FEDERAL COURT OF AUSTRALIA

SZTGU v Minister for Immigration and Border Protection [2014] FCA 859

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

(REVISED FROM TRANSCRIPT)

1.    INTRODUCTION

1    The appellant is a citizen of the People’s Republic of China and applied for a Protection (Class XA) Visa (protection visa) on 9 March 2012. By notice of appeal filed on 20 May 2014, the appellant seeks to appeal against the orders and reasons for judgment of the Federal Circuit Court of Australia delivered on 9 May 2014: SZTGU v Minister for Immigration and Border Protection [2014] FCCA 947.

2    The appellant is unrepresented. She appeared at the hearing of the appeal and in the Court below with the assistance of an interpreter in Mandarin and English.

3    In her notice of appeal, the appellant identifies three grounds:

1.    RRT [Refugee Review Tribunal] has bias against me as I was deprived of the benefits of doubts.

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

3.    RRT has made an offensive finding based on no evidence.

4    No further detail of the grounds is provided and the appellant did not provide any written submissions in support of her appeal.

5    None of the grounds of appeal are directed to the identification of error in the decision of the Federal Circuit Court. Nor were any of these grounds directly raised in her application for review to the Federal Circuit Court of the decision of the Refugee Review Tribunal (Tribunal). However, I consider that it is fair to read those grounds as if they alleged error by reason of the Court below having failed to find that the decision of the Tribunal was invalid on the enumerated grounds.

6    The Minister for Immigration and Border Protection (Minister) submits that, without any further detail, each of these grounds is without merit. The Minister also submits that, as none of these grounds were advanced before the Court below, the appellant would require leave to raise them now and such leave should be refused in circumstances where the grounds are unarguable.

2.    BACKGROUND

7    The appellant first arrived in Australia on or around 22 April 2008 on a Student (Class TU 571) visa. The appellant’s application for a protection visa was principally based on her claim to fear persecution from local police, arbitrary detention and potential harm arising from, and related to, her and her family’s Christian faith.

8    The appellant’s application for a protection visa was refused by a delegate of the Minister (the delegate) pursuant to s 65 of the Migration Act 1958 (Cth) (the Act) on 28 September 2012.

9    The appellant sought review of that decision by an application filed on 24 October 2012 in the Tribunal. On 27 August 2013 the Tribunal affirmed the decision made by the delegate not to grant the appellant a protection visa on the basis that it disbelieved her claims. The Tribunal found that the appellant was not a credible witness (Tribunal reasons at [46]) as she provided "contradictory, incomplete and vague evidence to the Tribunal. In addition the applicant’s evidence was contradicted by credible country origin information.”

10    Particular reliance was placed by the Tribunal on the fact that the appellant was unable to provide “a reasonable level of detail” regarding religious materials that she claimed to have sent back to China to a member of the local church and to have been intercepted by the authorities (the religious materials claim) (Tribunal reasons at [51]). As the interception of this material was one of the appellant’s main claims to fear persecution if returned to China, the Tribunal did not find it credible that the appellant would not have been able to provide such detail (Tribunal reasons at [50]). The Tribunal also had regard to contradictory evidence given by the appellant in relation to her claimed attendance at local church gatherings in Australia between 2008 and 2010, the difficulties that she claimed to have suffered leaving China, and the appellant’s inability to provide any information about pray-reading or mingling, notwithstanding the extent of her claimed involvement with the church from a young age (Tribunal reasons at [47], [48], [52] and [54]). The Tribunal also found that, while evidence given by the appellant that the tripartite notion of human beings referred to the soul, body and mind was broadly supported by country origin information, she was unable to provide any further information (Tribunal reasons at [53]).

11    These matters led the Tribunal to find that it was not satisfied that the appellant had ever participated in the church activities in China that she claimed or had contact with church groups in Australia, that she had come to the attention of the Chinese authorities by mailing the religious materials or otherwise, or that she had difficulty leaving China (Tribunal reasons at [55]-[57]. For these reasons the Tribunal found that the applicant does not have a well-founded fear of persecution for a Convention reason having regard to all of her claims individually and cumulatively. The Tribunal therefore found that she did not meet the refugee criterion set out in s 36(2)(a) of the Act. Nor, given its rejection of her claims on credibility grounds, was the Tribunal satisfied that she was a person in respect of whom Australia otherwise owed protection obligations and thereby satisfied the alternative criteria for a protection visa under s 36(2)(aa) of the Act.

12    The appellant’s application for review of the Tribunal’s decision to the Court below was dismissed on the ground that the appellant had failed to show that the Tribunal had made any jurisdictional error.

3.    CONSIDERATION

3.1    The grounds raised in the notice of appeal

13    Neither this Court nor the Federal Circuit Court is empowered on an application for judicial review to consider the merits of the Tribunal’s reasons for its decision but can adjudicate only on whether the Tribunal has made a jurisdictional error in reaching its decision, that is, whether the decision is made within lawful boundaries: see Craig v South Australia (1995) 184 CLR 163 at 179.

