SZVJA v Minister for Immigration & Border Protection
[2015] FCCA 1488
•2 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVJA & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1488 |
| 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: Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| First Applicant: | SZVJA |
| Second Applicant: | SZVJB |
| Third Applicant: | SZVJC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2979 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 2 June 2015 |
| Date of Last Submission: | 2 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2015 |
REPRESENTATION
| The Applicants appeared in person with the assistance of an interpreter. |
| Solicitors for the Respondents: | Ms Hailey Musgrove (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2979 of 2014
| SZVJA |
First Applicant
| SZVJB |
Second Applicant
| SZVJC |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 27 October 2014, the applicants filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 24 September 2014 and handed down on 25 September 2014 (“the RRT”).
That decision was in relation to the first applicant’s application for a protection (Class XA) visa. The second applicant is the wife of the first applicant. The third applicant is the son of the first and second applicant. The claims of the second and third applicants are wholly dependent on those of the first applicant (“the Applicant”).
On 5 March 2015, the Applicant attended a directions hearing before a Registrar of this Court. On that occasion, the first applicant was appointed as the litigation guardian of the third applicant pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth).
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 by 26 May 2015. The Applicant was also directed to file and serve written submissions in support of the grounds of his application by 26 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 Federal Circuit Court Rules 2001 (Cth), 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 first respondent, in written submissions, summarised the background of the applicants’ claims and the RRT’s decision, as follows:
“Background
1. The first applicant (“applicant”), a citizen of China, arrived in Australia on 2 May 2008 travelling on a visitor (Subclass 676) visa (Court Book “CB” 72). The applicant’s visitor visa expired on 2 August 2013, and he remained in Australia as an unlawful non-citizen until he applied for a protection (class XA) visa on 14 November 2013 (CB 2 and 72-73). The applicant claimed to fear harm in China because of a dispute with authorities in relation to the forced expropriation of his farmland (CB 108 at [9]). The two dependant applicants, the applicant’s wife and their young son, claimed protection on the basis of belonging to the same family unit as the applicant (CB 28 and 35; 107 at [3]).
2. On 27 March 2014, a delegate of the Minister refused to grant the protection visa (CB 81). On 21 April 2014, the applicant applied to the Refugee Review Tribunal (“Tribunal”) for review of the delegate’s decision (CB 82).
Tribunal proceedings
3. On 16 September 2014, the applicant appeared before the Tribunal to give evidence and present arguments (CB 93) and, on 24 September 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 106).
4. The applicant claimed to fear harm because of (CB 108 at [9]; 109 at [16]):
a) his membership of a particular social group (“a group of villagers who had … their land taken without … adequate compensation”); and/or
b) an imputed political opinion.
5. At the hearing, the applicant made an additional claim for protection – that he was “afraid for his [Australian-born] son” because the applicant would have to pay a social compensation fee if he returned to China (CB 107 at [3]; 109 at [15]; 112 at [28]).
Claims concerning expropriation of land
6. The Tribunal said that the applicant had “taken no action” in relation to the expropriation of his land since the demolition of his home in early 2008. The Tribunal considered country information (CB 112 at [30]-[31]), which suggested that “people contesting land expropriation [in China] are most at risk while the actual process is underway … rather than after the process is complete” (CB 113 at [32]).
7. The Tribunal was not satisfied that the applicant had a real chance of persecution in China based on the expropriation of his land and, therefore, was unable to be satisfied the applicant had a well-founded fear of persecution because of his membership of a particular social group or an imputed political opinion (CB 114 at [35]).
8. The Tribunal said that the applicant’s explanation for not taking action in relation to the expropriation of his land in 2008 did “not seem credible,” and nor did it “seem credible” the applicant would take any action now (CB 114-115 at [36]). The Tribunal was not satisfied that if the applicant returned to China he would “seek to take any action to recover his land” or “obtain further compensation” (CB 115 at [39]).
9. The Tribunal was not satisfied the applicant had a well-founded fear of being persecuted by officials and land developers because they are “concerned … he may take some future action to recover his land,” or that there was a real risk he would suffer significant harm in China from those officials or developers for that reason (CB 116 at [40]).
