SZTVI v Minister for Immigration

[2014] FCCA 1356

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1356

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 474

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham(2000) 168 ALR 407
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
SZRCG v Minister for Immigration and Citizenship [2013] FCA 483

Applicant: SZTVI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 233 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 25 June 2014

Delivered at: Sydney

Delivered on: 26 June 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the First Respondent: Mr M. Wiese of Clayton Utz

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 3 February 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 233 of 2014

SZTVI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1220333, a decision of Tribunal Member S. Kamand dated 6 January 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. In accordance with the Court Orders made on 25 February 2014 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.  

3. The applicant was granted leave on 25 February 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which she sought to rely, however, elected not to do so.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. The applicant is a citizen of China who arrived in Australia as the holder of a business visa on 23 May 2012 (CB 3).  On 22 August 2012 the applicant applied to the Department of Immigration and Citizenship (as it then was) for a Protection visa (CB 1-31).  The application also included a written statement prepared by the applicant in English (CB 32-33).

3. On 26 November 2012 the applicant attended an interview with a delegate of the Minister in connection with her Protection visa application (CB 53).  The delegate refused to grant the applicant a Protection visa on 27 November 2012 and issued a decision to that effect (CB 49-67).

4. On 21 December 2012 the applicant applied to the Tribunal for review of the delegate’s decision (CB 68-72).  The applicant was invited to appear at a hearing before the Tribunal on 23 December 2013 (CB 86-87) at which she appeared (CB 96).

5. The key elements of the applicant’s written claims (CB 32-33) before the Tribunal can be summarised as follows:

   a)In China, the applicant and her husband had for some years conducted an agricultural business on land leased from the Government;

   b)This business was destroyed when the Government confiscated the land and bulldozed the production facilities;

   c)The applicant protested against the inadequate compensation that was offered.  This led to her arrest and detention pursuant to an order for her detention for 15 days;

   d)The applicant was unwell in detention and was mistreated, and only released upon payment of a fine;

   e)In a later incident, the applicant again protested at the injustice of her situation.  This led to a severe warning from the police that if she repeated this behaviour, she would be sent to gaol; and

   f)By these events the applicant lost everything.  Following these events she worried about being caught by the police and the applicant lived in constant fear.  This led her to consider going overseas.  If she went back to China, she would be living in fear.

6. Initially at the interview before the delegate of the Minister the applicant claimed that upon returning to China she would be perceived to be a Falun Gong practitioner or to have assisted Falun Gong practitioners while in Australia (CB 54), however, this claim was withdrawn at the applicant’s hearing before the Tribunal (CB 107 at [10]).  Similarly, the applicant raised a claim if returned to China she would be the subject of adverse attention by reason of her status as a failed Protection visa applicant (CB 54), however, this claims was withdrawn before the Tribunal (CB 107 at [12]).

The Tribunal’s Decision

1. The Tribunal at [10]-[11] of its Decision Record (CB 107) dealt with the applicant’s claims to fear harm based on a perceived involvement with Falun Gong.  The Tribunal made a finding that, on the evidence before it, it was not satisfied any claim to be at risk of harm in China based on perceived involvement with Falun Gong could be made out.

2. At [12]-[14] of its Decision Record (CB 107-108), the Tribunal dealt with the applicant’s claim to be at risk of harm in china if she returned as a failed visa applicant.  Again, notwithstanding this claim was retracted at the hearing, the Tribunal made a finding, that from the country information before it, it was not satisfied that returning to China as a failed protection visa applicant gave rise to any relevant risk of harm to the applicant.

3. The Tribunal dealt with the applicant’s claims relating to the purported confiscation of land at [17]-[27] of its Decision Record (CB 108-110).  The applicant’s claims were rejected based on the Tribunal’s adverse findings as to her credibility (CB 108 at [17]).  These findings were based on evidence and reasoning outlined by the Tribunal at [18]-[24] of its Decision Record.  In summary, the applicant gave evidence to the effect that she did not know the contents of her written statement (CB 108 at [18]).  The Tribunal asked the applicant about her claim to fear harm in China in consequence to events relating to the confiscation of the land which she and her husband had conducted the business.  The applicant was unable to give details of her claims or, to the extent that she gave evidence in relation to her claims, to give evidence consistent with her written statement (CB 109-110 at [21]-[24]).

