SZVAV v Minister for Immigration

[2015] FCCA 385

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 385

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – application set down for show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) – whether application raises an arguable case for the relief claimed – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZVAV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2518 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 9 February 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

The Applicant: The Applicant appeared in person with a Mandarin interpreter.

Solicitor for the First Respondent: Ms N Johnson of Mills Oakley

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2518 of 2014

SZVAV

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 10 September 2014 by the applicant, SZVAV, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member K. Raif on 19 August 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 applicant a Protection (Class XA) visa.

2. The applicant, pursuant to s.91X of the Migration Act 1958 (Cth) (the “Migration Act”), has been granted a pseudonym and cannot be identified by name.

3. The solicitors for the Minister filed a folder on 2 October 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 Ms Johnson, 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 applicant is a citizen of China who applied for a Protection (Class XA) visa on 19 August 2013 (CB 1-26). In a statement accompanying his Protection visa application, the applicant claimed that he organised a group of migrant workers to complete a construction project in Hainan, China, but the contractor was unable to pay their wages once the project was completed. In late 2012, the applicant demanded that the wages be paid on behalf of the workers and organised appeals to the city and provincial governments. The contractor became aware of the appeals and influenced the police to stop them. The applicant claimed he was subsequently kidnapped and taken to an unknown place where he was tortured and his life was threatened if he were to appeal again. In March 2013, he was the subject of another attempted kidnap whilst walking on the street but he managed to escape. The applicant was forced to stay at a friend’s house after 18 migrant workers came to his home seeking payment of their wages and took his appliances (CB 27-28).

3. The applicant was invited to attend an interview with the delegate on 28 January 2014 (CB 42-45), which he attended (CB 61-64). On 10 February 2014, the delegate made a decision refusing to grant the applicant a Protection visa (CB 57-70).

Tribunal’s decision

1. On 7 March 2014, the applicant lodged an application for review of the delegate’s decision (CB 71-75). By letter dated 26 June 2014, the Tribunal invited the applicant to appear before it at a hearing scheduled on 19 August 2014 (CB 79-81). The applicant accepted the invitation (CB 82-83) and attended the hearing (CB 84-86). He provided copies of pages from his passport at the hearing (CB 87-93).

2. By decision dated 19 August 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa (CB 96-103).

3. The Tribunal found that the applicant had not been truthful in his claims (CB 98-99 at [12]). It found that his evidence about his dispute with the contractor, the various complaints he made and the persecution he allegedly suffered was “evasive” and “vague”. The Tribunal also found that the applicant had memorised his written statement and had not actually experienced the events described in the statement. On the basis of adverse credibility findings, the Tribunal found that the applicant’s claims had been fabricated for the purpose of his Protection visa application and it rejected all of his claims to fear harm in China (CB 102 at [16]).

4. The Tribunal identified 15 “specific concerns” with the applicant’s evidence to support the adverse view that it formed of his credibility (CB 99-102 at [13]). The concerns included the applicant’s failure to approach the courts to enforce the contract with the contractor (CB 99 at [13(c)]), his inability to recall precisely when he was kidnapped (CB 101 at [13(j)]) and inconsistencies in his evidence as to when he organised a protest (CB 100 at [13(i)]). The Tribunal was also not satisfied that the applicant’s claim that 18 workers drove for nearly 40 hours to his home to ask for their wages and to take his appliances was plausible (CB 101 at [13(n)]).

Current Proceedings

1. The application before the Court pleads the four following grounds of review (verbatim):

   1.  I am scared to be back to China.  My purpose of coming to Australia is to flee from Chinese government and developer’s persecution.  This is because if I am back, I will face the death threat.  I believe that I have explained my difficult situation to tribunal completely, but they did not consider my case thoroughly and even suspected the genuineness of my statement.  I feel unfair that they rejected my application.

   One of the reasons that RRT rejected my application is that I did not stated what was happening exactly during the time between 4.2012 and 6.2012 in my statement.  During the interview, I have already explained to the relevant officers.  During this time, we reflected our problems to government, but they did not pay enough attention.  Since the developers agreed to pay us when they got enough money, those 18 workers and I had discussed with developers and seek the solutions in these two months.  I think that my explanation is very reasonable.  So RRT could not reject me just because I did not state clearly what happened during these two months in my personal statement.  I cannot accept this judgment.

   2.  RRT believed that the kidnapping without witnesses and official investigation is implausible.  I think this is a mistake.  Although Haikou is a city with population of over 600,000, the location where I was kidnapped is a small remote street.  Besides, it was dark and there were no street lamps and pedestrian in that street.  The kidnappers took actions very quickly to force me into the car.  Therefore, this is a secret kidnapping.  It is unreasonable that RRT denied my experience just because I could not provide witness.

