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[2012] FCA 125
Federal Court of Australia
2012-02-23
Ms J, Finkelstein JJ, Bromberg J
Original judgment source is linked above.
INTRODUCTION 1 This is an appeal from a judgment of a Federal Magistrate (SZQIR v Minister for Immigration and Citizenship [2011] FMCA 918) in which the Federal Magistrate dismissed the appellant's application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the first respondent ("the Minister") not to grant the first appellant a Protection (Class XA) visa ("Protection visa"). 2 The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 3 The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 4 For the reasons that follow, I am not satisfied that error on the part of the Federal Magistrate has been demonstrated and therefore I will dismiss the appeal.
BACKGROUND 5 The appellant is a citizen of the People's Republic of China who arrived in Australia on 23 June 2010 as a holder of a Multiple Entry (subclass TR - 676) Visitor Visa. On 21 July 2010 the appellant lodged an application for a Protection visa with the Department of Immigration and Citizenship ("the Department") on the grounds that he feared persecution as a result of his employee, Mr He, stealing several trucks from him and instructing gangsters to threaten the appellant with death after the incident. 6 The appellant owned and operated a trucking business in China. On 2 March 2010 while Mr He and two of the appellant's other employees were on a job the trucks were stolen ("the incident"). The appellant believes Mr He and another man collaborated to steal the trucks. One of Mr He's friends told the appellant Mr He had been acting suspiciously and had suddenly acquired wealth. The appellant believed that Mr He had stolen his trucks and sold them. The appellant claimed he and his family were going to take Mr He to court, but as Mr He's brother-in-law, Mr Song Li Bo, was Chief of the local legislative bureau they had concerns about doing so. The appellant and Mr He subsequently made an arrangement for a private settlement which Mr Li Bo helped orchestrate. Mr He was to pay the appellant 500,000 Yuan which was a little under the value of the trucks. On 12 May 2010 when Mr He paid the appellant he only paid 150,000 Yuan. The appellant then prepared to take Mr He to Court. On 15 May 2010 the appellant and his wife were attacked during the night and threatened with death. The attackers said they had been paid to kill the appellant but advised him to run away instead. The attackers also confiscated the documents the appellant had prepared for Court. The appellant then organised to sell his house and his wife and son moved in with his father-in-law. The appellant then fled to Australia on the basis that he had been threatened with death. 7 By letter dated 8 September 2010, a delegate of the Minister ("the delegate") wrote to the appellant inviting him to attend an interview on 9 November 2010 to provide further information in support of his claims. The appellant attended the interview. On 22 November 2010 the delegate refused the appellant's application for a Protection visa. A letter dated 22 November 2010 was sent to the appellant notifying him of the delegate's decision. 8 On 16 December 2010 the appellant filed an application in the Tribunal for review of the delegate's decision. By letter dated 14 January 2011 the appellant was invited to appear at a hearing before the Tribunal to give evidence and present argument. The hearing was scheduled for 2 March 2011. The appellant attended the hearing and was assisted by a Mandarin interpreter. 9 The Tribunal accepted: the appellant's claims of the incident; the appellant's assertions about Mr He's familial connections with Mr Li Bo, and that Mr Li Bo was the Director of the Justice Department; and that the appellant may be harmed by Mr He and or Mr Li Bo or at their behest. 10 The Tribunal concluded that there was no suggestion of any political element to the incident or the appellant's troubles or that it emanated from his holding of political opinions or from his membership of any particular social group. The Tribunal found that the only motivation for the theft and the possible harm faced by the appellant was due to money and criminal activity. The Tribunal concluded the appellant's fear of harm emanated from the criminal activities of others arising from the theft and dispossession of his trucks and the use of the proceeds to furnish his former employee's lifestyle. On that basis, the harm was not sufficiently attributable to any of the Convention grounds. The Convention to which the Tribunal referred is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). The Tribunal dismissed the application on finding that the appellant did not fear harm for a Convention reason. On 16 May 2011 the Tribunal affirmed the delegate's decision not to grant a Protection visa to the appellant and the appellant was notified of the decision by way of a letter of even date.
