SZTXH v Minister for Immigration and Border Protection

[2016] FCA 73

FEDERAL COURT OF AUSTRALIA

SZTXH v Minister for Immigration and Border Protection [2016] FCA 73

Appeal from:	SZTXH & Anor v Minister for Immigration & Anor [2015] FCCA 2508
File number:	NSD 1172 of 2015
Judge:	ROBERTSON J
Date of judgment:	10 February 2016
Date of hearing:	10 February 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	18
Counsel for the Appellants:	The Appellants appeared in person with the aid of an interpreter
Solicitor for the First Respondent:	Ms N Blake of Clayton Utz
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

ORDERS

NSD 1172 of 2015

BETWEEN:

SZTXH

First Appellant

SZTXI
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	10 FEBRUARY 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the costs of the first respondent, fixed in the amount of $3,700.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1. This appeal is from the judgment and orders of a judge of the Federal Circuit Court of Australia (the primary judge) given and made on 17 September 2015. By those orders the primary judge dismissed the proceeding commenced by way of application filed on 21 February 2014, with costs.

2. The application to that court was for judicial review of a decision of the then Refugee Review Tribunal dated 21 January 2014 affirming the decision not to grant Protection (Class XA) visas to the appellants.

   The decision of the Tribunal

3. Before the Tribunal, the appellants claimed to be in a de facto relationship and citizens of the People’s Republic of China. Only the first appellant made specific claims for protection: the second appellant, her de facto partner, relied on his membership of her family. I shall refer to the first appellant as the appellant.

4. The Tribunal summarised the appellant’s claims to fear harm in China as being on the Convention ground of her political opinion, as a result of petitioning she planned to carry out over the destruction of her parents’ business by corrupt local officials. She also claimed to fear harm because she and her partner would have breached China’s family planning regulations by having two children out of wedlock.

5. The parts of the reasons of the Tribunal referred to in the notice of appeal, which I set out at [9] below, are as follows:

   24.The Applicant further claims that local village leaders demanded a share in her family’s business and, when they were refused, moved to resume the land without paying compensation. She claims they demolished the piggery and, later, the fish farm; beat her father; injured her mother in a staged vehicle accident and a later assault; attacked and badly damaged her parents’ house; accused them of being against the government and a bad influence; and forced them to end their lease prematurely. The house was later demolished by her family’s creditors who were angry over their failure to repay loans taken out to establish the business. She claims her family is now living in poverty and her father is in some unknown location petitioning the authorities about the uncompensated loss of his business. I have strong doubts as to the credibility of these claims, for the following reasons:

   ·The Applicant has produced no substantiation for her claims about the harm done to her family by local officials or village elders, beyond six photographs. Five of these photographs appear to show a fish farm and a piggery while the sixth shows what appears to be the remains of a demolished building. There is nothing in these photographs to demonstrate either that the buildings belonged to her family or that the demolished building was, in fact, the piggery shown in the other photographs. She has produced no documentation relating to what is said to have been a lengthy dispute, such as correspondence, demolition orders, demands for the resumption of the land or demands for the termination of the lease although I accept that such formal documents might not have existed if her family were subjected to demands which had no legal basis. More significantly, she has not produced any of the documentation which might reasonably be expected to have been prepared by her father if he had, in fact, made efforts to petition the authorities against the resumption of his leased land. Even if he had been prevented from delivering this material to the local authorities, as the Applicant claimed at the hearing, it is difficult to understand why none of it has been submitted in the course of her efforts to seek protection in Australia.

   …

   ·The Applicant’s claims regarding the current circumstances of her family are vague and implausible. She claimed at the hearing that they are now homeless after their friends and relatives demolished their house in about December 2012 in retaliation for their failure to repay money they borrowed to establish their business. As put to her, it seems difficult to understand why friends and relatives would take such extreme action to destroy an important asset held by a debtor. I note her claim that the house was without value but I am not satisfied this is plausible if they had been running a successful business for some time. I find it implausible that her father can have abandoned the Applicant’s mother to go petitioning the authorities, in unknown parts, on the basis that the injuries she sustained in a vehicle collision would slow him down. I find it implausible that the Applicant, if she is so supportive of her parents that she is eager to risk her safety and that of her own children by petitioning the authorities on their behalf, would nevertheless be in only infrequent contact with her mother and would not even know in what Province her father was living.

6. The Tribunal was not satisfied as to the truth of the appellant’s claims concerning harm suffered by her family. The Tribunal did not accept that their piggery and fish farm business was destroyed because corrupt local figures demanded a share in it, in the circumstances the appellant described. The Tribunal did not accept that as a consequence her parents were denounced to the authorities as being against the government, that her father was beaten, that her mother was injured in a staged vehicle accident and a later assault, that her family home was damaged, or that her parents were now homeless. It followed that the Tribunal did not accept that the appellant’s father had ever petitioned against the loss of his business or that he was living in some other Province in China while engaged in this activity.

