SZVJL v Minister for Immigration
[2015] FCCA 3174
•13 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVJL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3174 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 WZAQB v Minister for Immigration and Citizenship [2012] FMCA 688 |
| Applicant: | SZVJL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2985 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 13 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The Applicant be granted leave to make an oral amendment to his Application to seek a writ of mandamus.
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2985 of 2014
| SZVJL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal, dated 2 October 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
I note first that the First Respondent raised an issue of the jurisdiction of the Court. In the application for review filed on 28 October 2014 the only order sought by the Applicant was an order that the decision of the Tribunal be quashed. The First Respondent contended that in the absence of an application for a writ of mandamus, prohibition or an injunction, the Applicant had failed to properly invoke the jurisdiction of the Court (see WZAQB v Minister for Immigration and Citizenship [2012] FMCA 688 at [28] – [33]).
Given that the Applicant was self-represented and indicated that he wanted the Court make an order remitting the matter to the Tribunal and asking it to re-determine his application according to law, I gave him leave to make an oral amendment to his application to seek a writ in the nature of mandamus. In these circumstances no issue is now taken as to the jurisdiction of the Court.
The background to these proceedings is that the Applicant, a citizen of China, applied for a protection visa in October 2013. In a statement accompanying his protection visa application, he claimed that he had been assaulted in April 2012 by three village officials while having dinner with a friend in a restaurant. He claimed that he had tried to intervene in an argument and had been dragged outside, beaten and assaulted, and that he had been sent to hospital for treatment, required stitches and incurred a medical bill.
The Applicant claimed that after he returned to his home, the police came to question him and told him to await the outcome of their investigation. He claimed that some weeks later he made inquiries of the police and was shown the medical records of three village officials and told that he had to pay compensation of 20,000 yuan to each of them. He was informed that the officials had accused him of assaulting them. According to the Applicant, the police told him that he had to pay compensation to the officials before April 2013 or else he would be in trouble.
The Applicant claimed that in order to pay compensation totalling 60,000 yuan, he obtained work as a driver in another city in China. He claimed that in March 2013, when the compensation was due, the three village officials had come to the company where he was working and insulted and beat him in front of all the staff. He claimed he was harmed both mentally and physically and was fired by the company.
He claimed that in April 2013 he found an agent to assist him and took steps to travel overseas, but was told at the airport that his passport had expired. He claimed he subsequently paid 10,000 yuan to get a new passport on which he departed China.
The Applicant also claimed that after he came to Australia the police had visited his house and asked his parents about him and that they knew he had gone overseas. He claimed to fear that because he had not paid the compensation on time the police might take further action or punish him. He claimed that the police had required that he return to China by November 2013.
The Applicant attended an interview with a delegate of the Minister. He elaborated on his claims. The application was refused on 11 March 2014. The delegate expressed several concerns about the Applicant's claims and also about the absence of any supporting documentary evidence, either in relation to his claims about police activities, fines, any charge or conviction for assault, or in relation to his hospitalisation or medical bills.
The Applicant sought review by application lodged with the Tribunal on 9 April 2014. He attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal's account in its reasons for decision. It appears that at the hearing the Applicant provided the Tribunal with a copy of his Chinese passport, but that no other documentation was provided in support of his claims.
In its reasons for decision, the Tribunal summarised the Applicant's claims made in connection with his protection visa application and as explained further, clarified or changed at the Tribunal hearing. It had regard to his written claims in relation to the claimed assault by three village officials and his clarification at the Tribunal hearing that he was with three or four friends at the restaurant, that there were about three restaurant staff involved in the argument and that there were other patrons in attendance. The Tribunal recorded that it had put to the Applicant the evidence that he was employed as a gyprocker in Australia and was a fit young man and its concern that it did not appear plausible that three middle-aged drunk men would have been able to physically drag him from the restaurant as claimed.
The Tribunal considered the Applicant's response as to the power of the village officials and his claim that none of the persons present (including some 10 or 12 people in the street, his friends and the restaurant staff) had sought to prevent him from being beaten. It accepted that government officials in China may, on occasion, act in a brutal and capricious manner and that if three village officials were drunk that may have caused them to act in an aggressive and violent manner. However it also found that if the Applicant was innocent as claimed, it was not plausible that no passer-by or any of his friends or the restaurant staff involved in the argument would have sought to protect him from an unprovoked physical attack. It also had regard to his concession that he had been drinking prior to the incident. The Tribunal doubted that the Applicant was a reliable witness in relation to this claimed incident.
Insofar as the Applicant had claimed in writing that he had been injured in the attack, that his parents had paid his medical bills and that he “always” felt “dizziness and nausea” afterwards, the Tribunal observed that he had been able to hold down full-time employment as a driver in China in a new job obtained after the assault and had worked full-time in Australia. On this basis the Tribunal found that whatever the Applicant’s ongoing health issues may be, it did not believe they were debilitating.
