SZVHA v Minister for Immigration and Border Protection
[2016] FCA 147
•24 February 2016
FEDERAL COURT OF AUSTRALIA
SZVHA v Minister for Immigration and Border Protection [2016] FCA 147
Appeal from: Application for leave to appeal: SZVHA v Minister for Immigration & Border Protection [2015] FCCA 2480 File number: NSD 1135 of 2015 Judge: FARRELL J Date of judgment: 24 February 2016 Catchwords: MIGRATION – application for leave to appeal an interlocutory judgment of the Federal Circuit Court of Australia – protection visa – whether open to Tribunal to find that documents provided by the applicant in support of his claims had been fabricated – consideration of ss 36(2) and 424AA of the Migration Act 1958 (Cth) Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 36(2), 424AA, 424A, 425, 477
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
SZVHA v Minister for Immigration & Border Protection [2015] FCCA 2480
Date of hearing: 22 & 23 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Counsel for the First Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr T Galvin of Minter Ellison Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 1135 of 2015 BETWEEN: SZVHA
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
23 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
On 23 September 2015, the applicant filed an application for leave to appeal a judgment of the Federal Circuit Court of Australia delivered on 10 September 2015: SZVHA v Minister for Immigration & Border Protection [2015] FCCA 2480 ("SZVHA"). Acting under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirming a decision of a delegate of the Minister to refuse the applicant a Protection (Class XA) visa.
As the primary judge’s judgment is interlocutory in nature, the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth).
BACKGROUND
The applicant is a citizen of the People's Republic of China. He arrived in Australia on 12 December 2011 on a Student Guardian (TU 580) visa. His visa expired on 31 July 2013. He lodged a protection visa application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) on 2 August 2013.
In a statement lodged with the Department on 2 August 2013, the applicant made the following claims: He says that he was the owner of a property which was demolished in October 2010 in accordance with a local government planning scheme. When he refused to sign a compensation agreement under which he was offered 2,000 RMB yuan per square metre instead of the “should-be rate” of 5000 RMB yuan per square metre, corrupt officials threatened him that he would face grave consequences if he did not accept the offer. In June 2011, he made a petition to the City Party Committee to “request a fair solution” to the compensation issue. On his way home he was stopped by a van, blindfolded and driven to a remote place where he was beaten and threatened with death if he did not sign the compensation agreement. The kidnappers left him covered in blood. He managed to struggle to the main road and called his wife to get him. The next day, he saw his cousin who advised him not to sign the compensation agreement, to go into hiding and to wait to win the dispute in court. They decided he should send his son to study overseas and he should go with his son as his guardian. He explained to his employer that he needed to go overseas; the employer was sympathetic and issued paperwork in relation to his employment and told him his position would be reserved for him. A friend who worked in the overseas study service (Australian unit) helped the applicant apply for a student visa for his son and a guardianship visa for himself. They left China on 11 December 2011. He fears that if he were to return to China that he would be beaten or killed by thugs hired by corrupt officials. However, if things changed in China, he would immediately return.
The applicant attended an interview with a delegate of the Minister on 31 January 2014. The delegate was concerned that the applicant’s claims were not supported by any documentary evidence and did not accept the applicant’s explanations for the lack of documentary evidence. On 24 February 2014, the delegate refused to grant the applicant a protection visa because he was not satisfied that he was a person to whom Australia has protection obligations under the Migration Act 1958 (Cth).
The applicant applied to the Tribunal for review of the delegate's decision on 21 March 2014. He attended a hearing before the Tribunal on 26 August 2014 to give evidence and present arguments.
TRIBUNAL DECISION
On 8 September 2014, the Tribunal affirmed the delegate's decision to refuse to grant a protection visa to the applicant. The Tribunal set out its reasons in a Statement of Decision and Reasons ("Decision Record").
The Tribunal determined that the applicant was not a witness of truth having regard to the inconsistencies between his oral evidence at the Tribunal hearing, the answers which he gave at his interview with the delegate and the information contained in his written statement.