   3.  Another reason why RRT rejected my application is that I did not say the specific time when I was kidnapped clearly.  I do not agree with this judgment.  Firstly, I told the RRT officers that I was held for two or three days; later I gave a specific time of 2 nights and 3 days.  I did not think that these two timings contradict with each other.  Secondly, at that time, I was beaten up and shocked electronically.  It is reasonable that I did not remember the specific time when I was tortured physically and emotionally.  Therefore, RRT should have considered my case thoroughly.

   4.  I wish the Federal Circuit Court of Australia could consider my situation.

2. The application was listed for a first court date directions hearing on 2 December 2014. The applicant did not appear on that occasion. The matter was set down for a show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) on 9 February 2015, where the applicant did appear.

Applicant’s Submissions

1. The applicant indicated at the show cause hearing that he was not aware of what was happening at the hearing.  When the Court asked the applicant how he came to know of the show cause hearing, given he had not appeared at the first court date directions hearing, he indicated his migration agent had told him to come to the hearing.

2. When invited to make oral submissions, the applicant stated that he had initially informed the Tribunal he had been detained for approximately three days, and then changed his statement to be three days and two nights.  The applicant elected to make no further substantive submissions in support of his claims.

Minister’s Submissions

1. The Minister submits the applicant has not taken up the opportunity afforded him to amend his application or file any written submissions in support of his application. The purported grounds of review are in the form of submissions and, in substance, seek to selectively challenge three of the Tribunal’s factual findings that supported its ultimate conclusion that the applicant had not been truthful in his claims and evidence. No challenge is made to the remaining twelve concerns that the Tribunal identified to support the adverse view that it formed of the applicant’s credibility. The Tribunal’s conclusion on credibility was based on the cumulative effect of the matters to which it referred.

Ground one

1. The Minister submits the first “ground” of the application appears to challenge the Tribunal’s finding (CB 99-100 at [13(d)]) that it was “unclear” why the applicant would wait two months after the project was finished in April 2012 before he approached the government and demanded wages in June 2012. The applicant submits that the explanation he provided for this delay was reasonable. Before the Tribunal the applicant claimed that he had approached the Letters and Complaints Bureau prior to June 2012, but had not included this in his written statement because he considered it “trivial”. The Tribunal also found it was “unclear” why the applicant would include in his written statement the complaints about trivial matters that he made after June 2012, but not before (CB 99-100 at [13(d)]).

2. The findings that the Tribunal made in respect of these matters were open to it on the available materials. As such, the complaint in this “ground” is essentially an attempt to invite the Court to undertake impermissible merits review.

Ground two

1. The Minister submits the applicant’s second “ground” takes issue with the Tribunal’s finding (CB 101 at [13(m)]) that it was not plausible that the applicant could have been kidnapped in the middle of the street without anybody noticing or reporting the matter. The applicant had claimed that the incident occurred at night, the city was not prosperous and there were not many people around. The Tribunal relied on country information that indicated the population of Hainan was 600,000 to find that his explanation was implausible (CB 101 at [13(m)]). The applicant now contends that it was unreasonable of the Tribunal to “deny his experience” simply because he could not provide a witness to his kidnapping.

2. The Minister argues the Tribunal’s relevant finding was at least open to on the material before it. It was also a finding on which reasonable minds might differ but does not demonstrate any lack of rationality or logicality.  Again, this is an attempt to seek impermissible merits review.

Ground three

1. The Minister submits the third “ground” of the application asserts that there was no contradiction in the applicant’s evidence in relation to the length of his detention. One of the fifteen matters relied upon by the Tribunal in finding that the applicant was not credible was his “hesitation” in remembering the length of his detention. The applicant initially said that he was held for “two or three days” but then said it was “2 nights and three days”. The Tribunal was of the view that if the applicant had in fact been detained, he would have had no hesitation in remembering the length of his detention (CB 101 at [13(l)]).

2. Relevantly, the Tribunal did not rely on an inconsistency or contradiction in the applicant’s evidence about the length of his detention, but on his hesitation in providing the precise timeframe of “2 nights and three days”. The Tribunal was in the best position to assess the manner in which the applicant provided his oral evidence and it was entitled to make factual findings in this regard when assessing the applicant’s overall credibility. The Minister submits this ground is a further attempt at seeking impermissible merits review and accordingly must fail.

Conclusion

1. The Minister contends the applicant has failed to demonstrate an arguable case for the relief claimed. Accordingly, the application should be dismissed, with costs.

Consideration

1. The first paragraph of ground one of the application is a general statement reasserting the applicant’s substantive protection claims, as well as an unparticularised allegation that the Tribunal failed to consider his case thoroughly. 

