SZUGO v Minister for Immigration

[2014] FCCA 2919

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2919

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

Legislation:

Federal Circuit Court Rules2001 (Cth)

Migration Act 1958 (Cth), s.424A

First Applicant: SZUGO

Second Applicant: SZUGP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1119 of 2014

Judgment of: Judge Driver

Hearing date: 11 December 2014

Delivered at: Sydney

Delivered on: 11 December 2014

REPRESENTATION

The First Applicant appeared in person

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

INTERLOCUTORY ORDERS

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

2. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1119 of 2014

SZUGO

First Applicant

SZUGP

Second 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 1 April 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There were two applicants before the Tribunal.  They are the first applicant, the applicant mother, and her infant son.  At the time of the Tribunal decision the first applicant was pregnant with a second child.  That child has now been born.  The second child was not a party to the Tribunal proceedings and is not a party to these proceedings. 

2. The relevant protection claims were made by the first applicant.  In these proceedings she was the litigation guardian of the second applicant.  References in this judgment to “the applicant” are intended to be references to the first applicant. 

3. The applicant is a citizen of China (Fujian Province).  She first arrived in Australia in 2007 as a student.  She applied for the protection visa on 7 September 2012.  The Minister’s delegate refused that application on 12 March 2013.  The applicant sought review by the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  The applicant attended that hearing and answered questions about her claims.  It was apparent at the hearing that the Tribunal had credibility concerns.  Her claims were based on her asserted Christian religion as well as on the Chinese one child policy. 

4. After the hearing the Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act 1958 (Cth). The applicant responded to the adverse information contained in that letter. The Tribunal rejected the applicant’s claims to be a Christian. That rejection extended both to her asserted experiences in China and in Australia.

5. The Tribunal accepted that the applicant would have to pay a social compensation fee for her child born out of wedlock.  The Tribunal accepted that the fee would be increased by the birth of her second child.  The Tribunal was not persuaded that the impact of the fee would be so great as to amount to persecution.  The Tribunal also concluded that the applicant did not qualify for complimentary protection. 

6. These proceedings began with a show cause application filed on 24 April 2014.  The applicant continues to rely upon that application.  The application is supported by a short affidavit which I received.  That was filed with the application on 24 April 2014.  I also have before me as evidence the book of relevant documents filed on 23 June 2014.  The application contains an attachment which sets out what are described as the grounds of the application.  These are in a form with which the Court is familiar. 

7. The applicant disagrees with the decision of the Minister’s delegate and the Tribunal.  The decision of the Minister’s delegate is a primary decision which the Court cannot review. 

8. The applicant asserts that the Tribunal did not consider that her child and she would be in danger if they return.  That is indeed what the Tribunal decided.  However, that decision was based on a consideration of the applicant’s claims.  Likewise, the second ground that the Tribunal did not consider that the applicant would be persecuted and in “big trouble” if she returns home is literally true but does not point to any jurisdictional error. 

9. In Ground 3, the applicant asserts that the Tribunal member failed to consider her fears and concerns about her faith and, in particular, her child’s future on return.  She asserts that she was not trusted and the Tribunal had a prejudiced attitude.  She asserts that the Tribunal should grant her application. 

10. In my view, and as explored with the applicant during the course of today’s hearing, this ground does not rise above a disagreement over the merits of the Tribunal’s decision. 

11. The attachment to the application also repeats, in general terms, the applicant’s protection claims.  The third paragraph of that part of the attachment also states that the Tribunal failed to consider the reality that both the applicant’s child and she would be denied by the society. 

12. I explored that in argument with the applicant.  I understand that she disagrees with the Tribunal’s assessment of her relations with her family in China and the risks that she and her children would face on return.  Again, that disagreement does not rise above a dispute over the merits of the Tribunal decision. 

13. I asked the applicant what mistakes she believes were made by the Tribunal.  She expressed indignation that the Tribunal found that she is not a Christian.  While that indignation is understandable, the Tribunal’s adverse credibility conclusion was open to it on the material before it.  The conclusion is a reasoned one following a fair hearing. 

14. The applicant contends that the Tribunal did not seriously consider her claims.  I take that to be an assertion that there was no active intellectual engagement by the Tribunal in the review.  I reject that contention based upon the detailed consideration of the applicant’s claims apparent from the Tribunal’s reasons. 

15. In her oral submissions that applicant also asserted that the Tribunal hearing was unfair.  She claimed that the interpreter had a cold or the flu and coughed a lot.  This claim was not made in the application.  The applicant has not taken up the opportunity I afforded her to provide an amended application or additional evidence.  It was raised before me for the first time today. 

16. The applicant conceded that she had not made any complaint to the Tribunal at the hearing.  The Tribunal’s reasons are silent on any problem at the hearing.  There is no evidentiary support for the assertion.  I am not persuaded that there is an arguable case of procedural unfairness because of any problem at the hearing with the interpreter. 

17. I conclude that the applicant has not raised an arguable case of jurisdictional error by the Tribunal. Accordingly I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).

18. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,900.

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

Associate: 

Date:  12 December 2014