SZVAW v Minister for Immigration

Case •

[2015] FCCA 2071

•

6 July 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2071
Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal had proper regard to the applicant’s claims –whether the Tribunal complied with s.425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan  Liang [1996] HCA 6; (1996) 185 CLR 259
SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 SZTGE v Minister for Immigration and Anor [2014] FCCA 1458
Applicant: SZVAW
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 2519 of 2014
Judgment of: Judge Nicholls
Hearing date: 6 July 2015
Date of Last Submission: 6 July 2015
Delivered at: Sydney
Delivered on: 6 July 2015

REPRESENTATION

Solicitors for the Applicant: In Person
Solicitors for the Respondents: Ms A Lucchese of Sparke Helmore

ORDERS

  1. The application made on 10 September 2014 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $ 5800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2519 of 2014

SZVAW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

(As Corrected)

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 September 2014 seeking review of the decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) made on 19 August 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

  2. In evidence is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The applicant sought to tender into evidence a number of photographs (some ten pages) which appear to be photocopies of, possibly, identify documents, and photographs of what appears to be machinery.  I refused leave for those documents to be tendered into evidence before the Court on the basis that I could not be satisfied that they were relevant to any of the applicant’s grounds, nor to a fact in issue before the Court (see further below at [12]).

Background

  1. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 23 May 2013 on a visitor visa (CB 13). He applied for a protection visa on 19 August 2013 (CB 1 to CB 25). His claims to protection were set out in a personal statement attached to his application (CB 26 to CB 27).  The applicant claimed to fear harm on return to China because he was suspected of leaking trade secrets.

  2. The Minister’s delegate refused the grant of the protection visa on 10 February 2014 (CB 43 to CB 58). The applicant applied to the Tribunal for review of the delegate’s decision on 5 March 2014. On 19 August 2014 the Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa to the applicant (CB 107 to CB 114).

  3. The Tribunal summarised the applicant’s claims to protection ([11] at CB 109):

    “The applicant claims, essentially, that following the birth of his second child, his friend arranged for him to move to a better paid job. The company he worked for produced machinery for the defence. His friend also had a company that produced similar products and the friend asked the applicant to help him. Because the applicant felt obliged, he helped his friend to develop the machinery. Later on the experts noticed similarities between these machines and it was suspected that the information from the company where applicant worked was leaked. There were investigations. The applicant felt he would be caught and he made arrangements to travel abroad. After he came to Australia, his friend was taken into custody and under pressure he confessed and also revealed the applicant's whereabouts. Summons was issued to the applicant's family and he is afraid to return to China where he would be persecuted by the government. In his oral evidence the applicant added that a local security guard on many occasions spoke to his wife asking for his whereabouts.”

  4. The Tribunal formed the view that the applicant had not been truthful in his claims ([14] at CB 112). The Tribunal found that the applicant had given detailed evidence about the technical aspects of his claims  and accepted that he had been involved in the production and manufacture of machine equipment ([13] at CB 109). However, the Tribunal found that other aspects of the applicant’s claims were “confused, vague and inconsistent”, which led the Tribunal to question the “authenticity of these claims” ([13] at CB 109).

  5. The Tribunal had a number of concerns with the applicant’s evidence which are noted in the decision record ([13] at CB 109 to CB 112). The Tribunal made the following findings ([15] at CB 112):

    “The applicant displayed good technical knowledge in his interview with the delegate and evidence to the Tribunal and the Tribunal accepts that he was involved in the production of rotors or other equipment and the Tribunal is also prepared to accept that he helped a friend to produce equipment. However, the Tribunal has formed the view that the applicant has not been truthful with respect to the remaining aspects of his claims and finds that he had fabricated these for the purpose of his protection visa. The Tribunal rejects his claims. The Tribunal does not accept that the applicant disclosed military secrets, or utilised his knowledge of military technology when assisting Mr Song. The Tribunal does not accept that any similarities were discovered between the product produced by Mr Song and any product produced by the applicant's company. The Tribunal does not accept that Mr Song was investigated, either by the applicant's company or by the police or any other authority. The Tribunal does not accept that the applicant was afraid of being implicated and that is the reason he obtained the passport and left China. The Tribunal does not accept that following the applicant's departure from China, Mr Song was arrested, questioned, that he mentioned the applicant's involvement and his whereabouts. The Tribunal does not accept that the applicant had been issued with the summons and failed to report. The Tribunal does not accept that the local security or anybody else had taken any interest in the applicant's whereabouts or that his family had been questioned about him. The Tribunal does not accept that the applicant had come to any adverse attention of the authorities as a result of his employment or his knowledge of military technology or for any other reason.”

  6. The Tribunal also found that the applicant’s references to leaving his family, family planning laws in China, and the lack of human rights in China, did not give rise to a well-founded fear of persecution ([16] and [18] – [19] at CB 112 and CB 113).

