SZUGK v Minister for Immigration

[2015] FCCA 613

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 613

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZUGK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1099 of 2014

Judgment of: Judge Driver

Hearing date: 18 March 2015

Delivered at: Sydney

Delivered on: 18 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Brooks of Clayton Utz

INTERLOCUTORY ORDERS

1. The Court directs that the title of the first respondent be amended to “Minister for Immigration and Border Protection”.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1099 of 2014

SZUGK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 21 March 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from the Macau Special Administrative Region in China.  Background facts relating to the applicant’s claims to protection and the decision of the tribunal on them are conveniently set out in the Minister’s outline of written submissions filed on 2 December 2014. 

2. The applicant is a citizen of the People's Republic of China, who entered Australia as the holder of a Chinese passport held in respect of the Macau Special Administrative Region.  She arrived in Australia on 4 August 2012 holding a tourist subclass 676 visa which ceased on 4 September 2012. She applied for the protection visa on 4 October 2012[1].  The delegate refused the application on 31 July 2013[2]. 

   [1] Court Book (CB) 1-39

   [2] CB 59-80

3. The applicant applied to the Tribunal for review of the delegate's decision on 22 August 2013[3]. On 21 March 2014, the Tribunal affirmed the decision of the delegate[4]. 

   [3] CB 81-87

   [4] CB 97-108

Protection claims

1. The applicant's protection claims were detailed in a statement accompanying her visa application[5] and orally to the Tribunal.  In summary, the applicant claimed:

   a)her father was a known Falun Gong practitioner, who was detained in China in 2002.  He was beaten, and “re-educated” through forced labour.  He was only released when the family paid money and promised to persuade the father to give up Falun Gong;

   b)the applicant “appealed” to the government for compensation regarding her father's treatment.  In result, she was herself detained in Guangdong for a month in 2003 where she was beaten and threatened with detention for life if she did not give up her appeal.  After her release, her home remained under surveillance;

   c)her violent ex-boyfriend in Macau has harassed and threatened her since she ended their relationship in 2010.  He has connections in the government and police, which resulted in her being unjustly fined 2000 “Macau dollars” in 2010[6].  Due to this harassment, she sold her clothing business in January 2011.  If she returns, she fears that he will harm her including by using his knowledge of her father's previous Falun Gong practices; and

   d)as a person from mainland China, she was “insulted and persecuted” by an officer of the Macau local government.  Macau's laws are not good for her business.

   [5] CB 30-33

   [6] The unit of currency in Macau is the Pataca, although Hong Kong dollars are also used, especially in the casinos

Tribunal's decision

1. The Tribunal found significant aspects of the applicant's evidence and claims to be “problematic and highly lacking in credibility”. In this regard, the Tribunal noted several inconsistencies in the applicant's evidence including: 

   a)in the applicant's written and oral evidence regarding her addresses in Guangdong.  Her oral evidence on the subject also varied at the hearing in response to the Tribunal's concerns[7];

   b)the applicant and her family members were able to travel frequently between Guangdong and Macau, suggesting that they were of no adverse interest to the authorities[8];

   c)the applicant claimed to have chosen to live in Macau between 2004 and 2012, and voluntarily returned there from multiple travels including to Japan and Switzerland for protracted periods.  The applicant made no enquiries regarding protection in those countries[9];   

   d)the applicant gave inconsistent evidence regarding her father's practice of Falun Gong and the circumstances of his arrest[10].  Her account of her own detention was “vague and unconvincing”, and unsupported by documentary evidence[11]; and

   e)the applicant gave oral evidence to the delegate that she was not married and had no children.  However, with her tourist visa application the applicant gave evidence to the Department that she was married and had a son.  In response to the Tribunal's questions, the applicant asserted that she was not married and never has been.  When asked whether she then gave false information to the Department, she responded that she did not wish to explain[12].

   [7] CB 100 [11]

   [8] CB [12]

   [9] CB 101 [15]

   [10] CB 102 [16] - 103 [22]

   [11] CB 103 [21]

   [12] CB 104 [26] - 105 [29]

2. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations.

