SZVSB v Minister for Immigration

[2016] FCCA 1295

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1295

Catchwords:
MIGRATION – Complementary protection criterion – Tribunal did not believe applicant and his claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 417

Cases cited:
AMA15 v Minister for Immigration [2015] FCA 1424
Minister for Immigration v Singh [2016] FCA 575
MZXHY v Minster for Immigration [2007] FCA 622
Sullivan v Department of Transport (1978) 20 ALR 323
SZGIZ v Minister for Immigration [2013] 212 FCR 235

Applicant: SZVSB

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3263 of 2014

Judgment of: Judge Dowdy

Hearing date: 18 February 2016

Delivered at: Sydney

Delivered on: 8 July 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms Stone (solicitor).

Solicitors for the First Respondent: DLA Piper.

ORDERS

1. The application filed 24 November 2015 in this proceeding is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3263 of 2014

SZVSB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant, in the circumstances described below, seeks, by constitutional writs, to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal) dated 23 October 2014 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 23 April 2014 refusing to grant to the Applicant a Protection (Class XA) visa (Protection visa). He seeks a writ of mandamus directed to the Tribunal requiring the Tribunal to determine his application for review according to law.

General Background

1. The Applicant is a male citizen of the People’s Republic of China (China) who is 41 years of age, having been born on 7 November 1974.

2. He had arrived in Australia on 24 September 2005 as the holder of a Tourist Visa Subclass 676 (valid until 24 December 2005), granted to another person and using a false passport.

3. He applied for a Protection visa on 8 November 2005 (First Protection visa).  A bridging visa was granted to the Applicant in association with the First Protection visa application which expired on 25 March 2008.  The application for the First Protection visa was refused by a Delegate on 6 February 2006 and upon review the Tribunal on 11 May 2006 affirmed the Delegate’s refusal decision.

4. Thereafter the Applicant applied for judicial review of the decision of the Tribunal to the Federal Magistrates Court which application was dismissed on 11 October 2006. An appeal to the Full Court of the Federal Court of Australia was dismissed on 14 February 2007.

5. The Applicant then sought ministerial intervention under s.417 of the Migration Act 1958 (Cth) (Migration Act) on 21 March 2007 with the Minister declining to intervene on 25 March 2008.  The Applicant then lodged a second application for a Protection visa (Second Protection visa) on 22 October 2013 and a bridging visa was granted in association with that application on 26 November 2013. The Applicant, therefore, was an unlawful non-citizen from 26 March 2008 until 26 November 2013.

6. A Delegate of the Minister refused to grant the Second Protection visa on 23 April 2014. The Delegate correctly found, in accordance with the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration [2013] 212 FCR 235, that despite the terms of s.48A of the Migration Act the Applicant was not thereby prevented from lodging a further application for a Protection visa on complementary protection grounds as provided for by s.36(2)(aa) of the Migration Act. Nevertheless the Delegate also went on to determine whether the Applicant was owed protection obligations as a refugee under s.36(2)(a) as well as considering whether there were protection obligations of a complementary nature under s.36(2)(aa).

7. On both grounds the Delegate found against the Applicant. 

The Tribunal Decision Record of 23 October 2014

1. On 17 May 2014 the Applicant applied to the Tribunal for review of the Delegate’s decision to refuse to grant the Second Protection visa.

2. The hearing before the Tribunal took place on 23 October 2014 when the Applicant appeared with the assistance of an interpreter in the Mandarin and English languages.

3. The Tribunal in its review of the Delegate’s decision was of the view that it was only entitled to consider the claims made by the Applicant as being made pursuant to the complementary protection criteria provided for by s.36(2)(aa) of the Migration Act and not under s.36(2)(a) because of the force of s.48A and the fact that the Applicant’s application for the First Protection visa had been refused. The Tribunal’s view in this regard has been confirmed as correct by the decision of Markovic J of the Federal Court in the decision in AMA15 v Minister for Immigration [2015] FCA 1424.

4. The Tribunal affirmed the Delegate’s decision not to grant the Applicant a Second Protection visa.  It found that the Applicant was not at risk of harm of any kind in China for the reasons which he claimed.  It was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there was a real risk he would suffer significant harm as defined in s.36(2A) of the Migration Act. The Tribunal took this view substantially on credit grounds. Put simply, the Tribunal was not satisfied as to the creditworthiness of the Applicant. It noted inconsistencies between the reasons for which he said he would be persecuted if returned to China which he had given in his application for the First Protection visa lodged on 8 November 2005 which related, so he said, to his activities in favour of a coal workers’ union and the claims made in his application for the Second Protection visa of 22 October 2013 which asserted fear of persecution by police authorities and by villagers in connection with persons who had damaged his watch shop and had taken his farm land. Upon questioning as to these inconsistencies, the Applicant stated that his migration agent had prepared his First Protection visa application, but agreed that even though this was so, he had himself known of the falsity of the claims of his fear of harm resulting from forming a coal workers’ union.

