FEDERAL COURT OF AUSTRALIA SZQKV v Minister for Immigration and Citizenship [2012] FCA 501 Citation: SZQKV v Minister for Immigration and Citizenship [2012] FCA 501 Appeal from: SZQKV v Minister for Immigration [2012] FMCA 126 Parties: SZQKV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR File number: NSD 408 of 2012 Judge: FLICK J Date of judgment: 16 May 2012 Catchwords: ADMINISTRATIVE LAW – grounds – failure to consider relevant matters – no failure made out ADMINISTRATIVE LAW – procedural fairness – bias – whether decision maker who accepted applicant's claims biased – no bias MIGRATION LAW – definition of refugee – requirement that fear of persecution be "well-founded" – insufficient foundation for fear of persecution Legislation: Migration Act 1958 (Cth) s 91R Cases cited: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, 216 ALR 1, considered Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied Damevski v Giudice [2003] FCAFC 252, 133 FCR 438, cited JRL, Re; Ex parte CJL (1986) 161 CLR 342, cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507, applied NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, 119 FCR 312, cited Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476, cited Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131, 220 ALR 211, cited Refugee Review Tribunal, Re; Ex parte AALA [2000] HCA 57, 204 CLR 82, cited Refugee Review Tribunal, Re; Ex parte HB [2001] HCA 34, 179 ALR 513, cited Samootin v Hannigan [2012] FCA 462, cited SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358, cited SZKIR v Minister for Immigration and Citizenship [2007] FCA 1786, cited SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129, cited SZNUX v Minister for Immigration and Citizenship [2010] FCA 182, 114 ALD 123, cited SZQKV v Minister for Immigration [2012] FMCA 126, affirmed SZORL v Minister for Immigration and Citizenship [2011] FCA 553, cited Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132, considered WZAOD v Minister for Immigration and Citizenship [2011] FCA 1044, 123 ALD 69, cited Date of hearing: 9 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr R J White Solicitor for the First Respondents: Sparke Helmore Counsel for the Second Respondent: The Second Respondent entered a submitting appearance Solicitor for the Second Respondent: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 408 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQKV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 16 May 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 408 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQKV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FLICK J DATE: 16 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Appellant is a citizen of the Peoples Republic of China. 2 He arrived in Australia on 22 June 2007. On 1 February 2011 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. Included with that application was an application on behalf of the Appellant's daughter as a family member. A delegate of the Minister refused the Appellant's visa application on 21 March 2011. 3 An application for review was lodged with the Refugee Review Tribunal on 21 April 2011. The Tribunal affirmed the delegate's decision on 15 June 2011. 4 An application seeking judicial review by the Federal Magistrates Court was filed on 12 July 2011. That Court dismissed the application on 21 February 2012: SZQKV v Minister for Immigration [2012] FMCA 126. 5 A Notice of Appeal was filed in this Court on 13 March 2012. 6 The Appellant appeared before the Court unrepresented with the assistance of an interpreter. 7 The appeal is to be dismissed. The Grounds of Appeal 8 The Notice of Appeal provides in part as follows (without alteration): GROUND APPEAL: (Specify grounds of appeal) I got to know Mr Wang who is a Falun Gong practistioner. I support Falun Gong and helped distribute Falun Gong newspapers. I mingled with Falun Gong so I fear to be persecuted if I return to China. The Tribunal didn't accept my claims. The Tribunal had bias against me and failed to consider my whole claims according to S91R of the Migration Act 1958, making a jurisdictional error. The Federal Magistrates Court didn't point out the Tribunal error and dismissed my application. 9 So expressed, the Notice of Appeal fails to properly identify any Ground of Appeal. It may, however, be construed as a contention that the Federal Magistrate erred in not concluding that the Tribunal was either biased in its evaluation of the claims being made or had committed jurisdictional error by failing to properly consider the claims being advanced. 