FEDERAL COURT OF AUSTRALIA

SZUQM v Minister for Immigration and Border Protection [2015] FCA 760

THE COURT ORDERS THAT:

1.    The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

1    This is an application for leave to appeal a judgment of Judge Lloyd-Jones of the Federal Circuit Court of Australia delivered on 27 May 2015: see SZUQM v Minister for Immigration and Border Protection [2015] FCCA 1364 (“SZUQM”). The primary judge dismissed an application for review of a decision of the Refugee Review Tribunal at a “show cause” hearing held on 15 December 2014 under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”).

2    The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

Background

3    The applicant arrived in Australia on 21 March 2013 on a tourist visa. He applied for a Protection (Class XA) visa on 19 April 2013. He failed to attend an interview with the Minister’s delegate on 10 October 2013 without explanation. The delegate refused to grant the visa on 17 October 2013.

4    The applicant applied to the Tribunal for review of the delegate’s decision on 11 November 2013. The applicant appeared at a Tribunal hearing on 20 May 2014. The Tribunal affirmed the delegate’s decision on 6 June 2014; I will refer to the Tribunal’s Statement of Decision and Reasons of that date as the “Decision Record”.

5    Based on the applicant’s protection visa application and related submission, the Decision Record states that the applicant claims to be a citizen of the People’s Republic of China born in 1974. He received a total of nine years formal education and was employed on the family farm before he commenced a waste paper collection business in 1992. He is married and his wife, two children and father are living in China. The Tribunal summarised the applicant’s claim as follows:

His business was prospering but in 2009 the leased land on which his collection depot was constructed was subjected to compulsory acquisition by the local government. He was offered insufficient compensation and he bribed the local Party secretary in exchange for a promise to have the land exempted. In the event, the proposed acquisition did not go ahead at that time but it was resurrected in June 2012. The Party Secretary and a local villager conspired corruptly to force him from his land. The pressure made it difficult for him to continue his business and he lost money when he had to sell his stock cheaply. The windows of his house were broken, frightening his family. His efforts to complain to the City Mayor were blocked. He was beaten by a group of people and threatened that his family would be harmed if he did not leave. He hid in a relative’s home for some time and then travelled to Australia.

Tribunal decision

6    The Decision Record at [11] indicates that in the course of giving his evidence the applicant produced photographs which he said were of his home and the land on which he had conducted his business following its acquisition. He also produced a document in the Chinese language without a translation which the applicant said showed plans for the extension of railway services which would permit local or municipal government offices to relocate there and it greatly increased the value of the land leading to property speculation. He offered to show the Tribunal member scars on his head which the applicant said were caused when he was beaten by thugs; the Tribunal member noted that such scars would not in themselves demonstrate the truth of the claim.

7    The Tribunal accepted that the applicant was a citizen of China and that he operated a waste paper business in his village using machinery he had purchased. It accepted that the business was set up in the open air on a piece of land he leased from 2002 which was renewable every two years on notably advantageous terms. The business was successful such that the applicant was able to build a new house in 2009 for 500,000 RMB. The Tribunal also accepted that as a result of a move to relocate local government offices in the area, land prices rose quickly, and in the climate of speculation, the land leased by the applicant was compulsorily acquired without compensation to him. It also accepted that the local party Secretary had some financial interest in this arrangement and corruptly influenced the decision: Decision Record at [15].

8    However, the Tribunal was not satisfied as to the credibility of the applicant’s claim that he resisted the acquisition of the land. The Tribunal found that the acquisition “could hardly have come as a surprise … and [was] no more than an unwelcome but fairly common problem facing every business located in leased premises, given that leases may be cancelled or not renewed”. While allowing for possible differences in the operation of the rule of law in China and Australia, the Tribunal did not accept that that negated basic business principles. Noting that the land had no construction on it and that the applicant’s machinery was mobile, the Tribunal could not see any reason why the applicant would not lease other land, albeit that it might be at a higher cost. The Tribunal found it “implausible” that the applicant would allow his successful business to be run down until it ceased operation while he focused on petitioning government officials to reverse the compulsory acquisition of land which was not owned by him: Decision Record at [16]. The Tribunal also found it “implausible” that the applicant would continue to petition government officials after suffering a beating by thugs employed by the local party Secretary and being warned that his family would be injured if he persisted, given that relocation of his business was a readily available alternative: Decision Record at [17].

