SZTVT v Minister for Immigration and Anor

[2014] FCCA 1290

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1290

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased, did not undertake a bona fide review and made incorrect findings of fact and by reason that the applicant was unwell at the Tribunal’s hearing and was denied a real and meaningful opportunity to put his case.

Legislation:

Migration Act 1958, ss.36, 424A, 425, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTVT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 263 of 2014

Judgment of: Judge Cameron

Hearing date: 12 June 2014

Date of Last Submission: 12 June 2014

Delivered at: Sydney

Delivered on: 12 June 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 263 of 2014

SZTVT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 5 August 2012 and was detained by immigration officials on 30 July 2013.  On 13 August 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in China because of his former wife’s gambling debts and, alternatively, because of his Taoist beliefs.  On 17 October 2013 that application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection were summarised by the Tribunal in its decision.  As summarised by the Tribunal, the applicant  made the following claims in his protection visa application:

   a)he feared returning to China because he would be tortured and persecuted by police and thugs because of his former wife’s gambling debts;

   b)he was beaten, arrested and detained for seven days when he attempted to stop the demolition of his house;

   c)his family’s farming land had been expropriated by developers; and

   d)in January 2012 he was detained for a day after the police raided his parent’s home while he and his family were worshipping “Wang Ye Jiu Qian Sui”.

2. The applicant was interviewed by the delegate on 29 August 2013 and relevantly made the following claims:

   a)his former wife had gambled on mah-jong.  He later referred to her gambling on cards;

   b)in June 2012 he was abducted by casino operators.  He escaped at 2 or 3am, waited until 6am and was then taken by motorcycle to a friend’s house; 

   c)he was arrested after he reported the gambling to the police because the police had connections to the casino.  His friend paid RMB1,500 to have him released;

   d)while in China he had owned and worked on a farm but had also needed to look for other work as a painter.  He later stated that he had only worked as a farmer and therefore did not have the money to repay his former wife’s debts in June 2012;

   e)he was assaulted by police officers when they raided his family’s home in January 2012;

   f)he was detained for seven days when he protested the demolition of his home which had been built in 2008; and

   g)he had borrowed money from a relative in Australia and had transferred $20,000 of the $30,000 he had earned while working in Australia to his family in China.

3. The applicant appeared before the Tribunal on 16 December 2013 and relevantly gave the following evidence:

   a)his former wife had gambled on pai jiu but not mahjong;

   b)his former wife owed RMB300,000 or RMB400,000 in China after gambling for only ten to twenty days in the latter half of 2011.  The gambling operators asked him to pay RMB550,000 in June 2012.  He had paid off RMB100,000 since being in Australia and owed a further RMB400,000.  He estimated that the interest rate on the loan was at least thirty per cent but was unsure of the exact rate as he had not borrowed the money;

   c)he had escaped from the casino operators after midnight and caught a taxi to his friend’s house, arriving at 1 or 2am;

   d)he could not remember whether he had been arrested when he reported the gambling to the police;

   e)he did not own, nor had he ever owned, a farm.  His parents had owned a farm but it had been repossessed.  He variously claimed that the farm had been repossessed in 2010, 2011 and 2012;

   f)the police officers had smashed things when they raided his family’s home in January 2012 but had not harmed him;

   g)he had been detained for three days for protesting the demolition of his home, which had been built in 2004;

   h)he had not owed any money to anyone in Australia;

   i)from working in Australia, he had earned approximately $600 per week from mid-2012 until he was detained on 30 July 2013.  He had transferred between $30,000 and $40,000 back to China from his earnings in Australia and had $1,400 in savings.  When put to him that he could have only earned approximately $30,000 in this period, he claimed that he had had a second job which he had not disclosed previously because it was illegal for him to work in Australia;

   j)he did not have any reason to fear returning to China apart from the gambling debts.  The government would not do anything about his religion but just used it as an excuse; and

   k)the inconsistencies in his evidence arose out of him being confused because he might have caught a cold the previous night.  As a result of a severe headache he could not understand the Tribunal’s questions properly and was guessing at what the Tribunal was asking him.

