SZVZZ v Minister for Immigration

[2016] FCCA 1437

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZZ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1437

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal failed to consider factual allegation – whether it was reasonably open to the Tribunal not to accept the applicant’s credibility – whether the Tribunal assessed the applicant’s claims against complementary protection – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: SZVZZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 126 of 2015

Judgment of: Judge Manousaridis

Hearing date: 6 June 2016

Delivered at: Sydney

Delivered on: 6 June 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms C Hillary of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,500.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 126 of 2015

SZVZZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicant, a citizen of the People’s Republic of China (China), seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA) visa (Protection visa). 

Claims for protection

1. In a statement that formed part of the applicant’s application for a Protection visa,[1] the applicant claimed to fear harm from persons who had taken a dislike to him as a result of his refusing to pay a bribe to a work supervisor to obtain a birth quota.

   [1] CB26-28

2. According to that statement, the applicant married his first wife in January 1994. At that time he was employed as a driver for a company.  His wife fell pregnant shortly after they were married.  As was required by the Chinese family planning regulations, the applicant sought to obtain from his employer a birth quota for the baby.  The member of the family planning committee, Ms W, refused the applicant’s application, making it clear that she expected to be paid a bribe before she would grant the application.  The applicant refused to pay a bribe and “quarrelled” in her office until the human resources manager, Mr M, who was also Ms W’s husband, intervened and called the police.

3. The applicant was arrested and taken to the police station, where he was detained for over 40 hours, during which time he was hit, kicked and not given any food.  The applicant was finally released when his family paid a fine of RMB3,000.  The applicant was not shown an arrest warrant or given a receipt for the payment.  Later, the applicant learnt that the brother of Mr M worked at the police station and that Mr M has orchestrated his arrest. 

4. The applicant was not granted a quota following his release. A doctor, however, assisted the applicant and his wife by organising a bed in a hospital.  The applicant’s son was born in August 1994.  Even after paying “lots of money” to register his “son’s household”, the date of the son’s birth was registered as 14 March 1996.  Because of this, the applicant’s first wife often complained the applicant was useless and could not bring a happy life to her.  In April 1995 the applicant and his first wife divorced and the son lived with the applicant. 

5. The applicant’s colleague and neighbour, Ms T, came to the applicant’s home to cook and help look after his son. Their relationship developed and they were married in December 1995.  The applicant’s second wife wished to have a child of her own, as was permitted by the family planning regulations.  The applicant again sought to apply for a birth quota from the same employer.  Ms W again denied the applicant’s request.  The applicant, however, dared not let his second wife fall pregnant because, based on the applicant’s previous experience, he was afraid “this would give depression to my wife” and also because he feared he would be fired if he had another child without a quota.

6. The applicant considered suing Ms W.  He did not do so because he knew that Ms W and Mr M’s son worked at the court and any action would be unsuccessful.  The applicant decided to write a letter to the calls and letter bureau about his experience.  The letter, however, was passed on to his employer.  The applicant was dismissed and the applicant’s second wife was transferred to the dirtiest and most tiring job. 

7. In 2010 the applicant purchased a van and started a delivery business, picking up work from another company. The manager of that company, Mr JW, was “cruel” to the applicant and his payments were often deducted and withheld by him.  Over time Mr JW’s treatment of the applicant worsened and he eventually stopped paying the applicant.  In June 2010 the applicant saw Mr JW outside the company’s office.  Before the applicant had a chance to confront him, Mr JW called the police and told them the applicant was “prepared to hit him”.  The police refused to listen to the applicant and instead he was detained and taken to the police station, where the brother of Mr M was again responsible for his case.

8. The applicant was illegally detained for 72 hours, during which he was “hit badly” and was only released after the applicant’s second wife paid RMB5,000.  After his release the applicant stayed at home.  Drivers came to visit him and informed the applicant that Mr JW was Mr W’s “sister’s husband”.  Police often conducted investigations of the applicant’s home and the applicant and his family were living in fear.  The applicant’s second wife urged him to leave China to stop their persecution. After raising the necessary funds, the applicant obtained a passport and visa and travelled to Australia in January 2011. 

9. Before the Tribunal the applicant made additional claims.  He claimed that during his visit to China in March 2011 to visit his sick mother he was forced to report to the police station, where he was threatened.  When he left China he was asked detailed questions about his situation in Australia.  The applicant also claimed that Mr M had now become the secretary of the Chinese Communist Party Committee at his old employer and that his brother had been promoted to leader of the local police station. Two weeks before the hearing Mr M’s brother spotted the applicant’s second wife in the street and told her that the applicant is not even safe in Australia and that he will figure out a way to harm the applicant in Australia. 

