DZAEU v Minister for Immigration

[2015] FCCA 969

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAEU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 969

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where application seeks merits review – no jurisdictional error established – application dismissed.

Legislation:

Migration Act1958, s.36(2)(aa)

Cases cited:
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZUVY v Minister for Immigration and Border Protection [2015] FCA 107

Applicant: DZAEU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: DNG 42 of 2014

Judgment of: Judge Jarrett

Hearing date: 13 April 2015

Date of Last Submission: 13 April 2015

Delivered at: Darwin

Delivered on: 17 April 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter.

Solicitor for the First Respondent: Ms Buchanan

Solicitors for the First Respondent: Australian Government Solicitor

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on 1 October, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 42 of 2014

DZAEU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act1958 (Cth) for review of a decision of a refugee review tribunal given on 15 September, 2014 that affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.

2. The application was filed by the applicant without legal assistance.  It is poorly drafted and does not provide any proper grounds of review.  Directions were made to prepare the application for hearing.  Those directions provided the applicant with the opportunity to file any amended application, with full particulars of each ground of review and any affidavit evidence, by 19 December, 2014. The applicant has not taken up that opportunity.

3. The parties were both directed to file and serve written submissions prior to the hearing date.  The applicant has filed no submissions; the first respondent has.

Background

1. The applicant is a national of the Peoples’ Republic of China.  He arrived in Australia in 1996. He applied, unsuccessfully, for a protection visa in 1997.  A refugee review tribunal affirmed the decision to refuse that visa in 1999. The applicant did not appeal that decision and between 1999 and 2013 he remained in Australia as an unlawful non-citizen.

2. He was detained on 27 November, 2013 and on the next day he lodged a further application for a protection visa.  Alive to the operation of s.48A(1) of the Act, his legal representative at that time said: “The application of (sic) Protection Visa is made under the case of SZGIZ v Minister for Immigration (SYG2530/2012)”.  Section 48A of the Act prohibits a second application for a protection visa being made in the migration zone if an earlier application had been refused.  However, the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 determined that a second application for a protection visa, applied for in the migration zone, but which relied upon a different criterion to the first application, was a valid visa application. It was apparent that the applicant was making a claim pursuant to s.36(2)(aa) of the Act – complementary protection.

3. A delegate of the first respondent refused the application on 19 August, 2014.  The applicant sought review of that decision by a refugee review tribunal and attended a hearing before a tribunal on 9 September, 2014.

4. In his visa application, the applicant claimed that he was a farmer and that he had left China as a tourist.  He claimed that he had been “mistreated by the authorities and the influential villagers” in China.  He feared that if he returned to China he would be subjected to more “harm and mistreatment” from the “influential villagers and the authorities”.  He thought these things would befall him if he went back to China because: “After I left China, my land has been divided without any compensation.  My household registration has been cancelled and therefore my social entitlements and/or benefits has (sic) been denied.  If I am removed to China, I will claim my rights to land and other social benefits.  As such, it will affect the villagers and the authorities who have expropriated my land and denied my entitlements.  As a result, I will be harmed, mistreated and even threatened to my life.”  He claimed that the perpetrators of the likely harm and mistreatment of him would “include the authorities as well.”  Before the first respondent’s delegate, he expanded upon this

5. The applicant said his complementary protection claims related to mistreatment suffered in the past and that he would experience in the future arising from the expropriation of land on which his family had worked.

6. The applicant claimed he would continue the “fight for just compensation for the land taken from his widowed mother and his siblings in 1983 and that, just as happened in 1995, … he would be significantly harmed by the police just for trying.”

The tribunal’s decision

1. The tribunal considered the applicant’s claims only against the complementary protection provisions.  It identified the issue for determination as whether or not there were substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

2. The tribunal member was troubled about the applicant’s credibility.  In paragraphs 9 – 14 of the reasons for decision, the tribunal sets out in detail some of the inconsistencies and other troubling aspects of the applicant’s claims.

3. But the tribunal did not reject outright the applicant as a witness of truth.  The tribunal accepted the applicant’s evidence before it regarding his background, including in relation to the area from which he came in China despite different claims regarding that matter made at different times, including in his earlier protection visa application and his hearing before the first respondent’s delegate in relation to the present visa application. 

