SZUFU v Minister for Immigration

[2016] FCCA 1441

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUFU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1441

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

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

Migration Act 1958 (Cth), ss.36, 474

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

Applicant: SZUFU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1081 of 2014

Judgment of: Judge Cameron

Hearing date: 18 May 2016

Date of Last Submission: 18 May 2016

Delivered at: Sydney

Delivered on: 18 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C. Hillary of DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,700.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1081 of 2014

SZUFU

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 17 June 2012. On 4 April 2013 he lodged with what is now the Department of Immigration and Border Protection an application for a protection visa, alleging that he feared persecution in China because of his religion and because he had breached China’s family planning laws. On 18 September 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, 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: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

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

   a)his grandfather and mother were Buddhists and had been persecuted for their beliefs;

   b)in 2005 his mother prayed for a neighbour’s child who was seriously ill.  His mother suggested that the child be taken to hospital.  The child’s parents could not afford to do so and the child later died.  People in the village accused his mother of being a cult member and she was arrested.  When he visited his mother, the police questioned him and when he did not say anything they beat him before releasing him.  His mother was detained for a month and released after paying a fine of RMB 30,000;

   c)his first child was born in 2000.  When he and his wife later had a second child, his wife was detained for two months and forcibly sterilised.  A year later they paid a RMB 20,000 fine for breaching the family planning laws and their second child was then registered;

   d)his wife’s sterilisation procedure was not successful and in 2009 she fell pregnant again.  The family planning officers wanted her to have an abortion but she went into hiding and gave birth to their third child;

   e)he and his wife could not afford to pay a fine for their third child so they sent her to live with other people.  The government detained them, interrogated them about the identity of the person to whom they had given their child and beat them.  They were released when his mother paid bail for them.  He was required to report to the police regularly and as a result lost an opportunity to be promoted at his work;

   f)his mother comforted him and suggested that he pray to Buddha with her, which he did;

   g)when his wife first became pregnant, they were not old enough to marry so he altered his date of birth in order to appear older and obtain a marriage certificate.  After his release from detention he applied for a passport using his household registration book and the modified date of birth but the police noticed and attempted to detain him.  He escaped and hid at his aunt’s home;

   h)he was charged about RMB 180,000 and had to pay the fine in order to avoid being imprisoned.  His uncle then helped him to obtain a passport using his real household registration book;

   i)after his arrival in Australia, his wife told him that his mother had been fined by the town chief because she had refused to tell his son’s fortune.  His wife also told him that he was being investigated for owning two households; and

   j)he feared that if he returned to China he would be arrested and beaten by the police.

2. At an interview with the delegate on 11 November 2013 the applicant made the following additional claims:

   a)he was a Buddhist and if he returned to China he would not be allowed to practise his faith.  In 2004 or 2005 he was stopped from distributing leaflets and was questioned and detained for a month;

   b)he was being investigated for owning two households because one of his houses did not have a building certificate and had been built illegally; and

   c)if he returned to China he would be fined and imprisoned because he was considered to have been involved in child trafficking by sending his third child away.

3. The applicant appeared before the Tribunal on 21 February 2014 to give evidence and present arguments.  Following the Tribunal hearing, he provided a translation of his marriage certificate issued on 12 August 2000 and which recorded his alleged modified date of birth.  The applicant later wrote to the Tribunal stating that he had an original copy of his marriage certificate which had his modified date of birth and that if the Tribunal needed the original it should contact a mobile telephone number he provided.  He also provided a translation of a letter dated 26 February 2014 purportedly from his home village committee stating that he had two children born in 2007 and 2009 outside of the family planning laws.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that he 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. In his written submissions the Minister set out the Tribunal’s findings and reasoning for its decision in the following terms, which I adopt:

   10The RRT ultimately found that the applicant was not a credible witness, and that he fabricated his claims of past harm in order to achieve a positive immigration outcome.

   11The RRT found that the applicant’s various written claims were inconsistent with each other.  The RRT also noted that the applicant’s oral evidence at the hearing changed and was confused and contradictory.

   12The RRT was not satisfied that the applicant, or his mother ... ever suffered harm for [being Buddhists].  Nevertheless, on the basis of country information, the RRT found that if the applicant was to practice [sic] Buddhism in China, there was no real chance that he would suffer any harm for this reason.

   13The RRT was also not satisfied that the applicant had a third child.  The RRT found that the applicant’s testimony about his children was poor, which led it to have doubts as to whether the applicant had any children at all.  The applicant submitted a translated letter from his village which stated that the applicant had “two children born outside of family planning in 2007 and 2009”.

   The RRT ultimately accepted that the applicant had two children, but it did not accept that the applicant and his wife were detained for breaching China’s family planning laws.

   14The RRT also found that the applicant’s evidence regarding the issues in obtaining his passport was vague and lacked credibility.  The RRT ultimately found that the applicant departed China using his own passport and, therefore, this indicated that the applicant was not of adverse interest to the authorities.  The RRT further found that the applicant’s delay of almost a year after his arrival in Australia in applying for protection was indicative of someone who did not have a genuine fear of persecution.