10 A failure to "accept [the Appellant's] claims" of itself does not constitute jurisdictional error. A complaint that the Tribunal came to the wrong decision on the facts without more does not "… enliven the jurisdiction of [a court] to provide a constitutional writ. Specifically, it is a complaint that falls short of showing jurisdictional error on the part of the tribunal": Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 at [25], 179 ALR 513 at 519 per Kirby J. A complaint expressed in such a form is simply an invitation to impermissibly review the merits of the decision taken by the Tribunal. That is neither the function of the Federal Magistrates Court or this Court on appeal. Neither Court can review the merits of a Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. A decision of the Tribunal can only be set aside where jurisdictional error is established: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 at [76], 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; WZAOD v Minister for Immigration and Citizenship [2011] FCA 1044 at [27], 123 ALD 69 at 72 per Gilmour J. 11 No jurisdictional error, it is concluded, is exposed in the manner in which the Tribunal applied the criteria to be made out for a claim to refugee status to the facts presented by the Appellant. 12 It should thus be recalled at the outset that a person seeking to claim refugee status must establish a "well-founded fear of being persecuted" for one or other of the reasons set forth in the Refugee Convention. There must be a "real chance" that persecution will occur: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ, 398 per Dawson J, 407 to 408 per Toohey J and 429 per McHugh J. Section 91R of the Migration Act 1958 (Cth) qualifies the nature, extent and form of persecution required before the Convention can be said to apply to a person for the purposes of the Migration Act. Persecution may be made out by reference to a restriction upon political or religious freedom. And, in determining whether there has been such a restriction, it is relevant to look to "the importance that the asylum-seeker places upon the exercise of that particular right": Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132. Madgwick J there relevantly observed: [18] There appears to be no reason why, similarly, a denial of freedom to express one's political opinion may not, of itself, constitute persecution. To illustrate this point by reference to an historical example, upon the approach suggested by counsel for the respondent, Anne Frank, terrified as a Jew and hiding for her life in Nazi-occupied Holland, would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic. It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had, such a result in contemplation. [19] However the mere fact that a particular right is denied is not, in my opinion, necessarily enough to establish refugee status. It will generally also be important to ascertain the importance that the asylum-seeker places upon the exercise of that particular right. To take an extreme example, heterosexuals could not claim to be persecuted because they are prohibited from engaging in homosexual acts. To take a more mundane example, a person so caught up in the daily round (or grind) as to have no real interest in political questions such as the right to assemble or to speak freely may be an unlikely candidate for refugee status based on an assertion that the impugned country of nationality denies its citizens such rights. However, even for such people, the subject regime may be so appalling as to galvanise them into ardent if terrified support of political change, if only in a dimly understood direction towards an abstraction such as "democratic rights". An opinion that favours full or greater enjoyment of the sorts of civil and political rights commonly enjoyed and aspired to in the Western democracies is or may be the subject of a "political opinion" within the ordinary meaning of that term, used in the Convention. [20] The principle, it seems to me, is that a denial of such civil rights would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights, let alone that he or she exhibits a capacity for martyrdom. The Convention aims at the protection of those whose human dignity is imperilled, the timorous as well as the bold, the inarticulate as well as the outspoken, the followers as well as the leaders in religious, political or social causes, in a word, the ordinary person as well as the extraordinary one. But, of course, the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant. The Convention was intended to relieve against actual or potentially real suffering. But no jurisdictional error may be made out in circumstances where the Tribunal in fact considers the manner in which a person practises his religious beliefs and makes a determination as to whether there is a real chance of persecution by reason of that practice: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, 216 ALR 1 at 39. Hayne and Heydon JJ there observed: [165] In assessing whether there was a real chance of the appellant being persecuted for a Convention reason, it was essential for the Tribunal to consider the material it had available about conditions in Iran. The information distinguished between those "who go about their devotions quietly" and those who "actively seek attention, or who are engaged in conspicuous proselytization". Applying such a distinction may well be difficult. The two classes are distinct but it may not always be possible to describe an individual's behaviour as falling wholly within one class rather than the other. It follows that there may be cases in which it would be difficult for a decision-maker to choose between the two as an accurate and complete factual description of past or future patterns of behaviour. … Their Honours then examined the manner in which the Tribunal had assessed the material before it and concluded: [168] At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted. [169] No jurisdictional error was demonstrated. … A majority (Gleeson CJ, Hayne and Heydon JJ) dismissed the appeal. Kirby J cited the views (inter alia) of Madgwick J in Win in his dissenting judgment. Similarly, in the present appeal, it is concluded that the Tribunal did not "… divert from inquiring about whether the fears which the appellant had were well founded." 