4. The Tribunal found there were “overwhelming” concerns in relation to the truth of the applicant’s claims (CB 110 at [26]) and then identified and expressly rejected each of the key elements of those claims (CB 110 at [27]). The Tribunal, thus, did not accept there was any relevant risk of harm to the applicant for the purposes of assessing her Protection visa application against the criteria for a Protection visa in s.36(2) of the Migration Act (CB 112 at [35]). The Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa (CB 112 at [35]).

Current Proceedings

1. The application filed by the applicant on 3 February 2014 pleads the following grounds:

   1.  When assessing the credibility of my claims, although the Refugee Review Tribunal is not required to accept uncritically any or all of the claims [made] in my application, the benefit of the doubt should be given as I am generally credible but unable to substantiate all of my claims.  The Tribunal ignored my evidence and wrongly concluded that I had not attracted the adverse attention of the Chinese authorities.

   2.  The Tribunal underestimated my risk of being persecuted by the Chinese authority.  This was a judicial error since the Tribunal failed to properly make the well-founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559.  I fled from China since the persecution was happened to me.  Also, it was not a rare case that land acquisition causing protest and persecution in China.

   3.  The Tribunal made an [un]acceptable judgment about my experience in China; neither did it reflect the truth in a logic[al] way.  My case was not only a dispute regarding land, but I also had different political opinion against the Chinese authority.

Ground 1

1. Ground 1 of the application complains about the Tribunal’s assessment of the applicant’s credibility and alleges that the Tribunal ignored her evidence and reached a wrong conclusion.

Applicant’ Submissions

1. The applicant at the hearing indicated she had no submissions to make in respect of this ground.

Minister’s Submissions

1. The Minister submits that the applicant alleges in this ground she was generally credible, however, unable to substantiate her claims.  This allegation is not referable to the Tribunal’s reasons for decision.  The Decision Record demonstrates that the applicant was not found to be credible and was not able to substantiate any of her claims.  In reaching this conclusion the Tribunal considered all of the applicant’s evidence, including her responses to its concerns regarding her inconsistencies in her evidence (see, for example CB 109 at [21] and 110 at [24]).

2. It is beyond doubt that the assessment of an applicant’s credibility is a matter within the jurisdiction of the Tribunal.  From the evidence in the Court Book, the Tribunal’s findings were open to it and no error is disclosed in its reasoning.

3. As to the applicant’s allegation that the Tribunal reached a wrong conclusion, this does no more than invite merits review of the Tribunal’s and, as such, cannot be entertained by the Court on judicial review.

4. The Minister submits that Ground 1 should be rejected.

Consideration

1. This ground alleges the Tribunal ignored the applicant’s evidence.  A review of the Court Book reveals the only documentary evidence before to the Tribunal was the applicant’s written statement that had been provided with the original Protection visa application (CB 32-33).  The Tribunal’s Decision record at [5] notes the applicant’s written statement and at [17]-[27] (particularly [26]) the Tribunal considers both the applicant’s written and oral evidence and makes findings in this respect.  Accordingly, this aspect of Ground 1 of the application cannot be sustained.

2. Ground 1 of the application contends the Tribunal made a wrong finding in respect of the applicant’s claim to have attracted adverse attention from the Chinese authorities. This ground is not particularised in any way.  This allegation invites the Court to engage in impermissible merits review and cannot be sustained.

3. To the extent Ground 1 of the application alleges the Tribunal made a wrong finding in respect of the applicant’s credibility, this claim cannot be sustained.  The Tribunal’s finding that the applicant was not credible is a finding of fact par excellence: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham(2000) 168 ALR 407 per McHugh J at [67].

4. There is no error disclosed on the part of the Tribunal in Ground 1 of the application.  Accordingly, this ground cannot be sustained and should be dismissed.

Ground 2

1. In this ground the applicant cites the authority of Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and complains that the Tribunal failed to properly apply the “well-founded fear” test addressed in Guo (supra).

Applicant’s Submissions

1. The applicant elected to make no oral or written submissions in support of Ground 2 of her application.

Minister’s Submissions

1. The Minister contends there is no evidence the Tribunal applied the wrong test in relation to the applicant’s claims.  The Tribunal summarised this aspect of the law relevant to its decision at [44] of the Decision Record (CB 114).  In making its decision, the Tribunal made findings as to the likelihood of relevant forms of future harm in terms that reflected the statutory language.

