SZVBS v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The Appellant pay the First Respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an appeal from the Federal Circuit Court of Australia from orders made by Judge Cameron on 10 March 2017: see SZVBS v Minister for Immigration and Border Protection [2017] FCCA 930. The orders made on that day dismissed the present Appellant's application for judicial review of an earlier decision which had been made by the Refugee Review Tribunal (as it was then known) in the exercise of its jurisdiction as a merits review body to review, effectively, refugee decisions made by delegates of the Minister for Immigration and Border Protection. 2 This Court possesses appellate jurisdiction to hear an appeal from such orders of the Federal Circuit Court by reason of s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). By s 25(1AA)(a) a single Judge may exercise that jurisdiction where what is involved is an appeal from a Judge of the Federal Circuit Court, although machinery provisions exist which authorise such an appeal to be heard in an appropriate case by a Full Court. The exercise of appellate jurisdiction by this Court, whether by a single Judge such as myself, or by a Full Court, requires the Appellant to demonstrate the existence of error: see CDJ v VAJ [1998] HCA 67; [1998] HCA 76; (1998) 197 CLR 172 at 201-202 [111]. That observation directs attention to the originating application in this Court, which is a notice of appeal, and to the grounds which are identified in that notice of appeal. Those grounds were as follows: (1) AAT doubted what I said, from beginning to end, without any evidence. (2) AAT has made the decision arbitrarily without any consideration depending on truth. (3) Federal Circuit Court of Australia did not allocate a responsible interpreter to explain to me, which caused we misunderstood so much [sic]. 3 It is not disputed that grounds 1 and 2 in the notice of appeal do not reflect arguments which were pursued in the Federal Circuit Court. Apart from not being disputed, this is also apparent from the grounds which are articulated in the Appellant's application for judicial review orders filed in the Court below. 4 The three grounds pursued in the Court below were, first, an argument that the Appellant's failure to attend the hearing before the Tribunal had been caused by his sickness; secondly, an argument that since the Appellant was against the Communist rule in China he therefore satisfied the relevant refugee criteria; and, thirdly, a contention that the Tribunal had underestimated his risk of being persecuted by Chinese authorities. It is not necessary to set those grounds out in detail because the point for present purposes is only to highlight that grounds 1 and 2 in the notice of appeal in this Court are not found amongst those grounds, nor does an inspection of the reasons of the Federal Circuit Court given on 10 March 2017, suggest that these grounds were advanced in that Court. It is established that leave to raise an argument before an appellate court that was not raised at trial should only be granted where it does not cause prejudice to the other side and where it is in the interests of justice: see Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1883; (2001) 117 FCR 424 at 439-440 [38] per Allsop J. 5 The argument which was pursued by the Appellant before the Federal Circuit Court was compendiously that the Tribunal had not given him a proper hearing. One of the difficulties he had in pursuing that argument in the Federal Circuit Court is the fact adverted to already, viz, that he had failed to attend the hearing before the Tribunal. This made it more difficult, although not impossible, to demonstrate that the Tribunal's hearing had been unfair or had miscarried, in one way or another. His explanation in the Court below for his non-attendance was that he had been sick. But, nevertheless, he did not advance in the Federal Circuit Court any argument to the effect that the Tribunal had doubted his evidence in every way from beginning to end (as is now articulated in ground 1 of the notice of appeal) or that it had made its decision arbitrarily without any consideration of the matter depending upon its truth (as is now suggested in ground 2 of the notice of appeal). 6 It does not appear to me that there is any reason why those two arguments could not have been advanced in the Federal Circuit Court and, in itself, that is a sufficient reason not to grant leave for them to be pursued in this Court now. It is not, therefore, strictly necessary to consider whether the points have any substance. But, for the sake of completeness and because of the significance of the present decision to the Appellant, it is useful to note that I do not think that either argument had any substance which, even if all the other issues to do with a grant of leave could have been resolved in the Appellant's favour, would have led to a grant of leave. 7 As to ground 1, the contention is that the Tribunal reached its decision, effectively, without relying upon any evidence. But this, however, is simply not a fair reading of the Tribunal's decision and proceeds only by ignoring the difficulty the Appellant generated for himself by not attending his own hearing. For example, it is apparent from paragraph 15 of the Tribunal's reasons that it had invited the Appellant to the hearing specifically to ask him questions which it thought arose from difficulties which the evidence before it, on its face, seemed to present. So for example, it was said: 'The Tribunal would have wished to explore the applicant's claims in significantly greater detail at a hearing, including his claims to have been hiding in China, yet his apparent ability to obtain a passport and student visa during that time. The Tribunal also would have wished to explore in significantly greater detail the applicant's and his father's claims relating to their actions in petitioning the government and the actions that were subsequently taken by the authorities. The Tribunal would also have wished to ask the applicant about his apparent lack of knowledge during the Department interview as to the purpose of the demolition and the government's plans for the land following the demolition. The Tribunal also considers it unclear on the evidence before it as to whether the applicant's home has been demolished or whether there are only plans in place for this to occur.' 