FEDERAL COURT OF AUSTRALIA SZQOE v Minister for Immigration and Citizenship [2012] FCA 618 Citation: SZQOE v Minister for Immigration and Citizenship [2012] FCA 618 Appeal from: SZQOE v Minister for Immigration & Anor [2012] FMCA 181 Parties: SZQOE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 427 of 2012 Judge: COWDROY J Date of judgment: 15 June 2012 Catchwords: MIGRATION – Appellant seeks protection visa – Minister determines no persecution for Convention reason – Tribunal affirms decision – Federal Magistrate affirms Tribunal decision – whether Tribunal member under obligation to investigate appellant's claims on its own motion – whether Tribunal member biased towards appellant – appeal dismissed Legislation: Convention Relating to the Status of Refugees 1951 Migration Act 1958 (Cth) s 65 Cases cited: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 Date of hearing: 25 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Solicitor for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: DLA Piper IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 427 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQOE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE OF ORDER: 15 June 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the costs of the First Respondent. Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 427 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQOE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE: 15 June 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals from the orders of Federal Magistrate Smith made on 2 March 2012 dismissing the appellant's application for judicial review of a decision of the second respondent, the Refugee Review Tribunal ('the Tribunal'). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ('the Minister'), to refuse to grant the appellant a Protection (Class XA) visa pursuant to s 65 of the Migration Act 1958 (Cth) ('the Act'). 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on 18 April 2010, accompanied by his wife. On 11 February 2011 the appellant lodged an application for a protection visa on behalf of himself and his wife with the Department of Immigration and Citizenship ('the Department'). A delegate of the first respondent refused the application for a protection visa on 1 April 2011. On 9 May 2011 the appellant applied to the Tribunal for a review of that decision. On 1 August 2011 the Tribunal affirmed the delegate's decision whereupon the appellant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal's decision. BACKGROUND 3 The appellant claimed he had operated a fish and seafood business in China and encountered many problems in 2009. The appellant claimed the Industrial and Commercial Affairs Bureau of China made it difficult to run his business as a result of demands that he pay increasing amounts of money in fees. The appellant claimed the Law Enforcement Department attempted to damage his business in late 2009, and that such Bureau closed his business down in November 2009. The appellant's house was allegedly demolished as a result of the construction of a railway in October 2010. The appellant claimed he did not receive fair compensation following the demolition. 4 The appellant said he was convicted of two criminal offences in China. The appellant claimed that law enforcement personnel would come to his shop demanding money and goods. The two convictions resulted firstly from not obeying law enforcement personnel and secondly because he assaulted a member of the enforcement personnel. The appellant indicated that such charges were laid in November or December 2009. The appellant's son was in Australia and the appellant decided to join him here. The appellant stated he would not be able to cope with returning to China. REFUGEE REVIEW TRIBUNAL 5 The appellant appeared before the Tribunal on 26 July 2011 to give evidence and present arguments with the assistance of an interpreter fluent in the Mandarin and English languages. The appellant stated the business closed down in October 2010, which was different from his earlier indication to the delegate of the Minister of 2009. The appellant then re-clarified it was 2009. The appellant stated the Law Enforcement Bureau were separate from the police. The appellant told the Tribunal that, contrary to his earlier statement to the Department following his arrival in Australia, he had not been convicted of any criminal offences. 6 The Tribunal noted that there was no indication the demolition of his home was for a reason that could constitute persecution under the Convention Relating to the Status of Refugees 1951 ('the Refugee Convention'). The Tribunal queried whether the appellant had prior warning of the railway line construction as independent evidence established the railway commenced in 2008. The appellant maintained he had no prior warning, 7 The Tribunal noted the appellant's delay of 10 months after his arrival in Australia before making the application for a protection visa. The Tribunal concluded that this delay cast doubt upon the credibility of the appellant's claims. The appellant stated that he did not know how to apply for a protection visa but the Tribunal found this difficult to accept given the appellant's son was studying in this country. The Tribunal was not satisfied the appellant was a truthful witness. 8 The Tribunal concluded the appellant was not someone to whom Australia owed protection obligations under the Refugee Convention. APPLICATION TO THE FEDERAL MAGISTRATES COURT 9 On 22 August 2011 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. That application contained the following: Grounds before Federal Magistrate: 1. The RRT did not deal with my case humanism. Rather, the case was treated with racial and national discrimination. 2. The RRT has ever taken my case seriously, or considered it carefully and cautiously. 