FEDERAL COURT OF AUSTRALIA

SZRSS v Minister for Immigration and Citizenship [2014] FCA 137

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or, if not agreed, as assessed.

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

REASONS FOR JUDGMENT

1    The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court now continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, the terminology of Federal Magistrate and Federal Magistrates Court have been retained for convenience and because that terminology was current both at the time the impugned decision was made and the notice of appeal was filed.

2    The appellant, a citizen of the People’s Republic of China (China), arrived in Australia on a subclass 456 (Business (Short Stay)) visa (temporary business visa) on 27 July 2011. In his application for the temporary business visa, he claimed to be a technology manager for an environment protection company. On 26 October 2011, the appellant lodged an application for a Protection (Class XA) visa (protection visa). He said he was a taxi driver and claimed to fear persecution from Chinese authorities because of the birth of his third child in breach of family planning laws.

3    On 17 February 2012, a delegate of the Minister (Delegate) advised the appellant that the application for a protection visa had been refused because she was not satisfied that the appellant was owed protection obligations for the purposes of section 36 of the Migration Act 1958 (Cth) (Migration Act). On 21 March 2012, the appellant appealed to the Refugee Review Tribunal (Tribunal); the Tribunal affirmed the Delegate’s decision on 18 July 2012 because it was not satisfied that the appellant is a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (Convention). On 21 August 2012, the appellant sought judicial review of the Tribunal’s decision by the Federal Magistrates Court; that application was dismissed by Federal Magistrate Cameron on 27 March 2013: SZRSS v Minister for Immigration and Anor [2013] FMCA 204 (SZRSS).

4    By notice of appeal filed in this Court on 2 April 2013, the appellant appealed from the judgment of the Federal Magistrate.

Claims in Statement with Application for protection visa

5    Attached to the appellant’s protection visa application was a statement (Statement). After stating his name, ethnicity and where he was from in China, he went on to say (errors in the original):

… I was born on [date] 1977. I finished my study in [name] Middle School in July 1993. I graduated from [name] Technical High School in July 1996 (studying Environmental Protection and Landscape Engineering). I married an [date] 1999. My mother is a teacher and she is also a Christian. My father is an honest peasant.

I have 3 children. During my wife’s pregnant process of our third child, my family members and myself suffered from lots of problems. We were worried and scared day and night. In addition, it has created big trouble without expectation and caused the demolishment of our property and the land was forfeited. Details are the following:

On 18 Apr. 2010 when I drove back to home, my wife said to me: “I am pregnant again. The doctor who did the ultrasound for me said it is a boy.” I was very happen when I heard the news. However I was also feeling uneasy and worried. Why? Having more children in China is against the law and against the family planning rules. However I like kids so we chose to keep the baby after repeated mental struggle.

On 29 Nov. 2010, [name] Town Government issued the first notice which requested me and my wife to take measures to terminate the pregnancy. Everyone knows that if the pregnancy were terminated at that time, not only the baby would be killed but also my wife would have a risk of losing her life.

In order to protect and keep the baby, my wife tried to hide everywhere and we were so worried that she would be forced to have the pregnancy terminated. On 18 Dec. 2010, the boy was born. We gave him the name of [name]. The birth of this baby had also caused threatening from [name] Town Family Planning Office and our village committee and the penalty of 77910 Yuan.

On 3 Nov. 2011, when I was asking questions about the penalty of 77910 Yuan (Why the son of our village Party Secretary had a baby, who was against the policy as well, only had to pay 10000 Yuan), an officer from the Family Planning Office said to me fiercely: “He has connections. If you have better connections, you may not even need to pay 10000”. That is the so-called human rights in China! We ordinary people can only be upset but cannot speak out. I could not control myself and said it out when I was very angry. After hearing what the officer said, I realised the consequences which my words would cause and I was so worried and scared.

On 10 March 2011, town family planning office pursued me to pay the penalty. At the same time, the office issued a notice to have my property and land forfeited. Why? Not only I was penalised unfairly, but also our property land would be forfeited. I was attacked and retaliated only because I said the truth. That was very unreasonable!

On 20 March 2011, more than 20 people from our village committee, the Family Planning Office and Police Station of our town came to my house beating us and smashing our furniture. At that time, my second daughter was playing outside of our house. She was hit down to the ground. She was only a four years old kid! My daughter was crying and then she was choke with sobs. They pushed me to the ground and punched me and kicked me. My 93 years old grandpa was at my home at that time visiting my children and he was smashed by them.

Our property was knocked down by force and the land was forfeited. Since then, my family members have no home to return. My wife and kids fled to her own parents home to live.

Our town government sent people to monitor me. They hit me because they did not want me to tell what they had done to us. I was not allowed to complain about them to higher authorities. I was also forced to write a guarantee letter.

My God! Where is the truth? where is the law? Where is our ordinary people’s human rights? I was so disappointed, I could not continue my life in China. I was thinking to finish my life. If I die, what would happen to my parents, my wife and my kids? I decided to escape from China and come to Australia, a country with human rights, freedom, equality and a country without oppressing.

I am scared to go back to China. I will be persecuted if I go back. I have no home to return. I wish Australian government could keep me and protect me. I will follow Australian laws.