5. Departmental records indicated that the Applicant had unsuccessfully applied for a Business visa in his own name in May 2004. In response to an enquiry of the Tribunal, the Applicant said that prior to arriving in Australia in September 2005 he had previously (he believed it to be in 2004) used his own passport to apply for an Australian visa because he believed Australia was a better country. That visa application was refused. The Tribunal considered that this unsuccessful visa application to travel to Australia in 2004 cast strong doubt over his claim that he travelled to Australia in 2005 with a falsified passport  to escape harm.

6. The Tribunal found implausible the Applicant’s claim that a neighbour who had seized his farm land in about May 2005 would still have any cause to wish to harm him nine years later, particularly when the Applicant’s evidence was that his own parents and grandparents remained in the family house in the same village, apparently unharmed and not fearing harm.  It further found implausible the Applicant’s claim that the Chinese police (who were alleged to have sided with the neighbour and beaten the Applicant) would still wish to harm him for an incident that had occurred so far in the past, given that they had never re-arrested him during the four months in which he remained in the family home after the alleged bashing by villagers, as claimed by the Applicant in his application for the Second Protection visa.

7. In the result, taking all matters together, the Tribunal found that it was unable to be satisfied as to the Applicant’s claims to have suffered harm in China at the hands of neighbours or police and was not satisfied that he was at risk of harm of any kind from these sources should he return to his own village in China.

Proceeding in this Court

1. By an application filed in this Court on 24 November 2014 the Applicant sought an order quashing the decision of the Tribunal and a writ of mandamus requiring the Tribunal to determine the Applicant’s application according to law.  The grounds of his application are as follows:

   1.The decision of the Tribunal:

   a)is affected by the procedural unfairness.  Particularly, both Department and Tribunal have put significant weight on the previous failed application to infer the current application.  As a result, my application is bound to failure.

   b)failed to take into account relevant considerations.

2. During the course of the hearing the Applicant indicated that he wanted to submit “supplementary documents” to the Court.  I questioned him about these and it appears that they were in Chinese and he had not been able to have them translated, and they were with his migration agent whom he could not afford to pay to come to Court for the hearing.  The nature of the documents, it seemed to be asserted, was that they related to the seizure of the Applicant’s farm land back in China.

3. I pointed out to the Applicant on a number of occasions that the Court was not involved in a merits review of the decision of the Tribunal and that it was probably unlikely that these “supplementary documents” would go to jurisdictional error or procedural unfairness, but rather would go only to the merits of the Tribunal decision. That likelihood was confirmed by the Applicant saying they related to the alleged land seizure back in his village in China.

4. Nevertheless, it seemed to me appropriate, where the Applicant could not speak English and did not have the advantage of a lawyer or migration agent, that I should advise the Applicant of his right to make an application for an adjournment: Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.

5. The Applicant thereupon made what I took to be an application for an adjournment which was opposed by Ms Stone who appeared for the First Respondent. In the result I refused an adjournment and indicated that I would give my reasons for refusing that adjournment in my judgment. They are as follows:

   a)The application in this Court was filed as long ago as 24 November 2014.

   b)On 18 March 2015 the application was set down for final hearing on 18 February 2016 with the Applicant consenting to orders that he file and serve any additional evidence to be relied upon by him by 6 May 2015. He did not avail himself of this opportunity.

   c)Thus, he has had ample time to indicate to the First Respondent and the Court that he was relying on the “supplementary documents” and provide a translation of them well before the hearing.

   d)Those “supplementary documents” are in Chinese and would have to be translated and the Applicant does not have the money to pay for that although there seems to be a suggestion that friends of his might do so.

   e)The “supplementary documents” relate to something about land in China and are unlikely in any event to be relevant or admissible. First, there has been no clear indication of their relevance to the Applicant’s case in this Court. Second, whilst material not before a relevant decision-maker may be admissible, even in a judicial review proceeding such as this, when a ground of review is for breach of procedural fairness, it is hard to see how documents relating to the taking or seizing of or title to land in China could go to any procedural fairness issue. Clearly they would not be admissible if, as is likely, they had the purpose of inviting the Court to disagree with factual conclusions reached by the Tribunal: see MZXHY v Minster for Immigration [2007] FCA 622 ([8]) per Nicholson J; Minister for Immigration v Singh [2016] FCA 575 per Edelman J.

   f)Costs would not be an adequate remedy for the First Respondent because the Applicant would not have sufficient funds to pay any costs ordered as the price of an adjournment.

Disposition

1. Unfortunately for the Applicant the Tribunal did not believe him. It found inconsistency and implausibility in his claims and evidence which caused strong doubt as to the credibility of his claims both past and present. It was not satisfied that the Applicant was at risk of harm of any kind in China for the reasons he had claimed. The Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to China there was a real risk he would suffer significant harm as defined in s.36(2A) of the Migration Act for the purposes of s.36(2)(aa).

2. The findings made by the Tribunal appear to me to have been reasonably open to it on the material and the Tribunal raised with the Applicant at the hearing its concerns about aspects of the Applicant’s evidence and there does not appear to me to have been any denial of procedural fairness.

3. In the result the Tribunal did not reach a state of satisfaction as to the existence of complementary protection claims and I can discern no jurisdictional error.

4. Accordingly, the application will be dismissed with costs, the quantum of such costs being reserved for the present time.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 8 July 2016