3. The RRT only rely on conjecture and suspicion to make determinations, which are always unreasonable and incorrect. Other orders sought: 1. The Federal Court is hoped to make a fact-finding investigation if possible, to ensure whether my situations are true or no. 2. Please a writ of mandamus compelling the RRT to rehear and redetermine of the matter according to law, and costs. 3. The RRT did not give sufficient consideration of my case. FEDERAL MAGISTRATE'S DECISION 10 The Federal Magistrate observed that he was unable to find anything in either the appellant's grounds or orders sought which indicated jurisdictional error. The Federal Magistrate held there was no evidence that the Tribunal procedures or decision was unfair nor that the Tribunal had not followed the requirements of the Act. The Federal Magistrate noted there was no obligation for the Tribunal to conducted additional investigations into the appellant's claims. The Federal Magistrate found the Tribunal had identified and addressed all of the appellant's evidence and claims and found no illogicality which might reveal jurisdictional error. On this basis the Federal Magistrate dismissed the appellant's application for judicial review. APPEAL TO THIS COURT 11 On 16 March 2012 the appellant filed a Notice of Appeal in this Court which contained the following: Grounds of Appeal: 1. A writ mandamus directed to RRT and Minister for Immigration and Citizenship requiring to determine my application according to law. Also I want the RRT and DIAC for rehear on my application. Orders sought: 1. A writ of Mandamus to the DIAC and RRT make decision on my case reasonable. 2. I want Minister for immigration and citizenship and Refugee Review Tribunal to make the decision on my application for the humanitarian, and fair. APPELLANT'S SUBMISSIONS 12 The appellant appeared before this Court unrepresented but assisted by an interpreter. The appellant provided no written submission but was invited to address the Court to make any oral submissions. In response the appellant stated that the Tribunal did not decide his case in the correct way; did not carry out a careful investigation of his claims; that all the things he stated to the Tribunal were true and that he hoped that the Tribunal could reinvestigate his claims. He stated that he only had one purpose, namely to have the Tribunal reconsider his claims. 13 In making oral submissions in reply the appellant claimed that he was discriminated against because when he first entered the Tribunal hearing he did not shake hands with the Tribunal member and that thereafter the Tribunal member had an 'attitude' against him. The Court interprets such assertion as a suggestion of bias against the appellant by the Tribunal member. The appellant was unable to indicate any error in any finding of the Federal Magistrate. FINDING 14 In his decision the Federal Magistrate reviewed all of the findings made by the Tribunal. His Honour noted that the Tribunal found the appellant's evidence inconsistent, vague and confused in relation to dates and events and that the Tribunal had concluded that the inconsistent evidence was 'indicative of the fact that it has been manufactured'. 15 The factual findings of the Tribunal cannot be reviewed by this Court and it should be observed that his Honour found himself unable to identify any factual error by the Tribunal or jurisdictional error by the Tribunal. As his Honour observed there was no obligation upon the Tribunal to conduct further investigations into the appellant's claims: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 ('SGLB'), Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1], [20], [86]. 16 The grounds of appeal do not identify any legal basis which would warrant the decision of the Federal Magistrate or of the Tribunal being set aside. Essentially the appellant disagreed with the findings of the Tribunal and claimed that it was the Tribunal's responsibility to investigate his claim. 17 The Tribunal is not required to make an applicant's case on the appellant's behalf: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. Rather, it is the responsibility of the appellant to bring forward such evidence as he considers necessary to satisfy the Tribunal that on the balance of probabilities, his claim should be accepted: see SGLB at [43]. In this instance the Tribunal was not so satisfied. There is no basis upon which any rehearing of the appellant's claims could be ordered. 18 In respect of the assertion that the Tribunal member had 'an attitude' towards the appellant which the Court infers is a suggestion of bias, no allegation of bias was raised either before the Federal Magistrates Court, nor was such an allegation contained in the grounds of appeal to this Court. In these circumstances the Court is required to consider whether leave to raise a new ground should be allowed. Such a consideration necessarily involves a consideration of the likelihood of such a ground succeeding and the reason why such a ground was not previously raised. 19 It has been held that an allegation of bias is a serious charge and should be raised only when there is sufficient evidence to support the making of such a charge: see Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at 519 and 531-532, Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at 107. 20 In this instance no particulars have been provided of any bias other than the failure of the appellant to shake hands with the Tribunal member. Such a matter is clearly insufficient to found a charge of bias. Nor is there any explanation why any such allegation was not raised previously. For these reasons the Court does not grant leave for any allegation of bias to be raised. 21 In the absence of any further grounds, the Court orders that the appeal be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 15 June 2012