2. Their Honours Black CJ, French (as he then was) and Selway JJ stated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58]:

   58. The review process is inquisitorial rather than adversarial. The tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 ; [2000] FCA 1901 at [114] (Merkel J). There is authority for the proposition that the tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 ; 160 ALR 24 at 56 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–4 ; 58 ALD 30 at 35–7 ; [1999] FCA 247 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 ; [2001] FCA 263 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 ; 199 ALR 265 ; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the tribunal.

   On a fair reading of the Tribunal’s Decision Record, it cannot be said that there has been a claim raised by the applicant that was not considered by the Tribunal.  Indeed, the Tribunal gave detailed reasons for its findings and, in circumstances where the applicant does not with any specificity particularise his claim about the thoroughness of the Tribunal’s reasons, no arguable case for the relief claimed has been raised.  Further, a finding on credibility is a matter for the Tribunal par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.

3. The second paragraph of ground one of the application seeks to challenge the Tribunal’s findings at [13(d)] of the Decision Record (CB 99-100) where it stated:

   13.d.      The applicant claims that he approached the municipal government in June 2012.  He claims the project was finished by 10 April 2012.  It is unclear why the applicant would wait two months before approaching the government and demanding wages.  The applicant explained this delay by stating that he had also approached an office dealing with construction and the Letters and Complaints Bureau before June 2012.  The applicant made no mention of these complaints in his written application.  The applicant informed the Tribunal that he did not refer to these complaints because there were ‘trivial matters’.  It is unclear to the Tribunal why the applicant considered that detailing the various complaints he made since June 2012 in his written submission were not trivial matters but referring to the complaints he made before June 2012 as trivial matters not worth being mentioned in the application.

4. The applicant contends that his explanation for not mentioning these matters to the Tribunal was, in fact, reasonable.  The findings made by the Tribunal in this respect were open to it on the material and evidence before it.  The applicant seeks to engage the Court in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272.

5. Consequently, no arguable case for the relief claimed is raised by ground one of the application.

6. Ground two of the application seeks to raise complaints in respect of the Tribunal’s findings made at [13(m)] of its Decision Record (CB 101) where it stated:

   13.m.     The applicant claims he was kidnapped when he was walking on the street.  The applicant suggested the city is not prosperous and there are not many people around but the population of Haikou is over 600,000.  Even if the kidnapping happened at night and after dark, as the applicant suggests, the Tribunal does not consider it plausible that one could be kidnapped in the middle of the street without anybody noticing or reporting the matter.

7. The applicant complains that this finding was unreasonable because the city was not prosperous, there were not many people around, the claimed incident occurred at night and because he was unable to provide a witness to substantiate his claim.

8. In Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 their Honours Crennan and Bell JJ stated at [131]:

   131.  What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   On a fair reading, the Tribunal’s finding in respect of the claimed kidnapping of the applicant was open to it on the material and evidence before it.  I accept the Minister’s submissions that it was a finding on which reasonable minds might differ, but the finding does not demonstrate any lack of rationality or logicality.  To the extent the applicant seeks to disagree with it, this seeks to again engage the Court in impermissible merits review.

1. Consequently, no arguable case for the relief claimed is raised by ground two of the application.

2. Ground three of the application raises a complaint in respect of the Tribunal’s finding at [13(l)] of the Decision Record (CB 101) where it stated:

   13.l.      The Tribunal asked the applicant how long he was held for when he was kidnapped.  The applicant initially said ‘two or three days’.  He then said it was 2 nights and three days.  In the Tribunal’s view, if the applicant was detained, he would have no hesitation in remembering the length of his detention.

3. Despite the applicant’s claim, it is clear from the language of the finding the Tribunal did not base its finding on an inconsistency or contradiction in the applicant’s evidence, rather, it found that if he had actually been detained as claimed he would have no hesitation in being able to remember the length of his detention.  This was based on the lack of specificity in the applicant’s initial answer to the question.

4. This finding was a finding of fact reasonably open to the Tribunal on the material and evidence before it.  The applicant again seeks to engage the Court in impermissible merits review.  Accordingly, no arguable case for the relief claimed is raised by ground three of the application.

5. Ground four of the application simply invites the Court to consider the applicant’s situation.  The Court, however, has no power to consider the merits of the applicant’s protection claims and is simply limited to considering whether there has been an error of law or jurisdictional error in the Tribunal’s decision.  Accordingly, this ground raises no arguable case for the relief claimed.

Conclusion

1. On a fair reading of the Decision Record, there is no error apparent in the Tribunal’s decision.  Further, no arguable case for the relief claimed has been raised by the applicant.

2. Consequently, the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with costs awarded to the Minister.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 5 March 2015