SZQVB v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 102
•15 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQVB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 102 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China by corrupt local officials – applicant not believed – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| Applicant: | SZQVB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2524 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 15 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr J Pinder DLA Piper |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2524 of 2011
| SZQVB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 27 October 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his dealings with corrupt local officials. The following statement of background facts relating to the applicant’s protection claims and the Tribunal’s decision on them is derived from the Minister’s submissions filed on 1 February 2012.
The applicant is a male citizen of China, born on 1 October 1956. [1]
He arrived in Australia on or about 30 June 2008 on a student guardian visa.[2] That visa expired on 31 December 2008.
[1] court book (‘CB”) 11.
[2] CB 13.
The applicant was detained by a police officer on 23 January 2009 following a routine transit stop. He was then interviewed by a Department of Immigration and Citizenship Compliance Officer (“DIAC Compliance Officer”).[3]
[3] See annexure A to the affidavit of Julian D'Arcey Pinder dated 20 January 2012.
The applicant was granted a bridging visa on 23 January 2009 for the purpose of lodging a substantive visa application. He made no application. He was taken into immigration detention in 2011.[4]
[4] See annexures B and C to the affidavit of Julian D'Arcey Pinder dated 20 January 2012.
Subsequently, on 27 June 2011, the applicant lodged a protection visa application.[5]
[5] CB 1.
The application was refused on 5 August 2011.[6]
[6] CB 63.
The applicant applied to the Tribunal for review of the original decision on 8 August 2011.[7]
[7] CB 80.
The applicant gave oral evidence before the Tribunal at hearings conducted over two days on 16 September 2011 and 21 September 2011.[8]
[8] CB 97; CB 104.
The Tribunal made its decisions on 27 October 2011.[9]
[9] CB 138.
The applicant's claims
The applicant claimed that he feared persecution from the Chinese authorities due to a dispute involving land allocation. He claimed that he was allocated undesirable land in a remote place because he did not bribe the authorities. He claimed that he petitioned various authorities and in January 2008 village authorities called the police and he was detained for 15 days for disrupting social order. He claimed that he cannot return to China because he will be imprisoned and will be homeless.
The decision of the Tribunal
The Tribunal did not accept that the applicant was a credible witness (see [131]).[10] It found the applicant's evidence to be inconsistent, contradictory and at times lacking in detail and vague (see [121]).[11]
[10] CB 169.
[11] CB 166.
The Tribunal gave the record of interview with the DIAC Compliance Officer on 23 January 2009 significant weight. The Tribunal did not accept that the applicant told the Officer that he intended to make an application for protection and he feared returning to China. Instead the record showed that the applicant stated that he would return to China if his application for a (further) student guardian visa was unsuccessful (see [122]).[12]
[12] CB166–67.
The Tribunal did not accept that the applicant feared persecution in 2009 because he gave evidence that he spent his earnings in January 2009 eating out and drinking with friends, yet was unable to make an application for protection due to a shortage of funds. Further, his written statement indicated that he realised he could apply for protection after he went to Villawood in 2011 which was inconsistent with his intention to apply for protection in 2009. The Tribunal thus found that the applicant had manufactured evidence to explain the delay in his application (see [123]–[125]).[13]
[13] CB 167–68.
At [134] the Tribunal was not satisfied that the applicant's circumstances had changed since January 2009 such that he now feared persecution.[14]
[14] CB 171.
The Tribunal also found that the applicant had manufactured evidence about his employment and financial support whilst in Australia at [126] and in China at [130].[15] The Tribunal was equally not satisfied that the applicant was detained in China on the basis of inconsistent evidence and gave documentary evidence very little weight at [127].[16] The Tribunal cited independent country information as to the prevalence of document fraud in China to support this finding, given that the applicant had produced a purported detention warrant.
[15] CB 168; CB 169.
[16] CB 168–69.
