SZSIH v Minister for Immigration

[2013] FCCA 1316

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1316

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal’s decision gave rise to apprehended bias – whether Tribunal failed to take into account a relevant consideration – requirement of Tribunal to consider complementary protection.

Legislation:  

Migration Act 1958 (Cth), s.65

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609
Re Refugee Review Tribunal And Another; Ex parte H and Another (2001) 179 ALR 425

SZHVL v Minister for Immigration and Citizenship [2008] FCA 356

Applicant: SZSIH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2838 of 2012

Judgment of: Judge Raphael

Hearing date: 5 September 2013

Date of Last Submission: 5 September 2013

Delivered at: Sydney

Delivered on: 5 September 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicants to pay the respondents’ costs assessed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2838 of 2012

SZSIH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 26 September 2011. On 28 November 2011 he applied to the Department of Immigration for a protection (class XA) visa under s.65 of the Migration Act 1958 (Cth). On 16 May 2012 a delegate of the Minister refused to grant him a protection visa, and the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal which, on 9 November 2012, determined to affirm the decision not to grant him the protection visa.

2. The factual background surrounding the applicant’s claim to be a person to whom Australia owed protection obligations was that he owned a property in his home town approximately 130 kilometres from Shanghai.  The land coverage was some 460 square metres and there were two buildings upon it.  In November 2010 the applicant received notice from the local authority that they intended to compulsorily acquire his land and demolish it by 1 February 2011 to make way for an agricultural market.

3. The applicant claims that he was offered compensation on the basis of the rate applicable to residential property, whereas his neighbours were all offered compensation on the commercial or business property rate.  He received about 1.3 million yuan, but felt that he should have been paid a further 550,000 yuan.  He complained to the authorities and petitioned them.  As a result he tells that he was detained on two occasions, the second time for a month.  This was around the time that the buildings were to be demolished. 

4. He does not recall how he was released from the detention because he recalls going to sleep in the detention centre and waking up outside it. He was battered, bruised and shocked.  He took a taxi to Shanghai and stayed with a friend.  He determined that he should leave the country and made arrangements to do so over the next few months whilst simultaneously closing down his business.  The applicant left a wife in Shanghai who he said had suffered a heart attack at about the time that he came out of detention.  He feared that if he returned to China he would continue to protest about the unfairness of the compensation paid to him, and that in those circumstances the local authorities would carry out a threat that he said had been made to him, that he would be put in prison for life. 

5. The Tribunal questioned the applicant upon his story and put to him some inconsistencies in it or between it and other information he had provided either in his initial application or in his interview with the delegate.  Having heard these matters, the Tribunal’s conclusion found at [79 CB124] was:

   “The Tribunal has considered all the evidence before it, including the applicant’s written statement and his oral evidence before the Departmental delegate and before the Tribunal.  The Tribunal has a number of concerns about important aspects of the applicant’s evidence.  It finds that his evidence has been internally inconsistent.  During the Tribunal hearing, when particular concerns were put to him, he sought to finesse his responses and in doing so he altered or amended important facts which go to the heart of his claims.  Furthermore, in the Tribunal’s view the applicant’s actions from March 2011 until September 2011 when he left China are not consistent with his claims that he was fearful for his safety and fearful that he would be arrested because of his compensation matter.  Overall the Tribunal does not accept that the applicant was a truthful witness. It does not accept that he encountered problems in China in November and December 2010 as a result of the acquisition of his land by the government for development.  It does not accept that there was a dispute over the basis of payment of compensation to the applicant and it does not accept that the applicant was detained and mistreated on two occasions, in December 2010 and January 2011 resulting from a dispute, as he now claims.”

6. The Tribunal then set out in the following paragraphs its reasons for coming to this conclusion.  It had concerns that the applicant had provided no corroborative evidence of his claims, whether by way of documentation relating to the property, its compulsory acquisition or documentation relating to his detention.  It had earlier, in discussions with the applicant, heard from him that he had not committed any criminal offence and that there was no reasonable ground to issue a warrant against him.  The Tribunal put to the applicant that it might well agree with that and then continued discussions between them as to the reality of the applicant’s actual fear. 

7. It is no part of this court’s remit to come to some view as to the merits of the applicant’s claim.  Another Tribunal may well have found that there was some truth in it, but the applicant was still not a person who had a well-founded fear of persecution.  The court cannot say that the Tribunal had no ground upon which to make its findings concerning credibility, particularly when it is the fact that such matters are for the Tribunal par excellence: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609.

8. On 4 December 2012 the applicant filed an application with this court seeking a review of the Tribunal’s decision.  There were three grounds of application.  The first was:

   “The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.” 

   No particulars were given as to what part of the Tribunal’s decision could give rise to this apprehension. As McKerracher J said in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17]:

   “It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.”

   Having read the Tribunal’s decision record, I am unable to see what the applicant might point to as indicative of apprehended bias as that phrase is defined in Re Refugee Review Tribunal And Another; Ex parte H and Another (2001) 179 ALR 425 at [27] and [28]. This ground cannot succeed.

9. The second ground raised by the applicant was:

   “Judicial Error of RRT in failing to take into account a relevant consideration, namely the evidence given by the Applicant, such as the evidence of being detained.”

   The applicant, having particularised the consideration that he referred to, bears the onus of establishing that it was not considered.  However, the whole tenet of the Tribunal’s decision is that it is hearing and taking into account his evidence.  This ground cannot succeed either.

10. The third ground was:

    “The Tribunal was over objective in judging the explanation of the applicant, such as the explanation of the forceful demolish of the applicant’s property.”

    Regrettably it is not entirely clear what this third ground really means, and when the applicant appeared before me today he did not say anything which would make it any less opaque.  I think, at best, what the applicant is saying is that he disagrees with the Tribunal’s findings about his explanation, and this is an appeal for impermissible merits review.

11. In the Tribunal’s conclusions, it noted at [91] that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  At [92] it stated:

    “Having concluded that the applicant does not meet the refugee criterion in 36(2)(a) the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”

12. Whilst it is true that the Tribunal has set out at [16-18] CB109 the complementary protection criteria, there is no further mention of this matter in any part of the Tribunal’s decision record.  A court such as this, familiar with the Tribunal decisions similar to the one before it, will infer from this paragraph that what the Tribunal really means is that as it did not believe that the applicant had any problems whatsoever in China he could not therefore legitimately claim that he would suffer significant harm should he return to that country.

13. But these documents are not only meant for the court, they are meant for applicants, and it would be better if the Tribunal could perhaps spend some little more time in setting out its reasons for not granting complementary protection.  This is a plea that the court has made on several occasions over the last few months since complementary protection obligations became an important matter.  So far it has not been heeded but perhaps in future it will be, if one continues to make these representations.

14. The application is dismissed.  The applicant is to pay the respondent’s costs, which I assess to the sum of $4,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  10 September 2013