this Court. 6 Accordingly, no error has been shown in the appeal to this court and the appeal will be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.