SZOXV v Minister for Immigration

[2011] FMCA 571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXV & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 571

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.91R

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

First Applicant: SZOXV

Second Applicant SZOXW

Third Applicant SZOXX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 37 of 2011

Judgment of: Barnes FM

Hearing date: 8 July 2011

Delivered at: Sydney

Delivered on: 8 July 2011

REPRESENTATION

Applicants: First Applicant in Person by Telephone

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 37 of 2011

SZOXV

First Applicant

SZOXW

Second Applicant

SZOXX

Third Respondent

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 20 December 2010.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants’ protection visas.

2. The applicants are husband and wife and an adult child, who are citizens of the People’s Republic of China.  The applicants arrived in Australia in December 2007 and applied for protection visas in June 2010.  Only the applicant husband made substantive claims to be a refugee.  The second and third applicants sought protection visas on the basis of their membership of his family unit.  The first applicant is referred to for convenience as the applicant. 

3. The applicant attended an interview with the delegate.  The application was refused on 30 August 2010 and the applicants sought review by the Tribunal.  The applicants were invited to attend a hearing and the first applicant attended a hearing on 2 November 2010. 

4. Consistent with all other information provided in writing about the language that the applicant spoke, the Tribunal provided a Mandarin-speaking interpreter.  However the Tribunal recorded that at the end of the hearing, when it put to the applicant that he seemed to be changing his reasons, he stated that he had some difficulty communicating in Mandarin, as he normally spoke the Fuqing dialect.

5. The Tribunal adjourned the hearing in order to arrange a Fuqing-speaking interpreter.  The hearing resumed on 8 November 2010, at which time the Tribunal summarised the evidence given on the first occasion to enable the applicant to confirm it and to make further comments.  It is apparent from the lengthy account of that hearing contained in the Tribunal’s reasons for decision, that it raised numerous issues of concern with the applicant and gave him the opportunity to comment. 

6. The Tribunal conducted a further hearing on 9 December 2010, again with an interpreter who spoke Fuqing.  The Tribunal explained that this hearing was held so that it could discuss information with the applicant that might lead it to refuse the visa applications.  The Tribunal put numerous pieces of information to the applicant, explained the relevance of that information, and gave him the opportunity to comment.  At the end of the hearing the Tribunal recorded that it told the applicant that, as it had already said, he was entitled to ask for more time to respond or comment.  He stated he had no more comments or response and nothing else to say. 

7. In its Findings and Reasons the Tribunal summarised the applicant’s claims whereby in August 2004 he borrowed money from relatives to set up a chicken farm. It was very profitable and attracted the attention of the party secretary of the village, who I will refer to herein, for the purposes of the judgment, as Mr L.H. 

8. Mr L.H. was said to have asked the applicant to permit his brother (referred to as Mr L.B.) to invest in the farm.  The applicant agreed to Mr L.B.’s involvement in the business.  He claimed that he had no choice but to accept this proposition because of connections Mr L.B. had, including an uncle who was the deputy chief of the PSB in the applicant’s city, and a brother who was chief of the police station.  The applicant claimed that Mr L.B. appointed his wife as the bookkeeper and that they embezzled funds from the applicant’s business.  Further, the applicant claimed that his son was involved in a motorbike accident in June 2007 when his son was a passenger on the motorbike.  The applicant claimed that this motorbike accident was deliberately caused by Mr L.B. 

9. The applicant claimed that his son was about to come to Australia on a student visa, but because of his injuries suffered in the motorbike accident, he was hospitalised for four months.  This event had a severe impact on his son.  The applicant claimed that after the accident he confronted Mr L.B.  The police were called.  The applicant was briefly detained and then he went into hiding.  He claimed that since he had been in Australia, Mr L.B. had made threats to his family and that Mr L.B.’s powerful relations would result in the applicant being arrested or killed if he returned to China. 

10. The Tribunal accepted that the applicant owned a chicken farm in China.  In addition, as it had told the applicant at the hearing, on the basis of medical evidence provided by the applicant, it accepted that his son was injured and that he had required a skin graft in a hospital.

11. However the Tribunal did not accept that the applicant was threatened by his former business partner Mr L.B.  Nor did it accept that Mr L.B. deliberately drove into the motorbike on which the applicant’s son was a passenger; that the applicants fled China because they feared they would be harmed by Mr L.B., or that Mr L.B. would use his family connections to have the applicant arrested or detained.  

12. The Tribunal gave a number of reasons for this finding and also its conclusion that the applicant was not a truthful or credible witness.  In setting out these concerns, it addressed explanations that had been given by the applicant in the course of the Tribunal hearings. 

13. Those reasons included the Tribunal’s concern that the applicant’s significant delay in applying for protection after he came to Australia led it to not accept that he fled China because he feared persecution. 

