FEDERAL COURT OF AUSTRALIA

SZUPA v Minister for Immigration and Border Protection [2015] FCA 148

Citation:	SZUPA v Minister for Immigration and Border Protection [2015] FCA 148	
		
Appeal from:	Application for extension of time and leave to appeal: SZUPA v Minister for Immigration and Border Protection & Anor [2014] FCCA 2689	
		
Parties:	SZUPA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL	
		
File number:	NSD 1254 of 2014	
		
Judge:	FARRELL J	
		
Date of judgment:	2 March 2015	
		
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review – decision of Refugee Review Tribunal – leave to appeal required – extension of time required – merits of grounds of appeal 	
		
Legislation:	Federal Circuit Court Rules 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth)	
		
Cases cited:	SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZUPA v Minister for Immigration and Border Protection & Anor [2014] FCCA 2689	
		
Date of hearing:	2 March 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	32	
		
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter	
		
Solicitor for the First Respondent:	Ms Z Taylor of Clayton Utz	
		
Counsel for the Second Respondent:	The second respondent submitted save as to costs	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1254 of 2014	

BETWEEN:	SZUPA
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J	
DATE OF ORDER:	2 March 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The application is dismissed.
2.	The applicant pay the first respondent’s costs in the fixed amount of $1,665.

