SZRLJ v Minister for Immigration

[2013] FCCA 1691

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRLJ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1691

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

PRACTICE AND PROCEDURE – Application to set aside summary dismissal.

Legislation:

Migration Act 1958, ss.36, 422B, 424A, 425, 474
Federal Circuit Court Rules 2001, rr.13.03, 16.05

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZRLJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 958 of 2012

Judgment of: Judge Cameron

Hearing date: 17 April 2013

Date of Last Submission: 17 April 2013

Delivered at: Sydney

Delivered on: 17 April 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application in a case filed on 5 March 2013 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application in a case fixed in the amount of $1,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 958 of 2012

SZRLJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant commenced proceedings in this Court by an application filed on 2 May 2012. At a callover on 27 August 2012, which the applicant attended, the matter was listed for hearing on 12 February 2013. There was no appearance by the applicant on 12 February 2013 and, on the application of the first respondent (“Minister”), the proceedings were dismissed pursuant to r.13.03C(1)(c) of what are now the Federal Circuit Court Rules 2001 (“Rules”).

2. On 5 March 2013 the applicant filed an application in a case pursuant to r.16.05 of the Rules, seeking an order that the Court set aside its order of 12 February 2013 dismissing the proceedings.

3. In deciding whether to grant the current application consideration must be given to whether the applicant’s explanation for her non-attendance on 12 February 2013 is a satisfactory one and whether she has reasonable prospects of success in the principal application. 

Satisfactory explanation

1. In submissions from the bar table at the hearing of the application in a case the applicant said that on 12 February 2013 she had suffered a severe headache and that, because it was so severe, she had forgotten about the hearing until the afternoon of that day.  No medical certificate was produced to support that claim of illness.  I did not require the applicant to give evidence of this claim, simply to make the address from the bar table to which I have referred, and in the circumstances it is difficult to reach a firm view on whether the applicant was indeed sick on 12 February as she alleges.  However, in light of the conclusion which I have reached in relation to whether her substantive application has reasonable prospects of success, I am willing to give her the benefit of the doubt in relation to her claim of illness.  Accepting on that basis that the applicant was suffering from a bad headache on 12 February 2013, I find that she has provided a satisfactory explanation for her failure to attend on that occasion. 

Reasonable prospects of success

1. The applicant is a citizen of China who arrived in Australia on 13 December 2007 on a student guardian visa.  On 24 August 2011 she applied to the Department of Immigration and Citizenship for a protection visa alleging that she feared persecution in China because, amongst other things, her husband had refused to bribe certain government officials.  On 27 October 2011 a delegate of the Minister refused the applicant’s application for a protection visa.  The applicant then applied to the second respondent (“Tribunal”) for a review of that decision.  She was unsuccessful before the Tribunal and applied, by way of her application filed on 2 May 2012 to this Court, for judicial review of the tribunal’s decision. 

2. In determining whether the substantive application has reasonable prospects of success it must be kept in mind that the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-16 of the Tribunal’s decision, which I will summarise.

Protection visa application

1. Enclosed with the applicant’s visa application form was a statement in which she made the following claims:

   a)during the Cultural Revolution her grandfather was beaten to death by communists because he was a landlord;

   b)because of their family background as landlords, her parents were persecuted by the government; 

   c)she contracted an illness when she was twelve years old which left her with brain damage. She suffered memory loss as a result;

   d)she was not able to register her marriage because she and her husband were not of legal age at the time;

   e)the local government fined her RMB20,000 for having a second child in May 1992.  Because she and her husband were not able to pay the fine, she was forcibly sterilised in October 1992 and then detained for a month.  Their house was also confiscated in 1995;

   f)later, her husband opened a small shop selling fertilisers.  Their lives gradually improved and they were able to pay the fine in 2005.  As a result, their child was legally registered and was not discriminated against at school;

