SZTHU v Minister for Immigration

[2015] FCCA 2925

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2925

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether it was reasonably open to the Tribunal not to accept as genuine documents provided in support of application for protection – whether the Tribunal acted unreasonably in not agreeing to provide the applicants further time to obtain information in support of their claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 424AA(1)(b)(iii), 424A(2A)

Minister for Immigration and Citizenship v Li [2013] HCA 18

First Applicant: SZTHU

Second Applicant: SZTHV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2539 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 September 2015

Date of Last Submission: 22 September 2015

Delivered at: Sydney

Delivered on: 30 October 2015

REPRESENTATION

Applicants in person assisted by an interpreter.

Solicitors for the Respondents: Ms H R Musgrove of
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2539 of 2014

SZTHU

First Applicant

SZTHV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, husband and wife, are citizens of the People’s Republic of China (China). They seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) refusing to grant the applicants Protection visas.

Claims for protection

1. The applicants’ claims for protection are contained in a statement accompanying the applicants’ application for Protection visas.[1]  They claimed they left China because of “persecution by the underground force supported by CCP officials”. In July 2009, the applicants opened a hostel (hotel) in a particular city on a street called Dongcheng South Street. The hotel’s name was “Xingxin”. The hotel was popular and busy, and had a lot of regular customers. In support of their claim, the applicants provided to the delegate a number of documents, these being documents titled  “Business Licence for Private Business”, “Certificate for Health and Hygiene”, “License for Special Business”, “Property Title Certificate of the People’s Republic of China”, and “Tax Registration Certificate”.

   [1] CB37-41

2. The applicants further claimed that on 1 November 2011, the first applicant received a telephone call from the city demolition and relocation office requesting he visit the office at 2.00pm that day to see the office chief. The first applicant attended the office and was informed by the office chief that the applicants’ family hotel was to be relocated to create opportunities for businessmen from other places to do business in that city, and that the applicants would be offered compensation and vacant land to build a new hotel. The next morning, a local company authorised to handle the matter, came to the applicants’ hotel and invited the first applicant to attend the company’s place of business. The first applicant attended and met with the General Manager. The General Manager told the first applicant the applicants would receive land and compensation, but the government asked the company to use its own funds to pay the compensation. The General Manager informed the applicant a quarter of the compensation would be paid first and then, once a loan was secured, the applicants would be paid the balance.

3. The first applicant refused the offer. The next day the first applicant was picked up and driven to the company’s place of business. The first applicant, again, told the General Manager he would not relocate his business if he was not paid the whole amount of the compensation. The first applicant was then taken home by the persons who had driven him to the company’s place of business. They threatened the first applicant and told him to “[j]ust take whatever you are given. Otherwise, you might end with nothing or even worse – the ruin of your family”. The applicants then decided to seek asylum in Australia.

First Tribunal hearing

1. After the delegate did not accept their claims, the applicants applied to the Tribunal for review. On 24 August 2012 the applicants appeared before a differently constituted Tribunal (First Tribunal) to that from which the present application for judicial review has been brought. At that hearing, the first applicant confirmed the Chinese characters the applicants claimed described the Xingxin Hotel.[2] The first applicant also said that the address of the hotel was 012 Dongchengnan Street and that there were no other hotels on that street. The First Tribunal, however, noted that only two of the five business documents the applicant provided to the delegate specified “012 Dongchengnan Street” as the address of the hotel the applicants claimed they operated. One of the documents recorded the address as “Dogchengnan Street”, another as “Dongcheng Street”, and another as “Siming Street”. In relation to the “Tax Registration Certificate”, being the document that specified “Siming Street” as the address, the first applicant informed the First Tribunal that that was the address from where his son was selling alcohol. The First Tribunal noted, however, that the “Tax Registration Certificate” described the business to which it purported to relate as “Accommodation Provider”.[3]

   [2] Both the First and Second Tribunals spell the hotel name as “Xinxing”.

