SZUGI v Minister for Immigration

[2015] FCCA 301

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 301

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:  

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

Applicant: SZUGI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1095 of 2014

Judgment of: Judge Manousaridis

Hearing date: 10 February 2015

Delivered at: Sydney

Delivered on: 10 February 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms H Dejean of Australian Government Solicitor

ORDERS

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

2. The applicant pay the first respondent’s costs in the amount of $3,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1095 of 2014

SZUGI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) applies for an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for judicial review filed in these proceedings be dismissed.  The Minister submits that the application does not raise an arguable case for the relief it claims.  Whether the Minister is correct in his submission requires me to identify the claims for protection the applicant made before the second respondent (Tribunal), and the Tribunal’s reasons for not accepting those claims.

2. The claims the applicant made before the Tribunal are as follows.  In 2007 the applicant, who is a national of the People’s Republic of China, and a person whom she married in 2012 opened a restaurant in Kuala Lumpur. In October 2012 the Malaysian health authorities inspected the restaurant and ordered the applicant and her husband close the restaurant until further notice.  The applicant was informed that a person had informed the Malaysian health authorities about the restaurant’s food quality. The applicant believes that the informer was a high ranking executive from a Chinese state owned enterprise. About two weeks before the health authorities ordered the closure of the restaurant, the high ranking executive dined at the restaurant and asked for the contact details of one of the waitresses who worked at the restaurant.  The applicant’s husband refused to provide those details. The applicant and her husband were not permitted to re-open the restaurant and they went bankrupt. The applicant borrowed money and fled to Australia. 

3. At the hearing before the Tribunal, the applicant was asked why she was seeking protection in Australia.  She said that there are too many corrupt officials in China and Malaysia, and that Australia respected human rights.  The applicant was also asked why she thought she was a refugee.  The applicant said she was afraid of harassment in Malaysia, and the police were not reasonable.  The applicant also said that she feared harm from corrupt people in China and that if she returned to China she would be pursued by prominent Chinese businessmen.

4. The Tribunal found the applicant was a citizen of the People’s Republic of China.  The Tribunal did not accept the applicant had a well-founded fear of persecution for a Convention reason on her return to China.  The Tribunal found the applicant’s evidence to be vague and non-specific.  The applicant’s evidence was very limited as to the identity or identities of the person or persons whom she feared would harm her. 

5. The application for judicial review raises three grounds.  The first is:

   I was harassed and assaulted in Malaysia, my business had been shut down, i became bankrupt.  I am not able to back and live in Malaysia again because i will continue to be persecuted by them.  I can not provide furthur evidence as nobody in Malaysia would like to help me to collect the evidence because they are afraid of being persecuted.

6. The applicant, who was not legally represented before me, did not make any submissions in support of this ground until after the solicitor for the Minister made submissions in relation to the ground.  The solicitor for the Minister submitted that the ground was bound to fail to the extent it relied on harm and fear of harm in Malaysia because the applicant is a Chinese national.  The applicant, on the other hand, submitted she is married to a Malaysian national and she repeated the substance of the claim she made to the Tribunal, including the claim that she would be persecuted by local police officers in Kuala Lumpur.

7. In my opinion, that the applicant was not a Malaysian citizen played no role in the Tribunal’s rejection of the applicant’s claim. The Tribunal understood the applicant to claim she would face persecution if she returned to China.  The Tribunal, however, did not accept that claim because it did not give credit to the applicant’s evidence; and it did not give credit to that evidence because the Tribunal found the applicant’s evidence to be vague and lacking specificity. 

8. Ground 1 discloses no arguable case of jurisdictional error. The ground only repeats the claim for protection that the applicant submitted to the Tribunal.  This Court does not have jurisdiction to determine the merits of an application for a protection visa. 

9. The second ground is:

   During th hearing, the tribunal officer did not ask many questions about my situation, i do not think it is fair to me.

10. Again, the applicant did not make any submission in support of this ground until after the solicitor for the Minister made a submission in relation to it.  The solicitor for the Minister submitted that there is no evidence of unfairness.  The applicant, in response, submitted that she told the truth to the Tribunal member and she repeated that the Tribunal did not ask her many questions.  I asked the applicant whether the Tribunal asked her why she was seeking protection in Australia and the applicant said she could not remember. The applicant also claimed she did not understand what occurred at the hearing before the Tribunal. 

11. Ground 2 does not state any arguable case of jurisdictional error.  The ground does not identify the questions the applicant claims the Tribunal ought to have asked the applicant or the reasons the applicant claims the Tribunal ought to have asked additional questions.  In any event, the Tribunal’s reasons for decision indicate that the Tribunal asked the applicant such questions as afforded the applicant the opportunity to present her case to the Tribunal.

12. The Tribunal asked why the applicant was seeking protection in Australia, why the applicant thought she was a refugee, and asked about the applicant returning to China.  The applicant gave answers to these questions which the Tribunal considered to be vague and lacking in specificity.  It was open to the applicant to answer the questions the Tribunal asked in such a manner as to provide information that was not vague and which did not lack specificity.

13. The claim made by the applicant before me that she did not understand what occurred before the Tribunal is not a ground stated in the application.  There is no basis for this claim other than the assertion of the applicant.  The applicant has not put before the Court the transcript of the hearing before the Tribunal.  There is no suggestion that the applicant has sought to obtain an audio recording of the hearing before the Tribunal. The applicant appeared before the Tribunal with the benefit of an interpreter.  The Tribunal’s reasons indicate that questions were asked of the applicant and the applicant answered those questions.

14. In these circumstances, the applicant’s bold assertion that she did not understand what occurred at the hearing before the Tribunal does not raise an arguable case that she did not understand what occurred at the hearing or, if she did not understand, that that would result in the Tribunal’s decision being infected with jurisdictional error. 

15. The third ground of review is:

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

16. This obviously discloses no arguable case for relief.  It is a request that this Court do what it is required to do whenever any application is made to it, namely, to consider a claim.  That is what I have done in these reasons. 

17. For these reasons, therefore, I propose to make an order dismissing the application pursuant to rule 44.12(1)(a) of the FCC Rules and order that the applicant pay the first respondent’s costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 February 2015