SZUIU v Minister for Immigration

[2015] FCCA 489

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUIU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 489

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicants Protection (Class XA) visas – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
NAOA v Minister For Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 57 FCR 565
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

First Applicant: SZUIU

Second Applicant: SZUIV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1338 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 3 March 2015

Delivered at: Sydney

Delivered on: 18 March 2015

REPRESENTATION

The Applicants: The First Applicant appeared in person

Counsel for the First Respondent: Mr J Mitchell

Solicitors for the First Respondent: Australian Government Solicitor

The Second Respondent: The Second Respondent filed a submitting notice

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1338 of 2014

SZUIU

First Applicant

SZUIV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 19 May 2014 by the applicants, SZUIU and SZUIV, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member P. McIntosh on 17 April 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicants Protection (Class XA) visas.

2. The applicants, pursuant to s.91X of the Migration Act 1958 (Cth) (the “Migration Act”), have been granted pseudonyms and cannot be identified by name.

3. The solicitors for the Minister filed a folder on 15 July 2014 which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Mr J Mitchell of counsel, acting for the Minister.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. The applicants are husband and wife and citizens of the People’s Republic of China (CB 2, CB 60).

3. The applicants entered Australia on 24 September 2012 on tourist visas (CB 3).

4. They made applications for Protection (Class XA) visas on 24 January 2013 (CB 1-15, CB 59-65).  These applications were supported by a statement prepared by the first applicant in Chinese and translated into English (CB 16-30).

5. The first applicant claimed to have suffered past harm in Nanmeng Town Gaocheng City, Hebei Province in China.  He claimed that in early August 2012 he had rejected demands made by the Demolition office of Nanmeng Town that his family accept meagre compensation for the acquisition of his land for the purpose of building a highway.  He claimed that on 9 August 2012, after he had made a complaint to the Gaocheng City government about the compensation, he was taken from his home and badly beaten by three people.  He was threatened with death if he did not agree to the compensation.  He then complained about the compensation to the city government in the provincial capital Shijiashuang on 10 August 2012. This resulted in his detention and torture for two hours by five policemen in the local police station.  He and his wife then left Nanmeng and lived with his sister 300 kilometres away until he came to Australia.  He held fears that he would suffer serious harm if he returned to Nanmeng.

6. The second applicant made no claims of her own, instead relying on being a member of the first applicant’s family.

7. On 23 September 2013 a delegate of the Minister refused to issue protection visas to the applicants (CB 66-82). That refusal was on the basis that during an interview before the delegate the first applicant was unable to substantiate his claims, and his testimony was vague, general and lacked any verifiable evidence in support of his claims.  He was found to not be a witness of truth and either embellished or entirely fabricated his material claims.  This finding was supported by the lack of reliable probative evidence in support of his claims and by the fact that he was able to freely depart China and delayed applying for a protection visa once he arrived in Australia.

8. On 22 October 2013 the applicants lodged an application for review of the delegate’s decision (CB 83-89).  The applicants did not lodge any material in support of their claims with the Tribunal, except for an untranslated document in Chinese script (CB 100-102).  That document verified the first applicant’s ownership of land in Nanmeng (CB 112 at [17]).  The first applicant attended a hearing before the Tribunal that was approximately two hours in length (CB 97-99).  He had the assistance of a Mandarin interpreter.  The second applicant did not attend the hearing.

Tribunal’s Decision

1. The Tribunal affirmed the decision under review, albeit for different reasons to the delegate (CB 110-121).

2. The Tribunal accepted the first applicant’s claims to have suffered harm in the past for reason of his opposition to the meagre compensation offered for the acquisition of his land.

3. The Tribunal found that as the first applicant would not pursue his complaints in Nanmeng should he return there and for that reason he will not be harmed on return (CB 116 at [42]).  The Tribunal accepted that should the first applicant be targeted for his past complaints or failure to accept the compensation the first applicant will suffer ill treatment and torture again. 

4. The Tribunal found that the harm suffered by the first applicant was not Convention related (see CB 116 at [44] and [45]) because the first applicant was not a member of a particular social group.  The harm meted out to those who opposed the compensation program was motivated by the financial and personal interests of the perpetrators, rather than any characteristic of the victims (CB 115 at [44]). 

5. The Tribunal found that the risk of serious harm in the future was localised and the risk of serious harm if the first applicant relocated within China was remote (CB 117 at [52]).  It found that the first applicant was affluent, his business activities as a meat wholesaler and distributor were transferable, and the financial impact of losing his land was minor.  He also had a sister who was educated and well off in another part of China and he had shown a propensity to adapt to a new environment when he came to Australia.  For those reasons it was reasonable for the first applicant to relocate to avoid any prospective harm he may have been at risk of suffering in his home town of Nanmeng (CB 118 at [55]). 

