SZVHV v Minister for Immigration

[2016] FCCA 242

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 242

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(a), 426A

Applicant: SZVHV

First Respondent: MINSTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2900 of 2014

Judgment of: Judge Manousaridis

Hearing date: 4 February 2016

Date of Last Submission: 28 January 2016

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

Applicant in person.

Solicitors for the Respondent:

Ms H. Musgrove of

Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2900 of 2014

SZVHV

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application for review, the applicant, who is a citizen of the People’s Republic of China, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. I will begin by describing the claims the applicant made in his application for a protection visa. Those claims were made in a statement that forms part of the application for a protection visa. 

2. The applicant claimed he feared harm from loan sharks because he had outstanding debts to a financial company with a gang background.  The applicant claimed that after graduating from school he began working in a sales position and, with the savings he accumulated, he began to run his own delivery business simultaneously. His business was successful with a large customer base and he was able to draw a “very significant salary” every year.

3. In 2000, one of the applicant’s biggest customers began to experience financial difficulties.  To keep his own business afloat, the applicant was compelled to use his own money to pay his customer’s workers and truck loans in addition to his usual business expenses.  The applicant’s financial situation began to deteriorate rapidly and he was left unable to pay his credit card.  To keep his delivery business running, the applicant was forced to take out a “shark loan” from a financial company.  With the additional loan repayments to make, as well as the cost of running his delivery business, the applicant was under constant financial pressure.  Shortly after, he was forced to close his business and work as a bus driver. 

4. In May 2008 the applicant received a telephone call from an individual, who stated that he had an outstanding loan that must be paid.  After the call, the applicant realised that the financial company he had borrowed money from had a “gang background”.  While his initial loan was for RMB300,000, with interest it was now RMB2.8 million.  With his business in ruin and having limited income, the applicant was unable to pay the balance of the loan.  After he took the telephone call, the applicant began to notice “suspicious people” following him and his front door would be painted red.  

5. In May 2009 the applicant was badly beaten by three “fierce guys”.  They told the applicant he must pay RMB3 million within one month, otherwise he would be “in big trouble”.   After this attack, the applicant continued to be harassed, receiving “horrifying phone calls at midnight”.  Scared for his safety, he went to the police for help, but he was turned away because he did not have sufficient evidence.  To hide from his attackers, the applicant began to work secretly “as a personal driver for a boss”.

6. In 2012, however, the applicant’s mother telephoned him and said that he was still wanted by his attackers and that suspicious people had been in front of his house.  Afraid of what might happen to him if he remained in Hong Kong, the applicant made plans to escape abroad, where he planned to stay until they “forgot about” his debts.  However, one year after arriving in Australia, the applicant was still a wanted man, and with his visa about to expire he decided that he needed to seek protection from the Australian Government.

7. The applicant did not appear before the delegate, even though he was invited to do so, nor did the applicant appear before the Tribunal.  The Tribunal first invited the applicant to appear before it on 18 September 2014 by letter the Tribunal sent on 5 August 2014 to the applicant’s nominated address.  In that letter, the Tribunal stated it had “considered all the material before it relating to his application but was unable to make a favourable decision on that information alone”.

8. On 16 September 2014 the Tribunal received a change of address form from the applicant. On that day, an officer of the Tribunal telephoned the applicant, wishing to confirm whether the applicant had received the Tribunal’s invitation. The applicant informed the officer that he had only changed his address on 13 September 2014, and he had not received the invitation and therefore wished to reschedule the hearing. The officer informed the applicant that any such request must be made in writing and sent to the Tribunal for consideration. The applicant confirmed he would attend the hearing scheduled for 18 September 2014. The Tribunal then sent a copy of the letter to the applicant by way of email. It is not clear from the material before me how the Tribunal obtained that email address. In the change of contact details the applicant provided to the Tribunal, no email address was recorded in that document. In any event, the applicant failed to appear before the Tribunal on the appointed day and time. The Tribunal therefore decided, pursuant to s.426A of the Migration Act 1958 (Cth) (Act), to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