Note:	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 1254 of 2014	

BETWEEN:	SZUPA
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J	
DATE:	2 March 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
1		By filing a notice of appeal on 3 December 2014, the applicant has sought to appeal from a decision of the Federal Circuit Court delivered on 14 November 2014 in SZUPA v Minister for Immigration and Border Protection & Anor [2014] FCCA 2689.  
2		Under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the primary judge dismissed the applicant’s application for judicial review of a decision made on 27 May 2014 by the Refugee Review Tribunal to affirm a decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa. Rule 44.12(2) of the Federal Circuit Court Rules provides: “To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.” Leave to appeal the primary judge’s decision in this Court is therefore required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 
3		No leave to appeal has been sought by the applicant. Under r 35.13 of the Federal Court Rules 2011 (Cth), the applicant was required to file an application for leave to appeal within 14 days of the pronouncement of the judgment or orders; that is, by 28 November 2014. Under r 36.03, the applicant had 21 days in which to file a notice of appeal; that is, by 5 December 2014. The notice of appeal was filed on 3 December 2014. Therefore, the notice of appeal was filed within time. However, in light of the requirement that leave to appeal first be sought, the applicant requires an extension of time in which to file an application for leave to appeal, as well as leave to appeal, before the appeal can be heard.
4		I decided to treat the present proceedings as an application for an extension of time in which to seek leave to appeal and for leave to appeal. The Minister did not seek to raise any issue of prejudice by reason that the application for leave to appeal was out of time or having regard to the length of the delay. The primary consideration was therefore whether the grounds of appeal in the notice of appeal have merit. 
5		The applicant appeared in person assisted by an interpreter. 
Background
6		The applicant is a citizen of China who arrived in Australia on 5 May 2013 on a tourist visa. He left Australia five days later and returned on 13 May 2013. He absconded from his organised tour group and his absence was discovered on 14 May 2013. He applied for a Protection (Class XA) visa on 21 May 2013. A delegate of the Minister refused to grant the protection visa on 26 November 2013. 
7		The applicant’s claim for protection is based on two grounds: that he is a Falun Gong practitioner; and that he is suspected of making a false accusation against a Chinese official for reasons related to a land dispute. 
8		The file maintained by the Department of Immigration and Border Protection included a report from the tour company which outlined the steps it took to verify the applicant’s bona fides before the tour commenced. That report indicates that the applicant and another person were employees of a steel company and they travelled to Australia as part of “incentive travel” for employees. The applicant had travelled to Korea in July 2012 under the same program.
Tribunal decision
9		The Tribunal affirmed the delegate’s decision on 27 May 2014. The following is based on the Tribunal’s Statement of Decision and Reasons of that date.
10		The Tribunal did not accept that the applicant had a well-founded fear of persecution in China either on the basis of his alleged involvement with Falun Gong, or because he made false charges against a government official in relation to land matters. The Tribunal found the applicant’s evidence to be internally inconsistent, implausible, and contradicted by evidence contained in his passport and in the tour company records.
11		The applicant said in his application for a protection visa that he was employed by a steel company between 2006 and 2013 and that he had not been convicted of any offence. In a statement attached to the application he said that he had practised Falun Gong for about 5 years (that is, since about May 2008) and quickly became very active, that he had been warned and questioned by local police, that he was fired from his workplace and that he was told that if he continued to practise Falun Gong he would be imprisoned so he had no choice but to leave China.  
12		Following the appointment of a migration agent in June 2013, a further statement was submitted. It included a claim in relation to the land matter which the applicant said resulted in him being arrested on 5 May 2012 and detained for 6 days on charges of being a member of a cult organisation; he was forced to a sign a confession which he later recanted but was forced by torture to reaffirm. He said he was sentenced to 6 months prison but was released in September 2012. He said his wife left him as a result of these events, taking their child with her; they were separated but not divorced.
13		In relation to his claim to be a Falun Gong member, the applicant told the delegate that when he took up Falun Gong in late 2009 he was not worried because it was not officially banned then. This was inconsistent with his application form which said he commenced practising in effect in May 2008. The Tribunal expected that the applicant would give consistent evidence about when he commenced practising and to know that Falun Gong had been officially banned in 1999 if he were a genuine Falun Gong practitioner. There were inconsistencies in his account to the delegate and the Tribunal of how he had been arrested in 2010 when distributing Falun Gong leaflets “around noon” in a public place. The Tribunal noted the inconsistencies and found it implausible that he would undertake distribution of leaflets in daylight. The applicant confirmed to the Tribunal that he had not practised Falun Gong in Australia and that he claimed only minimal experience in China. The Tribunal did not accept that he had been a Falun Gong practitioner in China or any of the related claims. It found that he was not a Falun Gong practitioner in Australia. It therefore found that there was no real chance that the applicant would face harm for any reason associated with Falun Gong if he returned to China.
14		The Tribunal did not find it necessary to set out details of the land dispute but noted that it was implicit in the applicant’s written claims that he had been imprisoned from his arrest on 5 May 2012 until he was released on 8 September 2012. Inconsistent with this were:
·	The claim in his visa application that he was employed by the steel company from 2006 to 2013. That claim of employment is also inconsistent with his later claim to have lost his job at the time of his arrest which he says was formalised when he was released; 
·	The claim in his visa application that he had never been convicted of a crime or offence; and
·	The travel company report, and his passport, which indicated that he travelled to Korea in July 2012.
15		His visa application said he was married but did not indicate that he was separated from his wife.
16		The Tribunal did not accept his explanations that: (1) when he first lodged his application form he was not sure that if he disclosed some facts he would be afforded protection; and (2) he had engaged a firm in China to whom he paid money to ensure that people who answered telephone calls said what needed to be said concerning his employment with the steel company. This was inconsistent with his passport which evidenced his travel to Korea in July 2012 as part of the incentive scheme offered by the steel company to its employees referred to in the tour company’s report and it was undertaken during the period he says he was imprisoned. The Tribunal did not accept his further explanation that he had been released in July 2012 after he had been sentenced on the basis that he report to the police every week, which he said enabled him to travel to Korea, because it was inconsistent with his statements that he stayed in detention after his sentencing in July 2012 until September 2012.
17		The Tribunal also considered and rejected the applicant’s complementary protection claim.
Federal Circuit Court decision
18		The applicant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court on 26 June 2014. The grounds relied upon were (without alteration):
1.	Regard to the claim that I was almost arrested by the police, because I took part in the Falun Gong activity, the Tribunal doubts the credibility is without evidence. In my written statement, what I want to express is distributing leaflets, maybe the mistake of translation caused the misunderstanding that the officer thought I was passing out leaflets to passerby. However, the fact is that I posted leaflets on such things as walls, lamp posts and notice boards in bus station. I tried to distribute leaflets with no one around, but unfortunately I was observed by the police at that day. My evidences are true and reliable without contradictions. The Tribunal made the conclusion that there are some contradictions in my evidences is totally unfair.

