SZSFH v Minister for Immigration

[2013] FCCA 1290

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSFH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1290

Catchwords:
MIGRATION – Review of decision of RRT.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 424AA

Applicant: SZSFH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2665 of 2012

Judgment of: Judge Raphael

Hearing date: 27 August 2013

Date of Last Submission: 27 August 2013

Delivered at: Sydney

Delivered on: 27 August 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2665 of 2012

SZSFH

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Although there are two applicants in this matter the second applicant claims to be a member of the first applicant’s family unit and does not have his own claim to be a refugee.  The first applicant arrived in Australia on 4 November 2007 as the holder of a student visa.  On 22 August 2011 she applied to the Department for a protection (Class XA) visa.  On 20 October 2011 a delegate of the Minister refused to grant her and the other applicant a protection visa.  The applicants applied for a review of that decision from the Refugee Review Tribunal.  The Tribunal invited the applicants to a hearing on 25 July 2012 which they attended.  On 22 October 2012 the Tribunal determined to affirm the decision not to grant them protection visas. 

2. The factual basis of the substantive applicant’s claim to be a person to whom Australia owed protection obligations is set out in detail in the findings and reasons section of the Tribunal’s decision [123-124] [CB 129].  The applicant told that her parents had bought premises, in which there was a restaurant, in 2006.  The family moved into the premises and the restaurant was a success.  In 2010, some time after the applicant had come to this country, her parents received notice that they would have to relocate as the local authority proposed to build a market on the site of the restaurant.  The parents objected to the compulsory acquisition of their property and, in particular, to the compensation offered to them.  They refused to sign the demolition agreement and compensation offer that was put to them by the developer in October 2010.  The applicant told that on 6 January 2011 the water and electricity supplies were cut off and the restaurant business ceased operation.  In April 2011 the police and labourers came and commenced demolition of the building. 

3. The applicant told that in June 2011 her parents organised employees and other business to protest in front of the Fuqing City Government building.  Her parents were taken into a detention centre and detained and although eventually released, they received no compensation although they were offered one tenth of the amount originally put to them to “save face”.  The applicant told that when she learnt of this she began to post anti-government information on a website known as QQ although she said that the information was taken down. 

4. The Tribunal questioned the applicant upon her story and put to her, in accordance with the provisions of s.424AA of the Migration Act 1958 (Cth), information which the Tribunal believed might be a reason or part of the reason for affirming the decision under review. Having considered the information provided by the Tribunal it does seem to the court that it was not necessary to do it in this way but the Tribunal should not be criticised. It thus provided the applicant with a strong intimation of the weaknesses of her case.

5. The Tribunal came to the conclusion that the applicant’s evidence on some points was vague and that there were significant inconsistencies in it which led the Tribunal to find that the applicant’s evidence was not credible and that the applicant was not a witness of truth.  Between [128] and [142] [CB 130 - 133] the Tribunal sets out the concerns which it had and the inconsistencies which it found.  Among other things the Tribunal noted that the applicant had said in her interview before the delegate that she was going to provide some documentation to establish the claims that she was making. 

   “[136]The applicant told the delegate at the interview in October 2011 that her mother was sending documents from China (such as the restaurant business license and the notice of demolition) and she expected to receive them within two or three weeks. However, at hearing before the Tribunal, in explanation of the absence of the promised corroborative documents she said that her mother had been refused access to those documents by the authorities and later that she was not sure whether or not her mother had the documents in her possession. When this inconsistency was put to her under s.424AA of the Act, the applicant’s response was that she asked her mother to get the documents and post them to her within two or three weeks, but later she checked with her mother who said she could not provide any documents; the situation in China was very bad and her family had no means to provide the documents in support of her application. Despite this, the applicant also responded that, if the documents were required she could get them for the Tribunal. The Tribunal finds this response contradictory and unsatisfactory. The Tribunal is not satisfied that the applicant’s failure to provide the promised corroborative documents is because of the difficulties with the Chinese authority. [CB 131 – 132]

6. The Tribunal was equally unpersuaded by the applicant’s evidence concerning her fear of well founded persecution should she return to China because of her postings on the website.  She had told that there was a summons awaiting her should she return to China.  Again, she said that the summons would be sent from China but it was not. 

