SZTMM v Minister for Immigration

[2014] FCCA 2292

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2292

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Legislation:  

Migration Act 1958 (Cth), ss.424A, 424C

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1

Applicant: SZTMM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2726 of 2013

Judgment of: Judge Barnes

Hearing date: 18 September 2014

Delivered at: Sydney

Delivered on: 18 September 2014

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2726 of 2013

SZTMM

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 for review of a decision of the Refugee Review Tribunal dated 4 October 2013.  The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of the People’s Republic of China, arrived in Australia in November 2011 as the holder of a student visa.  He applied for a protection visa in July 2012.  He attended a Departmental interview.  He provided a statement and some supporting documentation.  His application was refused and he sought review by the Tribunal. 

3. In essence, as summarised by the Tribunal, the Applicant claimed that land owned by his family had been expropriated by the local village committee without adequate compensation; that the family had been given a property in lieu of that land but it was of poor quality; that he approached the village committee to fix faults with the property but had no money to pay for repairs and his demands were ignored and he was asked for money.  He also claimed that he had not been paid for his work as an excavator driver; that the police would not protect him; that his wife had been threatened and had to move away from their home; and that there was a general lack of human rights in China. 

4. In the course of the Tribunal review, the Tribunal wrote to the Applicant under s.424A of the Migration Act 1958 (Cth) (the Act) on 16 August 2013 inviting him to comment on information that the Tribunal had considered would, subject to his comments, be the reason or part of the reason for affirming the decision under the review. In particular the Tribunal referred to several inconsistencies. First it put to the Applicant inconsistencies between his statement accompanying his protection visa application and his earlier student visa application. In his protection visa application he had stated that he had to leave school in year 8 because his family was too poor to pay for his study, whereas in his student visa application he had stated he completed senior high school and he had provided a notarial certificate to that effect.

5. The Tribunal also put to the Applicant the fact that while he stated in his protection visa application that he was too poor to pay the village committee to fix his property and in his interview with the delegate claimed that he borrowed money from friends and relatives to come to Australia, in connection with his student visa application he had provided several bank statements and a certificate of deposit for RMB 210,0000.

6. The Tribunal referred to an inconsistency between the Applicant’s claims to the delegate that the village committee had decided to build a road and expropriated land around 2003 and he had been allocated a new house after his marriage in 2008 and the fact that in his student visa application he had provided a House/Property Certificate showing he owned a house that had been purchased in May 2000. 

7. It also put to the Applicant inconsistencies in his claims about his past employment.  In his protection visa application he had said he had been an excavator driver for nine years, while he had told the delegate he had worked for many companies as a driver.  In his student visa application he had provided a certificate of employment stating he had been working for a particular named company since 2005 when he completed high school. 

8. Finally, the Tribunal put to the Applicant that in his student visa application he had provided a notarised copy of his hukou which recorded that he and his parents had moved to a specified address on a date in September 2010, whereas in his interview with the delegate he had stated that he was given the new property in 2008. 

9. In addition, the Applicant was invited to provide specified information in writing by 10 September 2013, being documentary evidence of his house and land ownership, evidence relating to the land acquisition/building acquisition and evidence he had been offered and purchased an apartment offered by the village committee, including evidence of payment for the property. 

10. The Applicant responded to the s.424A letter by letter of 4 September 2013. He claimed he had “no idea about the materials” the migration agent provided to get a student visa for him, that his “true situation was [that he had] had to leave school in Year 8 (2001) because [his] family was too poor”, that he borrowed the money to come to Australia and that he could not afford the amount he had to pay to fix his property.  He claimed the house he bought in May 2000 was the house his family used to live in, that the village committee decided to build a road and expropriated land around 2003 (including his house) and that in 2008 he was allocated a new house.  He reiterated his claims to have been an excavator driver and casual driver.  He said that due to “serious quality problems”, he could not live in the house allocated and had moved in September 2010.  He also said that he would provide the Tribunal with the documents requested.  He did not do so by the date specified or thereafter. 

11. The Applicant attended a Tribunal hearing on 30 September 2013.  The only evidence before the Court of what occurred in the hearing is the Tribunal’s account in its reasons for decision.

12. On 1 October 2013 the Applicant requested an extension of time to “upload my documents” to support his application.  He was informed that the decision would be made after noon on Friday, 4 October 2013.  It appears that no further documents were provided to the Tribunal before the decision was made.

13. In its reasons for decision the Tribunal summarised the Applicant’s claims but concluded, for reasons which it gave, that it was not satisfied that he had a well‑founded fear of persecution in China for any Convention reason.  Nor was it satisfied that he met the complementary protection criterion. 

14. In addressing the Refugees Convention claims, the Tribunal discussed a numbers of factors that led it to reject the credibility of the Applicant’s claims.  It referred to the inconsistency between the Applicant’s claims in his protection visa application and his student visa application about when and in what circumstances he left school.  It had regard to the Applicant’s explanation that the migration agent had made up information in connection with the student visa application, but considered it equally likely that the information in the protection visa application was incorrect. 

