SZTEL v Minister for Immigration

[2013] FCCA 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2013

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)
Migration Act 1958 (Cth), ss.424AA, 425

Applicant: SZTEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1871 of 2013

Judgment of: Judge Driver

Hearing date: 27 November 2013

Delivered at: Sydney

Delivered on: 27 November 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Hooper

DLA Piper

INTERLOCUTORY ORDERS

1. The name of the first respondent be 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 1871 of 2013

SZTEL

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 15 July 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 particular, he claimed that his family had been in a decades long dispute with the Chinese authorities, because of a dispute between his father and former Chinese leader Deng Xiaoping. 

2. The applicant claimed that his family home had been demolished.  He also claimed that he and his family had made regular protests about their treatment, which had led to arrest and detention.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  He attended with his migration agent.  At that hearing, the record of which forms attachment 2 to the Tribunal decision, the Tribunal put to the applicant concerns it had about the credibility of his claims.

3. Central to those concerns were perceived inconsistencies in the applicant’s evidence at various stages. The Tribunal put to the applicant, purportedly pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act), inconsistencies between his evidence before the Tribunal and oral evidence given to the Minister’s delegate. The applicant, through his agent, responded orally at the hearing, but also sought and was given the opportunity to make written comments. The Tribunal confirmed that invitation to comment in writing by a letter dated 14 June 2013.

4. The applicant’s agent sought an extension of time on the applicant’s behalf, on the basis that he had been hospitalised with suspected heart problems after the Tribunal hearing.  The Tribunal granted that extension of time.  The Tribunal was dissatisfied with the applicant’s explanation for the perceived inconsistencies in his evidence.  It was on the basis of those perceived inconsistencies that the Tribunal found in its decision that the applicant was not credible.  The Tribunal also took into account that the applicant did not seek a protection visa until March 2012, even though he had been in Australia since March 2011.  The Tribunal did not accept that the applicant had made any political protest in the past and did not accept that he would protest in the future.

5. The Tribunal took into account that the applicant was giving his evidence through an interpreter, had poor legal knowledge about Australian law and a poor ability to express himself.  Nevertheless, the Tribunal considered that the applicant had had a fair and sufficient opportunity to present his claims.  The Tribunal accepted that the applicant may not like living in China, and accepted that he and his family may face economic difficulties because of a lack of work.  However, the Tribunal concluded that the applicant did not qualify for a protection visa, either on the basis of refugee claims or complementary protection claims.

6. These proceedings began with a show cause application filed on 9 August 2013.  The applicant was today initially unfamiliar with that application, which was apparently prepared on his behalf by his agent. After inspecting it, however, he adopted it.  There are a number of grounds in that application:

   Order sought by Applicant

   1, I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and current condition and in China and Australia.

   2, RRT did not consider my statement and comments thoroughly given to the questions asked in the hearing and judge my case simply by general information, knowledge, instead of real practice and facts in my particular circumstance.

   3, RRT failed to prudently consider the harm and life challenge upon to me due to the enforcing demolishment of our household property by government, as well as the torture, ill-treatment and threats of police in the course of our petitions and appeals against such injustice, in particular the fact we become homeless in origin.

   4, RRT failed to consider my honest statements, explanation, and numerous evidences available provided in supporting my claim as a whole.

   5, RRT member judges my provision without any investigation, verification or prudent digging insights, subject to false documents depend on relevant country information, and this utmost unfair for me to argue in my case.

   6, RRT member’s impatient attitude in hearing triggered my heart-attack with history due to persecution and harm in origin during and off the hearing and emergency call to the hospital on the hearing date, leaving me in a vulnerable position and limbo.

   The Grounds of the Application are:

   1, I am a Chinese citizen and have faithful and committed Christian faith.  I have been persecuted and threatened by Chinese authority due to forceful demolishment, fallen into homelessness and have a fear of return to origin.  All my family members are adversely affected due to our constant failure of petitions and appeals.