The applicant's evidence about approaching higher authorities was also inconsistent and unreliable. The Tribunal did not accept that the applicant approached these authorities after his release from detention and found that he had manufactured evidence in this respect (see [128]–[129]).[17]
[17] CB 169.
Given the fundamental lack of credibility in the applicant's evidence, the Tribunal did not accept that his residence in China was unliveable. It also took into account the applicant's evidence that his relatives were able to purchase their own house so did not accept that he would be homeless if he returned to China (see [131]).[18]
[18] CB 169–70.
Even though the Tribunal found that the applicant was not a witness of truth, it accepted that unfair treatment from the authorities in respect of land allocation was plausible given country information about corruption. However, the Tribunal found that the consequences for the applicant, the allocation of inappropriate land, did not constitute serious harm (see [132]).[19]
[19] CB 170.
Given the applicant's lack of credibility the Tribunal doubted that the applicant had made any complaint about his land to any authority in China and was therefore not satisfied that the applicant would continue with this activity if he returned to China at [133].[20]
[20] CB 170–71.
Even if the applicant did complain, the Tribunal did not accept that this would bring him to the adverse attention of the authorities and that he had no difficulties leaving China in the past (see [133]).[21]
[21] CB 170–71.
These proceedings began with a show cause application filed on
7 November 2011. The applicant continues to rely upon that application. There are three grounds in that application:
1. My documentary evidence in relation to my family disregarded without procedured fairness.
2. RRT’s reasoning ignores my true situation in China. It is opposite to the spirit of justice and fairness.
3.My lack of legal knowledge was exploited by the Department and the Tribunal.
I have before me as evidence the court book filed on 6 December 2011. I also have before me the affidavit of Julian D'Arcey Pinder made on 20 January 2012. That affidavit augments the court book by providing certain documents additional to those in the protection claim files of the Tribunal and the Minister’s Department.
Both parties provided written submissions. Both also made oral submissions.
In his submissions, the applicant asserted that the Tribunal did not apply a correct test of persecution. He also said that the Tribunal erred in finding that he could relocate within China and that the Tribunal also erred in rejecting his claim of detention in China, which had been accepted by the Minister’s delegate.
The applicant was particularly concerned that, in his view, he was prevented from reciting his written claims at the second Tribunal hearing when those written claims were later used against him by the Tribunal. The Minister’s written submissions deal generally with the grounds in the application at [18]-[27]. I agree with those submissions and adopt them.
First ground
The first ground asserts that the Tribunal disregarded the applicant's documentary evidence in a manner which breached procedural fairness. The applicant has not provided particulars of the documentary evidence that he says the Tribunal failed to consider.
However, the Tribunal’s decision record demonstrates that the Tribunal had regard to the applicant's evidence:[22]
a)the information from the applicant's protection visa application is considered at [24];
b)the statement attached to the protection visa application is considered at [25];
c)the receipt for the “village construction land fee” (ie, the land allocation fee) is considered at [27];
d)the applicant's detention warrant is considered at [27];
e)the applicant's business licence is considered at [27];
f)the applicant's letter to the Department dated 1 July 2011 is considered at [26];
g)the applicant's letter in support of his Tribunal application is considered at [38].
[22] CB 142–43; CB 145.
It is also clear from the Tribunal’s decision record that it properly considered and discussed with the applicant the issues arising from the applicant's evidence. In particular, it discussed with the applicant its concerns that the detention warrant was not genuine, given its credibility concerns and the independent country information regarding the prevalence of document fraud in China.[23]
[23] CB 158 at [104].
The Tribunal did not discuss in detail the receipt for the “village construction land fee” because it accepted that the applicant paid the allocation fee. It did not discuss in detail the business licence because that was not relevant to the Tribunal’s consideration or findings.
As such, there was no breach of 'procedural fairness', insofar as it has been codified in Division 4 of Part 7 of the Migration Act 1958 (Cth) (“the Migration Act”). In particular, there was no breach of s.425.
Second ground
The second ground asserts that the Tribunal ignored the applicant's true situation in China.
