SZVJZ v Minister for Immigration and Anor (No.2)

[2016] FCCA 391

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJZ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 391

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 the relief he seeks – 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)(a), 36(2)(aa)

Applicant: SZVJZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3019 of 2014

Judgment of: Judge Manousaridis

Hearing date: 18 February 2016

Delivered at: Sydney

Delivered on: 18 February 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms S Sangha of
Mills Oakley 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 $3,416.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3019 of 2014

SZVJZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent (Minister) applies for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules), that the application for judicial review filed in these proceedings be dismissed. By that application for judicial review, the applicant seeks an order to quash a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa (protection visa). To determine the Minister’s application, I need to set out the claims for protection the applicant made and which were before the Tribunal. 

2. The applicant is a citizen of the People’s Republic of China.  He arrived in Australia on 8 May 2011 as the holder of a student visa which expired on 6 April 2012.  The applicant applied for a protection visa on 8 October 2013. 

3. In a statement dated 5 October 2013 that formed part of his application for a protection visa, the applicant claimed members of his family in China were threatened and persecuted by local government and police officers because they did not agree to the demolition of their home without being fairly compensated.  The applicant claimed he called his parents on 12 October 2013 and, on that day, his parents were notified they had to move out of their house within a month because the area had been sold to a land developer.  The applicant’s parents and other residents affected were offered compensation of RMB1500 per square metre.  The applicant’s parents decided not to move out because the market value of the house was RMB2500 per square metre, and the compensation offered, therefore, was too low. 

4. The land developer had connections with local gangsters and arranged for them to threaten the applicant’s family and their neighbours.  The gangsters poured petrol on the applicant’s parents’ house and threatened to burn the house down if the applicant’s family did not move out.  The gangsters broke windows and beat some of the applicant’s parents’ neighbours.  The gangsters’ violence led to 80 per cent of the residents moving out.  The applicant’s family did not move out, but complained to the local government. 

5. Those complaints were not taken seriously and the applicant’s family’s electricity and water were cut off on 2 November 2013. The applicant’s parents sent his wife and son to stay with the applicant’s wife’s parents, but the applicant’s parents remained in their house.  On 11 November 2011, 10 policemen and some labourers came to the applicant’s parents’ house with a bulldozer.  The policemen pulled his parents and three other families out of their homes and proceeded to demolish the house.  The applicant’s parents tried to reason with the policemen, but they were badly beaten by order of the vice-director of a police station.  The applicant’s parents went to stay with relatives and continued to complain about their treatment, but “no-one would like to listen to their complaints at all.” 

6. The applicant claimed his wife received a threatening phone call on 29 November 2013 in which the caller told the applicant’s wife to, “Be careful with what you do and say, otherwise your whole family will be in danger.”  The applicant’s parents became even more frightened and sent the applicant’s wife to a relative’s house in another city.  The applicant claimed his parents had to move from one place to another because they were being constantly blackmailed by local gangsters “no matter where they moved to”. The applicant claimed his parents told him “not to go back to China because in one of the threatening letters, they mentioned to kill our whole family”. The applicant claimed he fears returning to China because he and his wife will be persecuted by the police and government and because there is a lack of human rights and fairness where the gangsters collude with the government officials to persecute the powerless civilians. 

7. Before the Tribunal the applicant made the following claims, in addition to his written claims for protection. 

   a)First, the applicant’s wife had left him because of the “incident” and they divorced in February 2014. 

   b)Second, the applicant’s family home was demolished and his parents and son now live in a rental property in the same village as the family home, about one kilometre away. 

   c)Third, after the family home was demolished, the applicant’s parents fought with the authorities and the applicant’s mother’s wrist was fractured and she was hospitalised for 10 days in 2011.  The applicant estimated that the demolition occurred in November 2011, but could not remember. The applicant’s parents told the applicant about the demolition via video link the second day after the family home was demolished.

   d)Fourth, the applicant’s parents received RMB200,000 compensation “maybe two weeks” after the demolition. 

   e)Fifth, when asked to explain why he would face serious harm, or significant harm, if he were to return to China, the applicant said that after the family home had been demolished, he telephoned the head of the PSB in April 2012. The head of the PSB threatened the applicant and told him if he returned to China, he would kill him. The applicant said he did not include this claim in his written statement because he was in a hurry and forgot. 

   f)Sixth, the applicant claimed a person in a neighbouring village was stabbed 27 times and was worried he would also “end up like this”.  The Tribunal was not satisfied the applicant was a truthful witness and did not accept there is a real chance the applicant will face harm of any type of he returns to China. 

