SZVMF v Minister for Immigration
[2016] FCCA 3286
•18 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVMF v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3286 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the grounds of the application raise an arguable case for the relief sought – no arguable case raised – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424A, 425A, 425, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2001] HCA 1; (2000) 168 ALR 407 |
| Applicant: | SZVMF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3129 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 November 2016 |
| Date of Last Submission: | 18 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2016 |
| REPRESENTATION |
| Applicant: | In person | |
| Solicitors for the Respondents: | DLA Piper Australia | |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 11 November 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,375.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3129 of 2014
| SZVMF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 November 2014, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeal Tribunal (“the Tribunal”), which, on 17 October 2014, affirmed the decision of the Minister’s delegate not to grant a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “”CB”, “RE1”), and written submissions from the Minister filed on 11 November 2016. Despite opportunity, nothing further has been filed by the applicant in support of his application.
Background
The background to this case, which can be derived from the CB, is that the applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia as a visitor on 11 May 2013. He applied for a protection visa on 5 August 2013 (CB 1 to CB 33), and included with his application was a document headed “Personal Statement” which outlined his claims to protection (CB 32 to CB 33).
The applicant claimed that he had been persecuted by the local authorities in China because he reported embezzlement and corruption of local government officials (CB 32). He claimed that, due to the expansion of a highway in October 2012, his family’s farm land had been appropriated by the government and his family was not properly compensated because of the corruption of local government.
The applicant claimed that, with other villagers, he went to the government administrative office to complain and “demanded a reasonable explanation” (CB 33). When no response was received to the complaint, the applicant and the villagers sent a “jointly-signed petition letter”. The applicant claimed that when he and other villagers organised to go to Beijing to petition the government there, they were “suppressed” by policemen and taken to a detention centre.
The applicant claimed that he was held for 15 days and made to “confess his intention” to demand an explanation from higher authorities and that he was “battered” every day to prevent him from taking any further action (CB 33). He made further claims of mistreatment at the hands of police and local authorities.
The Minister’s delegate refused the application on 14 February 2014 (CB 43 to CB 62). The delegate did not find the applicant to be a witness of truth. This was because of what the delegate said were significant internal inconsistencies in his claims and vague responses to questions raised with him (CB 56).
The applicant applied for review of the delegate’s decision to the Tribunal on 10 March 2014 (CB 63 to CB 75). He gave a copy of the delegate’s decision record to the Tribunal with his application for review. The applicant attended a hearing before the Tribunal on 17 October 2014 (CB 84).
The Tribunal affirmed the delegate’s decision on 17 October 2014 (CB 93 to CB 99). The Tribunal found the applicant to be an “insincere, uninterested and artificial witness” and that he did not “convey the impression of a witness relating an account of events that had actually occurred” ([7] at CB 95).
The Tribunal had a number of concerns about the applicant’s credibility:
1)The Tribunal found the applicant’s evidence in relation to the receipt of any compensation for the appropriation of the family’s land unconvincing and inconsistent ([8] at CB 95 to [11] at CB 96). It found that before the delegate and in his written statement it appeared that he claimed that he had received some compensation, however before the Tribunal he claimed that he had received no compensation. The Tribunal found that when reminded of his earlier evidence, the applicant again changed his evidence to say that he had received some compensation, but that he received after he left China. The Tribunal found his later evidence was a “belated invention to conceal inconsistency” ([11] at CB 96).
2)The Tribunal found the applicant gave inconsistent evidence in relation to his employment history as a driver in China ([12] at CB 96).
3)The Tribunal found the applicant did not provide a straightforward account of events in relation to the petition letter which he had claimed he had participated in drafting, and sending, and which occurred “only last year” ([17] at CB 97).
4)The Tribunal also found that the applicant provided different statements of what the police “forced” him to confess while he was in detention ([18] at CB 97).
In all, the Tribunal found, cumulatively, that its concerns about the applicant’s credibility led it to find that the applicant was not a witness of truth ([19] at CB 98). As a result, the Tribunal found that all of his claims to protection were false ([19] at CB 98) and, on this basis, the Tribunal found that there was not a real chance that the applicant would suffer serious harm if he were to return to China ([21] at CB 98).
It relied on its credibility findings to also find that the applicant would not face a real risk of significant harm on return to China ([22] at CB 99).