This ground cannot be made out. It is apparent from the Tribunal’s reasons that the Tribunal considered the applicant's claims but rejected them with clear reasons. This ground should properly be understood as an impermissible attempt to engage the Court in merits review.
Third ground
The third ground asserts that the Tribunal exploited the applicant's lack of legal knowledge. It is not entirely clear what is meant by this allegation, and the applicant has provided no particulars of how his lack of legal knowledge was “exploited”.
The applicant was invited to a hearing to discuss his own claims and evidence – that is, his own experiences and any fears of persecution he might have as a result. Legal knowledge was not required by the applicant, nor is there anything in the Tribunal’s decision to suggest that a factor bearing on the Tribunal's decision was a lack of legal knowledge on the part of the applicant.
Insofar as this ground may allege bias or a lack of good faith, it is settled law that there is a heavy onus on an applicant who makes such allegations. The allegation must be distinctly made and clearly proved.[24] The applicant has not provided any such evidence.
[24] See, eg., Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [36] per Brennan J; Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [530] per Gleeson CJ and Gummow J.
The Minister’s written submissions also deal with the applicant’s written submissions, which were substantially repeated orally. Subject to my following observations, I agree with and adopt those submissions.
Insofar as the first paragraph of the applicant's written submissions raises a complaint about the delegate's decision, it is the Tribunal’s decision, and not the delegate's, that is the subject of review before this Court.
Insofar the first paragraph of the applicant's written submissions complains about [132] of the Tribunal’s decision,[25] in that paragraph the Tribunal accepted that it was “quite plausible” that “corruption amongst Chinese officials” resulted in “the allocation of inappropriate land”, but found that, even were this to be accepted, the allocation of inappropriate land does not amount to “serious harm” within the meaning of s.91R(2) of the Migration Act. There is no error in this finding. At [132][26], the Tribunal had regard to and sets out the instances of serious harm listed in s.91R(2). The Tribunal found that the harm described by the applicant did not come “anywhere near the level of harm described by those instances”. This finding was open to the Tribunal on the evidence before it. Further, and contrary to the applicant's written submission, the mere fact of corruption does not necessarily amount to “serious harm”, and the Tribunal was therefore correct to have regard to the instances set out in s.91R(2) as a guide to the requisite level of harm for that harm to amount to “serious harm”.
[25] CB 170.
[26] CB 170.
Insofar as the second paragraph of the applicant's written submissions raises a complaint about a finding by the Tribunal that the applicant could relocate to another province, the Tribunal’s decision was not based on a finding that the applicant could avoid harm by relocating to another region of China. Rather, the Tribunal was not satisfied that the applicant was a credible witness and was therefore not satisfied that he would be persecuted now or in the reasonably foreseeable future, were he to return to China.
Insofar as the second paragraph of the applicant's written submissions takes issue with the Tribunal’s rejection of certain claims that were accepted by the delegate, the Tribunal is required to conduct its own review of the claims and evidence before it, and it was open to the Tribunal to reach a different conclusion to that reached by the delegate. The Tribunal canvassed each of the issues that led to its ultimate finding with the applicant at the hearings, and in its s.424A letter, and clearly advised the applicant that it may find that he was not a reliable witness. Consequently, the applicant was properly “on notice” that his credibility was in issue before the Tribunal, such that there was no breach of s.425 in light of the decision in SZBEL v Minister for Immigration (2006) 228 CLR 152.
Insofar as the third paragraph purports to raise an inconsistency in the Tribunal’s reasoning at [90][27] of the Tribunal’s decision, this allegation is misconceived. There is no inconsistency in the Tribunal’s reasoning. Rather, in that paragraph, the Tribunal is recording the way in which it explored with the applicant at hearing inconsistencies within the applicant's own oral evidence and the documentary evidence before the Tribunal.
[27] CB 155.