Tribunal’s decision

1. The Tribunal did not accept the applicant’s claims were true or that the applicant had given truthful evidence or that the applicant has any fear of harm if he returns to China or that the applicant experienced harm in China before he came to Australia.  The Tribunal relied on a number of matters:

2. First, the Tribunal was not satisfied the applicant has a genuine fear of harm if he were to return to China for the following reasons:

   a)Despite claiming to have suffered persecution since 1994 and obtaining a passport on 27 August 2009, the applicant did not leave China until January 2011.

   b)The applicant was granted a valid visa on 10 January 2011 but he did not depart until two weeks later, despite being persecuted since 1994.

   c)The applicant was able to depart China legally on a valid passport in his own name, which suggested he is not of adverse interest to Chinese authorities.

   d)The applicant voluntarily returned to China in March 2011 to see his sick mother.

   e)When he did returned to China the applicant remained there for over one month.

   f)The applicant was able to depart China for a second time legally in April 2011 on a valid passport that had been issued in his own name.

   g)The applicant arrived in Australia for a second time on 14 April 2011 but only applied for a protection visa on 27 July 2012, over 18 months over his visitor’s visa had expired.

3. Second, the Tribunal was not satisfied that the applicant’s claims of having experienced harm were true.  The Tribunal did not accept the applicant was detained by police twice, that he or members of his family were harassed by any person connected to his old employer, the police or Mr JW or that threats were made against the applicant while he was in Australia.  The Tribunal did not accept there was any chance the applicant would be harmed if he returned to China. In that regard, the Tribunal referred to the following:

   a)The applicant’s second wife and son continued to reside in the same house in China, despite the applicant’s claims of constant harassment and extortion since 1997.

   b)The applicant’s second wife continued to be employed by the company from which the applicant had been dismissed.

   c)The applicant was able to work and support his family throughout the time he claimed to have been subjected to persecution, first as an electrician and welder from 1997 to 2010, then in his own delivery business from 2010 up until his departure from China in January 2011.

   d)The applicant failed to provide any supporting documents that might add corroborative weight to his claims, such as police documents, employment documents and financial records.

   e)Despite the applicant’s claim that threats were made against him through his wife that he would be harmed even if he remained in Australia, those threats have not eventuated.

4. Third, the Tribunal referred to independent information to the effect that the Chinese government had targeted corruption in recent times, creating avenues for reporting corruption, and has indicated and demonstrated his intention to uncover corruption and to punish those involved.  The Tribunal noted that the applicant had not sought to pursue the contents of his previous letter through other channels, nor pursue any of the alternative avenues for reporting corruption that are now available to him. 

5. Fourth, the claimed harm and threats of harm to the applicant occurred in a limited geographical area.  The applicant, however, made no attempt to move to another area in China to avoid that harm and threats, even though, from his having made two trips to Australia and his having maintained employment, the applicant appeared to have had the capacity to move to another area in China. 

6. The Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Migration Act 1958 (Cth) (Act). The Tribunal also was not satisfied, because of the factual findings it had made, that the applicant satisfied the criteria stated in s.36(2)(aa) of the Act.

Grounds of application

1. I now turn to the grounds of application.  The applicant’s application for review states three grounds.  The first is as follows:

   Regarding to the RRT officer’s concern that my wife and son continue to reside at the same house, the fact ignored by RRT was that the house belongs to my parents.  We were unable to reside to another place based on my little salary.  Renting and buy house need money, so we had to live in H for these years and persecuted by [Mr M].

2. The applicant, who is not legally represented, made no submissions in relation to this ground.  The ground appears to be directed to the Tribunal’s finding that the applicant appeared to have had the means to move to another area of China.

3. I am not satisfied the Tribunal ignored the applicant, his second wife and the applicant’s son live and have lived at the applicant’s parents’ house.  The Tribunal referred to that fact in paragraph 14 of its reasons for decision, where the Tribunal refers to the second wife, together with the applicant’s son, living at the applicant’s parents’ house, which is the same house the applicant lived before coming to Australia. Even if, however, the Tribunal failed to consider that fact, that does not necessarily mean the Tribunal would have made a jurisdictional error.  That the applicant, his second wife and son lived with his parents was, in my opinion, insubstantial and inconsequential evidence having regard to the matters that were before the Tribunal and the matters on which the Tribunal relied for not accepting the applicant to be a witness of truth.[2]

   [2] See Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111] (Robertson J)

4. Ground 1, therefore, fails.

5. The second ground stated in the application is as follows:

   The Tribunal doubted my credibility without evidences.  It takes time to make any decisions, the delays are reasonable.  I hope my life would be peaceful as time went on, then I can live with my wife and son without going overseas.  I was forced to leave them due to my poor English level and my unwillingness to tell other people about my past, sad experiences.  I knew until July of 2012 that I could apply for protection visa.

