SZUDU v Minister for Immigration and Border Protection

[2015] FCA 171

FEDERAL COURT OF AUSTRALIA

SZUDU v Minister for Immigration and Border Protection [2015] FCA 171

Citation:	SZUDU v Minister for Immigration and Border Protection [2015] FCA 171
Appeal from:	SZUDU & Anor v Minister for Immigration & Anor [2014] FCCA 2692
Parties:	SZUDU and SZUDV v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1238 of 2014
Judge(s):	YATES J
Date of judgment:	2 March 2015
Catchwords:	MIGRATION – application for protection visa – whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review
Legislation:	Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) Migration Act 1958 (Cth) s 36 Protocol Relating to the Status of Refugees, opened for signature on 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Date of hearing:	2 March 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Appellants:	The First Appellant appeared in person on behalf of the First and Second Appellants
Counsel for the Respondents:	Ms A Wong
Solicitor for the Respondents:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1238 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZUDU
First Appellant

SZUDV
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	2 MARCH 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1238 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZUDU
First Appellant

SZUDV
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE:	2 MARCH 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) (SZUDU & Anor v Minister for Immigration & Anor [2014] FCCA 2692), which dismissed the appellants’ application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant Protection (Class XA) visas to the appellants. 

2. The appellants are husband and wife.  They are citizens of the People’s Republic of China.  Their applications for protection visas were based on the husband’s claim for protection.  The wife was included in the husband’s application as a member of his family unit.  The husband is the first appellant in this appeal.

   The Tribunal decision 

3. The Tribunal summarised the first appellant’s circumstances at [10] of its decision record:

   [10]The applicant came to Australia with his wife on 11 March 2013 as the holder of a tourist visa and lodged and application for a protection visa on 15 March 2013. The applicant indicated that he was born in Fuzhou City, Fujian Province, China. He claims that he began practising Falun Gong when he lived in Liling City, Hunan Province where he went to establish a brick factory with four others, including Mr Zhanguo Lin. The applicant claims the he will be persecuted if he were to return to China because he is a Falun Gong practitioner. He claims that he began practising Falun Gong in August 2011 while living in Liling city in Hunan Province, having been introduced to Falun Gong by a business partner, Mr Zhanguo Liu. The applicant claims that after Mr Liu was arrested on 9 December 2012, he immediately sold the business for a loss and left Liling city for fear of being found out as a Falun Gong practitioner himself. He claims that he returned to Fuzhou city where he remained in hiding until he was able to arrange for his and his wife’s departure to Australia in March 2013. The applicant’s wife does not practise Falun Gong, and is a Christian. She is not making any claims of her own for protection, rather she is claiming to be a member of the applicant’s family unit.

   (Errors in original.)

4. The Tribunal did not accept that the first appellant practised Falun Gong in China, as he had claimed.  It gave a number of reasons for coming to that conclusion.  There was evidence before the Tribunal that the first appellant had practised Falun Gong in Australia since his arrival with the second appellant on 11 March 2013, on tourist visas.  However, the Tribunal concluded, for reasons given, that the first appellant was not a genuine Falun Gong practitioner.  The Tribunal disregarded his participation in Falun Gong events in Australia on the basis that his participation was undertaken solely for the purpose of strengthening his claim to be a refugee within the meaning of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature on 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). 

5. The Tribunal then made the following findings and reached the following conclusions (at [28]-[29]):

   [28]As the Tribunal does not accept that he is a genuine Falun Gong practitioner, it does not accept that the applicant would seek to continue to practice Falun Gong on return to China. The Tribunal also finds that he was not known to Chinese authorities for an reason and it considers that he will not become known to them for any reason which will cause them to take an adverse interest in him.

   [29]Accordingly, the Tribunal is not satisfied, having regard to all the evidence, that the applicant has a well-founded fear of persecution for reasons of his Falun Gong practice or any other Convention reason if he returns to China now or in the reasonably foreseeable future. Given these findings, it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

6. The Tribunal considered the complementary protection criterion, but was not satisfied that the first appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

7. The Tribunal concluded that it was not satisfied that the first appellant was a person in respect of whom Australia has protection obligations. Therefore, he did not satisfy the criteria for a protection visa.

   The Federal Circuit Court judgment 

8. The appellants’ application for judicial review in the Federal Circuit Court contained three grounds, expressed as follows:

   1.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 only based on my statement. They should consider my situation and also take into account what I explained in the interview.

   2.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.

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

   (Errors in original.)

9. The primary judge rejected each ground.

10. Insofar as the first ground raised a contention that the Tribunal did not consider the first appellant’s claims, or at least all the material that was relevant to those claims, the primary judge made the following finding (at [10]):

    [10]… 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.

11. In support of the first ground, the first appellant advanced a number of factual contentions, which seemed to have been an invitation to the primary judge to engage in merits review.  The primary judge did not accept that invitation.  His Honour said (at [12]):

    [12]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.

12. The primary judge saw the second ground as, apparently, one challenging the Tribunal’s assessment of the first appellant’s credibility.  The primary judge said (at [14]):

    [14]… 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.

13. The primary judge invited the first appellant to make submissions on this ground.  His Honour recorded that, ultimately, the first appellant had nothing of substance to add. 

14. With respect to the third ground, the primary judge concluded that it only invited the Federal Circuit Court to make its own determination of the first appellant’s claims.  Plainly, the Federal Circuit Court had no such jurisdiction. 

15. In the end result, the Federal Circuit Court dismissed the application for judicial review, with costs.

    The appeal 

16. The notice of appeal to this Court contains two grounds, which repeat the first and second grounds of review before the Federal Circuit Court.  They do not identify any alleged error on the part of the Federal Circuit Court. 

17. On 2 December 2014, the appellants were ordered to file a written outline of submissions.  They have not complied with that order. 

18. The first appellant appeared at the hearing of this appeal unrepresented, but assisted by an interpreter.  I invited the first appellant to explain why he said the primary judge erred in his findings and conclusions with respect to the first and second grounds of review.  As to the primary judge’s findings and conclusions on the first ground of review, the first appellant said that he would like to keep silent.  As to the primary judge’s findings and conclusions on the second ground of review, the first appellant said that he “could not say much in relation to that”. 

19. When I asked the first appellant whether he wanted to say anything at all in support of the appeal, he said he wished to say nothing.

    Conclusion 

20. The appellants have not demonstrated any error on the part of the primary judge.  In my view, the primary judge was correct in concluding, in respect of each ground, that the appellants had failed to establish any jurisdictional error on the part of the Tribunal.

    Disposition 

21. It follows that the appeal must be dismissed.  The appellants should pay the Minister’s costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        2 March 2015