SZSSP v Minister for Immigration

[2013] FCCA 1445

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1445

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 424A, 424B

Migration Regulations 1994 (Cth), reg.4.35

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63

Applicant: SZSSP

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 663 of 2013

Judgment of: Judge Barnes

Hearing date: 4 September 2013

Delivered at: Sydney

Delivered on: 4 September 2013

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,900. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 663 of 2013

SZSSP

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 27 February 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant, a citizen of the People’s Republic of China, a protection visa. 

2. The Applicant claimed that when his wife fell pregnant in 2011 with their second child he organised an ultrasound examination.  He stated that “[o]n 5 November 2011, the local district family planning office notified [his] wife to attend the regular women examination [on 6 November 2011] at City Public Hospital”.  He claimed that he and his wife understood that this meant she would be forced to have an induced abortion.  He claimed that they decided she would go into hiding, but early on the morning of 6 November 2011 she was abducted from the bus stop by family district planning officers and persons from the street committee, taken to hospital and forced to have an abortion. 

3. The Applicant claimed that on 10 November 2011 he was taken by family district planning officers and street committee cadres to undergo sterilisation surgery at the hospital.  He claimed that he managed to escape by jumping through a toilet window and that he travelled to Beijing where he hid at a cousin’s home.  He claimed that subsequently he raised funds and managed to travel to Australia on a student visa.  The Applicant claimed to fear that if he returned to China he would be forced to undergo sterilisation surgery. 

4. The delegate refused the application and the Applicant sought review by the Tribunal. He attended a Tribunal hearing on 14 February 2013. The only evidence of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. In its reasons for decision the Tribunal set out the Applicant’s claims made in writing and also his evidence at the Tribunal hearing. It recorded that in the course of the hearing it put certain information to the Applicant pursuant to s.424AA of the Migration Act 1958 (Cth) (the Act).

5. The Tribunal set out details of the information put to the Applicant and how it explained the relevance of that information and advised him that he could seek an adjournment or comment immediately or in writing.  It recorded that the Applicant chose to comment in writing and stated he wanted one week, that the Tribunal and the Applicant agreed on comments being provided by 22 February 2013 and that the Tribunal also agreed to put its concerns in writing. 

6. The Tribunal wrote to the Applicant by letter dated 15 February 2013 (headed “S.424AA Letter”) confirming that at the hearing the member had said she would write to him after the hearing and provide him with the information discussed at the hearing.  It again gave the Applicant particulars of the information it had put to him, in particular evidence on his Departmental student file of an offer of placement for enrolment dated 13 October 2011;  a certificate of enrolment created on 10 November 2011;  and his evidence at the Departmental interview that he found out his wife was pregnant on 28 October 2011. 

7. As the Tribunal recorded that it had explained to the Applicant at the hearing, this information was said to be relevant because the offer of placement for enrolment may indicate that the Applicant had made plans to come to Australia before he claimed he knew his wife was pregnant and that this may not be consistent with his written statement or evidence at the Tribunal hearing that he made plans to come to Australia after he was detained on 10 November 2011. 

8. The Tribunal also put to the Applicant the issue it had raised at the hearing about his evidence in his Departmental interview that his wife was allowed to travel on the bus before she was detained and its possible inconsistency with his written statement that his wife was detained at the bus stop.  The Tribunal recorded that this information may lead it to find it did not accept that the Applicant had been telling the truth and to affirm the decision under review. 

9. On 21 February 2013 the Applicant responded to the Tribunal’s request for comment and information stating that the correct date on when he found out his wife was pregnant was 1 October 2011 and that his answer of 28 October 2011 was not correct because he “was very nervous on that hearing day”.  He also claimed that he remembered that when asked in the interview with the delegate about whether the officials had waited until his wife had travelled a little on the bus before they abducted her, his answer had been “no”, whereas it was recorded as “yes”.  He elaborated that his wife told him that she was abducted in the bus waiting room.  He suggested that this mistake was made by the interpreter. 

10. In its findings and reasons the Tribunal summarised the Applicant’s claims.  It did not find his evidence convincing.  It referred to the fact that on the Applicant’s student file there was an offer of placement for enrolment in a course of study in Australia dated 13 October 2011 and that this was before the date that the Applicant was recorded as having told the Departmental delegate that he found out his wife was pregnant. 

11. The Tribunal addressed the Applicant’s subsequent claim that he became aware of the pregnancy on 1 October 2011.  However it did not accept his explanation that he gave the answer of 28 October 2011 because he was very nervous.  It had regard to the fact that he had provided this explanation after he was told that 28 October 2011 was after his offer of placement for enrolment in a course in Australia. 

12. The Tribunal also found that the offer of placement for enrolment dated 13 October 2011 and the certificate of enrolment dated 10 November 2011 were inconsistent with the Applicant’s evidence at the Tribunal hearing that he only planned to come to Australia after he was detained on 10 November 2011.  The Tribunal did not accept that the Applicant was telling the truth in this respect. 

13. The Tribunal was of the view that “the applicant did not give a convincing explanation as to why his wife was allegedly stopped by the authorities before her appointment [at the city hospital] (which he believed would terminate her pregnancy)”.  It pointed out that the appointment had been organised and that she had not at that stage disobeyed the authorities. 

