SZSTN v Minister for Immigration and Border Protection

Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Ms A Carr of DLA Piper Australia

Solicitor for the Second Respondent: The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2066 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE OF ORDER: 21 MARCH 2014 WHERE MADE: SYDNEY

1. The Appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2066 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE: 21 March 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of the People's Republic of China. 2 He arrived in Australia legally and applied on 28 February 2012 to the Department of Immigration and Citizenship for a protection visa. That application was refused by a delegate of the Minister on 27 June 2012. He then applied to the Refugee Review Tribunal in July 2012 seeking a review of the delegate's decision. The Tribunal affirmed the delegate's decision on 20 March 2013: 121185 [2013] RRTA 220. 3 On 16 April 2013 he filed in the then Federal Magistrates Court of Australia an Application seeking review of the Tribunal's decision. That Court was later renamed the Federal Circuit Court of Australia. On 1 October 2013 that Court published its reasons for decision dismissing the Application: SZSTN v Minister for Immigration and Border Protection & Anor [2013] FCCA 1682. 4 On 3 October 2013 he then filed a Notice of Appeal in this Court. The two Grounds of Appeal provide in summary form: the assertion that the now-Appellant had reported alleged embezzlement to the authorities in China and that he had been "kidnapped, persecuted and threatened" and "had to flee for Australia"; and an asserted failure on the part of the Tribunal to "consider my true experience scording (sic) to S91R of the Migration Act 1958 because of bias against me…". Neither Ground of Appeal, it may be noted in passing, alleges any appellable error on the part of the Federal Circuit Court Judge. 5 The now-Appellant appeared before this Court unrepresented. He had the assistance of an interpreter. Although he contended that he had not been provided with a copy of the Appeal Book in advance of the hearing, it is concluded that a copy was served upon him on 9 January 2014 at the address for service set forth in his Notice of Appeal. His oral submissions to this Court were in substance an emphasis upon the truthfulness of his account of the claims being made. 6 The appeal is to be dismissed with costs.