6    The appellant’s passport was issued on 19 January 2011.

Decision of the Delegate

7    The Delegate noted that the family planning laws in China are laws of general application and, the appellant having paid the applicable fine, the Delegate did not accept that the appellant would be exposed to ongoing discrimination in China. The appellant had provided no information to substantiate that his land was taken or that his house was demolished. The Delegate accepted that the appellant may have a subjective ongoing fear both of action by the secretary of the Communist party in his village and that the town government would harm him because the appellant told everyone in the village about his unfair treatment. However, the Delegate found that the feared harm was not for a Convention reason.

tribunal

8    The appellant attended a hearing with the Tribunal on 7 June 2012.

Claims

9    The appellant supplied a copy of his passport, an untranslated document, photographs of the appellant and his wife and children, photographs of a demolished building dated 25 March 2011 and a household registration booklet for himself, his wife and children.

10    Among other things, the appellant said:

(a)    He had been an intern at an environmental company after he left school in June 1996 but after a time he had become a driver for that company. He earned around 70,000 yuan a year as a taxi driver (40,000-50,000 yuan in hand). The Tribunal commented that that was a lot for a taxi driver and more consistent with a managerial position; the appellant said he worked very hard.

(b)    When asked how a taxi driver got a temporary business visa, he said he paid a lot of money (2,000 yuan) to someone to arrange it. He said he did not (apart from his name) know another Chinese national who had travelled to Australia on the same plane and with the same visa. He said he met the other person on the plane and has not seen him since. When advised that the other person had applied for a protection visa and had supplied documents which indicated that both he and the appellant were employed by the same Chinese company (with the appellant being employed as a Technology Manager), the appellant said he knew nothing about it and it had all been made up by the person who arranged the temporary protection visa.

(c)    He said he obtained the photograph for his visa application and passport at the same time, but he had no comment when the Tribunal raised the issue that he is dressed as a business man for the temporary business visa, but not for the passport.

(d)    When asked about a document which the appellant provided at the hearing, he said it was a notification that land was seized by the government and requiring it to be cleared. He said it was issued on 24 March 2012 because of “religious issues” concerning him and his wife: he said it was his land, but he had not given it as his address on his visa application form as it was his farm. His mother, who is Christian, was “caught” once. The appellant said he did not know why the land would be seized. He later stated that the government was using religion as an excuse to seize his land and this had just happened.

(e)    The appellant told the Tribunal that he fears harm from the government authorities, the leader of the village and the son of the leader of the village because he exposed their unfair treatment. He said that they told him that they will seek revenge and torture him until he is dead. When the Tribunal stated that it would have been apparent if they demolished the property that they were not treating him fairly, the appellant agreed.

(f)    He said he decided to leave China in June/July 2011, after he had paid the fine.

(g)    He said he was first attacked on 3 January 2011 when he was approached at his home to pay the fine. He went back with them to town to the family planning authority to get an explanation and on the way back he was attacked and stabbed in the leg. The Tribunal said that this explanation was implausible and the appellant indicated that it happened again and the next time he was stabbed in his shoulder.

11    The Tribunal questioned the appellant extensively about the payment of the penalties: [44]-[47] of the Tribunal record.

    The appellant first said he was issued with a penalty notice in relation to his son on 28 June 2011, a notification about the fine. He confirmed that that was when he found out what he had to pay. As the son was born in December 2010, the Tribunal queried why the authorities would wait that long. The appellant said that at the time his son was born they asked for 40,000 yuan, but to wait until June 2011 to issue the notice was “how Chinese people work”.

    Ultimately his evidence was that he was first fined 1,000-2,000 yuan when the notice to terminate the pregnancy was issued on 29 November 2010 with a due date of 29 December 2010. At the time of the child’s birth he was asked to pay 40,000 yuan but that could only be the amount if it was done without paperwork and a receipt; this was just the way things worked. When pressed on the issue by the Tribunal, he said that he knew on 3 January 2011 (not 3 November 2011 as set out in his statement with the visa application) that he would have to pay 77,910 yuan but that they did not explain it until 10 March 2011 when they issued the demolition notice; they asked for the fine orally. They demolished the property on 20 March because he spoke the truth – that is, he complained about the difference in his fine and that of the village leader who had only been fined 10,000 yuan. The highest amount paid in his village was 45,000 yuan and most in the village paid between 30,000 and 40,000 Yuan. When the Tribunal commented that the amount he paid was commensurate with his salary and the guidelines applied in the region in accordance with independent advice available to the Tribunal, the appellant commented that this did not explain why the village leader had paid only 10,000 yuan. He did not know how fines were calculated. He paid the 77,910 yuan fine in early July 2011.

12    The Tribunal put its concerns to the appellant and they are recorded at [49] of the decision record:

The Tribunal advised the applicant that it had difficulty accepting his claims. The Tribunal advised the applicant that his evidence is very confused and inconsistent with what he told the Department and what was in his statement. The Tribunal stated that in his statement he had said on 10 March 2011 that he was issued with the notice to pay the penalty. He also told the Department that he paid the fine on 29 June 2011 whereas today he has claimed that he paid it in July 2011 and that it was that date that he received the first notice. The Tribunal stated that he has added significant claims about having his land demolished as well as his property demolished. He also added a significant claim to the Department about his mother’s arrest. The Tribunal also stated that it has advised him that he may have misrepresented his circumstances in China. The Tribunal stated that the photographs of the house demolition could be of anything and that fraudulent documents are readily obtainable in China. The Tribunal also stated that it has concerns that he does not have 3 children and is not telling the truth. The Tribunal again stated that it has serious concerns about his truthfulness. The applicant stated it is the Tribunal’s decision whether to trust him or not. The Tribunal advised the applicant that the hearing is his opportunity to provide all the details of his claims and to explain the concerns raised by the Tribunal. The Tribunal stated that it is required to put its concerns to him and to give him an opportunity to comment. The Tribunal asked the applicant if there is anything further he wishes to add in relation to his claims and evidence. The applicant stated that in relation to the timing issues it has been a while so he cannot remember everything and all the dates.

