SZXTU v Minister for Immigration and Border Protection

[2015] FCA 1210

FEDERAL COURT OF AUSTRALIA

SZXTU v Minister for Immigration and Border Protection [2015] FCA 1210

Citation:	SZXTU v Minister for Immigration and Border Protection [2015] FCA 1210
Appeal from:	SZXTU v Minister for Immigration and Border Protection [2015] FCCA 2080
Parties:	SZXTU and SZXTV v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 928 of 2015
Judge:	FARRELL J
Date of judgment:	9 November 2015
Legislation:	Migration Act 1958 (Cth) s 420 Migration Regulations 1994 (Cth)
Cases cited:	Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 SZXTU v Minister for Immigration and Border Protection [2015] FCCA 2080
Date of hearing:	9 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	29
Counsel for the Appellants:	The appellants appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms B Griffin of Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 928 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZXTU
First Appellant

SZXTV
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	9 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 928 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZXTU
First Appellant

SZXTV
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	9 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 24 July 2015. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 30 January 2014: SZXTU v Minister for Immigration and Border Protection [2015] FCCA 2080 (“SZXTU”). The Tribunal affirmed a decision of a delegate of the Minister made on 23 November 2012 to refuse the appellants Protection (Class XA) visas.

   BACKGROUND

2. The appellants are husband and wife and citizens of the People’s Republic of China. They arrived in Australia on 23 April 2009 on tourist visas which expired on 2 May 2009. The appellants remained in Australia until 23 January 2012, at which time the wife lodged a protection visa application including her husband as a member of her family unit.

3. The basis for the appellants’ claim for protection is summarised in SZXTU as follows (references to the court book filed in the Court below omitted):

   [5] Included with the [wife’s visa] application was a “personal statement” made by the applicant. She claimed that she and her husband had developed and owned a rice wine business in [a province in] China. The applicant asserted that due to “the government’s persecution” the applicants “lost the winery” and were forced “to escape from China and come to Australia”.

   [6] The applicant claimed that due to the success of the business, the “town government wanted to merge our factory to be Town owned enterprise”. The applicant described the conduct of town officials who, on the premise of facilitating a takeover of the business, accused and fined, the applicant “RMB $60,000” for tax evasion. The applicant claimed that following the fine “the secretary ... and the head of town ... came up with the new idea and told us they wanted to redesign the land and we had to relocate our winery”, and on 4 June 2008 “the government gave... notice to stop our winery within a month or the government would order relevant departments to take over winery by force”.

   [7] The applicant claimed that in response to the decision she sought to appeal to [the local] government, and was subsequently accused of “spreading propaganda against the local government” and threated with imprisonment. She claimed that on 23 July 2008 the applicants were detained and interrogated by local police and her husband beaten. The town government took control of the applicants’ business without payment of compensation. The applicants sought appeal.

   [8] The applicant also claims that both she, and her husband, had actively voiced their opposition to the government and claimed to have signed, in December 2008, the “Charter 08”, an online petition regarding human rights and democratic reforms in China. The applicant claimed that the local authorities were aware of their involvement and on 25 December 2008, while again seeking appeal, the applicants were informed by a neighbour that the police had sealed off their house. Subsequently, the applicants were fearful of being detained and made arrangements to depart China. Following arrival in Australia on 23 April 2009, the applicant contacted her parents who informed her that there were criminal charges against the applicant and her husband and they were now wanted by the authorities.

   [9] The applicant further asserts that until the application of 23 January 2012, she was unaware of the existence of protection visas, hence the delay in application.

4. The wife attended an interview with a delegate of the Minister on 10 May 2012. On 23 November 2012, the delegate refused to grant the appellants protection visas because he was not satisfied that they were people to whom Australia owed a protection obligation under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth).

   TRIBUNAL DECISION

5. The appellants applied to the Tribunal for review of the delegate’s decision on 24 December 2012. The wife attended a hearing before the Tribunal on 31 October 2013; her husband did not attend although he had been invited to the hearing. The Tribunal affirmed the delegate’s decision on 30 January 2014 and set out its reasons in a Statement of Decision and Reasons (“Decision Record”).

6. The Tribunal determined that the wife was not a credible witness having regard to “various internal inconsistencies in her claims as well as her evasive, implausible, and changing evidence, and other concerns”: Decision Record at [14]. The Tribunal identified ten instances of the wife’s evidence on the basis of which it formed this view which are discussed in considerable detail at [15]-[38] of the Decision Record.