Current Proceedings

1. The application pleads the following two grounds of review:

   1.  I was offered inadequate compensation from the local government.  I refused to sign the agreement and made a petition against the officials for which I and other people were beaten and handcuffed.  I was tortured for two hours.  We were also threatened to be killed by the thugs hired by the officials.  The member of RRT ignored the facts and refused my application.

   2. The member of RRT made jurisdictional error because he failed to take all my claims and evidence into account according to S91R of the Migration Act.

Applicants’ Submissions

1. The first applicant appeared at the hearing on 3 March 2015.  He indicated to the Court he had not prepared any amended application or written submissions, but had engaged another person to send documents in for him.  The Court has not received any documentation sent by or on behalf of the applicant since the filing of the application.

2. When offered an opportunity to make oral submissions, the first applicant indicated he did not have any submissions to make.

3. The first applicant was also offered an opportunity to make submissions in reply to the Minister’s written submissions.  He indicated he had no submissions to make in this respect.

Ministers’ Submissions

1. The Minister submits the applicants’ grounds are generalised pleas as to the merits of the applicants’ refugee claims.  They are not capable of constituting jurisdictional error.

2. The applicants’ claims before the Tribunal were constituted by written claims submitted with the application for visa and the oral testimony of the first applicant during the course of the Tribunal hearing.  He submitted a document verifying his ownership of land in Nanmeng at the hearing (CB 112 at [17]).

3. It is submitted the claims were summarised in the Tribunal’s reasons for decision (CB 111).  They were plainly considered.  The findings were open on the evidence.

4. The finding as to membership of a particular social group considered whether those that complained against the meagre compensation for land acquisition constituted an identifiable social group.  The Tribunal’s consideration of that issue was unexceptional: see Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 at 240-241; Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 57 FCR 565 at 567-568 and 569G.

5. The relocation finding plainly considered the practical realities faced by the first applicant were he to relocate within China.  The Tribunal’s consideration of that issue is unexceptional: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 441-443 per Black CJ and NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [10]-[22] per Branson J.

6. There is no evidence that the claims made by the applicants during the hearing were not considered or that the applicants were otherwise denied natural justice. 

As there is no transcript evidence before the Court there is insufficient evidence that the Tribunal did not accord the applicants natural justice or did not otherwise consider his claims: NAOA v Minister For Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

1. The Minister submits that the applicants’ application should be dismissed with costs. 

Consideration

1. The first ground of the application seeks to re-agitate the applicants’ substantive protection claims.  It further states the Tribunal “ignored the facts”, however, the “facts” that are alleged to have been ignored have not in any way been particularised.

2. To the extent that a claim that the Tribunal has failed to consider a claim made by the applicant has been advanced, such a claim, on a fair reading of the Court Book and particularly the Decision Record cannot be sustained. The applicants’ claims were set out in detail by the Tribunal at [4]-[37] of the Decision Record (CB 111-115). The Tribunal then addressed these claims at [38]-[56] (CB 115-118). Further, the Tribunal in fact accepted the claims outlined by the applicants in ground one at [39]. Accordingly, this aspect of the ground cannot be sustained.

3. The other aspect of the ground seeks to engage the Court in impermissible merits review and should be dismissed.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 their Honours Brennan CJ, Toohey, McHugh and Gummow JJ stated at 272:

   These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.25 In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

4. This aspect of the ground, consequently, cannot be sustained and should be dismissed.

5. Accordingly, ground one of the application should be dismissed.

6. Ground two of the application states the Tribunal failed to take into account all of the applicants’ evidence and claims, and, as a result, breaches s.91R of the Migration Act. Again, there has been no particularisation of this ground.

7. In respect of this ground, such a claim cannot be sustained.  The Minister’s submissions reproduced above at [22]-[28] correctly address such a claim.  There is no transcript of the Tribunal hearing before the Court and, as such, the only evidence available is the Court Book.  On a fair reading, it cannot be said there was a claim or some form of evidence that was not considered by the Tribunal.  Accordingly, this ground of review must also fail.

8. I otherwise accept the Minister’s written submissions correctly address the application before the Court.

Conclusion

1. On a fair reading of the Court Book and the Decision Record, there has been no discernible error of law on the part of the Tribunal.  Neither of the grounds of the application can be sustained.

2. Consequently, the application should be dismissed with the applicants ordered to pay the Minister’s costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  18 March 2015