14    As the Minister submitted, leave is required to raise a ground of appeal which was not raised in the Court below and, where there is no adequate explanation for the failure to take the point and it seems to be of doubtful merit, leave should generally be refused: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48].

15    Turning then to the grounds of appeal, first, the fact that the Tribunal disbelieved the appellant’s claims does not give rise to any perception of bias or demonstrate bias against the appellant. It was open to the Tribunal to disbelieve the appellant’s claims on the evidence before it and the Tribunal set out in detail logical and clear reasons for reaching its decision by reference to the evidence. Furthermore, it is apparent from the detailed description of the questions asked by the Tribunal and answers given by the appellant at the Tribunal hearing that each of the matters which led the Tribunal to disbelieve the appellant’s claims were put to her and she was given an opportunity to respond to them. In this regard, it is important to bear in mind that proceedings before the Tribunal are inquisitorial in nature. In that context, there was nothing necessarily inappropriate in the Tribunal testing the appellant’s evidence in the course of the hearing by putting to her matters of concern and giving her an opportunity to respond. As Gleeson CJ, Gaudron and Gummow JJ stated in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425 at [30]-[31]:

    Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

    Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.

16    The appellant’s migration agent did not attend the Tribunal hearing. The detailed record of the hearing in the Tribunal’s reasons does not, in my view, suggest that this was a case in which its questioning might have given rise to the kinds of concerns to which the High Court referred to in Ex parte H. Moreover, at the conclusion of the Tribunal hearing and after the Tribunal had put to the appellant its doubts about the credibility of her claims, she was offered an adjournment in order to give her a further opportunity to comment, which she refused (at [39]). She was also asked if she had anything more she would like to say to which she responded “no”. It follows that I do not consider that there is any merit in the first ground of appeal.

17    With respect to the second ground of appeal, the finding or findings of fact in respect of which it is alleged that the Tribunal failed to provide adequate reasons are not identified. Nor, on a careful reading of the Tribunal’s decision, can I see any basis on which such an allegation could be upheld. On the contrary, it follows from what I have already said that I do not consider there has been any failure by the Tribunal to provide adequate reasons for its findings, even if a failure to give adequate reasons established jurisdictional error.

18    With respect to the third ground of appeal, the allegation is made that the Tribunal “made an offensive finding based on no evidence.” By “offensive”, I understand the appellant to contend that a finding has been made which is contrary to law because there was no evidence on which such a finding could be made. In principle, such a finding may establish jurisdictional error. However, no such finding is identified or apparent from the Tribunal’s reasons, which disclose the evidence on which the Tribunal’s findings were based.

19    It follows that none of the grounds of appeal alleged can be upheld and leave to plead the new grounds should be refused.

3.2    The decision of the Federal Circuit Court

20    There were four grounds of review raised before the Court below. The appellant, as here, did not make any submissions in support of her application for review. Notwithstanding that the appellant did not raise any error in the decision of the Court below in her notice of appeal, I consider that it is appropriate to consider the correctness of that decision.

21    First, the appellant claimed that Tribunal had not fairly reviewed her case and had ignored evidence about the religious materials sent to China. However, in the absence of any detail such as identification of the evidence which the appellant alleged was ignored, the Court below found it impossible to uphold the ground (at [13]). Further, the information described in the ground reflected the Tribunal’s description of the evidence provided by the appellant to the Tribunal, and the appellant, when asked by the Tribunal, was unable to provide further details (at [14]). I can see no error in these findings.

22    Second, the appellant claimed that the Tribunal had wrongly applied an onus of proof to its decision-making. As the primary judge pointed out, to this extent, if made out, the ground would expose jurisdictional error. However, the Tribunal’s reasons did not suggest that the Tribunal had fallen into such error in rejecting the appellant’s claims. Nor, as the Court below held, was the Tribunal required to accept uncritically the appellant’s evidence and, on the material before the Tribunal, it was open to it not to accept her evidence (at [18]).

23    The Court below found that the balance of the second ground, which repeated the appellant’s religious materials claim and sought to explain her inability to provide further detail, did not raise any arguable case of jurisdictional error. Rather, in my view, his Honour correctly held that the ground took issue with conclusions on matters of fact which were for the Tribunal alone to consider and determine.

24    Third, the appellant alleged that the Tribunal underestimated her difficulties in relocating in China. However, as the primary judge found, the Tribunal did not make any findings about relocation. The Tribunal’s failure to do so is explicable given its rejection of the appellant’s claims to fear persecution. As such, in my view the primary judge correctly found that the third ground of review was not made out.

25    Fourth, the appellant alleged that the Tribunal failed to make a fair assessment of whether she satisfied the criteria for a protection visa under the alternative complementary protection criterion, which is found in s 36(2)(aa) of the Act. I can see no error in the rejection of that ground also by the primary judge (at [25]) on the basis that, notwithstanding the matter was dealt with briefly, the Tribunal gave it a proper consideration.

4.    ORDERS

26    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    15 August 2014