SZNFZ v Minister for Immigration

[2015] FCCA 1869

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZNFZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1869

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – complementary protection – whether the Tribunal had regard to country information – where the applicant failed to attend the final hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: SZNFZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 965 of 2015

Judgment of: Judge Street

Hearing date: 3 July 2015

Date of Last Submission: 3 July 2015

Delivered at: Sydney

Delivered on: 3 July 2015

REPRESENTATION

There was no appearance by the Applicant

Solicitors for the Respondents: Ms H. Dejean
Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 965 of 2015

SZNFZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 6 March 2015 affirming a decision of a delegate not to grant the applicant a Protection (Class XA) visa.  The matter was listed for hearing today at 11 am as a result of directions made on 7 May 2015 and the applicant has failed to appear.  The applicant was in attendance at the Court on the day the directions were made fixing the matter for hearing and has been sent two letters dated 20 May 2015 and 26 June 2015 reminding him of the hearing date at 11 am.

2. The solicitor for the respondent has also tendered the First Court Date information sheet that identifies the letters being sent to the correct address.  The solicitor for the first respondent has, through an interpreter, had a mobile telephone conversation with the applicant, in which the applicant has identified he is not in Sydney, is aware that the matter is listed for hearing, does not wish to attend and does not wish anything to be conveyed to the Court in response to an invitation by the solicitor as to whether there is any matter that the applicant wished to have raised with the Court.

3. It is clear the applicant was aware of the hearing date and has made a deliberate decision not to attend.  The Court has proceeded to hear the matter in the absence of the applicant.

Grounds of Application

1. The application identifies two grounds for alleged error by the Tribunal.  The grounds are as follows:

   1. The Tribunal is not satisfied that there is a real chance that I will suffer serious harm or for any other Convention reason. The Tribunal made error in this finding.

   2. The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under Refugees Convention. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.

First Respondent’s Submissions

1. The first respondent noted that the applicant was found to be a citizen of China by the Tribunal and arrived in Australia under a Subclass 976 (Electronic Visitor) visa, using a South Korean passport. The applicant applied for protection on 19 July 1999, which application was refused on 9 August 1999 and the applicant became an unlawful visitor on 22 February 2000.  It was not until December 2008 that the applicant was located and granted a bridging visa but failed to depart Australia in accordance with that visa.

2. The applicant also made unsuccessful requests for ministerial intervention, and the applicant applied for the current protection visa consistent with a decision of the Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 for complementary protection, which matter had not been considered in the previous decision in the applicant’s application for protection. The respondent identified that the applicant claimed potential harm from a loan shark that he borrowed funds from to finance his travel to Australia and was fearful of persecution because of his Korean-Chinese ethnicity and his Christian religious beliefs and because he would have no money or no accommodation in China.

3. The first respondent’s submission noted that the Tribunal found the applicant not to be a witness of truth and made adverse findings in relation to the applicant’s claims.  The first respondent noted that the applicant had not filed any amended application consistent with the directions that were made by the Court and submitted that the grounds failed to identify any jurisdictional error.  In relation to ground 1, the first respondent noted that the Tribunal’s task was not to revisit the claims under the Convention, but rather the applicant’s claims in respect of complementary protection and that there was accordingly no substance in relation to ground 1.

4. In relation to ground 2 the first respondent submitted that the ground failed to identify any independent information and on that ground alone must fail.  Further, the first respondent submitted that the Tribunal was under no obligation to consider independent country information.  Further, in any event the Tribunal did refer to and take into account country information as identified in para.22, footnote 1, which did not support the applicant’s claims.  The first respondent noted that there was no evidence that the applicant referred the Tribunal to any other country information, and accordingly that there was no substance in relation to ground 2.

5. The first respondent noted that the applicant appeared before the Tribunal on 5 March 2015 to give evidence and present arguments, and was assisted by an interpreter as well as having the applicant’s representative at the hearing.  The first respondent submitted that there was nothing in the Tribunal’s conduct or reasons that supported any denial of procedural fairness. The first respondent submitted that there was nothing to support the Tribunal’s decision being affected by jurisdictional error.

The Tribunal’s decision

1. The Tribunal carefully identified the relevant law in respect of complementary protection, as well as addressing the applicant's claims and evidence.  The Tribunal relevantly found:

   12. …Having considered the totality of the applicant’s claims and evidence, the Tribunal is not satisfied that the applicant is a truthful witness and does not accept that he genuinely fears harm in China or that there is a real risk that he will suffer significant harm. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

   …

   16. The Tribunal does not accept the applicant is a Christian or he left China because of any problems he had in relation to Christianity. The Tribunal does not accept the applicant’s explanation for first making claims in relation to his Christianity in 2009, some ten years after his arrival in Australia. The Tribunal considers that had the applicant genuinely been harmed in China as a result of his Christian beliefs and practice and to have fled China for that reason that he would have ensured he made an application in his own name and as a result of these claims, rather than on a fraudulent basis using a fraudulent passport and identity. The Tribunal does not accept that the applicant’s failure to make any further steps in some ten years to ensure he had provided details of his experiences in China, and had lodged a Protection visa on that basis, is consistent with his claims to have fled China as a result of his practise of Christianity. Second, although the Tribunal accepts that a hearing and an interview are stressful for any applicant and it is difficult to articulate Christian beliefs within that environment, the Tribunal nevertheless considers that the applicant’s understanding of Christianity was extremely limited and not indicative of someone who has been a Christian since 1996 or 1997. The Tribunal does not accept that the applicant was a Christian in China or that he left China because he had experienced or feared further harm as a result of his Christianity.