  7. The Tribunal was also not satisfied that the applicant's claims, in light of its findings, concerning the factual matters put forward by the applicant, met the alternative criterion for the grant of a protection visa, namely, under the complementary protection provisions ([20] to [25] at CB 113).

Application before the Court

  1. The application to the Court is in the following terms:

    “1. I am so scared to return back China because I will be persecuted by Chinese if I do so. In order to prove the authenticity of my statement, I provided the original employee's identity card and some identification related materials during the interview. I hoped that the tribunal members could put serious thought for my case and show understanding and sympathy for my situation. But I was so disappointed that the tribunal members did not consider my claim carefully during the hearing, ignored the materials I provided and suspected the authenticity of the fact that I was under persecution. I think it is very unfair.

    2. One of the reasons why RRT refuse my application is that I cannot provide the confidential agreement, so they do not believe that I was part of event of producing military machinery and equipment. Just like what I said In my statement, the company’s major profits comes from secretly making rotors of military purpose for the Minister of Ministry of National Defense, so only senior officers need to sign any secrecy agreement. The technique staffs like me just need to make oral confidential agreement before we start the job. The company does not need people like us sign any secrecy agreement; they only educate us again and again not to disclose anything. Therefore, I think the judgment made by RRT about the refusal of my application due to not being able to provide confidential agreement is a mistake.

    3. Another reason why RRT refuse my application is that they do not agree the time when I prepared my visa. But I do not agree with RRT. Just like what I explained in the interview, on 5.2012, I was part of SONG's project of producing a new type of rotor equipment; on 11.2012, I heard that my company was going on an internal investigation; At that time, I had no idea what they were investigating into but I worried about my situation, so I approached the agent and asked them to help me with the visa on 12.2012 and submit the application on 1.2013; at the same time, the company has confirmed the similarity in products and started investigating the leakers. The company did not want to notify the police for the public investigation before they investigated thoroughly because this was getting involved with the military secrecy. Therefore, during this time, there was no official investigation. On 7.5.2013, my visa was finally granted, which made me feel much relief as I had been worry for a long time. However, the incident became more and more serious and the company decided to report to the police and investigate the leakers and whole leaking process publicly. They found SONG. Later, SONG had been inquired several times. Thereby, on 23.5.2013, I decided to flee from China to Australia and hope Australian government can offer me protection. I do not agree with RRT’s judgment and I think the time sequence of the incident is reasonable.

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

Before the Court

  1. At the first Court date in this matter the applicant appeared in person and was assisted by an interpreter in the Mandarin language. A number of orders were made giving the applicant the opportunity to file any amended application and any evidence by way of affidavit in support of his grounds. The applicant again appeared in person at a callover on 8 April 2015 and was assisted by a Mandarin interpreter.  By orders made on that day the parties were given the opportunity to file written submissions. Nothing further has been filed by the applicant. The Minister has filed written submissions in these proceedings. Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Mandarin language.

Consideration

  1. I will deal with the matters raised by the applicant today in the following way.  First, the documents that the applicant has sought to tender do not appear to be relevant to any grounds of the application. That needs some explanation because none of the applicant’s narrative, under the heading of “Grounds of Application”, can be understood to be any proper assertion of jurisdictional error on the part of the Tribunal.  In any event, the documents, on the best possible understanding that I was able to get from the applicant, appear to be directed to his claims about his employment in China. 

  2. It is the case that the question of the applicant’s employment in China was not at issue before the Tribunal.  The Tribunal accepted that the applicant had been employed in China, as he had claimed. The Tribunal also accepted that he had assisted his friend in the production and manufacture of certain equipment.  To the extent that the documents tendered were put to support his claim that he was employed in manufacturing in China, that cannot assist the applicant because the Tribunal accepted his claims in that regard.

  3. The other matters raised by the applicant today reflect what he has sought to put in his narrative before the Court. That is, the applicant complains that the Tribunal did not believe him and made an adverse finding as to his credibility. 

  4. First, the applicant asserted to the Court today that he told the truth to the Tribunal. Second, the applicant complained that the Tribunal did not place enough “stress” on his case. I understood this to mean, that the Tribunal did not give proper consideration to his claims.

  5. The third matter, whether raised as a separate issue, or as an example of the second matter, drew attention, to what the Minister has described as a “typographical error” in the Tribunal’s decision record, namely, a reference to the applicant’s friend being described as “Mr Wang”, when the friend’s name was “Mr Song”. 

  6. There are a number of paragraphs in the applicant’s narrative under the heading the “Grounds of Application”.  This narrative does no more than restate some of the claims to fear harm that the applicant put to the Tribunal and to take issue with the Tribunal’s findings of fact, including its finding that it did not believe some of the applicant’s claims and evidence.  On a fair reading of the Tribunal’s decision record, the Tribunal’s findings, including those as to the applicant’s credibility, were all reasonably open to it on what was before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407).

