SZVGV v Minister for Immigration & Border Protection
[2015] FCCA 1461
•1 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGV v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1461 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZVGV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2843 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 1 June 2015 |
| Date of Last Submission: | 1 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms Sophie Given (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2843 of 2014
| SZVGV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 14 October 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 11 September 2014 and handed down on that date (“the RRT”).
On 19 November 2014, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the matter was stood over for a later date.
On 12 March 2015, the applicant attended a second directions hearing before a Registrar of the Court.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit and was directed to file written submissions in support of the grounds of his application by 25 May 2015.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language, together with a copy of the costs schedule under the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
The applicant confirmed to the Court that he had not filed any further documents, either in accordance with the directions made on 12 March 2015 or otherwise. The applicant confirmed that he relied on the grounds of review as identified in his initiating application. Those grounds are as follows:
“1. Jurisdictional error has been made. The Tribunal member does not believe my claims based on wrong understanding of some facts.
2. The Tribunal member has incorrect understanding of allocation of land process. Thus, the fact I was mistreated by the government in China is not properly considered.
3. There exists wrong interpretation, such as the combination of the town and country levels of government, which leads to Tribunal members wrong understanding of my claims.”
The first respondent, in written submissions, summarised the background of the applicants’ claims and the RRT’s decision, as follows:
“Tribunal proceeding
On 4 September 2014, the applicant appeared before the Tribunal to give evidence and present arguments (CB 88) and, on 11 September 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 99).
The Tribunal did not find the applicant’s claims to be credible, citing the following reasons (CB 102 at [15]).
Claims concerning 2012 appropriation
The Tribunal:
found the applicant had suffered “no disadvantage” in relation to the 2012 reallocation (CB 102 at [17]);
found the applicant’s evidence about ten-year allocations, and his claims in relation to the 2012 appropriation were given to overcome difficulties in his case (CB 102 at [18]); and
did not accept the applicant’s claim about the 2012 appropriation of land was true (at [19]).
Claims concerning petitioning of the county government
The Tribunal:
found the applicant’s evidence that there was no county government to be inconsistent with his claim to have petitioned the county government (CB 102 at [20] and [22]);
found the applicant’s evidence that villagers waited for news from the town government until November 2012 to be inconsistent with his evidence the villagers knew the town government had ordered the appropriation of their land in September 2012, and did not accept the applicant’s explanations for that inconsistency (CB 103 at [23]); and
did not accept the inconsistences in the applicant’s evidence at the hearing in relation to his petitioning of Ju county were due to errors made by the representative as claimed (CB 103 at [24]).
Claims concerning harm post-detention
The Tribunal:
found the applicant had suffered “no serious or significant harm” from the time at which he claimed he was released from detention (in September or November 2012) to when he left China in June 2013, and his being able to travel to apply for a business visa was not consistent with his freedom being restricted (CB 103-104 at [26]); and
found the applicant was “seeking to emphasise how his freedom had been restricted” by stating he had to report every day at 8.00am, in response to the Tribunal’s comment that he had not been harmed after his release from detention (CB 104 at [27]).
Tribunal’s conclusions
The Tribunal found the applicant did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (“Act”), and was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the alternative criterion in s 36(2)(aa) of the Act (CB 104 at [32]-[33]).”
Each of the grounds was interpreted to the applicant and the applicant was applicant was invited to make submissions in support of the grounds.
Grounds 1 and 3
In relation to grounds 1 and 3, the applicant made the same complaint that the RRT had misunderstood the applicant's claim in relation to specific dates. The applicant said that he was only told yesterday of this problem by a friend, and he realised then that he did not properly understand the Mandarin interpreter. The applicant said this was because he (the applicant) could not speak proper Mandarin, and that was why his timing was different from his written materials. I understand that submission to be an attempt to explain what the RRT found to be inconsistent evidence give to it by the applicant with written claims made by the applicant. That inconsistency is identified by the RRT in paragraph 24 as follows:
“24. In his application, the applicant claimed to have petitioned Ju county on 18 September 2012. When the Tribunal pointed out that at the hearing he had said it was in mid-November 2012, the applicant said that he had gone to Ju county twice, and then said that he only went in mid- November and the representative made a mistake. He repeated his evidence that the town government had made the decision and he was petitioning the higher level of government. However, as pointed out above, he also gave inconsistent evidence that in his area there was no county level government. The Tribunal accepts that sometimes errors may be made by the representative. However, inconsistencies between the applicant's own evidence at the hearing are not explicable on that basis.”
It was not clear to the Court this morning whether the applicant was intending to suggest that the reference to 18 September 2012 in paragraph 24 of the RRT’s decision was inconsistent with the applicant's written complaints. If so, that is not correct. The applicant's written complaint is as follows:
“Because of illegal requisition of our land by the village committee, on September 18, four of us went to Ju County government to report the illegal action of the town government and the village committee. An officer let us go home to wait. On November 14, four of us and other more than 20 villagers went there to ask the result. An officer only met four of us while others waited outside. The officer asked us to keep waiting for the result and then urged us to leave soon. Our talk lasted less than five minutes. We were not happy with the officer's attitude and argued with him. The officer asked security staff to drive us off. We refused to leave. Security staff beat us, which caused the conflict. The police was called and came soon. We were handcuffed by the police. The villagers stopped the police when they saw we were handcuffed. Both sides clashed and then five other people were seized.”
