SZVGG v Minister for Immigration

[2015] FCCA 405

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 405

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 48A, 474

Cases Cited:
SZGIZ v Minister for Immigration (2013) 212 FCR 235
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212  
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: SZVGG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2806 of 2014

Judgment of: Judge Emmett

Hearing date: 25 February 2015

Date of Last Submission: 25 February 2015

Delivered at: Sydney

Delivered on: 25 February 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Mr Hamish Bevan

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2806 of 2014

SZVGG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 4 August 2014 and handed down on 5 August 2014 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith who fears harm from authorities in China.

3. The applicant arrived in Australia on 21 October 1999 having departed legally from China and applied for a protection visa under section 36(2)(a) of the Act on 11 April 2000.

4. On 20 April 2000, the protection visa application was refused by a delegate of the then Minister and that decision was affirmed by a differently constituted Refugee Review Tribunal on 2 May 2001.

5. The applicant remained unlawfully in Australia from 6 June 2001 until he was placed in immigration detention on 6 February 2014.

6. On 13 February 2014, the applicant lodged a second protection visa application. That application was a valid application having regard to a decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration (2013) 212 FCR 235 (“SZGIZ”) which held that s.48A of the Act, as it then was, did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa.

7. Accordingly, the second application for a protection visa was made by the applicant on the basis that the RRT had not considered whether the applicant met the complementary criterion under s.36(2)(aa) of the Act.

8. The applicant claimed to fear harm in China because he and his family were identified as rightists and enemies of the people as his father was a Kuomintang Army (“KMT”) General during the Chinese civil war. The applicant also claimed to fear harm by reason of his attendance in Australia and participation in anti-Chinese Government activities in Sydney.

9. On 17 June 2014, the applicant’s application for protection based on the complementary criterion was refused by a delegate of the first respondent (“the Delegate”).

10. The applicant lodged an application for a review of the Delegate’s decision with the RRT on 24 June 2014. That decision was affirmed by the RRT on 4 August 2014. It is that decision that is the subject of judicial review by this Court.

11. The RRT’s decision record summarises evidence given by the applicant and refers to various exchanges it had with the applicant at the hearing and notes concerns that it put to the applicant about his evidence and noted the applicant’s responses.

12. Ultimately, the RRT comprehensively rejected the applicant’s claims to have suffered past harm in China for the reasons claimed, including rejecting that his father was a senior figure in the KMT or that the applicant and members of his family were subjected to harm by the authorities for this reason. The RRT also rejected the applicant’s claims to have been involved in a range of activities in Australia against the Chinese Communist Party and the Chinese Government.

13. The RRT gave detailed reasons for its adverse credibility findings. The RRT found the applicant’s evidence to be “notably vague”. The RRT noted that the applicant was unable to identify relevant dates or names relating to organised activities, in which he allegedly participated. The RRT noted that the applicant was similarly vague when he was asked why, despite attending these activities he had never joined any of the movements which organised them. The RRT found the applicant’s response to be confused and vague and not a satisfactory explanation for the concern expressed by the RRT.

14. The RRT concluded that the applicant’s evidence was vague and largely devoid of circumstantial detail and that the evidence that he gave to the RRT was not consistent with the written claims made by the applicant.

15. The RRT concluded that in light of all the information before it, it was not satisfied that the applicant is at risk of harm of any kind on return to China because of his family background or because he has, as he claims, involved himself in activities in Australia opposed to the Chinese Communist Party and Chinese Government.

16. The RRT noted that the applicant did not claim to fear harm in China for any other reason and that no other reason was apparent on the face of the material before the RRT. The RRT concluded that it was not satisfied that there are substantial grounds to believe that as a necessary and foreseeable consequence of his being removed from Australia to China there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act.

17. It is clear that the RRT confined its reasoning and conclusion to a consideration of whether or not the applicant met the complementary criterion. However, in circumstances where the RRT has comprehensively rejected the applicant’s claims, even if the RRT was required to consider the applicant’s claims again in the context of s.36(2)(a) of the Act, there could be no possibility that the applicant would satisfy the relevant criterion.