  7. On this basis, the applicant’s “grounds” can only be seen as an attempt to invite the Court to substitute its own findings of fact for those of the Tribunal. That is made plain with paragraph four of the applicant’s application to the Court. In other words, the applicant seeks impermissible merits review. 

  8. It is the case that the law does not permit the Court to intervene and to substitute its own findings, including findings as to the applicant’s credibility, for those of the Tribunal (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

  9. In paragraph one of his application, the applicant asserts that the Tribunal did not consider his claims carefully during the Tribunal hearing.  It is not clear whether this is some assertion of a breach of procedural fairness on the part of the Tribunal at the hearing, or whether this is a complaint that the Tribunal did not carefully consider his claims when it came to make its decision.  The latter, of course, being one of the points that the applicant emphasised before the Court today.

  10. It is the case that the Tribunal is obliged to provide a fair hearing to the applicant when it invited him to a hearing pursuant to s.425 of the Act. However, the difficulty today for the applicant is that he has not provided any evidence to the Court as to what otherwise may have occurred at the Tribunal hearing. For example, a transcript of the recording of the hearing. Before the Court the applicant was given the opportunity to obtain legal advice and to provide evidence. The Court can, ultimately, only proceed on the application and evidence as presented.

  11. The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s own account as set out in its decision record. On that account, I cannot see that the Tribunal breached its procedural fairness obligations under the Act, or even the principles of procedural fairness at general or common law, if they were to be applied.

  12. Therefore, if the applicant’s complaint is about what happened at the at the Tribunal hearing, then the state of the evidence before the Court means such a complaint cannot be sustained.  If it is a complaint about the Tribunal’s subsequent analysis, as set out in its decision record, then this is no more than an attempt for this Court to engage in impermissible merits review. 

  13. In paragraph two of the applicant’s grounds, the applicant asserted that one of the reasons the Tribunal refused his application was that he was unable to provide a “confidential agreement”, said to relate to his employment which involved the production of certain military equipment in China.

  14. The applicant’s complaint appears to be a reference to what is stated at [13](a) of the Tribunal’s decision record (CB 109 to CB 110).  It is important to note that this was a part of the Tribunal’s account of what occurred at the hearing.  In its subsequent analysis, the Tribunal accepted that the applicant was involved in the production of military equipment.  As set out above, it accepted his claims in relation to his employment.

  15. What the Tribunal did not accept, for the reasons that it gave, was the applicant’s subsequent evidence that he had disclosed military secrets and the claimed consequences of that disclosure.  This is not a case where the Tribunal found adversely to the applicant because he was unable to provide some corroborative documentary evidence to support his claim. 

  16. Finally, as the Minister noted, in referring to the applicant’s friend, the Tribunal did make a reference to this friend at paragraph [13](b) of its decision record as “Mr Wang”(CB 110).  It is clear that the friend’s name was, in fact, “Mr Song”.

  17. In its decision record, the Tribunal, having made that erroneous reference, then made a further 18 references to the applicant’s friend using the correct name of “Mr Song”.  In other words, the Tribunal named the applicant’s friend on 19 occasions.  On one occasion it made a mistake in that reference, and on the other 18 occasions it identified Mr Song as “Mr Song”. 

  18. In all the circumstances, I accept the Minister’s submission that the Tribunal’s one mistaken reference, out of 19 references, to the wrong name of the applicant’s friend, was not the type of error that would give rise to any finding that this error affected the exercise of jurisdiction by the Tribunal. I accept the Minister’s submission, and characterisation, that this is, in fact, a “typographical” error, which did not affect the exercise of power by the Tribunal (see the respondent’s written submissions at [14] - SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 and SZTGE v Minister for Immigration and Anor [2014] FCCA 1458).

  19. In his submissions today the applicant’s reference to this error appeared to be put in the context of a broader complaint that the Tribunal did not give proper consideration to his claims. However, in the circumstances, this complaint, as the Minister’s representative submitted today, is without basis.

  20. Any plain, let alone fair reading, of the Tribunal’s decision record, reveals that the Tribunal considered all of the applicant’s claims as ultimately presented. The Tribunal accepted some of his claims and rejected other factual assertions made by the applicant. The Tribunal gave reasons which were probative of the material before it.  In these circumstances I cannot see that the Tribunal failed to give proper consideration to the applicant’s claims to protection.

Conclusion

  1. The “grounds” of the application are not made out. No jurisdictional error on the part of the Tribunal is revealed. The application should be dismissed. I will make an order accordingly.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 3 August 2015

Corrections

  1. In paragraph [16] and [28] the name “Mr Sung” has been replaced with the name “Mr Song”.

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