SZTBO v Minister for Immigration

[2013] FCCA 1790

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1790

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424AA

Applicant: SZTBO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1628 of 2013

Judgment of: Judge Driver

Hearing date: 1 November 2013

Delivered at: Sydney

Delivered on: 1 November 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms L Buchanan

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1628 of 2013

SZTBO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 14 June 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant, who was 42 years old at the time of the Tribunal decision, is from Chongqing in China.  He came to Australia on a visitor visa on 2 February 2012.  On 20 March 2012 he applied for a protection visa.  The Minister’s delegate interviewed the applicant on 2 July 2012 with the assistance of a Mandarin interpreter.  The delegate refused the application on 5 November 2012. 

3. On 30 November 2012 the applicant sought review of that decision before the Tribunal.  The Tribunal records that he provided no additional material with that review application[1].  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing[2].  The applicant attended the hearing via video conference on 24 May 2013. 

   [1] Court Book (CB) 110 at [4]

   [2] CB 85

4. The applicant claimed that he was persecuted and threatened with harm to him and his parents after he reported a supervisor at a state-owned factory of bribery.  He was only able to do casual work after that and felt depressed.  He began to do qigong classes in a park and later realised it was Falun Gong.  After Falun Gong was declared a cult he practised in secret.  It October 2004 he and four others were arrested for posting Falun Gong flyers.  He was tortured while in police custody and only released a month later after his family paid what was described as a “guarantee deposit”.  He went into hiding.  He continued to practise Falun Gong exercises.  He attempted to travel to Japan in 2005 but was unsuccessful.  He was refused a Canadian visa in 2009.  In 2012 a friend told the applicant that he had been reported to the police as a Falun Gong practitioner and for slandering the government.  The applicant then came to Australia with his wife.  His wife returned to China to be with their daughter.  The applicant claims that they are living away from home and are being intimidated by the police to get the applicant to return to China[3]. 

   [3] CB 110 at [1]

5. The applicant had the misfortune to be represented by a migration agent who was deregistered prior to the Tribunal hearing.  That issue was discussed with the applicant at the hearing, and the Tribunal records that discussion at [6] of its reasons[4]. The Tribunal specifically asked the applicant if his agent had fraudulently prepared his protection visa application. The applicant replied in the negative. During the hearing the Tribunal discussed with the applicant credibility concerns the Tribunal had about his claims. The Tribunal put to the applicant inconsistencies in his evidence at the hearing and during his interview with the Minister’s delegate, pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act). The Tribunal found the applicant’s oral explanations for those inconsistencies to be implausible or unconvincing[5]. 

   [4] Court Book (CB) 111

   [5] CB 117 at [19]

6. The Tribunal concluded in its reasons that the applicant had fabricated his claims and was not a Falun Gong practitioner.  The Tribunal rejected all of the applicant’s claims based upon his asserted Falun Gong practice. 

7. The Tribunal considered the possibility that the applicant might have an implied claim of imputed political opinion related to anti-corruption activities.  The Tribunal was not satisfied, however, that the applicant has suffered serious harm because of any anti-corruption political opinion[6]. 

   [6] CB 118 at [20]

8. The Tribunal further found that the applicant did not qualify for complementary protection.  This was also on the basis of the Tribunal’s rejection of the applicant’s factual claims[7]. 

   [7] CB 119

9. The proceedings began with a show cause application filed on 17 July 2013.  The applicant continues to rely upon two unparticularised grounds in that application:

   1.      My evidence was not considered seriously by RRT

   2.     Decision made by RRT is not fair to me

10. I received the affidavit of the applicant made on 15 July 2013, which he filed in support of that application.  The affidavit is in part a recitation of uncontentious facts.  It is also in part a submission. 

11. I also have before me the book of relevant documents filed on 19 August 2013. 

12. In his oral submissions, the applicant asserted that the Tribunal proceeding was unfair because of interpretation problems.  I initially understood the applicant to be complaining about inadequate translation of his written claims annexed to his protection visa application[8].  The applicant explained that he had written his claims in Chinese and his migration agent had translated them into English.  When pressed on that issue, the applicant explained that his concern was not with that translation, but with the standard of interpretation at the hearing conducted by the Tribunal.  I asked the applicant to identify examples of issues that had not been properly interpreted.  He raised two issues.  The first was the Tribunal’s concern about inconsistent evidence concerning his distribution of flyers.  The applicant asserted that the Tribunal did not understand his explanation for the apparent inconsistency.  That is dealt with in the Tribunal’s reasons at [18(ii)][9].  That satisfies me that the Tribunal did understand the applicant’s explanation for the inconsistencies, but it did not accept his explanation. 

    [8] CB 36-38

    [9] CB 115

13. Secondly, the applicant said that the Tribunal did not understand his explanation about a timing issue surrounding Chinese New Year in 2012.  The applicant had claimed a key event occurred around Chinese New Year, whereas it had occurred several months before.  He explained that Chinese New Year celebrations start several months before the actual day.  Again, the Tribunal’s reasons at [18(g)][10] satisfy me that the Tribunal understood the applicant’s explanation.  However, the Tribunal did not accept the explanation.

    [10] CB 117

14. The applicant also expressed concern that the Tribunal rejected his claims concerning his physical injuries.  He showed me his left elbow, which he said was broken, and that has resulted in excessive movement in the elbow.  He also displayed his hand, which he said bears scars from five knife cuts.  The issue of the applicant’s physical injuries was discussed at [7][11] of the Tribunal’s reasons.  At [19][12], the Tribunal accepted that the applicant has suffered injuries to his arm, but rejected the claim that those injuries were caused by the police because the applicant is a Falun Gong practitioner.  I see no arguable case of error in relation to the way the Tribunal dealt with that issue.

    [11] CB 111

    [12] CB 117

15. The applicant also asserted that he is concerned about his wife and child in China and that he has no reason to stay in Australia, apart from his fear of harm in China. The applicant maintained that he has been a law abiding resident in Australia, and appealed for a humanitarian consideration of his claims. While I have sympathy for his position, he has been unable to demonstrate an arguable case of jurisdictional error by the Tribunal. In these circumstances I have concluded that the proper approach is to dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

16. In consequence of the dismissal of the application the Minister seeks an order for costs.  The applicant continued to assert what he sees as the unfairness of the Tribunal’s decision, but did not make any submissions on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

17. I will order that the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 November 2013