SZUWQ v Minister for Immigration

[2015] FCCA 270

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUWQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 270

Catchwords:
MIGRATION – Refugee Review Tribunal – Procedural fairness – Application dismissed.

Legislation:  

Migration Act 1958

Applicant: SZUWQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2184 of 2014

Judgment of: Judge Street

Hearing date: 9 February 2015

Date of Last Submission: 9 February 2015

Delivered at: Sydney

Delivered on: 9 February 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Taah

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed

2. The applicant pay the First Respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2184 of 2014

SZUWQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the court’s jurisdiction under s.476 of the Migration Act 1958 seeking a constitutional writ in respect of the decision of the Tribunal delivered on 4 July 2014. The applicant has sought the grant of Protection of (class XA) visa under s.65 of the Migration Act 1958 on 2 May 2013 which application was refused by the delegate on 31 July 2013.

2. The grounds on which the applicant seeks to challenge the decision of the Tribunal are as follows:

   1. Tribunal made a Jurisdictional error by failing consider my evidence objectively and Independently R.R.T member rejects my true story as fabrication.

3. The delegate’s decision on 31 July 2013 clearly identified the details of the applicant and history as well as the framework of the legislation applicable in relation to the visa applied for.  The delegate identified the material before the decision maker and the country of reference being China. 

4. The delegate was satisfied that the applicant was a citizen of China and that the applicant’s country of reference for the purposes of assessing the protection obligations under the Refugees Convention was China and that China is the receiving country for the purpose of s.5 of the Migration Act 1958 in assessing the complimentary protection criteria.

5. The delegate identified the applicant’s claims which, in substance, arise from allegations of borrowing funds from private lenders, having to pay bribes to officials in the land department and that the applicant had no way of repaying the loans and fears that she will be forced to have her organs harvested or go into prostitution as the private lenders work from criminal syndicates. The applicant also feared that government officials would detain her as they wouldn’t want news of their corrupt behaviour being made public.

6. The claims of the applicant were fully identified and addressed by the delegate who, having identified the grounds upon which the findings were made, found that the applicant was not a credible witness, that her home had not been demolished, that her father had not been detained, that the loan was not taken out from loan sharks and that the applicant is not being pursued by financiers. 

7. The delegate then addressed the issues required under the Convention and said:

   I consider the reasons the applicant has proffered as to why she cannot return to China not to be for a Convention reason.  Therefore, I find that the reasons the applicant fears persecution in China not be for a Convention ground, as I have said, as are found that the applicant’s fear of persecution or harm is not for a Convention reason.  I am not required to analyse whether the applicant’s fear is well-founded.

8. The delegate said:

   I am not satisfied the Refugees Convention ground is the essential and significant reason done for the harm feared as required by s.91R(1)(a) of the Migration Act.

9. The delegate went on to say:

   I am not satisfied that Australia has protection obligations to the applicant, [SZAWQ] under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. As a result, the applicant does not meet the criteria for the grant of a protection visa under s.36(2)(a) of the Migration Act in subclause 866.221(2) of schedule 2 of the Migration Regulations.

   I am not satisfied that Australia has protection obligations to the applicant [SZUWQ] under the Convention as amended…

10. The delegate then addressed the complimentary protection criteria and found:

    I am not satisfied that Australia has protection obligations to [SZUWQ] because there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country,  there is a real risk the applicant will suffer significant harm. 

    I am not satisfied that Australia had protection obligations to the applicant under s.36(2)(aa) of the Migration Act. As a result, the applicant does not meet the criteria for the grant of a Protection visa under paragraph s.36(2)(aa) of the Migration Act and subclause 866.22(4) of the Schedule 2 of the Migration Regulations.

11. The applicant sought a review before the Tribunal by an application lodged on 6 August 2013.  The Tribunal initially listed the matter for hearing on 11 February 2014. An adjournment application to a later date was sought by the representative of the applicant which was granted to 4 June 2014.  The applicant attended the hearing before the Tribunal on 4 June 2014. 

12. Before this court, the applicant sought to suggest that she was told that she could have a second hearing after the hearing on 4 June 2014.  I was informed by the applicant that she was not given the opportunity to provide any further information.  For reasons that follow I do not accept those assertions.

13. The assertions by the applicant do not sit comfortably with the content of what is identified and the reasons of the Tribunal, specially, para.43:

    43. The applicant was invited to provide submissions and further evidence in writing, with a further disclosure being provided by the applicant on 19 June 2014 which was considered by the Tribunal.

14. In the material before this court, it appears clear that the applicant was given a proper opportunity to present her application for review before the Tribunal and that the Tribunal has properly considered the applicant’s claims which were addressed in considerable detail by the Tribunal.

15. Relevantly, the Tribunal said in paras. 51 to 57:

    51. The Tribunal noted that the applicant was interviewed by compliance shortly after being detained for being an unlawful non-citizen in Australia.