4. In response to a letter from the Tribunal sent pursuant to s.424A of the Act inviting him to comment on or respond to information, the applicant gave the following additional information:

   a)he denied saying that he owed money to relatives in Australia and the interpreter at the departmental interview must have made an interpretation error;

   b)he denied telling the delegate that he had transferred AU$20,000 to his family in China and claimed that he had said he transferred hundreds of thousands of renminbi back to China;

   c)he had called himself a farmer to describe his social status not his job;

   d)the inconsistencies in his evidence were because of a severe headache at the Tribunal hearing and because he had not understood the Tribunal’s questions;

   e)he had been detained for a week after protesting the demolition of his home;

   f)he had been arrested when he reported the gambling to the police and a friend had to pay RMB1,500 to have him released;

   g)he had not referred to loan sharks or gambling in his compliance interview because he knew it was illegal in China to borrow money from a loan shark or to have debts relating to gambling and feared he would be discriminated against because of it; and

   h)he did not file a protection visa application sooner than he had as he had not known how much one would cost to file and had thought that he would not be able to afford it.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)it found the applicant’s account of being abducted by gambling operators in June 2012 to be inconsistent and unpersuasive.  The Tribunal considered that while he might not have been able to recall the exact time of his escape, it would have expected him to recall whether or not he had stayed for an extended period of time before travelling to his friend’s house.  It did not accept the applicant’s claims that these inconsistencies were due to an interpretation error at the hearing or because he had suffered a headache that had impaired his ability to provide evidence.  The Tribunal noted that the applicant chose not to provide any comment about the inconsistencies when they were put to him at the hearing;

   b)it found the applicant’s account of what gambling his former wife was involved in inconsistent and unpersuasive.  The Tribunal did not accept the applicant’s explanation for his inconsistent evidence: that he was only told what his wife had gambled on and did not know the difference between mahjong, pai jiu and card games;

   c)the applicant’s account of how much money he owed in China and the identity of his creditors was inconsistent and unpersuasive and led the Tribunal to doubt that he owed money to loan sharks as claimed.  It expected the applicant to have been more aware of the details of the loans and how much money he owed;

   d)it also referred to the applicant’s inconsistent evidence about his debts in Australia and did not accept his claim that the interpreter at his departmental interview had made an interpretation error; 

   e)given the applicant’s claims at its hearing about his earnings, the Tribunal did not accept that he had transferred between $30,000 and $40,000 to China.  It did not accept the applicant’s claim at the hearing that he had had a second job and considered that he was changing and fabricating his evidence in response to its concerns.  After listening to a recording of the delegate’s interview, it also found that the applicant had stated in that interview that he had transferred $20,000 to his family in China;

   f)it found the applicant’s evidence in relation to his employment, his farmland and the date on which his parent’s farm was repossessed to be inconsistent. The Tribunal noted that the applicant had given several dates for the repossession of his family’s farm during its hearing and, in the absence of medical evidence, did not accept that his confusion was because of a cold as he claimed;

   g)whilst the Tribunal accepted that the applicant might have held Taoist beliefs, it was not satisfied that he had been beaten or detained in China as a result of his religion.  In this connection, the Tribunal referred to his inconsistent evidence relating to his treatment by the police and did not accept his claim in his post-hearing submission that he had not understood its questions during the hearing because he had had a bad headache.  It did not consider that the applicant would have stated that he had no fears as a result of his religion if he had previously been detained and beaten for practising his religion.  It also noted that Taoism was one of the officially recognised religions in China and official tolerance for Taoism and Buddhism was greater than for groups associated with other religions;

   h)it was not satisfied that the applicant’s house had been demolished, if it had existed at all, or that he had been arrested for protesting in relation to this.  In this connection, the Tribunal referred to the applicant’s inconsistent evidence in relation to when the house had been built and how long he had been detained after protesting its demolition.  It did not accept that these inconsistencies were the result of a misunderstanding or the applicant’s headache at its hearing;