14. The Tribunal had regard to what it regarded as “inconsistent and shifting oral evidence” given by the applicant about significant aspects of his claims.  It found that the applicant had been evasive when asked to explain his inconsistent evidence and that the Tribunal had had to repeat questions many times, as the applicant did not answer in the first instance but would revert to repeating claims as made in his written statement.  The Tribunal set out details of evidence it regarded as inconsistent and shifting, including in relation to disposal of the chicken farm, the amount of money the applicant claimed he received from Mr L.B. as the proceeds of sale, and his evidence about the motivation for such payment.  The Tribunal did not find it credible that in 2009, Mr L.B. gave the applicant 100,000 RMB, either as proceeds of the sale of the farm or as money for the applicant’s father’s medical treatment, while at the same time, and since 2007, Mr L.B. had been threatening to kill the applicants or beat them up.

15. The Tribunal also took into account changes in the applicant’s evidence and inconsistencies about the claimed traffic accident and about the events that took place on the night of that incident, including the applicant’s claims about arrest and detention by the police which it set out in detail.  Further, the Tribunal had regard to inconsistencies in the applicant’s evidence about the profitability of the chicken farm and between his oral evidence and the information provided on his tourist visa application.

16. On the basis of all these matters, the Tribunal found that the applicant was not a truthful or credible witness.  It did not accept that he operated a profitable chicken farm that was targeted by Mr L.B., that Mr L.B. deliberately injured his son in a motorbike accident or that he had made threats to harm the applicant and his family since 2007.  The Tribunal was of the view that the fact that the applicant’s son had visited China in 2009 cast strong doubt over the applicant’s claims that his son also feared harm from Mr L.B.  It did not accept that the son was in hiding on that return visit to China.  While the Tribunal accepted that the applicant’s son was injured in a motorbike accident, it did not accept the accident was deliberately caused for the reasons the applicant claimed, and therefore, did not accept the applicant’s assertion that his son was in hiding when he went to China in 2009.

17. The Tribunal accepted that the applicant had sold his house and property in China to support the family in the three years they had been in Australia.  It found that the applicant was motivated to apply for protection by economic considerations. 

18. The Tribunal summarised the applicant’s core claims, which it said it had considered singly and cumulatively.  It was not satisfied of these claims or that there was a real chance the applicants would be harmed for reasons of the applicant’s political opinion, imputed political opinion, or for any other Convention reason upon his return to China.  It specifically rejected his claim that they would be threatened or harmed by Mr L.B., his associates, or the PSB. 

19. The Tribunal was not satisfied that the applicants had a well-founded fear of persecution if they were returned to China now or in the reasonably foreseeable future.  The second and third applicants were also found not to be entitled to protection visas as members of the first applicant’s family unit. 

20. The applicants sought review by way of an application filed in this court on 12 January 2011.  They have not filed written submissions.  The first applicant was given the opportunity to make oral submissions at the final hearing.  I note in that respect, that although the applicant had requested a Mandarin interpreter in his application to this court, the hearing date was adjourned to enable the applicant to participate with the assistance of a Fuqing-speaking interpreter.  He participated in the adjourned hearing by telephone to minimise the inconvenience to him occasioned by the need to adjourn. 

21. In the hearing today I asked the applicant to elaborate on the grounds in his application.  He claimed that they gave truthful evidence to the Tribunal.  He took issue with the fact that the Tribunal did not believe him.  He claimed that he had been persecuted in China and could not return there and that the Tribunal had been unfair in dealing with his case.

22. Insofar as the applicant seeks merits review, as I endeavoured to explain to him, merits review is not available in this court.  The Tribunal’s findings were based, in essence, on its adverse credibility finding.  Credibility findings are matters for the Tribunal.  The Tribunal’s findings in that respect were open to it for the reasons which it gave on the material before it.  No jurisdictional error is apparent in the manner in which it made those findings.

23. Insofar as the applicant contended that the Tribunal had been unfair, there is nothing in the material before the court to support any claim of actual or apprehended bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 or unfairness in any other manner constituting jurisdictional error. On the contrary, it is apparent from the Tribunal’s account of what occurred in the hearings, which is the only evidence of what occurred in the Tribunal hearings before the court, that the Tribunal was at pains to ensure that the applicant had every opportunity to make his claims and address its concerns. The applicant’s disagreement with the Tribunal’s conclusions does not establish jurisdictional error.

24. There are three grounds in the application.  The first two grounds appear to run together.  Ground one refers to the Tribunal’s finding that it did not accept that the applicant was threatened by his former business partner or that Mr L.B. deliberately drove into the motorbike on which the applicant’s son was a passenger.  Ground two is that:  “The fact is that on 26 June 2007, [Mr W.]” – I will refer to the person named as Mr W. – “drove the motorbike and the applicant’s son…rode on [Mr W.’s] back.”  [Mr W.] has sumitted (sic) his letter to verify that a car had smashed into them and both of them were injured”. 

