SZVHS v Minister for Immigration

[2015] FCCA 2927

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2927

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection visa – show cause hearing – whether the application makes out an arguable case of jurisdictional error – whether the Tribunal erred in making adverse credit findings against the applicant – no arguable case identified – application dismissed pursuant to r.44.12.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: SZVHS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2895 of 2014

Judgment of: Judge Street

Hearing date: 29 October 2015

Date of Last Submission: 29 October 2015

Delivered at: Sydney

Delivered on: 29 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms F Taah
Australian Government Solicitors

ORDERS

1. The name of the Second Respondent is amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2895 of 2014

SZVHS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 23 September 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class 6A) visa. The applicant was found to be a citizen of the People’s Republic of China. The applicant’s claims for protection were assessed as against that country, being the country of nationality, and in relation to the applicant’s claims in respect of complementary protection, that country was treated as the receiving country.

2. The applicant obtained a passport issued by the People’s Republic of China on 16 February 2007 and arrived in Australia on a Subclass 456 visa on 27 May 2008 and departed Australia on 5 June 2008.  On 5 September 2008 the applicant arrived in Australia on a Subclass 456 visa which expired on 5 October 2008.  The applicant then became an unlawful person in Australia and did not make an application for protection until 13 October 2013.  On 25 November 2015 the Court made orders providing the applicant an opportunity to amend his application, put on affidavit evidence and provide submissions.  No such documents were filed.

3. Those orders also listed the matter for hearing today as a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The application identifies the following grounds:

   1. The decision of the Tribunal:

   a) was affected by procedural unfairness.

   b) failed to take into account relevant considerations.

   The delegate refused to grant the applicant a visa on 4 March 2014.  The delegate found that the applicant’s claims in relation to being of adverse interest to the Chinese authorities were not credible and that the applicant’s claims in relation to business competitors and money lenders were not credible.

4. On 11 August 2014 the applicant was sent a letter inviting the applicant to attend a hearing on 16 September 2014.  At the request of the applicant’s legal representative that hearing was postponed to 23 September 2014. 

5. Contrary to what was put by the applicant as to there being no registered migration agent present, the record of hearing records the presence of the applicant’s identified migration agent as specified in the application for review under the heading “Representative details”.  The applicant attended the hearing on 23 September to give evidence and present arguments and was assisted by the interpreter.  The applicant claimed to fear persecution relevantly as follows:

   ·   He was a successful textile businessman in his area. He was also a generous person and made donations to the temple and other religious organizations including a house church.

   ·   Rivals informed the Chinese authorities that he was an active member of a house church. The police searched his premises for evidence. His rivals, who have connections with the authorities and the police, have stalked him and collected relevant evidence against him.

   ·   The authorities investigated his business operations and the information they obtained was passed on to his rivals. As a result his business plummeted and was close to closing down.

   ·   He had no ability to repay his creditors. His creditors have gone to his house, taken his valuables without issuing a receipt and have threatened to have him killed if their money is not re-paid. They have warned him that they can pay money to the police to have him gaoled if they wished to do so.

   ·   The authorities have accused him of being a member of a house church. The Chinese authorities and business operators collude for commercial interests. The authorities have helped his rivals to achieve business success at his expense and will not protect him if he returns to China.

   ·   He has been intimidated, threatened and stalked by the Chinese authorities and unknown people.

   ·   He left China to escape persecution and punishment from the Chinese authorities as well as his competitors and private creditors. He fears being persecuted and gaoled by the Chinese authorities, harmed by other competitors and mistreated by private creditors. He fears for the safety of his life.

6. The Tribunal found the applicant was not a credible witness and that he was fabricating evidence.  The Tribunal also put to the applicant that in obtaining his business visa he had provided false information suggesting he was a sales manager of a particular company.  The applicant acknowledged that he was never employed as a sales manager of that company and that the documents provided were fake documents to obtain a visa.  It is clear that the Tribunal put that matter to the applicant in accordance with s.424AA as identified in paras.30 and 31.  The Tribunal found, relevantly:

   32. Having considered all the evidence, individually and cumulatively, the Tribunal is of the view that the applicant is not a witness of truth and that he fabricated his claims for the purpose of obtaining a Protection visa. The Tribunal finds that the applicant is not a credible witness and was prepared to say anything to obtain a Protection visa without any regard for the truth. The Tribunal does not accept that the application donated money to a temple, a house church, a Buddhist gathering or any other religious organization in China. It follows that the Tribunal does not accept that the applicant's business competitors/rivals or alternatively Mr Jian Yang informed the Chinese authorities that he was an active member of a house church, a Buddhist gathering or any other religious organization. The Tribunal does not accept that the Chinese authorities have accused the applicant of being a member of a house church or alternatively a Buddhist gathering. The Tribunal does not accept that the applicant's business competitors/rivals or alternatively Mr Jian Yang have [stalked him and collected relevant evidence against him. ·

   33. The Tribunal does not accept that the police searched the applicant's premises for evidence, investigated his business operations and passed on information about his business to his business competitors/rivals or alternatively Mr Jian Yang and his business plummeted as a result. The Tribunal does not accept that the Chinese authorities helped the applicant's business competitors/rivals or alternatively Mr Jian Yang to achieve business success at his expense. The Tribunal does not accept that the applicant has been intimidated, threatened arid stalked by the Chinese authorities.

