WZATK v Minister for Immigration & Border Protection

[2014] FCA 1174

FEDERAL COURT OF AUSTRALIA

WZATK v Minister for Immigration and Border Protection [2014] FCA 1174

Citation:	WZATK v Minister for Immigration and Border Protection [2014] FCA 1174
Appeal from:	WZATK v Minister for Immigration & Anor [2014] FCCA 1344
Parties:	WZATK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	WAD 220 of 2014
Judge(s):	SIOPIS J
Date of judgment:	5 November 2014
Date of hearing:	3 November 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	24
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the First Respondent:	Mr P Corbould
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 220 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

WZATK
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	5 NOVEMBER 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 220 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

WZATK
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	5 NOVEMBER 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 27 June 2014, dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 13 August 2011 on a Visitor (Class TR 676) visa.  On 11 November 2011, the appellant lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a Protection (Class XA) visa.

3. The appellant claimed that the authorities would harm him if he returned to China.  The appellant referred to a number of circumstances which gave rise to his fear of persecution.  He said that he had been in the Army and he was involved in the killing of innocent civilians which, he said, was covered up by the authorities, and which he threatened to disclose.  Further, he said that whilst in the Army he observed and reported corruption amongst the higher ranks.  The appellant said that he was then demoted and later Chinese Army officers tried to kill him when his car was forced off a cliff after he refused to accept money to maintain his silence after discovering the corruption.  He said he was seriously hurt when his car plummeted from the cliff, and he was saved by a local farmer.  He then deserted the Army and as a consequence the Army officers detained and tortured his parents.  This caused him to give himself up and he was then discharged from the Army.  He said that his parents had died within a short time of each other as a consequence of the torture.  After he left the Army, the appellant worked for a while in a factory.  Then, said the appellant, he and his wife started up a dog farm.  However, the local council without just cause closed his business down and also put the dogs down in front of him.  He said that he was gaoled for three months for trying to resist the local council putting down the dogs.  The appellant said that in April 2009 his wife was forced to have an abortion.  This was performed on her unknowingly after going to the hospital for a routine pregnancy check-up.

   THE TRIBUNAL

4. On 6 December 2012, a delegate of the first respondent rejected the appellant’s protection visa application.

5. The appellant sought review of the delegate’s decision before the Tribunal.  Before the Tribunal, the appellant gave oral evidence and relied upon a number of documents to support his claims.

6. The Tribunal rejected the appellant’s claim of a well-founded fear of persecution on credibility grounds.  The Tribunal made comprehensive adverse credibility findings against the appellant.  The Tribunal said that it had concerns about the inconsistencies, changes to the appellant’s written and oral evidence, his inability to provide credible explanations for aspects of his claims and gaps in his claims.  After considering his evidence, the Tribunal found the appellant was not credible and was not a witness of truth.  The Tribunal found that the events giving rise to his claimed fear of persecution relied on by the appellant, had not occurred.  The Tribunal found that, as a consequence, it was not satisfied that the appellant had a well-founded fear of persecution for any Convention reason, nor that there was a real risk that he would fear significant harm if he returned to China.

   THE FEDERAL CIRCUIT COURT

7. The appellant brought an application for judicial review of the decision of the Tribunal to the Federal Circuit Court.  The appellant’s amended grounds of review were:

   1.The Refugee Review Tribunal was or appeared to be biased against me in making the decision.

   (a)In paragraph 15 of the decision, the Tribunal found the applicant to be clearly an intelligent, quick-witted man who was able to explain away inconsistencies put to him.  To be honest, I do not think that I am the person as the Tribunal describe.  I just tell the truth about what happened to me when I was in China.

   (b)In paragraph 15 & 20 of the decision, the Tribunal found the applicant is not a credible witness.  I do not think the Tribunal understand the real situation in China.

   2.The Refugee Review Tribunal has ignored relevant considerations in making the decision.