9    The Tribunal summarised its decision at [18]-[19] of the Decision Record as follows:

In the light of all the information before the Tribunal, considered individually and cumulatively, I am unable to be satisfied that the Applicant ever opposed the compulsory acquisition of land to bring him into significant conflict with local officials. I am not satisfied that he ever petitioned against the acquisition, in this way incurring the anger of corrupt officials involved in it. I am not satisfied that he was beaten by thugs employed by a corrupt local Chinese Communist Party Secretary, that his property was damaged or that his son was harassed. Nor am I satisfied, finally, that his wife and son were forced to move to live with her parents or that the Applicant himself was forced to flee China for this reason.

As I am not satisfied that the Applicant was ever targeted for harm for opposing the compulsory acquisition of land he had leased, and as there is nothing to indicate that this situation has changed since he left China, it follows that I do not accept he would be targeted for such a reason if he were to return to China. He does not claim to fear harm in China for any other reason and no other reason is apparent on the face of the information before the Tribunal.

10    The Tribunal was not satisfied that he was a person to whom Australia owed protection obligations, either as a refugee or a person entitled to complementary protection.

Federal Circuit Court Decision

11    The applicant applied for judicial review of the Tribunal’s decision by an application filed in the Federal Circuit Court on 4 July 2014. The application pleaded two grounds (as written):

1. Jurisdictional error has been made.

During the hearing, I repeatedly asked for provision of new evidence to substantiate my claims. But my requests were ignored.

2. The Tribunal considers my case with bias.

Tribunal member does not completely consider my situation. Based on improper assumption that a successful businessman would not resist the forced acquisition of land, the Tribunal does not believe that I petitioned and then was beaten and threatened and makes wrong decision that I will not suffer substantial harm after I return China.

12    The reasons delivered by the primary judge indicate that the applicant appeared at the show cause hearing on 15 December 2014 with the assistance of an interpreter. He filed no evidence or written submissions but made oral submissions and was given leave to file further evidence by 30 January 2015: SZUQM at [4], [29]. The applicant did not file a transcript of the Tribunal hearing but did file an affidavit on 29 January 2015 containing seven excerpts which are set out in the primary judge’s reasons at [47]: SZUQM at [30], [46] and [47]. On 13 February 2015, the Minister provided an Auscript transcribed audio recording of the Tribunal hearing: SZUQM at [29], [31], [46] and it appears from [52] and [55] that the primary judge reviewed the transcript.

13    In relation to the first ground, the primary judge concluded that there was no arguable case that the Tribunal denied the applicant an opportunity to provide further evidence in support of his claim: SZUQM at [53].

14    The primary judge found that the second ground and its particulars appeared to raise three issues: (1) a general allegation of bias; (2) that the Tribunal did not consider all of the applicant’s claims; and (3) that the Tribunal made wrong findings in respect of the applicant’s substantive protection claims: SZUQM at [54]. The primary judge found that the bias claim had not been clearly made or distinctly proved and there was no evidence before the Court to support the allegation. Having reviewed the applicant’s written claims and the transcript of the Tribunal’s proceedings, the primary judge found that the Tribunal did not fail to consider the applicant’s claim. The primary judge found that the third issue was an invitation to engage in impermissible merits review of the Tribunal’s decision. The primary judge found that there was accordingly no arguable case for relief on the second ground: SZUQM at [54]-[58].

Application to this Court

15    The primary judge’s decision is interlocutory in nature: r 44.12(2), Federal Circuit Court Rules. Therefore, the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth).

16    To succeed on this application, the applicant must show that there is sufficient doubt as to the correctness of the judgment below, and further that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

Grounds

17    The applicant’s application lists three grounds which are expanded upon in the draft notice of appeal appended to the application (as written):

1. There exits wrong application of law.

The risk that the appellant will be mistreated by local officials upon return to China is not properly considered.

2. My case was considered with bias.

The tribunal did not consider all my claims. The Tribunal refused the appellant to provide more evidence and consider the evidence provided with bias

3. There exists procedural unfairness.

I lost opportunity to attend final hearing to give my representation on 27 May, 2015 because I missed the letter dated 22 May, 2015 from Federal Circuit Court, which was delivered to my mail box on 26 May, 2015. I believe the final hearing should not be scheduled so closely to the nearest receipt date of that letter or the letter should have sent me much earlier, in order to protect my litigation right.