   [3] CB120, [20]

2. The First Tribunal put to the first applicant it conducted an enterprise search on the Industry and Commerce Administration Bureau website ( (Bureau) using the business registration number on the business licence the first applicant provided to the delegate, but the search result showed no business registered with that number. The First Tribunal also put to the first applicant that it had searched using the name Xingxin hotel but again resulted in no business by that name.[4] The First Tribunal also put to the applicant it had conducted a search for Xingxin hotel in his home city on the Chinese search engine website baidu.com in Chinese which returned no results. It also put it to the first applicant that it conducted a search on the associated website map.baidu.com in Chinese for hotels on Dongchengnan Street. That showed five hotels on that street. Four of the hotels did not have the name Xingxin hotel. One had the name of Xingxin hotel, but had different Chinese characters to the Chinese characters that the first applicant said were the characters naming the Xingxin hotel.[5] The First Tribunal also conducted a search on map.baidu.com in Chinese for hotels on Siming Street. It found one hotel located on that street called Xingxin hotel but again with different Chinese characters.[6]

   [4] CB120, [21]

   [5] CB120, [22]

   [6] CB120, [23]

3. On 6 September 2012, after the hearing before the First Tribunal, the applicants provided to the First Tribunal a hardcopy and English translation of a new typeset business licence for private business naming the first applicant as the proprietor of Xingxin hotel issued from 30 August 2011 to 31 December 2011. In an accompanying letter, the first applicant stated he had forgotten to renew his business licence during the period in which the hotel was being demolished, and that was the reason the First Tribunal was unable to find any record of his hotel on the Bureau website.[7]

   [7] CB121, [26]

4. On 26 August 2013 the First Tribunal found the first applicant fabricated his claims, and that he was not a credible witness.[8] One of the grounds on which the First Tribunal relied for not accepting the applicant as a credible witness were findings it made in relation to the business documents the applicants provided to the First Tribunal in support of their claims.

   [8] CB121-122, [29]-[30]

5. This Court set aside the First Tribunal’s decision by consent on the basis that s.424AA(1)(b)(iii) of the Migration Act 1958 (Cth) (Act) had not been complied with because the First Tribunal failed to advise the first applicant that he could seek additional time to respond to adverse information put to him.

6. On 6 August 2014, the applicants appeared before a differently constituted Tribunal (Second Tribunal), the subject of this review, to give evidence and present arguments.

Second Tribunal hearing

1. At the hearing before the Second Tribunal, the first applicant produced a booklet which he stated was the original registration certificate of the hotel. The Tribunal noted the same document had been produced to the previous Tribunal and was found to be fake. The Second Tribunal put to the first applicant, purportedly pursuant to s.424AA of the Act the same matters the First Tribunal had put to the first applicant, namely, that there was no business registered with that number; that there was no business registered with that name; that there were in fact five hotels (none in the same name) on the street identified by the first applicant as not having any other hotel, and only having a dumpling house; that the hotel on the other street contained in the first applicant’s documents was not spelled the same; that independent information stated that fake and fraudulently obtained documents are widespread; and that the first applicant agreed he had provided false information in support of his previous visitor visa applications.[9]

   [9] CB112, [8] n1

2. The Second Tribunal asked the first applicant whether he required further time to respond to these matters. The first applicant said he did. He said the Second Tribunal could call the telephone inquiry number for the Bureau to confirm the details of his hotel. The Second Tribunal noted that the hotel details he had previously provided had been investigated by the First Tribunal and none of it could be confirmed. The Second Tribunal asked why it should undertake further investigations of the same details. The first applicant said there were “bar codes” which the Second Tribunal could check with the Bureau. The Second Tribunal noted there were no “bar codes” on any of the documents the applicants provided to the Tribunal. The first applicant said he required more time to obtain “bar codes” to verify the hotel details.[10] The first applicant said he had not provided further information because his father had passed away and he had not had time to do so. The Tribunal declined to give the first applicant further time to obtain further information because the applicant “had had ample time and opportunity to do so, he had been reminded of the desirability of doing so, and his previous experience with the Tribunal would be sufficient to impress on him that his credibility and the genuineness of any documents on which he wished to rely was very much at issue”.[11]

   [10] CB112, [8]

   [11] CB113, [9], [10]

3. The Second Tribunal also invited the second applicant to give evidence. She submitted that the documents the applicants provided were genuine, that they needed further time to get the “bar codes”, and that the Second Tribunal must telephone the Bureau inquiry number.[12]

   [12] CB113, [11]

