SZRUR v Minister for Immigration

[2015] FCCA 760

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 760

Catchwords:
MIGRATION Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZRUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 523 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms K. Hooper
DLA Piper Australia

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant to pay First Respondent’s costs fixed in the sum of $800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 523 of 2015

SZRUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 9 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA visa). 

2. The application identifies the following grounds:

   1. RRT didn’t consider that I was depressed.

   2. RRT didn’t consider that I was suffering memory loss.

   3. RRT didn’t consider my case fairly.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Court raised with the applicant that, having looked at the application and the decision, it was concerned that the application failed to disclose any arguable jurisdictional error.  In response to the invitation to identify what was wrong with the decision, the applicant identified that he didn’t feel very well at the time of the hearing.  The grounds identified in the application are clearly doomed to failure.  They do not disclose an arguable jurisdictional error, and the applicant’s state of wellbeing and state of mind at the time of the hearing is a matter for the Tribunal to consider and it was open to the Tribunal to make the findings of fact that it made: 

5. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

6. The Tribunal considered the following circumstances:

   2. The applicant, who claims to be a citizen of China, applied to the Department of Immigration for the visa [in] November 2011.

   3. On 26 April 2012 the applicant applied for review of that decision to the Refugee Review Tribunal (differently constituted). On 22 August 2012 that tribunal affirmed the decision not to grant the applicant a protection visa because the applicant failed to appear at the hearing and the tribunal was not satisfied, on the material before it, that the applicant had a well-founded fear of persecution for one or more of the convention reasons, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that he will suffer significant harm.

   5. The court remitted the application to the Federal Circuit Court for rehearing. [In] September 2014 the Federal Circuit Court, by consent, ordered that the decision of the first tribunal be quashed and the matter be remitted to the tribunal to reconsider and determine according to law.

   14. On the basis of the copy of the applicant’s Chinese passport provided to the department, the tribunal finds that the applicant is a citizen of China.  There is nothing in the evidence before the tribunal to suggest that the applicant has a right to enter and reside in any country other than China.  Therefore the tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the tribunal has found that the applicant is a national of China, the tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

   15. During the hearing the tribunal raised it concerns about the applicant’s credibility and whether he was telling the truth in relation to significant aspects of his claims. The tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for these findings are discussed below.

   16. First, the applicant gave inconsistent oral evidence in relation to the date his family property was demolished by the government. Initially the applicant told the tribunal the property was demolished [in] November 2009. He later changed his oral evidence and stated the property was demolished [in] November 2008. When this inconsistency was raised with the applicant he told the tribunal that he had made a mistake, that he was quite nervous during the hearing, and that it was a number of years ago. In isolation, the tribunal would not give this inconsistency much weight, but given the tribunal other concerns in relation to the applicant’s credibility, the tribunal considers this inconsistency reflects poorly on the applicant’s credibility and the reliability of his evidence.

   17. Second, in accordance with s.424AA, the tribunal put information to the applicant contained in the recording of the delegate’s interview with the applicant conducted [in] March 2012. The information was that during the interview the applicant told the delegate that the compensation amount paid for the confiscated property was 130,000 RMB. The tribunal noted this was inconsistent with the applicant’s oral evidence that the compensation amount was greater than 110,000 RMB but less than 120,000 RMB. The applicant chose to respond immediately and told the tribunal that the compensation amount was less than 400 RMB per square metre and was less than 120,000 RMB. He told the tribunal the family still had some [things] at the property and was given several thousand RMB for that loss but that does not count as construction compensation. The tribunal is not persuaded by this explanation. While the tribunal accepts the applicant was nervous during the hearing and a number of years has passed since the property was confiscated, the amount of compensation was the focus of the applicant’s petitioning claims. Therefore the tribunal would expect someone in the applicant’s situation to be able to recall the amount of compensation which he was claiming was inadequate. The tribunal considers the applicant’s inconsistency in relation to the amount of compensation paid reflects poorly on his credibility and the reliability of his claims.

   18. Third, during the hearing the tribunal raised its concern that the applicant had not provided any documents to support his claims.

   31. The tribunal considers this delay reflects poorly on his claims of genuinely fearing harm in China.

   32. The tribunal found the applicant’s oral evidence inconsistent with his first and second statements and with the information he provided during his interview with the delegate.

   24….The tribunal considers this inconsistency reflects poorly on the applicant’s credibility and the reliability of his claims.

   25…. The tribunal does not accept that such specific differences in the statements can be attributed to translation errors or that the applicant’s lawyer changed the applicant’s story in his first statement. The tribunal finds the different claims in the second statement were made in order to address the inconsistencies raised by the delegate in the interview. The tribunal considers this significantly undermines the applicant’s credibility and the reliability of his claims.

   26. The tribunal considers this inconsistency reflects poorly on the applicant’s credibility and the reliability of his claims.

   27. Seventh, during the hearing the applicant told the tribunal that when he was taken back to [Town 3] by police he was detained for 20 hours.

   …

   The tribunal considers the inconsistency between the applicant’s oral evidence and his first written statement reflects poorly on his credibility and the reliability of his evidence.

   28. …The tribunal does not accept that the applicant’s response explains the inconsistency between the applicant’s oral evidence and his first and second statements. The tribunal considers this inconsistency reflects poorly on his credibility and the reliability of his evidence.