   2, I have been suffered from torture, harm, ill-treatments, and threat due to our constant petitions and appeals against government’s injustice with supporting evidences.

   3, RRT made unfair decision claiming accreditation issue in my statement simply because verbal slight inconsistency found in my interview with department but nevertheless by ignoring my detailed explanation in and off the hearing, especially the documentations provided available.

   4, Tribunal’s over objective in judging the explanation and the response of me at the hearing.

7. The applicant also relies upon the affidavit filed with his application.  I treated that as a submission.  I have before me as evidence the Court book filed on 29 August 2013. 

8. The applicant, in his oral submissions, presented as a rather unusual man.  I struggled at times to make sense of his submissions.  He has the ability to contradict himself within a few words.  I note that at the Tribunal hearing the presiding member, perhaps noting his unusual manner of presentation, queried with the applicant’s agent whether the applicant had any mental problems[1].  The Tribunal’s record does not record any reply.  When I put that to the applicant in oral argument, he assured me that he had no mental problems and that he was extremely calm at the Tribunal hearing.  Very soon afterwards, however, he claimed that he was very agitated at the Tribunal hearing and, indeed, that he suffered a heart attack and was hospitalised on the same day. 

   [1] Court Book (CB) 247 at [46]

9. The applicant told me that he was concerned about the timing of the Tribunal hearing, because it took place at lunchtime.  The court book reveals[2] that the Tribunal hearing commenced at 11.35am and ran until 12.34pm, then resumed at 12.53pm and concluded at 1.16pm. The applicant made a submission on blood sugar levels and suggested that he was disadvantaged by not having lunch at that time. At the Tribunal hearing, the applicant’s agent reported that the applicant had had little sleep before the hearing and was stressed. I find that there is nothing in the evidence before me to support the proposition that the hearing opportunity afforded the applicant was inadequate for the purposes of s.425 of the Migration Act.

   [2] at page 177

10. The grounds advanced on behalf of the applicant in the judicial review application begin with a claim relating to his religion.  The applicant assured me that he made no claim for protection based upon his Christian faith, and that is consistent with the documentary record.  He only advanced the issue of his faith at the Tribunal hearing in order to present himself as a truthful witness.  As I put to the applicant, no religious faith can provide any guarantee of truthfulness. 

11. I suggested to the applicant that his unusual manner might be indicative of some defensiveness on his part.  He agreed.  It is possible that his manner reflects a mistrust of authority.  That is plausible.  I do not rule out the possibility that some significant issue has been passed over lightly because of the inadequate way it has been presented.  However, if the Tribunal’s decision is a valid one, only the Minister can change it.  The applicant told me that he was concerned with the outcome before the Tribunal, rather than the process.  However, his complaints during the course of oral submissions all go to issues of process.

12. In his concluding remarks, the applicant asserted that the presiding Member was, in his words, “famous”.  I understand that he had spoken to other protection visa applicants who have also had their claims rejected by the same member.  It must be expected that, where large numbers of claims are made by a single national or ethnic group, many people will have similar experiences.  I see no particular significance in that. 

13. The applicant complains that the presiding member did not give him an adequate time to put his claims at the hearing.  There is, however, no record of any contemporaneous complaint.  The applicant, through his agent, also had the opportunity to provide additional comments after the hearing. 

14. On the basis of the grounds of review advanced and on the basis of my own perusal of the material, I see no arguable case of jurisdictional error.  The applicant is plainly disturbed by the fact that his claims were not believed.  He also told me today that his mother died in September and that his father is seriously ill with heart problems.  He claims that he will have nowhere to live if he returns to China.  Those are matters that might warrant compassionate consideration.  They are, however, beyond the scope of this proceeding. 

15. I will 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).

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The applicant asserted inability to pay, but that is not a reason for the Court to refrain from making a costs order.  The applicant further stated that he would require time to pay.  I will not require payment of the costs within any particular time. 

17. 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 3 December 2013