SZTEX v Minister for Immigration and Border Protection

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE OF ORDER: 25 NOVEMBER 2014 WHERE MADE: SYDNEY

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent fixed in the lump sum of $2,665. 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 859 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE: 25 NOVEMBER 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of China. 2 She first arrived in Australia on 17 September 2010. 3 On 19 June 2012 she lodged an application for a protection visa with what was then known as the Department of Immigration and Citizenship. Her application was accompanied by a statement in which she claimed to have been arrested and detained as a suspected Falun Gong practitioner. She was invited to and did in fact attend an interview carried out by a delegate of the Minister. She had the assistance of a Mandarin interpreter. By a letter dated 26 September 2012 she was advised that her application had been refused. The reasons provided by the delegate record the delegate's conclusion that he "did not find the applicant to be a satisfactory witness". The reasons also record the Appellant's claim to have a "detention certificate" that she did not bring with her to Australia. The delegate concluded that the Appellant did not satisfy the criteria prescribed by ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the "Migration Act"). 4 On 19 October 2012 she lodged an application for review with the Refugee Review Tribunal. She was invited to appear before the Tribunal and did in fact do so on 24 July 2013. On 25 July 2013 the Tribunal published its reasons for affirming the delegate's decision. 5 An application seeking judicial review of the Tribunal's decision was subsequently lodged with the Federal Circuit Court of Australia. In addition to the two grounds set forth in the Application filed with that Court, two further grounds were raised at the hearing. The Federal Circuit Court published its reasons for dismissing the application on 31 July 2014: SZTEX v Minister for Immigration & Anor [2014] FCCA 1881. 6 On 20 August 2014 the Appellant filed a Notice of Appeal in this Court. The grounds of appeal were there expressed as follows (without alteration): 1. Jusridicitonal error has been made. They doubt my claim without substantive evidence and reach mistaken conclusion. Just because I could not provide detention certificate, RRT believes I was not persecuted in China. 2. RRT considered my case unfairly and some of my claims are igored. RRT does not fully consider my situation and risk to me if I return to China. 7 The Appellant appeared before this Court unrepresented. She was assisted by an interpreter. 8 The appeal is to be dismissed with costs.

The Grounds of Appeal 9 Neither ground of appeal, it should be noted at the outset, identifies any appellable error said to have been committed by the Federal Circuit Court Judge. 10 Both grounds, however, are in substantially identical terms to the two grounds set forth in the Application filed with the Federal Circuit Court. The grounds of appeal before this Court can potentially be construed as seeking to contend that the Federal Circuit Court Judge erred in rejecting the same arguments previously advanced. 11 Notwithstanding the fact that this may be one way in which this Court may proceed where it is confronted with an unrepresented appellant, it must constantly be recalled that an appeal to this Court is not the occasion to revisit the Tribunal's reasons for decision - it is the Federal Circuit Court Judge's reasons which are under review: Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10] per Finn, Marshall and Goldberg JJ. The mere repetition of submissions previously advanced in the Federal Circuit Court with little or limited reference to the reasoning of that Court do not assist an appeal court: cf NBDY v Minister for Immigration & Multicultural Affairs [2006] FCAFC 145 at [26] per Branson and Stone JJ. A failure to allege error on the part of the Federal Circuit Court Judge "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] (see also SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263 [6]-[7]). The task of this Court on appeal is to scrutinise the Federal Circuit Court's reasons and not the reasons of the Tribunal. 12 This appeal provides yet another instance in which this Court has been invited to shun these basic principles. 13 For this Court to summarily dismiss the Notice of Appeal for failure to identify any appellable error on the part of the Federal Circuit Court Judge, it is respectfully considered, would not occasion any injustice to the Appellant. Although the Court has an overriding duty to ensure a trial is fair and that an unrepresented litigant does not suffer disadvantage by reason of their decision to exercise their right to appear without representation (Hamod v New South Wales [2011] NSWCA 375 at [309] per Beazley JA (Giles and Whealy JJA agreeing); SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [37], (2013) 216 FCR 445 at 452 per Robertson J (Allsop CJ and Mortimer J agreeing)) any perception on the part of the Appellant that she has not already had access to justice would be misplaced. Any residual concern to ensure that justice must be seen to be done has been satisfied by the hearing before the Federal Circuit Court and the reasons for decision of that Court. 14 But no application was made by the Respondent Minister seeking an order that the appeal be summarily dismissed. The course pursued by the Minister was to place to one side the Rules of this Court in respect to appeals and to focus attention upon whether the Federal Circuit Court Judge was correct in his review of the Tribunal's reasons.