   (references omitted)

2. The Tribunal also found the applicant’s evidence concerning the problems he faced or would face because of his ownership or building of a property extremely vague.  It did not accept that he had or would be investigated by village authorities for having two households or that he had otherwise come to the adverse attention of the authorities for reasons related to building activity or property ownership. 

3. The Tribunal also did not accept the applicant’s claims concerning the problems said to have beset or befallen his family members.  It relevantly said:

   The applicant’s evidence about the claimed problems of his family members was extremely vague and he did not provide any credible evidence that he would suffer harm because of profile of his family members.  On the evidence before me and regard to my assessment of the applicant’s credibility, I do not accept that any of the applicant’s family members are or were of adverse interest to the Chinese authorities and I reject any implied claim that the applicant will be harassed or otherwise harmed by the Chinese authorities because of the profile of any of his family members. (para.34)

Proceedings in this Court

Evidence at the hearing

1. The applicant gave oral evidence at the hearing of this application.

2. Amongst the matters on which the applicant gave evidence was his claim that the Tribunal had told him that his documents were false.  The applicant said in that connection that the Tribunal had said to him during the Tribunal hearing that his marriage certificate and his household record were false.  Later, he said that he had taken original documents to the Tribunal hearing and had “taken them out”.  Still later he said that the Tribunal did not ask for the documents, the implication being that they had stayed in his pocket.  In cross-examination the applicant was taken to a fax he sent to the Tribunal on 28 February 2014, a week after the Tribunal hearing, enclosing his marriage certificate and saying that the original was on its way from China.  The certificate from the village committee was not faxed until 12 March 2014, according to the document produced at p.84 of the Court Book. 

3. The applicant also said that the interpreter at the Tribunal hearing had spoken too quickly and that he had been unable to follow the translation at all times.  It might be noted that the applicant made the same complaint about the interpreter at the hearing of this application but seemed to do so for effect or when he found questions difficult. 

4. Additionally, the applicant said that he had been advised of the hearing date of the present application by his lawyer friend.  However, he said that he did not know his friend’s name and made contact with him through another friend, who used to live at the applicant’s previous address in Carlton, but whose current address the applicant did not know.

5. I found the applicant, when giving evidence, to be evasive and argumentative.  I am not persuaded that he has been entirely truthful and frank in his evidence and I reject his evidence concerning him having been told at the Tribunal hearing that his documents were false.  I also reject his evidence that the Tribunal interpreter spoke too quickly and that he was thereby prevented from communicating fully with the Tribunal at its hearing. 

Application

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

   1.The interpreter is not professional and did not do a good job. In the interview, when I answered the officer’s question, she always interrupted me.  When I wanted to add more comments to response, she just ignored me.  Thus, she did not translate my answers completely and accurately.  This caused the inconsistencies mentioned in the RRT decision.  The answers heard by the officer were completely different from what I wanted to say.  Therefore, the decision made by RRT is unfair.

   2.I provided many evidences to support my claim, such as the letter from the Village Committee, states I have two children born outside of family planning in 2007 and 2009.  The letter I provided which showed that I have a third child in 2009, but RRT did not reviewed my case and evidence carefully and concluded that the letter makes no reference to a third child.  I do not know why the RRT had such a conclusion.  Moreover, RRT did not investigate these evidences further, unfairly concluded that these evidences even the marriage certificate were false. (Decision Para.29)

   3.I meet the refugee criteria.  RRT did not consider my fear of persecution.  I am a devout Buddhist.  Because I breached one-child policy and could not afford the fine, we had to give the third child away.  The government thought that we sold the child and believed in cult, my wife and I therefore have been detained. RRT ignored the possibility I will be persecuted and did not review my case fairly.

   4.The Tribunal failed to make a fair ‘complementary protection’ grounds test.  My family was persecuted by the town chief because she refused to tell his son’s fortune.  I would be investigated because own two households.  I would face persecution upon return to China.  There are substantial grounds for believing that, there is a real risk that I will suffer significant harm if I removed from Australia to China.

Ground 1 and 3

1. The first and the third grounds of the application invited the Court to reconsider the merits of the applicant’s application for a visa.  As noted earlier in these reasons and advised to the applicant at the hearing of this application, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error.  It does not have power to reconsider the question of whether he is entitled to a visa. 

Ground 2

1. The second ground of the application raised three distinct issues.  The first concerned the Tribunal’s understanding of the certificate from the village committee.  The applicant is correct to say that the Tribunal misread the certificate from the village committee but that was an error of fact within jurisdiction and so does not provide a basis on which the Tribunal’s decision should be set aside. 

2. The next issue raised in this ground was that the Tribunal should have made some inquiries.  However, the Tribunal was under no general duty to inquire and the facts of this case did not engage the exception to that rule. 

3. The third matter raised in the second ground of the application was that the Tribunal had said that the applicant’s documents were false.  I do not understand the Tribunal, in its reasons, to have rejected the documents submitted by the applicant on the basis that they were false or to have characterised them in such terms. 

Ground 4

1. The allegations made in the second and third sentences of the fourth ground of the application fail because the underlying factual premise on which they were based was rejected by the Tribunal at paras.34 and 32 respectively of its reasons.  More generally, the ground fails because the Tribunal rejected the applicant’s material factual claims and so there was no foundation for a finding that Australia’s complementary protection obligations were engaged in his case.

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 twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 20 June 2016