SZRHC v Minister for Immigration

[2012] FMCA 693

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHC v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 693

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – applicant not believed – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Kopalapillai v Minister for Immigration (1998) 86 FCR 547
McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6
Nagalingam v Minister for Immigration & Anor (1992) 38 FCR 1919
Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451
Selvadurai v Minister for Immigration & Anor (1994) 34 ALD 347

Applicant: SZRHC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 633 of 2012

Judgment of: Driver FM

Hearing date: 9 August 2012

Delivered at: Sydney

Delivered on: 9 August 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 633 of 2012

SZRHC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal decision was made on 27 February 2012.  The Tribunal affirmed a decision of a delegate of the Minster not to grant the applicant a protection visa.  The applicant is from Jiangxi province in China, and had made claims of persecution based upon difficulties the applicant had with a former business partner. 

2. The applicant arrived in Australia on 10 April 2011.  He applied to the Minister’s Department for a protection visa on 6 July 2011.  The delegate refused that application on 12 September 2011.  The applicant applied to the Tribunal for review of the delegate’s decision on 9 October 2011. 

3. The applicant’s claims were set out in a written statement accompanying his protection visa form.  Those claims are reproduced in dot point form at [22] of the Tribunal’s reasons[1]:

   [1] court book (CB) 81-83

   ·    He cannot return to China because of a false accusation by his business partners and persecution by the local government and judiciary.

   ·    Since 2006 he has been working in Minghua Ceramic Company in Jingde Zhen, Jiangxi.  He opened the Changsheng commercial company with his friends Ping Shi and Shenggen Huang.  They made an oral agreement to each own one third of the shares.  In 2008 the company was closed due to bad management.  It was agreed that the balance on “account receivables” would belong to them and Shenggen Huang would give the applicant RMB 50,000.

   ·    The applicant asked for his money in 2009 but did not receive it.  Therefore in December 2009 he sued Mr Huang in Nanchang Court.  The court session was on 14 January 2010.  When he went to court he saw Mr Shi and Mr Huang with a Mr Li from Nanfeng Public Security Bureau.  The applicant was accused of suspected theft and got a Notice asking him to go to the Criminal Investigation unit of Nanfeng Public Security Bureau.  The court heard his case and ordered that Mr Huang pay him RMB 50,000.  However when he left court two policemen put handcuffs on him and he was taken to the office of Criminal Investigation Unit.

   ·    At the unit he was kicked and beaten by a plain clothed policeman.  His mouth was taped [shut] by Li.  He was beaten for more than five hours after which he signed a prepared affidavit.  It was below zero degrees with no bedding or quilt.  The next day he could not walk by himself and Mr Li opened the door and dragged him out of the cell.  He took the applicant to his office and told him that it was unwise to sue Mr Huang as “Boss Huang and Secretary Fu” (secretary of CCP in Nanfeng County Committee) are good friends.  If the applicant gave “the reporter” RMB 400000 for a private settlement he would be treated leniently.

   ·    His wife paid RMB 15,000 and gave their property ownership certificate as a guarantee the applicant was released.  The applicant was blue and purple from the beating and could only walk with the assistance of his wife.  He rested for a month at home.

   ·    Two months later people from the Nanfeng PSB came to the house asking for the money to pay back Mr Huang and threatened that the applicant would be arrested again.  They sold their house at a cheap price and moved to live with a relative.  A neighbour suggested that he go to the upper government to report Mr Huang and the Secretary of the CCP in the County.  On 28 May 2010 an officer took the applicant’s appeal letter.  Unexpectedly a group of policemen, including Li, came to his relative’s house and almost ruined everything in the night on 30 May 2010. Li yelled at him that he could not break down Secretary Fu through appealing and that he would be in serious trouble if he wants to fight with a government officer.  He could [no] longer stay in his relative’s house.  He decided to appeal in Jiangxi Province government and if that did not work to appeal to the Beijing Central Government.  He wife did not support the decision.