Section 424A Letter

13    On 14 June 2012, the Tribunal sent the appellant a detailed letter for the purposes of s 424A of the Migration Act (s 424A Letter), inviting the appellant to comment on inconsistencies which it perceived in information provided by the appellant.

14    The first group of inconsistencies related to his employment and education in China. In relation to this the Tribunal said:

•    You have claimed on the application form for a protection visa that you were a taxi driver in China

•    You indicated on the application form that you studied environmental protection and landscaping engineering.

•    You stated on the application form that you finished high school in June 2006.

•    During the Tribunal hearing you said that you finished school in June 1997 and did an internship for 6 months at an environment protection company.

•    The Department’s records indicate that you were granted a Subclass 456 visa at the same time as Mr [name], a citizen of China.

•    The Department’s records indicate that both you and Mr [name] were employed at the [name] Environment Protection Equipment Trade Company.

•    Mr [name] provided documents to the Department for the Subclass 456 visa application indicating that you were the Technology Manager and he was the Vice General Manager.

•    Mr [name] also provided documents showing that the purpose of your visits to Australia was for the 2 of you to visit the Hungry Giant EPS 300 facility in Sydney. (The documents are attached).

•    Mr [name] lodged an application for a protection visa and told the Department in his application and the Refugee Review Tribunal that he was employed as the Vice General Manager for the [name] Environment Protection Equipment Trade Company.

•    The photograph of yourself that you provided for the protection visa application indicates that you are dressed as a businessman in a suit.

15    The Tribunal indicated that it might find the appellant’s claim to have been employed as a taxi driver was false and that he had not been truthful about his education or employment, that he had instead completed higher education in environmental studies and had been employed by the [name] Environment Protection Equipment Company in the capacity of Technology Manager.

16    The second set of inconsistencies related to the penalty notice for the fine and the appellant’s experiences in China:

•    In your statement to the Department you stated that on 18 December 2010 your son was born and you were then fined 77,910 yuan.

•    In your statement to the Department you said that on 3 November 2011 (you clarified at the hearing that you meant 3 January 2011) you asked questions about having to pay the fine. You did not state in your statement that anything happened to you on that day.

•    In your statement to the Department you said that the Family Planning Office issued you with a notice to pay the penalty and have your land confiscated on 10 March 2011 and on that day you were attacked and retaliated against because you had spoken the truth.

•    During the Tribunal hearing you said that it was on 3 January 2011 that you were first attacked when you complained about having to pay the fine.

•    During the Department interview you were asked when you approached the Family Planning Office about paying the fine and you said that you could not remember the date.

•    During the Department interview you said that you paid the fine on 29 June 2011.

•    During the Tribunal hearing you said that you were first issued with a penalty notice on 29 June 2011 and that you paid the fine in July 2011 before you came to Australia. You were asked during the hearing whether you were given the penalty notice on 10 March 2011 and you said that they just issued you with the fine orally on that date.

17    The Tribunal indicated that the evidence which the appellant gave to the Department and the Tribunal as to when he was first attacked differs: 10 March 2011 to the Department and 3 January 2011 to the Tribunal. The Tribunal also indicated that the appellant told the Department that he was issued a penalty notice on 10 March 2011 but when interviewed by the Tribunal the appellant said that he was first issued with the penalty notice on 29 June 2011 but had been told orally about the fine on 10 March 2011. It also said that the appellant’s evidence about when he paid the fine differed between the Department (29 June 2011) and the Tribunal (July 2011). The Tribunal indicated that it might find that the appellant had not provided truthful evidence and his claims had been manufactured because of these inconsistencies. The Tribunal said it might “find that your willingness to provide untruthful evidence is indicative of your overall poor credibility.”

18    The Tribunal also raised concerns about new claims:

•    During the Department interview you claimed that your mother had been arrested for her religious views.

•    You did not previously mention this claim in your statement to the Department.

•    At the Tribunal hearing you raised new claims about another property being demolished because of “religious issues”.

19    The Tribunal said that it might find that the appellant had shown a willingness to provide additional significant claims and this was indicative of overall poor credibility.

20    The Tribunal said that the totality of the information was relevant because the Tribunal might find that the appellant provided untruthful evidence about the payment of the fine for breaching China’s one child policy, was not harmed or his house demolished as a consequence of a breach of the policy, he was not sought by the Chinese authorities for non-payment of the fine and that the appellant’s reasons for leaving China were entirely unrelated to those put forward in the visa application. The Tribunal also indicated it might find that the appellant was not a taxi driver but instead employed by a Chinese environmental protection equipment company as a businessman in the capacity of Technology Manager and that he has misrepresented his circumstances in China. The Tribunal warned that it might find that the appellant was not a truthful witness and had not provided a truthful account of his experiences and reasons for leaving China.

