SZUNE v Minister for Immigration and BORDER Protection
[2014] FCCA 1691
•30 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUNE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1691 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.44.12 |
| Cases Cited: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZUNE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1626 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 30 July 2014 |
| Date of Last Submission: | 30 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Mr Andras Markus (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1626 of 2014
| SZUNE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicant seeks judicial review in respect of a decision of the Refugee Review Tribunal (“the RRT”) dated 23 May 2014, affirming a decision of a delegate of the first respondent that the applicant did not meet the criteria for a protection visa.
The applicant attended a directions hearing before me on 1 July 2014. On that occasion, I explained to the applicant that this court has no power to interfere with the decision of the RRT unless the court is satisfied that the RRT’s decision is affected by mistake that goes to its jurisdiction.
I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. I further explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the applicant may be dismissed pursuant to the rules of this Court. I provided the applicant with a copy of the relevant costs schedule and explained to her the consequences that may flow to her if she was unsuccessful.
The applicant confirmed that she wished to continue with her application for judicial review of the tribunal’s decision. For that reason, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any further evidence and submissions in support by 15 July 2014. The matter was then set down for hearing today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The applicant was provided at the directions hearing with a copy of r.44.12 of the Rules and was also provided with the contact details of legal services providers and translating and interpreting services and documents headed in her own language.
The applicant was unrepresented before the court this morning, although had the assistance of an interpreter. The applicant confirmed that she had not filed any documents in accordance with the directions made on 1 July 2014 or otherwise.
The applicant confirmed that she relied on the grounds of her initiating application filed on 16 June 2014. Those grounds are as follows:
“1. As Hongpeng LIU and I set up a renovation company together, so I still a part of the company even I had no involvement in the company. IN March 2011, Hongpeng LIU called me because of the accident happened and asked me to come to the school. However, the tribunal officer believes Hongpeng LIU had no reason to call me. The tribunal officer did not accept my explanation.
2. In my written statement, I had written that I had raised my objections and asked to withdraw my investment from the company after the first accident happened. But the tribunal officer said I did not mention it in my personal statement. This is not true.
3. I wish the Federal Circuit Court of Australia could consider my situation.”
The grounds were interpreted for the applicant and the applicant was invited to make submissions in support of those grounds.
In relation to ground 1, the applicant said that the RRT did not verify her ground and did not provide sufficient reasons. I explored ground 1 with the applicant and confirmed with her that the substance of her complaint was that the RRT did not believe evidence that she had provided and that the RRT did not accept her explanation.
The evidence to which the applicant appeared to be referring in ground 1 was that she and her business partner set up a renovation company together and although she remained a part of the company, she had no involvement in the company. Her further evidence was that in March 2011, her partner called her because an accident had happened and asked her to come to the school.
The RRT’s decision record, which was contained in a bundle of relevant documents tendered by the first respondent and marked exhibit 1R, discloses that the RRT explored this evidence with the applicant in some detail at the hearing and put to her the concerns that it had had about her evidence.
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the MRT/RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Ultimately, the RRT comprehensively rejected the applicant’s claims based on adverse credibility grounds. The applicant’s claims and the RRT decision are accurately summarised in the first respondent’s written submissions as follows:
“6. In July 2006, she set up a company with a Hongpeng Liu (Liu). Before March 2011, she discovered the company was using poor quality materials and she communicated this with Liu many times.
7. In March 2011, after one of the company’s projects injured several people, she told Liu she wanted to leave the company. On 12 July 2011, after another of the company’s projects had seriously injured someone, she reported the company’s use of poor materials to the procuratorate. On 15 July 2011, Liu called and threatened to kill her.
8. On 20 July 2011 she was threatened, beaten and kicked by three men. The applicant produced medical records suggesting she had received treatment for injuries to her nose on this date.
9. On 5 August 2011 the applicant was detained by police for 15 days for making a false accusation against Liu. When released, Liu called and threatened to kill her if she continued her fight against him.
10. She and her daughter then applied for a student visa through an agent.
THE TRIBUNAL HEARING
11. At the hearing before the Tribunal on 9 April 2014, the applicant gave additional evidence. She claimed that Liu managed the company and she did not have any involvement in its operations. In March and July 2011 Liu had asked her to come to the sites where people had been injured as a result of two of the company’s projects. Following the March 2011 incident, she began to have concerns over the materials used for the projects and raised this with Liu. At the site of the July 2011 incident, she had a serious argument with Liu and told him that she could not continue with the company and she would report him.
12. On 5 August 2011 she was taken to the police station, detained for 2 weeks, beaten and asked to confess to her mistake of framing Liu. When released, Liu called her again and threatened to beat her up every time he saw her. After one month, she contacted an agent who arranged for a student visa in Australia for her and her daughter.
13. Following the hearing, the Tribunal wrote to the applicant on 11 April 2014 inviting her to comment on information in her student visa application that may be relevant to the Tribunal’s decision.
THE TRIBUNAL DECISION
14. The applicant’s claim that Liu would call her to the accident sites of the company’s projects was implausible given the applicant’s claimed lack of any previous active involvement with the company or Liu: Relevant Documents (RD) 126-127 [15]-[17] and [19].
