SZUGE v Minister for Immigration

[2014] FCCA 2815

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2815

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

Applicant: SZUGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1090 of 2014

Judgment of: Judge Driver

Hearing date: 3 December 2014

Delivered at: Sydney

Delivered on: 3 December 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong of DLA Piper

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG1090 of 2014

SZUGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 27 March 2014.  The Tribunal affirmed a decision of a delegate Minister not to grant the applicant a protection visa. 

2. The applicant is from China and had made claims of persecution based upon his asserted Christian faith.  He also claimed to fear harm as a result of an industrial campaign arising from a coal mine accident.  He applied to the Minister’s Department for the visa on 8 March 2013.  The delegate rejected that application on 28 August 2013.  The applicant applied to the Tribunal for review of that decision.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  The applicant attended and answered questions in relation to his claims. 

3. The Tribunal found that the applicant was evasive, hesitant and non-forthcoming in his evidence.  It appears that there were some issues during the hearing concerning the interpreter as the applicant was assisted by a Mandarin interpreter, but speaks in a dialect from Fuqing City, in the Fujian Province.  The Tribunal states at [11] of its reasons[1] that it satisfied itself that the applicant was able to understand what was being said to him  and communicate as he wished.  He was sometimes unable to answer because he lacked information, but he did not lack comprehension.  In these proceedings, the applicant again requested the assistance of a Mandarin interpreter.  My assessment of his comprehension is the same as that of the Tribunal. 

   [1] Court Book (CB) 103

4. The Tribunal did not believe that the applicant was a practising Christian either in China or in Australia.  The Tribunal did accept that the applicant had worked in a coal mine.  However, the Tribunal did not accept that there had been an accident at the applicant’s coal mine in Shanxi Province at the time the applicant asserted.  Further, the Tribunal did not accept that the applicant had been caught up in any dispute with the authorities arising out of the asserted accident. 

5. In view of its findings, the Tribunal determined that the applicant did not have a well-founded fear of persecution in China for any of the asserted reasons should he return.  Neither was the Tribunal satisfied that the applicant qualified for complementary protection. 

6. These proceedings began with a show cause application filed on 22 April 2014.  The applicant continues to rely upon that application.  There are template grounds annexed to the application:

   1, I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

   2, RRT did not consider our statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3, RRT failed to prudently consider our risk, especially our commitment of paralysing if we return to origin.

   4, RRT failed to consider our statements, explanation, and evidence provided in supporting our claim as a whole.

   The Grounds of the Application are:

   1, I have been actively involved in church [activities] in Australia.  My action and religious performance has been evidence by church elder with reference.

   2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   3, The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable [observer]

   (errors in original)

7. In his response filed on 7 May 2014, the Minister notes that the application pleads a number of grounds in template form.  The Minister asserts that to the extent that the grounds allege that the applicant’s claim and evidence were not considered by the Tribunal, the assertion cannot be made out.  The Minister contends that the applicant invites the Court to engage in impermissible merits review.  The Minister’s response also notes that there is no substance to the allegation of bias. 

8. The application is supported by an affidavit, in template form, which I received as a submission. 

9. I have before me as evidence the court book filed on 19 May 2014. 

10. I sought to explain to the applicant the limits on the Court’s jurisdiction.  I explained to him the statutory framework within which the Tribunal operates.  I invited oral submissions from him on what, if anything, went wrong in the Tribunal’s process.  He asserts that the Tribunal failed to consider his claims.  That assertion cannot be supported by reference to the Tribunal decision and the material in the court book.  He also asserted that he will face persecution if he returns to China.  That goes to the merits of the Tribunal decision, which are beyond the scope of these proceedings. 

11. On the basis of my own examination of the available material, I can see no arguable case of jurisdictional error by the Tribunal. The Tribunal met its statutory obligation of review. The Tribunal provided a fair hearing opportunity in accordance with s.425 of the Migration Act 1958 (Cth). There is no substance to the assertion of bias.

12. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. 

13. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

14. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursements, of and incidental to the application, fixed in the sum of $3,000.

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

Associate: 

Date:  5 December 2014