13 Nor is there any substance in the Appellant's contention that the "Tribunal had bias against me". A denial of procedural fairness, including an allegation of apprehended bias, may also constitute jurisdictional error: Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57 at [17], 204 CLR 82 at 91 to 92 per Gaudron and Gummow JJ, at [169] to [170], 204 CLR at 143 per Hayne J. See also: NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 at [26], 119 FCR 312 at 323 per Gyles J. 14 But an allegation of bias must be "firmly established": Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. What is required, relevantly for present purposes, is that the Tribunal retain a mind open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [71] to [72], 205 CLR 507 at 531 to 532 per Gleeson CJ and Gummow J. As recognised by Tamberlin, Mansfield and Jacobson JJ in SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358, it is: [16] … likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves … See also: Samootin v Hannigan [2012] FCA 462 at [9] per Bennett J. And no bias should be inferred solely from factual findings that were open on the material before the Tribunal: SZKIR v Minister for Immigration and Citizenship [2007] FCA 1786 at [33] per Collier J. See also: SZNUX v Minister for Immigration and Citizenship [2010] FCA 182 at [18], 114 ALD 123 at 126 per Yates J; SZORL v Minister for Immigration and Citizenship [2011] FCA 553 at [19]. 15 So, too, a failure to consider relevant material may constitute jurisdictional error eg, Damevski v Giudice [2003] FCAFC 252 at [120], 133 FCR 438 at 461 per Merkel J. 16 The difficulties that confront the Appellant in the present proceeding, no matter how the Ground of Appeal may be redrafted, are that there is no basis upon which any allegation of bias could be supported and that it is clear from the Tribunal's reasons that the claims advanced were considered on their merits. No error is discernible in the findings or reasons of the Tribunal, let alone jurisdictional error. So much is apparent from a review of those materials relied upon by the Appellant to support his claim and the manner in which those materials were assessed by the Tribunal. 17 The application as filed with the Department on 1 February 2011 was accompanied by a statement signed by the now Appellant. In that statement he stated in part as follows (without alteration): … I came to learn about Master Hongzhi Li's teachings of "truthfulness, compassion and tolerance". But I haven't started practicing the exercise. China is a country where there is no democracy, human rights or religious freedom … I haven't participated Falun Gong-related activities, but I want to say: Falun Gong practitioners' human rights should also be respected by both organizations and individuals because all human beings are born free and equal in dignity and rights, which are not to be violated … Although I am not a falun Gong practitioner myself, I support them in their actions. As a result, I believe if I return to China, I couldn't tolerate the political atmosphere in China and thus couldn't fit into the life in China. 18 The now Appellant was invited to attend, and did in fact attend, a hearing before the Tribunal. The reasons for decision of the Tribunal set forth in some detail the now Appellant's claims. The Tribunal found him to be a credible witness and continued in part as follows: [42] The Tribunal accepts that the applicant, soon after he came to Australia in 2007, made the acquaintance of a woman, Miss Wang, who is a Falun Gong practitioner and assists other practitioners at sessions in Campsie Park. The applicant does not claim to have become a practitioner himself. He said at his hearing that he did not want to get up early to practise with the Falun Gong adherents. The Tribunal accepts that the applicant has continued his acquaintance with Miss Wang, and accepts the applicant's claims that he had helped to distribute Falun Gong newspapers. The applicant did not claim to have involved himself in any other activities on behalf of Falun Gong, whether private or public. He did not involve himself in any public demonstrations, for example. [43] On the evidence before it, the Tribunal finds that the applicant is not a Falun Gong practitioner, and while he claims to be a supporter, the Tribunal formed the view that he was not a committed supporter. A committed supporter of Falun Gong would, in the Tribunal's view, seek to practise the Falun Gong exercises and learn more about the beliefs of Falun Gong. The applicant has not done so. His lack of commitment