The Tribunal considered the Applicant's claims about what occurred after the claimed assault. It recorded that when asked if he or his parents had kept a copy of claimed medical expenses for the three village officials (the document the Applicant said he had been shown by the police), he said that they did not have a copy, that he had not been able to retrieve the document and also that he did not have any other documentary evidence, such as a police report. The Tribunal acknowledged that persons may not be able to provide documentary evidence of all their claims in circumstances of alleged collusion between police and officials, but also had regard to the time the Applicant had to prepare for his departure from China and the fact that he claimed not to have any documentary evidence at all. In all the circumstances, given that the Tribunal did not accept that the Applicant was a reliable witness, it was satisfied that the reason he was unable to obtain any documents was due to his material claims being fabricated.
Despite this, the Tribunal was prepared to accept there was a fight in a restaurant in April 2012 and that the police recommended that the Applicant pay some limited compensation to three village officials. It did not, however, accept that the compensation was in the amount claimed by the Applicant. Nor did it accept that this incident was followed up by the three village officials in the manner that the Applicant had claimed. Given the range of independent witnesses at the incident and the opportunity to appeal or complain about corruption in China (discussed in its reasons) the Tribunal was satisfied that the police had investigated the incident, but decided not to press any charges against any party.
The Tribunal had regard to inconsistency in the Applicant's evidence about the circumstances of the claimed approach by the village officials to his place of new employment some 50 kilometres from his parents' home (in particular as to whether they attended his workplace or his accommodation), and to the Applicant's lack of awareness as to how the officials would know where he was living. The Tribunal found that it did not appear plausible that the three village officials would cause the Applicant to be dismissed from his employment if the most important thing was to receive compensation. It was not satisfied that the Applicant was a reliable witness. It concluded that his evidence about this aspect of his claims was false.
The Tribunal considered the Applicant's original claim that thereafter he kept being harmed and harassed and his clarification that he had only been approached by the three village officials on one occasion after he returned to the family home. The Tribunal recorded that, on the Applicant’s evidence, nothing had arisen from this approach (which was more than 12 months after the original incident). While accepting that there had been one such approach, it did not accept that there was any real chance or risk that the Applicant would be approached on return to China.
The Tribunal acknowledged that local government officials may act in a brutal and capricious manner in China, but given that the Applicant had no documentary evidence of the compensation amount or of anything else, it did not accept he had to pay compensation in the amount claimed, albeit it proposed to accept that he had to pay some limited compensation. It discussed country information in relation to complaint mechanisms for individuals seeking protection against corruption in China and considered the failure by the Applicant to appeal in relation to the alleged corruption, notwithstanding that he had witness accounts from other people in attendance at the time of the claimed assault and his claim, when the issue was raised at the hearing, that he had approached a lawyer for advice. Given that the Tribunal did not accept that the Applicant was a reliable witness, it was satisfied the reason he did not appeal was because much of the material evidence he provided in support of his claims was false.
The Tribunal had regard to the circumstances of the Applicant's departure from China. It acknowledged the existence of bribery and corruption. However it was satisfied that the Applicant was not of any interest to the police prior to his departure and that he had not been charged with or convicted of anything as a result of the April 2012 incident. It did not accept that the Applicant had to pay 10,000 yuan for a passport which would usually cost 200 yuan. It was satisfied that if he had been of any interest to the authorities, his first failed attempt to depart the country would have been notified to the local authorities. However he had not even been approached by any authority prior to his eventual departure from China. The Tribunal was satisfied that the Applicant departed China legally and in the usual way (as he had conceded in his written application).
The Tribunal considered the Applicant's claim that the police had attended his home after his departure from China and required him to return. Given that the Applicant was only approached by the three officials on one occasion between the time the compensation was due and his departure, the fact that his new passport was obtained legally in the normal way and that he was not charged with or convicted of any offence, the Tribunal was not satisfied that the police had attended his home as claimed or that they had any ongoing interest in him.
The Tribunal stated that it accepted some the Applicant's claims; including that he had engaged in an argument and fight with three local village officials in April 2012; that the police investigated and no charges were laid; that he was required to pay some limited compensation; and that he was approached on one occasion at his home after he left his new job, but that nothing had arisen from that incident. However, the Tribunal did not accept the Applicant was a blameless victim in the assault; that he had been harassed for his non-payment of compensation he owed; that he had to pay more than a normal amount to obtain a new passport; or that he was of any ongoing interest to the Chinese authorities.