15. In relation to the Applicant’s employment, the Tribunal observed that in the protection visa application form, he had stated he had worked as a vice manager in a company and a self‑employed manager, whereas he had told the Tribunal at the hearing he was a driver and had never worked for that company.  He could not explain why incorrect information was provided in the protection visa application.  The Tribunal found that the Applicant’s explanation that he was only familiar with the statement and not the contents of the protection visa application form contradicted his earlier evidence.  It also found that the Applicant’s willingness to provide incorrect information concerning his employment in his protection visa application called into question his overall credibility. 

16. The Tribunal also had regard to inconsistencies in the Applicant’s evidence about where his wife and parents had lived.  It found that his initial evidence about his wife living close to his parents was inconsistent with a new claim raised at the hearing that due to fear from threats she had been receiving his wife had moved to another area and was renting.  The Tribunal noted that the Applicant had not mentioned in his written application that his wife had to leave the home and village because of fears and threats.

17. The Tribunal found that the Applicant’s evidence concerning the demolition of property and expropriation of the family home was vague.  The Applicant could not recall any of the dates or when the events took place.  The Tribunal found that there were significant inconsistencies and implausibilities in the evidence he had provided at various times, in particular as to whether he had purchased a house in 2000, when the village committee expropriated the land and when he was provided with a new house.  The Tribunal noted that the Applicant had changed his evidence when this issue was raised at the hearing.  It found it implausible that the Applicant would have been given compensation in the form of property in 2000 (as he had claimed at one time in the hearing) if the land had not been taken until 2003.  The Tribunal noted that the issue of land acquisition and compensation was central to the Applicant’s claims and in that context it found that the significant inconsistencies in the presented evidence undermined the basis of his claims and his credibility. 

18. The Tribunal found that the Applicant had not been truthful about demands for money from the village committee.  It did not accept these claims, in particular that he had been given a property in either 2000 or 2008 and that the village committee had allowed him to occupy it without having made a payment or arrangements for payment.  The Tribunal had regard to changes in the Applicant’s evidence about when and the circumstances in which demands were made for money in forming the view he had not been truthful in these claims.  It had regard to his failure to mention the claimed visits to his wife by the village committee in his written statement, even though it had been prepared after his wife was said to have moved out of their home.  The Tribunal did not accept the Applicant’s explanation that his lawyer did not ask him for details, having regard to the asserted significance of the ongoing demands and threats by the village committee.  It found that there was no logical explanation for why this claim would not have been referred to in the protection visa application. 

19. The Tribunal also had regard to inconsistencies in relation to the Applicant’s claims about whether he was owed money by his employers and his initial explanation in relation to debts and money disputes.  It found that the fact that the Applicant continued in employment suggested that he found it lucrative and suitable, contrary to his claims that he was mistreated and unpaid.  It found that the fact that nothing had happened since 2008 (apart from an alleged car incident and some verbal dispute and a threat) and the fact that the Applicant continued to work as a driver suggested that there was no intention to harm him or his family and that he had no fear of any harm as a result of his employment.

20. The Tribunal addressed the Applicant’s claim to the delegate that on one occasion he had made a complaint about money, that his parents had called the police, that he was driven to the police station and that he had been locked up for half a day.  It recorded that he had provided a significantly different account at the Tribunal hearing.  He had claimed that he had reported the matter to the police, that he was at the station for half an hour after his car had been taken away and that the police had then asked him to leave.  He told the Tribunal that in fact he had not been detained and that before he went to the interview with the delegate his lawyer had told him his case would be more serious if he referred to detention.  The Tribunal found it of significant concern that the Applicant appeared to be willing to provide false information to the delegate because he thought it would strengthen his case.  It found that this called his credibility into account. 

21. The Tribunal also found that the Applicant appeared to have difficulty explaining why he decided to come to Australia, rather than relocating within China.  It expressed concern that his reasons were to work and earn money and to give his wife a peaceful life, without him rather than to avoid persecution or harm. 

22. Overall, the Tribunal formed the view that the Applicant had not been truthful in his evidence and that he had fabricated his claims.  It rejected the entirety of his claims. 

23. Based on these conclusions, the Tribunal found that it did not accept that the local government took the Applicant’s property or his father’s property or land; that the father’s property was restructured to make way for a road; that the Applicant or his family was not adequately compensated; that he was given an apartment as compensation; that he was required to pay money in addition; that the village committee continuously demanded money; or that he had had any dispute with the village committee, whether as a result of what occurred in relation to the land or the quality of the apartment.  Nor did it accept that the Applicant had made unanswered complaints or participated in or arranged complaints to village officials; that he or his family were threatened; that he was detained by the police; that he was not paid for work; that he was beaten by the employers and the police refused to intervene; that his car was taken away as a result of an employment dispute; that he was threatened by his employers; that he owed money to a lot of people; or that people owed money to him and he was fearful as a result.  The Tribunal stated that having found the Applicant not to be a person of credibility, it rejected the entirety of his claims. 

