FEDERAL COURT OF AUSTRALIA

SZOVS v Minister for Immigration and Citizenship [2011] FCA 916

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (SZOVS v Minister for Immigration & Anor [2011] FMCA 226) in which the learned 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 (“the delegate”) of the first respondent (“the Minister”) not to grant the appellant a 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 who determined the appellant’s judicial review proceedings is affected by appealable error.

4    This appeal raises two main questions: (i) was the Tribunal biased against the appellant?; and, (ii) was the appellant’s claim considered fairly and reasonably by the Federal Magistrate? Neither of those challenges was particularised nor do they have any apparent merit. For the reasons that follow I have determined to dismiss the appeal.

BACKGROUND

5    The appellant is a Chinese national who claims to be a Catholic. The appellant claims fear of persecution in China because of her claimed religion. The appellant arrived in Australia on 19 August 2009 on a Student Guardian visa and on 4 February 2010 applied for a protection (Class XA) visa. Her daughter, Ms Yan Chen, also applied for a protection visa as a member of the appellant’s family unit. On 27 April 2010 the delegate refused the application.

6    In summary, the appellant claimed that due to her attendance at an underground Catholic Church, organised by her husband, she was arrested and detained for one month during which time she was starved and underwent enforced sleep deprivation. The appellant claimed she was then released after bribing the police and promising not to join unsanctioned underground Catholic Church activities. The appellant also claimed that since her arrival in Australia her husband was arrested in August 2009 by Chinese authorities for attending a church service in which their home was raided and the police seized her personal details. The appellant claimed that this meant the police became aware of her church-going activities and the fact that she was now in Australia.

7    The claims made by the appellant are set out in the Tribunal’s Decision Record of 10 November 2010 which affirmed the delegate’s decision to refuse a visa. The Tribunal did not accept that the appellant’s claims were truthful or that the appellant was a credible witness. The Tribunal was satisfied that aspects of the appellant’s claims were fabricated.

THE FEDERAL MAGISTRATE’S DECISION

8    On 13 December 2010 the appellant lodged an application in the Federal Magistrates Court on the following grounds:

1.    RRT DID NOT CONSIDER MY APPLICATION FAIRLY.

2.     I AM A CATHOLIC AND I WAS PERSECUTED BY THE LOCAL GOVERNMENT AND POLICE.

3.    RRT DID NOT WEIGH MY EVIDENCE. I GOT FEAR TO GO BACK TO CHINA.

9    As I have previously stated, the task of the Federal Magistrate was to identify any jurisdictional error in the decision of the Tribunal. As is common with migration appeals, the appellant appeared to hold the erroneous view that the Federal Magistrate was empowered to conduct a merits review. The Federal Magistrate dealt with that notion at [4], [23], [33], [34].

10    The Federal Magistrate dismissed the appellant’s application. In the decision, the Federal Magistrate, referred to the background facts set out on pages 4-26 of the Tribunal’s decision record and outlined the claims made by the appellant at [7].

11     The Federal Magistrate referred to the Tribunal’s reasons for decision and detailed why the Tribunal was not satisfied that:

     the appellant had suffered a brain injury (at [16]);

    the appellant and her daughter were not reliable, credible or truthful witnesses (at [17]);

    the appellant did not fear her husband as claimed (at [18]);

    the appellant and her husband are or were members of the underground Catholic Church as claimed, and that they had suffered persecution for that reason (at [19]);

    the appellant was a genuine Catholic.

In doing so, the Federal Magistrate referred to the Tribunal’s examination of the evidence before it in arriving at those conclusions.

12    The Federal Magistrate carefully considered each of the three grounds of review before him. In relation to ground one, the Federal Magistrate identified two possible bases upon which the Tribunal’s decision could be construed as unfair. In relation to the first basis, that the decision was unfair because it was not in the appellant’s favour, the Federal Magistrate reiterated that he could not conduct a merits review of the Tribunal’s decision (at [23]). In relation to the second basis, that the hearing before the Tribunal was procedurally unfair, the Federal Magistrate referred to the Tribunal’s procedural fairness obligations under the Act, considered the procedures followed by the Tribunal and was satisfied that the Tribunal had complied with its obligations.

13    The Tribunal’s detailed fact finding and analysis of the evidence had led it to conclude the appellant was not a Catholic and was not at risk of persecution by the Chinese authorities on the grounds of her religion. The Federal Magistrate reiterated that, absent vitiating factors which were not present in this case, such findings were not reviewable by the Court and thus found the second ground lacked merit and dismissed it.

14    In relation to the third ground, the Federal Magistrate also found that the ground invited impermissible merits review and also dismissed it.

GROUNDS OF APPEAL IN THIS COURT

15    On 29 April 2011, the appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal:

1.    RRT had bias against me and did not make fair decision of my application;

2.    I clarify all my points at the hearing of the Federal Magistrates Court, but the judge refused my application on my hearing date. It is not fair.

3.    I believe that my application was not considered reasonably by the judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes underground house church members.

16    The appellant’s grounds of appeal were not supported by any particulars. At the hearing on 10 August 2011 the appellant was self-represented and assisted by a Mandarin interpreter. The appellant made oral submissions complaining about her experience of the hearing before the Tribunal.

Ground One

17    It appears that ground one is a new ground and therefore requires leave in order to be raised by the appellant. 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).

18    The first ground of appeal sets out an allegation that the Tribunal was biased against the appellant and as a result did not make a fair decision. 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 [88] (Kenny J). To make out a case of apprehended bias, it must be established that 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].

19    The appellant has not pointed to any evidence or other basis to support her claim of bias. 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.

20    The first ground has neither merit nor any prospect of success. It is not expedient in the interests of justice that leave be granted to raise this new ground.

Ground Two

21    Ground two makes the general and unparticularised claim that the Federal Magistrate’s decision was not fair. No particular error on the part of the Federal Magistrate has been identified. The Federal Magistrate considered all of the appellant’s claims and dismissed them all because he found they did not reveal any jurisdictional error on the part of the Tribunal. There is no apparent error in the judgment of the Federal Magistrate.

22    Ground two has no merit and should be dismissed.

Ground Three

23    Ground three contains two aspects. The first is that the Federal Magistrate did not consider the appellant’s claims reasonably.

24    No particulars or any other indication was given as to what the Federal Magistrate did that was unreasonable. As I have set out, the Federal Magistrate examined and considered all of the appellant’s claims put before that court. It was a methodical examination and analysis of the Tribunal’s findings and reasons for decision and of the appellant’s claims regarding that decision. There was nothing unreasonable about the way in which the Federal Magistrate considered the appellant’s claims.

25    The second aspect of ground three misunderstands the purpose and process of judicial review and invites impermissible merits review. It is a well established principle that neither this Court nor the Federal Magistrates Court can embark upon a review of the Tribunal decision on the merits: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

26    Ground three is without merit and must also be dismissed.

CONCLUSION

27    For the reasons I have indicated, there is no merit in the appellant’s grounds of appeal and the appeal must be dismissed. It follows that the appellant should pay the Minister’s costs of the appeal. I will make orders accordingly.

Associate:

Dated:    11 August 2011