SZTVF v Minister for Immigration

[2015] FCCA 428

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 428

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether RRT considered applicant’s claims – whether RRT discriminated against the applicant – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A

Applicant: SZTVF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 222 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 August 2014

Delivered at: Sydney

Delivered on: 27 February 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms A Wong of DLA Piper Australia

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 222 of 2014

SZTVF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to refuse the grant of a Protection (Class XA) visa (Protection visa) to the applicant.

Applicant’s claims for protection

1. The applicant claimed before the Tribunal that she was persecuted in China for reporting corruption in her local education department in Baoding City. The alleged facts on which the applicant relies are as follows.[1]

   [1] CB32-34

2. In 2012 the applicant was promoted to the position of manager in a construction company (Company) of which she had been an employee since 2005. The applicant’s boss had a cousin who was a director of education and, because of this connection, the Company became involved in several projects, some of which included the purchase and sale of construction materials. The Company initially used materials from large companies that provided quality assurance. After some time, however, the applicant began to notice that the Company was purchasing materials from smaller companies and the materials purchased were cheap and of poor quality. The applicant reported her concerns to her boss but the boss told her to follow orders. The applicant later discovered that her boss bribed government officials and school leaders to get a large number of projects in the education system.

3. In September 2012 an incident occurred on one of the projects the Company was working on, and a number of students were injured after the roof of a school canteen collapsed. Shortly after, the applicant reported the Company for the use of poor quality construction materials. Two days after the applicant reported the Company to the relevant authorities the applicant’s boss rang her and threatened to kill her. The next evening the applicant was attacked by three men outside her home and beaten. The applicant reported the attack to the police but heard nothing more. In late September the applicant was detained by the Public Security Bureau for 15 days on a false accusation. The applicant knew it was her boss and “corrupt officials that used public power to prevent me from exposing corruption”.[2]

   [2] CB33-34

Tribunal’s decision

1. The Tribunal did not accept the applicant’s claim that she had reported the Company, or that the applicant’s boss consequently rang threatening to kill her, or that the applicant was attacked and beaten by three men outside her home.[3]

   [3] CB128, [46]

2. The Tribunal did not find the applicant to be a credible witness because she had provided inconsistent evidence in the written statement she provided in support of her Protection visa application, at the interview with the delegate and at the hearing before the Tribunal.[4] The Tribunal also disregarded documents the applicant provided in response to a letter the Tribunal sent to the applicant under s.424A of the Migration Act 1958 (Cth) (Act).[5]

   [4] CB128, [47]

   [5] CB128, [48]

3. The documents the applicant sent in response to the s.424A letter included a “Notification of Detention”[6] to support the applicant’s claim of being detained by the Public Security Bureau, and a “Hospital Certificate”[7] in support of the claim the applicant made before the delegate that she spent a week in hospital following the beating.[8] At the hearing, the Tribunal asked whether the applicant had the evidence with her. The applicant indicated that she did not because “the delegate did not ask for it” and asked the Tribunal to give her two months to obtain the evidence.[9] The Tribunal rejected the request.

   [6] CB113

   [7] CB115

   [8] CB71;

   [9] CB126, [39]

4. The Tribunal considered the documents not to be genuine because the applicant provided the documents to the Tribunal within 10 days of its issuing the s.424A letter after initially requesting two months to obtain the documents and after the Tribunal expressed concerns about the lack of evidence supporting the applicant’s claims.[10] The Tribunal found the “Hospital Certificate” to be inconsistent as it stated the applicant was hospitalised for 5 days but the applicant had claimed she was hospitalised for 7 days.[11] The Tribunal also relied on information “before the Tribunal that false documents can be easily obtained in China”.[12]

   [10] CB128, [48]

   [11] CB128, [48]

   [12] CB128, [48]

5. The Tribunal concluded the applicant had “no basis to fear persecution” from her boss or at the instigation of her boss, and therefore the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act.[13] The Tribunal also concluded that, even if it were to accept the applicant’s claims as true, “there is no real chance or real risk that [the applicant] will face her feared harm . . . if she returns to China” because the chance of the harm eventuating is remote or far-fetched and the applicant can avoid harm from her boss by relocating away from Baoding City.[14]

   [13] CB129, [49]; [55]-[56]

   [14] CB129, [50]-[53]

Application for judicial review

1. The applicant raises two grounds in her application for judicial review. The first ground of review is:

   RRT have descriminatio [sic] on me, failed to consider my evidence and my real situation.

