SZTOP v Minister for Immigration

[2014] FCCA 2449

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2449

Catchwords:
MIGRATION – Review by Refugee Review Tribunal – application for order dismissing application because it raises no arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: SZTOP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2949 of 2013

Judgment of: Judge Manousaridis

Hearing date: 11 June 2014

Delivered at: Sydney

Delivered on: 24 October 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms Zarucki

Clayton Utz

ORDERS

1. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2949 of 2013

SZTOP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR) to dismiss an application for judicial review of a decision of the second respondent (Tribunal) on the ground that the application discloses no arguable case for the relief it seeks.

The applicant’s claims for protection

1. The applicant, a national of the Peoples’ Republic of China, claimed he feared persecution if he were to return to China. The asserted facts on which that claim was based are as follows.

   a)In 2013, some five years after he entered Australia on a student visa, the applicant’s father received a letter from local government authorities stating they intended to reclaim land owned by the applicant’s father, and the applicant’s family would be evicted. [1]

   b)The applicant’s father, together with other villagers, protested, first because of the local authorities’ intention to reclaim the land, and, second because the compensation the authorities proposed to offer the applicant’s father was considered to be inadequate.[2]

   c)The applicant’s father was arrested and detained for four days. When detained, the applicant’s father had been severely beaten. Although the applicant’s father continued to protest his eviction, and the inadequate compensation being offered, he did not take any leadership role in the protests, and he accepted the inadequate compensation offered by the authorities. [3]

   d)The applicant’s family have been evicted from their land, but they received only part of the agreed compensation. Due to this injustice, the applicant contacted his friends in China to see if they were aware of any lawyers or possible methods of seeking redress. He proposed to seek redress while in Australia, where he would be safe from the kind of harm his father suffered.[4]

   e)The applicant fears that if he were to return to China, the local government and Chinese authorities will harass, torture, and detain him for his father’s actions, and because he would feel compelled to seek redress.[5]

   [1] CB28-29

   [2] CB29-30

   [3] CB30-31

   [4] CB31

   [5] CB32

2. In a written submission to the Tribunal, the applicant, through his migration agent, also claimed fear of persecution on the ground of religion.[6] The applicant provided a certificate from a church stating the applicant’s parents and the applicant attended various church services and were members of that church.[7] The applicant also provided a letter from a church group in Australia stating the applicant was a regular worshiper at the church.

   [6] CB178-181

   [7] CB76-77

3. At the hearing before the Tribunal, the applicant also claimed he was concerned that if he returned to China he would be troubled by “underground gangsters” and by the “black PSB” (Public Security Bureau, the police).[8]

   [8] CB213, [11]

Tribunal’s reasons

1. The Tribunal accepted that the applicant’s family were evicted as claimed by the applicant, and that they were offered what they believed to be inadequate compensation; that the only means by which a person in China can seek redress for inadequate compensation is by petitioning government authorities, and the mistreatment of petitioners by the government is well-documented; the applicant’s father was mistreated in the manner claimed by the applicant; and that the family had moved from their land; and that the applicant and his family are Christians.[9]

   [9] CB216-217

2. The Tribunal, however, did not accept the applicant intends to complain to the Chinese authorities on behalf of his father.[10] The Tribunal concluded there was no evidence the applicant would be harmed by authorities or by “gangsters” only because his father protested his eviction and inadequate compensation.[11] The Tribunal inferred that the church of which the applicant and his family were members was either registered or was one that was tolerated by Chinese authorities, and therefore, the Tribunal was not satisfied the applicant had a well-founded fear of persecution because of his religion.[12]

   [10] CB216, [32]-[33]

   [11] CB216-217, [34]-[35]

   [12] CB217, [39]-[41]

Grounds of application

1. The applicant, who is not legally represented, included the following two grounds in his application for review:

   1. Tribunal made a Jurisdictional error by failing [to] consider my evidence objectively and independently.

   2. R.R.T member rejects my true story as fabrication.

Ground 1

1. At the hearing before me, the applicant addressed the Court after the first of these two grounds were interpreted to the applicant, and after I invited him to make submissions in relation to that ground. The applicant said that his agent did not attend the hearing before the Tribunal, but after the hearing, the applicant wished to provide further material to the Tribunal. The applicant said that after the hearing he sent further material to his agent to be translated and sent to the Tribunal, but some of the evidence was not translated. The material he had sent to his agent was “[j]ust some evidence. Like, for example, title deeds for my properties, things like that. Chinese documents”, but the applicant could not remember what other documents he provided to his agent.[13]

   [13] T11.20-30

2. The first ground raises two issues. The first is whether the applicant’s agent failed to provide material evidence to the Tribunal and, if so, whether the Tribunal made a jurisdictional error by deciding the application before it without referring to that information. The second issue is whether in any event the Tribunal failed to consider the material that was before it objectively and independently.

3. As to the first issue, the evidence reveals that, because of ill-health, the applicant’s agent did not attend the hearing. However, after the hearing, the Tribunal provided to the applicant’s agent the recording of the hearing before the Tribunal and, by letter dated 30 October 2013, the applicant’s agent provided further submissions.[14] The submissions dealt with two matters. The first was videos the agent provided to the Tribunal that recorded “the retaliation faced by [the applicant’s] neighbours who protested against the Chinese authorities in relation to the appropriation of their land”.[15] The second concerned the likelihood of the applicant seeking redress when he returns to China.[16]

   [14] CB196-203

   [15] CB196-197

   [16] CB197-198

4. I do not accept that the applicant’s agent failed to put before the Tribunal material the applicant intended to put before the Tribunal. In that regard, I rely on the declaration signed by the applicant which formed part of the submission dated 30 October 2013 that the applicant’s agent provided to the Tribunal.[17] In the declaration, the applicant confirmed that the submission dated 30 October 2013 had been read or explained to the applicant. The applicant also confirmed that the submission “accurately and completely presents my claims”.

   [17] CB199

5. In any event, even if I were not satisfied that the applicant had put before the Tribunal all the evidence he intended to put before it, it would not be arguable that such omission will have resulted in the Tribunal making a jurisdictional error. There is nothing that could arguably have alerted the Tribunal to the possibility that the applicant had not put before the Tribunal all that the applicant desired to be put before it.

6. Whether or not the Tribunal had before it all the material the applicant intended be put before the Tribunal, it is not arguable that the Tribunal did not consider the evidence before it objectively, and independently.

7. Accordingly ground 1 of the grounds of application discloses no arguable case that the Tribunal made a jurisdictional error.

Ground 2

1. The second ground, as formulated in the application, discloses no arguable case of jurisdictional error. To the extent the Tribunal found the applicant fabricated any part of his claim, such a finding is within the jurisdiction of the Tribunal to make, unless the finding itself has been arrived at as a result of jurisdictional error. The ground does not identify any error in the Tribunal’s concluding there was a fabrication.

2. In any event, the Tribunal did not find the applicant fabricated his claim. It accepted most of the factual assertions on which the claim was based, but did not accept some of them. The Tribunal did not accept part of the applicant’s claims because it found they were fabricated.

3. At the hearing, the submissions the applicant made in relation to this ground is that some claims for refugee status are fabricated, and some are true. The applicant submitted that if “they do not believe me and they can go to China to talk to the security departments to do some investigations”.[18] That submission discloses no arguable case of jurisdictional error.

   [18] T7.40

Conclusion and disposition

1. The applicant has disclosed no arguable case for the relief he seeks. Accordingly, I propose to dismiss the application pursuant to r.44.12(1)(a) of the FCCR. I also propose to order the applicant pay the first respondent’s costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  24 October 2014