Response to the s 424A Letter

21     In a further statement provided to the Tribunal on 6 July 2012 (Further Statement), the appellant responded to the s 424A Letter as follows (in translation, grammatical errors in the original):

Firstly I would like to express my gratitude to you and the government for your caring to me and my family. Thank you indeed.

I swear in the name of Jesus, that what I’m saying is nothing but the truth.

In China I was a taxi driver -- a hard-working, honest and helpful taxi driver. In July 1996, I graduated from [name] Vocational School, majored in environment protection and landscaping. On the day I appeared in court, I mistakenly gave the time as July 1997. It was a long time ago so I didn’t recall it correctly. It was my mistake, I apologise for that and hope you don’t mind.

On 29 November 2010, the government of [name] Town issued me the first notice (it was about stop the gestation and fine me 1000 - 2000 RMB). My wife and I loved kids very much and we were afraid that the termination of pregnancy would threaten her life, as a result we started to leave and hide (this was why I tried to get a passport).

On 18 December 2010, my third kid came to the world, bringing an incredible fine of 77910 RMB alongside the threatening from the village committee and the birth control office of the town.

On 3 January 2011, I questioned the birth control office and the [name] government about my 77910 RMB fine and compared my fine to the penalty they gave to their own people, hoping to show the unfairness and their violation of law. The officials didn’t give me any reasonable explanation; rather, they prosecuted me even worse. On my way home from [name] government, I was beaten and my left leg was stabbed. The wound got 2 stitches and you can still see the scar.

On 10 March 2011, the birth control office of [name] town pushed me to pay the fine while gave me another notice (the notice of confiscation of my property and land). It was a notice, not a fine ticket, probably the term was translated incorrectly. In order to save my property from demolition, this time I visited not only [name] Government, birth control office, but also the government of [name] City to make my argument. They didn’t follow the law and gave no reasonable explanation this time. On my way home from [name of city] I was beaten for the second time. More severe and I was almost killed. My left shoulder was cut by a knife and got 8 stitched. The scar can prove that.

On 20 March 2011, 20 people from [name] government, birth control office, police station, village committee and gangsters came to my home, beat people, smashed and robbed my belongings. My house was torn down, everything in my home was destroyed, and nothing left. The pot that you saw in the picture contained food. From then on, my family was gone. My family lived a vagabond life, my wife and kids lived with my wife’s parents. I thought about appealing to the higher authorities for help, but living under the threatening from the son of village secretary and gangs, I was scared. I was afraid that they would hurt my kids and my wife (each time I returned from appealing, I was beaten. You can tell what the government is doing). They threatened that they would torture me to death. I was throughout scared. The government sent someone to monitor me, beat me and torture me for a period of up to half a month. I was forced to write a letter of guarantee than I would never appeal again.

On 29 June 2011, the government issued notice of fine (which is the written decision of the 77910 RMB fine). On 1 July I paid the fine. My wife told me about the date, I hope you can understand (this was also the time when I decided to escape from China).

After all these, my mother was arrested for church activities. On 24 March 2012, I was given the notice of confiscation of my land (please find the attached translated Summon, Administrative Ruling and Notice of Execution). They are the evidence that they are still continuously bothering me and never set me free. Moreover, if you look at the picture of my son, which is only a 3 year old boy, you’ll find sorrow and fear in his face and there’s no trace of happiness or activeness of kids. My heart hurts whenever I see this. What makes me feel most proud is my eldest daughter. She is always the top student in the whole grade, and she is so sensible. The photo of her standing at the front of the classroom was taken on Mother’s day. My wife was invited to school as ‘the kindest mother’. In front of all the teachers and the students, my daughter, with my son in her arms, spoke her heart out: ‘Although his birth brought great change to my once happy family and lead to the homelessness, he is still my dearest younger brother. The whole family is proud to have him.’

Here’s my final conclusion: You Honour, there’s no doubt that a citizen should abide by the law and contribute to the nation to his own strength. China is a country with family plan policy. Paying the fine for the unplanned child is reasonable and impossible to refuse. I worked hard to pay the unfair fine, I accept that and it’s my principle of being a man. However, what policy and law did the Chinese officials follow? They are just using their power to get money and profit for themselves. As a father who has unplanned kids, I simply found they were not treat people equally. What I have done is just exposing their behaviours which violated the law. They ruined my family, made me homeless and threatened to torture me to death. They are more than law enforcement units. They’re mafia, gangster, and they did all the bad things. If I go back to China, there’s no way I can live. They will kill me. I’m frightened of them; frightened of the government’s way of law enforcement; frightened of the so-called ‘Socialist Country’ where I was beaten, bullied and had no place to reason.

In Australia, I go to the church on Sundays because Jesus gives me the spiritual power and encouragement to live. Back in China, those people exerted more pressure on me and my family in the excuse of superstition. My cultivate land was expropriated by them through government and court. They are trying to conduct reprisals even I am in Australia. If I go back, is there anyone who can guarantee that the government, village secretary and his son won’t prosecute me again? They can do anything. There’s no possibility for me to live. I hope Australia government could accept me and protect me. I will definitely observe law and disciplines and be a good man.

Thank you!