Second Tribunal’s decision

1. The Second Tribunal said it came to the same conclusions on the applicants’ claims as the First Tribunal, for the same reasons and on the same evidence, except it also took into account another version of the business registration licence the applicant provided to it.[13] The Second Tribunal found the explanations provided by the applicants were insufficient to counter the very strong evidence that indicated their documents were fake or fraudulently obtained, and that their claims were fabricated. The Second Tribunal was satisfied that any further investigations by it, based as they would be on the same business details that were investigated by the First Tribunal, would be futile, and it declined to undertake any further investigations or make any further inquiries.[14] The Second Tribunal was also satisfied that the applicants had sufficient time, adequate reminders and compelling notice of the need to obtain any further information on which they sought to rely in support of their protection visa applications.[15]

   [13] CB113, [12]

   [14] CB114, [14]

   [15] CB114, [15]

2. The Second Tribunal’s ultimate conclusions were that:[16]

   a)the applicants provided false or fraudulently obtained documents to support their claims;

   b)the applicants had fabricated their protection claims in their entirety;

   c)the applicants’ claim to fear harm is not genuine;

   d)the applicants have not experienced harm in the past;

   e)there is not basis on which to be satisfied that the applicants face any chance of harm in the future; and

   f)there are no substantial grounds for believing the applicants face a real risk of significant harm in the future and neither applicant is a person to whom Australia owes protection obligations.

   [16] CB114, [16]

Grounds of review

1. The application filed by the applicants in this court contain the following grounds of review:

   The Tribunal committed jurisdictional error in that it substantially failed to comply with Section 424A of the Migration Act (1958).

   In particular:

   1.The tribunal did not specify any clear particulars information in its invitation letter for hearing that the Tribunal considered would be the reason, or part of the reason for affirming the decision that was under review;

   2.It was emphasized that there would be critical documents coming from overseas which can be used as evidence of the genuineness of our claim, however RRT did not treat us with fairness and justice, because the tribunal would not accept that we are true refugees in the first place and would not give us extra time for receiving those documents from overseas.

2. The ground, and the particulars to the ground, were interpreted to the applicants who appeared at the hearing before me without legal assistance, and I invited both applicants to make submissions in relation to each of the particulars. In relation to the first particular, the second applicant said she did not know how to respond to that particular, and that she did not know who to trust.[17] The second applicant also said that people her age do not lie, it was all true,[18] and the “RRT didn’t recognise the information from the computer time and time again”.[19] The first applicant said he was not happy with the Second Tribunal’s saying that “even after trying searching with GPS tool we still couldn’t find your hotel”.[20] The first applicant submitted that the Tribunal did not apply a rational standard when deciding whether the documents were genuine.[21]

   [17] T28.35

   [18] T29.1

   [19] T29.15

   [20] T32.20-25

   [21] T33.15-20

3. As to the second particular of the ground stated in the application, the second applicant said that the Second Tribunal should not have made its decision in relation to the genuineness of the applicants’ documents just from information obtained from the Internet.[22] The second applicant said that the Second Tribunal should have given the applicants further time to obtain the bar codes.[23] The first applicant said his complaint was that the Second Tribunal did not give the applicants further time to obtain the bar codes.[24] He also said the Second Tribunal did not accept the telephone number for the Bureau.[25]

   [22] T30.30-35

   [23] T31.1-5

   [24] T34.15-25

   [25] T34.35

The first particular

1. The first particular refers to the Second Tribunal’s invitation letter for hearing. That appears to be a reference to the letter dated 8 July 2014 the Second Tribunal sent to the applicants inviting them to appear before the Second Tribunal to give evidence and present arguments relating to the issues arising in the applicants’ case.[26] The letter gave details of the time, date, and place of the hearing. The first particular claims that the letter itself should have included, but failed to include, clear particulars of the information the Second Tribunal considered would be the reason, or part of the reason for affirming the decision that was under review.

   [26] CB90

2. The Second Tribunal was not obliged to state such particulars in its letter of invitation. Nor did the Second Tribunal come under an obligation to provide to the applicants in writing particulars of the information on which the Second Tribunal relied for not accepting the applicants’ claims. That is so because, as noted by the Second Tribunal,[27] at the hearing, the Second Tribunal provided to the applicants particulars of such information and explained to the applicants the relevance of the information to the review and the consequences of the information being relied on in affirming the decision under review.[28] The particular, therefore, is not made out.

   [27] CB112, [8] n1

   [28] See s.424A(2A) of the Act.

