SZTWU v Minister for Immigration

[2014] FCCA 1213

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1213

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 denied the applicant procedural fairness and failed to take relevant considerations into account.

Legislation:

Migration Act 1958, ss.36, 422B, 424A, 425, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241

Applicant: SZTWU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 359 of 2014

Judgment of: Judge Cameron

Hearing date: 2 June 2014

Date of Last Submission: 2 June 2014

Delivered at: Sydney

Delivered on: 2 June 2014

REPRESENTATION

The Applicant appeared in person via video link

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 359 of 2014

SZTWU

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 as the holder of a student visa on 18 May 2007.  On 8 October 2013 he lodged an application for a protection visa alleging that he feared persecution in China because of a debt he owed.  On 14 November 2013 the 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’s 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 visa are set out on pages 2-5 of the Tribunal’s decision which was reproduced in the court book, exhibit A in the proceedings.

2. The applicant made the following claims in his protection visa application:

   a)he feared that if he returned to China he would be harmed by people smugglers or “snakeheads”.  He had borrowed money from the “snakeheads”, who organised his student visa and passport, but had become addicted to gambling in Australia.  Over time the loan had accumulated interest and his debt had become unpayable;

   b)his parents could not repay the loan and had been threatened by the “snakeheads”; and

   c)the “snakeheads” had strong links to the police and would be able to make the authorities gaol him for failing to repay the loan.  He also feared being persecuted by the police for obtaining assistance from the “snakeheads”.

3. When interviewed by the delegate on 23 October 2013, the applicant made the following claims:

   a)his father had borrowed 200,000RMB from a loan-shark at a monthly interest rate of 5% but the loan was made out in his, the applicant’s, name and he had signed for it because his father had wanted him to take “maximum responsibility” for his studies;

   b)he had found it difficult to earn money in Australia and had developed a gambling addiction so he had not made any repayments of the loan.  His debt was over 7 million RMB;

   c)the loan-sharks frequently visited his parents and took any money they found; and

   d)the police would not be able to protect him because the loan-sharks colluded with them and he could not relocate within China because it would be difficult for him to change his household registration and to obtain permission to move.

4. The applicant appeared before the Tribunal on 24 January 2014 and made the following additional claims:

   a)his parents told him a month before he left China that he was to study in Australia and he applied for a passport and visa at that time.  The applicant then said he had applied for the passport himself several months before he left China through normal processes after his parents told him that he would need one but had given money to the “snakehead” to organise his visa and “other things”.  His passport was issued in October 2006;

   b)although he was only sixteen or seventeen at the time he signed the loan documents, the loan-shark had allowed it because his father had signed an undertaking to be his “sponsor”.  The document his father signed allowed the loan-shark to recover the debt from his father if he failed to repay it.  His father had told him this after his interview with the delegate;

   c)his father only earned enough to cover the cost of living and so had not made any repayments towards the debt;

   d)he was not sure if his parents had been threatened before 2010 but they had only told him that they had been threatened that year when he stated that he wanted to return to China.  They told him that it was not safe;

   e)prior to 2010 he and his parents had never discussed the loan and he had not contacted them frequently because he had not had any money to give them.  He then said that his father had mentioned the loan several times before 2010 but he had not wanted to talk about it and so had hung up on each occasion;

   f)during a departmental interview conducted before he applied for a protection visa he had said that he did not have any debts overseas because he had not known that he could seek protection on that basis and because he had not felt that he could tell a stranger about it; and

   g)the bank statement his father had provided to demonstrate that he had sufficient funds in support of his student visa application was fraudulent.  It was easy to obtain false documents in China.

