SZUCX v Minister for Immigration

[2014] FCCA 2783

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2783

Catchwords:
MIGRATION – Review by Refugee Review Tribunal – application for order dismissing application because it raises no arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth) s.426A

Applicant: SZUCX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 802 of 2014

Judgment of: Judge Manousaridis

Hearing date: 8 October 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents: Ms F. Taah of Australian Government Solicitor

ORDERS

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 802 of 2014

SZUCX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of China, applies for constitutional writs directed to the second respondent (Tribunal). She claims the Tribunal made jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. The Minister submits the application discloses no arguable case for the relief it seeks, and should be summarily dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).

Claims for protection

1. In a statement attached to her application for a protection visa,[1] the applicant claimed she feared persecution if she were to return to China because of her religion. She claimed that in January 2012 she experienced the power of God after praying to God under the instructions of another person. Some months later, the applicant claimed she participated in a village gospel teaching session. Shortly after that session commenced, the police forced their way into the premises at which the session was being held, and took the teacher and the applicant to the police station. The applicant claims the police beat her and her teacher with belts, and fined the applicant. The police told the applicant that if she were to be caught again she would be sent to the labour camp.

   [1] CB27-29

Proceedings before the Tribunal

1. On 10 January 2014, the Tribunal wrote a letter to the applicant informing her that the Tribunal had considered material before it but it was unable to make a favourable decision on that material.[2] The letter invited the applicant to attend a hearing before it to give evidence and make submissions, and the letter appointed a date and time for that hearing. The appointed time and date of the hearing was 9.00 am on 20 February 2014. The applicant completed and signed a “Response to Hearing Invitation” form in which she ticked the “Yes” box that appeared under the words “Will you take part in the Tribunal hearing scheduled for 20 February 2014?”[3]

   [2] CB60-61

   [3] CB62

2. The applicant did not attend the hearing, or contact the Tribunal to explain her failure to attend. The Tribunal exercised its discretion under s.426A of the Migration Act 1958 (Cth) to deal with the application for review without taking any further action to enable the applicant to appear before it.

3. The Tribunal found the applicant’s claims to be vague, general and lacking in detail.[4] The Tribunal said it was not clear if the applicant had adopted Christianity or was referring to the Christian religion in her claims; there was little information before the Tribunal to support the claim the applicant came to believe in God, or that she had attended a gospel gathering; there was little information about the applicant’s practice of religion in China or of her experiences there; and the applicant had not provided specific and clear details of the events and timeline leading to her departure from China.[5] The Tribunal said that, had the applicant appeared before it, the Tribunal would have had an opportunity to ask the applicant about her current religious beliefs and religious practices in Australia;[6] and it would have been able to explore the applicant’s circumstances regarding her claimed arrest, interrogation, and beating by the authorities.[7] The Tribunal, therefore affirmed the delegate’s decision.

   [4] CB72, [11]

   [5] CB72, [11]

   [6] CB72, [13]

   [7] CB72, [12]

Grounds of review

1. The application contains the following three grounds of review.

   1.The applicant with [person X] went to [person X’s] home for Gospel teaching. There were Seven believers. They were arrested by the local police. She was belted and fined for 3,000 yuan. She was also threatened into a labour camp if she taught the evil cult of the Gospel any further.

   2.She was a sincere believer in God, and is determined to follow God. She will [be] arrested again is she stayed in China because of her believer [sic] in God.

   3.The Tribunal member failed to consider my whole claims, making the decision of refusing my application. It is not justice, making jurisdictional error.

2. At the hearing, after I invited her to make submissions, the applicant said she dare not return to China. She also said “In the previous occasion I live very far. And when I got there I didn’t make it. Nobody there”. Later in the hearing, when I asked the applicant to explain what she meant by this, she said that she did attend the Tribunal on the day of the hearing, but there was nobody there. I then invited the applicant to give evidence about these matters, and she was cross-examined.

3. The applicant gave the following evidence in chief in response to my questions. The applicant confirmed that she had stated from the bar table that she went to the Tribunal. She could not recall where she went. The applicant said she arrived there at almost 12 noon. Her youngest brother and her cousin took the applicant to the Tribunal. She did not attempt to contact any person when she arrived and noticed the Tribunal was not sitting. The applicant said she did not do so because she did not know she needed to contact the Tribunal. When I asked her whether the applicant attempted to contact the Tribunal afterwards, the applicant said her eldest brother did not know he had to contact the Tribunal.

4. Under cross-examination, the applicant said no one was at the Tribunal when she arrived, even though it was put to her that the Tribunal’s opening hours are from 9.00 am to 5.00 pm. When shown the “Response to Hearing Invitation” form that recorded the appointed hearing time of 9.00 am, the applicant said it took her four hours to travel to the Tribunal from Newcastle. Asked why the applicant had to travel from Newcastle, the applicant said that she “could believe God there and also at the same time I could earn some money”. The applicant did not live at her address for service in Kempsey. Asked why the applicant did not take a train from Newcastle on the evening before the scheduled hearing date, the applicant said “I didn’t know how to take train”.

5. I do not accept the applicant’s evidence that she attended the Tribunal at 12 noon on the appointed date for the hearing, but nobody was there. The evidence is inherently implausible. In any event, whether or not the applicant attended the Tribunal at 12 noon is irrelevant. There is no claim that the Tribunal acted unreasonably in deciding to conduct the review without giving the applicant any further opportunity to appear before the Tribunal; and there is nothing to suggest the Tribunal acted unreasonably in so deciding.

6. I now turn to the grounds of review contained in the application. The first two grounds repeat the substance of the claims for protection the applicant advanced in her application for a protection visa. It is not arguable that the Court has jurisdiction to deal with those claims.

7. The third ground, if made out, would establish jurisdictional error. In my opinion, however, it is not arguable that the Tribunal failed to consider the applicant’s claim for protection. The Tribunal did consider the applicant’s claims as set out in the material that was before the Tribunal. It accurately described the applicant’s claims for protection; it specified the reasons why the Tribunal was unable to decide in favour of the applicant based on the material that was before it; and the Tribunal identified the matters it wished to have explored, had the applicant appeared before the Tribunal.

Conclusion and disposition

1. The application does not disclose an arguable case for relief. I propose, therefore, to dismiss the application pursuant to r.44.12(1)(a) of the FCC Rules, and order that the applicant pay the Minister’s costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 November 2014