Based on these findings, the Tribunal was not satisfied that the Applicant had convictions or any adverse profile in China or that he may be imputed with such on return. It did not accept that he had a real chance of suffering any serious harm on return or that there was any other basis to conclude that he would have a well-founded fear of persecution for any Refugees Convention reason. It found that he did not meet the Refugees Convention criterion.
The Tribunal considered the complementary protection criterion. Based on its findings it was not satisfied that the Applicant had a profile or any convictions in China (or would be imputed with the same on return to China) such as to put him at a real risk of significant harm or that there was any basis to conclude that he would be subject to anything more than being briefly questioned (if at all) then allowed to proceed, should he return to China. The Tribunal did not accept that being briefly questioned and then released constituted serious harm or, given its findings about the absence of a well-founded fear of harm, that for any other reason the Applicant was at a real risk of suffering significant harm.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed in this Court on 28 October 2014. There are four grounds in the application for review. The Applicant did not take the opportunity to file an amended application or written submissions. He had the opportunity to make oral submissions.
In the first “ground” the Applicant sought to explain his claim and take issue with aspects of the Tribunal's findings, as follows:
The reason why I applied for Protection Visa is because I was persecuted by the Chinese authorities. In the decision records, the Tribunal officer stated that he did not believe I was able to hold down full time employment in China and obtain full time work as a gyp-rocker in Australia after I suffered a severe beatings and insult. I disagree with his decision and I think this is unfair to me. In order to survive, I have to no choice. I need to work for living. Even my health conditions are still bad. I often feel dizziness and nausea during the heavy work, but I am still able to work full time. The Tribunal officer cannot deny the existence of the assault. The Tribunal officer did not ask about my situation before he made this decision. The Tribunal officer also stated that he did not believe no one dared to help me when I was beat and insulted outside for nearly 5 minutes. However, in china, no one wants to be involved in troubles, especially when we have disputes with the officers.
Insofar as this ground suggests that the Tribunal did not believe the Applicant was able to hold down full-time employment in China and obtain full-time work as a gyprocker in Australia after he suffered a severe beating and insult, this is not an accurate reflection of the Tribunal reasons for decision. The Tribunal addressed the Applicant's written claims to have “always” felt dizziness and nausea after the claimed assault in April 2012 and that he was injured, hospitalised and had medical bills. In that context, the Tribunal had regard to the fact that the Applicant had been able to hold down full-time employment as a driver in China in a new job and while in Australia had been able to obtain full-time work as a gyprocker. On that basis, whatever his ongoing health issues may be, the Tribunal did not believe that they were debilitating. The Applicant's contentions in this respect, which go on to reiterate his claims of dizziness and nausea, do not establish jurisdictional error.
The Applicant also contended that the Tribunal could not “deny the existence of the assault”. As indicated, the Tribunal did not find that no incident at all had occurred in April 2012. It accepted that the Applicant was engaged in an argument or fight with three local village officials, but not that it had occurred in the manner, to the extent and with the consequences that the Applicant claimed.
The Applicant also contended that the Tribunal did not ask him about his situation before it made the decision. If this is intended to be a complaint that the Tribunal failed to give the Applicant the opportunity to give evidence and present arguments in relation to the decision under review (as required under s.425 of the Migration Act 1958 (Cth) (the Act)), there is nothing in the evidence before the Court to support such a contention. On the contrary. The Tribunal decision, the only evidence before the Court of what occurred in the hearing, indicates that there was a discussion of the Applicant's claims and that the Tribunal raised dispositive issues in relation to his evidence. The Applicant was also on notice from the delegate's decision of issues in relation to his claims and the absence of documentary evidence.
Beyond this, this ground takes issue with the Tribunal's approach to the evidence and seeks impermissible merits review. The Applicant's disagreement with the Tribunal's findings, whether in relation to the extent of his injuries or the plausibility of his claim that no assistance was provided to him, takes issue with findings of fact. Such matters were findings for the Tribunal as the decision-maker. The Court cannot review the merits of the Tribunal decision. Ground 1 does not establish jurisdictional error.
In the second ground, the Applicant provides an explanation for his failure to provide any evidence, on the basis that he was not able to provide any “material evidence” to prove that he paid the amount of 20,000 yuan of compensation to the officials because they were Chinese officers and had “power to control whatever they want to do”. He contended that the Tribunal could not reject his claim because he was unable to obtain evidence.
However the Tribunal did not simply reject the Applicant's claims in the absence of corroborative evidence. As set out above, it reached its conclusions for a number of reasons, including the fact that it did not accept aspects of the Applicant's claims, as well as the absence of any documentary evidence at all in circumstances where the Applicant would have been on notice from the delegate's decision that the absence of documentary evidence was an issue of concern. Insofar as the Applicant disagrees with the Tribunal's findings, as indicated, merits review is not available in this Court.