   (a)In paragraph 23 & 26 of the decision, the tribunal does not accept the applicant’s claim that they tried to kill me because I reported their corruption activities. I do believe the Tribunal [is] short of knowledge about the corruption in China.

   (b)In paragraph 27 of the decision, the Tribunal found the applicant over exaggerated the claim about the harm to my parents.  I just tell the truth about what happened to my parents.

   (c)In paragraph 31 & 32 of the decision, I believe the Tribunal made her judgement depending on incorrect country information.

8. On 27 June 2014, the Federal Circuit Court dismissed the appellant’s application for judicial review.  The primary judge’s decision is detailed and comprehensive, and carefully addresses each of the grounds of review.

   THE APPEAL

9. The appellant has set out two grounds of appeal in his notice of appeal which are in the same terms as to the grounds in the amended application before the Federal Circuit Court.

10. During the oral hearing, the appellant demonstrated no familiarity with the grounds of appeal in the notice of appeal.  However, I have treated the notice of appeal as contending that the primary judge erred in dismissing each of the grounds of review identified by the primary judge.

    The first ground of appeal

11. The primary judge held that there was no evidence before the court to support the appellant’s contention in respect of bias, and that the particulars relied upon by the appellant complained of adverse credibility findings.  The primary judge found that adverse credibility findings do not of themselves demonstrate bias.  The primary judge also found that the making of credibility findings was squarely within the jurisdiction of the Tribunal, and the findings were open to the Tribunal.  Further, the primary judge held that insofar as the appellant complained about the Tribunal’s findings in relation to country information, the choice and weight to be placed on country information was a matter for the Tribunal.

12. In my view, the primary judge did not err in coming to this conclusion.

13. The first ground of appeal is dismissed.

    The second ground of appeal

14. The primary judge observed that although the ground of review relied on was a failure to take into account relevant considerations, the appellant’s particulars did not support such a claim.  Accordingly, the primary judge treated the ground of review as a claim that the Tribunal did not have regard to two of the claims made by the appellant.

15. In subpara (a) and subpara (b) of his particulars, the appellant referred to two claims:  namely, that the Army officers tried to kill him by running his car off a cliff; and that his parents had been tortured by the Army and had died as a consequence.  The primary judge held that the Tribunal did consider each of those two claims, but had, on the evidence, rejected the appellant’s contentions that those events occurred.  There was, therefore, no jurisdictional error, held the primary judge, because the making of these findings of fact was a matter for the Tribunal.

16. In my view, the primary judge did not err in coming to this decision.  It is plain that the Tribunal considered, but rejected those allegations made by the appellant.  It was open to the Tribunal to reject the allegations for the reasons which it gave.

17. As to subpara (c), that complaint again relates to the acceptance by the Tribunal of country information.  Part of subpara (a) also makes the same complaint.  The primary judge held that the deployment and assessment of country information was a matter for the Tribunal and, therefore, the appellant had not demonstrated that the Tribunal had fallen into jurisdictional error.  In any event, said the primary judge, the appellant had not identified any other country information, nor the respects in which the country information relied on was incorrect.

18. In my view, the primary judge did not err in his findings.

19. The second ground of appeal is dismissed.

20. During oral argument, the appellant raised three further matters.

21. First, the appellant claimed that the primary judge was biased.  This was not a ground of appeal in the notice of appeal.  This is a serious allegation and no evidence was sought to be tendered by the appellant in support of the allegation.  I ruled that the appellant could not advance that contention on appeal.

22. Secondly, the appellant complained that the primary judge had not provided the appellant with a lawyer.  There is no entitlement to the appointment of legal counsel and there is no substance in this complaint.

23. Thirdly, the appellant complained that notwithstanding that he was indigent, the primary judge had made a costs order against him.  No error was demonstrated by the primary judge making a costs order against the appellant.  The fact that the appellant is indigent, and cannot afford to pay the costs order, does not demonstrate that the primary judge erred in making the costs order he made.

24. It follows that the appeal is dismissed with costs.

I certify that the preceding twenty‑four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       5 November 2014