    52. The applicant was asked pursuant to s424AA of the Act, to explain the responses she provided when interviewed by compliance if she feared returning to the PRC for any reason and it was noted that no mention was made by the applicant of her debt problems, her fear of loan sharks, the Land Bureau, or that she feared persecution in the PRC as a result of her father’s opposition to the expropriation/demolition of his property or for any other reasons apart from that she would lose face in the PRC and no one would respect her. In the record of interview, she indicated that if she returned to the PRC she would lose face and no one would respect her. At the hearing the applicant was advised that the information contained in the compliance interview, subject to her response could form the reason or part of the reason for the Tribunal affirming the Department’s decision as the information could impact adversely on her credibility. She testified that she did not disclose the debt for reasons of her alleged rape in Australia and given that her husband was present at the time of the interview.  In relation to the land issue, she was not aware of the full details of the land issue when interviewed.  The Tribunal considered the applicant’s responses, but rejects her explanations. Had she feared returning to the PRC for reasons of her fear of the loan shark and/or reasons arising from the property issue and her father’s claimed detention, the Tribunal finds that she would have so mentioned in her compliance interview.

    53. The Tribunal finds the applicant’s claims relating to her debt to a loan shark and her claims associated with the expropriation/demolition of the family property are not credible. The Tribunal gives these claims no weight.

    54. Further the Tribunal notes that there is no reliable documentation in relation to the claimed debt and no evidence of repayments being made to Lin Sen as claimed, even considering the post-hearing bank statements provided, or for that matter documentation to establish that the family ever had possession of the claimed land subjected to expropriation/demolition.  The Tribunal finds that the property was never expropriated or appropriated from the family. Given the country information regarding procedures in place relating to property disputes, documentation relating to the applicant’s family having rights in the property and its claimed expropriation should have been readily available to corroborate the applicant’s claims.

    55. The Tribunal does not accept that the family property was confiscated, expropriated or appropriated as claimed or that the applicant sought a loan from a loan shark to bribe Chinese officials to secure her father’s release.

    56. The Tribunal finds the applicant not to be credible in relation to the central elements of the applicant’s claims.

    57. Accordingly, the Tribunal finds that there is insufficient evidence before it upon which to make a finding that the applicant is a person in respect of whom Australia owes protection obligations.

    …

    61. Since the applicant’s departure from the PRC, the applicant’s family has faced no serious harm for reasons of the land dispute. The applicant departed the PRC on a valid Chinese passport, and she faced no hindrance exiting the PRC. Having considered the documentary evidence before it in relation to exit and entry procedures into and out of the PRC, the Tribunal find that the authorities in the PRC have no interest in the applicant for any Convention-related reason.

    62. Given the passage of time, the Tribunal finds that there is no real chance that the applicant would face persecution in the PRC for any Convention reason.

    63. The Tribunal further finds that there is no real chance for a Convention reason that the applicant would face persecution resulting from her claim that she would lose face in the PRC.

    64. The Tribunal finds on the fact before it, that there is no real chance that the applicant would face persecution were she to return to China, now or in the reasonably foreseeable future. The Tribunal accordingly finds that the applicant’s fear of persecution in the PRC is not well-founded.

    65. Given that there is a dispute resolution mechanism in the PRC relating to land disputes, and given the Tribunal’s finding that the applicant’s fear of persecution is not well-founded for any Convention reason, the Tribunal finds that there is no real chance that the applicant would face persecution for a Convention reason now or in the reasonably foreseeable future were she to seek redress in the PRC over the land dispute.

    66. The Tribunal finds that there is no real chance that the applicant would face persecution for reason of the land dispute in the PRC now or in the reasonably foreseeable future.

    67. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being remove from Australia to the PRC, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal has had regard to the evidence and claims put forward by the applicant. It again concludes in this context that given the applicant is not credible, that her family in the PRC has suffered no significant harm, finds that the applicant will not be harmed by a loan shark that she will have organs removed or be forced into sex slavery, and finds that there are not substantial grounds for believing that there is a real risk that the applicant would suffer significant harm if returned to the PRC under Australia’s protection obligations under s.36(2)(aa). It finds that there is no real risk that the applicant would face harm at the hands of the authorities in the PRC as a result of debt or a land dispute. The Tribunal does not accept that there is a real risk the applicant would face a risk to her life, a danger of torture or of cruel or unusual treatment or punishment if she returns to the PRC. On the evidence before it the Tribunal does not accept that there is a real risk the Applicant will suffer significant harm in the PRC. The Tribunal is satisfied on the evidence, that a real risk of significant harm exists for the applicant. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

    68. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

16. On the material before this court, there is no jurisdictional error that has been made by the Tribunal and the Tribunal appears to have properly complied with its statutory requirements and the dictates of fairness in the conduct and hearing of the review. 

17. Further, to the extent that is suggested that there was some want of independence, I am satisfied that the Tribunal approached the review with an impartial and independent mind and there is no basis in the material before this court to suggest otherwise.

18. To the extent that the applicant complains that her credibility was not accepted, the Tribunal’s reasons identify an evident and intelligible justification for the findings of fact that were open before the Tribunal.  There is, accordingly, no jurisdictional error of the kind identified in the grounds of the application. 

19. To the extent that the applicant has sought to advance a ground that she was denied a second hearing, I am satisfied that the Tribunal invited the applicant to provide any further evidence or submissions after the hearing on 4 June 2014 which the applicant attended and the applicant took advantage of that opportunity by providing further material to the Tribunal.

20. I do not accept that the Tribunal promised the applicant a second hearing.

21. To the extent that the applicant suggested that her lawyer had received notification not given to her about the provision of further submissions in evidence, it’s clear that the applicant was aware of that opportunity by reason of having availed herself of the opportunity to provide further information which was taken into account by the Tribunal. Accordingly there was no denial of procedural fairness in the conduct of the review by the Tribunal.

22. For those reasons, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 February 2015