   g)in October 2006 two people from the tax bureau came to the shop and accused her husband of tax evasion.  They asked him to pay a tax of RMB50,000 which was, in reality, a bribe.  When her husband argued with them they hit him and called the police. He was accused of hitting public servants, arrested and fined.  Soon after, they received a notification letter from the tax bureau stating that they had to pay RMB50,000 in tax;

   h)her husband took the tax letter to the City Petition Office.  Subsequently, on 20 December 2006 an orchard worker came to her husband’s shop and accused him of selling fake fertiliser.  The orchard worker demanded compensation for the loss of his or her pear trees and sued her husband when he refused to pay;

   i)the situation with the orchard worker was orchestrated by the tax bureau in retaliation for her husband’s petition;

   j)her husband could not come with her to Australia because the court matter was still on foot; and

   k)her husband told her in December 2009 that although a decision had not yet been made in the court case, the orchard worker had come to the shop and caused a lot of trouble.  The police refused to intervene. 

2. At her departmental interview on 26 October 2011 the applicant also claimed that she left China because she was bullied and beaten by her husband and his family who looked down on her because she was from another province.  She claimed that she did not seek protection from the police because it would have been useless and that she had not raised these claims earlier because she was afraid that she would be beaten at home.

Review application

1. The applicant sought review of the delegate’s decision.  On 1 February 2012 she provided the Tribunal with a number of photographs which appeared to depict a destroyed house.

2. On 30 March 2012 the applicant provided the following documents to the Tribunal:

   a)a “Certificate of sickness” dated August 1984 showing that she had been diagnosed with viral encephalitis and encephalitis sequelae;

   b)a “Certificate of sterilisation operation” dated October 1992;

   c)a “notification about payment and tax payment” dated October 2006 from the local taxation bureau, addressed to her husband stating that tax was payable according to the regulations; and

   d)a summons dated March 2007 addressed to her husband in respect of a cause of action referred to as “harm fruit growers’ interests”.

3. The applicant appeared before the Tribunal on 2 April 2012 at which point she made the following additional claims:

   a)she was illiterate and so was not familiar with the content of her application;

   b)their house was demolished because her husband did not pay the fine (presumably for breaching the family planning laws).  The photographs she provided were of her demolished house;

   c)her husband wanted to sue the taxation officers.  However, before he was able to do so, he was beaten and arrested and was accused of selling fake fertiliser;

   d)the government continued to harass her husband and he was also harassed by the individuals whose trees had died;

   e)initially two, and later eight, people accused her husband of selling fake fertiliser;

   f)she did not know much about the taxation issue because she was illiterate and her husband handled everything; and

   g)her husband told her that she would die if she returned to China.

The Tribunal’s decisions and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or pursuant to section 36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal was not satisfied that the applicant suffered from brain damage, memory loss or any other medical condition which prevented her from being able to give evidence or participate meaningfully in its hearing, noting that:

   i)there was nothing in the applicant’s medical certificate of August 1984 which suggested that her illness had resulted in brain damage or memory loss;

   ii)the applicant did not provide any medical evidence relating to her then-circumstances; and

   iii)despite her claimed condition, the applicant had been able to travel to Australia, find employment and support herself for the previous four years.  She had also been able to appoint and instruct a migration agent to provide a detailed written statement with her protection visa application, to address and respond to the delegate’s questions during interview and to provide written submissions to the Tribunal;

   b)the Tribunal noted that whatever effect the Cultural Revolution had had on her parents and grandparents, the applicant and her husband had been able to lead normal lives since then.  Consequently, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm in the future as a result of the Cultural Revolution;

   c)on the basis of the notarised hukou which the applicant had provided with her student guardian visa application and which referred to her as being married, the Tribunal found that the applicant had been able to register her marriage at some time in the past and that there was no real chance that she would be persecuted in the future because of an inability to register her marriage;

   d)the Tribunal found that there was no real chance that the applicant would be persecuted in the future for breaching China’s family planning laws because:

   i)it appeared that the applicant and her husband had been able to lead normal lives since the breach, having been able to operate a business successfully and accumulate funds sufficient to send their child to study overseas;

