SZUZP v Minister for Immigration

[2014] FCCA 3043

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3043

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the interpreter services at the Tribunal hearing had been inadequate, the Tribunal failed to take relevant considerations into account and had not believed the applicants’ account.

Legislation:

Migration Act 1958, ss.36, 91R, 416, 474

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

First Applicant: SZUZP

Second Applicant: SZUZQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2450 of 2014

Judgment of: Judge Cameron

Hearing date: 16 December 2014

Date of Last Submission: 16 December 2014

Delivered at: Sydney

Delivered on: 16 December 2014

REPRESENTATION

The First Applicant appeared in person

Counsel for the First Respondent: Mr H.P.T. Bevan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2450 of 2014

SZUZP

First Applicant

SZUZQ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a citizen of China who arrived in Australia on 20 June 2007 as the holder of a student guardian visa.  On 11 July 2008 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in China because of she was a Falun Gong practitioner.  The second applicant, who is her son and had arrived in Australia on 4 January 2007 on a student visa, was included in the application as a member of her family unit.  On 9 October 2008 the applicants’ application was refused by a delegate of the first respondent (“Minister”) on the basis that they were not persons to whom Australia had 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”).  That decision was affirmed the second respondent (“Tribunal”) on 6 January 2009 and an application for an extension of time to file a judicial review application was dismissed by this Court on 12 April 2010.

2. On 18 March 2014 the first applicant lodged a second protection visa application alleging that she feared persecution in China because of a property dispute and ostensibly seeking to have her application considered under the complementary protection criteria in s.36(2)(aa) of the Migration Act1958 (“Act”). The second applicant was again included in the application as a member of her family unit.  A second delegate of the Minister refused the second application on 2 July 2014.  The applicants then applied to the Tribunal for a review of the second delegate’s decision.  They were unsuccessful before the Tribunal, differently constituted, and have applied to this Court for judicial review of the Tribunal’s decision on their second application.

3. In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. 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 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. 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 applicants’ second protection visa application.  As summarised by the Tribunal, the first applicant relevantly made the following claims in that application:

   a)her family in China had had a business which had held a lease to explore a marble field.  After their business became profitable, the authorities demanded the marble field back;

   b)she and her family continued to operate the business and the authorities sent gangsters to raid their factory and beat her up.  She and her brother had gone to see the leader and had pushed him.  As a result of those actions they were detained;

   c)she was released on bail after her husband promised to surrender the lease.  After she was released, she escaped from China but her brother was sentenced and exiled to another province; and

   d)if she were to be returned to China, she would pursue her right to claim fair compensation for the authorities’ unlawful resumption of the marble field.  She would be detained by the authorities.

2. At a Tribunal hearing on 4 August 2014 the first applicant claimed:

   a)she had taken over the lease of the factory.  After she, her husband and her brothers had run the business for two years, it became successful and the previous owners, who had money and power, wanted it back;

   b)the previous owners attended the factory when her elder brother was not there. Her employees escaped but she was beaten and had to use a knife to fight back;

   c)when her brother found out that she had been beaten he approached the previous owners and he was later gaoled for three years.  She was not detained;

   d)her brother was granted bail but did not stay at home and had advised her not to return to China.  The previous factory owners were still looking for her and him;

   e)the previous owners were suing her family and if she returned she would be imprisoned because she had attacked one of them with a knife and refused to apologise.  They had complained to the police at the time of the incident but the police did not open the case then;

   f)those events had occurred in the latter half of 2007.  When the Tribunal put to her that she had been in Australia at that time, the first applicant said the events had occurred when she was in China; and

   g)she had not previously mentioned the claims related to her family’s business during the process related to her first protection visa application because her previous lawyers had told her that they did not fall within “the definition” at that time.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removing the applicants from Australia to China, there was a real risk that they would suffer significant harm.  The Tribunal did not accept that the first applicant’s evidence was credible or that her claims for protection were genuine. 

