SZTJX v Minister for Immigration and Border Protection

Federal Court of Australia|2014-12-12|Before: Flick J

The appeal is dismissed.
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 849 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

JUDGE: FLICK J DATE: 12 December 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a Chinese national. 2 He arrived in Australia on 12 March 2008. He had been granted a student visa that expired on 15 March 2010. On 25 May 2012 he applied to the Department of Immigration and Citizenship (as the Department of Immigration and Border Protection was then known) for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). A delegate of the Minister conducted an interview with the Appellant on 24 August 2012. The delegate refused the application. 3 The Appellant then applied to the Refugee Review Tribunal (the "Tribunal") for review of the delegate's decision. He appeared before the Tribunal on 10 September 2013 to give evidence and present submissions. The Tribunal affirmed the delegate's decision on 18 September 2013: [2013] RRTA 644. 4 On 14 October 2013 an Application was filed in the Federal Circuit Court of Australia seeking judicial review of the Tribunal's decision. The grounds of review were as follows (without alteration): 1. RRT didn't accept my evidence which is true. 2. RRT didn't consider the risk of me going back to China. 3. RRT has bias against me with prejudice and misconceptions. In an ex tempore judgment delivered on 25 July 2014, a Judge of the Federal Circuit Court dismissed the application: SZTJX v Minister for Immigration and Anor [2014] FCCA 1876. 5 On 15 August 2014 a Notice of Appeal was filed in this Court. The grounds of appeal relied upon by the Appellant are identical to those advanced before the Federal Circuit Court Judge. As such, the grounds of appeal before this Court do not identify any appellable error by the Federal Circuit Court Judge. In the absence of written or oral submissions from the Appellant clarifying the grounds, this appeal has been determined on the basis that the Appellant seeks to contend that the Federal Circuit Court Judge erred in rejecting each of those grounds. 6 The Appellant appeared before this Court unrepresented. He had the assistance of an interpreter. 7 The appeal is to be dismissed with costs.

The adverse findings as to credit 8 As the Federal Circuit Court Judge correctly pointed out, a fundamental difficulty confronting the Appellant on review of the Tribunal's decision was the adverse credit findings made by the Tribunal and the fact that those adverse findings were "reasonably open" to the Tribunal on the material before it. 9 The Federal Circuit Court Judge also rightly pointed out that the Tribunal was not obliged to uncritically accept the claims being made: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J. In Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] Gray, Dowsett and Stone JJ similarly acknowledged that "[t]he Tribunal is not required to accept uncritically the claims made by an applicant for a protection visa". See also: SZQWV v Minister for Immigration and Citizenship [2012] FCA 817 at [23] per Gilmour J; MZYVA v Minister for Immigration and Citizenship [2013] FCA 50 at [31] per Dodds-Streeton J; SZSQS v Minister for Immigration and Border Protection [2014] FCA 219 at [33] per Farrell J. A failure to accept evidence as "true" does not of itself constitute jurisdictional error. 10 The reasons provided by the Tribunal satisfactorily support its conclusions for not accepting the Appellant's claims and evidence as "true" and for concluding that the Appellant was not a witness of truth. 11 When assessing whether the Appellant's "claims are credible", the Tribunal's reasons concluded (in part) as follows (without alteration): [30] I find the applicant is not a witness of truth. I reject his claims that his family have come to the adverse attention of the Chinese authorities because his father petitioned against the demolition of the family home, or the amount of compensation offered by the government. I do not accept that the applicant's father has been arrested, assaulted, detained, prosecuted and imprisoned or otherwise harmed by the Chinese authorities on any occasion and nor do I accept the applicant's claims that after his father was imprisoned the Chinese authorities targeted his family business and effectively forced its closure. I am not satisfied that any members of the applicant's family have an adverse profile with the Chinese authorities for any reason. The reasons why I do not accept the applicant's claims are true are set out below. [31] While the applicant's evidence demonstrated that he was able to recall precise dates (for example, the date his father sent a letter to the petition office) contained in his written statement, I became concerned that when he was asked about matters that were not canvassed in his written claims his evidence was vague. For example, when asked where his father was imprisoned, the applicant said in the city and when asked what the name of the prison was, he said he had no idea. Despite claiming his mother and [sibling] had been to visit his father in prison, when asked when these visits occurred his answers were very vague. … … [34] I found the applicant's evidence about how his family responded to the arrest of his father to be contradictory and unconvincing. For example, after claiming his mother believed they should continue with the petition, when questioned about what his mother actually did after his father went to jail he responded that she was illiterate and could not do anything and they were unable to continue to petition because they had already accepted the compensation that had been paid. The applicant's claim that that after his father was imprisoned his family did not have any income sources was undermined by his own evidence. For example, after being questioned about why his mother could not get a job, the applicant said his mother did some odd jobs such as embroidery and also had the compensation payment from the government. After initially saying his [sibling] couldn't work because at the time [his sibling] was under eighteen, the applicant then gave evidence [his sibling] was [age] and looking for a job. [35] In my assessment, the applicant's long delay in applying for protection strongly supports the conclusion that he does not have a genuine fear of persecution in China and his contradictory explanations for his delay in applying for protection cast further doubt upon his credibility. … The Tribunal then proceeded to set out further reasons for its decision. 12 In reaching its ultimate conclusion that it could not be "satisfied" that the Appellant was a person to whom Australia owed protection obligations, the Tribunal based its decision upon the reasons provided. The reasons provided by the Tribunal in this case stand in contrast to those given in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108, (2010) 187 FCR 362. There the Tribunal's reasons had not properly exposed the basis on which it found the claimant's case to not be credible and were, accordingly, held to be deficient. In so concluding, Kenny J observed (at [72]): … On the face of the Tribunal's written statement, the Tribunal's conclusion that the first respondent's answers were not correct was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision-maker could have evaluated the first respondent's answers; no such material can be found in the record; and no other logical basis justifies the Tribunal's finding. In these the (sic) circumstances, it is appropriate to infer that the Tribunal's decision-making was arbitrary and irrational such as to constitute jurisdictional error. In support of validity, the Minister could only speculate as to the nature and existence of purportedly probative but unidentified and unidentifiable material, an approach antithetical to that of s 430 of the Migration Act. Accordingly, the federal magistrate did not err in finding jurisdictional error. In contrast, the reasons provided by the Tribunal in the present case for concluding that the Appellant lacked credibility are well-substantiated. 13 Given the Tribunal's adverse credibility findings, its finding that the Appellant's claims were not "true" does not give rise to jurisdictional error. 14 The first ground of appeal is rejected.