   ·    In July 2010 his ceramic company planned to cooperate with a foreign company and organised for the applicant and some other staff to go to Australia.  The applicant agreed with his wife that he would give up appealing and would go to Australia and then start over in his business.  However he was not comfortable with this decision and swore to find justice.

   ·    After the visa preparation he went to Jiangxi Government office on 21 October 2010.  They asked him to fill in a form with his contact details and then asked him to leave.  Later he found out Mr Huang and Mr Fu had already invited people from Jiangxi Government for a fancy dinner.  The applicant decided to go to Beijing.  The applicant consulted some lawyers but no one would take his case as they said there were very few cases of civilians successfully suing officials.

   ·    At the end of January 2011 he got his visa to Australia and decided to go to Beijing on 29 January 2011.  He was caught by plain clothed policemen and detained for 15 days, until the end of Spring Festival.  He was tortured badly, questioned and beaten every day.  He was forced to promise not to appeal again and said if he kept trying they would make him suffer.  They said that people die of accidents on their way to appealing in Beijing.  His wife gave them money, the applicant signed a paper promising not to appeal again and then he was released.  After this the applicant suffered severe arthritis and was very scared.

   ·    Before coming to Australia the applicant wrote a long letter about his sufferings and charges towards Nanfeng Government officials and sent it to Beijing Appeal office.  He arrived in Australia on 10 April 2011 and when he called at the end of April his wife said that more policemen had come looking for him.  They did not know that he had left China.  They searched his company and issued a warrant of arrest against him alleging that he had theft records and planned an antisocial conspiracy.  His wife was summoned to the local police station about his movements.

   ·    He wanted to go back and fight with them but his wife asked him not to go back because they would kill him.  He consulted a lawyer and found out he could apply for protection here.

4. The Tribunal had regard to those claims, as well as an interview conducted by the delegate on 7 September 2011.  The Tribunal was unable to make a favourable decision based upon the papers and invited the applicant to a hearing.  That hearing was conducted on 15 February 2012.  The applicant was represented by a registered migration agent, both before the Department and the Tribunal, but the agent did not attend the Tribunal hearing. 

5. The Tribunal records detailed questioning at the hearing about the applicant’s claims.  The Tribunal expressed concern at the hearing about apparent inconsistencies between important elements of the applicant’s claims as expressed orally, and his earlier written claims, and his claims before the delegate.  The Tribunal also expressed concern at the hearing about the vagueness of parts of the applicant’s evidence.  The Tribunal expressed concern in particular about the applicant’s lack of knowledge about the company giving rise to his claimed problems. 

6. At [61] of its reasons[2], the Tribunal put to the applicant that nearly every date he provided at the hearing was different to those contained in his written statement, and many were significantly different.  The Tribunal found it a concern that the applicant had been very vague in his evidence at the hearing about relevant dates, yet in his statement had provided specific dates of relevant events.  The Tribunal said that, given that the applicant could recall dates when he lodged his application in July 2011, the Tribunal found it surprising that he could not recall the dates with greater accuracy in 2012.

   [2] CB 90

7. At [67] of its reasons[3], the Tribunal noted and accepted the difficulties of proof faced by applicants for refugee status:

   The Tribunal accepts the difficulties of proof faced by applicants for refugee status.  In particular there may be statements that are not susceptible of proof.  It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 1919 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196-197 and 203-204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.  Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status.  However, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

   [3] CB 90-91

8. The Tribunal nevertheless found at [68][4] that the applicant was generally an unsatisfactory witness.  He answered questions very vaguely and hesitantly on many occasions, especially when questioned about dates or timing of relevant events.  His evidence appeared to change in response to concerns put to him by the Tribunal, or in response to obvious inconsistencies in his evidence.  The number of serious differences between the account provided of the relevant events in China in the applicant’s written statement and at the Tribunal hearing was significant, and led the Tribunal to conclude that the applicant’s claims were fabricated for the purpose of the protection visa application.  The Tribunal found that the applicant was not a credible witness, and had not been truthful in relation to his experiences in China.