Decision of the Tribunal

22    The Tribunal accepted that the appellant had three children, that he had paid a fine both before and after the birth of the third child and the child has since received household registration. However the Tribunal did not accept that he had suffered physical harm from the authorities as a result of the breach of China’s one child policy and considered that the appellant had manufactured his claims to have been beaten and tortured by the authorities and to have had his house destroyed and land confiscated following his arrival in Australia. The Tribunal considered that the appellant’s evidence was confused, inconsistent and lacking in credibility and that he showed a tendency to alter and add claims when he considered it convenient to do so. The Tribunal also considered that the appellant had misrepresented his employment in China and that this was further indicative of his attempts to provide untruthful evidence. The Tribunal was not satisfied that the appellant is a truthful witness and considered that he manufactured the entirety of his claims to fear harm in China.

23    The Tribunal found that the fine after the birth of the child was not disproportionate within the guidelines of general application in the region he comes from, based on independent country information. The Tribunal found that, as the appellant had paid the fine, there was no reason why authorities would have an interest in him. It concluded that the appellant left China not for reason of a fear of persecution but as a result of financial considerations arising from the birth of his son, and preferred the claims made in the appellant’s temporary business visa application that he was a Technology Manager. The Tribunal was not satisfied that if the appellant returned to China he would face persecution for a Convention reason or risk significant harm pursuant to the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Tribunal noted that although the appellant had mentioned that he had attended Christian services in Australia, that his mother had been arrested and assaulted for Christian worship and that land had been confiscated ostensibly for his religious views (although he and his wife are not Christian), he had made no claims for protection on the basis of religion. It did not accept that the picture of a demolished home which he provided was of the property he said had been demolished. The Tribunal also did not accept that documents provided by the appellant in relation to the confiscation of his land were genuine, forged documents being readily obtainable in China.

proceeding before the federal magistrates court

24    In his application to the Federal Magistrates Court for judicial review of the Tribunal’s decision, the appellant relied upon the following grounds (grammatical errors in the original):

1.    I have three children,so I was fined and my property and land were forfeited. The authorities beat us and smashed our furniture. They monitored me stopping me to complain about them to the higher authorities, therefore I had to escape from China. The Refugee Review Tribunal member failed to consider my application according to S91R of the Migration Act 1958 because of the Tribunal’s bias against me.

2.    The Refugee Review Tribunal failed to take all my claims into account according to S424A of the Migration Act 1958.

25    In his reasons for judgment, the primary judge found that the appellant did not properly articulate the claim of bias and that the allegation was not supported by the only available evidence which was the court book, including the Tribunal’s decision record.

26    In relation to ground two, the primary judge found that the appellant did not identify the claims that he alleged had not been dealt with by the Tribunal and that the Tribunal’s decision record demonstrates that it did deal with those claims, although the Tribunal did not accept them.

27    The primary judge noted the further submission made by the appellant at the hearing of the application to the Federal Magistrates Court that the interpreter at the Tribunal hearing had been inadequate because of a translation error in relation to the date on which he had received notice of the 77,910 yuan fine. The primary judge correctly stated at [22] that inadequacy of interpretation can result in a breach of s 425 of the Migration Act because an applicant does not have an adequate opportunity to advance his evidence and arguments to the Tribunal at a hearing. The primary judge considered [71] and [72] of the Tribunal’s decision record and found that the alleged mistranslation had been dealt with when the Tribunal had accepted that the notice given to the appellant on 10 March 2011 related to the confiscation of his property, not the 77,910 yuan fine; he received written notice of his fine on 29 June 2011. Even though the Tribunal nonetheless found the appellant’s evidence confused and inconsistent, the primary judge found that the appellant had not been denied the opportunity to put his case because the Tribunal had been aware of, and dealt with, the issue of translation as it was specifically raised: see [23]-[24] of SZRSS.

28    The primary judge found that none of the grounds of the application had been made out and dismissed the application.

The appeal proceeding

29    The appellant relies on the following ground in the appeal to this Court (grammatical errors in the original):

I have three children , so was fined and my property and land were forfeited . The Chia authorities beat me and smashed my furniture. They stopped me to complain them to the higher authorities.I was forced to leave home for Australia .The Tribunal member failed to consider my claims according S91R of the Migration Act 1958 for his bias against me. The Federal Magistrate Cout didn’t point the Tribunal member’s error and dismissed my appeal.

30    This ground had no particulars. At the hearing, the appellant appeared in person and with the assistance of an interpreter. The Minister’s representative provided written submissions and appeared at the hearing.

Bias

31    The appellant did not advance any further arguments in relation to this element of the claim. The primary judge correctly stated at [17] of SZRSS that a claim of bias must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker has not acted in good faith are rare and extreme. This is especially so where all that the appellant relies upon is the written reasons for the decision under review: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [44]. The primary judge accordingly made no error in dismissing this ground.

Last sentence of ground

32    At the hearing the appellant re-iterated factual claims that: even though he had paid the fine of 77,910 yuan, his home had been demolished and he had been physically attacked; even after he came to Australia, his land had been confiscated, and if he returned to China he would be physically harmed. As the Court informed the appellant at the commencement of the hearing, consideration of the merits of the appellant’s claims is not the province of the Court except insofar as any argument reveals jurisdictional error by the Tribunal or error by the primary judge in considering the application for judicial review of the Tribunal’s decision. These arguments must be dismissed.

33    The appellant raised again the ground that “translation errors” led the Tribunal not to consider his case carefully: for example, the first fine notice was to terminate the pregnancy and it was for 2,000 yuan. The Statement had been translated by a friend because he could not afford a professional interpreter and the appellant claimed that led the Tribunal into error. However, everything that he said was true. The appellant’s argument seemed to be that the Statement had been mistranslated, rather than that there had been translation errors at the Tribunal hearing.