7. The Tribunal said it was reinforced in its conclusions by the lengthy delay between the appellant’s arrival in Australia in November 2007 and her application for a protection visa in June 2012, nearly 5 years later. Even if the claimed misfortunes had struck her family over an extended period rather than at any particular point, as she claimed, the Tribunal was unable to be satisfied that the objective reasons for the fear she now claimed to hold would not have been present long before June 2012 if the claims were true. The Tribunal was not satisfied that the delay was consistent with her claims to fear harm in China.

8. The Tribunal also found that it was not satisfied as to the truth of the appellant’s claims concerning her parents’ circumstances in China – specifically that they were effectively separated, homeless, and living in poverty. That being the case, the Tribunal was not satisfied that the appellant would, in fact, lack the support of her own family if she were to return to China. Nor was the Tribunal satisfied that the available information demonstrated that the appellant and her children would not be able to find support from her partner’s family. The Tribunal was not satisfied that if they were to return to China they would be unable to find employment of some kind and establish themselves. In those circumstances the Tribunal was not satisfied that there was a real chance that they would suffer serious harm in China simply because they were required to pay fines imposed on them for breach of China’s family planning regulations.

   Grounds of appeal

9. The grounds of appeal are as follows:

   1.In the RRT decision, the first section of paragraph 24 mentioned that, except for the photographs. I did not provide any other materials. Because the local government forced us to give up our business with illegitimate approaches, which directly caused large losses on us. It was impossible for us to get proper documentations such as the demolition certificate. In addition, the documentations and materials we used to have for the appeal have been confiscated and destroyed by the government.

   2.Referring to the 4th section of paragraph 24, RRT could not understand the reason why the relatives would like to demolish our home. It actually the same thing in Australia, to the bank, houses are valuable; to the relatives, destroying our home, making us homeless was their way to revenge.

   3.My partner’s health has been in a bad condition (Disability certificate has been handed in). my partner is unable to do any heavy work. It means, if we go back to China, we definitely will be persecuted, it’s very likely [second applicant] will not survive. By then, I will become a single mother without any income, and have to wander from place to place to hide myself from the persecution. These facts of never being considered by the RRT.

10. These grounds were the same as the grounds of the application for judicial review to the Federal Circuit Court, although the grounds in the notice of appeal in this Court do not contain what was then ground four: “The above suggests RRT’s lack of fairness to me.”

    The judgment of the Federal Circuit Court

11. As to ground 1, the primary judge held that the ground raised no jurisdictional error by the Tribunal. The ground was held to be a submission to explain why the appellant did not have documents which the Tribunal considered the appellant ought to have had available if the appellant’s claims were true. In the Federal Circuit Court, the appellant, who was not legally represented, said that she did not inform the Tribunal that the government had confiscated documents; but that was because the Tribunal did not ask her. The primary judge held this showed no jurisdictional error. The appellant also submitted that there were no documents because the destruction of her parents’ business was done illegally. Again, the primary judge held, this submission disclosed no jurisdictional error. The primary judge pointed out that what was significant for the Tribunal was that the appellant did not produce documents which might reasonably be expected to have been prepared by her father if he had, in fact, made efforts to petition the authorities against the resumption of the leased land on which the fishery and piggery business was conducted.

12. As to ground 2, the primary judge held that it did not disclose any jurisdictional error but was a submission that went to the merits of the claim the appellant made to the Tribunal.

13. As to ground 3, the primary judge held that the appellant made no such claim before the Tribunal and no such claim could reasonably be taken to have been made in, or to have arisen from, the material that was before the Tribunal. In any event, the primary judge said, even if such a claim could reasonably be taken to have arisen from the material, the claim would have been necessarily premised on the elements of the claim the appellant had made before the Tribunal, which the Tribunal did not accept. The claim was that the appellant would be unable to pay the fine or social compensation fee because her partner was disabled and the appellant could not afford to pay the fee, even by instalments, because the appellant could not support herself. The Tribunal rejected that claim because the Tribunal was not satisfied the appellant would lack support from her family, or from her partner’s family; and the Tribunal was not satisfied that, notwithstanding the appellant’s partner’s medical condition, they would be unable to find employment and establish themselves.

    The submissions of the parties

14. The appellant filed no written submissions. She made the following oral submissions. First, the appellant submitted that she had had to go to the Tribunal twice because on the first occasion the interpreter had to stop. She submitted she should have been informed of the duration of the hearing and that it was to be interrupted. The hearing dates in the Tribunal were 13 November and 29 November 2013. Secondly, the appellant submitted there was no basis for the finding that her partner had a disability which was not fatal. Thirdly, the appellant submitted that her daughter had been born, in June 2014, after the Tribunal proceedings and her daughter had a heart condition. She submitted that she believed the Tribunal failed to consider her whole situation in the period when she was pregnant with her daughter. Fourthly, the appellant submitted that in the Tribunal she submitted a letter in relation to her psychological condition. Fifthly, the appellant submitted that her son, who was born in December 2012, had been diagnosed with asthma and he suffered from asthma quite often at school. Sixthly, the appellant submitted that she did not think that the Tribunal considered that her neighbours thought that her children made too much noise and it was difficult to put her son into school because of his asthma. Seventhly, the appellant submitted that the Tribunal had no basis for calculating the amount which it concluded she and her partner would be fined for breach of China’s family planning laws if they returned to China.