2. At the hearing the applicant, who is not legally represented, made two submissions in support of the first ground of review. First, the applicant submitted the Tribunal discriminated against the applicant because it repeatedly asked the same question of the applicant. When asked if she remembered what the question was, the applicant stated:[15]

   The member said, “Once you get court decision from department, and before you lodged application to tribunal, you had at least to six months to prepare your documents, but why you didn’t prepare anything for the tribunal’s hearing, or for the tribunal’s application?”

   [15] 12.08.14, T4.35

3. The second submission the applicant made in relation to ground 1 of her application is that the Tribunal did not understand the real situation in China because there are a lot of underground societies and groups that can do whatever they want to do.

4. At the conclusion of the hearing, I indicated to the applicant that I will direct the Minister to file with the Court a copy of the audio recording of the applicant’s hearing before the Tribunal for the purpose of determining whether, as submitted by the applicant, the Tribunal discriminated against the applicant by repeating the same question of the applicant. I directed the Minister to provide the Court with the audio recording of the hearing.

5. I have listened to the audio recording of the hearing. Commencing about 45 minutes into the hearing, the Tribunal member asked the applicant whether she had evidence of her detention. The Tribunal member noted that before the delegate the applicant was asked whether she had evidence, and the applicant said she did, but the evidence was in China. At around 46 and a half minutes into the hearing the applicant accepted that the delegate said that because of the lack of evidence the delegate may not accept the claim. At around 47 minutes into the hearing the Tribunal member noted that six months had passed since the applicant was interviewed with the delegate, yet the applicant had still not obtained evidence. At around 48 minutes into the hearing the Tribunal member stated that the applicant has had six months to obtain evidence since the delegate first raised the issue, yet the applicant has still not obtained evidence. The Tribunal member said that on that basis he may find the applicant does not have evidence. Up to around 52 minutes into the hearing, the Tribunal member informed the applicant that he would not provide the applicant a further opportunity to provide the evidence. At around 52 minutes into the hearing, the Tribunal member turned to another topic.

6. The audio recording of the hearing indicates the Tribunal member put to the applicant that she had six months to provide evidence to the Tribunal. The Tribunal did not, however, do so in a manner which could even arguably indicate discrimination or prejudgement by the Tribunal. The Tribunal put to the applicant that she did not provide evidence to support her claim of detention for the purpose of informing the applicant that the Tribunal may find that the reason the applicant had not provided evidence to the Tribunal was because the applicant did not have evidence; and the Tribunal member indicated that he may make such finding to give the applicant an opportunity to make a submission against the Tribunal making such finding.

7. At around 1 hour and forty minutes into the hearing, the Tribunal member again referred to the applicant having had six months to provide evidence. The Tribunal member, however, said that in response to the applicant stating, after part of her initial statement was translated to her, that what the applicant had written in Chinese was at her home.

8. The second submission the applicant made in support of ground 1 is a submission expressing disagreement with the Tribunal’s conclusion on matters that are entirely within the jurisdiction of the Tribunal to decide. It does not raise any case of jurisdictional error.

9. There is no substance to ground 1 of the application for review. The Tribunal’s reasons for decision indicate the Tribunal identified the claims the applicant made, it considered each of those claims, and it rejected them for reasons on which it was reasonably open to the Tribunal to rely. Further, having heard the audio recording of the hearing, there is no basis for the applicant’s contention that the Tribunal discriminated against the applicant, or did not consider or otherwise understand the applicant’s claims. Ground 1 of the application is not made out.

10. The second ground of review is:

    RRT and Department of Immigration and Border Protection are unfair to me.

11. At the hearing the applicant submitted that the Tribunal did not consider the applicant to have provided enough evidence in support of her application, even though the applicant thought she did. The applicant further submitted that regardless of what she said before the Tribunal, they did not believe the applicant.

12. The applicant’s submission is that the Tribunal was unfair to the applicant because the Tribunal did not accept the applicant’s evidence. That does not raise any jurisdictional error. It is for the Tribunal to determine whether to give credit to an applicant’s claim. It was open to the Tribunal not to accept the applicant’s claims for the reasons the Tribunal gave.

13. Ground 2, therefore, also is not made out.

Conclusion and disposition

1. The grounds of review are not made out. I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 February 2015