“Interpretation error” or misunderstanding of factual element of claim by Tribunal?

34    In preparing my reasons following the hearing, I reviewed again relevant parts of the Statement:

On 3 Nov. 2011 [the Tribunal accepted that this should read 3 January 2011], when I was asking questions about the penalty of 77910 Yuan(Why the son of our village Party Secretary had a baby, who was against the policy as well, only had to pay 10000 Yuan), an officer from the Family Planning Office said to me fiercely: “He has connections. If you have better connections, you may not even need to pay 10000”. … I could not control myself and said it out when I was very angry. After hearing what the officer said, I realised the consequences which my words would cause and I was so worried and scared.

On 10 March 2011, town family planning office pursued me to pay the penalty. At the same time, the office issued a notice to have my property and land forfeited. Why? Not only I was penalised unfairly, but also our property land would be forfeited. I was attacked and retaliated only because I said the truth. That was very unreasonable!

35    At [30] of its decision record, the Tribunal summarises the paragraph dealing with the events of 10 March 2011 as follows:

On 10 March 2011, the Family Planning Office issued him with a notice to pay the penalty and have his property and land forfeited. The applicant was not only penalised unfairly but his property was forfeited. The applicant was attacked and retaliated against because he had spoken the truth.

36    At [6](i) of SZRSS, the primary judge summarises this part of the Statement as:

[O]n 10 March 2011, the town family planning office issued him with a notice to pay the penalty and also a notice for the forfeiture of his property and land;

37    On a plain reading of the Statement, it appears that the appellant did not say that the penalty notice for the 77,910 yuan fine was given to him on 10 March 2011. This is consistent with his evidence to the Tribunal. The summary at [30] of the decision record appears to disclose a misconception by the Tribunal which was not questioned by the primary judge.

38    I drew this matter to the attention of the parties and asked them for submissions about what I should take from this circumstance, given the importance the Tribunal placed on “inconsistencies” in the appellant’s evidence and its resonance in credibility findings. I referred the appellant to a pro bono lawyer under rule 4.12 of the Federal Court Rules 2011 (Cth), and express the gratitude of the Court to Ms Andelman of Counsel for her assistance to the appellant in preparing written submissions.

Application for leave to amend grounds of appeal and orders

39    The appellant sought leave to amend the grounds of appeal and orders to read:

The Court below erred in failing to find that the recommendation of the second respondent was affected by legal error by making an erroneous finding or reaching a mistaken conclusion

Particulars

The second respondent misinterpreted the appellant’s claim at paragraph 30 of the recommendation. AB, Tab 11, 96-97.

The second respondent made erroneous findings and reached a mistaken conclusion at paragraphs 47, 49, 69, 71, 72 of the recommendation. AB, Tab 11, 105-112.

The Court below failed to identify that the second respondent misinterpreted the appellant’s claims at paragraph 6(i) of the reasons for the order. AB, Tab 12, 151.

The Court below made erroneous findings and reached a mistaken conclusion at paragraph 24 of the reasons for the order. AB, Tab 12, 161.

Orders sought

1    That the appeal be allowed and orders (1) and (2) of the Federal Magistrates Court be set aside.

2    An injunction restraining the first respondent, whether by his officers or agents, from relying on the recommendations of the second respondent.

3    A declaration that, in recommending to the first respondent that the appellate was not a person to whom Australia had protection obligations, the second respondent made an error of law in that his findings were unreasonable or plainly unjust.

Written submissions

40    The appellant submitted that the second respondent wrongly misstated the appellant’s claim at [30] of its decision record and as a result made erroneous findings and conclusions about the appellant’s credit. When the appellant sought to correct the second respondent’s misunderstanding he was said to be changing his story.

41    On the basis that the context of the appellant’s claims was independent merits review, the appellant first submitted that the “abridged concept of procedural fairness that applies to Refugee Tribunal matters has no bearing on the present case, which is governed only be [sic] common law concepts of administrative law due to the non-statutory nature of the independent merits review scheme,” and sought to rely generally on the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319.

42    In his written submissions, the Minister cited a number of the classic propositions of the High Court in this area: (1) there is a distinction between a decision outside the limits of a decision maker’s functions and powers and a decision maker incorrectly deciding something which the decision maker is authorised to decide: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163], (2) the duty and jurisdiction of the court to review administrative actions does not go beyond declaration and enforcing of the law which determines the limits and governs the exercise of the decision maker’s power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the decision maker: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; (3) not all error that is capable of going to jurisdiction will necessarily do so, the error must be material to the decision in the sense that the decision depends on the error: Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [7]-[14].

43    The Minister correctly pointed out that the decision under review is a decision of the Tribunal, not an Independent Merits Reviewer. Accordingly it is a “privative clause decision” within the meaning of s 474 (2) of the Migration Act unless it is affected by jurisdictional error such that it cannot be considered a decision made “under this Act”: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. Section 422B therefore provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to the “matters” set out in Division 4 of Part 7 of the Migration Act which constitutes a “clear statement of legislative intent excluding the continuing operation of common law principles of natural justice in the conduct of reviews” on those matters: Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 at [12]-[18]. There was no suggestion that any provision of Division 4 of Part 7 has been breached in this case. Accordingly, the appellant’s first submission must be rejected.