18. In SZGIZ, the Full Court of the Federal Court held that s.48A(2) of the Act (as it was at the date of the decision in SZGIZ) did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa by that person. In the circumstances, there was no obligation for the RRT to consider again whether the applicant met the refugee criterion in circumstances where it had already decided that he did not and that that decision remains unchallenged.

19. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter. The applicant confirmed that he had filed an Amended Application in accordance with directions made by me on 11 November 2014.

20. The applicant agreed that the substance of his Amended Application made three complaints, the first being that the RRT did not understand the Chinese Government and what happened to Chinese people. A fair reading of the RRT’s decision record does not support such an assertion.

21. The RRT noted that there is little recent information regarding attitudes towards those who have family connections with members of the KMT, however, the RRT cited various reports dealing with that organisation. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). In any event, the RRT ultimately rejected the applicant’s claims that his family had any such connection with the KMT.

22. The second complaint made by the applicant in his Amended Application appears to be a complaint about the RRT’s adverse credibility findings in relation to the applicant’s claims to have been involved in anti-Chinese Communist Party and Chinese Government gatherings in Australia. However, the RRT’s findings and conclusions are open to it on the evidence and material before it and for the reasons it gave, including the RRT’s adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

23. It is well established that the RRT is not required to accept uncritically any and all of the claims made by the applicant, (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

24. In the circumstances, the applicant’s complaint about the adverse credibility findings are not sufficient to demonstrate any error on the part of the RRT in circumstances where those findings were open to the RRT.

25. The third complaint made by the applicant was an assertion that the Tribunal member was confused by the interpreter. I asked the applicant what he meant by that complaint and the applicant responded that the RRT was confused because it did not know the situation in China. The applicant also said that the interpreter had made a mistake, because the RRT had said that the applicant was a construction worker when he did not. I asked the applicant if there were any other such examples and the applicant was unable to identify any other examples.

26. I note that at the directions hearing on 11 November 2014, the applicant was directed to file and serve by way of affidavit any additional evidence to be relied upon, including any transcript of the RRT hearing. That direction stated that any transcript of the RRT hearing was to be verified by the affidavit of the translator. The directions also stated that if the applicant wished to rely on a recording of the RRT hearing, then he must give notice to the first respondent and the Court by 13 January 2015 and that that notice must state the issue to which any part of the recording is relevant and the approximate duration of the relevant recording. No such evidence was filed by the applicant.

27. The applicant said he had not understood those directions at the time they were read to him by me on 11 November 2014. The applicant made no such complaint at that time. Further, the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language, together with a copy of the Orders made by me on that date. The applicant signed an acknowledgement of receipt of those Orders.

28. In circumstances where there is no evidence before the Court other than the RRT’s decision record, the Court is entitled to accept as accurate the RRT’s statement of matters occurring at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

29. In any event, even if one was to accept the applicant’s assertion that the RRT member was confused by the interpreter because it mistakenly made a finding that he worked as a construction worker, no such complaint is sustainable in the light of the RRT’s decision record. The RRT noted that the applicant had denied that he had been employed in the construction industry and that he said he did not know why his advisor had included this information in his protection visa application. The RRT made no further finding or reference to whether or not the applicant was a construction worker and it was, unquestionably, not an operable fact upon which the RRT relied in affirming the decision under review.

30. Otherwise, the applicant’s complaints appear to be no more than a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

31. To the extent that the applicant asserted that one could search the internet for the names of his family members or other country information, it is plain that the applicant had an opportunity to put before the RRT whatever information he wished in the nature of country information or any other evidence. Country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

32. To the extent that the applicant suggested the RRT could have undertaken its own search in relation to the applicant’s complaints, there is no general obligation on a RRT to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

33. There is nothing in the RRT’s decision record to suggest that the applicant did not have a real and fair opportunity to put whatever he wished and to participate in the hearing in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 24 per Allsop CJ).

34. In the circumstances, a fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant, explored those claims with the applicant at a hearing, and had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

35. The RRT identified independent country information to which it had regard, although, ultimately, the country information before it did not form part of its reason for affirming the decision under review. Its reasons for affirming the decision under review were based on the lack of credibility of the applicant’s claims. The RRT made findings based on the evidence and material before it, which were open to it on the evidence and material before it and for the reasons it gave. The RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

36. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The RRT’s decision is not affected by jurisdictional error and, accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 4 March 2015