FEDERAL COURT OF AUSTRALIA

SZSQY v Minister for Immigration and Border Protection [2013] FCA 1288

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1        By notice of appeal filed on 26 August 2013 the appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (‘the FCCA’) delivered on 7 August 2013. That decision dismissed the appellant’s application for judicial review of a decision of the second respondent (‘the Tribunal’) dated 13 February 2013.

BACKGROUND AND CLAIMS

2        The appellant is a citizen of the People’s Republic of China (‘China’) who arrived in Australia on 30 August 2010 as the holder of a temporary business visa. On 13 March 2012 the appellant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 21 June 2012.

3        The appellant made the following claims:

a)    In January 2008, the appellant started an automotive plant business with a friend in the Haian County of the Jiangsu Province of China.

b)    In June 2009 the appellant was informed by town government officials that the factory used for the business must close prior to 2010. This was said to be due to the government’s decision to rezone land for environmental protection.

c)    The appellant engaged with his business partner in negotiations with the government officials in the town proposing the relocation of their business. Such negotiations were unsuccessful.

d)    In November 2009 the appellant’s business partner was detained and tortured by police. The appellant’s business partner was told that if he agreed to the factory being demolished, he would receive leniency.

e)    A short time later in November 2009, the appellant told government officials in the town that he and his business partner had decided to close their company. The appellant’s business partner was released from detention.

f)    The appellant complained in early 2010 first to the Haian County government, and then to the Jiangsu provincial government. In early February 2010, the appellant was taken into custody by police, detained for 15 days and tortured.

g)    After being released from custody, the appellant wrote a long letter to the State Bureau for Letters and Calls regarding government corruption and injustice.

h)    Since arriving in Australia, local Chinese police have searched his home in China and otherwise procured evidence that he has fled abroad. The appellant fears the actions of the police should he be returned to China and retribution from the local government.

THE TRIBUNAL’S DECISION

4        The Tribunal found the appellant’s claims regarding his alleged experiences in China to be unconvincing. In particular, the Tribunal noted that the appellant referred to different periods of detention in his written statement and in his oral evidence before the Tribunal. The Tribunal also considered the appellant’s delay of some one year and eight months in applying for a protection visa after arriving in Australia to be inconsistent with a genuine fear of persecution. The Tribunal did not accept the appellant’s explanations and found the changing nature of the appellant’s evidence and his delay in seeking asylum indicative of someone fabricating their claims rather than recalling events that had actually occurred. It did not accept his claim to fear persecution for a Convention reason, nor was the Tribunal satisfied the he met the criteria for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

FCCA PROCEEDING

5        The appellant applied to the FCCA for a review of the Tribunal’s decision. The appellant advanced the following grounds, replicated without amendment:

1.    RRT asserted that I fabricated my claims for protection visa. RRT have the right to suspect my credibility. However, RRT cannot say without any evidence that I fabricated my claims for the purpose of refugee protection visa. Therefore, I found RRT’s decision unfair.

2.    RRT could not determine subjectively that I don’t have a fear of persecution and will not be persecute once I return to China. They did not have any supportive evidence.

3.    RRT meant to confuse me by keeping asking me questions. They did not let me rest. The hearing lasted for one hour and a half. RRT was against the humanitarian spirit.

6        At the hearing before the FCCA, the appellant made a submission to the effect that the Tribunal’s decision was irrational. The appellant was also granted leave to tender a psychological report that was not before the Tribunal.

7        The primary judge found that the first ground of the appellant’s application sought impermissible merits review. In making this finding, her Honour noted that the Tribunal’s findings, including its findings on credibility, were open to it on the material before it and for the reasons it gave. Her Honour also dismissed the second ground, making two key findings. First, her Honour noted that it is for a person seeking a protection visa to put evidence and claims to the Tribunal in support of their application. Second, the appellant did not identify a critical issue, the existence of which was easily ascertained, such as to give rise to a duty on the Tribunal to make some inquiry: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].

8        The primary judge noted in regard to ground three that the appellant did not, despite being afforded the opportunity to do so, file with the FCCA a transcript of the Tribunal hearing. As such, the only evidence before the FCCA as to the conduct of the hearing was the Tribunal’s decision record. Her Honour found nothing in the Tribunal’s reasons to suggest there was any issue with the way in which the Tribunal conducted the hearing. There was no evidence that the appellant sought and was denied an adjournment or interruption, or that the length of the hearing otherwise caused concern. Furthermore, her Honour found that the Tribunal properly put its concerns regarding the appellant’s evidence to the appellant.

9        The primary judge also found against the appellant with respect to the alleged irrationality of the Tribunal’s reasons. Her Honour noted that the appellant did not substantiate such claim in any way, and otherwise considered that the material before her did not disclose any irrationality on the part of the Tribunal.