15. The Minister responded to these oral submissions as follows. As to the first matter, the Minister referred to and relied on [27] of the judgment of the primary judge where his Honour said that the question of the two sessions in the Tribunal was not a matter raised in the grounds of application and in any event did not by itself suggest the Tribunal made any jurisdictional error. As to the second matter, the Minister submitted this was considered by the primary judge at [19] and following of the judgment and the claim that her de facto partner would not survive if they returned to China was a claim which the appellant did not make before the Tribunal. As to the third matter, the Minister submitted that the only relevance of the position of the appellant’s daughter was in relation to China’s family planning laws and that had been fully considered by the Tribunal at [29] and following of its reasons. As to the fourth matter, the Minister submitted that while it was correct to say that the appellant submitted a letter to the Tribunal in relation to her psychological condition this was considered by the Tribunal at [13] of its reasons and also at [34] where the Tribunal concluded that the appellant’s depression and anxiety would not mean that she was unable to find employment of some kind if she were to return to China. As to the fifth matter, the Minister submitted that this did not bear on any matter raised in the application to the primary judge or in the notice of appeal to this Court. As to the sixth matter, the Minister submitted it was not put to the Tribunal and it was not relevant to the decision of the Tribunal or to the judgment of the primary judge. As to the seventh matter, this was raised in reply by the appellant and I did not call on the legal representative of the Minister to respond to it since the basis of the Tribunal’s calculation of the amount of the fine for breach of family planning laws is fully set out at [32] and [33] of the Tribunal’s reasons.

16. In his written submissions, the Minister relied on the reasons of the primary judge. The Minister submitted that, as found by the primary judge, the first two grounds did not disclose jurisdictional error but sought to cavil with the merits of the Tribunal’s decision. The first ground re-agitated the appellant’s explanation as to why she could not provide documentary evidence to support her claims. The significant observation of the Tribunal was that the appellant had not produced documentation which might reasonably be expected to have been prepared by her father if he had petitioned the authorities as claimed: see [24] of the Tribunal’s reasons. As to the second ground, the Tribunal considered the appellant’s claim that relatives had destroyed her parents’ home, but the Tribunal did not accept that claim on the basis of its adverse credibility findings. The Minister submitted those findings were open to the Tribunal. The Court is not a forum for merits review. As to the third ground, the Minister submitted it reiterated the appellant’s claim before the Federal Circuit Court that her partner would not survive and that as a consequence she would be a single mother without income. The primary judge found that no claim of this nature was made before the Tribunal. The claim then was that the second appellant suffered from a physical disability and as a result the appellants would be unable to pay the social compensation fee. These claims were considered by the Tribunal which accepted that the second appellant may be limited by his medical condition in the kind of employment he would be able to find but found that both appellants would not be unable to find employment: see the Tribunal’s reasons at [34]. The Minister submitted the Tribunal was not obliged to consider claims not made before it or that could reasonably be taken to arise on the material before it. The evidence before the Tribunal suggested only that the second appellant suffered from a disability that prevented him from hard labour, not that he was at risk of imminent death thus widowing the (first) appellant.

    Consideration

17. In my opinion, the submissions on behalf of the Minister should be accepted. In relation to the appellant’s oral submissions, so far as they were raised before the Tribunal and in so far as they could be relevant, they do not suggest any jurisdictional error on the part of the Tribunal or any error on the part of the primary judge. I have explained above why the seventh matter raised by the appellant in her oral submissions fails. Turning to the notice of appeal, grounds 1 and 2 do not identify, either in form or in substance, any jurisdictional error on the part of the Tribunal. I see no error in the reasons or conclusions of the primary judge in this respect. As to ground 3, I see no error in the primary judge concluding that this ground referred to a claim that had not been made before the Tribunal and did not arise on the material before the Tribunal. Therefore there was no jurisdictional error on the part of the Tribunal and no error on the part of the primary judge in this respect.

    Conclusion

18. The appeal should be dismissed, with costs. In relation to costs, the Minister applied for costs fixed in the amount of $4,300 or such lesser sum as the Court deemed fit and relied on an affidavit of Ms Natasha Simone Blake affirmed 10 February 2016. In that affidavit the deponent states her belief that upon taxation in the matter the first respondent would recover a sum within the range of $3,700 and $4,300. Although I regard the making of a costs order in a fixed amount as appropriate, in my opinion, since the effect of an order fixing the amount of costs would be that the matter would not go to taxation, there should be some discount and the amount should be fixed at $3,700, the bottom of the range referred to in Ms Blake’s affidavit.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        10 February 2016