44    The appellant submitted that in the circumstances, the second respondent’s erroneous reading of his Statement in relation to the events of 10 March 2011 which, in part or in whole, led it to reach a mistaken conclusion was a jurisdictional error. He relied on the dictum of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

45    The Minister contended that the appellant’s reliance on the classic statement in Craig is misconceived because the High Court’s statement concerns the impact of an error of law on a Tribunal’s decision making, not an error of fact. While the Minister’s submission is correct, it is not the end of the issue.

46    The appellant also sought to rely on the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (Li) per Hayne, Kiefel and Bell JJ at [63] for the proposition that “the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.” The appellant contended that the decision of the second respondent that the appellant changed his story and was untruthful was not informed by any reasonable consideration of the evidence and was one that no reasonable decision maker could have come to within the dictum of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The appellant said that the findings of fact were not reasonably open on the evidence and were perverse, relying on Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [38].

47    The Minister correctly pointed out that the Tribunal is bound by s 415(4) of the Migration Act not to purport to make a decision that is not authorised by the Migration Act or the Migration Regulations 1994 (Cth). Accordingly, in reviewing a decision of the Delegate made under s 65(1) to refuse to grant a protection visa, the Tribunal only has power to vary or set aside the decision if it is satisfied that the applicant meets the criteria for that visa set out in s 36; otherwise the Tribunal must affirm the Delegate’s decision. No discretion is involved. I accept the Minister’s argument that High Court’s analysis of “unreasonableness” in the context of procedural discretions in Li has no application in the present case in the manner asserted by the appellant. “Unreasonableness” in decision-making applies only to determining the validity of discretionary decisions rather than the fact-finding leading to those decisions: SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (SZOOR) per McKerracher J at [83].

48    A finding of a jurisdictional fact can be impugned where it is illogical, irrational or lacks a basis in findings or inferences of fact supported on logical grounds: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) per Gummow A-CJ and Kiefel J at [40]. I will refer to this ground as “illogicality” for convenience. A wrong finding of fact, which is not a jurisdictional fact, will generally not be sufficient to impugn a decision: SZOOR per Rares J at [12]. It is, however, necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion reveal illogicality or irrationality amounting to jurisdictional error: SZMDS at [132] per Crennan and Bell JJ.

49    The Minister contended that the Tribunal’s reading of the Statement about the events of 10 March 2011 disclosed at [30] of the decision record is not wrong: it was a reading open to the Tribunal. The Minister said that the language used was not that of a native English speaker. While I acknowledge that the use of the date 3 November 2011 in the immediately preceding paragraph of the Statement (which the Tribunal later accepted should be 3 January 2011) added a dimension of confusion to the Statement, I do not accept the Minister’s argument. I consider that the plain reading of the paragraph dealing with the events of 10 March 2011 is consistent with the evidence given by the appellant, and that the Tribunal’s interpretation in [30] is wrong.

50    Paragraphs [44]-[49] of the decision record demonstrate the difficulties faced by the Tribunal in establishing the factual claims made by the appellant arising from the confusion around this and other issues. Those issues were addressed in the s 424A Letter, and insofar as they relate to the appellant’s claims about the fines and subsequent demolition of his home, they are addressed in his Further Statement. Paragraphs [69]-[72] of the Tribunal’s decision record expose how the Tribunal dealt with the issues (footnotes omitted):

69.     The Tribunal firstly considers that the applicant’s evidence as to when he was issued with the first penalty notice following the birth of his child, when he was first attacked, and when he paid the fine is confused and inconsistent. Thus, although the applicant stated in his statement to the Department that he was first issued with a penalty notice on 10 March 2011 and that it was on that day that he was attacked and retaliated against because he had “spoken the truth” about the payment of the fine, the applicant subsequently told the Tribunal during the hearing that he was first attacked on 3 January 2011 when he first went to the family planning offices to complain about having to pay the fine. In response to the Tribunal’s post hearing s.424A letter, the applicant has stated that on 3 January 2011 he questioned the family planning officials about the fine and it was on that day that he was beaten and his left leg was stabbed whilst he was on his way home.

70.    The Tribunal does not accept that the applicant would not have stated in his statement to the Department that he was attacked on 3 January 2011 when he claims to have first gone to the family planning offices to complain about the amount of the fine. The Tribunal considers it evident that the applicant has altered his evidence in relation to this issue. The Tribunal also considers that the applicant’s evidence (see below) whereby he altered and shifted his evidence as to when he found out how much he had to pay casts further doubts on his evidence to have gone to the family planning offices in January 2011 to complain about the amount of the fine that he subsequently indicated he did not find out about until June 2011. As discussed below, the applicant initially indicated to the Tribunal that he found out how much he had to pay in June 2011 and that he paid the fine soon after that time. However, the applicant subsequently altered his evidence, indicating that he found out orally before that time as that is “the way it works in China”. In addition, when the amount of the fine was discussed during the hearing, the applicant indicated that he had “no idea” how the fine was calculated but he had no “disagreement” with the fine and only the amount. The Tribunal considers it further problematic that the applicant would be insistent on complaining about the fine in circumstances where he does not even know how the fine is calculated and would only assume that he was being charged more than other people. The Tribunal does not accept that it is credible that the applicant would have been complaining about the fine at a time when he was uncertain of the amount or how it was calculated. In addition, although the Tribunal accepts that the authorities in China can act in a harsh and arbitrary manner in the application of family planning policies in Hebei and elsewhere in China and that couples who violate the policy can be subject to the destruction of their homes, incarceration and forced sterilisation, the Tribunal also does not accept that it is credible that the applicant would have been attacked and stabbed on his way home on the first day that he went to the family planning offices, some 2 weeks after the birth of his son, to complain about the fine in circumstances where he claims to have not yet been issued with a penalty notice requiring him to pay 77,910 yuan. In the context of the other problematic evidence in relation to this issue, the Tribunal does not accept that the applicant complained at that time or that he would have posed any threat to the officials such that the officials would have considered it necessary to beat, and stab him on his way home. The Tribunal considers that the inconsistent, confused and implausible nature of the applicant’s evidence in relation to this issue raises serious concerns that it has been manufactured.