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 did not accept that the applicant owed a debt to a criminal gang, or something similar, or that a criminal gang was targeting his parents to recoup the debt. In this connection the Tribunal noted that:

   a)at an interview conducted by a departmental officer on 3 September 2013, before the applicant applied for a protection visa, he had stated that he had no debts overseas.  It also noted that during the same interview, when given the opportunity to do so, the applicant had made no reference to being fearful of returning to China.  The Tribunal found that the likely interpretation of the applicant’s failure to make those claims was that he did not owe a debt to, or fear, a criminal gang in China;

   b)the applicant initially claimed that the loan-shark had obtained both his passport and visa before saying that he had obtained the passport through normal processes.  The Tribunal also noted that at its hearing the applicant had initially claimed that he had only found out about a month before leaving China that his parents wanted him to study abroad, which was inconsistent with his later evidence that he had applied for his passport several months before his departure because of the plan for him to study abroad.  The Tribunal found that those internal inconsistencies in the applicant’s evidence cast doubt on his reliability as a witness;

   c)the Department had conducted a check with the bank which had issued the applicant’s father’s bank statement in support of his student visa application and the bank had confirmed that the information in the statement was correct.  The Tribunal was therefore satisfied that the applicant’s family had had sufficient funds to obtain the applicant’s student visa without the need to borrow from a third party; and

   d)the applicant claimed to have entered into a loan agreement when he was seventeen and when queried about that claim said that his father had told him that he (the father) had also signed an undertaking with the loan shark.  In light of its doubts about the applicant’s credibility and the implausibility of his father having never told him that information before, it found the applicant’s explanation for entering into the loan agreement at seventeen far-fetched.  The Tribunal was not persuaded that the applicant’s father had said what the applicant claimed he had said and found it highly implausible that a loan-shark would have entered into a loan agreement for a large sum with a seventeen-year-old boy.

2. In light of its finding about the applicant’s claimed debt, the Tribunal concluded that the chance that he would be harmed or suffer significant harm as a result of a failure to repay such a debt was remote.  It found that the chance that he would be harmed in any way by the police or authorities because he had borrowed money from a criminal gang was also remote.

Proceedings in this Court

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

   1.The decision of the Tribunal:

   a)is affected by the procedural unfairness.

   b)failed to take into account relevant considerations.

Ground 1

1. The first ground of the application is unparticularised and therefore lacks material substance. Nevertheless, it should be observed that procedural fairness is codified, as far as is relevant to this case, by s.422B of the Act in the provisions of div.4 of pt.7 of the Act. The provisions of that division relevant to this case are ss.424A and 425.

2. As far as s.425 is concerned, the Tribunal’s obligation was to invite the applicant to a hearing at which he could give evidence and present arguments in support of his application for review and to advise the applicant of any issues arising in relation to the decision under review, that is to say, the delegate’s decision. The Tribunal did invite the applicant to a hearing, which he attended, and the issues dispositive of the review were put to him during the course of that hearing, specifically, the question of how credible his claims were. Consequently, I am not of the view that the Tribunal failed in any of its s.425 obligations.

3. Turning to s.424A, at the commencement of the hearing I was concerned that the Tribunal had not complied with that provision because, although it was apparent from its reasons that the Tribunal had relied on information which was to be found in the delegate’s decision record, it had not made it plain in its reasons how it came to be possessed of that information. It would have assisted the hearing of this matter if the Tribunal’s decision had been clearer on this point. However, following a short adjournment the Minister was able to produce evidence to the Court which has satisfied me that the applicant’s migration agent had provided to the Tribunal a copy of the delegate’s decision record and thus that the information which it contained fell within the exception to the operation of s.424A(1) found in s.424A(3) of the Act: Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241. I am therefore satisfied that the Tribunal did not breach s.424A of the Act in its review of the delegate’s decision on the applicant’s visa application.

4. For those reasons, the first ground of the application has not been made out.

Relevant considerations

1. Again, the applicant’s allegation was not particularised.

2. I agree with the Minister’s submission that:

   A fair reading of the Tribunal’s decision record discloses that there is no aspect of the applicant’s claims that the Tribunal failed to consider.

   The Tribunal considered the applicant’s claims, tested them against the various criteria for the grant of a protection visa and concluded that it was appropriate to affirm the delegate’s decision that the applicant not be granted a protection visa.

3. I find that the applicant has not made out his allegation that the Tribunal failed to take relevant considerations into account.

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 nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 12 June 2014