3. The submissions the applicants made at the hearing before me after the first particular was interpreted did not address the particular. The second applicant submitted the Second Tribunal acted irrationally by accepting as genuine the documents on which the applicants relied. There is no question in my mind that it was reasonably open to the Second Tribunal not to accept the documents to be genuine for the reasons it gave.

Second Particular

1. The gist of the second particular is that the Second Tribunal made a jurisdictional error by declining to give the applicants further time to obtain further information from overseas. The Second Tribunal was under a duty to act reasonably in considering whether it should have granted the applicants’ request. Whether or not its decision not to give the applicants further time was unreasonable depends on whether the Second Tribunal’s decision can be said to have been based on “an evident and intelligible justification”,[29] and whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[30]

   [29] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76]

   [30] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [105]

2. In my opinion, the Second Tribunal gave an “an evident and intelligible justification” for not providing the applicants further time. The Second Tribunal noted that the applicants had been aware since around 14 April 2014 that their application had been remitted as a result of orders made by this Court; the Second Tribunal’s letter dated 14 April 2014 advised the applicants to provide to it any further information on which they intended to rely as soon as possible; and the applicants had been invited by letter dated 8 July 2014 to appear before the Second Tribunal on 6 August 2014.[31] The Second Tribunal informed the first applicant that it:[32]

   [D]eclined to give him further time to obtain further information because he had had ample time and opportunity to do so, he had been reminded of the desirability of doing so, and his previous experience with the Tribunal would be sufficient to impress on him that his credibility and the genuineness of any documents on which he wished to rely was very much at issue.

   [31] CB112, [9]

   [32] CB113, [10]

3. In my opinion, the Second Tribunal’s decision was one that fell within a range of possible, acceptable outcomes.

4. In my opinion, the second particular of the ground set out in the application is not made out.

Other matters

1. At the commencement of the hearing before me, the first applicant sought to tender what he claimed to be photographs of the hotel the applicants operated in China (tendered photographs).[33] It was unclear whether the applicants contended before me that they had provided a copy of the tendered photographs to the Tribunal. To determine that question, I invited both applicants to give evidence about the tendered photographs, which they did.

   [33] The photographs were marked “MFI 1 Eight Photographs Submitted by Applicants”

1. The second applicant said the tendered photographs were of the hotel; they were taken by the applicants’ son and sent to the applicants in Australia; she does not know when that occurred except that it occurred after the hearing before the First Tribunal; the second applicant had the tendered photographs developed and, once developed, she gave them to her husband, the first applicant, and to an “older brother”.[34] The first applicant said that his son took photographs of the hotel and sent them to a computer; another person obtained the photographs and developed them; they were then given to the applicants; the first applicant then gave the photographs to a migration agent; the migration agent later told the first applicant that he should submit the photographs; the first applicant then submitted the photographs at a building next to St James train station; the first applicant submitted two or three photographs; and the photographs he submitted were not any of the tendered photographs.[35] In cross-examination, it was put to the first respondent that the registry of the Tribunal was located at 83 Clarence Street, not at a building next to St James train station.[36] The first applicant said “it’s not only once I went there to submit documents, I went there twice”.[37]

   [34] T16.35-19.15

   [35] T19.30-T23.40

   [36] T24.45

   [37] T25.1

2. Even if I were to accept the applicants’ evidence, I could not be satisfied that the applicants submitted to the Second Tribunal any of the tendered photographs or a copy of the photographs they sought to tender at the hearing before me. At most, their evidence, if accepted, indicates that the first applicant submitted two or three photographs, not being a copy of any of the tendered photographs, at a place that has no apparent link with the Second Tribunal. For that reason alone, I reject the tender of the tendered photographs. In any event, I am not prepared to give any credit to the applicants’ evidence. There is no apparent reason why the first applicant would have submitted photographs at a building that is next to St James train station.

3. Having rejected the tender of the tendered photographs, I am satisfied that there was not before the Tribunal photographs of what the applicants claimed was their hotel. My lack of satisfaction is supported by the absence in the Tribunal’s reasons for decision of a reference to photographs of what the applicants claimed to be their hotel.

Conclusion and disposition

1. The applicants have not made out the ground stated in their application. Nor have they otherwise shown that the Tribunal made a jurisdictional error. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

2. I will hear the parties on costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 30 October 2015