71.    The applicant has also claimed in his statement to the Department that he was issued with a notice to pay the penalty on 10 March 2011 and a notice stating that his land would be confiscated. During the Department interview the applicant stated that he paid the fine on 28/29 June 2011. However, during the Tribunal hearing when asked when he found out how much he had to pay, the applicant initially indicated that it was on 28/29 June 2011 when he was issued with a penalty notice that he found out how much he had to pay. The applicant subsequently altered his evidence and stated that he knew beforehand how much he had to pay but it was June 2011 when it was put in writing. The applicant then stated that he found out in January 2011 how much he had to pay. He was also asked during the Tribunal hearing when he was given the penalty notice and he stated that on 10 March 2011 he was only given the penalty notice orally. In response to the Tribunal’s s.424A letter, the applicant has stated that he was not given a notice to pay the fine on 10 March 2011 and that his earlier evidence was a “translation error” and he was only given a notice for the confiscation of his property and land and it was on 29 June 2011 that he was given the notice of the fine and he paid it on 1 July 2011. The applicant claimed in response to the Tribunal’s s.424A letter that he may have made “time errors” and that his wife told him the date.

72.    The Tribunal is prepared to accept the “translation error”, but nevertheless considers that the applicant’s evidence in relation to the above issues is confused and inconsistent. The Tribunal considers that the applicant’s evidence during the hearing as to when he found out about the amount of the fine was evasive and that he has altered his evidence as to when he found out how much he had to pay. The Tribunal also considers it evident that the applicant has given inconsistent dates as to when he paid the fine and although he told the Department that it was on 29 June 2011 he later claimed that was the day he was issued with the penalty notice and he paid the fine some 2 days later. The Tribunal considers that the applicant has been unable to provide a consistent or coherent account of these issues because, although the Tribunal accepts that he was required to pay a fine for breaching China’s family planning regulations, he has attempted to manufacture evidence regarding the consequences of the birth of his third child and his breach of China’s family planning policies. The Tribunal does not accept the applicant’s explanation for the problematic nature of the evidence in relation to this issue. The Tribunal considers that the applicant’s evidence in relation to these issues is further indicative of the fact that it has been manufactured.

51    On a reading of the Tribunal’s decision record as a whole and [69]-[72] in particular, I consider that the Tribunal was influenced by its misreading of the Statement and that it retained an impression of confusion and untruthfulness of the appellant that may have infected its satisfaction concerning the appellant’s claims notwithstanding its statement that it accepted that a “translation error” had occurred. For instance, it is consistent with the Statement that the appellant was told the amount of the fine orally in January 2011, pursued for it in March 2011 and only received the written demand later, but the Tribunal at [71] nonetheless considers this a shift in his evidence and at [72] states that the applicant was unable to provide a consistent or coherent account of these issues.

52    However, this is not the only basis of the Tribunal’s findings. The Tribunal rejected the appellant’s evidence of the circumstances of his employment in China and did not find it plausible that the appellant would be further pursued once the fine had been paid. As demonstrated at [70] of the Tribunal’s decision record, there are other elements of the appellant’s claims in relation to penalties and physical harm inflicted on him which were found not to be plausible by the Tribunal. These findings appear open to the Tribunal and they are not an illogical or irrational basis for the Tribunal’s finding of the jurisdictional fact.

53    Illogicality will not amount to jurisdictional error in every case and it will not be sufficient where it would be futile to grant relief because there are other bases for the impugned decision: SZOOR per McKerracher J at [85] and cases cited at [95]-[101]. Reviewable error in relation to one matter (in SZOOR, reliance by the Tribunal on an anonymous letter) would not be sufficient to grant relief where other matters grounded the decision. Consistent with the reasoning of Crennan and Bell JJ in SZMDS at [135] and Reeves J in SZOOR at [113], this is not a situation where only one conclusion is open on the evidence, or the decision was simply not open on the evidence or there was no logical connection between the evidence and the inference or conclusions which the Tribunal drew on those matters.

54    Accordingly, I do not grant leave to the appellant to amend the grounds of appeal to this Court. I note that the orders sought in the draft notice of appeal would not have been appropriate if the Court had found those grounds to be made out; writs of mandamus and certiorari would have been the appropriate remedy. I also dismiss the ground set out in the last sentence of the notice of appeal.

Conclusion

55    For the reasons set out above, I dismiss the appeal and order that the appellant pay the first respondent’s costs as agreed or as assessed if they are not agreed.

Associate:

Dated:    27 February 2014