7. The wife had also provided documentation in support of her claim, including “a land lease contract, a taxation administrative penalty decision letter, a certificate for health and hygiene, a Bank of China loan guarantee contract, Hainan Country Hospital discharge report …, Notice to Halt Business Protection, Enterprise Legal Person Business License”: Decision Record at [39]. Although the documentation was “generally consistent” with the wife’s claims, the Tribunal did not accept that the documentation was genuine based on its concerns about the Bank of China loan documentation and the wife’s evidence concerning the identity of the guarantor and her conflicting evidence concerning the Notice to Halt Business Production, adverse findings concerning the wife’s credibility and country information indicating that fraudulent documents are widely available in China: Decision Record at [40].

8. Having made a finding adverse to the wife’s credibility, the Tribunal rejected the wife’s claims and was therefore not satisfied that she had a well-founded fear of persecution by the authorities in China or other groups or persons were she to return to China now or in the reasonably foreseeable future: Decision Record at [46].

9. In relation to the husband’s failure to attend the hearing with the Tribunal, the wife provided a medical certificate stating that he was unfit for “interview” “from 31 October 2013 to 31 October 2013 inclusive”: Decision Record at [51]. No reason or diagnosis explaining why the husband could not attend was provided. No request to reschedule or adjourn the hearing was received. No submissions were received by the husband after the hearing. The Tribunal had reservations about the husband being unable to attend the hearing: Decision Record at [53]. The Tribunal was satisfied that the husband had been provided with an opportunity to present arguments and give evidence in accordance with s 425 of the Migration Act, and on that basis considered it to be appropriate to proceed to making a decision. On the material available, the Tribunal was not satisfied that the husband was a person to whom Australia owed a protection obligation: Decision Record at [55].

   FEDERAL CIRCUIT COURT DECISION

10. The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 28 February 2014. The wife appeared at the hearing on 24 July 2015 in person; the primary judge noted that the husband was present in the precincts of the Court but that the wife had indicated that she would speak on his behalf: SZXTU at [27].

11. The application was based on three grounds (as written):

    1. The Refugee Review Tribunal (the Tribunal) did not review my case with care and justice. Although the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts, the concept of onus of proof is not appropriate to administrative inquiries and decision-making. In this case, I gave evidence about the guarantor of the loan (used to build the factory), and explained the reason of inconsistent with the loan document. This was ignored by the Tribunal.

    2. The Tribunal unfairly refused my evidence about my political activities. The Tribunal should have examined my political opinion with fairness. My name was placed on the Charter 08 blacklist and that I was subject to police interrogation on this basis. I had been placed on the blacklist by authorities in 2008 for having signed the Charter online. Also I evidenced how I knew my names was on the blacklist because the police came to interrogate me about it at that time.

    3. Tribunal did not carefully consider the alternative criterion in s.36(2)(aa). There is a real chance of we being harmed if we were to return to China. We were afraid of revenge from the local authorities in China. I provided the evidence that the police had come to my parents and asked for us. We were told to return to China and report to the police voluntarily as we had criminal charges against us. The evidence showed if we return back to China within 10 years, the police would arrest us and wouldn’t release us for 10 years. The police and the village government will persecute us if we return back to China.

12. The primary judge considered and dismissed each ground in turn.

13. In relation to ground one, the primary judge found first that insofar as the words “did not review my case with care and justice” alleged a breach of s 420 of the Migration Act, such a breach could not establish jurisdictional error for the reasons expressed by French CJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [12]: SZXTU at [38]. Second, the primary judge determined that if the appellants were complaining about being denied procedural fairness, such a claim was not made out on what was presented to the Court: SZXTU at [38]. The appellants were invited to a hearing before the Tribunal and the wife attended to make arguments and give evidence. The Tribunal raised with the wife the issues relevant to the review. The husband was aware of the hearing but did not attend and did not seek an adjournment. Finally, the primary judge addressed the assertion in the ground that the Tribunal ignored the wife’s evidence concerning the claimed bank loan and the guarantor for the bank loan. The primary judge found that on any plain reading of the Tribunal’s Decision Record, the wife’s complaint was not that the Tribunal ignored her evidence, but rather that the Tribunal did not accept her evidence: SZXTU at [41]. In his Honour’s view, the relevant findings were reasonably open to the Tribunal to make.

14. The primary judge rejected ground two because he found that the Tribunal did consider the wife’s claim with respect to her political activities and that she had been placed on the “Charter 08 blacklist”: SZXTU at [43]. The primary judge found that the Tribunal’s findings were reasonably open to it; the Tribunal rejected the truthfulness of this claim based on the wife’s own evidence provided to it as well as available country information.