15. The applicant gave inconsistent evidence as to when she first became concerned about the company’s use of sub-standard materials and when she first raised her objections with Liu: RD 127 [20]-[22]. It found her claim that she discovered the Liu was using such materials was not credible.
16. The applicant gave inconsistent evidence about Liu allowing her to withdraw her investment from the company and the Tribunal found her responses on this issue evasive and lacking in detail: RD 128 [23]-[25]. The Tribunal did not accept the applicant was involved in any confrontation with Liu about the company’s practices: [26].
17. The Tribunal accepted that the applicant received medical treatment on 20 July 2011 for an injury to her nose and mild concussion, but in light of the applicant’s inconsistencies relating to Liu’s threats, together with the lack of indication on the medical records as to the cause of the injury, it did not accept the applicant had been assaulted as claimed: RD 128-129 [28]-[30].
18. The applicant’s explanation of how she arranged to obtain certain documents relevant to her student visa application while she was purportedly detained by police was implausible. Further, the applicant gave inconsistent evidence as to when she contacted an agent to arrange a visa: RD 130 [37]. The Tribunal found that she arranged the documents herself and did not accept she had been detained at the same time: RD 130 [39].
19. The applicant’s written application suggested she began making arrangements for a student visa ‘well before’ she claimed to have begun making arrangements: RD 130 [40]. The applicant claimed these arrangements were in relation to her daughter, however this was inconsistent with her other evidence that applicant and her daughter did not apply for the visa until one month after her alleged release from detention, in August 2011: RD 141 [41]-[42].
20. In one of the documents submitted as part of the applicant’s student visa application, Liu confirmed the applicant was an investor in the company. The Tribunal found this suggested the applicant and Liu had a civil relationship at the very time he purportedly arranged for her to be assaulted and for her detention. This was inconsistent with her claimed fear of Liu: RD 141 [46].
21. In summary, applicant did not leave China due to a fear of Liu; she did not discover or complain to Liu about the company’s poor practices as claimed, and she did not receive threats from Liu. The applicant was not assaulted or detained as claimed.
22. The Tribunal concluded the applicant did not have a well-founded fear of persecution for a Convention reason in China, nor was it satisfied there were grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to China there is a real risk she will suffer significant harm as defined in s 36(2)(aa) of the Migration Act 1958 (the Act).”
There is nothing on the face of the RRT’s decision record to suggest that its adverse credibility findings were not open to it on the evidence and material before it and for the reasons it gave.
The first respondent’s solicitor, Mr Markus, conceded that the RRT made a wrong finding of fact in relation to confrontations that the applicant had with her business partner. The RRT found that the applicant had not mentioned a second argument with her business partner; whereas, in her written statement, the applicant had written that she had raised her objections and threatened to withdraw her investment for the company following the second accident in July 2011.
However, a fair reading of the RRT’s decision record makes clear that the credibility concerns of the RRT were in no way confined only to that evidence. The RRT identified the applicant’s credibility as the issue before it and in its decision record, identified in significant detail the applicant’s evidence, the concerns that the RRT had, the matters that it put to the applicant and the applicant’s responses. The RRT made clear in its reasons as to why it did not accept the applicant’s various explanations. The RRT found many inconsistencies in the applicant’s evidence which it identified in detail and made various findings that the applicant’s responses were evasive and lacking in detail and were otherwise implausible.
As stated above, there is nothing on the face of the RRT’s decision record to suggest that those findings were not open to it on the evidence and material before and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT/RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the MRT/RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)
Otherwise, ground 1 appears more to be in the nature of a disagreement with the findings and conclusions of the RRT. Such a complaint invites merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, ground 1 is not made out.
Ground 2 refers to the mistake made by the RRT in relation to the applicant’s evidence as to the timing of her request to withdraw from the company and I have dealt with that issue in ground 1 above.
In support of ground 2 this morning, the applicant submitted that the RRT had not read her statement carefully because of the error that it had made. Again, whilst I accept that, clearly, an error of the nature identified by the applicant, and dealt with in ground 1 above, was made, read as a whole, the RRT’s decision record makes clear that it understood the applicant’s complaints as disclosed in her statement and explored in significant detail the applicant’s claims with her at the hearing.
The applicant also submitted that the RRT had not referred to medical evidence that she had provided. Again, such a complaint is not made out on a fair reading of the RRT’s decision record. The RRT accepted that the applicant may have suffered the injuries as disclosed in those medical reports but was not satisfied that they were caused in the manner asserted by the applicant. The RRT’s findings in respect of that claim and, as I have said before, on each other claim, would also appear to be open to it on the evidence and material before it and for the reasons it gave.
Whilst I make no final finding as to whether or not the decision is affected by jurisdictional error, I am satisfied that none is apparent on the face of the RRT’s decision record and none has been raised by the applicant.
The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.
Accordingly, the proceeding before this court commenced by way of application filed on 16 June 2014 should be dismissed pursuant to rule 44.12(1)(a) of the Rules for costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 11 August 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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