FEDERAL COURT OF AUSTRALIA

SZVMF v Minister for Immigration and Border Protection [2017] FCA 838

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant must 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.

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    The applicant seeks leave to appeal from the judgment delivered and orders made by a Judge of the Federal Circuit Court of Australia (FCC) on 18 November 2016: see SZVMF v Minister for Immigration and Border Protection [2016] FCCA 3286 (SZVMF v MIBP). Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), the primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal) affirming a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection (Class XA) visa.

2    The primary judge’s decision is interlocutory and accordingly leave to appeal is required: see r 44.12(2) of the FCC Rules.

3    On an application for leave to appeal, the applicant must show that there is sufficient doubt as to the correctness of the primary judge’s decision to warrant review by an appeal court and, further, if that decision is assumed to be wrong, that substantial injustice would result if leave were not granted.

4    For the reasons which follow, the application is dismissed with costs.

Primary judge’s reasons

5    The applicant’s claims for protection, the procedural background and the Tribunal’s findings were summarised by the primary judge in SZVMF v MIBP as follows:

3.    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).

4.    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.

5.    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.

6.    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.

7.    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).

8.    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).

9.    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).

10.    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).

11.    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).

12.    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).

6    The applicant’s grounds for review of the Tribunal’s decision were set out at [13] of SZVMF v MIBP as follows:

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.

7    The Minister sought a hearing of the application under r 44.12 of the FCC Rules on the basis that the application did not raise a legally arguable case for the relief it sought under s 476 of the Migration Act 1958 (Cth). The applicant rested on the grounds of his application and made no further submissions: SZVMF v MIBP at [1], [15], [17] and [19].

8    The primary judge observed that the applicant’s grounds are a narrative of disagreement with findings of fact, including findings on credibility, made by the Tribunal. His Honour found that there was no legal error, given that the Tribunal’s conclusion and the findings that informed the conclusion were reasonably open to it to make and the Tribunal gave cogent reasons for that conclusion and those findings,. Based on what was before him, the primary judge found that the Tribunal acted within jurisdiction in relation to relevant factual findings and it was reasonably open to the Tribunal to reject the entire factual basis of the applicant’s claims, given the Tribunal’s comprehensive adverse credibility findings.

9    As the applicant was not legally represented at the FCC hearing, the primary judge determined to take “the most liberal view” of the grounds.

10    The primary judge found that if ground one sought to impugn the Tribunal’s questioning of him, the applicant had not provided evidence of what occurred at the hearing (such as a transcript) despite being given the opportunity to do so and having a long time in which to do it. The primary judge found nothing in the Tribunal’s account of its proceedings which suggested any failure of procedural fairness arising from its questioning of the applicant. On the evidence, the applicant was given a meaningful opportunity to give evidence and present arguments. Having regard to the inquisitorial nature of the Tribunal’s proceedings, the Tribunal did not err by testing the applicant’s evidence, even vigorously, at the hearing. Further, despite the opportunity to do so, no meaningful particulars were provided by the applicant of the “unfairness” alleged in grounds one and three.

11    The primary judge found that ground two could not 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 part) from the evidence he gave at the hearing. For reasons previously given, that ground did not warrant the matter going to a final hearing. The primary judge observed that it was 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 in issue. On the evidence before the primary judge, the Tribunal discussed with the applicant the issues dispositive or determinative of the review, being the inconsistency in his evidence and claims. His Honour concluded that none of the grounds in the application to the Court raised any legal argument such as to suggest some legal merit in the application.

12    For completeness, the primary judge found that the Tribunal’s reliance on the delegate’s decision record fell within the exemption from s 424A(1) by reason of compliance with s 424A(3)(b) as the decision record was provided to the Tribunal by the applicant. Insofar as the Tribunal made reference to the applicant’s visitor’s visa on which he used to come to Australia, the primary judge accepted the Minister’s submission that that material did not, in its terms, contain a “rejection, denial or undermining” of the applicant’s claims and it was therefore not “information” for the purposes of s 424A. The primary judge also noted that the hearing invitation complied with all relevant statutory and regulatory requirements.

13    The primary judge ultimately found that there was no arguable case raised by the grounds in the application for relief.

Application for leave and notice of appeal

14    On 1 December 2016, the applicant filed the application for leave to appeal containing the following grounds (as written):

1.    The Federal Circuit Court made an error in make the order

2.    The AAT made error in making the decision.

15    His affidavit in support filed on the same day stated (as written):

1.    I am the applicant.

2.    I believe that the federal Circuit court made an error in making the order.

3.    I want to have the application consider with oral argument

16    The grounds of the applicant’s draft notice of appeal are (as written):

1.    The Federal Circuit Court made an error in making the order

2.    The Federal Circuit Court did consider my claim but dismissed my apperal and this was not fair to my appeal

17    The hearing of the application for leave to appeal was conducted with the assistance of an interpreter in the Mandarin language.

18    At the hearing, the Minister’s legal representative handed up a copy of the draft notice of appeal and the applicant confirmed that the draft was the one he had provided to the Minister. I directed that a copy of the draft notice of appeal be included in the Court’s file.

19    The applicant’s grounds of both the application for leave and the draft notice of appeal are unparticularised. Although the Court invited the applicant to address the grounds of his application for leave and the draft notice of appeal, the applicant declined to elaborate on the grounds or provide any submissions in support of his application.

20    Having reviewed the Tribunal’s decision record and the primary judge’s reasons, and in light of the unparticularised nature of the grounds of both the application for leave and the draft notice of appeal, the applicant has not discharged the onus on him to demonstrate that there is sufficient doubt as to the correctness of the primary judge’s decision to warrant review by an appeal court or that substantial injustice would result, assuming that decision to be wrong.

Disposition

21    The application is dismissed and the applicant must pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    25 July 2017