   ii)in her written statement the applicant claimed that after she paid the fine in 2005, her child was registered and was not discriminated against at school; and

   iii)the applicant confirmed in her oral evidence that she did not fear any future harm as a result of her breach of the family planning laws;

   e)the photographs that appeared to depict a destroyed house were provided by the applicant’s advisers with no accompanying explanation as to what they depicted or the purpose for which they had been provided.  In the circumstances, it was impossible for the Tribunal to determine whose property was depicted or, even accepting that the photographs depicted the applicant’s property, who destroyed it and for what reason.  The Tribunal therefore gave the photographs no weight;

   f)there was nothing in the “notification about payment and tax payment” document to suggest that it was anything other than a normal notification to a business to pay tax.  The Tribunal did not consider the document to be supportive of the applicant’s claims that she had been harassed by the government;

   g)the Tribunal found the applicant’s claims about the taxation issue to be confused, implausible and lacking credibility because:

   i)the applicant claimed that the men from the tax department wanted her husband to pay a bribe, not a tax, but she presented to the Tribunal a document which purported to be an official document issued by the taxation bureau.  She had not been able to explain to the Tribunal’s satisfaction why the men from the tax department would issue a formal document if what they sought was a bribe or how they planned to collect the money if it was paid to the taxation bureau;

   ii)the only evidence the applicant provided in support of her claim that her husband was being pursued by the tax bureau was a notification from the bureau about tax payment.  In the Tribunal’s view, given the ongoing nature of the matter, the applicant should have been able to provide further documentary evidence in support of this claim;

   iii)in relation to the court case, the applicant provided one copy of a summons issued in 2007.  Again, in the Tribunal’s view, if the court case had been on foot for five years, more than one document should have been available to the applicant to evidence the proceedings.  Her inability to provide adequate documentary evidence of the ongoing court case suggested to the Tribunal that it did not exist and the Tribunal was not satisfied in the circumstances, having regard to country information about the availability of fraudulent documents in China, that the summons was genuine;

   iv)in her written evidence the applicant referred to her husband writing a petition but made no reference to his intention to sue the person who demanded the tax (as she claimed in her oral evidence).  She was also unable to offer a meaningful explanation as to why her husband would wish to sue the person who demanded the money, rather than the taxation bureau;

   v)the applicant claimed that her husband was unable to leave China because of the ongoing court case.  However, with her student guardian visa application she had provided business documents which suggested that she was at least formally involved in the running of the business.  She had been unable to explain why she was able to leave the country despite the ongoing court case and her involvement in the business when her husband, who was in the same circumstances, could not;

   vi)the applicant was unable to offer any details of the petition or of the incident to which she referred in her written statement, in which a farmer caused damage to her husband’s business and the police failed to intervene.  In the Tribunal’s view, her inability to expand on those claims suggested that they were not truthful or had not been prepared by her;

   vii)the applicant initially said at the Tribunal hearing that two people had complained to her husband that the fertiliser was fake but later said that there were eight people.  In contrast, in her written statement she said that it was only one person; and

   viii)the applicant had not been able to offer a meaningful explanation as to why she would be killed if she returned to China, given that it was her husband who was sued and he had not been killed or harmed in any way but was able to continue to operate and expand his business;

   h)for these reasons, the Tribunal found that the applicant had not been truthful in her claims concerning the tax dispute and, arising from that dispute, her husband’s fighting, detention, fine, petition and ongoing court case.  The Tribunal did not accept that the deficiencies in the applicant’s evidence could be explained by her claimed memory problems or by her claimed illiteracy.  The Tribunal found that the applicant’s inability to expand on her claims was reflective of the fact that these events had not occurred; and

   i)the Tribunal did not accept that the applicant had been bullied, beaten or mistreated by her husband’s family because she had not taken any steps to remove herself from such harm by, for example, moving away from her husband’s family or by reporting the matter to the police.  The Tribunal also noted that the applicant made no mention of this claim in her initial application.  Given that she appeared to have had no difficulty expressing any other aspects of her claims, the Tribunal did not accept that the applicant did not raise this claim earlier than she did because she was worried about the consequences of revealing this evidence.

