SZTBI v Minister for Immigration

[2013] FCCA 1646

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1646

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

Applicant: SZTBI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1614 of 2013

Judgment of: Judge Driver

Hearing date: 17 October 2013

Delivered at: Sydney

Delivered on: 17 October 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms N Johnson

Sparke Helmore

INTERLOCUTORY ORDERS

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

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1614 of 2013

SZTBI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 24 June 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant the protection visa.  The applicant is from China.  He applied to the Minister’s Department for the visa on 28 September 2012.  He claimed that he would be arrested, imprisoned and subject to serious harm if he returns to China because he borrowed money from a relative of a Public Security Bureau official.  The applicant claimed that the lender insisted that he pay 50 per cent interest when he sought to repay the loan early, although they had agreed on an interest rate of 10 per cent.  The applicant claimed that the lender was now trying to find him to recover the money he asserted was still owed. 

2. The applicant’s claims were rejected by the delegate and the applicant sought review by the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing, which he attended on 6 June 2013.  It is apparent from the Tribunal’s record of that hearing that the Tribunal had serious credibility concerns about the applicant’s claims.  The applicant had travelled to Australia on a student visa to study.  He ceased studying allegedly because of his fears about the so-called loan shark. 

3. However, the Tribunal noted that there had been a significant delay in the applicant applying for protection.  It appears that the immediate stimulus for the protection application was the cancellation of the applicant’s student visa.  The Tribunal suggested to the applicant that his dispute with the loan shark was a private matter without any connection to the Refugees Convention.  The Tribunal also indicated to the applicant that it had difficulty accepting that his assertions regarding the alleged loan and the consequences of non-payment of it in full were true.  The Tribunal found that there was no Convention nexus with the harm feared by the applicant.  When it turned to consider the applicant’s claims by reference to the complementary protection criterion, the Tribunal found after a detailed consideration of the claims that they were not true.  Accordingly, the Tribunal concluded that Australia has no protection obligations to the applicant. 

4. These proceedings began with a show cause application filed on 16 July 2013.  There are three grounds in that application:

   1. The Tribunal failed to consider my application according to s.36(2)(aa) of the Migration Act. I have provided substantial arguments to prove I could face serious harm if I go back to China. The Tribunal didn’t properly investigate my claims.

   2. The Tribunal’s reasoning in rejecting my claims was not logical and consistent.  I was denied procedural fairness.

   3. The Tribunal failed to take into account relevant considerations in reaching its decision.  Again I was denied procedural fairness.

5. The applicant also relies upon an affidavit filed with his application.  I received that affidavit as a submission.  In the affidavit, the applicant makes two assertions:

   1. At the Tribunal hearing, I provided a comparison of possible income I could make in Australia to that I made in China to demonstrate that I would not have applied for protection in Australia for any other reason than fearing persecution if I went back to China.  The Tribunal did not take this information into account at all, which is relevant in properly considering my application.

   2. The Tribunal made a lot of unreasonable inferences in reaching its decision, which an objective person would not have made.

6. I have before me as evidence the court book filed on 12 August 2013. 

7. In his oral submissions, the applicant maintained that he would be better off in China than in Australia except for his fear of the loan shark.  In particular, he claimed that he would be significantly better off in China financially.  He claims that he had provided evidence on the truth of that assertion to the Tribunal, but the Tribunal had not had regard to it.  In fact, at [38] of its reasons[1], the Tribunal records that the applicant had raised that issue.  Logically, if the applicant were better off financially in China, one would have thought that he might be able to repay the relatively modest additional amount still demanded by the loan shark.  In any event, on the basis of the Tribunal’s reasoning, the applicant’s claims were untrue and it was not a material consideration whether the applicant would be better off financially in China. 

   [1] Court Book, page 98

8. The applicant also contends that the Tribunal made unreasonable inferences.  It is true that the Tribunal drew adverse conclusions about the applicant’s claims on a basis of reasoning that probably involved drawing inferences.  The Tribunal noted, at [64] of its reasons[2], that findings about plausibility are inherently subjective and should be made cautiously.  The Tribunal conceded that, while each of the individual elements of the applicant’s account might not be a sufficient basis on its own to discount his story as implausible and not credible, the various elements considered together made his account most unsatisfactory. 

   [2] Court Book, page 183

9. In my view, the Tribunal’s conclusion was not only open to it, but correct. I see no arguable case that there was any procedural unfairness. The Tribunal met its obligation under s.425 of the Migration Act 1958 (Cth). In particular, the Tribunal ensured that the applicant understood the essential and significant issues upon which the review would turn.

10. I conclude that the applicant has failed to demonstrate an arguable case of jurisdiction of error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs. The applicant did not wish to be heard on costs. 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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  23 October 2013