The Tribunal had before it a record of an interview between the applicant and an officer of the Minister’s Department that was conducted when the applicant was taken into custody in 2009.[28] That record discloses no complaint by the applicant that he feared returning to China or that he wanted to apply for protection. That record is accurately summarised by the Tribunal at [87].[29]
[28] See Annexure A to the affidavit of Julian D'Arcey Pinder affirmed on 20 January 2012.
[29] CB 154.
The Tribunal records at [88] that the applicant told the Tribunal that when he was interviewed he said that he wanted to apply for a protection visa.[30]
[30] CB 155.
The Tribunal records at [90] that it questioned the applicant about whether he really did talk to the officer of the Department about a protection visa in 2009. The Tribunal noted that the interview record did not mention that the applicant had said that he intended to apply for a protection visa. The Tribunal also noted the applicant's own written statement that he did not learn that he could apply for a protection visa until June 2011.[31]
[31] CB 155.
In the third paragraph of the applicant's written submissions, the applicant says that the “[Tribunal] found that when I was arrested for the first time, I mentioned to the police that I wanted to apply for a protection visa”. It is clear from the Tribunal’s reasons, as summarised above, that the Tribunal did not “find” that the applicant told the officer of the Department in 2009 that he wanted to apply for a protection visa. Rather, it recorded that the applicant had given evidence at the hearing that he had said so, and then it set out the subsequent discussion in which the Tribunal doubted the applicant's evidence, in light of other contradictory evidence.
Insofar as the third paragraph of the applicant's written submissions alleges bias and prejudice on the part of the Tribunal member, I find, first, that the applicant's allegation proceeds from a misreading of the Tribunal’s reasoning process (as discussed above), and, secondly, that a failure on the part of a Tribunal member to believe an applicant's claims does not constitute bias. An allegation of bias is a serious allegation of personal fault on the part of the decision maker, and must be clearly proven by way of probative evidence.
The applicant is correct in his belief that his claim of detention in China was accepted by the Minister’s delegate. It is also correct that that claim was not accepted by the Tribunal. Paragraph 69 of the Tribunal’s reasons[32] shows that the applicant was put on notice by the Tribunal that the issue of his detention would be an issue of significance in the review:
The Tribunal noted that the applicant had failed to mention a particularly significant issue when he had been asked about what had happened in the past in China. It noted that he had not mentioned that he had been put in detention in China. The Tribunal noted that this information had been included in his written statement. The Tribunal indicated its concern about his omission to mention having been put in detention in China, as it might lead the Tribunal to doubt that the applicant was detained in China. The Tribunal asked the applicant if he had any comment to make about his omission. The applicant indicated that the Tribunal had not let him finish his story. He said he did go into detention in China. The Tribunal noted that it had asked the applicant on at least two occasions what had happened in the past in China, and he had not mentioned being detained. The applicant indicated he had not got to that part of the story yet.
[32] CB 150.
The only evidence I have before me of what occurred at the two Tribunal hearings is what the Tribunal recounts in its reasons. There is nothing in the Tribunal’s account of those hearings that supports the applicant’s contention that he was in some way prevented by the Tribunal from explaining his claims. Indeed, the Tribunal records at [115] of its reasons[33] that the Tribunal invited the applicant to put before it then anything further he wanted to say about his claims.
He indicated that he had no other evidence to give.
[33] CB 160.
The applicant was also invited to respond to an invitation to comment issued on 4 October 2011, pursuant to s.424A of the Migration Act. The applicant is concerned that that invitation did not cover every single issue that was ultimately dealt with by the Tribunal in its reasons. The obligation of disclosure pursuant to s.424A is, however, a limited one. Neither does s.425 impose on the Tribunal any obligation to give any running commentary on its own thought processes.
The applicant sought a humanitarian approach to his situation, noting his prolonged detention in Australia together with his son. The prolonged detention of visa applicants does produce unfortunate circumstances. The applicant, however, has it within his power to bring that detention to an end should he be ready to return to China.
I find that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $5,000. The applicant claimed impecuniosity, but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursement of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 20 January 2012
0
3
1