SZSTN v Minister for Immigration
[2013] FCCA 1682
•1 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSTN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1682 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Minister for Immigration & Multicultural Affairs; Ex parte, Durairajasingham (2001) 68 ALR 407 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZSTN |
| First Respondent | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 785 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 1 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration and Border Protection’.
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 785 of 2013
| SZSTN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 20 March 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of the People’s Republic of China, arrived in Australia in February 2011 as the holder of a student visa. He applied for a protection visa in February 2012. He provided a statement in support of his claim. His application was refused, and he sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
In essence, the Applicant claimed that he had suspicions that his supervisor at his workplace and relatives of his supervisor had formed a criminal group, had embezzled money through the business and were corrupt. He claimed that he had a strong and deep hatred against corrupt officials which went back to the treatment of his father during the Cultural Revolution and that after he discovered a particular embezzlement, during the summer of 2010, on 5 December 2010 he prepared a letter to report this embezzlement. He claimed that he mailed this letter to the City Letter and Petition Office.
The Applicant claimed that on 25 December 2010 his supervisor informed him that the City Letter and Petition Office had sent them a copy of his letter reporting the claimed embezzlement, that a thorough investigation had been conducted, but that they found that his suspicions were unsupported by evidence. He claimed that he was told that any further problems should be directed to the local level. The Applicant claimed that this suggested that the leaders in the city had been bribed. He decided it was necessary to take any complaint to the provincial city. He claimed he wrote another letter to report this problem to the city Letter and Petition Office and decided to deliver it personally.
He claimed that on 29 December 2010, while on his way to the city on his motorbike, he was knocked down by a van and kidnapped. He provided a word for word account of what he said he heard his kidnappers say to each other while he had his head covered and pretended to be unconscious. He claimed that he overheard his kidnappers reveal their names, how much they had been paid and by whom, the purpose of the abduction and the instructions they were to give the Applicant. He claimed the kidnappers then uncovered his head and told him he had to go far away to avoid harm or his family would not be able to recover the body and, in effect, that they had been employed by people who were aware that he was submitting letters of complaint.
The Applicant claimed he was then released near his home. He decided that it was necessary to leave China. He claimed he left his home on 1 January 2011, travelled to a friend’s residence and was assisted to travel to Australia.
The Applicant claimed that if he returned to China he would be harmed or killed by criminals employed by the corrupt managers at his workplace and that the authorities would not protect him.
In its reasons for decision the Tribunal set out in some detail the claims raised and issues discussed at the Tribunal hearing, including that the fact that it brought to the Applicant’s attention that his credibility would be in issue and that it raised issues of concern with him in relation to various aspects of his claims.
In its findings and reasons the Tribunal did not accept that the Applicant was a credible witness. It had regard to the fact that he had given conflicting and contradictory evidence regarding his reasons for leaving and when he left China. In particular initially he said he left because he had been threatened in December 2010, whereas his passport was issued in September 2010. The Tribunal also had regard to the fact that the Applicant had provided new evidence regarding how many days he had been followed by the criminals, when he had been abused, how often, and when he started to be abused. In light of the other credibility issues, the Tribunal found that the late addition of this evidence led to the conclusion that the Applicant had not provided full, frank and honest evidence to it.
The Tribunal found that the Applicant did not make a report to the local authorities regarding embezzlement. It had regard to the lack of detail the Applicant was able to provide, including in relation to the evidence he relied on, what he hoped to achieve in making such complaint and what precautions he took in making a complaint. It found that such evidence as the Applicant had provided was very limited and only provided after prompting from the Tribunal at the hearing. The Tribunal’s account of the hearing is consistent with this finding. The Tribunal found that if these events had actually occurred, it would be reasonable to expect that the Applicant would be able to provide detailed evidence without prompting.
The Tribunal referred to the Applicant’s general manner during the hearing, observing that there were noticeable delays in answering even basic questions at stages. The Tribunal was of the view that the Applicant’s manner did not reflect that he was providing open and honest evidence.
The Tribunal addressed the new evidence that the Applicant had been followed for several days prior to his attempt to ride to the provincial city to make a report. It observed that such a claim had not been mentioned in his detailed written statement in support of his protection visa application, which referred to him being knocked off his bike and kidnapped in the short term. The Tribunal found there was an inconsistency between aspects of the Applicant’s claims in relation to this event and that the account in writing did not correlate with his evidence at the hearing that he had been followed for several days, was aware he was being followed and decided to make a complaint despite this.
The Tribunal found overall that the Applicant lacked any credibility and had fabricated his claims to apply for a protection visa. It dismissed all his claims and found that he was not being honest in making any protection claims, including that he became aware of embezzlement and corruption at work; that he obtained evidence and reported to higher authorities; that he had been informed at his workplace that his complaint had been investigated and that his suspicions were not supported by evidence; that he had been isolated and threatened at work; that he feared persecution arising from his strong and deep hatred against corrupt officials; that he had been kidnapped, threatened and released; or that he feared being killed by people associated with criminals on account of his reports of embezzlement and corruption.
In addition, based on the Applicant’s lack of credibility, the Tribunal rejected his claims that his father had previously been persecuted for having reported dubious accounting practices; that the police could not be relied upon to provide protection; that he had arranged his visa to come to Australia through unofficial channels on account of corruption; or that his family had been threatened.
The Tribunal concluded that there was no evidence to find that there was a real chance the Applicant would suffer serious harm or persecution for a Convention reason in the reasonably foreseeable future if he were to return to China and that he did not have a well-founded fear of persecution for a Convention reason.
The Tribunal also considered the complementary protection criterion. It referred to the fact that it had found that the Applicant was not credible and had dismissed all of his claims regarding alleged serious harm, persecution or significant harm. It accepted that he was a Chinese male who had a passport issued in September 2010, that he had not travelled overseas before, that he left China through legal channels on a genuine passport, that he was married with one son and had lived at the same address since 1995. On the basis of this evidence the Tribunal found there were no substantial grounds for believing there was a real risk the Applicant would suffer significant harm if removed to China and that he did not meet the complementary protection criterion.
The Tribunal affirmed the decision not to grant the applicant a protection visa.
The Applicant sought review by application filed in this Court on 16 April 2013. There are two grounds in the application. The Applicant did not file written submissions or any further evidence. He was given the opportunity to make oral submissions today.
The first ground in the application repeats the Applicant’s claims that after he reported the head of the purchasing section of his employer to the authorities he was kidnapped, persecuted and threatened and therefore had to leave China.
In oral submissions the Applicant took issue with the fact that the Tribunal had not believed his claims and reiterated that his claims were truthful. However, as I endeavoured to explain to the Applicant, merits review is not available in this Court. The Applicant’s repetition of his claims for protection seeks impermissible merits review. Insofar as the Applicant disagreed with the Tribunal’s findings, that does not establish jurisdictional error. It was open to the Tribunal, as the decision-maker, to make credibility findings in relation to the applicant’s claims (see Re Minister for Immigration & Multicultural Affairs; Ex parte, Durairajasingham (2001) 68 ALR 407 at [67] per McHugh J). Its findings in that respect were open to it on the material before it for the reasons which it gave.
I note in that respect that while the Tribunal referred to the demeanour of the Applicant during the hearing, it did not rely solely on such matters, but rather had regard to conflicting and contradictory evidence and the provision of new and inconsistent evidence by the Applicant. The Applicant’s concerns in this respect do not establish jurisdictional error. Ground 1 is not made out.
Ground 2 is that the Tribunal member did not consider the Applicant’s “true experience” according to s.91R of the Migration Act 1958 (Cth) (the Act), because the Tribunal member had bias against him.
As indicated, the Tribunal’s credibility findings were open to it for the reasons which it gave on the material before it. It is well-established that an allegation of bias is a serious allegation which must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28). In this case, the Applicant’s claim of bias is unparticularised. When invited to elaborate in oral submissions, the Applicant expressed concern that the Tribunal did not believe that what happened to him was the truth. He then said that when the Tribunal member asked him questions, she led him to the wrong direction. When asked what he meant by this, he referred to the Tribunal decision and claimed that the Tribunal member did not believe that what he had explained was true and therefore found all of these reasons to oppose his experiences.
First, insofar as this may be seen as taking issue with the conduct of the Tribunal hearing, there is nothing in the Tribunal’s account of the hearing to support any claim of either actual or apprehended bias seen from the perspective of the appropriately informed, reasonable, lay observer. Rather, it appears from that account that the Tribunal properly raised with the Applicant dispositive issues in accordance with s.425 of the Act, put to him issues of concern and gave him the opportunity to comment. The Tribunal’s account of the Tribunal hearing, considered with the other material before the Court, is not indicative of actual or apprehended bias.
It is a rare case in which an allegation of bias can be made out on the decision record alone. This is not such a case. Bias is not made out because the Tribunal did not accept the Applicant’s claims to fear persecutory harm (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). The Tribunal’s reasoning is not such as to raise any concern of apprehended bias.
Finally, I note that the Tribunal considered not only the Refugees Convention, but also the issue of complementary protection. While its findings in that respect were brief, they were open to it in circumstances where the Applicant did not advance discrete complementary protection claims and relied on his Convention-related claims which were not accepted to be true.
Ground 2 is not made out.
As neither ground relied on by the Applicant has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $4,000. In response, the Applicant raised his personal and family circumstances and reiterated that if he was not facing danger he would have returned to China after the death of his father. However such claims are not reasons for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent. The amount sought is considerably less than the amount provided for in the Schedule to the Federal Circuit Court Rules. It is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 22 October 2013
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