SZTWM v Minister for Immigration

[2015] FCCA 1185

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1185

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether it was reasonably open to the Tribunal not to accept the applicant as a witness of credit – whether it was reasonably open to the Tribunal not to accept as authentic documents on which the applicant relied – whether the Tribunal acted unfairly in relying on inconsistent evidence given by a person not a party to the application for review – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424AA

Applicant: SZTWM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 335 of 2014

Judgment of: Judge Manousaridis

Hearing date: 3 September 2014

Delivered at: Sydney

Delivered on: 8 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms H Dejean of
Australian Government Solicitor

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 335 of 2014

SZTWM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

The applicant’s claims

1. In his application for a protection visa, the applicant claimed a protection visa on the grounds that he was badly beaten and harmed in other ways by government officials, that he was dismissed from his employment, and that he could not find other employment, because he opposed a decision made by the government to demolish the applicant’s father’s house. The demolition was ordered to provide land for an adjoining factory. The government offered the applicant’s family a resettlement house which they were asked to buy, the applicant’s family appealed to higher levels of government, but without success.

2. Before the delegate, the applicant claimed the government had offered a particular amount for compensation, but only if the applicant’s family agreed to purchase a property for an amount greater than the amount of compensation offered.[1] He claimed he would go to gaol if he returns to China because he went overseas, and because his family did not pay for the resettlement property.

   [1] CB56

The Tribunal’s decision

1. The Tribunal found the applicant was not a witness of truth. First, the Tribunal found the applicant gave inconsistent evidence about the circumstances in which he completed his application for a protection visa.[2]

   [2] CB85-86, [11]-[12]

2. Second, the Tribunal found the “applicant’s evidence regarding the claimed cessation of his work in China in 2011 to be internally inconsistent, evolving and unconvincing”[3]. It so found because, before the Tribunal the applicant said he worked until September or October 2011 whereas in his written application the applicant said he ceased his employment in December 2011. When this inconsistency was brought to his attention, the applicant said he was given notice in September or October 2011, but continued to work until December 2011. This evidence, however, was inconsistent with evidence the applicant gave that he was informed orally not to return to work the following day.[4] Thus, the Tribunal was not satisfied the applicant was asked to leave his job, or that “his work was adversely impacted by his claimed failure to sign any demolition or compensation agreement”.[5]

   [3] CB86-87, [13]

   [4] CB86, [13]

   [5] CB86-87, [13]

3. Third, the applicant gave evidence that was inconsistent with evidence given by his father in another application before the Tribunal about where the applicant and his family came to stay after the house was demolished. The principal points of difference were that the applicant, but not his father, claimed they paid rent; and that the applicant’s father, but not the applicant, knew the name of the landlord.[6] The Tribunal, therefore, was not satisfied the applicant was required to live in alternative rented accommodation with his father, mother, wife and child after his father’s house had been demolished.[7]

   [6] CB87-88, [16]

   [7] CB87, [16]

4. Fourth, the applicant gave inconsistent and changing evidence about his and his family’s intention to protest the government’s decision to demolish the house.[8]

   [8] CB88, [17]

5. Fifth, the Tribunal considered to be vague the evidence the applicant gave in response to the Tribunal’s putting to the applicant that the developer could sell to someone else the property offered to the applicant’s family.[9] The applicant’s evidence was that government officials and thugs associated with the developer approached his mother about the offer after the applicant and his father left China.

   [9] CB88-89, [18]

6. Sixth, the Tribunal was not satisfied the applicant petitioned the Chinese authorities in any way, or sent any letters of protest, petition or objection to any entity or person in China in relation to any demolition or compensation offer or any claimed adverse treatment in relation to himself or his family.[10]

   [10] CB88, [17]

7. Further, the Tribunal did not accept as authentic documents the applicant provided which purported to show a request addressed to the applicant’s father that he comply with a demolition application, hospital treatment of the applicant on the day he claimed he had been beaten and injured, and an offer of compensation. The Tribunal did not accept the authenticity of these documents because fraudulent documents are widely available in China, and because of the “cumulative credibility concerns” the Tribunal had with the applicant’s evidence.[11] Although it accepted the applicant had been involved in an incident involving an injury to the applicant’s eye and face that left a scar, the Tribunal was not satisfied the injury occurred in the circumstances the applicant claimed it occurred.[12]

[11] CB89-90, [20]

[12] CB90, [21]

The grounds of review

1. The application filed in this Court contains four grounds of review. The first is that the Tribunal “refused my evidence for no good reason”. The only submission the applicant, who is not legally represented, made before me in relation to this ground was that he did not understand why the Tribunal “claimed” his evidence was unreliable.