24. The Tribunal considered the Applicant’s reference had referred to a lack of human rights in China was a broad statement without any specific indication of harm, and did not give rise to a genuine fear of persecution for a Convention reason. 

25. The Tribunal concluded that considering his claims singularly and cumulatively, there was no real chance that the Applicant would face persecution for a Convention reason if he returned to China now or in the reasonably foreseeable future.

26. Having rejected the entirety of the Applicant’s claims in relation to his claimed fear of harm and the entirety of his circumstances, the Tribunal also found that he was not entitled to complementary protection.  It reiterated that it had rejected his claims about property and payment disputes with the village authorities, about disputes with his employers and his other claims. 

27. The Tribunal again addressed the claim about the lack of human rights in China.  It had regard to the Applicant’s failure to identify any specific harm he would suffer (other than the specific claims he had made that the Tribunal had rejected).  The Tribunal did not consider the broad claim about the lack of human rights gave rise to a real risk of significant harm.  In these circumstances the Tribunal affirmed the delegate’s decision.

This Application

1. The Applicant sought review by application filed in this Court on 5 November 2013.  There are three grounds in the application.  The Applicant did not file written submissions.  He addressed his application today. 

2. The first ground refers to paragraph 13 of the Tribunal decision, which contains the Tribunal’s credibility conclusion and its reiteration of its rejection of the various aspects of the Applicant’s claims.  The Applicant took issue with the Tribunal’s statement that he was not a person of credibility and its rejection of the entirety of his claims.  He asserted that without any proof the Tribunal could not call him “a person of low credibility” and decide that his claims were not “truthful”. 

3. It is for an Applicant to put material and evidence before the Tribunal and for the Tribunal to decide if he meets the criteria for the visa (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14). The Tribunal’s finding on credibility was reasonably open to it on the material before it for the reasons which it gave (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). As set out above, it gave detailed reasons for its finding, having regard to significant inconsistencies, implausibilities and inadequacies in numerous aspects of the Applicant’s evidence. Insofar as this ground takes issue with the merits of the Tribunal decision, it seeks impermissible merits review.

4. In the hearing today, the Applicant reiterated his concerns about the Tribunal’s conclusion in relation to his credibility.  The concerns he expressed go no further than his application in seeking impermissible merits review. 

5. The function of the Tribunal is to respond to the case advanced by the Applicant. It is not required to consider a case that is not made by an Applicant or does not arise clearly on the material before it. As indicated, it is for the Applicant to put forward information and materials on which he wishes to rely. The Applicant attended a Tribunal hearing at which he had the opportunity to give evidence and present arguments. In addition, under s.424A of the Act, the Tribunal invited the Applicant to provide documents in support of aspects of his claims in its letter of 16 August 2013 in circumstances where he had applied for protection in July 2012. The Tribunal gave him until 10 September 2013 to provide such documents. As the Tribunal had advised the Applicant, in its letter of 16 August 2013, if it did not receive the information within the period allowed or extended, it could make a decision on the review without taking further action to obtain the information (see s.424C of the Act). The Applicant did not provide any such information, although he said he would do so in his reply of 4 September 2013. He sought further time outside the time provided for a reply. He did not provide the further documentation by the time of the Tribunal decision.

6. Ground one is not made out.

7. Ground two takes issue with the Tribunal’s rejection of the Applicant’s claim based on a lack of human rights in China.  In his application, the Applicant stated that:

   …President of China is not elected democratically like what happens in Australia.  There is only one Party in power in China and I was persecuted under such political government.  RRT does not know how Chinese Policies and cannot reject my claims because of this.

8. The Tribunal did not reject the Applicant’s claims based on independent country information about Chinese policies or circumstances in China.  Rather, it rejected his credibility for reasons set out in detail above.  In relation to his claim about human rights, it was not satisfied that such a broad statement, without any specific indication of harm, gave rise to a genuine fear of persecution for a Convention reason.  It made that finding in circumstances where it had rejected the entirety of the specific claims made by the Applicant.  It repeated those conclusions in the context of complementary protection. 

9. In these circumstances, the rejection of the Applicant’s claim that he had a fear of persecution or a complementary protection claim based on a lack of human rights in China was a finding that was open to the Tribunal.  The claim was simply a broad statement without further particulars or any specific indication as to how the lack of human rights would give rise to a fear or risk of harm.  This ground is not made out.

1. It was contended in the application that “[o]verall” the Tribunal did not treat the Applicant “fairly” due to a lack of understanding of Chinese policies and that if he went back to China he would be harmed.  Insofar as this was intended to be a separate ground, as discussed in relation to ground two, there is no basis in the Tribunal reasons for decision to support any claim in relation to the Tribunal’s consideration of events in China.  Its decision was based on its rejection of the Applicant’s credibility.  The Applicant’s claim that he would be harmed in China seeks impermissible merits review. 

2. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

3. The Applicant has been unsuccessful.  There is nothing in the circumstances of this case to warrant departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  The amount sought is appropriate and reasonable in light of the nature of this and other similar matters. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  7 October 2014