9. The Tribunal was not satisfied the applicant’s claims were credible, nor was the Tribunal satisfied the applicant had suffered any threats or harms in the past or that anyone had been requesting that he repay money or was looking for him, or that he would face harm if he were to return to Hong Kong.  The Tribunal relied on a number of matters: 

   a)The applicant did not provide any details about the terms of the loan, including interest payable or loan-repayment details. 

   b)It did not seem credible to the Tribunal that, despite having borrowed RMB300,000 in 2000 and providing no evidence that he had repaid any of the balance, nor been asked to, in 2008, the applicant received a telephone call suggesting he owed RMB2.8 million. 

   c)The applicant did not provide any further details of his telephone conversation in May 2008 where it was suggested he owed RMB2.8 million. 

   d)The applicant, despite claiming that “suspicious people followed him” and would paint his front door red, did not identify when these events took place, nor how often they occurred. 

   e)The applicant offered no explanation why, having been contacted in 2008 for repayment of a loan, he was not contacted again until a year later for the repayment of the loan the applicant claimed had grown to RMB4 million. 

   f)The applicant gave inconsistent evidence about his reporting of the “horrifying calls” he received at midnight.  The applicant claimed that when he reported this to the police, they ignored him, stating that he had no evidence.  The Tribunal, however, found this to be inconsistent with the applicant’s account of being beaten and badly injured and having had his front door painted red.  The Tribunal considered it likely that the applicant would have had evidence available to him to substantiate his claims, namely, medical reports relating to his injuries and photographs of his front door.

   g)Although the applicant claimed in May 2009 he owed RMB3 million, he continued to live at the same address until leaving Hong Kong on 7 April 2012.  The Tribunal noted the applicant gave no explanation as to why, if he owed such a significant sum of money and was unable to make any repayments, that he had not been subjected to further threats or harm from the loan sharks in the three-year period from May 2009 until he left Hong Kong in April 2012.

   h)Finally, although the applicant arrived in Australia on 8 April 2012, stayed for three days until 11 April 2012 and returned again on 10 June 2012, he did not apply for a protection visa until 1 August 2013.

10. Because the Tribunal did not find the applicant’s claims to be credible, it concluded that the applicant was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act. Also, because the Tribunal did not find the applicant to have credit, it was not satisfied that the applicant was ever subjected to harm in the past in Hong Kong or that he would face harm now or in the reasonably foreseeable future if he were returned to Hong Kong. And for those reasons, the Tribunal found the applicant did not satisfy s.36(2)(aa) of the Act.

11. I will now turn to the grounds of review stated in the application.  The application contains three grounds.  The first is:

    RRT breached procedural fairness.

    The applicant, who is not legally represented, made no submission in relation to this ground. 

12. Being unparticularised, this ground discloses no arguable case of jurisdictional error. It is true the applicant did not appear before the Tribunal.  There is no arguable case, however, that the applicant was not given notice of the hearing before the Tribunal as required by the Act.  The evidence reveals that the applicant simply elected not to appear before the Tribunal. 

13. The second ground stated in the application is:

    RRT has bias against.

    The applicant made no submission in relation to this ground. 

14. Again, being unparticularised, the ground discloses no arguable case of jurisdictional error. There is nothing in the material that could remotely suggest any bias, actual or apprehended, by the Tribunal.

15. The third ground stated in the application is:

    RRT didn’t treat me with fairness and justice.

    The applicant made no submission in relation to this ground. 

16. Again, being unparticularised, the ground discloses no arguable case of jurisdictional error.  I am satisfied from the material before me that the Tribunal considered the claims the applicant made. The conclusions the Tribunal reached were reasonably open to it for the reasons on which it relied; and, in my opinion, it was beyond argument that the conclusions the Tribunal reached were reasonably open to it for the reasons it gave. 

17. The applicant otherwise made no submissions in support of his claims.  For these reasons, I am satisfied that the application discloses no arguable case for the relief it seeks.  I propose, therefore to order that the proceedings be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 10 February 2016