2.	I meet the refugee criteria. RRT did not consider my fear of persecution. I am always in poor health, since I practised Falun Gong, my health improved a lot. Because the dispute with the head of the village, I was considered as a cult by the government and I therefore have been detained. RRT ignored the possibility I will be persecuted and did not review my case fairly.

3.	The Tribunal failed to make a fair ‘complementary protection’ grounds test. I am of interest to the Chinese authorities because practicing Falun Gong. 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. 
19		The primary judge was satisfied that the Tribunal gave the applicant a fair hearing, and that the conclusions reached were open on the evidence and material before it. The applicant did not provide any written or oral submissions or other evidence to support the grounds of review. Further, the grounds did not disclose any error which could be reviewed by the Federal Circuit Court; the complaints invited impermissible merits review.
Application to this Court
20		The applicant seeks to raise three grounds of appeal. They are (without alteration):
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 I return to China. 
21		The applicant did not offer any evidence or argument in support of these grounds either at the hearing or by written submissions.
22		The Minister submitted that the applicant required leave of the Court to raise the first and second grounds of appeal because they were not raised in the court below. I accept this submission but note that the first two grounds should be dismissed in any event.

First ground
23		I accept the Minister’s submission that this ground is really a statement of emphatic disagreement with the decision that the Tribunal made within its jurisdiction and should be rejected.
24		It is a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. The mere fact of adverse findings gives rise to no inference as to the state of mind of the decision maker before and while the matter was under consideration, nor of prejudgment of the issues that fell for decision: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. 
25		The Tribunal gave detailed reasons for its findings and conclusions with rational reference to relevant evidence. On my reading of those reasons there is no basis for the hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, to reasonably apprehend that the Tribunal might not have brought an impartial mind to making the impugned decision.  Further, whatever the scope may be of any “benefit of the doubt” which a Tribunal should accord to an applicant, it has little (if any) role to play where, as here, claims have been rejected on the basis of an assessment of the applicant’s credibility: SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [17] per Flick J.
Second ground
26		The applicant did not provide any particulars of the alleged inadequacy of the Tribunal’s written reasons or denial of procedural fairness in making the findings that it did.
27		The Tribunal gave detailed reasons, setting out the evidence and submissions of the applicant and cogent explanations for accepting or rejecting that evidence and making the findings of fact it made. The Tribunal’s findings that the applicant’s evidence was internally inconsistent and that certain aspects of his evidence were implausible and contradicted by his passport and tour company records were open to it on my reading of the Statement of Decision and Reasons.
28		I perceive no failure of procedural fairness or any failure to comply with s 430 of the Migration Act 1958 (Cth) (Migration Act).
Third Ground
29		Only the third ground raises an issue considered by the primary judge.
30		The applicant confirmed to the Tribunal that he had not practised Falun Gong in Australia and that he claimed only minimal experience in Falun Gong in China. The Tribunal found that the contradictions in his evidence were such that it rejected the applicant’s claims regarding the land claim which gave rise to his alleged arrest as a member of a cult in May 2012. It was therefore open to the Tribunal to find that the applicant did not have a well founded fear of persecution by reason of any association with Falun Gong or because he made false charges against a government official in relation to land matters or for any other Convention related reason or under the complementary protection provisions of s 36(2)(aa) of the Migration Act. To the extent that this ground suggests that the Tribunal “unfairly reviewed” the applicant’s case, there is nothing before the Court which supports this contention, to the contrary: see [12], [18] and [19] of the primary judge’s reasons.  
31		I find no discernible jurisdictional error on the part of the Tribunal and no appellable error in the reasons of the primary judge. The grounds of appeal therefore lack merit.
32		I will dismiss the application. The Minister provided an affidavit supporting an application for fixed costs of $3,100. The Minister accepted that if the application had been made as an application for extension of time, costs of $1,665 would have been at the top of the range provided for a short form bill. I will order that the applicant pay the costs of the first respondent in a fixed amount of $1,665.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.	

Associate:

Dated:	3 March 2015