The lack of substantive evidence? 15 The first ground of appeal seems to have two elements to it - namely, a contention that the Tribunal doubted the claims being advanced "without substantive evidence"; and a contention that the Tribunal erred in concluding that the Appellant was not persecuted because she could not produce a "detention certificate". 16 It is, with respect, unclear what is meant to be conveyed by the suggestion that the Tribunal doubted the Appellant's claim "without substantive evidence". 17 The Tribunal's reasons and its findings of fact provide no greater insight as to the potential content of the argument sought to be raised. Those reasons and findings record the conclusion of the Tribunal that the Appellant was "not a truthful witness and that she ha[d] fabricated her claims to Australia's protection". The Tribunal also recorded its finding that she had "fabricated her claim to have been arrested" and that her evidence as to a "detention certificate" was "false and was intended solely to strengthen her protection claims". The Tribunal concluded that the claims had been fabricated "to extend her stay in Australia and for no other reason". The Tribunal's reasons thereafter set forth the basis upon which the adverse credibility findings were founded. Those included her ability to obtain a passport in her own name, her ability to depart China on that passport without difficulty and a police certificate indicating that she had no record of committing any criminal offence. There was "no evidence", according to the Tribunal, that "she obtained her passport through 'connections' and the payment of money". 18 The Tribunal's conclusions that it could not be satisfied that the Appellant's claims were "true" and that, accordingly, it also could not be satisfied that she would face harm if she returned to China, were conclusions open to it on the evidence and the findings of fact it made. There is no reason to question the Tribunal's findings regarding the Appellant's credibility. 19 To the extent that the first ground of appeal seeks to challenge to the weight given by the Tribunal to the evidence before it, the allegation is rejected. In the absence of any statutory indication, the "weight to be given to various considerations", it has been long accepted, "… is generally for the decision-maker and not the court to determine …": Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 per Mason J. Similarly, in Abebe v Commonwealth [1999] HCA 14, (1999) 197 CLR 510. Gummow and Hayne JJ observed at [197]: … In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. Further, in Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court of Australia, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The [Refugee Review Tribunal] is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The [Tribunal] is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another … See also: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [14] per Flick J. 20 The second part of the first ground of appeal is understood to focus attention upon the Tribunal's reliance upon the failure of the Appellant to produce a "detention certificate". That part of the Tribunal's reasons was expressed as follows: The applicant stated that she had a "detention certificate" in China, but despite having been put on notice by the delegate at the interview, when she says the delegate asked her about this, and despite its obvious relevance and significance to her protection claims, the applicant has made no attempt to obtain that document from China. Her explanation for not having done so is not persuasive. The age of her mother-in-law, and the fact that she is a Falun Gong practitioner, do not appear to me to be impediment to asking her to send (by whatever method) a copy of that certificate, or of documents which, the applicant said, her mother-in-law had in relation to her own detentions. I also am not persuaded that there was any danger to her daughter bringing back (or sending) that certificate when she visited China in 2011, which she was able to do with no attention whatsoever from the Chinese authorities. 21 The difficulty with this argument is that the weight to be given to different aspects of the evidence was a matter entrusted exclusively to the Tribunal. It is not open to the Appellant to seek to contend that disproportionate weight was given to one particular piece of evidence rather than another. In any event, the weight given by the Tribunal to the failure to produce the "detention certificate" does not appear to be inappropriate. It was a part of the basis upon which the Tribunal made an overall adverse assessment as to the credibility of the Appellant. Nor is it correct to contend that the Tribunal reached its conclusion "[j]ust because" the Appellant could not produce a "detention certificate". That was but a part of the Tribunal's reasoning. 22 No appellable error is exposed in the reasons of the Federal Circuit Court Judge in rejecting the same ground of review (albeit expressed in different terms). 23 The first ground of appeal is rejected.

