SZVGX v Minister for Immigration and BORDER Protection
[2015] FCCA 462
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGX v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 462 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether application has raised an arguable case for the relief claimed – application dismissed. |
| Legislation: 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: | SZVGX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2847 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 February 2015 |
| Date of Last Submission: | 20 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitor for the First Respondent: | Ms Zoe Taylor (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2847 of 2014
| SZVGX |
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 9 September 2014, and handed down on 10 September 2014 (“the RRT”).
On 5 December 2014, the applicant attended a directions hearing before a registrar of the Court. 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, by 6 February 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 6 February 2015. The applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the directions hearing, the matter was set down for a hearing today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“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, though had the assistance of a Mandarin interpreter.
The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with the Court’s directions or otherwise.
The first respondent, in written submissions filed on 13 February 2015, summarised the background of the applicants’ claims and the RRT’s decision, as follows:
“Background
5. The applicant, a citizen of China, arrived in Australia on 9 March 2013 on a tourist visa. On 10 September 2013, the applicant applied for a protection visa.
6. On 19 February 2014, the application was refused by the Delegate.
7. On 26 March 2014, the applicant applied to the Tribunal for review of the Delegate's decision.
8. On 3 September 2014, the applicant attended a hearing before the Tribunal with the assistance of a Mandarin interpreter. The applicant's registered migration agent did not attend the hearing.
9. On 9 September 2014, the Tribunal affirmed the Delegate's decision.
10. On 14 October 2014, the applicant commenced judicial review proceedings in the Federal Circuit Court of Australia.
Applicant's claims
11. The applicant claims to fear persecution in China from members of the Chinese "underworld", as well as various creditors to whom he owes money. In support of this claim, the applicant makes the following assertions:
a) the applicant ran a money-lending business in China with a capital facility of approximately 10 million yuan;
b) the applicant lent 3 million yuan to an unknown borrower on a three month term;
c) the borrower defaulted on the loan and went overseas;
d) in order to repay his creditors, the applicant sold his house for 1 million yuan and borrowed a further 2 million yuan from the "underworld". The applicant could not afford to repay the 2 million yuan which he owed to the underworld, so they threatened to harm him;
e) in June 2012, the applicant was abducted by a member of the underworld and placed in house arrest for two-days. It was not until the applicant's wife borrowed 100 thousand yuan from her parents to pay the interest owing on the debt, that the applicant was released. "They" extended the repayment period to June 2013 and threatened to cut off the applicant's arm or leg if he failed to repay the money; and
f) the applicant felt it was not possible to find 2 million yuan in one year, and fled to Australia. The applicant had been told that the man to whom he lent 3 million yuan was in Australia, and he hoped to find him there.
Tribunal's decision
12. The primary issue before the Tribunal was the applicant's credibility. Ultimately, the Tribunal was not satisfied that the applicant was a witness of truth. The Tribunal reached this finding for the following reasons:
a) the Tribunal considered it "implausible" that the applicant would lend 3 million yuan to an unknown person (whose name the applicant could not recall) without taking any security over the loan. Accordingly, the Tribunal found that the loan was never made. See paragraph [12] of the Tribunal's decision record (DR).
b) on two recorded occasions, the applicant retracted or changed his evidence in response to issues which the Tribunal raised with him: DR [13] and [16].
c) the Tribunal considered that the applicant ought to have some documentation in support of his claim that he operated a money-lending business for three years, with over 10,000 village clients. The Tribunal found that the applicant's failure to provide documentary evidence did not reflect well on his credibility: DR [15].
d) generally, the Tribunal did not find it credible that the applicant had come to Australia to locate a man whose name and whereabouts he did not know: DR [17].
13. Finally, the Tribunal had regard to information which revealed that the applicant did not leave China until 9 March 2013, some six weeks after his tourist visa was granted. The Tribunal considered this undermined his claim to have left china "urgently" for fear of harm. When this information was put to the applicant for comment pursuant to section 424AA of the Migration Act 1958 (Cth) (Act), the applicant responded that he delayed leaving China because it was a "big decision for him". Although the Tribunal accepted this explanation, on its face, it nevertheless found that the delay was indicative of the fact that there was no urgency for the applicant to leave China.
14. Having dismissed the factual basis upon which the applicant's claims relied, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under section 36(2)(a) of the Act. For the same reason, and having made no separate claims for consideration under section 36(2)(aa) of the Act, the applicant was not eligible under the complementary protection criteria.”
The applicant confirmed that he relied on the grounds of his initiating application, filed on 14 October 2014. Those grounds are as follows:
“1) The RRT failed to give sufficient consideration to the applicant claims that he will be mistreated by his debtors if he returns to China after losing RMB 3 Million in the private money lending business.
2) The RRT breached the rules of procedural fairness by failing to give the applicant an opportunity to comment on information which the RRT relied on.”
The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
The applicant made no relevant submission in support of the grounds other than to repeat that he hoped he had the opportunity to stay.
In Ground 1, the applicant asserts that the RRT failed to give sufficient consideration to his claims that he would be mistreated by debtors if he returned to China after losing 3 million RMB in the private money-lending business. The RRT’s decision record makes clear that the RRT understood the claim being made by the applicant that, having borrowed money from the Chinese underworld that he was unable to repay, he was threatened and detained by them and that he would be harmed by them if he returned to China.
The RRT comprehensively rejected the applicant’s claims ever to have operated a private money-lending business in China, or to have lent an amount of 3 million RMB, or to have borrowed 2 million RMB from an underworld figure in China, or that he or his family had received threats, or that he was taken away and detained for two days and threatened with harm if he did not repay the Chinese underworld figure the 2 million RMB.
Having comprehensively rejected the applicant’s claims, the RRT found that he did not satisfy the criteria in either s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth), and that the decision of the delegate of the first respondent should be affirmed.
A fair reading of the RRT’s decision record makes clear that the RRT identified with some specificity the particular concerns it had about the applicant’s evidence and noted various exchanges that it had with the applicant about his evidence.
There is nothing on the face of the RRT’s decision record to suggest that the RRT failed to give sufficient consideration to the applicant’s claims that he would be mistreated if he returned to China.
Further, it is 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 Ground 2 the applicant makes the unparticularised assertion that the RRT breached the rules of procedural fairness by failing to give the applicant an opportunity to comment on information which the RRT relied upon. I asked the applicant what the information was that he says he was not given an opportunity to comment upon and the applicant did not identify any such information.
I do note that the RRT had regard to departmental records that demonstrated the delay of the applicant in leaving China having been granted a visa. That delay led the RRT to conclude that the applicant did not seek to leave China with any urgency. The RRT asserted that such information was given to the applicant in accordance with s.424AA of the Act and there is no evidence before this Court to suggest otherwise. Moreover, I note that the applicant does not make a complaint about a failure of the RRT to comply with its obligations under s.424AA of the Act.
The applicant was given an opportunity to file any further evidence in this matter which would, of course, include any transcript of the RRT hearing, or a recording of the RRT hearing. The applicant did not file any such evidence and in the circumstances I accept as accurate the RRT’s assertions in its decision record as to what transpired at the hearing.
The RRT’s findings and conclusions would appear to be open to it on the evidence and material before it, and for the reasons it gave, including its 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).
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 RRT’s decision record.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. There is a genuine public interest in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491).
Accordingly, in the exercise of the court’s discretion under r.44.12 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-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 4 March 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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