is illustrated by his statement that he did not wish to get up early in order to practise Falun Gong exercises with other practitioners. While the Tribunal accepts that the applicant supports everyone's right to freedom of belief, it is not satisfied on his evidence that he would demonstrate his support in a public manner. Although the applicant claimed to have distributed Falun Gong literature, the Tribunal formed the impression that he did this mainly to assist his friend Miss Wang, rather than because of any belief in Falun Gong's practices or aims, or the content of the literature. He said at his hearing that he would not take part in demonstrations of support for Falun Gong, and said he had not done so in Australia. The applicant did not submit evidence of any action ever taken by him in opposition to the Chinese authorities on any issue in the past, and there is no evidence before the Tribunal that he would begin any anti-government activities if he returned to China. The claims being made by the now Appellant were thus largely accepted by the Tribunal. The Tribunal went on to conclude as follows: [44] … He has not been publicly critical of the Chinese authorities about their treatment of Falun Gong practitioners or for any other reason. The Tribunal finds that in these circumstances the applicant's fear of being reported to the authorities and being punished by them is based on mere speculation. On the evidence before it, the Tribunal is not satisfied that the chance of the applicant being persecuted in China for reason of his religion, or for any other Convention reason, is anything more that a remote possibility. It is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution in China within the meaning of the Convention. The now Appellant was thus unsuccessful because – on the facts – the Tribunal was not satisfied that he had a "well-founded fear of being persecuted". His support for the rights of others to practise Falun Gong was accepted. What was not accepted was that his support was such as to expose him to more than a "remote possibility" that he would be persecuted in China. 19 To the extent that the now Appellant seeks to contend that the Tribunal "didn't accept [his] claims", the fact is that the Tribunal did accept his claims. He did not claim to be a Falun Gong practitioner but he claimed that he was a supporter. The Tribunal accepted that he was a supporter, albeit not a "committed" one, but found that this fact alone was not sufficient to give rise to a "well-founded fear of being persecuted". Even leaving aside the difficulty that entertaining this contention would be an impermissible attempt to engage in merits review, the contention is without substance. That, too, was the conclusion of the Federal Magistrate: [2012] FMCA 126 at [11]. The Magistrate committed no error in so concluding. 20 Nor is there any substance in the contention that the Tribunal failed to either "consider [his] whole claims" or to consider those claims "according to S91R". During the course of the hearing before this Court, the Appellant was unable to identify any part of his claim which was not considered. 21 Finally, there is no basis upon which the possible bias argument could be sustained. An acceptance of the claims being made by an applicant, rather than the rejection of such claims, is perhaps not the hallmark of a decision-maker whose mind is not open to persuasion. The reasons for decision themselves only reveal the Appellant's claims being considered and accepted by the Tribunal. Although the decision was adverse to the Appellant, the ultimate conclusion (with respect) seemed almost inevitable given the acceptance of the facts advanced by the Appellant. 22 Given the lack of merit in either the bias argument or the argument that the Tribunal did not consider the claims being advanced, it is unnecessary to consider the Respondent Minister's submissions that these arguments were not raised before the Federal Magistrate and should not be entertained on appeal. 23 It is difficult to give content to that part of the purported Grounds of Appeal that states that the Federal Magistrate "didn't point out the Tribunal error and dismissed my application." Although an appeal to this Court from a decision of a Federal Magistrate is an appeal by way of rehearing, it remains necessary that an Appellant show error in the judgment appealed from: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] per Branson, Finn and Finkelstein JJ; Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131 at [45], 220 ALR 211 at 220 per Branson, Nicholson and Jacobson JJ. Notwithstanding the manner in which this final Ground is expressed, it is understood to be but a compendious way of contending that the Magistrate failed to discern jurisdictional error on the part of the Tribunal. The Magistrate was correct in dismissing the application for judicial review and in doing so did not commit any appellable error. Conclusions 24 The appeal is to be dismissed. 25 There is no reason why the Appellant should not pay the costs of the Respondent Minister. ORDERS The Orders of the Court are: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 16 May 2012