14. The Tribunal was of the view that the changing nature of the Applicant’s evidence and his application to come to Australia before the event that allegedly triggered his flight was indicative of someone who was fabricating his claims rather than recalling actual events.  The Tribunal was not satisfied that the Applicant’s wife had been pregnant with a second child, fled from a forced abortion, detained and forced to undergo such an abortion or that the applicant was then detained and fled a forced sterilisation. 

15. Having regard to its finding about the claims about alleged events in China, the Tribunal was not satisfied that there was a real chance the Applicant would be targeted for a Convention reason, including forced sterilisation, if he were to return. 

16. The Tribunal acknowledged that there were country reports indicating that there were cases of abortions and sterilisations in China, but was not satisfied that this had happened to the Applicant or his wife at any time, including since the birth of their daughter in 2002. Given this finding, the lack of recent reporting on this issue and the age of the Applicant and his wife, the Tribunal was not satisfied there was a real chance that the Applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future. Nor was the Tribunal satisfied there were any substantial grounds for believing that as a necessary and foreseeable consequence of his being removed to China there was a real risk that the Applicant would suffer significant harm as defined in s.36(2A) of the Migration Act.

17. The Tribunal concluded that it was not satisfied the Applicant was a person to whom Australia had protection obligations under the Refugees Convention or who met the complementary protection criterion. 

18. The Applicant sought review of the Tribunal decision by application filed in this Court on 2 April 2013.  There are two grounds in the application.  The Applicant did not file an amended application or written submissions.  He had the opportunity today to make oral submissions. 

19. The first ground in the application is as follows:

    In China countryside, our peasant’s family must have a son to rely on when parents are getting old.  So, my wife and me do want to have a son.  When my wife became pregnant and the Doctor told us it was a boy, all our family members were extremely happy.  But, my wife was taken for forced abortion.  The local authorities forced me to hospital for surgery sterilization.  It was lucky that I ran away to Beijing.  Then, I arrived in Australia.

20. As submitted for the First Respondent, in this ground the Applicant merely reiterates his claims for protection.  Merits review is not available in this Court and this ground does no more than seek impermissible merits review.  It does not establish jurisdictional error. 

21. The second ground is that:

    The Refugee Review Tribunal member didn’t know the Chinese real conditions, so made mistake while he made his decision of refusing my application for protection visa.

22. Insofar as the Applicant again seeks merits review, as indicated, merits review is not available in this Court.  The Applicant has not particularised the manner in which the Tribunal was said to have made a mistake in relation to Chinese conditions.  The choice and weight to be given to items of independent country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). The Tribunal relevantly had regard to independent country information in relation to family planning laws, abortions and sterilisation practices in China. The Applicant failed before the Tribunal in essence because the Tribunal made adverse credibility findings. Such findings were open to it on the material before it for the reasons which it gave. No jurisdictional error is apparent in this respect. Nor has it been established that there was any jurisdictional error in the Tribunal’s consideration of the future based on the findings that it had made about the claimed past events in China. No jurisdictional error is established on the basis contended for in ground 2 of the application.

23. Furthermore, as contended for the First Respondent, it has not been established that the Tribunal fell into jurisdictional error in any other manner in its decision or procedures.  Relevantly, there is nothing in the material before the Court to suggest that the Tribunal failed to comply with its procedural fairness obligations under Division 4 of Part 7 of the Act.  The Tribunal properly invited the Applicant to a hearing.  It is apparent from the Tribunal’s account of the hearing that it raised dispositive issues with the Applicant at the hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63).

24. Moreover, the Tribunal’s account of the hearing indicates that it put information within s.424A(1) of the Act to the Applicant in accordance with the requirements of s.424AA of the Act bringing into play s.424A(2A) of the Act and relieving the Tribunal of the obligation to give particulars of information in writing in accordance with the requirements of ss.424A and 424B of the Act.

25. In that respect I note that the letter the Tribunal wrote to the Applicant after the hearing was not and did not purport to be a letter under s.424A of the Act (which would, of course, have to give the prescribed time under the Act which by virtue of reg.4.35 of the Migration Regulations 1994 (Cth) would be 14 days after the day on which the invitation was received). Rather, this was, as the Tribunal indicated at the hearing and in the heading to the letter, merely providing the Applicant with a more fulsome opportunity to understand and take time to respond to the issues raised in accordance with s.424AA of the Act in the course of the hearing. The Applicant sought, and was given, a week to respond in writing after the hearing. He did so and the Tribunal had regard to his response in its findings and reasons. There is nothing in the material before the Court to establish any failure by the Tribunal to comply with s.424A(1) of the Act.

26. As indicated, the Tribunal’s findings, including in relation to credibility, were open to it for the reasons which it gave on the material before it.  Furthermore, in circumstances where the Applicant relied solely on his Convention-related claims and such claims were rejected in their entirety on the basis of an adverse credibility finding, the very brief findings in relation to complementary protection are not indicative of jurisdictional error.

27. As no jurisdictional error has been established the application must be dismissed.

    RECORDED  :  NOT TRANSCRIBED

28. The Applicant has been unsuccessful.  It is appropriate that he meet the costs of the First Respondent.  He had no submissions to make in relation to the application for costs.  I am satisfied that it is appropriate to make the order sought by the First Respondent. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  25 September 2013