The concern that the RRT appeared to have about the applicant's evidence was that, when the RRT pointed out the discrepancy in the dates, the applicant then said that he had gone to Ju County twice, and then went on to say that he only went once in mid-November and that his representative had made a mistake. The effect of this exchange was that the applicant claimed first to have petitioned on one occasion, then on two occasions, then on one occasion again. The RRT noted that errors may be made by a representative, however, was not satisfied that the inconsistencies in the applicant's own evidence and the hearing were explicable on that basis. That finding would appear to be open to the RRT on the evidence and material before it, and for the reasons it gave.
The applicant also made a compliant that the security and police are two different things in China, although they were the same uniform and are impossible to differentiate. I understand from that complaint that the applicant was suggesting that the RRT did not make that distinction. Again, the applicant told the Court that this is something a friend of his had pointed out to him yesterday.
However, the RRT’s reasons made clear that, whether the applicant was taken to the County Public Security bureau or to a police station and investigated and detained, the claim was ultimately comprehensively rejected by the RRT, as the consequence of the RRT not accepting that the applicant's claims for protection in relation to the appropriation of land were credible. That finding was as follows:
“29. The Tribunal does not accept that the applicant's land or any other villager's land was forcibly acquired by the government, that he led other farmers to meet the Director of the village, or to petition the county government; that he was taken to the County Public Security Bureau or to a police station and investigated, detained for 15 days in bad conditions together with eight bullies and often beaten by the police, was often harassed by the village security team after being released and had to report to the security office every Wednesday, had his freedom limited, or that he was not paid the money due to him or that the director of the village and his son threatened villagers several times because they had reported them. The Tribunal does not accept that he left China for those reasons.”
Again, those findings were would appear to be open to the RRT on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. It is well-established that 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). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
It is also well established that the RRT is not required to accept uncritically any and all claims made by an 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).
In relation to the applicant’s assertion that he did not speak proper Mandarin, I note that on each occasion where he has had an opportunity to nominate whether he wished to be assisted by an interpreter, he has nominated to be assisted by a Mandarin interpreter.
Ground 2
The applicant did not elaborate on the complaint in ground 2 that the RRT had an incorrect understanding of allocation of land process. The RRT noted that the applicant explained the land allocation process to it as follows:
“14. The applicant explained the land allocation process to the Tribunal. Land allocations are made by the village committee, usually every three years. He cannot recall when he got his first land allocation. Sometimes they give you a red land allocation book. Sometimes it says that the allocation is for five years but they reallocate it after three years anyway. The reallocated land is different land from that the farmer had held. The last reallocation occurred in 2012. His allocation is usually an area of two to three mu. The land is not necessarily in one plot, but the total area of land allocated is usually the same. For example, one plot may be two-thirds of the allocation and the second plot one-third of the allocation. The applicant understands that the land reallocation is made because people die or move away. He did not. have to pay to use the land. There used to be a farming tax paid to the village committee, but it had ceased prior to 2012.
The RRT found the applicant's evidence about the allocation of land process to be inconsistent with villagers having any right to compensation for the claimed appropriation of land and that they pay nothing to use the land. The RRT found that the applicant suffered no disadvantage in relation to the 2012 reallocation, nor was the applicant evicted from his land. The RRT found the applicant's evidence to be that he had a re-allocation at the time he and his wife continued to work the land. The RRT noted that it put those concerns to the applicant and found the applicant's explanations to be inconsistent with his earlier evidence.
The RRT found that the applicant's claim about the appropriation of the land in 2012 to be fundamental to his claim for protection and, as stated above, the RRT comprehensively rejected that claim, and the claims that flowed consequentially from that claim. The RRT found that the re-allocation process had been as it was in the past, that the applicant was not evicted and he had no entitlement to compensation.
The RRT also had concerns about the applicant's evidence about the existence or non-existence of county government. The RRT explored those concerns with the applicant, noted his explanations, and was not satisfied by them.
Again, those findings would appear to be open to the RRT on the evidence and material before it and for the reasons it gave.
The first respondent in written submissions submitted that the applicant's grounds of review amounted to a contention that the RRT’s decision was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds. Whilst I did not understand the applicant’s complaints to amount to such complaint, to the extent that is possible to suggest that they did, I accept the first respondent’s written submissions in respect of such a complaint as follows:
“8. By way of an application to show cause filed on 14 October 2014, the applicant commenced judicial review proceedings in this Honourable Court. The application is accompanied by an Affidavit which restates the applicant’s claims for protection. The application raises the following three grounds of review:
“a. Jurisdictional error has been made. The Tribunal member does not believe my claims based on wrong understanding of some facts.
b. The Tribunal member has incorrect understanding of allocation of land process. Thus, the fact I was mistreated by the government in China is not properly considered.
c. There exists wrong interpretation, such as the combination of the town and county levels of government, which leads to Tribunal member’s wrong understanding of my claims.”
9. The applicant’s grounds of review amount to a contention that the Tribunal’s decision is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds:” MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [42]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at 67 [36]-[37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 20 [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [130]-[139].
Otherwise, the applicant's complaints about the RRT’s decision appear to be no more than a disagreement with the findings and conclusions of the Tribunal. 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).
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 14 October 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 3 June 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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