2. Moreover, the Tribunal’s decision did not turn on the precise application of the law relating to the “well-founded fear test” for the purposes of the s.36(2)(a) criterion of the Migration Act for a Protection visa. Rather, the Tribunal did not accept any of the applicant’s claims or evidence. By any measure, the Tribunal was not satisfied that there was any relevant risk of harm to the applicant.

3. The Minister contends that, accordingly, Ground 2 should be rejected.

Consideration

1. His Honour Rares J stated in SZRCG v Minister for Immigration and Citizenship [2013] FCA 483 at [12] in respect of Guo (supra):

   12. … Their Honours said that an applicant for a protection visa must establish that his or her fear of persecution for a Convention reason is a well-founded fear. That is an objective requirement additional to the subjective requirement that he or she must hold such a fear (191 CLR at 571). Their Honours reasoned that, in determining whether there is a real chance that an event will occur or occur for a particular reason, the degree of probability that similar events have or have not occurred, for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future (191 CLR at 576).

2. In the application before this Court it is clear from the Decision Record the Tribunal did not accept any of the applicant’s claims or evidence.  The Minister’s submissions reproduced above at [27] and [28] accurately address this Ground.  Given the Tribunal was not satisfied there was any relevant risk (see [28]-[29] of the Decision Record at CB 111), it follows there was no misapplication of the test addressed in Guo (supra). 

3. Accordingly, Ground 2 of the application must also fail.

Ground 3

1. Ground 3 of the application raises two separate allegations.  The first is that the Tribunal’s decision lacked logic or was illogical.  The second is that the Tribunal failed to consider the applicant’s claim she “had different political opinion against the Chinese authority”.

Applicant’s Submissions

1. The applicant elected not to make any written or oral submissions in support of Ground 3 of her application.

Minister’s Submissions

1. The Minister submits  in respect of the “illogicality” ground of review the principles governing it were discussed by the Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1. Essentially, if the Tribunal’s findings of fact can be seen to be available on the evidence, the requirements for this ground of review are not made out.

2. In this matter the Tribunal identified reasons, based on the testimony of the applicant, for its conclusion that the applicant’s claims were not credible.  These reasons included the fact that the applicant was unable to state the content of her written statement or give evidence consistent with that statement.  From that conclusion as to credibility, the Tribunal was unable to accept the applicant’s claims and rejected them.  There is no basis for criticising the Tribunal’s logic in this regard.

3. In respect of the second limb of Ground 3, the Minister argues no such claim was made by the applicant or arose on the claims and evidence before the Tribunal.  In any event, it is not material how the applicant’s claims were characterized by the Tribunal.  All of her testimony and claims were rejected.

4. The Minister submits Ground 3 of the application should be rejected.

Consideration

1. In SZOOR (supra) his Honour Rares J stated at [15]:

   15. The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.

2. In respect of the first limb of Ground 3, I agree the submissions of the Minister, noted above at [36], that the Tribunal identified reasons based on the applicant’s testimony for reaching its conclusion that the applicant was not credible.  On a fair reading of the Decision Record, the Tribunal’s findings in this respect at [10]-[27] were open to it and no illogicality or lack of logic is discernable therein.  Accordingly, this limb of Ground 3 cannot be made out and must fail.

3. In respect of the second limb of Ground 3 of the application, this ground was not addressed by the applicant in submissions or particularised in any way.  On a fair reading of the Decision Record and Court Book, any failure to consider such a claim is not apparent and any claims relating to the applicant’s purported protests against the authorities were dealt with at [23]-[24] of the Decision Record (CB 109-110).  Consequently, this limb of Ground 3 must also fail.

Conclusion

1. Before the hearing on 25 June 2014 the written submissions of the Minister were translated to the applicant by a Mandarin interpreter engaged by the Court to assist the applicant at the hearing.  The applicant was asked if she had any submissions to make in chief, then in response to the Minister’s written submissions, noting the Minister did not make oral submissions at the hearing, and on both occasions the applicant declined to make any comment.

2. For the reasons stated above, none of the grounds of the application can succeed and must fail.  I have also undertaken a fair reading of the Court Book and the Tribunal’s Decision Record and no error is apparent on that reading.  Accordingly, the application should be dismissed with costs awarded to the Minister.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 26 June 2014