   17. … The Tribunal is also not satisfied that his limited attendance at a Christian church whilst in Australia will be either known to the authorities or that it will result in a real risk that he will suffer significant harm upon his return to China.

   …

   20. The Tribunal does not accept that the applicant has given truthful evidence in relation to the debt of approximately $20,000 which he claims to owe to a loan shark. The Tribunal is prepared to accept that there is no inconsistency between the applicant’s evidence to the Department and the Tribunal as to whether he has paid any money off and considers that there may have been some confusion during the interview. However, as stated above, the applicant first made this claim in 2014, after being in Australia for some 15 years and having previously made two other applications for protection and applications for Ministerial intervention. The Tribunal does not accept that this would not have been mentioned at an earlier time if the applicant genuinely fears harm as a result of the debt.  Furthermore, the Tribunal does not accept that the loan sharks would cease coming to the applicant’s wife’s home after he ceased paying the debt, which he told the Tribunal was about three years after he had loaned the money. Given that the applicant did not divorce his wife until 2008, the Tribunal does not accept that loan sharks would not continue to seek money from his wife, particularly given that the applicant was in Australia earning money. Nor does the Tribunal accept that a divorce would make any difference to loan sharks who were motivated to seek their money. The Tribunal does not accept that the applicant owes money to loan sharks or that he genuinely fears harm in relation to this issue. The Tribunal considers it evident that the applicant has fabricated this claim in a further attempt to obtain protection in Australia, following the previous refusal of his application for protection.

   …

   22. The Tribunal does not accept that the applicant, who completed 11 years of education and was in the Chinese military, was discriminated against in China because of his Korean ethnicity. The Tribunal firstly considers that had the applicant experienced discrimination due to this issue that it would have been mentioned in his application for protection made in 2009, rather than first mentioned in the application he made in 2014. The Tribunal also considers that the only instance of discrimination that the applicant could point to was in relation to his employment after he completed his military service. Whilst the Tribunal is prepared to accept the applicant’s evidence that he did not receive perks or employment, the Tribunal considers that this could be for reasons other than his ethnicity. In any event, the Tribunal does not accept that his evidence establishes that he suffered significant harm in China because he is ethnically Korean prior to his departure. The Tribunal does not accept that the applicant will experience discrimination for reasons of his ethnicity as Korean upon his return to China, particularly given that the independent evidence does not support applicant’s claims.[1]

   23. The Tribunal is not satisfied, having considered all of the evidence, that the applicant has given a truthful account of his experiences in China. The Tribunal has not accepted that the applicant has suffered prejudice or harm in China due to his ethnic Korean minority background. Nor has the Tribunal accepted that the applicant owes a debt to loan sharks or that he is a Christian or that he will practise Christianity upon his return to China.

   24. The applicant has claimed that he will have difficulty obtaining employment and accommodation and he will die if he returns to China. The applicant also told the Tribunal that he is “too old” to obtain employment in China. Although the Tribunal accepts that the applicant will have difficulty re-establishing himself in terms of employment and accommodation upon his return, he has considerable experience as a tiler and he has previously been a farmer in China. The Tribunal does not accept that the applicant will be unable to obtain employment or accommodation in China or that his age is such that it will prevent him from obtaining employment in China. As discussed during the hearing, the applicant is only 49 years of age and the Tribunal does not accept his claim that this is “too old”. The applicant has also been working and living in Australia for some 15 years, and the Tribunal considers his claim to the Department that he will have no employment, accommodation and he has no money, and will die to be not truthful. The Tribunal dos not accept the applicant’s claims that there is “structured discrimination” or that he will be marginalised and ostracised or that he will not be provided with the same level of protection as other Chinese citizens, if it was ever required. The Tribunal is not satisfied, having regard to all of the evidence, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will suffer significant harm because of a debt, his religion, or his status as an ethnic Korean. Nor does the Tribunal accept that the applicant will suffer significant harm for any other reasons.

   25. Accordingly, having considered all of the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life; the death penalty will be carried out on the applicant; or the applicant will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment. The Tribunal finds, therefore, that the applicant does not satisfy the criterion set out in s.36(2)(aa).

   [1] The reports indicate that Koreans are one of China’s 55 recognised groups and receive preferential treatment from the State in terms of birth planning, university admission, access to loans and employment – see US Department of State 2011, Country Reports on Human Rights Practices,8 April.

2. It was in those circumstances that the Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa).

Consideration and Findings

1. Ground 1 fails to identify any jurisdictional error.  I accept the respondent’s submission that it fails to disclose any error in relation to the assessment of applicant's claims in respect of complementary protection. 

2. Ground 2 also fails to identify any jurisdictional error.  To the extent relevant, I accept the Tribunal did refer to country information in para.22, as identified in footnote 1, and that there was no country information referred to by the applicant to which the Tribunal failed to have regard.  I find the applicant had a genuine hearing and that the adverse findings by the Tribunal were open on the material before the Tribunal. I find that there is no substance in the proposition that there was a failure by the Tribunal to carry out its statutory duty.  I am satisfied that there was no jurisdictional error of the kind identified from the application. 

Conclusion

1. The applicant was notified and aware of the hearing date and has deliberately failed to attend.  The application has been heard in the absence of the applicant, with the applicant knowing that the matter would be dealt with in his absence.  The applicant did not seek any adjournment. As the grounds fail to identify any arguable ground an adjournment would be futile and would have no utility. The application fails to disclose any jurisdictional error.  The application is dismissed. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 July 2015