6. The applicant made no submissions in relation to this ground.  This ground cannot be made out.  First, as my summary of the Tribunal’s reasons shows, the Tribunal based its adverse credibility assessment of the applicant on a number of matters.  It was reasonably open to the Tribunal to rely on each of those matters to conclude it could not be satisfied the applicant was a witness of truth.  Secondly, the ground appears to be intended to explain why the applicant did not leave China earlier than he did, and why he delayed in applying for a Protection visa after he arrived in Australia.  These are matters that go wholly to the merits of the applicant’s application for a Protection visa, and are matters into which this court has no jurisdiction to inquire.

7. The third ground is as follows:

   The Tribunal failed to make ‘complimentary protection’ grounds test, which was required by law.  If a person is found not to meet the refugee criterion in s.36(2)(a) he or she may, nevertheless, meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country there is a real risk that he or she will suffer significant harm:  s.36(2)(aa) (‘the complimentary protection criterion’).  I provided oral evidence and court documents to the tribunal.  There are substantial grounds for believing that there is a real risk that I will suffer significant harm if I removed from Australia to China.

8. The applicant made no submission in relation to this ground.  I did, however, ask the applicant whether he can tell me to what the intended “court documents” referred.  He said he did not know.

9. The Tribunal stated it considered whether the applicant met the complimentary protection criterion specified in s.36(2)(aa) of the Act.  It is true that the Tribunal dealt with that claim briefly.  It did so by relying on the adverse findings it had made for concluding the applicant did not meet the criterion specified in s.36(2)(a) of the Act.  It was open to the Tribunal to take this approach. The Tribunal’s not accepting the applicant was a witness of truth meant there were no facts on the basis of which the Tribunal could have been satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed into China there was a real risk the applicant will suffer significant harm. Stated another way, the factual elements of the applicant’s claims that related to whether he satisfied the criterion specified in s.36(2)(a) completely overlapped with the factual elements of the applicant’s claims as they related to whether he satisfied s.36(2)(aa) of the Act. Given that the Tribunal concluded it was not satisfied that any of those facts exist, it necessarily followed that the applicant could not have satisfied the Tribunal that either of the criteria specified in s.36(2)(a) and s.36(2)(aa) of the Act had been met. 

10. Ground 3, therefore, also fails.

11. The applicant did make one submission which did not relate to any of the grounds stated in the application.  He said he had documentary evidence of notices he had received from a hospital in China relating to his mother’s ill health. The applicant said that he intended to provide these notices both to the Department of Immigration and Border Protection (Department) and to the Tribunal, but he was told it was unnecessary for him to provide these documents.

    Ms Hillary, who appeared for the Minister, submitted it was unnecessary for the applicant to give sworn evidence about these matters because, whether they were true or not was immaterial.  That is so, Ms Hillary submitted, because the Tribunal accepted, at least implicitly, that the applicant’s mother was ill, and that that was the reason the applicant returned to China. Ms Hillary referred to paragraph 32(e) of the Tribunal’s reasons and, in particular, to the Tribunal’s conclusion that the applicant’s mother’s illness was “not sufficiently compelling … to counterbalance the inconsistency with a genuine fear of harm since the evidence is the applicant’s family was present in China to provide his mother with whatever assistance she required”.

12. I accept Ms Hillary’s submission that even if the applicant had offered to provide documentary evidence that his mother was ill and, as he claims, he was told it was unnecessary for him to provide it, that would not have demonstrated the Tribunal made any jurisdictional error.  That is so because the Tribunal had accepted the applicant’s mother was ill. I should record, however, that had the applicant given evidence to the effect of the submissions he made, I would have had difficulty accepting that he offered to provide documentary evidence either to the Department or to the Tribunal in connection with his application for a Protection visa and that he would have been told that it was not necessary for him to submit those documents.

13. For all these reasons, I am of the opinion the applicant has not demonstrated the Tribunal made any jurisdictional error.  I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 14 June 2016