25. These grounds appear to amount to disagreement with the facts as found by the Tribunal and do not disclose any ground of judicial review. 

26. Moreover, having considered the Tribunal’s account of what occurred at the hearing and its findings, there is nothing in relation to what occurred at the hearing or in its findings about the incident or the son’s injury that gives rise to any jurisdictional error.  It is the case that Mr W. provided a witness statement.  The Tribunal considered the applicant’s claims and Mr W.’s evidence.  It is apparent that at the last hearing the Tribunal raised with the applicant its specific concerns about the evidence given by Mr W..  Relevantly it raised the conflict with the evidence of the applicant about the events on the day of the accident in relation to matters such as the injuries occasioned to Mr W. and whether Mr W. saw Mr L.B. in the car that hit the motorbike as the applicant said, or whether, as Mr W. said in his letter, he only learned later that the accident was caused by Mr L.B.

27. In its Findings and Reasons, the Tribunal did not accept that Mr L.B. deliberately drove into the motorbike on which the applicant’s son was a passenger.  In making that finding, it had regard to changes in the applicant’s evidence regarding who was the driver of the vehicle that hit his son and also in relation to the presence of Mr L.B. in the car that hit the motorbike.  It had regard to the fact that in his visa application the applicant claimed Mr L.B. had hired an assailant for revenge, but that he first told the Tribunal that his son saw the driver and that it was Mr L.B.  However he later stated that Mr L.B. was in the vehicle but that someone else was driving and that Mr L.B. got out of the car at the scene of the accident, had a look, and then drove away.

28. It addressed the applicant’s claim that his son wrote the statement provided with the visa application and that he was confused.  The Tribunal did not accept that the applicant’s son was confused or forgot to say that Mr L.B. was in the car that hit the motorbike.  It was of the view that the claim was that, the applicant’s son was seriously injured as a result of Mr L.B. having deliberately tried to kill him.  The Tribunal was of the view that if the applicant’s son had seen Mr L.B. in the car that hit his motorbike, he would have said so in the visa application, as the accident was a significant and traumatic event for the applicant’s son and the actions of Mr L.B. were a significant component of the applicant’s claims. 

29. Further the Tribunal did not accept that Mr L.B. was involved in the accident where the applicant’s son was injured because Mr W., who was described as the person who purported to be the driver of the motorbike, had given evidence not consistent with that of the applicant. It referred to the fact that in his letter Mr W. had said that sometime after the accident he heard that this incident was a job by an underworld thug hired by Mr L.B.  The Tribunal was of the view that if Mr W. had seen Mr L .B. at the accident scene as the applicant claimed, he would have said so in his letter.  It was in the face of this material that the Tribunal did not accept that Mr L.B. was involved in the accident that injured the applicant’s son.

30. The Tribunal set out in detail why it did not find credible that Mr L.B. would have got out the car at the scene of the accident, had a look and driven away, thus risking recognition. It also did not find it credible that Mr L.B. would deliberately injure the applicant’s son when he was in partnership with the applicant and had access to the farm profits.

31. In other words, the Tribunal considered the evidence from Mr W., but it was the inconsistencies and other concerns about the applicant’s evidence that led it to reject the applicant’s claims in relation to the accident involving his son.  It made it clear that it accepted that the applicant’s son had sustained an injury in an accident, but that it considered that the story given was a fabricated story built around that underlying truth.  As indicated, credibility findings are a matter for the Tribunal and such a conclusion was open to it on the evidence given by the applicant.  No jurisdictional error is established on the grounds contended for in grounds one and two of the application.

32. The third ground is an unparticularised claim that the Tribunal failed to consider the applicant’s claims and evidence according to s.91R of the Migration Act 1958 (Cth) (the Act). When given the opportunity to elaborate on this ground, the applicant took issue with the Tribunal’s failure to accept the truth of his claims.

33. It has not been established that there was any failure by the Tribunal to consider the applicant’s claims or evidence. As it rejected the essence of the basis for the applicant’s claims to have experienced and to fear persecution, it was not necessary for the Tribunal to address any of the matters in s.91R(1) or (2) of the Act. This is not a case in which s.91R(3) has any relevance.

34. No jurisdictional error has been established on any of the bases contended for by the applicant.  Accordingly, the application must be dismissed.

35. The applicants have been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicants should meet the costs of the first respondent.  The applicant’s son has at all relevant times in these proceedings been an adult.  Accordingly the order should apply to each of the applicants. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  22 July 2011