Claims concerning recovery of land
10. The Tribunal said that the applicant’s (developed) claim that he wanted to recover the property rather than seek compensation appeared “inconsistent with his initial decision in 2006 to accept adequate compensation” (CB 116 at [41]). The Tribunal said that it did not “seem credible … [the applicant] would not have considered the position of his children regarding any attempt to recover his land” before the Departmental interview, and this was “inconsistent with his earlier position” (CB 116 at [42]).
Claims concerning social compensation fee
11. The Tribunal considered country information in relation to the applicant’s claim to fear harm because of the payment of the social compensation fee (CB 113-114 at [33]).
12. The Tribunal was satisfied that the applicant’s “real fear of harm” was the liability to pay the social compensation fee in relation to the birth of his son. The Tribunal however was not satisfied that the applicant had a well-founded fear of persecution because of that issue. The Tribunal therefore was not satisfied that the applicant or his wife faced a real risk of significant harm in China. The Tribunal said there was “no information” that indicated the fine would be imposed discriminatorily, and found the fine would “not amount to persecution” (CB 117 at [45]).
13. The Tribunal was similarly not satisfied that there was a real chance of persecution of the applicant’s son in China, or that there was a real risk he would suffer significant harm if there was delay in obtaining registration in China (CB 117-118 at [46]).
Tribunal’s conclusions
14. Having considered the applicant’s claims in relation to the expropriation and recovery of his land and the social compensation fee, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution on the basis of his membership of a particular social group and/or an imputed political opinion.
15. The Tribunal found that the applicant’s long delay in seeking protection “strongly [suggested]” the applicant did not have a well-founded fear of persecution, and was not satisfied the applicant would not be able to find somewhere to live in China (CB 116-117 at [44]).
16. The Tribunal was ultimately not satisfied that any of the applicants satisfied the criterion in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (“Act”) for a protection visa (CB 118 at [47]-[48]).”
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 those directions or otherwise.
The Applicant’s application for judicial review, filed on 27 October 2014, stated the grounds of review as follows:
“1. The decision of the Tribunal:
a) is affected by procedural unfairness.
b) failed to take into account relevant considerations.”
The grounds of the application were interpreted for the Applicant and the Applicant was invited to make submissions in support of the grounds.
In relation to the first complaint I asked the Applicant in what way he said the RRT’s decision was affected by procedural unfairness. The Applicant stated that his place of birth had been incorrectly put by his lawyer on his application form, and that the RRT had said he may not face harm if he was returned to China.
I explained to the Applicant that the only issue before this Court was whether or not the decision of the RRT was affected by a mistake that goes to its jurisdiction. Whilst the RRT noted the discrepancy in the Applicant’s protection visa application which recorded that he was born in the Fujian Province, whereas his passport indicated he was born in the Guangdong Province, nothing turned on the RRT’s reasons on that difference.
The RRT noted that the incident in relation to the allegation of forcible expropriation of the Applicant’s land occurred in the Guangdong Province, and the RRT appears to have accepted that assertion. That would not appear to indicate any procedural unfairness on the part of the RRT.
In relation to the Applicant’s assertion that the RRT said he would not face harm if returned to China, I understand that complaint to be a disagreement with the findings and conclusions of the RRT. Such a disagreement 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).
The RRT’s decision record makes clear that the RRT explored in detail the Applicant’s claims with him at a hearing and put to him matters of concern that it had about his claims, noting the Applicant’s responses.
The RRT also identified, with particularity, the country information to which it had regard. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
There was nothing in the RRT’s decision record to suggest that the RRT’s conclusion that the Applicant would face harm if returned to China, such that the applicants would be entitled to protection under either s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth), was other than open to it on the evidence and material before it and for the reasons it gave.
In relation to the second complaint in the applicant’s ground of review, I asked the Applicant what was the relevant consideration that he alleged the RRT failed to take into account. The applicant responded that the RRT did not consider that if he returned to China, he would be persecuted.
A fair reading of the RRT’s decision record does not support such a contention. As stated above, the RRT carefully considered all the claims made by the Applicant and provided detailed reasons for the findings that it made. Those findings would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse findings. The RRT’s 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).
The RRT decision record makes clear that it considered whether the applicant would face persecution for a reason entitling him to a protection visa. The RRT’s conclusion that the Applicant did not appears to be open to the RRT on the evidence and material before it and for the reasons it gave.
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 27 October 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 15 June 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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Procedural Fairness
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Natural Justice
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Statutory Construction
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