2. The Tribunal did not accept that the first applicant had been involved in a dispute over a factory in China, that there was a legal action pending against her or that she would be charged or tried for the reasons she advanced were she to return to China.  The Tribunal:

   a)found that the first applicant’s claims in her second protection visa application were inconsistent with her claims at its hearing.  Specifically, in her second protection visa application she claimed that her issue was with the authorities who had demanded the marble field back, that gangsters had raided the factory and beat her and that she had been detained and later released on bail after her husband promised to surrender the lease.  However, at the Tribunal hearing she claimed that her dispute was with the landlord, that the people who raided the factory had slapped her and that was why she took a knife, that she had not been detained and that although her husband had surrendered the lease, her brothers, who were also parties to the lease, had refused to surrender it.  The Tribunal also noted that the first applicant initially claimed that those events had occurred in the second half of 2007, when she was already in Australia, before later saying that they happened when she was still in China;

   b)noted that although at its hearing the first applicant claimed that she had not been detained or granted bail as alleged in her second application, she maintained that a complaint had been made against her for assaulting a person with a knife but also claimed she had been able to leave China with no difficulty and that she had had her passport renewed while in Australia;

   c)noted that during the process of her first protection visa application the first applicant had claimed to fear harm because she was a Falun Gong practitioner and had not mentioned any of the claims she made in support of her second application.  It noted the first applicant’s explanation that she had not included those claims on the advice of her lawyer but found that there was no indication that she had been assisted by an agent during her first application.  The Tribunal found that she had also had ample opportunities to raise those claims herself throughout the process related to her first protection visa application but she had not done so; and

   d)found that a catalogue for a stone company which the first applicant had provided was not in the same name as the factory and did not demonstrate that she had had any relationship with a stone factory.  It found that there was nothing in the evidence which supported the first applicant’s claim that the factory belonged to her or her family.

3. The Tribunal noted that it had previously, albeit differently constituted, found that the first applicant’s claims to have been a Falun Gong practitioner were not credible. It also noted that it had not accepted that she had practised Falun Gong in China or that she had been detained on suspicion of being a Falun Gong practitioner. As first constituted, the Tribunal had also not been satisfied that if she had attended Falun Gong practice sessions in Australia she had done so otherwise than for the purpose of strengthening her protection claims and therefore disregarded that conduct pursuant to s.91R(3) of the Act.

4. The Tribunal found that there was no indication that its first decision was flawed. It noted that the first applicant had not provided any new information in relation to those claims, other than to say that she had stopped practising Falun Gong. The Tribunal was therefore satisfied that it was appropriate for it to apply s.416 of the Act and to take its first decision, that the first applicant was not a Falun Gong practitioner in China, to be correct. It went on to find that there was no indication on the evidence before it that the first applicant would be perceived as a Falun Gong practitioner were she to return to China.

Proceedings in this Court

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

   1.The decision of the Tribunal:

   a)is affected by poor interpretation during the second hearing.

   b)failed to take into account relevant considerations.

2. At the hearing of this application, the first applicant also alleged that the Tribunal had erred in not giving her and her son a fair procedure in that it had not believed the documents she had submitted in support of the second protection visa application.

Ground 1

1. The applicants bore the onus of proof that their hearing before the Tribunal had been adversely affected by poor interpretation.  However, they adduced no evidence on this point and the Tribunal’s decision record does not support such a finding.  It is not apparent that the applicants were unable to communicate the substance of their case or to respond to issues raised.

Ground 2

1. The second ground of the application was not particularised. 

2. The applicants’ claims were quite straightforward and have been summarised earlier in these reasons. I also note that those claims were relevantly made only in the context of s.36(2)(aa) of the Act, the applicants having previously been unsuccessful in obtaining protection visas on Convention-related grounds.

3. In light of the apparently comprehensive quality of the Tribunal’s consideration of the applicants’ claims, the absence of particulars identifying any deficiency in that consideration leads to the conclusion that the applicants have not made out the second allegation in their application. 

Ground 3

1. The allegation at the hearing of this application, that the Tribunal erred by not believing the documents which the applicants provided to it, invited the Court to review the Tribunal’s findings concerning the evidence before it.  The Court cannot substitute the Tribunal’s views on factual matters with its own, should they be different.  Further, the applicants did not identify any legal errors which might have affected the Tribunal’s findings on the documents set out on in the fifth and sixth sentences of para.28 of the Tribunal’s reasons, summarised above at [8(d)].

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 nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  12 January 2015