   “[137]The Tribunal does not find this response satisfactory because the applicant’s description of herself as a “person who was issued a summons” together with her offer to produce the summons tended to suggest she was claiming that it was in document form.  Further, her written claim that she was directed to report to the Fuqing Public Security Bureau by 23 August 2011 was the kind of specific detail one might expect to see on a written notice.”[CB 132]

7. Having considered the matter in which the applicant responded to the Tribunal’s questions at interview it stated:

   “[142]Taking into account the issues outlined above concerning the applicant’s credibility and the credibility of her claims, the Tribunal finds that the applicant is not a witness of truth and does not accept her claims that:

   ·The applicant’s family lost their only source of income and all their personal possessions through the forcible demolition without compensation of a restaurant they owned.

   ·The applicant’s parents staged a protest with other shop owners and employees and were detained on two occasions.

   ·The applicant had to cease studying after the restaurant demolition because her parents can no longer afford the tuition.

   ·The applicant posted negative articles about the Chinese Government online which came to the attention of the police who summoned the applicant for interrogation about the matter.

   ·The applicant will continue to tell people in China about the injustices of the Chinese Government and that;

   ·The applicant now has a record which will mean she will be unable to get a good job on return to China.”  [CB 133]

8. The Tribunal rejected the principal applicant’s claim and therefore the second named applicant’s claim, which was based upon his association with her. It also concluded that there was not a real chance that she would suffer persecution because of any imputed political opinion. It found that her fear of persecution in China was not well-founded. The Tribunal also found for the same reasons that there was no substantial ground for believing that there was a real risk that the applicant would suffer significant harm if she returned to China and thus the complementary protection obligations found in s.36(2)(aa) of the At were not available to her.

9. On 16 November 2012 the applicants filed an application in this court seeking a review of the Tribunal’s decision.  There were two grounds for application.  The first was:

   “1.    Immigration department was unfair to us”.

10. No particulars of this ground were provided.  Today, the applicant told me that the Tribunal did not let her know what documents she needed to prepare for her case which I take to be what she meant by the unfairness.  Firstly, there is no obligation on the Tribunal to tell an applicant what documents are needed.  It is for the applicant to satisfy the Tribunal that she is a person to whom Australia owes protection obligations.  But I note that throughout the history of this application it was the applicant who was volunteering to provide documents but who did not. 

11. She first referred to documents in her statutory declaration [CB 47] where she told that she was issued a summons by the Chinese government.  In her interview with the delegate she said that evidence corroborating the claims about the compulsory acquisition of her parents’ restaurant and home were being prepared [CB 64].  On 9 January 2012, in a letter from the Tribunal, she was told that if she wished to provide material or written arguments that should be done as soon as possible.  And the fact that she had not provided the corroborating documents was taken up by the Tribunal at the hearing and discussed with her.  In these circumstances it is not possible for the court to conclude that the applicant was treated unfairly in regard to the provision of documentation.

12. The second ground of application was:

    “2. We are not treated fairly according to law”.

13. Again, there are no particulars of this ground, but the applicant told me that she had given the Tribunal reasons why she could not get more evidence and it was not accepted.  She felt this was unfair and that the Tribunal did not consider country information on China.  To argue against the Tribunal’s findings of fact in relation to the non provision of documents is to request from this court impermissible merits review.  In regards to the statement that country information about China was not considered the court would refer the applicant to [117-121] [CB 127-128] where independent country information is set out in some detail. 

14. The Tribunal accepted that there are problems in China arising out of compulsory acquisition of land and failure to provide proper compensation.  The existence of such claims was not denied, it was only that the Tribunal felt that this claim by this applicant was not a genuine one.  The applicant told me that she did intend to provide the documents but they were not allowed to be sent overseas.  This is noted by the Tribunal and one can infer that the member may well have thought that even if the documents could not be sent overseas they could have been photocopied and provided to the applicant.

15. It follows from what I have said above that I am unable to provide the applicant with the review she seeks.  The application is dismissed.  The applicants must pay the first respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  4 September 2013