4. The tribunal accepted that the applicant’s family were affected by the redesignation and development of the Jiangiing Overseas Chinese Farm precinct, but the tribunal found that the applicant’s mother was compensated for the effect that the redesignation and development had on her with a grocery shop.

5. The tribunal did not accept the applicant’s claim that a promise was made to restore access to, and use of, the land to his family. It found this claim to be “unsupported and far-fetched”.  The tribunal did not accept that the applicant had demanded compensation in 1995 for his family’s lands that were affected by the relevant redesignation and development as he had claimed.  The tribunal did not accept that as a consequence of that claim, the applicant was visited by the police and subsequently assaulted.

6. As to the applicant’s claim that he would pursue the matter of compensation over the land expropriated from his family by the government, the tribunal found at 20:

   Mr Lin was so vague as to what he thought he could feasibly do to pursue the matter in future as to leave me with the impression that this is not truly a matter in which he has ever taken any significant personal interest.

7. And later at 22:

   I do not accept on the evidence before me that, upon or after return to China, Mr Lin would feel genuinely disposed or impelled to pursue restoration or compensation in the matter discussed here.  This is partly because I do not consider that the issue was a live one, in his mind, or that he did the things he claims to have done in 1995.

8. The tribunal recorded the applicant’s evidence that if he did not try to seek compensation nothing would happen to him should he return to China.  He also told the tribunal that if it were not feasible to pursue the matter he would let it go. The tribunal found that any reluctance on the part of the applicant to pursue compensation would not be due to any fear of harm that might be inconsistent with the International Covenant on Civil and Political Rights, but would be due to the applicant’s lack of interest in pursuing the matter.

9. While the tribunal accepted that the applicant’s earlier identification documents were false or contained false details, the tribunal did not accept the applicant’s explanation as to why he had obtained the false documents. It was not satisfied the applicant was, or would be, of any relevant adverse interest to the authorities in China. 

10. The tribunal concluded that there was no real risk of the applicant suffering significant harm arising from the land compensation issue should he return to China.  It also found that the applicant would not be punished or harmed in any way over the irregularities in his passport and nor would he face any significant harm arising from any difficulties obtaining employment in light of his lengthy absence from China.

11. The tribunal concluded that the applicant was not a person to whom Australia had protection obligations under s.36(2)(aa) of the Act.

The grounds of review

1. The ground of review contained in the application for judicial review is:

   I’m in the privice breach list so I’m really have chance to get hurt if I go back.

   (faithfully reproduced)

2. The applicant was in immigration detention on 31 January, 2014.  He claims that some of his personal information was inadvertently disclosed by the Department of Immigration and Border Protection on the internet for a brief period in February, 2014.

3. However, that concern was not raised before the tribunal by the applicant.  There was no information or evidence before the tribunal about the release of that information, or any evidence that the applicant had made any claim that the release of information in relation to him would give rise to a real risk of significant harm.

4. The first respondent argues that there can be no jurisdictional error in the tribunal’s decision from the mere fact of the data disclosure in the absence of any claim by the applicant about that matter.  The tribunal is only bound to consider claims actually made by the applicant or that reasonably arise from the claims and evidence he gave.  The submission is plainly correct: SZUVY v Minister for Immigration and Border Protection [2015] FCA 107 at [10].

5. In his supporting affidavit, the applicant states: “I don’t accept the decision made by RRT. I don’t feel fair about the decision made by the RRT.” I accept the first respondent’s submissions that neither of these statements is sufficient to raise any legal error in the decision made by the tribunal.  Each amounts to an impermissible attempt at merits review.

6. In oral argument before me, the applicant reiterated his concern about the release of some of his information by the first respondent’s department.  But his arguments do not advance his cause in this application.  He also raised some matters relating to the findings that the tribunal made about his identity, but the findings made by the tribunal about his identity and that of his family, and the findings about his identity documents were open to the tribunal on the material before it.

Conclusion

1. In my view, the tribunal’s reasons demonstrate that the tribunal engaged with each of the claims that the applicant sought to make to the tribunal.  It accepted some of the factual matters relied upon by the applicant and rejected others.  The tribunal’s reasons demonstrate a detailed consideration of the material before it.

2. No jurisdictional error is evident in the tribunal’s decision.  The application must be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 April 2015.

Associate: 

Date: 17 April 2015