Unfairness and the failure to consider claims? 24 The second ground of appeal has potentially three elements to it, namely: an allegation that the Tribunal acted unfairly in considering the Appellant's claim; an allegation that "some" of the claims advanced were "igored" (sic) by the Tribunal; and an allegation that the Tribunal has not "fully consider[ed]" the Appellant's situation and the "risk" to which she would be exposed if she returned to China. None of those elements has - with respect - any substance. 25 There is no self-evident "unfairness" in the manner in which the Tribunal dealt with the Appellant's claims. Its reasons for decision record the manner in which it: proceeded; evaluated the evidence before it; and resolved the claims being made. No procedural unfairness emerges from the reasons for decision of the Tribunal. Indeed, it has been repeatedly acknowledged (albeit in the context of allegations of bias) that it is difficult to make out a case of procedural unfairness solely by reference to the reasons for decision of the Tribunal: 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; SZORL v Minister for Immigration and Citizenship [2011] FCA 553 at [19] per Flick J. 26 With respect to the remaining arguments which may fall within the second ground of appeal, it may readily be accepted that a failure to consider claims advanced before the Tribunal may constitute jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, (2001) 194 ALR 244. Allsop J (as his Honour then was and with whom Spender J agreed) there observed at [42]: The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is "the reality, and not the appearances, which matters": cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim requires a decision-maker to engage in "an active intellectual process directed at that representation or submission": Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, (2005) 147 FCR 51, both Madgwick and Hill JJ endorsed the formulation of Black CJ that "an active intellectual process" was required: at [46] per Hill J and [212] per Madgwick J. 27 The difficulty confronting the Appellant in this appeal is the simple fact that there has been no specification of any claim that has been ignored. Nor is any readily apparent upon a reading of the Tribunal's findings and reasons. 28 Nor has there been an identification of how it is said that the Tribunal failed to "fully consider" the Appellant's situation. The Tribunal rejected the Appellant's claims to fear persecution, including her claims that she would face harm if she returned to China. The "findings" of the Tribunal concluded with the following (without alteration): 45. For all these reasons, I am not satisfied that the applicant's claims are true. I do not accept that she was arrested as a Falun Gong practitioner or that she was perceived by the authorities to be a Falun Gong practitioner. I am satisfied that the applicant has fabricated her claims to protection. I do not accept that the applicant has a genuine fear of harm (whether serious harm, for the refugee criterion, or significant harm, for the complementary protection criterion) if she returns to China. 46. I am therefore not satisfied that there is any chance that the applicant will face harm if she returns to China. 47. Having considered all of the applicant's claims, singly and cumulatively, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if she returns to China now or in the reasonably foreseeable future (the refugee criterion). 48. For the same reason, I am not satisfied that there is any risk of significant harm to the applicant if she returns to China (the complementary protection criterion). Any conclusion that the Tribunal had failed to "fully consider" the Appellant's claims sits uncomfortably with the opportunity it extended to her to attend an interview and to present her claims in person. 29 There has been no failure on the part of the Tribunal to consider the Appellant's "situation" or the "risks" that she may face if she returned to China. 30 The reasons of the Federal Circuit Court Judge disclose no appellable error in rejecting a substantially identical ground in a review of the Tribunal's decision. 31 The second ground of appeal is without substance. It is to be rejected.

CONCLUSIONS 32 Neither ground of appeal has been made out. 33 The appeal is to be dismissed. 34 There is no reason why the Appellant should not pay the costs of the Respondent Minister. The Minister's representative sought an order that the Appellant pay the Minister's costs in the "lump sum" of $2,665 pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). It is appropriate to make such an order.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent fixed in the lump sum of $2,665. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.