Application Before the Court
There are three grounds in the application to the Court. All are long narratives expressing the applicant’s discontent or grievance with the Tribunal’s decision. The grounds of the application are in the following terms:
“1. With regard to compensation, I do not agree with the decision that made by the tribunal officer, because the tribunal officer asked me some misleading questions about compensation. During the RRT interview, the tribunal officer asked me whether I did anything else to obtain compensation after I was released, my answer is no, this is because I left China. As after I was released, I have restricted the freedom of my life by local government, I had to flee to Australia with my visitor visa, so after I was released I did not take any action to fight for compensation. After a break of my interview, the tribunal officer then asked me if I received compensation, I did think that the tribunal officer is to ask whether I received any compensation before I left China, and the fact is not, so my answer is no. However the tribunal officer told me that I told the delegate that I did receive my compensation after I left China. I admit that this is true, I did receive my compensation after I came to Australia, but the tribunal officer asked me whether I did anything after I was release and then asked me whether I obtain compensation, I was misled and thought the tribunal officer asked me about whether receiving compensation before I left China. I explained this to the tribunal officer but did not accept my explanation. I think it is not fair for me.
2. In the decision letter about what the police said to me in detention, I do not agree with RRT’s decision. The Tribunal officer asked me about what the police said in detention during the interview. I told the tribunal officer that I was asked to confess about illegal gathering, if I do not confess, I would not be released. Then I told the tribunal officer polices also asked me to stop the petition and I would be monitored. Due to I did not explain clearly during the interview, I did not explain that they asked me to confess illegal gathering refer to the issue that other villager and I requested a reasonable explanation from the government on land compensation, it led to the tribunal officer believes that the police only asked me to confess illegal gathering, which makes my oral claims and written statements inconsistent, leading to the tribunal officer do not accept my explanation.
3. The Tribunal officer said he does not believe that the local government appropriated land my owned, and thus rejected my petition, being arrested, detained, abused, persecuted by the government, and also refused all of my claims. This is unfair. The tribunal officer should take into account my situation and the Chinese government’s corruption before he made decisions.”
[Errors in original.]
Before the Court
The applicant appeared before a Registrar of the Court on 4 December 2014 and then again on 24 June 2015. Orders were made granting the applicant leave to file an amended application and any evidence in support of his application by way of affidavit, and any written submissions. The applicant has not filed any further documents in this regard.
In light of the stated grounds, the Minister sought a hearing of the application pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). The Minister’s position was that the applicant’s application did not raise a legally arguable case for the relief that the applicant sought.
Before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. The Minister was represented by a solicitor.
Issue Before the Court
The issue before the Court, therefore, is whether the grounds of the application raise an arguable case for the relief that is sought. I note, in this regard, that the applicant seeks orders that the Tribunal’s decision be quashed and returned to the Tribunal for reconsideration.
In these circumstances, if the Court cannot be satisfied that an arguable case, and I say “legally arguable case” for the applicant’s benefit, is raised against the Minister, the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, or where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
When the applicant was given the opportunity to address the Court today, he said that he had “nothing” to say. This then directs attention only to the stated grounds as they are put before the Court, and this is particularly so, given that the applicant also stated that everything that he wanted to say was in the application to the Court.
The applicant’s grounds are a narrative of disagreement with findings of fact, including findings on credibility, made by the Tribunal. As mentioned earlier, the Tribunal found that the applicant was not a witness of truth. The Tribunal made findings on the evidence before it and gave reasons for those findings that, when taken cumulatively, led to its conclusion on the applicant’s lack of credibility.
Given that the Tribunal’s conclusion, and the findings that informed it, were all reasonably open to the Tribunal to make, and for which the Tribunal gave cogent reasons, there is no legal error in these circumstances (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2001] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”). On what is before the Court, the Tribunal acted within jurisdiction in relation to relevant findings of fact. Given the comprehensive adverse conclusion as to the applicant’s credibility, it was reasonably open to the Tribunal to reject the entire factual basis on which the applicant made his claims to protection.
As set out above, the applicant was unrepresented before the Court today, and in that circumstance, I adopted the most liberal view of the grounds. In that light, I note that, if ground one seeks to also impugn the Tribunal’s questioning of the applicant at the hearing that it conducted with him, then the applicant has not, despite the opportunity given to him, and the very long duration of time that the applicant has had to do so, provided evidence of what occurred at the hearing with the Tribunal. That is, no transcript of the hearing to challenge the Tribunal’s account of what it said occurred as set out in its decision record.
