SZSWT v Minister for Immigration

[2014] FCCA 848

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 848

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZSWT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1156 of 2013

Judgment of: Judge Driver

Hearing date: 28 April 2014

Delivered at: Sydney

Delivered on: 28 April 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R Baird

Clayton Utz

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application as amended on 22 July 2013 be dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1156 of 2013

SZSWT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a judicial review application, seeking review of a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 1 May 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution in that country. The following statement of background facts relating to the applicant’s claims, and the decision of the Tribunal on them, is derived from written submissions filed on behalf of the Minister on 22 August 2013. 

2. The applicant is a citizen of the People's Republic of China and arrived in Australia on 6 August 2001 on a student visa.[1]

   [1] Court Book (CB) at 13. Records held by the Department of Immigration and Citizenship show that between August 2001 - September 2009 the applicant held a number of student visas.  On 27 November 2009, the applicant's application for a further student visa was refused by a delegate of the Minister. On 8 April 2011, the Migration Review Tribunal affirmed the delegate's refusal.  On 19 August 2011 the Federal Magistrates Court dismissed the applicant's application for judicial review of the delegate's decision. On 6 September 2011, the applicant filed in the Federal Court a notice of appeal against the decision of the then Federal Magistrates Court. On 9 November 2011, Collier J dismissed that application with costs.

3. On 29 November 2011, the applicant applied for a protection (Class XA) visa.[2]

   [2] CB 1-27.

4. On 16 April 2012, a delegate of the Minister refused the protection visa application, finding that the applicant was not a person to whom Australia had protection obligations.[3]

   [3] CB 28-45.

5. On 14 May 2012, the applicant applied to the Tribunal for review of the delegate's decision.[4]

   [4] CB 46-51.

6. On 8 October 2012, the applicant attended a Tribunal hearing to give evidence and present arguments.

7. By way of letters dated 10 November 2012 and 12 November 2012, the applicant's migration agent provided to the Tribunal six documents in support of his protection claims. The substance of these documents is set out at [15] of the Tribunal's decision record.

8. On 2 May 2013, the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa.[5]

   [5] CB 118-131.

Applicant's protection claims

1. The applicant claims to fear persecution in China on the grounds of imputed political opinion. The applicant's claims were made in his written statement attached to the protection visa application[6], oral evidence given at the delegate interview and Tribunal hearing, and the six documents provided to the Tribunal by the applicant's migration agent following the Tribunal hearing.[7]

   [6] CB 27.

   [7] CB 96-117.

2. In his evidence before the Tribunal, the applicant asserted that between 2007 and 2009 he was one of a number of contributors of reference material to a Chinese military magazine named “Der Sturm” (magazine), edited by his friend. In his capacity as a contributor to the magazine, the applicant would photocopy pages of books and other documents relating to the subject matter of China's military involvement in World Wars I, II and the Korean and Vietnam conflicts, and send them to the magazine under his username “Chinese Fox”. He never wrote for the magazine, and his name did not appear in the publication.

3. In 2010, the applicant was informed that the editor of the magazine, and one of the magazines contributors, had been arrested on suspicion of providing anti-governmental material, including information in respect of the Chinese civil war that conflicted with official Chinese history. During the conduct of the investigation, government authorities searched the magazine's business premises. In May 2012, the applicant was informed from a member on a hobby website for military enthusiasts in which he is involved, that one of the two were sentenced to four years imprisonment.

4. In June 2011 and January 2012, government authorities visited his parent's homes in China. The authorities did so under the pretext of the “national census”, although the census was officially completed in or around May 2011. In October 2011, one of the applicant's friends, who also contributed material to the magazine, was questioned by police. In the course of questioning the police produced materials on which was marked the applicant's contact details in Australia.

5. The applicant first began to fear persecution in China, in late 2011, after the authorities had visited his mother's house, and his friend had been questioned. The government is aware of the applicant's involvement with the magazine because his personal information was attached to materials seized by the authorities when they searched the magazine's premises, and because of a number of “posts” he has made on the hobby website.

6. The applicant does not see any benefit to him staying in Australia, as he has a girlfriend in China and stands to inherit his father's family business in China. He fears, however, that when he returns to China he will be considered to have provided sensitive and anti-government material to the magazine, and will be imprisoned.

Tribunal's findings and reasons

1. The Tribunal affirmed the decision of the delegate. The Tribunal’s decision record begins at CB 123, and its findings are set out at CB 129 to 131.

2. The Tribunal found that the Chinese authorities have not imputed to the applicant a political opinion against the government.[8] The Tribunal concluded that the information the applicant claimed to have provided to the magazine was “too anodyne, non-political and uncontroversial” to conceivably attract the adverse interest of Chinese authorities.[9] The Tribunal did not accept that the government authorities had an interest in the applicant when members of the magazine were being investigated, arrested and imprisoned in 2010 until 2012, or that he had subsequently assumed a political profile that would attract adverse attention from the Chinese authorities for some other reason.[10]

   [8] CB 130; Tribunal Decision Record (DR) at 30.

   [9] CB 130; DR at [27].

   [10] CB 130; DR [29]-[30].

3. For the foregoing reasons, the Tribunal found that the applicant's claim to fear harm in China by reason of an imputed political opinion, was not well-founded, and that the chances of him being harmed in China were so remote as to be “insubstantial and farfetched”.[11]  Having found that the applicant's fear of harm in China was not well-founded, the Tribunal could not be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that the applicant would suffer significant harm. [12]

   [11] CB 130; DR at 31.

   [12] CB 131; DR at [33].

4. In view of these findings, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Act. The Tribunal affirmed the delegate's decision accordingly.

The present application

1. These proceedings started with a show cause application filed on 27 May 2013. The matter came before me for first court date directions on 18 June 2013. At that time, I made orders for the filing of additional material and listed the matter for a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) on 2 September 2013.

2. That hearing took place at the scheduled time and the applicant was represented by counsel.  Counsel had prepared an amended application, which was filed on 22 July 2013.  The applicant continues to rely upon that application.  There is one ground in that amended application:

   The decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error in that the Tribunal constructively failed to exercise its jurisdiction when it failed to consider material sent to the Tribunal following the Tribunal hearing and prior to the Tribunal decision which comprised an integer of the applicant’s claims for protection.

   Particulars

   a. The material was the cover and two pages of “The Black Bats – Spy Flights over China from Taiwan: 1951-1969” by Chris Pocock, Schiffer [Publishing]: 2010.

   b. The two pages referred specifically to the uprising in Tibet and the southwest provinces and exhorted others to follow the example of the Tibetan people and not be slaves.

   c. The applicant claimed to the delegate that the sent material to China from this book, but did not specifically refer to Tibet.  The delegate mistakenly referred to the CIA unit as “the Fat Bats” at CB 42.3.

3. Counsel had also prepared submissions in support of the amended application, which asserted jurisdictional error in that the Tribunal had overlooked probative material which was annexed to an affidavit made by the applicant on 30 August 2013. I received that affidavit as evidence. Attached to that affidavit are colour copies of material allegedly provided to the Tribunal and related documents. The material relates to spy flights over China conducted from Taiwan, and includes material that might be described as pro-nationalist or anti-communist propaganda. It appeared to me at the time of the show cause hearing that there was an arguable case that the Tribunal had fallen into jurisdictional error by overlooking that material. I accordingly ordered the Minister, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules, to show cause why relief should not be granted in relation to the ground in the amended application.

4. Prior to today’s final hearing, the Minister filed an affidavit by Michael Anthony Lozinski, Registry Manager of the Tribunal in Sydney.  Mr Lozinski deposes as to the Tribunal’s system for the receipt of material and the maintenance of paper files.  He deposes that he has inspected the Tribunal’s file for the applicant’s case, and the file does not contain the documents annexed to the applicant’s affidavit, which are reproduced in black and white as annexures to Mr Lozinski’s affidavit.  I received that affidavit as evidence.  I also had before me as evidence the court book filed on 28 June 2013. 

5. In the circumstances, the Minister submits that the applicant’s case fails at a factual level.  In the absence of evidence of receipt of the material by the Tribunal, or evidence which might support a positive inference of receipt, the Minister submits that the application must fail. 

6. The applicant made oral submissions from the bar table.  He is now self-represented.  He told me that he had made enquiries of his former migration agent, Mr Nan Cao, who had represented him before the Tribunal.  The applicant told me from the bar table that Mr Cao had searched for the relevant material and evidence of its being sent to the Tribunal, but had not been able to find it.  I have no reason to disbelieve what the applicant told me.

7. In the circumstances, I agree with the Minister that I should draw the inference both that Mr Cao, who did not give evidence in these proceedings, could not have given evidence that would assist the applicant, and that, further, it is more likely than not that the material in issue never reached the Tribunal.  The applicant says that he gave the material to his migration agent, and there is no reason to disbelieve him.  There is, however, no evidence that the agent sent the material on to the Tribunal, and there is positive evidence from Mr Lozinski of the Tribunal’s non-receipt of it.  The applicant expressly disavowed any suggestion that Mr Cao intentionally withheld the material from the Tribunal.  It appears to be a simple case of oversight by him.

8. I conclude that the material in issue was not received by the Tribunal, and it must follow that the Tribunal did not commit any legal error in failing to take the material into account. 

9. I will accordingly order that the application, as amended on 22 July 2013, be dismissed.

10. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant referred to financial difficulties, but those difficulties are not a reason for the Court to refrain from making a costs order.

11. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 April 2014