Consideration

18    The applicant appeared at the hearing assisted by an interpreter. He provided no written submissions. The Minister provided written submissions opposing the application and appeared by his representative.

19    At the hearing, the applicant made submissions which appear to correspond generally with submissions made to the primary judge on 15 December 2014 (see SZUQM at [24]-[36]) and reflect the first two grounds of the draft notice of appeal to this Court and the grounds of the application to the primary judge.

20    First, the applicant explained that his English is poor and he does not understand the processes of the Tribunal or the Federal Circuit Court. I do not wish to minimise the difficulties faced by individuals who do not speak English and who, unfamiliar with the processes of the Tribunal and the courts, are required to navigate the system in pursuit of a claim to protection. However, the applicant appeared to me to be an intelligent person who would not have had any unusual difficulty in the process. He was assisted by an interpreter on all occasions and he made no complaint about the services provided. I endorse the comments of Flick J cited by the primary judge in SZUQM at [44]. In SZOOM v Minister for Immigration and Citizenship [2011] FCA 152 at [19], Flick J said:

The fact that a claimant may be unrepresented and may not be either familiar with the legal requirements to be satisfied or may not be fluent in the English language cannot transfer the responsibility of substantiating a claim from himself to those entrusted with the responsibility of determining the claim.

21    Second, the applicant submitted that he made three requests to provide information to the Tribunal.

(1)    At the hearing, the applicant asked the Tribunal member whether he needs to submit evidence that he would be physically harmed if he returned to China. The Tribunal member responded that “we are going to talk about it in a minute”;

(2)    The applicant said to the Tribunal member that he had some photographs on his mobile telephone in relation to forced re-location and enquired whether the Tribunal member wanted to see them. The member’s response was that the applicant could submit the photographs “if you want”. The applicant submitted that he did not know the significance of the photographs. In his view, it was not professional of the Tribunal member to make that response; a professional, for instance a doctor, does not say that about whether a patient should receive an operation; and

(3)    The applicant offered to show scars on his head to the Tribunal member, which the applicant thought was the most significant evidence. The applicant said that the Tribunal member did not even look up when he said that scars were not proof in themselves of his claim. The applicant said that the Tribunal member told him in the introduction that he would consider fully the evidence on the Department’s file and any evidence which the applicant provided at the hearing and any new evidence he submits, but when he offered the evidence, the Tribunal member did not take notice. The applicant said that this evidence was not offered in a bid to gain sympathy. The applicant submitted that before the Tribunal member can legitimately reject that the scars resulted from a beating, he must have had a look at them to rebut the evidence.

22    Third, the applicant submitted that the Tribunal member was biased because even though the applicant had taken an oath to give true evidence, the Tribunal member questioned the evidence and did not accept it. As a result, the applicant claims that the Tribunal member had already made the decision and the hearing was just part of a procedure.

23    There are some well settled principles.

(1)    An allegation of bias is serous and must be distinctly made and clearly proven. No inference of bias can be drawn from the mere fact of adverse findings in the decision record: see SZUQM at [21] and the cases there cited;

(2)    It is for the applicant making a visa application to establish the claims made; the proceedings are inquisitorial and the Tribunal is not in the position of a contradictor. It is for applicants to advance whatever evidence or argument they wish to advance in support of their contentions. The Tribunal must then decide whether the claim has been made out: SZUQM at [41]-[43] and the cases there cited;

(3)    Except for where there is an obvious inquiry about a critical fact the existence of which was easily ascertained, the Tribunal is not under an obligation to inquire into evidence: SZUQM at [18];

(4)    The Tribunal is not required to accept uncritically allegations made by an applicant or to advance evidence specifically rebutting those allegations. The merits of a claim are a matter, par excellence, for the Tribunal.

24    The primary judge considered both the transcript of the Tribunal hearing as a whole and the seven excerpts to which his attention was drawn by the applicant. The seven excerpts set out in SZUQM at [47] were (as written):

a)     Page 2.30-45;

Translation (Member): Mr [SZUQM, if I could ask you now please to stand, and take an oath or affirmation, everything you say will be the truth.

Applicant: Please say it again.

Translation (Member): Just a moment. Yes, well, now. I will red out the Affirmation in English. Thank you. Mr [SZUQM], do you promise that the evidence you give today will be the truth.