There is nothing in the Tribunal’s account to suggest any failure of procedural fairness arising from the Tribunal’s questioning of the applicant. On the evidence before the Court, it cannot be said that the Tribunal hearing was anything other than a meaningful opportunity for the applicant to give his evidence and present his arguments (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”), Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41).
As the Minister submits, there is no error in the Tribunal, given the inquisitorial nature of its function, to test the applicant’s evidence, even vigorously, at the hearing. No arguable case is raised in these circumstances. Further, all of the applicant’s grounds assert, generally, “unfairness”. However, despite opportunity, no meaningful particulars are provided by the applicant. I note that grounds one and three, in part, make references to what the applicant says he was asked by the Tribunal at the hearing.
Ground two cannot reasonably be seen as anything other than seeking to cavil with the Tribunal’s findings as to the credibility of the applicant’s claims as they arose, in great part, from the evidence given by the applicant at the hearing. For the reasons that I have already given, none of that raises any arguable case such as to warrant this matter going to a final hearing. There is no evidence before the Court to even suggest that the applicant was denied a fair opportunity to give his evidence and present his argument. No arguable case is raised in these circumstances.
It is clear from the delegate’s decision record that the credibility of the applicant’s factual account on which he based his claims to fear harm was at issue. I note, in particular, what the delegate said as reproduced at CB 56 (and see [7] above). It is also clear, on the evidence before the Court, that at the hearing, the Tribunal discussed with the applicant the issues dispositive, or determinative, of the review (SZBEL). That is the inconsistencies in his evidence and claims.
None of the grounds in the application to the Court raise any legal argument such as to suggest some legal merit in the application. For the sake of completeness, I also note the following. First, the Tribunal made reference to what the applicant told the delegate at an interview. I note, for example, the reference at [8] (at CB 95) in the Tribunal’s decision record. However, the evidence before the Court is that the delegate’s decision record, which also included references to what the applicant said at the interview with the delegate, was given to the Tribunal by the applicant in connection with the review.
Therefore, as what was said by the applicant to the delegate at the interview was subsequently given to the Tribunal by the applicant, it falls within the exception set out in s.424A(3)(b) of the Act to any obligation that the Tribunal may have had under s.424A(1) of the Act. In any event, I note that the reference at [8] (at CB 95) is that the Tribunal found, that in that respect, the applicant’s evidence at the interview with the delegate was consistent with the Tribunal’s understanding from the applicant’s statement. No legally arguable case arises in that regard.
Second, as the Minister submits, the Tribunal made reference to the applicant’s visitor visa application, that is, the application that led to the grant of the visitor visa that he used to come to Australia ([20] (at CB 98). I agree with the Minister’s submissions that this material did not, in its terms, contain a “rejection, denial or undermining” of the applicant’s claims to protection, and was therefore not “information” for the purposes of s.424A of the Act.
I note these matters because this is a case to which s.422B of the Act applies, making what is set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule in relation to matters dealt with in that Division. To the extent that the applicant has claimed some “unfairness”, it was appropriate to have regard to relevant sections, including s.424A of the Act. As mentioned previously, there is nothing that would reveal a legally arguable case in that regard.
Further, s.425 of the Act, dealing with the invitation to hearing before the Tribunal is also a matter dealt with in Division 4 of Part 7 of the Act. As mentioned earlier, the applicant was invited to a hearing and he attended that hearing. The hearing invitation complied with all of the relevant statutory and regulatory requirements (see, at the relevant time, s.425A of the Act and reg.4.35D of the Migration Regulations 1994 (Cth)). The applicant was given the opportunity to give his evidence and present his arguments.
There is nothing before the Court to show that the hearing was anything other than a meaningful opportunity for the applicant to explain his case and his claims. The fact that the applicant was unable to satisfy the Tribunal that he was telling the truth is not a matter that would on its own suggest any unfairness. This is particularly so in circumstances where the Tribunal made findings that were reasonably open to it, and gave cogent reasons for them (Durairajasingham).
It is the case that at a hearing before this Court, of an application to show cause, the applicant is confined to the grounds mentioned in the application, and I refer here to r.44.13 of the FCC Rules. Given that the applicant was unrepresented before the Court, I did have regard as to whether that rule should be waived pursuant to r.1.06 of the FCC Rules. However, there is nothing before the Court, and nor has the applicant said anything to the Court, to suggest that it is in the interests of justice to dispense with that rule.
In all therefore, there is no arguable case raised by the grounds in the application for the relief that the applicant seeks. It is appropriate that the application to the Court be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make that order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 16 December 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction