FEDERAL COURT OF AUSTRALIA SZUFU v Minister for Immigration and Border Protection [2016] FCA 1388 Appeal from: SZUFU v Minister for Immigration & Anor [2016] FCCA 1441 File number: NSD 901 of 2016 Judge: COLLIER J Date of judgment: 22 November 2016 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – whether Tribunal decision affected by bias – whether Tribunal denied appellant procedural fairness – whether Tribunal "unfairly" reviewed appellant's case – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65 Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Isbester v Knox City Council (2015) 255 CLR 135 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Date of hearing: 8 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms C Saunders of DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS NSD 901 of 2016 BETWEEN: SZUFU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 22 NOVEMBER 2016 THE COURT ORDERS THAT: The appeal be dismissed with costs, to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLIER J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia in which the Court dismissed an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had, in turn, affirmed an earlier decision of a delegate of the Minister refusing the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act). Background 2 The appellant is a citizen of the People's Republic of China who arrived in Australia in 2012 on a Student (Class TU) Subclass 570 visa, which expired that same year. He applied for a protection visa in April 2013. In summary, he claimed that: he was a Buddhist and could not practice his religion in China; his mother was a Buddhist who had previously been detained for her religious practice; he had three children and was in breach of China's family planning laws. He gave away his second child, and was detained and interrogated regarding the identity of the person who had his child; if he returned to China he would be of interest to the authorities and would have to pay a family planning fine. Decision of the Tribunal 3 The Tribunal commenced its consideration of the appellant's claims by observing that the determinative issue was whether those claims were credible. The Tribunal noted that in assessing the credibility of applicants before it, it was mindful of the difficulties often faced by asylum seekers including nervousness and anxiety in the hearing room, and that if in doubt it would proceed to assess the claim on the basis that it might possibly be true. However the Tribunal noted that it was not required to accept uncritically any or all of the allegations made by an applicant. 4 The Tribunal found that the appellant was not credible for reasons including: key elements of his claims were inconsistent, and his evidence changed over the course of the hearing. The Tribunal gave a number of examples. One example was that, in his written claims, he said he was detained by the Chinese authorities in a detention centre and interrogated about who he gave his child to, whereas when asked by the Tribunal whether he had ever been detained by the Chinese authorities he said he was not detained but his mother was. The Tribunal also observed that when this inconsistency was put to him he stated he was detained for one month and his wife was detained for one month. his evidence about whether he had given away his second or third child was confused. the appellant repeatedly asserted he was of adverse interest to the authorities but was unable to offer any plausible explanation as to why this would be the case. Such evidence as he put to the Tribunal was extremely vague and lacked relevant detail. other aspects of the appellant's evidence were confused and contradictory, including his inability to answer questions about when he applied for a passport. his description of his Buddhist faith and the difficulties he claimed he had encountered because of his religious beliefs was vague, contradictory and evasive. The Tribunal put to the appellant that country information indicates Buddhism is one of the five State sanctioned religions in China and there are millions of Buddhists in China. 5 The Tribunal was not satisfied that the appellant had a third child, and did not accept that it was plausible that the father of three children would be unable to remember whether he gave away his second or third child. The Tribunal also noted that the appellant had not provided any documentation that would corroborate his claims that he had had a third child. The Tribunal was satisfied the appellant's claims that he would be suspected of child trafficking because he gave away his third child had been fabricated. 6 The Tribunal noted the fact the appellant was able to travel out of China on a valid passport issued in his own name indicated that he was not, at that time, of adverse interest to the Chinese authorities. 7 Although the appellant also claimed that his mother and grandparents had previously attracted the adverse interest of the Chinese authorities, the Tribunal did not accept this or that they had ever been of adverse interest to the Chinese authorities. 8 The Tribunal concluded that the quality of the appellant's evidence was extremely poor, that he was not a truthful witness, and that he had fabricated his claims of past harm in the hope of achieving an immigration outcome. 9 The Tribunal found that the appellant did not satisfy the criteria set out in either s 36(2)(a) or s 36(2)(aa) of the Migration Act, and was not a person to whom Australia had protection obligations. Federal Circuit Court 10 Before the Federal Circuit Court the appellant sought judicial review of the decision of the Tribunal on the following grounds: 1. The interpreter is not professional and did not do a good job. In the interview, when I answered the officer's question, she always interrupted me. When I wanted to add more comments to response, she just ignored me. Thus, she did not translate my answers completely and accurately. This caused the inconsistencies mentioned in the RRT decision. The answers heard by the officer were completely different from what I wanted to say. Therefore, the decision made by RRT is unfair. 2. I provided many evidences to support my claim, such as the letter from the Village Committee, states I have two children born outside of family planning in 2007 and 2009. The letter I provided which showed that I have a third child in 2009, but RRT did not reviewed my case and evidence carefully and concluded that the letter makes no reference to a third child. I do not know why the RRT had such a conclusion. Moreover, RRT did not investigate these evidences further, unfairly concluded that these evidences even the marriage certificate were false. (Decision Para.29) 3. I meet the refugee criteria. RRT did not consider my fear of persecution. I am a devout Buddhist. Because I breached one-child policy and could not afford the fine, we had to give the third child away. The government thought that we sold the child and believed in cult, my wife and I therefore have been detained. RRT ignored the possibility I will be persecuted and did not review my case fairly. 4. The Tribunal failed to make a fair 'complementary protection' grounds test. My family was persecuted by the town chief because she refused to tell his son's fortune. I would be investigated because own two households. I would face persecution upon return to China. There are substantial grounds for believing that, there is a real risk that I will suffer significant harm if I removed from Australia to China. 11 The primary Judge found that the first and third grounds of the application invited the Court to reconsider the merits of the appellant's application for a visa, which is impermissible. 12 In relation to the second ground the primary Judge found that: the appellant was correct to say that the Tribunal misread the certificate from the village committee but that was an error of fact within jurisdiction and did not provide a basis on which the Tribunal's decision should be set aside; the Tribunal was under no general duty to inquire, and the facts of this case did not engage the exception to that rule; the Tribunal did not reject the documents submitted by the appellant on the basis that they were false. 13 In relation to the fourth ground the primary Judge found that it failed because, inter alia, the Tribunal rejected the appellant's material factual claims on which this ground was based. Appeal to this Court 14 The appellant appealed to this Court on the following grounds: 1. RRT 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 unfairly reviewed my case. The Tribunal did not examine the risk of the persecution I will face if return to China. (Errors in original.) 15 None of these grounds has merit. This is because: In relation to the first ground: an allegation of bias is a serious matter which must be specifically pleaded: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344; Isbester v Knox City Council (2015) 255 CLR 135 at [12]. The mere fact that the Tribunal did not accept the claims of the appellant does not mean that it was biased against him. In relation to the second ground: it is well-settled that the Court should not peruse the decision of the Tribunal with an eye "finely attuned to error". The reasons given by the Tribunal for its decision were satisfactory and logical. It cannot be said that they were "inadequate". In relation to the third ground: after examining the appellant's claims the Tribunal found that he was not credible. Its reasons for so finding are set out in some detail in its reasons for decision. I am unable to identify any denial of procedural fairness to the appellant by the Tribunal in respect of its decision. 16 In Court the appellant made an oral address in which he submitted that he was awaiting documents to be mailed to him to support his case. This submission suggests that the appellant seeks impermissible merits review by the Court. Further, to the extent that the appellant claimed that the Tribunal had failed to investigate his claims properly I agree with the comments of his Honour at [18] of the primary judgment to the effect that the Tribunal was under no general duty to inquire. 17 The appropriate order is to dismiss the appeal with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 21 November 2016