FEDERAL COURT OF AUSTRALIA

SZSHI v Minister for Immigration and Border Protection [2014] FCA 102

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    The appellant appeals the decision of the Federal Circuit Court of Australia (‘the FCCA’) delivered on 15 October 2013 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) delivered on 2 November 2012. By such decision, the Tribunal affirmed the decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the protection visa’) under the Migration Act 1958 (Cth) (‘the Act’).

2    It should be observed at the outset that the notice of appeal to this Court was filed on 5 November 2013, namely 21 days after the judgment of the FCCA was delivered. The appeal to this Court sought leave to appeal pursuant to s 24(10) and s (1A) [sic] of the Federal Court of Australia Act 1976 (Cth). It is conceded by the Minister however that the appellant has a right of appeal pursuant to s 24(1)(d) of the same Act and that the notice of appeal was filed within time in accordance with r 36.03(a)(i) of the Federal Court Rules 2011 (Cth).

FACTS

3    The appellant claims to be a citizen of the People’s Republic of China (‘the PRC’) having arrived in Australia on 22 February 2012 holding a visitor visa. The appellant applied for the protection visa on 8 March 2012.

4    On 12 July 2012 the application for the protection visa was refused by a delegate to the Minister. On 8 August 2012, the appellant applied to the Tribunal to have such decision reviewed. The Tribunal invited the appellant to attend a hearing on 17 October 2012.

5    The appellant claimed that she was a practitioner of Falun Gong, having commenced practising in 2010. She claimed that several of her fellow practitioners were ‘taken’ by the authorities and as a result, her family suggested to her that she should travel to Australia to avoid arrest in China.

6    The Tribunal noted that the appellant held a passport issued to her by the PRC which was issued in April 2010. She did not arrive in Australia until 22 February 2012, but had allegedly discovered in October 2011 that fellow practitioners of Falun Gong had been arrested. The Tribunal was also informed that the appellant had practised Falun Gong twice in Australia, having attended practice sessions in Auburn.

7    The Tribunal found significant aspects of the appellant’s evidence to be contradictory and implausible. The Tribunal found that the appellant was only able to demonstrate a shallow understanding and engagement with the practice and principles of Falun Gong, and ultimately came to the conclusion that the appellant was not a credible witness. The Tribunal did not accept her claims to have practised Falun Gong in China and found that her limited participation in Falun Gong activities in Australia was solely for the purpose of strengthening her claim to protection. The Tribunal disregarded such conduct in accordance with s 91R(3) of the Act. Accordingly the Tribunal affirmed the decision of the Minister to refuse the appellant a protection visa on the basis that the appellant did not meet the refugee criteria contained in s 36(2)(a) of the Act nor the complementary protection criterion in s 36(2)(aa).

APPLICATION TO THE FCCA

8    By application filed on 27 November 2012, the appellant sought judicial review of the Tribunal’s decision. The grounds of the application were as follows:

1.    In No. 79 of the RRT decision, the Tribunal member said: “Indeed, having observed the applicant’s vague and hesitant responses to questions about her Falun Gong practice in China I have formed the view that she was not speaking about the events in which she was a participant but trying to recall her statement of claims.”

2.    I didn’t receive much education, particularly, I was very nervous at the hearing because it was my first time before a foreign officer questioning me. Therefore, I can reply the questions fluently and immediately.

3.    I think the Tribunal member’s view is not fair to me. The Tribunal member had bias against me, so made jurisdictional error in the decision on 2th November 2012.

[Errors in original]

9    The primary judge found in respect to the first ground of the application that the statement made by the Tribunal in its reasons was not a ground from which the appellant could seek review. The second ground of the appellant’s application sought to explain her inability to answer questions asked of her. The primary judge understood this to mean questions asked of the appellant before the Tribunal. His Honour observed that the appellant had not claimed at the Tribunal hearing that she was nervous. She had stated before the Tribunal that her memory was not very good and the Tribunal referred to such issue. The primary judge found that the second ground of the appellant’s application was not a basis for establishing jurisdictional error.

10    As to the third ground of the application, namely the allegation of bias of the Tribunal, the primary judge found that nothing had been put to him which identified any basis of bias. In doing so, his Honour referred to the established authorities to the effect that a statement of reasons of the Tribunal can scarcely establish bias in the nature of a predetermination of the issues: see SZHVL v Minister for Immigration and Anor [2008] FCA 356 at 17 per McKerracher J and Applicant A165 of 2003 v Minister for Immigration & Anor [2004] FCA 877 at 59 per Lander J.Honour referred to authorities which establish that a statement of reasons of the Tribunal will rarely establish bias on the part of the Tribunal: see SZHVL v Minister for Immigration [2008] FCA 356 at [17] and the authorities cited therein.

11    The primary judge observed that the record of the Tribunal’s decision indicated that the appellant had been fairly dealt with. Accordingly the appellant’s application was dismissed.

APPEAL TO THE FEDERAL COURT

12    By notice of appeal filed on 5 November 2013, the appellant raises the following grounds of appeal:

1.    I came from the China countryside, I only accepted little education. I can’t express my iseal clearly, particularly, in the Australian interview of Refugee review Tribunal, I am very nervous, so, I couldn’t express my correct ideal, for which the Tribunal member refused my application for reviewing of the decision of Immigration Department.

2.    I think the memebr has bial against me when he made his decision, making jurisdictional error.

[Errors in original]Raphael J observed that the record of the decision indicated that the appellant had been fairly dealt with: also accordingly the application was dismissed.In an appeal to this Court by notice of appeal filed on 5 November 2013 the appellant raises the following grounds of appeal:COPY B PLEASE

13    Essentially the grounds of appeal before this Court are the same as grounds of the application considered in the court below.

14    The appellant appeared unrepresented, but assisted by an interpreter. In support of the first ground of appeal, the appellant stated in oral submissions that she wished to have the matter referred back to the Tribunal and reiterated that she was afraid of returning to the PRC.

15    No evidence or other submissions were provided by the appellant to suggest that she was unable to communicate her arguments properly before the Tribunal, or that the hearing was otherwise improperly conducted. Furthermore, the ground of appeal does not allege an error on the part of the primary judge. In these circumstances, the first ground of appeal must be rejected.

16    In respect of the second ground of appeal, the appellant explained that the Tribunal was biased against her as it did not believe her claims. The appellant did not provide any further particulars to support her claim of bias.

17    An allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. The assertion of bias in the present appeal is vague; the only basis on which it is said to have been raised is that the Tribunal did not believe the appellant. This does not establish that a fair-minded lay observer or a properly informed lay person might infer from the record of the proceedings that the appellant could not have done or said anything to change the Tribunal’s preconceived view, namely that she had fabricated claims relating to her practise of Falun Gong: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [28]; SZRIU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [102]. Accordingly, the second ground of appeal must also be rejected.

18    For these reasons the appeal is dismissed with costs.

Associate:

Dated:    19 February 2014