2. The Tribunal set out the reasons on which it relied for not accepting the applicant was a credible witness. Each of the reasons on which the Tribunal relied were matters on which it was reasonably open to it to rely to assess the credibility of the applicant’s evidence. Ground 1, therefore, does not succeed.

3. The second ground stated in the application for review is that “[m]y injuries are 100% true, but tribunal says it’s fake”. At the hearing, the applicant submitted that definitely his eyes sustained an injury, and he did not understand why the Tribunal “claimed” evidence from China was unreliable.

4. The Tribunal did not find the injury the applicant claimed he sustained was fake. The Tribunal accepted the applicant sustained an injury to his eye and face. The Tribunal, however, was not satisfied the injury was caused by his having been beaten by government authorities, as the applicant claimed. Given the reasons on which the Tribunal relied for not accepting the applicant was a witness of credit, it was reasonably open to the Tribunal not to accept the applicant’s evidence that the injury he sustained to his eye and face arose as a result of the incident on which the applicant relied. Given those same reasons, and the country information on which the Tribunal relied, it was also reasonably open to the Tribunal not to accept as authentic the “discharge memo” that purported to be evidence of the applicant’s hospitalisation following the beating the applicant claimed he sustained on the day the applicant’s father’s house was demolished. Ground 2, therefore, also fails.

5. The third ground stated in the grounds of application is that the Tribunal “says my hospital record and assessment is fake because they are made in China”. The applicant submitted that he did not see why all documents from China could be dismissed as fraudulent. The applicant asked, rhetorically: if he wanted to submit real documents, from where would he be able to obtain them?

6. The Tribunal did not decline to accept the authenticity of the “discharge memo” on the premise that the document was produced in China. The Tribunal did not accept the document’s authenticity partly on the basis of country information to the effect that almost any document can be bought or forged in China; and also on the basis of “the cumulative credibility concerns detailed in the Tribunal’s considerations”.[13] It was reasonably open to the Tribunal not to accept the authenticity of the “discharge memo” or the authenticity of the other documents on which the applicant relied. Ground 3, therefore, also fails.

   [13] CB89-90, [20]

7. The fourth ground stated in the grounds of application is that the Tribunal “tried to use something I didn’t know to contradict my father’s evidence, this is unfair”. At the hearing the applicant submitted that his father did not want to tell the applicant “in terms of the rent and the rest of it because he didn’t want to give me pressure or create stress so I didn’t know about it”.

8. The applicant’s complaint appears to be that it was unfair for the Tribunal to rely on evidence the applicant’s father gave about the terms on which the applicant, and the applicant’s father, mother, wife and child occupied the premises to which the applicant claimed they all moved after the applicant’s father’s home had been demolished; and it was unfair because, the applicant claimed, the applicant’s father did not disclose those matters to the applicant to avoid causing the applicant pressure or stress.

9. There can be no issue of any unfairness in the Tribunal’s relying on evidence the applicant’s father gave about such living arrangements. The Tribunal’s reasons record that, pursuant to s.424AA of the Migration Act 1958 (Cth), the Tribunal informed the applicant of the evidence the father had given about where the family had lived after the demolition of the father’s house, and also informed the applicant the Tribunal may rely on the applicant’s father’s evidence to conclude that both the applicant and the applicant’s father had not been truthful about their claimed circumstances in China.[14]

   [14] CB87, [15]

10. As to the oral submissions the applicant made in relation to the fourth ground, the Tribunal’s reasons do not record the applicant claimed that his father did not discuss with the applicant matters concerning the terms on which the applicant and his family lived in the premises to which they moved after the demolition of the applicant’s father’s house. The Tribunal’s reasons record that when the applicant was informed of what the applicant’s father had said about those arrangements, and in particular, that no rent was being paid, the applicant claimed that the applicant’s father might think they do not pay rent, but they do pay for electricity, water, and gas. The applicant also repeated his evidence that he did not know the name of the landlord.[15]

    [15] CB87, [16]

11. Ground 4 of the application, therefore, also fails.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 8 May 2015