The kidnapping and persecution 7 The first Ground of Appeal is in substantially the same terms as the first Ground upon which review was sought in the Court below. 8 As expressed, this Ground of Appeal simply recounts the making by the now-Appellant to the authorities in China of claims of embezzlement and his subsequent treatment at the hands of those authorities and his decision to "flee for Australia". Those claims were initially set forth in a written statement annexed to his application for a protection visa received by the Department in February 2012. The statement recounted (inter alia) an allegation that he was on his way to the City Letter and Petition Office on his motorbike in December 2010 to deliver a report on alleged embezzlement at the Gucheng County Grain Bureau. He stated that he was run off the road by a van and then kidnapped. He further stated that he pretended to be unconscious and overheard his kidnappers stating their names and their instructions. 9 The now-Appellant attended an interview at the Department's offices in Sydney on 31 May 2012. In her reasons for decision refusing the application for a protection visa, the Minister's delegate addressed the written statement and recorded her questioning of the now-Appellant in respect to his claims. The now-Appellant also appeared at a hearing before the Tribunal in January 2013. The reasons for decision of the Tribunal record a consideration of the claims made in the written statement, the events as they unfolded before the delegate in May 2012 and the hearing before the Tribunal itself in January 2013. 10 In affirming the delegate's decision, the Tribunal made a series of adverse findings as to the credibility of the now-Appellant. Thus, for example, the reasons for decision of the Tribunal record its reservations in respect to the account provided in part as follows: [49] … The Tribunal continued that [in] December he had been knocked off his motorbike ten kilometres from his house. The applicant agreed with this version of events. The Tribunal suggested that the applicant's evidence was unrealistic and fanciful. The Tribunal said that this was because it was unrealistic and fanciful that the people who perpetrated the harm against him would have known that he was riding to Hebie to deliver a letter, even though he had used the post previously. The applicant said what he was saying was true. [50] The Tribunal also raised that the applicant's evidence was unrealistic and fanciful in relation to the conversation that he allegedly heard between his two kidnappers. The Tribunal said that it was unrealistic and fanciful because in the applicant's evidence was that the kidnappers had mentioned both of their names, the instructions that they had been provided, who their boss was, the amount of money that they were going to be paid and how the applicant could avoid such harm in the future. The applicant responded by saying it is true. The Tribunal went on to include within its Findings and Reasons the following assessment: [58] The Tribunal does not accept that the applicant was a credible witness. The Tribunal further set forth its reasons for forming an adverse assessment as to the credibility of the now-Appellant when it recorded in its reasons for decision the following: [60] The Tribunal has also relied on the applicant's general manner during the hearing. At stages there were noticeable delays in answering even basic questions. His manner did not reflect that he was providing open and honest evidence to the Tribunal. [61] The applicant also provided conflicting evidence, and then new evidence in response to the conflicts in his evidence that were raised. Examples of this include the applicant's evidence about when he had been followed, why he applied to leave China, and the time that he had started making plans to leave China. In relation to new evidence, there was the new evidence that he had been followed for several days prior to attempting to ride to Hebie and make a report, but this had not been mentioned in his detailed statement. Instead in the detailed statement, it refers to him being knocked off his bike and being kidnapped in the short term. The mere fact that such findings are findings as to credit do not make them free from careful judicial scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. 11 If the first Ground of Appeal is construed as a failure on the part of the Tribunal to consider the claims being made - and thereafter a failure on the part of the Federal Circuit Court to so find - the Ground is without substance. Both the delegate and the Tribunal gave a detailed account of the questioning being raised in respect to those claims. The reservations as to the credibility of those claims were clearly conveyed to the now-Appellant. Each of the findings as to credit, with respect, seems to be soundly based. 12 Even if the Ground is to be construed as a failure to accept those claims, it may further be noted that any failure to "accept [the Appellant's] claims" of itself does not constitute jurisdictional error. A complaint that the Tribunal came to the wrong decision on the facts without more does not "… enliven[s] the jurisdiction of [a court] to provide a constitutional writ. Specifically, it is a complaint that falls short of showing jurisdictional error on the part of the tribunal": Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 at [25], (2001) 179 ALR 513 at 519 per Kirby J. A complaint expressed in such a form is simply an invitation to impermissibly review the merits of the decision taken by the Tribunal. That is neither the function of the Federal Circuit Court nor of this Court on appeal. Neither Court can review the merits of a Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. A decision of the Tribunal can only be set aside where jurisdictional error is established: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 at [76], (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; WZAOD v Minister for Immigration and Citizenship [2011] FCA 1044 at [27], (2011) 123 ALD 69 at 72 per Gilmour J; Pannu v Minister for Immigration and Citizenship [2013] FCA 1282 at [33] per White J. 13 However the first Ground of Appeal is to be construed, it is an impermissible attempt to seek merits review. 14 The first Ground of Appeal is without substance and is to be dismissed.