The Decision Record at [11] states that the Tribunal did not accept:
(1)the applicant's claims that he owned property that was later demolished by a government building project;
(2)that the applicant was offered a compensation agreement, the amount of which he disagreed with, or that he was kidnapped, beaten and threatened in order to get him to sign that agreement;
(3)that after the applicant left China that people have visited his home two or three times to threaten his wife and to ask her to tell the applicant to return home; and
(4)that he would be harmed or killed if he were returned to China.
The Tribunal was also concerned about the genuineness of a number of documents which it received from the applicant on 27 May 2014 in support of his application. These included a distribution notice, a compensation agreement, a property valuation, a property title certificate, a notice of eviction and two photographs of a building with the notation “My property under demolition”: Decision Record at [20].
The Tribunal noted that in the applicant's written statement he had made no mention of some matters referred to at the Tribunal hearing including:
(1)the property valuation document;
(2)a visit to the hospital after the kidnapping; and
(3)threats made to his wife at his home after he had left China.
The Tribunal raised these issues with the applicant. The applicant told the Tribunal that he did not mention visiting the hospital because he had not been hospitalised and that he had not mentioned the threats made to his wife because they had been oral threats and he did not have any evidence of them. The Tribunal did not accept these explanations: Decision Record at [18]-[19].
The Tribunal was concerned that the documents supplied to the Tribunal on 27 May 2014 had not been provided until well after the applicant had made his visa application and the delegate had raised the issue of lack of documentation. At the interview with the delegate on 31 January 2014 the applicant had said that he had no documents relating to the offer of compensation made to him or any other paperwork relating to his property dispute. The applicant had told the delegate that the authorities would not dare put down in writing how much they were prepared to offer him. He also told the delegate that the government would not give him the demolition notice because he had refused to sign it: Decision Record at [21]-[22].
In accordance with s 424AA of the Migration Act, the Tribunal put to the applicant the explanations he had given in his interview with the delegate as to why he had no documentation. The applicant elected to respond immediately and told the Tribunal that the events in China did happen but that he was not particularly concerned about the grant of the protection visa and that if the application was refused he would be fine and would return to China immediately. The applicant went on to describe how he had been mistreated in Australia; how a former employer had refused to pay him because he did not have “legal status” and that he “finds no difference between Australia and China”. The Tribunal did not accept that this response explained the inconsistencies between his evidence at the Tribunal hearing and what he had said in his interview with the delegate and considered the inconsistencies to raise significant concerns about the applicant’s credibility and the genuineness of the documents: Decision Record at [23].
Noting the available country information which indicated that fraudulent documents are readily available in China, in addition to the Tribunal's concerns about the applicant’s credibility, the late provision of the documents and the inconsistencies between the applicant’s evidence at the hearing and his interview with the delegate, the Tribunal found that the documents had been fabricated: Decision record at [24].
Having rejected the factual bases of the applicant’s claims, the Tribunal was not satisfied that the applicant was owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: Decision Record at [27] and [30].
DECISION OF THE FEDERAL CIRCUIT COURT
The applicant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision on 15 October 2014, two days outside of the time period prescribed under s 477(1) of the Migration Act. The matter was listed for hearing on 10 September 2015 to deal with the question of an extension of time and, if necessary, a show cause hearing under r 44.12 of the Federal Circuit Court Rules. The primary judge granted the applicant an extension of time under s 477(2) of the Migration Act as he was satisfied that the applicant had advanced a satisfactory explanation for the “very short delay”.
The primary judge proceeded to consider the substantive application (as written):
My property was demolished by force in Oct.2010 by the local government. I didn’t agree with the compensation amount offered and didn’t sign the demolition and compensation agreement, therefore, I was kidnapped and beaten and warned that if I made further complains I would be beaten to death. If I didn’t sign the agreement, I wouldn’t survive. Our family decided to let me To hide myself abroad to avoid signing the agreement, so in the future, I could claim the compensation. I had to flee to Australia for seek protection. After my leaving China, some people visited my home and asked my wife to tell me to return to China.
I will be surely be persecuted if return home.
It is very clear that the Tribunal member failed to fully consider that I will suffer significant harm if I return to China and came to a wrong conclusion that I will not suffer significant harm if returning to China.