This ground includes an assertion that the Tribunal could not reject an applicant's claim because he was unable to obtain evidence. However the function of the Tribunal is to respond to the case advanced by an applicant: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 per Kirby J at [78]. It is for the Applicant to advance evidence and argument in support of his claims and for the Tribunal then to decide whether the claim is made out: Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1 per Gummow and Hayne JJ at [187]. However, if the Tribunal is not affirmatively satisfied that the criteria for the visa are satisfied on the material before it, then the application must be dismissed: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 per Ryan, Jacobson and Lander JJ at [15]. It is not for the Tribunal to accept uncritically all claims advanced by an applicant, as the Applicant appears to contend: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253 at 451.
The Tribunal acknowledged that applicants may not be able to provide documentary evidence for all claims, but in this case found that the Applicant had time to prepare his departure and did not accept that official corruption was the reason for his inability to access any official document. Given the Tribunal's credibility concerns, it was entitled to have regard to the lack of any corroborative evidence. It was not obliged to accept uncritically all claims made by the Applicant. This is not a case in which the Tribunal fell into error by requiring an Applicant to corroborate his claims before they could be accepted. Ground 2 does not establish jurisdictional error.
Ground 3 takes issue with paragraph [23] of the Tribunal reasons for decision, in which the Tribunal found that it was not plausible that the three officials would cause an incident that would be likely to get the Applicant dismissed from his employment, if the most important thing was to recover compensation. This ground states (incorrectly) that the Tribunal found that there was “no reason for three village officials to come to [the Applicant’s] new work residence as they already got the compensation and it would not cause [him] to be dismissed”. This is not an accurate account of the Tribunal findings in relation to the claim that the officials had come to the Applicant’s new workplace accommodation in circumstances where they had not yet received the compensation which he said he had to pay them. No jurisdictional error is established on this basis.
Ground 3 also asserts that the Tribunal did not “consider” what the Applicant had said during the hearing. The Applicant did not identify what aspect, if any, of his evidence the Tribunal allegedly overlooked, failed to consider or ignored. Insofar as he takes issue with the Tribunal's factual findings, that does not establish jurisdictional error. There is nothing in the Tribunal reasons for decision to suggest that the Tribunal overlooked any integer of the Applicant's claims, let alone that it failed to have regard to any aspect of the evidence in a manner constituting jurisdictional error.
The Tribunal's reasons for its conclusions included the lack of plausibility of aspects of the Applicant's claims as well as the absence of documentary evidence. Such findings were open to the Tribunal on the material before it for the reasons which it gave. In particular, its finding about the lack of plausibility in the asserted actions of the three officials at the Applicant's new workplace was open to the Tribunal on the material before it.
The Applicant claimed that the Tribunal’s failure to consider what he said or to accept his claims was not fair. This claim might be seen as raising an allegation of actual or apprehended bias. It is a rare and exceptional case in which the court would find bias based solely on the decision-maker's reasons and well-established that no inference of bias or pre-judgement would be drawn from the mere fact of adverse findings (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 per von Doussa J at [38]). There is no transcript of the Tribunal hearing in evidence before the Court, notwithstanding that the Applicant was given the opportunity to file such evidence. Neither actual bias (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 per Gleeson CJ and Gummow J at [69] and [72]) nor apprehended bias (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 per Gleeson CJ, Gaudron and Gummow JJ at [28]) is established on the material before the Court. Ground 3 does not establish jurisdictional error.
Ground 4 simply asks the Court to consider the Applicant’s situation. As I tried to explain to him, this is not a rehearing and the Court does not have the power to decide whether or not he is a refugee. He then explained that what he sought was for the matter to be remitted to the Tribunal. However, no jurisdictional error has been established.
Finally, in oral submissions, the Applicant raised what may be seen as a contention of unreasonableness, on the basis that he did not regard the Tribunal decision as making sense. He took issue with the Tribunal's view of the attitude of the Chinese police, the sufficiency of his evidence and whether or not he was seriously injured. He suggested that there was some lack of clarity in relation to the kind of documentary evidence the Tribunal felt should have been provided.
The concerns that the Applicant raises are not such as to establish illogicality or irrationality such as to give rise to jurisdictional error in the sense considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16. It has not been established that the decision was one at which no reasonable decision-maker could have arrived on the same material or that its reasons were so lacking in clarity as to support an assertion of illogicality or irrationality. There is no evidence to support any suggestion of unreasonableness in the procedures adopted by the Tribunal. The concerns raised by the Applicant are not such as to establish unreasonableness or to otherwise demonstrate jurisdictional error.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application should be dismissed.
The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The Applicant indicated that he needed time to pay. This may be a matter to be taken into account by the Minister in determining when and how to seek to recover costs. The amount of $5,500 is reasonable, having regard to the nature of this and other similar matters.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 30 November 2015
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