SZUCA v Minister for Immigration

[2015] FCCA 3134

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3134

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 and was in a hurry at the hearing.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 91R, 474

Federal Circuit Court Rules 2001, r.44.12

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUCA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 753 of 2014

Judgment of: Judge Cameron

Hearing date: 23 October 2015

Date of Last Submission: 23 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N. Senanayake of DLA Piper Australia

ORDERS

1. Pursuant to rule 44.12 of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,326.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 753 of 2014

SZUCA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 27 November 2012. On 12 December 2012 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 religious beliefs and because of a property dispute. The applicant’s wife was included in his application as a member of his family unit. On 22 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant and his wife then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and the applicant has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015. The applicant’s wife is not a party to this proceeding.

2. This is a hearing to determine whether an order to show cause should be made. In such a hearing, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576 at [57]).

3. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

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

Background facts

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

   a)in 2010 his municipal government sought to demolish some properties in his village, including a house that he had built in preparation for his future marriage, to make way for a farmers market.  At the time, his father had been serving a prison sentence for participating in an illegal gathering and inciting people to create community disorder;

   b)he conducted some research and discovered that the compensation that the municipal government had been offering was lower than that set out in the government’s relocation policy.  He was furious and attempted to contact the municipal government on many occasions;

   c)the government sought to complete the demolition by October 2011 and to facilitate that it hired local gangsters to intimidate people to relocate.  Some members of the underground church he attended resisted and one of them was badly beaten and paralysed;

   d)he and another member of his church were appointed as delegates to negotiate with the government.  He was appointed a leader and representative because he was the only son in his family and was a member of the underground church;

   e)on 25 October 2010 he and the other village representative attended what they thought was a negotiation meeting with the government.  Instead they were imprisoned for a day without food or water and the government attempted to coerce them into signing a relocation agreement.  The next day he was taken to the local police station and beaten.  He was released on 28 October 2010 and his mother took him to a hospital;

   f)a few days after his release from hospital the police attended his home, beat him again and asked him to sign the relocation agreement;

   g)on 3 April 2011 he and five other members of his church went to the provincial government to discuss their relocation compensation.  They were taken to the police station where he was beaten and seriously injured, including having his right arm fractured.  One of his fellow church members suffered a heart attack after being beaten and died while at the police station;

   h)on 6 April 2011 the police visited his house and said that he would be killed if he continued to visit the provincial government;

   i)on 7 April 2011 he attended the funeral of his fellow church member who had died in police custody.  The police attended the funeral and arrested the minister of their church.  His family became worried for his safety so they sent him to live with relatives in South Korea;

   j)his father had been due to be released from gaol in August 2011 but his sentence was extended because of his, the applicant’s, interactions with the municipal government.  After he left for South Korea, the municipal government attempted to make his father sign the relocation agreement;

   k)when he heard the news about his father he returned to China.  He did not leave his mother’s house except to attend church gatherings.  Everyone in his village knew of his return but they did not report him to the government;

   l)in May 2012 he participated in a protest against the municipal government.  The police attended and tried to arrest him but he was aided by some church members and managed to escape; and

   m)after the protest he went to Beijing and stayed at a friend’s place.  He and his girlfriend decided to marry so in November 2012 they returned to their local municipality to register their marriage.  After that they left and stayed with his brother-in-law’s relatives until they travelled to Australia.

2. The applicant provided internet reports which stated that in June 2011 his local municipal government had begun demolishing properties despite a lack of consultation with the property owners.  The reports also stated that the property owners had been beaten by local gangsters.  The applicant also provided photographs of various demolished properties and reports from 2005, 2008 and 2009 of residents being dragged from their homes.

The Tribunal’s decision and reasons

1. The Tribunal 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.

2. While the Tribunal accepted that properties in China had been demolished, it did not accept that the applicant or his family had had any involvement in protesting against such forcible demolitions.  It did not accept that the applicant’s father had been arrested for protesting against the demolition of properties, that the applicant’s home had been demolished, that the applicant had protested and attempted to negotiate with the authorities or that he had been arrested, detained and mistreated and had had to go into hiding.  The Tribunal found that the applicant had manufactured the totality of his claims in relation to the demolition of his property.  It was not satisfied that he had an adverse political profile in China or that he would suffer harm on his return there as a result of his political opinion or imputed political opinion.  In reaching that finding:

   a)the Tribunal noted that the applicant gave inconsistent and altered evidence about the extent of his involvement in organising protests.  It noted that in his statement the applicant claimed to have been a leader and representative of the village in negotiations with the government but when it expressed to him its doubts that he would have had such a role when he was twenty years old, he said he was not a leader.  When the Tribunal pointed out that he had altered his evidence, the applicant said that although he was not a leader, he had assisted other people because the people in his village honoured his father.  He then said that he had been nominated to negotiate with the government because he liked to argue over injustice and the people in his village had held him in high esteem in spite of his young age.  In post hearing submissions the applicant claimed that although he was not highly educated, he had been entrusted with a leadership position because of his father’s reputation.  The Tribunal found the applicant’s evidence on this issue indicative of his overall poor credibility.  It also considered it implausible that the applicant, as a young twenty year old, would have been one of only two people appointed to negotiate with the government officials on an issue which it considered would have been extremely important to the villagers;