Given above-mentioned my claims, evidence and grounds. The Tribunal member made jurisdictional error while making his decision of affirming the DIBP decision.
Despite being invited to do so, the applicant did not file an amended application giving complete particulars of each ground of review or any evidence: SZVHA at [6].
The primary judge understood the application to raise a general assertion of jurisdictional error on the part of the Tribunal. The primary judge noted that no particular error was identified, except perhaps the assertion of a failure to properly consider the applicant’s claims, however this assertion was not supported by the terms of the Tribunal decision: SZVHA at [16].
The primary judge found that no jurisdictional error was apparent on the face of the Decision Record or on the material before the Court: SZVHA at [18]. Noting the inconsistencies between the applicant’s interview with the delegate and the documentary evidence provided to the Tribunal, which the Tribunal had rejected as fabrications, the primary judge found that the Tribunal's conclusions regarding the applicant's credibility were logically and reasonably open to it on the evidence before it: SZVHA at [19]. Further, these inconsistencies had been put to the applicant by the Tribunal such that the Tribunal had properly discharged its obligations under ss 424AA, 424A and 425 of the Migration Act: SZVHA at [17] and [19] - [20].
In the result, the primary judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules because the applicant had failed to demonstrate an arguable case of jurisdictional error by the Tribunal: SZVHA at [22].
APPEAL TO THIS COURT
The applicant filed an application for leave to appeal the decision of the Federal Circuit Court on 23 September 2015.
The applicant lists four grounds in his application (as written):
1. My property was demolished in Oct. 2013 in accordance with a local government planning scheme. My property amount of compensation should be 1.2 million Yuan and was only offered 480,000 Yuan, and the local officials were trying to withhold the amount of 700,000 Yuan. I refused to sign in the demolished property compensation agreement, for which I was severely harmed by their hired thugs. Therefore I had to flee to Australia that is a great country having protected thousands and thousands of refugees.
2. The Tribunal member ignored my claims and evidence making a decision of refusing my application.
3. I believe the Tribunal member made an jurisdictional error.
4. Unfortunately the Federal Circuit Court still affirmed the Tribunal decision.
To justify a grant of leave to appeal, the applicant must show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong that substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655.
The applicant did not provide any written submissions in support of his application for leave to appeal. He appeared at the hearing with the assistance of an interpreter.
The Minister filed written submissions and appeared by his representative at the hearing.
CONSIDERATION
The Minister opposed the grant of leave to appeal on the basis that no jurisdictional error is evident in the Tribunal’s decision, and that the primary judge was correct in making that finding. The Minister submitted that there is no evidence that the decision of the primary judge was attended by sufficient doubt to warrant reconsideration on appeal.
The Minister correctly submitted that ground one merely recites the applicant’s protection claims and does not identify any error on the part of the primary judge.
As to grounds two, three and four, the Minister submitted that they contain general and unparticularised assertions. The applicant submitted that the compulsory acquisition of his property could be verified on the internet and that each of the delegate, the Tribunal and the primary judge was wrong to think his claims were false.
The applicant supplied no evidence that it would have been possible for either the delegate or the Tribunal to verify by internet searches his claim that his property had been compulsorily acquired. It is for the applicant for review to satisfy the Tribunal of his or her claims and if it cannot be satisfied on the material provided, it has no general duty to inquire. I do not accept that the failure by the Tribunal to make the inquiry suggested by the applicant amounts to jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25].
The applicant’s grounds of appeal and his oral submissions otherwise cavil with the merits of the decision made by the Tribunal and he takes issue with the primary judge’s decision for that reason. For the reasons given by the primary judge, I do not accept that the Tribunal’s decision is attended by jurisdictional error.
CONCLUSION
For the foregoing reasons, I am not satisfied that the decision of the primary judge was attended by sufficient doubt to warrant reconsideration on appeal or that the applicant would suffer substantial injustice if the application is dismissed. I will dismiss the application for leave to appeal and order that the applicant pay the Minister’s costs as agreed or taxed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 24 February 2016
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