A failure to consider the claims made 15 The second ground of appeal that alleges a failure to "consider the risk of [the Appellant] going back to China" is without substance. 16 The Tribunal's reasons expressly address the Appellant's claims as to what he maintained would happen if he returned to China. Thus, and by way of example only, the Tribunal's "summary of claims to protection" provides (in part) as follows (without alteration): [16] When asked why he was afraid of returning to China, the applicant gave evidence his family property was demolished by force and, as a result of his father's petitioning the authorities, his father is now IN prison. He repeated his claims that as a result of his petitioning his father had been arrested and detained. He was released before being falsely accused of slandering local officials and imprisoned him for three years. He said if he were to return to China he would be charged with an offence and arrested by local officials. He said this would happen because the property was demolished without his family's permission and if he were returned to China he would continue to petition with his father, he would be arrested, and the authorities would continue to persecute his family. His property had been demolished and he had no place to go: it was impossible for his whole family to live at his Aunty's house and to do so would burden her. Income sources had been cut off for his family and following his father's imprisonment they had almost spent all the money. His [sibling] could not complete [the sibling's] study at university and had to stay at home. Further "claims to protection" are also set out in the Tribunal's reasons. 17 There is nothing to suggest that the Tribunal did not give genuine consideration to the claims being made by the Appellant, including his claims regarding the fears he held about returning to China. 18 The second ground of appeal is rejected.

A reasonable apprehension of bias 19 Lastly, there is no reason to conclude that there was any reasonable apprehension of bias on the part of the Tribunal. 20 A "reasonable apprehension" of bias must be "firmly established": Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. A "reasonable apprehension of bias" is not "firmly established" in this case merely by the rejection of the claims advanced by the Appellant. Further, the Tribunal's unwillingness to believe the Appellant's claims does not, without more, demonstrate any lack of good faith: SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 at [9] per Wilcox J; Reece v Webber [2011] FCAFC 33 at [47], (2011) 192 FCR 254 at 271 per Jacobson, Flick and Reeves JJ. Nor does a failure to accept claims necessarily constitute jurisdictional error: SZSTN v Minister for Immigration and Border Protection [2014] FCA 257 at [12] per Flick J. 21 The final ground of appeal is also rejected.

CONCLUSIONS 22 The Federal Circuit Court was correct to dismiss the application before it. 23 None of the grounds of appeal have any substance. The complaint, in summary form, was that the Tribunal came to the wrong conclusion on the facts - or, perhaps more accurately, came to a conclusion which the Appellant regarded as undesirable. But even a complaint that the Tribunal came to the wrong conclusion on the facts does not constitute jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 at [25], (2001) 179 ALR 513 at 518-519 per Kirby J. The mere fact that claims are rejected does not mean that they have not been considered or that the Tribunal was biased. 24 No appellable error has been shown. 25 The appeal is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

The appeal is dismissed.
The Appellant is to pay the costs of the First Respondent. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

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