SZVJK v Minister for Immigration

[2015] FCCA 1334

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1334

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – procedural fairness – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Show cause hearing – application for an adjournment – application dismissed.

Legislation: 

Migration Act 1958 ss.36(2)(a), 36(2)(aa), 424AA, 476

Applicant: SZVJK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2984 of 2014

Judgment of: Judge Street

Hearing date: 15 May 2015

Date of Last Submission: 15 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms Maddocks
DLA Piper Australia

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2984 of 2014

SZVJK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW 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 in respect of a decision the Tribunal made on 29 September 2014 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.  This was matter was fixed for a show cause hearing today, and the application identifies the following ground:

   The tribunal considered my evidence is of poor quality and that I have been unable to explain the questions, However, such consideration is very personal and subjective. I did not believe the tribunal treat me with fairness.

2. It is patent on the face of the ground that it fails to disclose any arguable jurisdictional error.  The applicant was found to be a citizen of China, and these claims were assessed against that country.  The applicant applied for a visa on 5 November 2013, which the delegate refused on 5 March 2014.  The applicant appeared before the Tribunal on 22 September 2014, and was assisted by an interpreter. 

3. The applicant had previously left China and travelled to Japan, and travelled to Australia under a visitor visa, which was valid until 19 November 2013.  The Tribunal carefully set out the relevant law and had regard to the Ministerial direction, and summarised the claims and evidence of the applicant.  The Tribunal identified the concerns the delegate had about the applicant’s veracity, and the strong doubts that the applicant had a genuine fear of harm in China for any Convention reason, or any other reason. The delegate had found the applicant and exaggerated his evidence concerning the level of adverse attention directed at him by authorities and others. 

4. The Tribunal carefully summarised what occurred at the Tribunal hearing, and put to the applicant, consistent with s.424AA, clear particulars of the information that the Tribunal considered would be the reason, or part of a reason, for affirming the decision under review. The Tribunal concluded that it did not accept the applicant as a credible witness, and concluded that he had fabricated his claims for protection. It was in those circumstances that the Tribunal relevantly found:

   59. I note that in the delegate's decision record the applicant is recorded as saying that, as a result of his detention, he is depressed and his memory has been affected. The applicant did not directly raise this issue before the Tribunal although, when asked about inconsistencies in his evidence about when he was detained, he indicated he found remembering these events confusing. Overall, I consider the applicant's evidence is of poor quality and that he has been unable to adequately explain why basic elements of his claims have varied significantly over the course of the protection visa application process. After considering all the evidence before me, I do not accept that the applicant has adequately explained the deficiencies in his evidence. His claims are not otherwise credible by reason of corroborating documentation and, while he has said he provided documents to the provincial government, for the reasons that I have set out above I do not consider the applicant's evidence about the demolition of his property is credible and I do not accept such documents ever existed.

   60. After considering the evidence before me, for all the reasons set out above, I find the applicant is not a credible witness. I find he has fabricated his claims for protection. I do not accept that his property was ever subject to a demolition order or that he was ever engaged in appealing to the authorities about the fairness of the proposed demolition and/or the amount of compensation offer or any other grievance. I do not accept that the he was ever of adverse interest to the authorities or to gangsters acting on behalf of, or in collusion with, developers and the authorities. I do not accept that he was ever detained and beaten by the Chinese authorities or that he has ever been subject to obligations to report to the Chinese authorities. I do not accept that his family has been threatened, harassed or othe1wise banned by the Chinese authorities while the applicant has been resident in Australia. Because I do not accept that the applicant's property was ever demolished by the Chinese authorities, I do not accept he felt aggrieved by the amount of compensation offered or that he appealed to the authorities about this matter, or that he would be motivated to petition the authorities if he were to return to China.

   61. On the evidence before me, I am not satisfied that there is any basis for the applicant to fear harm of any type if he returns to China. I do not accept that his property was ever demolished or that he was ever involved in a dispute arising from the proposed or actual demolition of his property or that he ever appealed to the authorities for help. I do not accept that he was ever beaten or threatened or otherwise mistreated by gangsters, or that he was ever detained, beaten and mistreated by the Chinese authorities, or that, after he left China, his family was subject to threats and harassment by the gangsters or that he had neighbour who was arrested because he had similar problems or that he was ever denied employment because of his claimed profile with the Chinese authorities. While I accept that the applicant has lived outside of China since August 2013, I do not accept that his absence from his local area will bring him to the adverse attention of the Chinese authorities or that there is a real chance that he will suffer harm of any type for this reason. I do not accept that he ever was, or is now, of any adverse interest to the Chinese authorities or to gangsters or developers. I reject the applicant's claims of past and future harm in their entirety.

   62. On the evidence before me, I do not accept that the applicant is of any adverse interest to gangsters or to the Chinese authorities. I reject his claims of past harm from gangsters and Chinese authorities in their entirety. I do not accept that, if the applicant were to return to China, he would face any harm for any reason. I do not accept that there is a real chance that he will be persecuted for his political opinion (real or imputed) if he returns to China now or in the reasonably foreseeable future or for any other reason. On the evidence before me, I am not satisfied that there is a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, if he returns to China.

   63. As I have found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, I considered whether he may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection legislation. For the reasons set out above, I do not accept that the applicant's claims that he was of adverse interest to gangsters or the Chinese authorities are credible. I do not accept he has suffered harm in the past for the reasons he has claimed. Because I do not accept that the applicant has an adverse profile with the Chinese authorities, I do not accept he ever had any difficulty obtaining employment for this reason or that he would have experience such difficulty in the future.

   64. On the evidence before me and having regard to my findings of fact, I do not accept that, if the applicant were to return to China, he would face harm of any type for any reason, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm pursuant to s.36(2)(aa) of the Act, if the applicant returns to China.

5. It was in those circumstances the Tribunal concluded that the applicant was not a person in respect to whom Australia had protection obligations, and that the applicant did not meet the criteria under ss.36(2)(a) or 36(2)(aa) of the Act. Those findings were clearly open. I am clearly satisfied the application fails to disclose any jurisdictional error. The application is dismissed under r.44.12.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 May 2015