A failure to consider claims by reason of bias 15 The second Ground of Appeal is in substantially the same terms as the second Ground upon which review was sought in the Court below. 16 The second Ground of Appeal asserts a denial of procedural fairness by reason of bias on the part of the Tribunal. A denial of procedural fairness, including an allegation of apprehended bias, may constitute jurisdictional error: Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57 at [17], (2000) 204 CLR 82 at 91 - 92 per Gaudron and Gummow JJ; [169] to [170], 204 CLR at 143 per Hayne J. See also: NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 at [26], (2002) 119 FCR 312 at 323 per Gyles J; Jamal v Director of Public Prosecutions [2013] NSWCA 355 at [17] per Gleeson JA (Meagher JA and Latham J agreeing); Kamal Yousaf v Director of Public Prosecutions [2012] NSWCA 397 at [30] per Barrett JA (McColl and Meagher JJA agreeing). 17 There are at least two reasons for rejecting the now-Appellant's contention that his claims were not considered in accordance with law by reason of bias on the part of the Tribunal. 18 First, any allegation of bias must be "firmly established": Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. An allegation of bias is a serious allegation which must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is not sufficient if a reasonable bystander "has a vague sense of unease or disquiet": Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100], (2002) 76 ALD 424 at 441 per Weinberg J; Reece v Webber [2011] FCAFC 33 at [45], (2011) 192 FCR 254 at 270 per Jacobson, Flick and Reeves JJ. 19 Rather than any factual foundation being "firmly established" which would support an argument as to the Tribunal manifesting bias or prejudgment, or a basis upon which a reasonable person could apprehend such bias, the consideration of the now-Appellant's claims by both the delegate and Tribunal exposes nothing other than a detailed, fair and impartial consideration of those claims. A reasonably informed bystander who had read the reasons for decision of the Tribunal would not have even a "vague sense of unease" that the claims had not been considered. 20 Second, and as recognised by Tamberlin, Mansfield and Jacobson JJ in SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358, it is: [16] … likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves … See also: SZMOB v Minister for Immigration and Citizenship [2009] FCA 140 at [23] per Cowdroy J; Samootin v Hannigan [2012] FCA 462 at [9] per Bennett J; Weeks v Commissioner of Taxation [2012] FCA 342 at [30], (2012) 128 ALD 24 at 32 - 33 per Reeves J. Similarly, an allegation as to actual bias will also be rarely demonstrated solely by reference to the reasons for decisions: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J; SGJB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1601 at [121] per Jacobson J; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [21], (2003) 131 FCR 102 at 107 per Kenny J. And no bias should be inferred solely from factual findings that were open on the material before the Tribunal: SZKIR v Minister for Immigration and Citizenship [2007] FCA 1786 at [33] per Collier J. See also: SZNUX v Minister for Immigration and Citizenship [2010] FCA 182 at [18], (2010) 114 ALD 123 at 126 per Yates J; SZORL v Minister for Immigration and Citizenship [2011] FCA 553 at [19]. An applicant who adduces no evidence and relies solely upon an administrative tribunal's decision record, it has been said, "starts with a significant handicap": SZLJC v Minister for Immigration and Citizenship [2008] FCA 1361 at [32] per Reeves J. 21 All that was relevantly before the Federal Circuit Court Judge in the present proceeding were the reasons for decision of the Tribunal. The transcript, for example, was not available. Instances can be provided where an allegation as to bias or prejudgment may be exposed by reference to the transcript: e.g., NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [10], (2008) 100 ALD 118 at 122. Confined to the reasons for decision, no foundation for any assertion as to bias or prejudgment emerges in the present case. Other than the general assertion in the second Ground of Appeal that the now-Appellant claims that the Tribunal "didn't consider my true experience … because of his bias against me", no other assistance has been provided as to the manner in which he sought to make out a claim of bias or prejudgment. 22 The second Ground of Appeal is without merit. There is no basis upon which bias or prejudgment on the part of the Tribunal can be - or should have been - advanced as an asserted basis of jurisdictional or appellable error. The second Ground of Appeal has been construed as an assertion that the Court below erred in not accepting the same argument when it was advanced there for consideration. 23 Even if the second Ground of Appeal is construed more broadly, as an allegation of a denial of procedural fairness and as an allegation stripped of any allegation as to bias or prejudgment, it is a Ground without substance. The reasons for decision of the Tribunal record its concerns as to the credibility of the now-Appellant's claims being raised with him for comment. The now-Appellant has been afforded a reasonable opportunity to present his claims. 24 The second Ground of Appeal should also be dismissed.

Conclusions 25 The appeal is to be dismissed. 26 Neither Ground of Appeal asserts any appellable error on the part of the Court below. The failure to allege appellable error on the part of the Federal Circuit Court Judge, it should again be emphasised, "is not a mere matter of form as no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal": SZMSZ v Minister for Immigration and Citizenship [2009] FCA 877 at [6]. An appeal to this Court "in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons": Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCAFC 210 at [10] per Finn, Marshall and Goldberg JJ. 27 An independent review of the reasons for decision of the Refugee Review Tribunal has, in any event, been undertaken and does not expose any jurisdictional error. The Federal Circuit Court Judge was correct to dismiss the Application before that Court. 28 There is no reason why the usual approach of the Court in respect to costs should not be followed. The Respondent Minister seeks costs. The Appellant should pay the costs of the First Respondent.

THE ORDERS OF THE COURT ARE:

1. The Appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.