SZVLR v Minister for Immigration

[2015] FCCA 1330

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1330

Catchwords:

MIGRATION –  Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error.

PRACTICE AND PROCEDURE – Show cause – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001, r.44.12
Migration Act 1958, s.476

Applicant: SZVLR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3093 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 H. Musgrove

Sparke Helmore

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 3093 of 2014

SZVLR

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 this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 13 October 2014 approving a decision of the delegate not to grant the applicant a Protection (Class XA) Visa.  The matter was listed today for a show cause hearing.  The application identifies the following grounds:

   1. On 11.2003 I came to Australia to avoid the persecution from Chinese government. I have been difficultly living in Australia for 11-year without legal identity and I have experienced deceit from "black" agent, language barrier and being scared to encounter further persecution performed by Chinese authority. Later, I heard that the new immigration policy would allow the refugees like me who stay in Australia for so many years because there is other way out to return back to our own countries to live in Australia permanently with legal status, which lightens my hope up again. So I decided to lodge the application of protection visa again. However, unexpectedly, the immigration officers' unfair treatment and bad attitude made me feel disappointed and dissatisfaction. During the interview of Immigration Department, I was allowed to talk only 20 minutes which were definitely not enough for me to explain my experiences for the past 20-year. Originally, I thought that RRT would give me a fair judgment, but they made the decision without careful consideration. No matter how I explained, they did not believe my personal statement and denied my experience of leaving my own country and living ill foreign countries for 25-year. They believed that I will only encounter economic and cultural difficulties but not the serious harm once I am back to China (Page7, section 38). I think this is a mistaken and unfair judgment. Your Honour, please think this way: if I was able to stay in my own country with happiness and justices, how could I still choose to live in foreign countries for a long time without having happy life with my family.

   One of reasons why RRT refused my application is because I applied my protection 9-year after I came to Australia, so the RRT officers thought I was not scared to be back to China. I think this judgment is a mistake and unfair. Just like what I explained during the RRT’s interview, I tried to apply refugee protection visa, but I was deceived by agent and detained in Villawood detention centre for a week due to invalid visa and over-stay. Besides, my withdrawn personality and language barrier leaded me not to trust other people and I was unable to apply the protection visa myself, so I did not apply this visa until now. I am so depressed and I have no other way out because I have not seen my family for more than 10 years. Therefore, I hope that the Federal Court of Australia can consider my situation carefully and give me a chance to have normal and stable life in Australia.

   Another reason why RRT refused my application is I did not sufficient evidences. But please consider my actual circumstance: I have left China for 25-year, living in Korea for 14-year and in Australia for 11-year respectively, so it is very difficult for me to obtain those evidences because I lost contacts with those who participated in the activity together. Thus, it is unreasonable and unfair that RRT refused my application just base on this. I hope that the Federal Court of Australia can consider my situation and give me a fair judgment.

   I wish the Federal Circuit Court of Australia could consider my situation.

2. What is set out in the application fails to disclose any jurisdictional error, and is an impermissible challenge to the adverse findings of fact.  There is nothing in the application that identifies an arguable jurisdictional error.  The applicant in this case applied for a protection visa on 15 November 2013, which was refused by the delegate on 31 March 2014.  The applicant is a citizen of China, and his claims were assessed against that country.  The applicant appeared before the Tribunal on 7 October 2014, and was assisted by an interpreter. 

3. This was a case where the applicant’s previous migration history was of obvious relevance:

   9. The applicant first arrived in Australia on a tourist visa on 9 March 1996 on a South Korean passport in the name of [C]. The applicant says that this was a fraudulently obtained passport. The applicant departed Australia on 24 May 1996.The applicant last arrived in Australia on 3 November 2003, again on a South Korean passport in the name of [C]. On 15 November 2014 the Applicant applied for a Protection visa in the name of [X]. The applicant claims that this is his true identity and that he was born in China on 13 March 1960. The applicant has provided a copy of an expired Chinese passport in the name [X] issued in Seoul on 9 July 2003. The Tribunal accepts that the applicant is [X] and is a citizen of China.  

4. This is a matter where the delegate noted the applicant had waited nine years before lodging a protection visa application, which of itself clearly suggested the applicant did not have any fear of returning to China.  The Tribunal carefully identified the proper law and took into account the Ministerial Direction, and summarised the applicant’s claims and evidence, including what was said at the hearing.

5. Relevantly, Tribunal said:

   23. …It was difficult obtaining from the applicant any detailed account of the key aspects of his claims. The Tribunal considers that the applicant suffered from difficulties of comprehension and language in making his claims, rather than the evidence characterising the lack of truth as to the claims.

   27. …However, while the applicant may have come to the attention of authorities at this time as one of many protestors, the Tribunal does not accept that there was an arrest warrant for the applicant, which he claimed to be the case during the Tribunal hearing. There is nothing to substantiate this other than the applicant saying that he would have been wanted by authorities simply because of the face of his participation in the protests.

   28. …Although the written claims refer to threats being made by authorities, no further detail was· able to be elicited from the applicant in the hearing in relation to these threats. The fact that the applicant was able to secure a Chinese passport in his name from Chinese authorities whilst in South Korea 2003 suggests the degree of any adverse interest in the applicant was limited.

   30. The key issue in this matter is, based on these findings, whether Chinese authorities would now or in the reasonably foreseeable future have any adverse interest in the applicant and therefore whether the applicant faces a real chance of harm should he returned to China.

   35. In terms of the applicant's involvement in the pro-democracy movement in the late 1980s in his home town of [H], as the applicant was not a leader or a high profile activist the Tribunal considers that the Chinese authorities would currently have no adverse interest in the applicant, based on the independent information cited. The Tribunal also considers that Chinese authorities would similarly currently have no interest in the applicant as a result of his anti-corruption claims in the late 1990s.

   38. The applicant has stated that he has been out of China for a very long time and there is nothing for him there now. The Tribunal accepts that it may well be difficult for the applicant culturally and economically to integrate back into the Chinese community in China, the Tribunal is of the view that these difficulties do not constitute serious harm or significant harm for the purpose of s.91R(l)(b) and s.36(2A) respectively.

   39. As the applicant's claim of future persecution or significant harm is based solely on his past anti-democracy and anti-corruption activities in China and in South Korea and that the ' Tribunal finds that Chinese authorities would no longer have any adverse interest in the applicant as a result of these activities it follows that, on the information before it, the Tribunal is riot satisfied that: the applicant faces a real chance of persecution involving serious harm in China for a convention reason now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for a Convention reason.

   40. For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk he will suffer significant harm for the purposes of s.36(2)(aa).

   41. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   42. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. It is clear that the applicant had a genuine hearing, and that the adverse findings were open on the material before the Tribunal.  I am clearly satisfied the application does not disclose an arguable case for relief, and that it is an appropriate case to dismiss under r.44.12.  I dismiss the application under r.44.12. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 May 2015