SZTNE v Minister for Immigration & Border Protection

[2014] FCCA 597

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 597

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Judiciary Act 1903 (Cth) s.39B
Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13

Cases cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122

Applicant: SZTNE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2834 of 2013

Judgment of: Judge Emmett

Hearing date: 26 March 2014

Date of Last Submission: 26 March 2014

Delivered at: Sydney

Delivered on: 26 March 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondents: David McLaren
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2834 of 2013

SZTNE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 29 October 2013 (“the RRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 15 November 2013, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.

3. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

2. On 7 March 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

4. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5. The applicant confirmed that he wished to continue with his application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, by 14 March 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 14 March 2014.

6. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise. 

7. At the directions hearing, the applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

8. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules.

9. The applicant’s application for judicial review, filed on 15 November 2013, stated the grounds of review as follows:

   “1. My local government forcibly demolished my home. My wife against the unfair compensation for which she was detained. If I returned home, I will be forcibly signed the document. I won’t content to do it. So, I will surely be persecuted by the local government. I have true evidents, [sic] but the Tribunal member failed to take all my claims and evidence into account, refused my application for protection visa.

   2. I have the well-founded fear of being persecuted by the local government. The Tribunal member didn’t consider it, making jurisdictional error.”

10. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

11. The applicant responded that all his evidence could be verified online; all the evidence he provided the RRT was true; the RRT’s decision was mistaken; the RRT failed to investigate his claims; and, that he had given newspaper articles to the RRT but the RRT found the newspaper did not exist.

12. The applicant also said that he gave a USB storage drive to the RRT during the hearing, however, the RRT found the documents contained on the drive to be manufactured.

13. I asked the applicant if he wished to read his affidavit, sworn 14 November 2013 and filed on 15 November 2013, which annexes a copy of the RRT decision record, in support of the submissions he made this morning. The applicant declined to do so.

14. I explained to the applicant that the RRT is required to evaluate all the evidence and material placed before it and, accordingly, to make findings and reach conclusions having applied the relevant law to its findings. I further explained that the fact that the RRT may not have accepted the applicant’s evidence did not by itself establish a jurisdictional error on the part of the RRT. I also explained to the applicant that it is only in limited circumstances that the RRT is obliged to investigate claims made by the applicant for itself and that the applicant had said nothing this morning to indicate that such an obligation arose on the part of the RRT.

15. The first respondent’s solicitor, Mr McLaren, read the applicant’s affidavit, sworn 14 November 2013 and filed on 15 November 2013, which annexes a copy of the RRT decision record.

16. The applicant claimed to fear persecution from authorities in China because he and his wife had refused to comply with the compulsory acquisition of their property. The applicant claimed that his wife was detained when she refused to move out of the property and that if the applicant returned to China he would be detained and forced to sign a document agreeing to the acquisition of his property.

17. I accept as accurate the first respondent’s summary of the RRT’s decision, as follows:

    “Tribunal proceedings

    7. On 2 January 2013, the Tribunal received an application for review of the delegate’s decision: CB 106-111.

    8. By letter dated 23 August 2013, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in his case: CB 114-115.

    9. On 30 September 2013, the applicant attended a hearing of the Tribunal where he gave evidence with the assistance of a Mandarin interpreter: CB 121-123.

    10. On 29 October 2013, the Tribunal affirmed the delegate’s decision: CB 151-167.

    Tribunal decision

    11. The Tribunal found that the applicant was not a “credible witness” and rejected the entirety of his claims for protection on the basis of the adverse view that it took of the credibility of his claims and evidence: see CB 163-165, [65]-[71]. In reaching these findings, the Tribunal relied on the applicant’s:

    11.1. failure to remember the dates of significant events, such as when his wife was released from detention, when the government first intended to acquire his land, and when his wife protested and was detained: CB 163, [66]);

    11.2. “implausible” and “unpersuasive” evidence about his wife’s claimed indefinite detention: CB 163-165, [67]-[68], [70]-[71]; and

    11.3. “unsatisfactory” explanation about how his supporting documents were sent to him in Australia: CB 164, [69].

    12. The Tribunal also found that the applicant had manufactured his evidence about his wife’s detention to embellish his claims: CB 164-165, [71].

    13. The Tribunal considered the photographs provided by the applicant in support of his claims. However, it was not satisfied they were reliable evidence because there were “too many inconsistencies” in his evidence about their contents: CB 165, [72]. The Tribunal also concluded that the two sets of photographs, one set provided with his protection visa application and the other provided prior to and at the hearing, were of two different sites: CB 165, [72]. Nor was the Tribunal satisfied that the applicant’s documents purporting to corroborate his claims (other than his ID card and household registration) were genuine in light of its adverse credibility findings and the available country information about the prevalence of fraudulent documents in China: CB 165, [73]-[74]. The Tribunal noted that the applicant did not provide evidence that he had written to the authorities in protest about his house: CB 166, [75].

    14. The Tribunal also noted the applicant’s claim that he lost his job in 2007 due to him reporting his employer’s corruption. However, the Tribunal noted that the applicant did not raise this claim during the hearing before it and gave no evidence of fears because of his claimed reporting of corruption if he returned to China. The Tribunal concluded that the applicant would not suffer any harm on the basis of this matter if he returned to China: CB 166, [77].  

    15. The Tribunal also took into account that the applicant had his left fifth finger amputated as a result of a work accident in August 2012. However, when the Tribunal raised this with him, the applicant gave no evidence that he feared returning to China because of this. The Tribunal concluded that the applicant would not suffer any harm due to this injury: CB 166, [78]. 

    16. After considering the applicant’s claims individually and cumulatively, the Tribunal concluded that the applicant faces no real chance of persecution for any Convention related reason: CB 166, [79].

18. The RRT’s decision record makes clear that the RRT rejected the applicant’s claims because the RRT found that the applicant was not a credible witness.

19. The RRT referred to various concerns it had about the applicant’s evidence and which it explored with the applicant in some detail at the hearing. The RRT was not satisfied by the explanations given by the applicant with regard to particular concerns it put to him. The RRT identified particular inconsistencies that it found to exist in the applicant’s evidence and ultimately found that the applicant had manufactured evidence in respect of his claims, particularly regarding his wife’s unlawful detention, to embellish his claims to fear persecution in China.

20. The RRT stated that it considered all the applicant’s documentary evidence. However, based on country information before it that document fraud was widely spread in China, the RRT found that the evidence was manufactured or fraudulent.

21. The applicant’s submissions in support of his grounds of review, both written and oral, remain unparticularised and appear to be no more than a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

22. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

23. The RRT’s credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

24. The RRT’s adverse credibility findings were based on the unsatisfactory nature of the applicant’s evidence. As stated above, the RRT placed no weight on the applicant’s documents in the light of its adverse credibility findings in respect of the applicant’s own evidence and the country information before it that made clear that document fraud was prevalent in China. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

25. A fair reading of the RRT’s decision record makes clear that it gave thorough consideration to the applicant’s claims and to the applicant’s oral and documentary evidence presented in support of those claims.

26. The fact that the RRT rejected the applicant’s evidence and the genuineness of his documents does not constitute a failure to consider the applicant’s claims and evidence. As the High Court of Australia said in Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122 at [35]:

    “Whether the letters were "highly supportive" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.”

27. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.

28. The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.

29. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 15 November 2013, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    2 April 2014