Proceedings in this Court

1. In the application filed on 2 May 2012 commencing these proceedings the applicant alleged:

   1.The procedure is unfair to me as I have no education background.

   2.RRT is biased against me as I can only speak my local dialect.

   3.My mental disadvantage is not considered by RRT.

2. At the hearing of the application in a case to set aside the summary dismissal of 12 February 2013 the applicant added nothing substantial to these allegations, saying only that she hoped that the Court would grant her a visa and that the Tribunal had not believed her.

Ground 1

1. The allegation that the Tribunal’s decision was unfair in light of the applicant’s “educational background” was not particularised and the applicant did not attempt to explain how her educational background might have rendered any aspect of the Tribunal’s procedure unfair.

2. For the purposes of hearings before the Tribunal, the natural justice hearing rule has been codified by s.422B of the Act in those provisions found in div.4 of pt.7 of the Act. Section 425 is one of those provisions. Relevantly, its effect is that an applicant is to be given a real and meaningful invitation to a hearing so that he or she can provide the Tribunal with evidence and information and be advised of the issues which will be determinative of the review.

3. The applicant was invited to a Tribunal hearing, which she attended.  The Tribunal raised with her its concerns regarding the truthfulness of her account and gave her various opportunities to address those concerns.  The only evidence touching on the adequacy of the hearing is found in the summary of that hearing set out in the Tribunal’s decision record.  There is nothing in the decision record which suggests that the applicant was denied her right to a true hearing.  

4. It might further be noted that pursuant to s.424A, which is also found in div.4 of pt.7 of the Act, the applicant was put on notice of information which was adverse to her case.

5. In these circumstances, there is no reason to conclude that the Tribunal did not meet its obligations under div.4 of pt.7 of the Act or to conclude that “the procedure” was unfair to the applicant.

Ground 2

1. The application’s second allegation was also unparticularised and its import is unclear.  It appears to be an allegation that the Tribunal was biased against the applicant because she did not speak English.  Nothing in the Tribunal’s decision record would support a finding of actual or apprehended bias on that basis.  The Tribunal’s decision record suggests that the fact that the applicant spoke no English was a matter of no consequence, other than that it required that she be provided with an interpreter, which she was.  It is also worth observing that the applicant did not point to anything in the decision record which would suggest bias on the Tribunal’s part and which would make out this allegation.

1. For these reasons, the second allegation in the application is also not made out.

Ground 3

1. The allegation that the applicant’s claims of mental disadvantage were not considered by the Tribunal misrepresents the facts.  In para.63 of its decision, the Tribunal expressly addressed the applicant’s claim to have had brain damage or memory loss.  As observed by the Minister in his submissions at the hearing, the Tribunal found that it was not satisfied that the applicant suffered from brain damage, memory loss or from any other medical condition which would have prevented her from being able to give evidence to the Tribunal or to participate meaningfully in the hearing. 

2. For these reasons, the third ground of the application is not made out.

Other matters

1. Of the matters raised by the applicant at the hearing of this application in a case, only her submission that the Tribunal did not believe her would appear to be potentially relevant.  The applicant did not add to this allegation in a substantive way and it would appear to be no more than an assertion that the Tribunal’s conclusion as to her credibility was incorrect.  However, credibility findings are matters par excellence for the Tribunal, as observed by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. Consequently, that matter raised by the applicant at the hearing of this application in a case does not disclose any error on the Tribunal’s part which would lead to an order that its decision be set aside.

Conclusion

1. For these reasons, I conclude that the applicant’s substantive application does not have reasonable prospects of success.  As a result, notwithstanding the fact that giving her the benefit of the doubt I have concluded that the applicant has provided a satisfactory explanation for her non-attendance on 12 February 2013, I nevertheless conclude that it is not appropriate to set aside the order made on that day.

2. The application in a case will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  25 October 2013