The present application

1. These proceedings began with a show cause application filed on 23 April 2014.  The applicant continues to rely upon that application.  She has not taken up the opportunity I afforded her on 19 June 2014 to file an amended application and additional evidence.  Under the heading “Grounds of Application” are three paragraphs, which are faithfully reproduced at [9] of the Minister’s legal submissions:

   1. The reason why I am afraid of returning China and Macau is because I was prosecuted by Chinese and Macau government.  I didn't apply for protection visa in other country due to I have no knowledge.  Tribunal members cannot make a judgment only based on my statement.  They should consider my situation.

   2.    I am not able to provide any documents evidence to Tribunal to support my application because I am not able to get any evidences now, 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.

2. At the outset of the show cause hearing today, I checked with the applicant whether, in the first paragraph, she intended to use the word “persecuted” rather than “prosecuted”.  She stated that she intended to use the word “prosecuted”, and by that, she was referring to her claims of being harmed following her challenge to the detention of her father for the practice of Falun Gong.  That was an asserted fact or circumstance known to the Tribunal.

3. I have before me as evidence the applicant’s affidavit made on 17 April 2014 and the court book filed on 10 July 2014. 

4. I explained to the applicant the limitations on the Court’s jurisdiction and the difficulties I had with the purported grounds advanced by her.  I explained that it was not open to me to substitute a different decision for that made by the Tribunal.  I explained that if the Tribunal decision was a legally valid one, only the Minister can change it.

5. When I invited oral submissions from the applicant, she stated that she had nothing to say.  She confirmed that she had nothing to say when I invited her to make submissions in reply after giving the Minister’s solicitor the opportunity to make submissions.  The Minister relies upon the written submissions that were filed.

6. It is, in my view, plain that no arguable case of jurisdictional error arises from the purported grounds in the application.  Clearly, the Tribunal considered the claims advanced by the applicant.  Nothing was overlooked.  The Tribunal was under no general obligation to make its own inquiries, and in my opinion, nothing arose in this case which called for some independent investigation by the Tribunal.  The adverse credibility conclusions reached by the Tribunal in relation to the applicant’s claims were open to the Tribunal on the material before it.

7. I otherwise agree with the Minister’s written submissions. 

Ground One

1. Ground One is factually misconceived. Taken at its highest, Ground One alleges three things. First, that the Tribunal failed to consider the applicant's fear of the government.  The Tribunal did in fact consider this claim at [12]-[22][13].  Secondly, that the Tribunal failed to consider the circumstances around the applicant's failure to seek protection in other countries.  The Tribunal did in fact consider the applicant's claim not to have had knowledge that she could do so at [15][14].  Its findings in relation to these two points were open to it on the evidence before it.

   [13] CB 100-104

   [14] CB 101

2. Thirdly, Ground One asserts a general failure to consider the applicant's evidence presented by the applicant outside of her statement. The Tribunal noted that its assessment was informed by the applicant's visa application form and documents provided in support of that application as well as evidence presented orally to the Tribunal. These sources, alongside the applicant's written statement, are referred to throughout the Tribunal's decision. 

3. Accordingly, this ground does not demonstrate any jurisdictional error

Ground Two

1. At its highest, this ground seeks to impugn the Tribunal's finding that the applicant was not a credible witness. From the decision record, it would appear that the applicant was given an opportunity to comment on her failure to provide documentary evidence. The Tribunal considered this in the context of its “significant, cumulative credibility concerns” and determined that it was not satisfied of the truth of the applicant's claims[15].  These findings were open to the Tribunal on the evidence before it.  Therefore this ground must fail. 

   [15] CB 103 [21]

Ground Three

1. Ground Three does not rise above a simple dispute over the merits of the Tribunal decision.  This Court is not a forum for adjudication of the merits of a case[16].  Accordingly, this ground must fail.

   [16] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

2. I conclude that the applicant is unable to demonstrate any arguable case of jurisdictional error by the Tribunal. I will, accordingly, order that the applicant be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in the amount of $3,326.  That was the prescribed amount at the time the application was filed.  The solicitor for the Minister confirmed that the Minister’s actual costs are greater.  The applicant considers that that sum is too high, but it transpired that that was not a disagreement with the value of the services rendered on behalf of the Minister, but rather an indication of the applicant’s capacity to pay.  I am satisfied that costs of not less than the amount sought have been reasonably and properly incurred on behalf of the Minister when assessed on a party-party basis.

4. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  20 March 2015