15. Finally, regarding ground three, the primary judge held that there was no legal error apparent in the way that the Tribunal considered the complementary protection criterion in relation to both appellants: SZXTU at [44]-[47].

    APPEAL TO THIS COURT

16. The appellants filed a notice of appeal from the Federal Circuit Court’s decision on 7 August 2015. The appellants have six grounds of appeal (as written):

    1.   The Tribunal failed to consider the complementary protection in my case.

    2.   RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

    3.   Tribunal unfairly refused to offer me protection saying my case was not covered by the Convention.

    4.   The Tribunal under evaluated the risk of serious harm that I will face if going back to China.

    5.   The Refugee Review Tribunal (the Tribunal) did not review my case with care and justice. Although the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts, the concept of onus of proof is not appropriate to administrative inquiries and decision-making. In this case, I have evidence about the guarantor of the loan (used to build the factory), and explained the reason of inconsistent with the loan document. This was ignored by the Tribunal.

    6.   The Tribunal unfairly refused my evidence about my political activities. The Tribunal should have examined my political opinion with fairness. My name was placed on the Charter 08 blacklist and that I was subject to police interrogation on this basis. I had been placed on the blacklist by the authorities in 2008 for having signed the Charter online. Also I evidenced how I knew my name was on the blacklist because the police came to interrogate me about it at that time.

17. Both appellants filed affidavits in support of their notice of appeal. They provided no written submissions in support of their appeal. While both of the appellants appeared, the husband indicated that he would rely on his wife’s submissions and withdrew to the Court precincts with their young child.

18. The Minister filed written submissions and appeared by his representative at the hearing.

    CONSIDERATION

    Ground 1

19. The wife made no submission in relation to the first ground of appeal. She indicated that the grounds of appeal had been prepared by a lawyer and she did not really understand them.

20. I accept the Minister’s submission that the primary judge correctly found that the Tribunal had considered the complementary protection criterion and had concluded that the appellants did not satisfy it for the reasons given at [47]-[48] and [57] of the Decision Record: see SZXTU at [45]-[47]. Insofar as the Tribunal relied on factual findings made earlier in its reasons to arrive at that conclusion, no error is revealed in the approach of the Tribunal or in the finding of the primary judge.

    Grounds 2 and 3

21. Although ground 2 as pleaded did not contain any particulars, the wife submitted that the Tribunal erred by failing to undertake any verification of the documents which she provided in support of her claims. In relation to ground 3, the wife submitted that the Tribunal failed to afford the appellants the protection of the Refugee Convention on the basis of its rejection of the documentation provided by the wife.

22. I accept the Minister’s submission that the Tribunal had no obligation to undertake a verification process in relation to the documents provided by the wife in support of her application and the wife’s objections rise no higher than a challenge to the merits of the Tribunal’s decision.

23. The Tribunal provided detailed reasons for its findings that the documents provided by the wife in relation to the Bank of China loan documentation and the Notice to Halt Business Production were not genuine: see Decision Record at [15]-[18] and [25]-[26]. It relied on its concerns about those two documents and on its findings as to the credibility of the wife’s evidence and country information to find that the documents produced by the wife were not genuine: Decision Record at [40]. In my view, these findings were open to the Tribunal for the reasons which it gave.

24. Further, in my view there is no appellable error in the primary judge’s findings that the Tribunal did not fail to afford procedural fairness to either of the appellants. The Tribunal did not fail to evaluate properly the complementary protection claims for the reasons given in SZXTU at [30]-[36] and [45]-[47].

    Grounds 4 and 5

25. Grounds 4 and 5 repeat the first and second grounds of the application to the Federal Circuit Court.

26. The wife explained that she received text messages from the Bank of China and Chinese police soon after arriving in Australia; the messages threatened that the appellants would be pursued even if they returned to China after ten years. The wife said that she did not keep those messages because she did not understand that she would need them as evidence in relation to a protection visa application, the process for which she only came to understand after two years in Australia. She also explained her husband’s non-appearance before the Tribunal based on injuries he received in a car accident in 2013.

27. Neither of these submissions advance grounds 4 or 5. I perceive no error in the Tribunal’s treatment of the wife’s evidence in relation to the Bank of China loan documentation or her evidence concerning being placed on the Charter 08 blacklist at [16]-[18] and [27]-[31] of the Decision Record. I also perceive no error in the primary judge’s consideration of these grounds at SZXTU at [38]-[41] and [43].

    CONCLUSION

28. The grounds raised by the appellants do not identify any arguable case of appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal.

29. I will dismiss the appeal. I will order that the appellants pay the first respondent’s costs as agreed or taxed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:       16 November 2015