8 The significance of this matter is that it makes it very difficult to say that the Tribunal had no material before it upon which it could act. The reasons themselves demonstrate that it had material upon which it could act and was anxious to ascertain what the contrary material was but was frustrated in the pursuit of that aim by the Appellant's failure to attend his own hearing. Subsequently, I do not think that there would be any prospect, even if I were to grant leave, in the Appellant establishing that the Tribunal had acted in the absence of evidence. 9 As for ground 2, which was, as the reader will no doubt recall, that the Tribunal had made its decision arbitrarily without any consideration depending upon truth. Again, I do not think there is any substance in that contention. It is apparent that the Tribunal thought there were difficulties with the Appellant's account and was able to reach the view in the absence of the Appellant that those difficulties provided a sufficient reason for it not to accept his version of events. However, I am not able to identify anything in that process of reasoning which may be described either as being arbitrary or as not depending on a consideration of truth. To be fair to the Tribunal, it was precisely because it was attempting to work out the truth of the matter that it took into account the failure of the Appellant to attend the hearing. For those reasons, I would not have granted leave, even if I thought it was otherwise appropriate, in view of the fact that the matters had not been raised in the Court below. 10 Ground 3, which relates to the quality of interpretation which took place in the Federal Circuit Court, stands in a different category to grounds 1 and 2, and this is because it is not about the quality of the hearing which took place in the Tribunal but is instead about the quality of the hearing which took place in the Federal Circuit Court. The difficulty with this ground, which I accept, in an appropriate case, could amount to an error which this Court could review, is that there is no evidence to support it: there is no transcript of the hearing which took place in the Federal Circuit Court before me, and the Appellant did not attempt to explain to me what were the difficulties of translation or interpretation about which he complained. 11 The reason for that may, I think, be readily appreciated when attention is brought to bear upon, as it must be, the reasons of the Federal Circuit Court. It seems to me that those reasons strongly suggest that there were no interpretational difficulties which took place in the Court below. For example, at paragraph 11, the learned Judge said this: 'At the outset it should be recorded that at the hearing of this application the applicant said that he did not allege that the Tribunal erred in proceeding to make a decision on the review even though he had not attended the hearing.' … 12 His Honour went on at paragraph 16 to say: 'In his address to the Court the applicant said that the information contained in his statement was true even if he had not expressed himself clearly. He told the Court that he still had a vivid memory of the relevant events. However, those submissions suffer from the same deficiency as the second and third grounds of the application, namely that they invite the Court to review the correctness of the Tribunal's decisions on the merits of his application.' … 13 These paragraphs are apt to suggest, and I am inclined to infer, that the Appellant understood what was going on at the hearing and participated in a way which was meaningful. Even if I were to regard those statements as equivocal, the absence of any evidence by means of transcript of what took place before the Federal Circuit Court makes it impossible for me to embrace ground 3. Accordingly, whilst I accept that this Court can entertain ground 3, I am not disposed to accept it. 14 The notice of appeal, as drafted in this Court, does not seek to challenge in any way the decision of the Federal Circuit Court in relation to the grounds which were put before it. For the sake of completeness, I should record that I do not regard the Federal Circuit Court's treatment of those three grounds as containing any error. Ground 1, as I have already mentioned, was that the reason that the Appellant had failed to attend the Tribunal was because he was sick. The Federal Circuit Court dealt with that at paragraph 12 of its reasons, noting that the full form of the argument was that the speed with which the Tribunal had delivered its reasons was capable of suggesting that it had not really thoroughly considered the material. 15 The Federal Circuit Judge rejected this argument on the basis that the invitation to a hearing, which had been sent out by the Tribunal to the Appellant, explicitly referred to it having considered the material before it and that being the reason for its having sent the invitation. Accordingly, the Court below did not think it was possible to say that the Tribunal had not considered the matter. I can detect no error in that reasoning. Ground 2 related to matters of detail in relation to the underlying facts, as did ground 3. For completeness, I will set grounds 2 and 3 of the application out and they are as follows: (2) Since the land was forcibly expropriated, my father went to protest, but he was persecuted by the police. Therefore, I was disappointed with the government. I am against the unjust rule of government. I am against the Communist rule for China. I will continue to protest after I return to China. I have different political opinion, so I meet the refugee criterion. (3) The Tribunal underestimated my risk of being persecuted by the Chinese authority. This was a judicial error since the Tribunal failed to properly make the well-founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559. It was not a rare case that land acquisition causing protest and persecution in China [sic]. The persecution was happened to my father, since we belong to 'the same family unit', in my case, the Tribunal should have considered his situation with fair and justice. 16 The Federal Circuit Court expressed the view at paragraph 15 that neither of these grounds alleged something that would be a jurisdictional error on the part of the Tribunal. It dismissed them on the grounds that they were impermissible merits review. I agree that they do not allege jurisdictional errors. Accordingly, it seems to me, that quite apart from the contents of the Appellant's notice of appeal, a review of the reasons of the Court below does not suggest that any other error was made. For those reasons, the appeal should be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.