SZTQH v Minister for Immigration & Border Protection
[2014] FCCA 704
•8 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTQH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 704 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – application has not raised an arguable case for the relief claimed – application dismissed. |
| Legislation: Cases cited: |
| Applicant: | SZTQH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3053 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 8 April 2014 |
| Date of Last Submission: | 8 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2014 |
REPRESENTATION
The applicant appeared in person with the assistance of a Mandarin interpreter
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3053 of 2013
| SZTQH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 13 November 2013 (“the RRT”).
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 9 December 2013, be dismissed on the basis that the applicant’s application does not raise an arguable case for the relief claimed.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
On 25 March 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with a decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the applicant that in circumstances where his application does not raise an arguable case for the relief claimed, his application may be dismissed pursuant to r.44.12 of the Rules.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. For that reason, the applicant was given leave to file and serve an Amended Application, giving complete particulars of each ground of review relied upon by 31 March 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 31 March 2014.
The matter was then set down for a show cause hearing today pursuant to r.44.12 of the Rules.
The applicant confirmed this morning that he had not filed an Amended Application or submissions in support of his application.
The solicitor for the first respondent, Ms Stone, informed the Court that the applicant had sent some documents to her firm, accompanied by a statement that he wished to rely on those documents in support of his application. Ms Stone supplied the Court with copies of the documents and the applicant tendered them as evidence.
Ms Stone objected to the tender of the documents on the grounds of relevance. The applicant confirmed that none of the documents were given to the RRT for consideration. Indeed, one of the documents was dated in early 2014, after the RRT hearing date. In the circumstances, the documents were rejected on the grounds of relevance.
In the applicant’s application for judicial review, filed on 9 December 2013, the applicant identified the grounds for review as follows:
“Order sought by Applicant:
1, I am a Chinese citizen and am a genuine Falunggong member. I have been practising for years and I have been warned to be put in prison if I continue this activity.
2, I can not stop practising Falunggong since it has helped a lot with my health condition. I can not go back to China since I am very scared to be sentenced.
3, I have been actively practising FalungGong since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since I will be facing danger.
The Grounds of the Application are:
1. I disagree with the Immigration and the RRT’s decision since I am a genuine Falungong 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 in Australia and it will also bring me a big trouble if I return home
3. RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.”
The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
The applicant requested another opportunity to have his matter heard before the RRT on the basis that he was scared to go back to China. The applicant also stated that he had lived in Australia for eight years, that he had lost six teeth, and was at risk of losing a seventh tooth.
Once again I explained to the applicant that this Court has no residual discretion to grant relief to the applicant of the type he seeks unless the Court is satisfied that the RRT’s decision is affected by an error that goes to its jurisdiction.
Clearly, the first three paragraphs, under the heading ‘Orders Sought by the Applicant’, are not capable of identifying an error for review.
The three grounds identified under the heading ‘The Grounds of the Application,’ again make bare, unparticularised assertions that appear to be no more than a disagreement with the findings and conclusions of the RRT. None of the grounds raises an arguable case for the relief claimed by the applicant.
The applicant has had an opportunity to file an Amended Application giving complete particulars and to file submissions in support. The applicant has failed to do so. I note that at the directions hearing before me on 25 March 2014, the applicant was provided by the Court with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
There has been nothing said by the applicant this morning in support of his application, which takes the grounds of his application any further.
The applicant read his affidavit, sworn 13 November 2013 and filed 9 December 2013, which annexes the RRT’s decision record.
The RRT referred to the relevant law in considering whether the applicant was entitled to protection under either s.36(2)(a) or s.36(2)(aa) of the Act. The RRT’s decision record makes clear that the RRT explored the applicant’s claims at its hearing with the applicant. The RRT notes that it spoke with the applicant about his background and his claims. The RRT ultimately rejected the applicant’s claims of a fear of persecution in China by reason of being a Falun Gong practitioner based on adverse credibility findings.
The RRT noted that the applicant entered Australia in January 2006 on a tourist visa, and stayed in Australia without a visa after his tourist visa expired that same month. The RRT noted that the applicant did not apply for protection until October 2012.
The RRT was not satisfied by the explanation given by the applicant as to his delay of six years in seeking protection. The RRT found that if the applicant’s fear of persecution in China was genuine for the reasons he claimed, he would have applied for protection at an earlier date.
The RRT did not accept the applicant as a truthful witness, and found that he had embellished his claims before the RRT. The RRT rejected the applicant’s claims of harm in China, either to himself or to his family. After concluding that the applicant did not satisfy either the refugee criteria or the complementary protection criteria found in s.36 of the Act, the RRT affirmed the decision under review.
The RRT’s findings would appear to be open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Further, it is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There does not appear to be anything on the face of the RRT’s decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the grounds of the application have raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 9 December 2013, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 16 April 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Jurisdiction
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