   i)due to his inconsistent and unpersuasive evidence relating to his treatment by the police, it was not satisfied the applicant had been arrested for reporting illegal gambling in China;

   j)the applicant’s statements at the time he was placed in immigration detention were not consistent with his claimed fears about returning to China.  The Tribunal noted that the applicant claimed in his compliance interview that he could not go back to China because he owed money to his relatives but made no mention of loan sharks or gambling.  It considered that the applicant wished to remain in Australia because he had the ability to earn more money here in order to repay the debts to his relative and found his claims as to why he did not raise his alleged fears of loan sharks earlier to be unconvincing; and

   k)it did not accept the applicant’s explanation for his delay in filing a protection visa application and considered that the delay cast further doubts on his protection claims.  In this connection the Tribunal noted that the applicant arrived in Australia on 5 August 2012 on a tourist visa that ceased on 5 November 2012 and lodged his protection visa application on 13 August 2013 after being detained on 30 July 2013.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.Tribunal made a jurisdictional error by falling [sic] consider my envidence [sic] objectively and independtly [sic]

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

2. At the hearing of this application the applicant also alleged, in substance, that he had been unable to present his case to the Tribunal in an appropriate manner because he had been unwell and had been unassisted by his migration agent who had not attended the Tribunal hearing even though, the applicant asserted, he had said that he would.

Ground 1

1. The allegation that the Tribunal did not consider the applicant’s evidence objectively implies that the Tribunal was biased in some way.  Such an allegation is very serious and should be made plainly and proved clearly.  It was certainly not made plainly and, for that reason, ought not to be entertained.  However, as the applicant is unrepresented, his concern should perhaps not be dismissed so peremptorily.  Having read the Tribunal’s decision, unassisted by any indicia of bias having been identified, I have not perceived anything to suggest that the Tribunal did anything other than consider the evidence before it on its merits, even if the style of decision record now apparently favoured by the Tribunal does have an unfortunate, tendentious structure which makes the evidence appear to suit the findings rather than the findings arise from the evidence.

2. The second element of the first ground of the application implies, by alleging that the Tribunal did not consider the applicant’s evidence “independently”, that the Tribunal did not consider matters for itself.  I have discerned no evidence of this.  The Tribunal appears to me to have conducted its own inquiry and to have reached its own conclusions on the evidence in a decision which was considerably more substantive than the delegate’s.  Moreover, the Tribunal’s conclusions were ones open to it on the evidence before it.

Ground 2

1. The allegation in the second ground of the application, that the Tribunal erred by finding that the applicant’s account of events was a fabrication, is a challenge to a finding of fact.  The nature of the allegation discloses no argument of law but merely a disagreement with the conclusion in question.  The Tribunal’s decision will not be affected by error of law simply because it contains a finding on the evidence which someone else might not have made.  The question is, relevantly, whether the finding in question was open on the evidence.  In this case, I find that the Tribunal’s adverse finding concerning the applicant’s credibility was open to it on the evidence and thus unaffected by jurisdictional error.

Ground 3

1. As noted earlier, at the hearing of this application the applicant alleged that he had been unable to present his case to the Tribunal because of illness and because his migration agent had been absent from the Tribunal hearing.  The migration agent’s absence does not add anything to the substance of the allegation which is that, because of illness, the applicant was unable to present his case adequately before the Tribunal.

2. The applicant told the Tribunal that he had a cold and a headache but it did not believe him to have been unable to present his case.  No medical evidence was adduced at the hearing of this application to suggest that the Tribunal’s decision on this issue was incorrect or that it was affected by legal error of some sort.

3. Considering all the circumstances and, in particular, the Tribunal’s findings in paras.17 and 19 of its decision record, I am not persuaded that any illness or unwellness from which the applicant may have suffered during the Tribunal’s hearing disabled him from presenting his case such that he was denied the real and meaningful hearing guaranteed by s.425 of the Act.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

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

Associate: 

Date:  23 June 2014