   34. The Tribunal does not accept that Mr Jian Yang told the applicant's bank not to lend him any money and to refer him to a money lender who was Mr Jian Yang's friend. The Tribunal does not accept that the bank acted on Mr Jian Yang's instructions. The Tribunal does not accept that the bank colluded with Mr Jian Yang to set a trap for the applicant. The Tribunal does not accept that the applicant or his wife reported Mr Jian Yang to the police or to a “higher level of government agency”. Alternatively, the Tribunal does not accept that the applicant did not report his business competitors/rivals or alternatively Mr Jian Yang to the police because they have a broad network and have connections with the police.

   35. The Tribunal does not accept that the applicant borrowed money from private creditors or alternatively a money lender because he was unable to repay a bank loan. It follows that the Tribunal does not accept that the private creditors or alternatively the money lender or his thugs went to his home, smashed things and threw things around. The Tribunal does not accept that the private creditors or alternatively the money lender or his thugs took valuables from the applicant's house without issuing a receipt. The Tribunal does not accept that the applicant repaid a loan from the private creditors or alternatively the money lender, did not obtain a receipt for the repayment and the private creditors or alternatively the money lender or his thugs use the loan agreement to try and extort more money from him.

   36. The Tribunal does not accept that the money lender or his thugs went to the applicant's house every 2 to 3 days or every 6 months making inquiries about his whereabouts and threatening to kill him and/or his family members. The Tribunal does not accept that the money lender or his thugs threatened the applicant that they would pay money to the police and have him gaoled. The Tribunal does not accept that the applicant's wife reported the money lender or his thugs to the police and the police went to his house and took them away. Alternatively, the Tribunal does not accept that the applicant did not report his private creditors or the money lender or his thugs to the police because they have a broad network and have connections with the police.

   37. The Tribunal does not accept that the applicant's fears commenced in 2004 and became more intense in 2008. The Tribunal does not accept that the applicant has been intimidated, threatened and stalked by unknown people.

   38. The Tribunal does not accept that the Chinese authorities will not protect the applicant, should he need protection, when he returns to China. The Tribunal does not accept that the applicant fears persecution and being sent to gaol by the Chinese authorities, fears harm from his business competitors/rivals or alternatively Mr Jian Yang and fears mistreatment by private creditors or alternatively the money lender or his thugs. The Tribunal does not accept that the applicant fears for his life if he returns to China now or in the foreseeable future.

   39. The Tribunal accepts that the applicant owned a textile business in China and that the business was not doing very well. The Tribunal accepts that the applicant borrowed money from a bank for his textile business and has repaid the money in full. The Tribunal accepts that the applicant came to Australia in May 2008 to make inquiries in relation to business opportunities in Australia.

   40. Having considered all of the applicant's claims, individually and cumulatively, the Tribunal finds that there is no real chance that he would be at risk of persecution on the grounds of actual or imputed religion, membership of a particular social group or any other Convention reason if he returns to China now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a).

7. In relation to the consideration of complementary protection, the Tribunal noted that it had rejected the entirety of the applicant’s claims and had formed the view that the applicant’s claims were fabricated. It was in those circumstances that the Tribunal found there were no substantial grounds for believing that as a necessary and reasonable consequence of being removed from Australia to China there is a real risk that the applicant would suffer harm.  The Tribunal found the applicant was not a person in respect of whom Australia had protection obligation and that the criteria under ss.36(2)(a) and 36(2)(aa) of the Act were not satisfied. 

8. I accept the first respondent’s submission that the bare allegations identified in the application fail to identify any arguable case of jurisdictional error.  I accept the first respondent’s submission that there is no evidence that the Tribunal failed to comply with s.425 of the Act or any of its procedural fairness obligations set out in Division 4 of Pt.7 of the Act.  I accept the first respondent’s submission in relation to the applicant obtaining the business visa using fake documents that this was put to the applicant in compliance with and pursuant to s.424AA of the Act. 

9. Accordingly, there is no arguable case identified of the review being affected by procedural unfairness. No alleged relevant consideration was identified that the Tribunal failed to take into account. I accept the first respondent’s submission that the application does not raise an arguable case for the relief sought. 

10. The applicant maintained that he had been truthful to the Tribunal and that if he returned to China there was a loan shark who would kill him.  The applicant’s credit was a matter for the Tribunal to determine and the adverse findings by the Tribunal in respect of the applicant’s credit were clearly open on the material before the Tribunal.  The applicant’s fears in relation to the loan shark were the subject of adverse findings by the Tribunal. 

11. The applicant maintained that his registered migration agent was not present at the hearing.  Whilst this is not consistent with the record of the hearing by the Tribunal, there is nothing to indicate that the absence of the registered migration agent gave rise to any procedural unfairness.  The applicant asserted from the bar table that the interpreter was not good enough and that he got the reference to the loan shark wrong.  There is no evidence to support the applicant’s contentions from the bar table.  No affidavit has been filed to suggest any difficulty with the interpreter.  No transcript has been put on by the applicant.

12. This was an applicant who had admitted making fake documents and remained in Australia unlawfully. There is nothing in the reasons of the Tribunal to suggest any difficulty by the applicant with the interpreter, nor does the generalised reference to getting the loan shark issue wrong identify any arguable issue of a denial of procedural fairness in relation to the interpreter.

13. It is clear that the claims identified by the delegate included threats in relation to money lenders as well as being addressed in the applicant’s record of interview on 24 February 2014 and that that same issue was identified as one of the applicant’s claims by the Tribunal.  The Tribunal found the applicant was not a witness of truth and was fabricating his claims for the purpose of obtaining a protection visa.  I do not accept that there is any basis from what was said by the applicant to identify any real issue of difficulty with the interpreter.

14. I find the application fails to identify an arguable case for the relief sought and that this is an appropriate case for the Court to exercise its power under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 to dismiss the application. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  2 November 2015