   [4] CB 91

9. The Tribunal’s specific concerns about the applicant’s evidence are detailed in [69]-[71] of its reasons[5].  The Tribunal stated in part at [69]:

   The Tribunal would expect that there would be documentary evidence readily accessible to the applicant proving the existence of the company and arrangements made at the time that it was closed, such as evidence of its registration (as the applicant claimed it was registered) and the agreements reached (as the applicant claimed he had provided a copy of the IOU written for him o the court when he sued Mr Huang).  Furthermore, given the numerous petitions that the applicant claims to have lodged in relation to this matter the Tribunal would have expected that he would have collected all the relevant paperwork.  However, the applicant has not provided any documentary evidence of the existence of the company.  His explanation for this failure to provide evidence was inconsistent.  He initially claimed that he had not thought about it and did not consider it important.  However later he claimed that his agent had warned him to provide such evidence but his wife was unable to access it as it was locked in a storage room to which she did not have they key.

   [5] CB 91-94

10. Because of its adverse credibility findings, the Tribunal found that the applicant does not have a well‑founded fear of persecution for a Convention reason, if he was to return to China. 

11. These proceedings began with a show cause application filed on 22 March 2012.  The applicant continues to rely upon that application.  There are two grounds in the application:

    1. There is a [judicial] error in my case.  The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria on for Determining Refugee Status, Geneva, 1992, at paragraph 196-197 and 203-204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.  The Refugee Review Tribunal (the Tribunal) did not follow this direction.  During the interview with the Tribunal, I provided evidence in the situation of communication difficulties.  I speak Mandarin with strong local accent (Jiangxi accent).  The Tribunal did not consider the affection of failing in communication in my case and consequently recognised the failing as inconsistent evidence (para. 70 of Decision Record).

    2. There is an unfair judgement made by the Tribunal.  The Tribunal questioned me about evidence about the company’s registration and business agreements.  This expectation was not reasonable as I was persecuted and fled from China.  The documents were not accessible for me.  Thus, the Tribunal examined my case unfairly.

12. The application is supported by an affidavit by the applicant, which I received subject to relevance. 

13. I also received as evidence the court book filed on 16 April 2012. 

14. The grounds advanced by the applicant do not establish an arguable case of jurisdictional error.  The Tribunal is not bound to follow the UNHCR Handbook, although it is a useful guide.  In any event, the Tribunal paid specific attention to general principles concerning the difficulties of proof in refugee cases. 

15. There is no support for the applicant’s contention of interpretation difficulties at the Tribunal hearing.  The applicant sought a Mandarin interpreter, both before the Tribunal and before this Court.  He may speak with an accent, but there is no indication that, if he does, that prevented an adequate interpretation at the Tribunal hearing.  I was not aware of any such difficulties at today’s hearing. 

16. The applicant’s contention that the Tribunal’s judgment was unfair, when elaborated upon in his oral submissions, amounts to no more than dissatisfaction with the outcome.  The applicant is concerned that he should have been given the benefit of the doubt, but the Tribunal entertained no doubt.  The Tribunal was entitled to make its adverse credibility findings on the information before it.  The Tribunal’s testing of the applicant’s claims, while detailed, was fair, in that the applicant was given a reasonable opportunity to respond to the Tribunal’s concerns. 

17. The applicant expresses particular concern about the Tribunal’s expectation that he might have supported his claims by reference to documents.  The applicant gave various explanations for his inability to produce documents in support of his claims.  His explanation made to the court today was not entirely consistent with the explanation given to the Tribunal.  The Tribunal considered but did not accept the explanation proffered by the applicant to it.  The Tribunal was entitled to find as it did.  I see no arguable case of procedural unfairness by the Tribunal in relation to the issue of documents, or lack of documents. 

18. I am not persuaded that the applicant has advanced an arguable case of jurisdictional error by the Tribunal. Accordingly, the application will be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules).

19. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims to be impecunious but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. 

20. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  16 August 2012