Applicant: Correct.

b)     Page 3.20-35;

Translation (Member): In doing that, I am going to be looking at all the information that’s available to me. That includes all the information that’s on your file with the Department of Immigration and the tribunal, and of course, all the information you provided at the hearing today, you now have an opportunity to consider all that information and I will make a decision about whether or not I am satisfied that Australia has protection obligations to you.

c)     Page 4.10-13;

Translation (Member): That means two things, being first of all, the fear had to be genuine and that the person genuinely has to have that fear. And secondly, there has to be some sort of factual or objective basis for that continuing fear.

d)     Page 5.4-11;

Applicant: I am just asking whether I need to submit the evidence to you that I will be physically harmed.

Translator (Member): Yeah, we are going to talk about it in a minute Mr [SZUQM].

e)     Page 5.24-25;

Translator (Member): Mr [SZUQM], the hearing today is an opportunity for you; it is an opportunity to give evidence and present argument to support you application.

f)     Page 18.35-42;

Applicant: In my mobile, I have some photos in relation to forceful re-location. Do you want to see?

Translator (Member): You can submit the photographs if you want.

g)     Page 23.30-45;

Applicant: I want you to see the scars on my head, those were beaten by them.

Translation (Member): Yes, look I have scars myself, my hands, my arms caused by various accidents. I am afraid scars do not indicate anything, really.

Applicant: But I already promise to tell the truth, if you do not believe this, I have nothing to say.

25    In light of the uncontroversial principles and the material considered by the primary judge, I do not consider that the primary judge erred in finding that the applicant’s grounds were not made out and that there was no arguable case for relief.

26    The primary judge read the transcript as a whole, and from my reading of SZUQM at [47] it was open to the primary judge to find as he did in SZUQM at [49] that the exchange in SZUQM at [47(d)] occurred during introductory remarks and the exchange at [47(f)] did not constitute a refusal by the Tribunal member to allow the applicant to present evidence, albeit “if you want” is somewhat casually expressed. The primary judge appropriately took into account the fact that the applicant was invited to provide his evidence and argument in the letter of invitation to appear at the hearing and in the exchange at [47(e)] as well as the evidence in the Decision Record (especially at [11]) of the documents which the Tribunal did receive.

27    The applicant placed particular weight on the Tribunal member’s refusal to examine his scars as referred to in SZUQM at [47(g)]. It is true that there are circumstances in which evidence of physical harm might properly be required in order to inform the Tribunal before it makes its decision. However, there was nothing in the evidence given by the applicant that there was something distinctive in the nature of his injuries which would point to how or when they were received. On that basis, the Tribunal was not likely to obtain better evidence from examining them than the applicant’s evidence as to the beating. There is nothing to suggest that the Tribunal member did not accept that the applicant had scars. The primary judge therefore did not err in rejecting the applicant’s complaint.

28    The fact that the applicant gave evidence on oath does not mean that the Tribunal had to accept it. It was open to the Tribunal not to accept the applicant’s evidence for the reasons which the Tribunal gave at [16]-[17] of the Decision Record and the adverse findings made by the Tribunal at [18]-[20] do not reveal bias on the part of the Tribunal member or that the Tribunal member failed to consider the possibility of harm to the applicant if he were to return to China.

29    I therefore find that the first two grounds set out in the draft notice of appeal do not disclose an arguable case for relief.

30    Fourth, the applicant claimed that there were matters he did not raise with the primary judge at the show cause hearing which he did attend on 15 December 2014 on the basis that he thought he could do so at the next hearing. However, as set out in the third ground of the draft notice of appeal, he said that he did not get sufficient notice to attend and make submissions on 27 May 2015. The applicant acknowledged that the primary judge did not suggest that he would have another opportunity to make oral submissions and I note that the applicant did have the opportunity to provide further written submissions: see SZUQM at [4].

31    On 27 May 2015, the primary judge delivered his reasons for judgment which he reserved on 15 December 2014. He dismissed the application and made an order as to costs in favour of the Minister; the costs order was as would be expected having regard to the fact that the applicant was unsuccessful. There was no denial of procedural fairness as a result of the close proximity between the date on which the applicant received the letter informing him of the date of judgment, and the day that judgment was delivered. The third ground in the draft notice of appeal does not disclose an arguable case for relief.

32    I am not satisfied that there is doubt as to the correctness of the judgment in SZUQM and will dismiss this application with costs as agreed or taxed.

Associate:

Dated:    27 July 2015