SZUDU v Minister for Immigration

[2014] FCCA 2692

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2692

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal (Tribunal) – whether the Tribunal considered the applicant’s claims – whether the Tribunal considered the material that was relevant to those claims – no jurisdictional error – application dismissed.

First Applicant: SZUDU

Second Applicant: SZUDV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 902 of 2014

Judgment of: Judge Manousaridis

Hearing date: 11 November 2014

Delivered at: Sydney

Delivered on: 11 November 2014

REPRESENTATION

First and second applicants in person assisted by an interpreter.

Solicitors for the First Respondent:

Ms A. Wong

DLA Piper

ORDERS

1. The application is dismissed.

2. The first applicant pay the costs of the first respondent.

3. The costs of the first respondent are set in the amount of $5,700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 902 of 2014

SZUDU

First Applicant

SZUDV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In these proceedings the applicants have applied for an order to quash the decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent not to grant the first applicant a protection visa. 

Claims for Protection

1. The first applicant (applicant) is a citizen of the People’s Republic of China.  The second applicant is the applicant’s wife. 

2. The applicant and the second applicant arrived in Australia on 11 March 2013 on a tourist visa.  On 15 March 2013 the applicant applied for a protection visa. The second applicant also applied for a protection visa, but as a member of the family unit of which the applicant was a member.  The asserted facts on which the applicant relied for his claim for protection were as follows.

3. In around August 2011 at Liling City, a business partner of the applicant introduced the applicant to Falun Gong.  From then on the applicant “almost practice five set of exercise and read <Turning the Wheel of Fa> every day”.[1] Sometimes the applicant went to his business partner’s home to study Master Li’s new teaching and participate in the distribution of propaganda materials.[2]  In December 2012, the applicant’s business partner’s wife informed the applicant that the police had raided their home and the police had arrested the applicant’s business partner because of his Falun Gong activities.  That caused the applicant to fear he too would be arrested.  He therefore sold his interest in his business venture and returned to his hometown, and informed his wife about what had occurred to his business partner. The applicant and the second applicant decided to flee China, because the applicant feared he would be harmed by the authorities because he was a Falun Gong practitioner.  After he arrived in Australia, the applicant practiced Falun Gong. 

   [1] CB127

   [2] CB127

Tribunal’s reasons

1. The Tribunal accepted the applicant has practised Falun Gong in Australia.  The Tribunal, however, had serious doubts as to whether the applicant did practice Falun Gong in China and, ultimately, the Tribunal did not consider the applicant ever practised Falun Gong in China.

2. The Tribunal formed the view that the applicant came to Australia for reasons unrelated to his fearing persecution as a Falun Gong practitioner.  The Tribunal considered the applicant “had decided prior to his arrival that he would apply for a protection visa in order to remain in Australia and has been developing a profile for that purpose since his arrival in Australia”. 

3. The reasons the Tribunal gave for these findings included the following.  First, the applicant was unable to demonstrate anything other than a basic knowledge of Master Li’s teaching at the departmental interview.  Second, the Tribunal had concerns about the applicant’s evidence of his business partner’s arrest and detention.  For example, the applicant said that he was informed by his business partner’s wife that the applicant’s business partner was arrested, yet the applicant had informed the Tribunal that his business partner’s wife was not present at the time the applicant’s business partner had been arrested and the applicant was unable to otherwise explain how he became aware that his business partner had been arrested because he was a Falun Gong practitioner. Third, the second applicant had difficulties recalling when she had seen the applicant after the time the applicant claimed he started to practice Falun Gong.  Fourth, the applicant did not include in his visa application form the address of where he stayed in Liling City, although the Tribunal acknowledged the applicant recorded on his visa application form that he had been employed at Liling City.  Fifth, the applicant did not claim he suffered harm in China because he was a Falun Gong practitioner and the Tribunal found unconvincing the explanations the applicant gave to the Tribunal about why authorities in China might consider him to be a person of interest, following the arrest of the applicant’s business partner.  Sixth, the Tribunal found unconvincing the applicant’s explanation of how he was able to freely leave China, given that the applicant believed he would be a person of interest to the police.

Grounds of Review

1. The application for review contains two grounds of review.  The first is as follows:

   The reason why I am afraid of returning China is because I was prosecuted by Chinese Government.  I didn’t apply for protection visa when I arrived as I have no knowledge.  Tribunal members cannot make a judgement [sic] only based on my statement.  They should consider my situation and also take into account what I explained in the interview. 

2. The meaning of this ground is unclear.  The first two sentences are assertions of fact relating to whether the applicant has a well-founded fear of persecution.  These are not matters for this Court to determine.  Therefore, by themselves they do not disclose any jurisdictional error, whether the asserted facts are true or not. 

3. The third and fourth statements appear to claim the Tribunal did not consider the applicant’s claims, or at least all of the material that was relevant to those claims.  In my opinion, that ground cannot be made out.  The Tribunal, in its reasons, accurately identified the applicant’s claims, recorded evidence the applicant gave and referred to the evidence on which the applicant relied.  The Tribunal then made its decision, which, unfortunately, was adverse to the applicant. 

4. The applicant, who is not legally represented, made oral submissions before me in support of ground one.  He repeated the substance of what he submitted to the Tribunal.  He said he came to Australia to seek refuge because he was a Falun Gong practitioner.  He said it was true he practised Falun Gong in China.  He also said that even if he did not practice Falun Gong in China, he practised Falun Gong here in Australia and there were spies and other agents of the Chinese Government who would be aware of his activities as a Falun Gong practitioner and for this reason, the applicant will be at risk of persecution if he returns to China. 

5. None of these submissions disclose any jurisdictional error by the Tribunal.  These submissions were put to the Tribunal and not accepted by the Tribunal. These were matters for the Tribunal and for the Tribunal alone to assess and decide whether to accept. 

6. The second ground of review is as follows:

   I am not able to provide any documents evidence to Tribunal to support my application as I was afraid of being found with these evidence at the airport and they would prevent me to departure from China, But Tribunal members said that they don’t believe that I have real fear.  Tribunal member should take it into account.

7. This appears to be a claim that in assessing the applicant’s credibility, the Tribunal ought to have taken into account that it was not possible for the applicant to have any documentary evidence to support his claim for protection.  If that is the effect of this ground, it does not disclose any jurisdictional error on the part of the Tribunal.  First, it does not appear that this was a submission the applicant put before the Tribunal. The Tribunal’s not taking into account something that was not put before it does not amount to jurisdictional error.  Second, and independently of the first ground, the Tribunal did not rely on the absence of documentary evidence as a ground for not accepting the applicant as a witness worthy of credit.

8. I invited the applicant to make submissions in relation to the second ground. He began to make some submissions but appeared to get confused about what he wished to say.  In the end, the applicant said he had nothing further to add to ground two. 

9. Finally, the application in the section headed Grounds of Application contains the following:

   I wish the Federal Circuit Court of Australia could consider my situation.

10. That does not state any ground of review to the extent that it seeks the Court to determine for itself whether the applicant has a valid claim for protection. The Court does not have jurisdiction to determine that question. 

11. For the reasons I have given, the applicant has been unable to establish the Tribunal made any jurisdictional error.  I propose, therefore, to dismiss the application and order that the applicant pay the first respondent’s costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 19 November 2014