SZTIZ v Minister for Immigration

[2015] FCCA 1161

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1161

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476, 499

Applicant: SZTIZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2413 of 2013

Judgment of: Judge Street

Hearing date: 5 May 2015

Date of Last Submission: 5 May 2015

Delivered at: Sydney

Delivered on: 5 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms A. Wong
DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2413 of 2013

SZTIZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 11 September 2013 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The application identifies the following grounds:

   1.  Jurisdictional error has been made. The Tribunal does not accept my claims on the ground of unsubstantiated evidence and makes wrong conclusion.

   The Tribunal does not accept I became of interest to the Chinese authorities. But its reasoning is not convincing because it does not point out any contradiction in my statement related to my assistance of North Korean refugees.

   The Tribunal does not believe I will not be punished harshly once I return to China. The Tribunal believes that people who are involved in small-scale assistance of North Korean refugees may be subject to a fine and accordingly I will not be subject to harsher penalties. But it does not explain what the small-scale means and the grounds on which it makes his judgment on my potential punishment. Thus, I believe that the Tribunal puts me in danger on the ground of unsubstantiated evidence.

   2. RRT considered my case unfairly and my evidence is not properly considered.

   The Tribunal does not accept that I assisted North Korean refugees in China through providing food, shelter, employment or assisting them to travel overseas, even if I provided evidence in writing and other relevant evidence.

3. Ground 1 does not disclose any jurisdictional error and is, in essence, an impermissible challenge to the findings of fact made by the Tribunal.  It was open to the Tribunal to determine whether or not to accept the credit of the applicant in respect of his claims. 

4. It was also open to the Tribunal to make a finding in relation to the allegations of the applicant that the assistance that he provided was small scale and that he would only be exposed to a fine.  There is no substance in relation to ground 1 of the application.

5. Ground 2 of the application also fails to disclose any jurisdictional error.  It is clear from the Tribunal’s reasons and the Court book that the Tribunal carefully addressed the applicant’s claims and took into account the more than four-year delay by the applicant in applying for a protection visa, having come to Australia lawfully and having obtained, lawfully in China, a passport.  The Tribunal took into account that the applicant only applied for protection after someone from the Department attended his premises in July of 2012 following which around three months later he applied for the protection visa in October 2012.

6. The applicant’s statement sought to suggest that he was informed of matters giving rise to a fear by his son in October 2008.  Those assertions are clearly inconsistent with the four-year delay in making any application for a protection visa.  The Tribunal also took into account the ability of the applicant’s son to relocate in China and that the applicant had a factory in China which the applicant informs the Court today ceased operation last year.

7. There is no substance in ground 2 of the application and the Tribunal carefully identified the applicant’s claims and evidence, essentially relating to fears arising from alleged assistance to North Korean refugees.  The applicant appeared before the Tribunal on 19 August 2013 to give evidence and present arguments and was assisted by an interpreter and represented by a registered migration agent.  The Tribunal carefully identified the applicant’s evidence and put to the applicant the concerns of the Tribunal, including, specifically, the applicant’s delay in applying for a protection visa and that his small-scale assistance of the North Korean refugees, even if accepted, would only be subject to a fine.

8. The Tribunal also raised with the applicant the ability of his son to relocate in 2009 and carefully put to the applicant the reasons why the Tribunal had difficulty accepting the applicant’s claims and evidence.  The applicant was found to be a citizen of China and his claims were assessed on that basis.

9. The Tribunal properly identified the relevant law and took into account the Ministerial Direction under s.499. Relevantly, the Tribunal made the following findings:

   30. The Tribunal finds that the applicant is not a credible witness.  This is because the Tribunal found the applicant’s evidence to be implausible, contradictory and changing throughout the hearing.  In relation to the applicant’s evidence being implausible, the Tribunal does not accept that the applicant assisted North Korean refugees over a ten year period by providing food, shelter, employment, medical assistance, obtaining travel documents and organising travel, in the circumstances that he described, that is, whilst paying bribes to the authorities and under threat, but that he would then do very little to nothing to assist the refugees during his time in Australia.  That is, the Tribunal does not accept that the applicant was motivated to assist North Korean refugees over a ten year period in China, as he has not demonstrated any such motivation during his time in Australia, despite his own evidence that he was not working and he had a total of AUD$25,000 to support himself, and the lack of any obvious threat to the applicant if he took such action in Australia.  In making this finding the Tribunal considered the applicant’s evidence that he once attended a church and told people they could help the refugees with financial assistance, he wasn’t sure how long he would stay in Australia, his boss had to go to China to get money, he only helped a limited number of refugees and there was no opportunity for him to help people in China because he had limited contact.  However, in light of the overall evidence before it the Tribunal does not accept these reasons as credible. 