10        The primary judge found that the psychological report did not assist the appellant for three reasons. First, there could be no error in the Tribunal failing to have regard to the report as it did not appear to be before the Tribunal when it made its decision. Second, even if the report was before the Tribunal, the Tribunal could not use it to corroborate the appellant’s claims. This was because the report explicitly stated that the account of the appellant’s claims therein was provided by the appellant. Finally, the report did not support any contention that the appellant was unfit to participate in the hearing before the Tribunal.

APPEAL TO THE FEDERAL COURT OF AUSTRALIA

Grounds of appeal

11        The notice of appeal filed on 26 August 2013 discloses three grounds of appeal. They are as follows, replicated without amendment:

1.    RRT did not consider my situation carefully. RRT unvalued my situation.

2.    RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

3.    FMC did not have support evidences and made an illogical conclusion.

12        The appellant did not provide written submissions in support of his notice of appeal, but made oral submissions at the hearing with the assistance of an interpreter. As to the first ground of appeal, the appellant asserted that what he told the Tribunal was correct. In support of the second ground of appeal, the appellant claimed that the local government in China was still searching for him; that his family in China had been visited by the authorities every two to three days to ask when he will be returning; and that his two children in China, aged 21 and 10, have been prevented from studying and working. As to the third ground of appeal, the appellant stated that he was emotionally distressed before the Tribunal and was not able to answer questions directly.

Findings

13        The Minister submitted that the first two grounds of appeal were not raised before the FCCA, and that leave should not be granted to raise them before this Court principally on the basis that they lack merit.

14        Although the first two grounds of appeal are not the same in terms as those argued before the primary judge, they are directed, albeit in a very general way, toward the same issues. The first grounds of appeal in both courts reflect the appellant’s dissatisfaction with the findings of fact made by the Tribunal, as well as the Tribunal’s adverse assessment of his credibility. The second grounds of appeal in both courts appear to make the argument that the Tribunal had insufficient evidence to not believe the appellant’s version of events.

15        As was noted by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48], the ‘practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters’. The same can be said of migration appeals from decisions of the FCCA to this Court. A degree of latitude however must be afforded to self-represented migration litigants, particularly in the common circumstance where the litigant is not fluent in English and requires the assistance of an interpreter. Where it is clear that such an appellant is raising the same complaints in their grounds of appeal that were ventilated in the court below but have done so in different terms on appeal, leave to rely on those grounds of appeal should not be necessary. Accordingly, the Court does not consider that leave is required to raise the first two grounds of appeal in the present proceeding.

16        The Court then turns to the merit of each ground of appeal. As stated at [14] above, the first ground of appeal reflects the appellant’s dissatisfaction with the findings of fact made by the Tribunal, as well as the Tribunal’s adverse assessment of his credibility. Such submission must be rejected. First, the appellant seeks impermissible merits review in relation to the Tribunal’s findings of fact. Secondly, an assessment of the appellant’s credibility is the sole function of the Tribunal standing in the shoes of the primary decision maker. As was stated by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]:

If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

17        In any event, the Tribunal comprehensively set out its reasons for rejecting certain evidence adduced by the appellant. For example, with regard to the period of the appellant’s alleged detention by the Haian County police, he stated in his personal statement that he had been detained for 15 days and was released on 21 February 2010. At the hearing before the Tribunal on 8 January 2013 however, he stated that he had been detained for nine days in 2009. In respect of this discrepancy, a letter was sent by the Tribunal on 11 January 2013 pursuant to s 424A of the Act inviting him specifically to comment upon such discrepancy. Such letter also invited the appellant to comment upon the substantial period of time between the date when he arrived in Australia and the date when he applied for a protection visa, being 30 August 2010 and 13 March 2012 respectively. No reply was received by the Tribunal by 5 February 2013, being the date when a response was required from the appellant. The appellant’s first ground of appeal must be rejected

18        The crux of the appellant’s second ground of appeal is that the Tribunal failed to provide adequate reasons for rejecting, or did not have sufficient evidence to reject, the appellant’s version of events. The appellant did not substantiate these claims, but rather restated parts of his evidence. This ground of appeal must also be rejected. The Tribunal’s decision comprehensively deals with the claims of the appellant and provides clear reasons to explain its decision.

19        The appellant’s third ground of appeal asserts that the Federal Magistrates Court (as the FCCA was formerly known) came to an illogical conclusion. The appellant’s only submission in support of this ground was that he has been emotionally distressed since arriving in Australia, and that this may be why he appeared evasive when answering questions. It appears that such submission may be in relation to the Tribunal hearing rather than that of the FCCA, however nothing turns on this point.

20        The appellant’s reference to his alleged emotional distress appears to be an explanation as to why the Tribunal did not accept his evidence. In this way, it is a challenge of the factual findings of the Tribunal, or at least to the Tribunal’s assessment of his credibility. The submission does not in any way disclose irrationality in the findings of the Tribunal or for that matter, the primary judge. As was explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at [129], ‘an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement’. The appellant’s argument has risen no higher than to disagree with the findings of the Tribunal, and it follows that his third ground of appeal must be rejected.

21        The appeal is dismissed with costs.

Associate:

Dated:    29 November 2013