8. The Tribunal accepted the applicant’s family’s home was demolished in November 2011 and that two weeks after the demolition the applicant’s parents received RMB200,000 in compensation. The Tribunal, however, did not accept the applicant’s parents came to the adverse attention of the Chinese authorities, or that his parents were forcibly removed from the family home, or that the applicant’s mother was injured or hospitalised, or that the applicant’s parents petitioned to dispute the adequacy of the compensation, or that the applicant’s parents were harmed or mistreated by gangsters acting in collusion with a developer or the Chinese authorities, or that the applicant was threatened by the head of the PSB. 

9. The Tribunal found the applicant fabricated his claims that he and his parents were of adverse interest to the authorities, gangsters and corrupt developers.  The Tribunal relied on a number of matters for reaching these conclusions. 

   a)First, the Tribunal found there were significant discrepancies between the applicant’s oral evidence at the Tribunal hearing, which was brief and lacking in detail, and the applicant’s written statement containing his claims for protection. 

   b)Second, the Tribunal found the timing of the applicant’s application for a protection visa – the applicant’s student visa expired in April 2012 but he did not apply for protection until September 2013 – and the applicant’s failure to attend the interview with the delegate indicated the applicant does not have a subjective fear of harm in China. 

   c)Third, the Tribunal found the applicant was unable credibly to explain why he would be of adverse interest to the Chinese authorities or gangsters in his village if the applicant were to return to China now or in the reasonably foreseeable future. 

   d)Fourth, the Tribunal did not accept the applicant had credibly explained why his written statement did not mention the claim that he was personally threatened by the head of the PSB given the applicant confirmed at the beginning of the hearing that all the information in his written statement was true and he did not have any additional information to provide.  The Tribunal did not accept it was credible the applicant forgot to mention that claim because he was in a hurry to submit his two page written document. 

10. In all, the Tribunal did not accept the applicant had a well-founded view of persecution on account of his political opinion, or for any other reason if he returns to China now or in the reasonably foreseeable future and was not satisfied the applicant is a person in respect of whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth).

11. I then turn to the grounds stated in the application.  The application contains two grounds.  The first is:

    RRT had descriminatio [sic] on me, failed to consider my true situation.

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

12. The ground, as stated in the application, raises no arguable case of jurisdictional error.  It is not arguable that the Tribunal did not consider the applicant’s “true situation”.  The Tribunal set out the applicant’s claims, the evidence the applicant gave to the Tribunal at the hearing before it, and the reasons for which the Tribunal did not accept the applicant’s claims were credible: It is beyond argument that it was reasonably open to the Tribunal not to accept the applicant’s claims were credible and for the reasons the Tribunal gave. 

13. The second ground of review stated in the application is:

    RRT is unfair to me, they breached fainess [sic] procedure and refused based on their own judgment.

14. The applicant did make submissions in relation to this ground.  He said that the Tribunal did not believe him.  He also said that the Tribunal kept asking questions repeatedly. When I asked him what those questions were, the applicant said he didn’t remember, but he was asked the questions many times. The applicant made other submissions.  He submitted that what happened to him was truthful.  He submitted that the Department was unfair to him and that they suspected the genuineness of the documents.  The applicant also submitted that the Tribunal asked questions of the applicant that were not related to his claims.  When I asked him what questions the applicant had in mind, the only question he said he could recall was that he was asked how many children he had.  He said it has been a long time and he can’t remember the other questions. 

15. In my opinion, the second ground raised in the application discloses no arguable case of jurisdictional error. The applicant’s submissions of unfairness do not arguably disclose any unfairness on the part of the Tribunal.  If the applicant was asked how many children he has, that appears to have been relevant because the Tribunal noted that the child was in a village near the place where the applicant’s parents’ house was demolished. It was open to the Tribunal to regard that item of information as relevant to the questions it had to decide. 

16. The second ground as stated in the application does not identify in what manner the applicant otherwise alleges the Tribunal breached any duty of fairness and for that reason is bound to fail. The second ground also raises no arguable claim for relief to the extent it suggests the Tribunal made its decision without considering the material before it and the claims the applicant made. It is not arguable that the applicant did not consider the applicant’s claim. For those reasons I propose to make an order pursuant to r.44.12(1)(a) of the FCC Rules dismissing the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  25 February 2016