SZTVF v Minister for Immigration and Border Protection
[2015] FCA 516
•26 May 2015
FEDERAL COURT OF AUSTRALIA
SZTVF v Minister for Immigration and Border Protection [2015] FCA 516
Citation: SZTVF v Minister for Immigration and Border Protection [2015] FCA 516 Appeal from: SZTVF v Minister for Immigration & Anor [2015] FCCA 428 Parties: SZTVF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 199 of 2015 Judge: FARRELL J Date of judgment: 26 May 2015 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review – Refugee Review Tribunal decision affirming decision of delegate of Minister not to grant Protection (Class XA) visa – no appellable error demonstrated Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Federal Court Rules2011 (Cth) r 35.33(1)(a)(i)
Migration Act 1958 (Cth) ss 36(2)(aa), 424ADate of hearing: 26 May 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia Counsel for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 199 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTVF
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
26 MAY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 199 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTVF
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
26 MAY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the judgment of the Federal Circuit Court of Australia in SZTVF v Minister for Immigration & Anor [2015] FCCA 428 delivered on 27 February 2015 (“SZTVF”). The primary judge dismissed with costs an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 7 January 2014. The Tribunal had affirmed a decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa.
The appellant is a citizen of the People’s Republic of China. She arrived in Australia on a tourist visa on 13 December 2012 (which expired on 26 December 2012) and applied for a protection visa on 5 February 2013. The primary judge accurately summarised the appellant’s claims to the Tribunal at [2] –[4] of SZTVF (footnotes omitted):
2The 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.
3In 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.
4In 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 [of slander]. The applicant knew it was her boss and “corrupt officials that used public power to prevent me from exposing corruption”.
THE TRIBUNAL
The appellant appeared before the Tribunal on 21 November 2013. The Tribunal sent the appellant a letter pursuant to s 424A of the Migration Act 1958 (Cth) (“Migration Act”) on 22 November 2013 and the appellant provided a response on 2 December 2013 attaching a detention certificate and a hospital certificate with translations.
The Tribunal rejected the appellant’s claims. The Tribunal did not find her to be a credible witness because of inconsistencies in the statement made with her visa application, statements to the delegate of the Minister who considered her application and to the Tribunal member at the hearing. Inconsistencies included as to her knowledge about her ability to seek protection in Australia and whether she had a daughter. The Tribunal found that the detention certificate and hospital certificate were not genuine (among other reasons) because it did not find her a credible witness and because false documents can be “very easily obtained in China”.
The Tribunal found that the appellant had no basis to fear persecution from her boss and even if the appellant’s claims were true there was no real chance or real risk that she will face the harm she claims to fear if she were returned to China. The appellant gave evidence that she would not do anything to upset the boss now that she knows the danger he poses. In light of that evidence, as well as the fact that more than a year had passed since her complaint and that the boss has not bothered the appellant’s family in China in that time, there was no real chance or real risk of harm. The Tribunal also found that the appellant could avoid harm by relocation. The Tribunal also rejected the appellant’s claim to complementary protection under s 36(2)(aa) of the Migration Act for the same reasons as those for rejecting the appellant’s refugee claim.
FEDERAL CIRCUIT COURT
The appellants grounds for review by the Federal Circuit Court were (as written):
1. RRT have descriminatio on me, failed to consider my evidence and my real situation.
2. RRT and Department of Immigration and Border Protection are unfair to me.
Ground 1
In support of ground one, the appellant made two submissions.
The appellant first submitted that the Tribunal had discriminated against her by repeatedly asking the same question. The question was identified at [11] of the primary judge’s reasons as (as written):
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 didn’t prepare anything for the tribunal’s hearing, or for the tribunal’s application?”
The primary judge instructed the Minister to file with the Court a copy of the audio recording of the appellant’s hearing before the Tribunal in order to evaluate the appellant’s first submission. The primary judge listened to the audio recording and rejected that submission. The primary judge found that the recording did indicate that the Tribunal member told the appellant that she had had six months to provide evidence to the Tribunal. However, the Tribunal member did not “do so in a manner which could even arguably indicate discrimination or prejudgement by the Tribunal”. The Tribunal had told the appellant that as no evidence to support her claim of detention had been provided it may find that was because no evidence existed. The Tribunal had done so to provide the appellant an opportunity to make a submission against the Tribunal making such a finding. The primary judge therefore did not accept the appellant’s first submission.
The appellant’s second submission was 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”. The primary judge rejected this submission on the basis that it expressed disagreement with the Tribunal’s conclusion on a matter within the jurisdiction of the Tribunal to decide.
As the Tribunal had identified the appellant’s claims, had considered those claims and rejected them for reasons on which it was open to the Tribunal to rely, the primary judge found ground one was not made out.
Ground 2
In support of ground two, the appellant submitted that the Tribunal did not consider that she had provided enough evidence, even though she thought she had. In addition, the appellant submitted that the Tribunal did not believe her regardless of what she said. The primary judge identified the appellant’s complaint as being that the Tribunal was unfair to her because the Tribunal did not accept her evidence. It was for the Tribunal to determine whether to accept the appellant’s claim, and it was open to the Tribunal to reject the claim for the reasons it gave. The primary judge found that ground two was therefore also not made out.
APPEAL TO THIS COURT
The appellant’s grounds of appeal from the Federal Circuit Court’s judgment are the same as her grounds for review of the Tribunal’s decision.
The appellant made no appearance at 10:15 am today, the time appointed for the hearing. Two attempts were made to contact the appellant at the mobile number held by the solicitor appearing for the Minister with the assistance of an interpreter. Those attempts were unsuccessful.
The court officer called the matter; there was no appearance.
At approximately 10:45 am, the Minister made an application under r 35.33(1)(a)(i) of the Federal Court Rules2011 (Cth) to dismiss the appeal by reason of the appellant’s non-appearance. The Minister also made an application under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) to dismiss the appeal for failure of the appellant to appear at a hearing relating to an appeal.
The Minister filed in court an affidavit affirmed by an administrative assistant employed by the Minister’s solicitors detailing the service of the Minister’s written submissions on the appellant under cover of a letter dated 13 May 2015. I note that the address to which the submissions was sent is the same as the appellant has listed as her address in her notice of appeal. The letter advised the appellant that the hearing would take place at 10.15 am today. I am satisfied that the appellant had been made aware of the proceedings.
I have considered the written submissions filed by the Minister. The appellant did not file written submissions. As indicated above, I have reviewed the Statement of Decision and Reasons of the Tribunal dated 7 January 2014 and the reasons of the primary judge. I do not perceive any jurisdictional error by the Tribunal or any appellable error in the reasons of the primary judge.
I therefore do not consider that the grounds of appeal have merit.
CONCLUSION
I dismiss the appeal under s 25(2B)(bb)(ii) of the Federal Court Act. I order that the appellant pay the Minister’s costs as agreed or taxed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 27 May 2015
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