SZURT v Minister for Immigration

[2015] FCCA 635

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 635

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424A, 424AA

Minister for Immigration v SZMDS [2010] HCA 16; 240 CLR 611
SZSGA v Minister for Immigration [2013] FCA 774
SZSHK v Minister for Immigration [2013] FCAFC 125

Applicant: SZURT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1920 of 2014

Judgment of: Judge Driver

Hearing date: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F Taah of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1920 of 2014

SZURT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The tribunal decision was made on 11 June 2014.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Fujian Province in China.  Background facts relating to his claims to protection and the decision of the Tribunal on them are set out in written submissions filed on behalf of the Minister on 12 March 2015.   

2. The applicant is a national of the People’s Republic of China. He arrived in Australia on 18 September 2006 on a student visa which expired on 23 October 2006. He was granted a further student visa and when that visa expired, he remained in Australia for over four years as an unlawful non-citizen.[1]

   [1] See Relevant Documents (RD) 46 for applicant’s migration history

3. On 17 September 2013, the applicant was located by the Minister’s Department’s compliance officers.[2]

   [2] RD 1-8

4. On 21 October 2013, the applicant lodged an application for a protection visa.[3]

   [3] RD 12-37

5. The application provided scant details on his protection claims.  He only stated that he has no place to live, that he will be imprisoned by the government if he returned to China, and that he has no “money to pay back the louner (sic) so they will kill [him]”.[4]

   [4] RD 19-20

6. At an interview with a Departmental delegate on 13 November 2013[5], the applicant expanded upon his protection claims and stated that he feared returning to China as a result of his parents’ activities. He claimed that the Chinese government confiscated his family land and provided compensation of an amount substantially less than they promised. His parents attempted to sue the government however they were beaten by government officials and were admitted to hospital. His parents could not afford to pay their hospital bill so they borrowed money from a loan shark with high interest. However, they could not afford to repay the loan shark, hence if he returns to China, he will inherit the debt, which he cannot pay and the loan shark will harm him. Additionally, he will be persecuted by the Chinese government as a result of his parents’ attempt to sue them.

   [5] RD 48

7. On 10 December 2013, the application for a protection visa was refused by the delegate of the Minister.[6]

   [6] RD 41-56

8. On 7 January 2014, the applicant applied to the Tribunal for review.[7]

   [7] RD 57-61

9. On 14 May 2014, the applicant appeared before the Tribunal for a hearing.[8] The applicant claimed that he had lost contact with his parents and learnt of their hospitalisation and the confiscation of their family land from his cousin. The Tribunal’s statement of reasons records at [28]-[32] that it put information to the applicant pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act), being information from his compliance interview conducted on 17 September 2013[9], at which the applicant stated that he could not return to China because he liked Australia and could not support himself in China, and failed to mention the debt to the loan shark when asked whether he owed debts to anyone in Australia or China. The Tribunal also referred the applicant to his evidence to the delegate that he had learnt of the situation with his parents in a telephone conversation with them just before he was detained by compliance officers, however to the Tribunal, had claimed that he learnt of the situation from his cousin. The Tribunal invited the applicant to comment on the information and he sought additional time to do so in writing. On 2 June 2014, the applicant provided his response to the Tribunal.[10]

   [8] RD 72-74

   [9] At RD 1-8

   [10] RD 76-78

10. On 11 June 2014, the Tribunal affirmed the decision not to grant the applicant a protection visa.[11]

    [11] RD 80-92

Tribunal decision

1. The Tribunal’s decision turned on its assessment of the applicant’s credibility. The Tribunal found that the applicant was not a witness of truth and that he had fabricated his claims for protection to extend his stay in Australia. It found the applicant’s evidence to be vague, highly improbable, contradictory and lacking in detail.[12]

   [12] RD 89 [37]; 91[44]

2. The Tribunal found the applicant’s evidence to the delegate and the Tribunal about his discovery of his parent’s problems to be inconsistent and did not accept the applicant’s explanation as to why his evidence differed.[13]  It also found the applicant’s evidence that he would inherit his parent’s debt to be extremely vague, and further, that it was unclear why he would be of interest to the loan shark even if he did inherit the debt, given that the applicant had failed to mention in his compliance interview that he feared harm from the loan shark because he would be responsible for his parents’ debt.[14]  The Tribunal considered the applicant’s post hearing comments regarding the inconsistencies in his evidence, however, did not accept that the responses adequately explained those inconsistencies.[15] The Tribunal also considered that the timing of the application for the protection visa suggested that the applicant sought to extend his time in Australia, rather than because he held a subjective fear of persecution in China, given his evidence to the Tribunal that he was aware that he became an unlawful non-citizen after the expiry of his student visa but did not seek to regularise his immigration status.[16]

   [13] RD 89 [38]

   [14] RD 90 [39]-[41]

   [15] RD 89 [38]; RD 90 [40]

   [16] RD 91 [42]

3. The Tribunal comprehensively rejected all of the applicant’s claims relating to his parents, including that his family is of adverse interest to the Chinese authorities. Accordingly, it also rejected the claim that the applicant would be at risk as a result of his family’s profile, and that he would be targeted by the loan shark.[17] The Tribunal also rejected any claim that the applicant would face harm because of any actual or perceived political opinion, or because of his membership of a particular social group.[18]

   [17] RD 91 [43]

   [18] RD 91 [44]

4. Given the rejection of all of the applicant’s factual claims, the Tribunal found that the applicant could not be granted a protection visa either on Refugee Convention or on complementary protection grounds[19], and affirmed the delegate’s decision.