   31. Nor does the Tribunal find it plausible that the applicant became of interest to the Chinese authorities in October 2008 and/or that the applicant’s son received an inquiry notice from the Chinese police demanding the applicant return to China for investigation regarding his assisting North Korean refugees, but the applicant delayed in applying for a Protection Visa until four years later in 2012.  In making this finding the Tribunal notes the applicant’s evidence that he hoped that things would change and/or the cost was prohibitive, but in light of all of the evidence before it the Tribunal does not accept this evidence.  The Tribunal instead finds that the timeline of events in the current matter suggests that the applicant was motivated to apply for a Protection Visa because officers from the Department of Immigration and Citizenship visited his residence and he wished to remain in Australia. 

   32. In relation to the applicant’s evidence being contradictory and changing throughout the hearing, the Tribunal refers to the applicant’s evidence regarding his attendance at Church in China and Australia.  During the hearing the applicant gave evidence that he attended church in China for a three-year period. However when asked to name the Church and/or the denomination the applicant was unable to, (although he did name the area that it was located in). The applicant also indicated that he had attended church in Australia, but again when asked for further details, he provided vague and contradictory answers that did not answer the questions asked by the Tribunal. That is, he said that he attended church in Campsie, but when asked for further information he referred to a church that he had previously attended which had since closed. Overall the combination this evidence leads the Tribunal to find that the applicant was not being truthful in providing his evidence and was instead fabricating evidence in an attempt to further his refugee application.

   33. As a further example the Tribunal also refers to the applicant’s evidence regarding his employment in Australia. When asked if he had been employed in Australia the applicant initially said only after he applied for his Protection Visa. Questioned further, the applicant said that he did do some work for his landlord, but only after extensive questioning did he specify that he had done 4 to 5 days painting for his landlord, and although he was not paid he received a reduction in his rent and food. The difficulty that the Tribunal had in extracting this basic information indicated to the Tribunal that the applicant was not being truthful and forthright in providing his evidence, but was instead fabricating his evidence in an attempt to further his refugee application.   

   …

   36. Overall the Tribunal does not accept that the applicant assisted North Korean refugees in China through providing food, shelter, employment or assisting them to travel overseas or providing false passports; and/or that he came to the attention of the Chinese authorities for this reason and/or that his son and/or brother were notified that the Chinese authorities were searching for the applicant.  Nor does the Tribunal accept that the police were aware that the applicant was harbouring refugees.  Nor does the Tribunal accept that the applicant has a well-founded fear of persecution due to his being perceived as harbouring/assisting/trafficking North Korean refugees. 

   37. Nor does the Tribunal accept that the applicant has a well-founded fear of returning to China due to there being a lot of Chinese Korean people where he lives, and the local restaurants being run by North Korean agents with the purpose of monitoring North Korean refugees and Korean Chinese people.  This is because the Tribunal did not find the applicant’s claims to be credible.   

   38. Therefore overall the Tribunal finds that the applicant does not have a well-founded fear of serious harm or persecution based on his race and/or political opinion or any related claims. 

   39. In addition, the Tribunal notes that the applicant made some references to his attending church in China and Australia, and it notes the possibility of an implied claim in relation to religion. However, the Tribunal is not satisfied that the applicant was involved with any religion in China and/or Australia, based on the vague evidence provided by the applicant in relation to such, and therefore the Tribunal finds the applicant does not have a well-founded fear of serious harm or persecution based on his religion. 

   40. Having found the applicant does not meet the refugee definition, the Tribunal considered complementary protection.  As noted above, the Tribunal has found that the applicant is a national China.  The applicant passport records that it was issued in Liaoning, China on 8 July 2012, with the date of expiry being 7 July 2018.  The applicant has given evidence that he left China using his genuine passport via legal channels, and the Tribunal has found that this indicates he was not of interest to Chinese authorities for any reason. The Tribunal has not accepted the applicant’s claims that he assisted North Korean refugees in China, or that he was of interest to the Chinese authorities for this or any other reason.  Overall, based on the evidence before it, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

10. It is in those circumstances that the Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations and that the applicant had failed to meet the criterion under s.36(2)(a) and 36(2)(aa). The findings of the Tribunal were clearly open. The adverse findings of credit were matters properly within the domain of the Tribunal and such adverse findings were clearly open on the material before the Tribunal.

11. The findings cannot be said to make an evident and intelligible justification.  There was no substance in the allegation that the Tribunal exceeded its jurisdiction.  The applicant had a genuine hearing.  The matters raised by the applicant sought to cavil with the findings of fact made by the Tribunal.  This is not a Court of Appeal and this Court cannot review the merits of the findings of fact.  Nothing raised by the applicant disclosed any jurisdictional error by the Tribunal.  The application is dismissed.

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

Associate: 

Date:  6 May 2015