   29. …The tribunal is concerned that the applicant changed his oral evidence in order to address an issue raised, and considers this reflects poorly is on his credibility and the reliability of his claims.

   30. …The tribunal is not persuaded by the applicant’s response and considers this inconsistency between the applicant’s oral evidence and what he told the delegate at the interview, as recorded in the decision record, reflects poorly on his credibility and the reliability of his evidence.

   31. Eleventh, during the hearing the tribunal raised its concerns in relation to the applicant’s delay in leaving China. The tribunal noted the copy of the applicant’s passport photopage indicated the passport was issued in [2010], yet the applicant told the tribunal he did not leave China until October 2011. The tribunal noted the applicant had earlier stated that it was not easy to come to Australia and that he had used three different agents in order to arrange his travel which had taken some time. The tribunal noted that the decision record states the applicant had told the delegate the delay was due to the time it had taken for the applicant to settle his parents. The applicant told the tribunal that the delay was due to both explanations, as he had undertaken both during that period. He told the tribunal that it had happened five or six or seven years ago and the different answers related to the things he had done over the same period of time. While the tribunal accepts that the applicant may have used a number of agents and be required to settle his parents, it does not accept that such activities explained why the applicant waited for over a year and a half after receiving his passport to leave China. The tribunal considers this delay reflects poorly on his claims of genuinely fearing harm in China.

   32. The tribunal found the applicant’s oral evidence inconsistent with his first and second statements and with the information he provided during his interview with the delegate. The tribunal has significant concerns about the applicant’s credibility and the reliability of his claims given the very specific differences in the statements he provided to the department. The tribunal is also concerns the applicant changed his oral evidence during the hearing to address an issue raised by the tribunal.

   34. The tribunal does not accept that the applicant is of any adverse interest to the government or authorities or anyone in China in relation to any destruction of property or compensation claim or petitioning activity.

   35. The tribunal does not accept that the applicant has pursued a compensation claim or petitioning issue in the past in China, and it does not accept he would do so on return to China.

   36. The tribunal does not accept there is a real chance the applicant will be locked up in a black jail or harmed if he returned to China due to any issues in relation to property destruction and inadequate compensation or petitioning activity.

   44. Based on the evidence before it the tribunal finds that the applicant was of no any adverse interest to anyone in China prior to his departure, and finds that there is no real chance he would be perceived as a failed asylum seeker, or as anti-government, or of any adverse interest to the authorities on his return to China.

   50. The tribunal has searched the available country information in relation to the existence and prevalence of forced sterilisations in China. The information indicates that the law prohibits the use of physical coercion but pressure on local birth planning officials to meet family planning targets has resulted, according to the US DOS, in the use of physical coercion and “the abortion of certain pregnancies”.  According to a Freedom House report from 2009 “compulsory abortion or sterilization by local officials citing family-planning rules still occurs but is illegal and far less common than in the past.” Much of the more recent county information indicates some forced abortions and sterlisation of women are still being reported in some area. According to the United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) decision in AX (family planning scheme) China v. Secretary of State for the Home Department CG [2012] UKUT 00097 (IAC) male returnees do not, in general, face a real risk of forcible sterilisation, whether in their ‘hukou’ area or elsewhere, given the very low rate of sterilisation of males overall and the even lower rate of forcible sterilisation.

   51. The tribunal accepts that there are some examples of forced abortions and sterilisations occurring in China. Nevertheless, the country information indicates that forced sterilisations are illegal under Chinese law and are far less common than in the past. The country information also indicates that forced sterilisation of men is even less common than forced abortions and sterilisation of women. On the information before it, the tribunal does not accept that there is a real chance the applicant would be subject to forced sterilisation should he return to China, now or in the reasonably foreseeable future.

7. It was in these circumstances that the Tribunal came to the decision identified in para.53:

   53. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he were to return to China now or in the reasonably foreseeable future.

8. The Tribunal then turned to the issue of complementary protection:

   55. As noted above, the tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The tribunal does not accept the applicant’s property was forcibly destroyed by the Chinese government or that he then pursued the issue of compensation to the courts and or appealed to the Provincial Capital [City 1]. The tribunal does not accept that the applicant went to Bejing to petition or that he was kidnapped while there and detained without water or food and treated very cruelly. The tribunal does not accept he was placed in a detention centre or tortured or threatened and made to write guarantees he would not go to [City 2] and petition. The tribunal does not accept that the applicant was no longer treated fairly by the government or that he was spied on and his business licence cancelled. The tribunal does not accept that the applicant wrote appeal letters to [City 1] and [City 2]’s petition offices prior to leaving for Australia. As noted above the tribunal does not accept the applicant is of any adverse interest to the government or authorities or anyone in China in relation to any destruction of property or compensation claim or petitioning activity.

   58. The tribunal accepts that there are some examples of forced abortions and sterilisations occurring in China.  However, the country information does not show that the practise is commonly used or widespread. Furthermore, the country information indicates that forced sterilisations are illegal under Chinese law and are far less common than in the past.  The tribunal does not accept that there is a real risk the applicant would be subject to forced sterilisation should he return to China, now or in the reasonably foreseeable future.

   59. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, 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, there is a real risk that the applicant will suffer significant harm.

9. I am satisfied that the proceedings are doomed to failure.  I am satisfied that the findings made by the Tribunal were open and it cannot be said that the findings lack an evident and intelligible justification.  I am satisfied that the applicant had a genuine hearing.  The application is doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 31 March 2015