   [19] RD 92 [45]

The present proceedings

1. These proceedings began with a show cause application filed on 10 July 2014.  The applicant continues to rely upon that application.  He has not taken up the opportunity I gave him to file an amended application or additional evidence.  There are three grounds in the application:

   1.The Tribunal underestimated my risk of being persecuted by the Chinese authority. This was a judicial error since the Tribunal failed to properly make the well-founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 55. I fear to go back to China since the persecution was happened to my parents. Also, it was not a rare case that land acquisition causing protest and persecution in China.

   2.Tribunal unfairly refused to offer me protection saying my case was not covered by Convention. The Tribunal made an acceptable judgment about my situation; neither did it reflect the truth in a logic way. My case was not only a dispute regarding land value, but also I had different opinion against the Chinese authority.

   3.The Tribunal failed to consider the complementary protection in my case. If a person is found not to engage the refugee criterion in cl 866.221(2) he or she may nevertheless meet the criteria for the grant of a protection visa if  he or she is a person to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable, consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: cl 866.221(4) (the Complementary Protection Criterion). I will face serious persecution if I return to China, but the Tribunal made no test on this aspect. (errors in original)

2. I have before me as evidence [1] and [2] of the applicant’s affidavit filed in support of his application on 10 July 2014.  I received [3] of that affidavit as a submission. 

3. I also have before me as evidence the book of relevant documents filed on 18 August 2014.  The applicant initially denied receipt of those documents.  I received as an exhibit[20] a letter dated 21 August 2014 to the applicant at his nominated address for service enclosing a copy of the book of relevant documents.  The applicant denied receipt of that letter.  He told me from the bar table that he had nominated as his address for service the address of a friend where he had formerly resided.  Later, however, the applicant conceded that he may have received the book of relevant documents, as the documents in the copy I provided to him for the purposes of today’s hearing looked familiar. 

   [20] exhibit R1

4. He told me that he had not had the opportunity to read the Minister’s outline of legal submissions, and I adjourned while the interpreter read the submissions to him. 

5. I invited oral submissions from the applicant.  He is concerned at the Tribunal’s adverse credibility findings and states that his claims are true.  However, that debate does not rise above a contest over the merits of the Tribunal’s decision.  To the extent that the application purports to raise an issue of legal unreasonableness, there is no substance to that contention.  In my opinion, the adverse credibility conclusions reached by the Tribunal were open to it on the material before it. 

6. The applicant asserted that he was a political opponent of the Chinese Government.  It was not apparent that that had been raised in specific terms, either before the Tribunal or the Minister’s delegate, although it appears to have been considered in the context of the asserted land dispute.  The Tribunal concluded at [45] of its reasons[21], that it did not accept that the applicant or his family have any profile with the Chinese authorities other than that of ordinary Chinese citizens. 

   [21] RD 92

7. My perusal of the available material does not point to any arguable case of jurisdictional error.  I agree with and adopt the Minister’s submissions concerning the three grounds of review in the show cause application. 

Ground 1

1. It is unclear what the applicant is asserting by his allegation that the Tribunal “underestimated” his risk of persecution in this ground. The ground appears to be a complaint about the Tribunal’s rejection of the applicant’s claims that he feared harm from the loan shark and the Chinese government. That finding, however, was open to the Tribunal on the evidence before it and for the reasons it gave. This ground raises no arguable case. 

Ground 2

1. The applicant’s complaints in Ground 2 also raise no arguable case. The reference to unfairness in the ground does not appear to be procedural fairness, and even presuming that it was, such a contention has no substance. The Tribunal’s statement of reasons makes it clear that the Tribunal put its concerns about his evidence to him, identified the information that it considered would be part of the reason for affirming the decision under review, and gave the applicant an opportunity to respond in accordance with the Migration Act.[22]

   [22] Section 424AA (see [28]-[33] of the Tribunal’s reasons)

2. The complaint that the Tribunal’s decision “did not reflect the truth in a [logical] way” is also without substance. There is nothing to suggest that the Tribunal’s reasoning was defective in a way that might support a finding of illogicality or irrationality.[23]

   [23] see Minister for Immigration v SZMDS [2010] HCA 16; 240 CLR 611 at [130]

3. Insofar as the applicant also alleges that the Tribunal failed to consider a claim that he held a political opinion which was opposed to the government, this allegation is baseless given the Tribunal’s finding at [44] where it stated:

   I have found that the applicant is not a truthful witness, I do not accept any of his claims are factual. I reject entirely his claim he would face harm because of his political opinion (real or perceived) or because of his membership of a particular social group of his family… (emphasis added)

Ground 3

1. A person may be granted a protection visa on complementary protection grounds if they do not satisfy the Refugee Convention criteria.  The Tribunal, however, found that the applicant was not such a person. Contrary to what is being alleged, the Tribunal did consider the applicant’s claims under complementary protection[24] however found that the applicant did not meet that criteria, given its comprehensive rejection of the factual basis of his claims.  The Tribunal is entitled to rely on earlier findings of fact, in its consideration of the complementary protection criterion.[25]

   [24] at [45]

   [25] SZSGA v Minister for Immigration [2013] FCA 774; SZSHK v Minister for Immigration [2013] FCAFC 125

2. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.  At the time the application was filed, the scale amount was $3,326.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,326.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  23 March 2015