   b)the Tribunal found that the applicant’s evidence about his father’s imprisonment and the reason for it lacked credibility.  It found that the applicant’s inability to recall whether his father had been held for one year longer or two years longer than his original sentence indicated that he had manufactured this claim;

   c)the Tribunal found that the applicant’s evidence about his continued return to the place where he had been seriously beaten also lacked credibility; and

   d)the Tribunal did not accept that the applicant had given a truthful account of his employment and education history in China.  It noted that he gave inconsistent and vague evidence about when he finished school and the periods during which he was employed.  The Tribunal did not accept the applicant’s explanations for the inconsistencies, noting that he had been able to provide details of all his claims.  It concluded that the applicant had been deliberately evasive about his education and employment because he had forgotten whether he was purportedly working or studying at the times he claimed to have been engaged in disputes or to have been detained and mistreated.

3. As the Tribunal did not accept that the applicant’s father had been arrested, it did not accept that the applicant had become a Christian in 2010 because of his father’s arrest. It also found that the applicant’s evidence about his Christianity was unpersuasive, noting that he had been unable to provide any details about the type or denomination of the church he attended in Australia. While it accepted that the applicant had been attending church in Australia and had been baptised, the Tribunal did not accept that he had been a Christian in China and found that his involvement in a church in Australia and his baptism had been solely for the purpose of strengthening his claim to be a refugee and so was to be disregarded pursuant to the then s.91R(3) of the Act.

Proceedings in this Court

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

   1.The member did not believe that the villagers could select me as the representative to negotiate with the governmental organisations because I was too young and my academic qualification was too low.  I was therefore discriminated against by the member given that a young do can be involved in a negotiating process.

   2.The member mentioned that she did not understand why I could not remember the year I left school while I could remember the date of each event in my claim.  The member did not believe that I had achieved the academic qualification as I presented to RRT.  This constitutes another discrimination against me.

Allegations in application

1. The applicant took issue with certain findings made by the Tribunal in the course of reaching its decision.  The persuasiveness which the Tribunal accords one way or another to material before it is a matter for it, not the Court, unless some legal error attaches to that reasoning.  In this case, the applicant alleged that the Tribunal’s findings manifested bias in the form of discrimination against him. 

2. The first allegation in the application raised an issue of age related bias but it misreads the Tribunal’s findings.  The implausibility which the Tribunal perceived in the applicant’s claims to have represented his village in negotiations with the government was only subsidiary to the more general finding that those claims were not credible for the reasons given in para.19 of its reasons where the Tribunal said:

   As discussed at the hearing, the Tribunal considers that the applicant altered his claims when the Tribunal expressed its doubts that he would be the person appointed to lead the negotiations in the village given his young age at that time.  The Tribunal considers it evident that the applicant attempted to retreat from his initial claims, as to the level of responsibility entrusted to him, in response to the Tribunal’s concerns that it is unlikely he would be given such a high level of responsibility at such a young age.  The Tribunal considers that he again altered his evidence when advised of the inconsistencies and that the confused and altered nature of the applicant’s evidence in relation to this issue is indicative of his overall poor credibility.

3. The second allegation in the application also raised a matter of discrimination but was not particularised and, most importantly, did not identify what the discrimination was said to have been.  In any event, again the issue was one of credit.  In para.27 of its reasons, the Tribunal said:

   … the Tribunal does not accept the applicant’s evidence as to his inability to recall during the hearing when he completed his schooling in China or why he had indicated on the application form that he had been unemployed at a time he told the Tribunal he was employed at an electronics factory.  The Tribunal does not accept the applicant’s explanation for his inconsistent and vague evidence in relation to his education and employment.

   The Tribunal then discussed the specific concerns it had with the applicant’s evidence before continuing:

   The Tribunal considers that the applicant’s inability to diverge from his prepared statement when required to do so is indicative of his overall poor credibility and the fact that he has manufactured his claims to fear harm in China.  Having regard to the problematic nature of several aspects of the applicant’s evidence as discussed above, the Tribunal is drawn to the conclusion that when asked at the hearing about his education and employment, the applicant had forgotten whether he was purportedly working or studying at times he claims to have been engaged in disputes or to have been detained and mistreated and he was, therefore, deliberately evasive.

4. I am not persuaded that there is any basis to find that the Tribunal’s conclusions concerning the applicant’s evidence were affected by any particular view it had of him as a person rather than as the result of its analysis of his evidence and the manner in which it was given. 

5. I am not persuaded that the assertion of bias which is implicit in the applicant’s allegations, inadequately particularised and evidenced as they were, can be made out.  Indeed, given the way that the application was pleaded, I am satisfied that the allegations are not arguable.

Oral submissions

1. At the hearing of this application, the applicant stated that, at its hearing, the Tribunal had had an urgent expression and that the presiding member had been in a hurry.  However, the applicant did not suggest in that connection that he had been denied an opportunity to place before the Tribunal all the material which he wished it to have or that the Tribunal had failed to consider the material which he advanced because it was unwilling to give that material the time which it deserved.

Conclusion

1. I am not of the view that the applicant has demonstrated an arguable case that the Tribunal’s decision is effected by jurisdictional error. 

2. Consequently, the application will be dismissed pursuant to rule 44.12 of the Court’s Rules.

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

Associate: 

Date:  25 November 2015