SZTDA v Minister for Immigration

[2014] FCCA 172

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 172

Catchwords:
MIGRATION – Application for judicial review of decision of the Refugee Review Tribunal – whether Tribunal considered applicant’s claim – whether Tribunal acted unreasonably in not accepting applicant to be worthy of credit – no jurisdictional error.

Applicant: SZTDA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1738 of 2013

Judgment of: Judge Manousaridis

Hearing date: 27 November 2013

Delivered at: Sydney

Delivered on: 7 February 2014

REPRESENTATION

The Applicant in person.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1738 of 2013

SZTDA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of the People’s Republic of China, applied for a protection visa, claiming that he is a Falun Gong practitioner and, on that count, a fear of persecution if he returned to China. A delegate of the first respondent (Minister) rejected the claim, and the second respondent (Tribunal) affirmed the delegate’s decision. The Tribunal affirmed the delegate’s decision principally because it was not satisfied the applicant was truthful.

2. The applicant, who is not legally represented, now seeks judicial review of the Tribunal’s decision to affirm the delegate’s rejection of the applicant’s claim for a protection visa. Before I consider the grounds on which the applicant relies, it will be necessary to set out the applicant’s claim for protection and the Tribunal’s reasons for rejecting that claim.

Claim for protection

1. In his application for protection,[1] the applicant claimed that sometime before January 2012 he practiced Falun Gong in China with the result that it improved various ailments from which he was then suffering. After travelling overseas, where he learned the truth about the death of Jiang Zemin, the applicant informed his family about what he saw. Later, on 2 January 2012, two police officers, in civil clothes, came to the applicant’s house and took him away to a place unknown to the applicant. The officers there attempted to extort a confession from the applicant that he was a Falun Gong practitioner and, in the process, one of the officers poured hot water on the applicant. The officers released the applicant, but before doing so, made the applicant understand he would be in “even bigger trouble” if he continued to practice Falun Gong. The applicant, fearful of being detained again, arranged to leave China on 19 February 2012, and arrived in Australia on 20 February 2012.

   [1] CB35

Tribunal’s decision

1. The Tribunal identified as the dispositive issue before it whether the Tribunal was “satisfied that the applicant has told the truth about his claim to fear harm in China if he were to return”.[2] The Tribunal was not satisfied, finding instead that the applicant “fabricated his claim to have been a Falun Gong practitioner in China”.[3]

   [2] CB107 [21]

   [3] CB109 [27]

2. The Tribunal relied on a number of matters for its conclusion. These included the following:

   a)The applicant held a Chinese passport and held an Australian visa at the time the applicant claims he was detained and mishandled (2 January 2012), yet he did not leave China until 19 February 2012.[4]

   b)The applicant’s passport had not been cancelled which is what is likely to have happened had the applicant been detained because he was a Falun Gong practitioner.[5]

   c)Country information suggested it is unlikely that the applicant would not have been subjected to more serious punishment or treatment than that which the applicant claims he suffered.[6]

   d)The applicant did not seek protection until 17 May 2012, three days before his lawful authority to remain in Australia would have lapsed, and the applicant gave an implausible explanation for the delay.[7]

   e)The applicant provided no corroborating evidence of his practising Falun Gong in China[8] or in Australia.[9]

   f)The applicant did not commence to practice Falun Gong in Australia until 4-8 weeks after he arrived in Australia.[10]

   g)The applicant demonstrated a shallow knowledge of Falun Gong which lacked “emotional resonance and depth of commitment”.[11]

   [4] CB109 [28a.]

   [5] CB109 [28c.]

   [6] CB109 [28d.]

   [7] CB109 [28e.-28f.]

   [8] CB109 [28g.]

   [9] CB110 [28h.]

   [10] CB110[28i.]

   [11] CB110[28j.]

3. The Tribunal also concluded that it was not satisfied that the applicant’s Falun Gong activities in Australia had been engaged in for any reason other than to strengthen his protection claim.

Grounds of Review.

1. The application contains the following grounds of review.

   1.I disagree with Immigration and RRT’s decision since I am a genuine Falungong [sic] member. They did not consider that I will be in danger if I return.

   2.RRT did not consider that I am still actively practicing [sic] in Australia and it will also bring me a big trouble if I return home.

   3.RRT unreasonable [sic] suspect of the truthfulness of my claims just because of the absence of the evidence.

2. The only oral submissions the applicant made in support of grounds 1 and 2 were that those grounds stated the truth. In relation to ground 3, the applicant stated he minimised contact with family members over the internet because he was worried they might get into trouble.

Ground 1

1. The first sentence of the first ground does not raise any arguable ground of jurisdictional error. It only expresses the applicant’s disagreement with the Tribunal’s decision. This Court does not have jurisdiction to consider whether the Tribunal’s decision was correct; the Court’s role is to determine whether the decision the Tribunal made was infected with jurisdictional error.

2. The second sentence of ground 1 also does not raise an arguable case of jurisdictional error. It assumes that the Tribunal accepted the applicant’s claim that he was and has been a Falun Gong practitioner and, for that reason, the Tribunal was required to consider whether the applicant would face danger if he returned to China. That assumption is incorrect. The Tribunal did not accept the applicant was or ever had been a Falun Gong practitioner as the applicant claimed he was.

Ground 2

1. This ground, if correct, does raise an arguable ground of jurisdictional error. However, it is not correct. The Tribunal questioned the applicant about his Falun Gong activities in Australia, considered those answers, and concluded, among other things, that the applicant had a shallow knowledge of Falun Gong and it was not satisfied that the applicant’s Falun Gong activities in Australia had been engaged in for any reason other than to strengthen his protection claim.

Ground 3

1. This ground does not raise an arguable case of jurisdictional error. Although unreasonableness or, at least, a certain degree of unreasonableness may in some circumstances constitute jurisdictional error, ground 3 does not disclose any basis for concluding the Tribunal acted unreasonably in not accepting that the applicant was worthy of credit. In any event, on the evidence the Tribunal identified in its reasons, it was reasonably open to the Tribunal not to accept the applicant as a witness of truth, and to affirm the delegate’s decision for that reason.

Other submissions

1. The applicant made other submissions at the conclusion of the hearing. He submitted that in rejecting the applicant’s claim on the grounds that he was lying and fabricating, the Tribunal used “quite severe words – quite serious words”. He also submitted that the Minister’s lawyer may not have a good understanding of the circumstances in China in that it was not only the Falun Gong practitioner who would face persecution; so too would the practitioner’s immediate family and other relatives. Finally, if I understood the applicant correctly, he submitted that the Department of Immigration and Citizenship misunderstood the circumstances in which he departed China, namely, that he departed China only when he was suspected of being a Falun Gong practitioner.

2. None of these submissions, even if correct, raise any arguable ground of jurisdictional error.

Conclusion and disposition

1. The applicant has not disclosed any jurisdictional error on the part of the Tribunal. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs. I also propose to order that the Minister’s name as recorded in the application be amended to “Minister for Immigration and Border Protection”.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  7 February 2014