THE FEDERAL MAGISTRATE'S DECISION 11 On 14 June 2011 the appellant lodged an application in the Federal Magistrates Court relying upon the following grounds: 1. I ran a trucking business. I was persecuted by Mr HE supported by his brother-in-law, a senior in the Local Justice 2. Department I feared to be killed, so fled to Australia. I appeared before the Tribunal to give evidence, but the 3. Tribunal failed to consider my claims and evidence. He made jurisdictional errors. 12 The Federal Magistrate held that the Tribunal had properly considered the appellant's claims and evidence regarding his fear of persecution. At [15] the Federal Magistrate found the appellant's purportedly separately numbered grounds of review actually represented a single complaint, namely that the Tribunal had failed to have regard to the appellant's claims and evidence and had consequently committed jurisdictional error. 13 The Federal Magistrate noted at [7], that the Tribunal had accepted the appellant's claims that he feared harm from Mr He and his associates. At [16]-[18] the Federal Magistrate held that the Tribunal's finding that the appellant's fear of harm was not "essentially and significantly for a Convention reason" did not contain jurisdictional error. Ultimately, the Federal Magistrate was satisfied that the Tribunal had properly considered the appellant's claims and evidence and therefore there was no jurisdictional error disclosed. On 25 November 2011 the Federal Magistrate made orders dismissing the application for review.
GROUNDS OF APPEAL IN THIS COURT 14 On 6 December 2011 the appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal: 1. I am a hardworking person with skill of truck driving. My hard-earned money was robbed by HE Yu Feng who had support from his brother-in-law, the chief of the legislative bureau. He hired the killer with money to take my life. I am an ordinary person. My family assets were robbed and my family was ruined. I have no choice but to leave my wife and son behind to seek asylum in Australia. But the Refugee Review Tribunal failed to take my claims and evidence into account and had bias against me, making jurisdictional error. 2. The Federal Magistrate Court dismissed my appeal on 25 November 2011. 15 Despite orders made on 6 December 2011 allowing the appellant to file and serve written submissions 10 clear working days before the hearing date (by 6 February 2012), none were filed or served. At the hearing on 20 February 2012 the appellant was self-represented and assisted by an interpreter. 16 The appellant contended that the Tribunal's decision was not fair but did not elaborate.
Consideration 17 The vast majority of the content of ground one of the grounds of appeal is not a ground of appeal but a statement of asserted facts. The only grounds that are apparent are: an allegation that the Tribunal failed to take into account the appellant's claims and evidence; and, an allegation of bias. The second ground cannot be considered a proper ground of appeal and requires no further consideration. 18 The appellant failed in his application to the Tribunal because no Convention nexus was found in his claim. The grounds of appeal fail to challenge the basis of the Tribunal's decision and are clearly misdirected. For completeness, I will deal with each of the grounds pressed.
Failure to Take into Account Claims and Evidence 19 The appellant has not particularised any claim or evidence which he says the Tribunal failed to take into account and it is not apparent that there was any such failure. The evidence given regarding the appellant's fear of harm was not only taken into account by the Tribunal, it was accepted. The critical question the Tribunal was obliged to consider was whether the appellant had a well founded fear of persecution based upon one or more of the Convention reasons. That is, whether the fear was based upon one or more of the reasons specified in the definition of a refugee contained in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together "the Convention"). It is essential that a Convention nexus be found with a Protection visa applicant's claim because such a nexus is necessary to trigger Australia's protection obligations under the Convention. I am satisfied that the Tribunal properly considered all of the appellant's claims, including those bearing upon whether or not the appellant has a well founded fear of persecution for a Convention reason. 20 I am not satisfied that there was any error in the Federal Magistrates review of the Tribunal's decision. Therefore, the first ground must be dismissed.
Bias 21 To the extent that the allegation of bias constitutes a new ground of appeal it requires the leave of the Court. The relevant principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must at least be shown that the ground has a reasonable prospect of success. 22 An allegation of bias against a decision-maker raises a very serious issue. In order to make out a case of actual bias, the party making the allegation carries the heavy onus of establishing that before making the decision in question, the decision-maker's mind was already made up and the decision-maker was incapable of being persuaded otherwise: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [18] (Kenny J). To make out a case of apprehended bias, it must be established that a fair-minded lay observer would reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the decision in question: VFAB at [25]. 23 The appellant has not pointed to any evidence or other basis to support his claim of bias. The transcript of the hearing before the Tribunal has not been tendered. I have, however, reviewed the decision of the Tribunal. There is nothing in the Tribunal's decision record, including the steps taken during the course of the review that would substantiate a claim of bias on the part of the Tribunal. The Tribunal outlined the appellant's claims in detail, considered each of them and dismissed them on a cogent basis as it was open for the Tribunal to do. There is nothing in the material before me that would suggest that a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application before it: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[32] (Gleeson CJ, Gaudron and Gummow JJ). This ground has neither merit nor any prospect of success. It is not expedient in the interests of justice that leave be granted to raise it. 24 I am not satisfied that any appealable error has been demonstrated on the part of the Federal Magistrate.
DISPOSITION 25 For those reasons the appeal must be dismissed. The appellant should pay the Minister's costs of the appeal. I will make orders to that effect. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg
SZQIR
Minister for Immigration and Citizenship