SZUHK v Minister for Immigration

[2014] FCCA 2713

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2713

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), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: SZUHK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1198 of 2014

Judgment of: Judge Driver

Hearing date: 19 November 2014

Delivered at: Sydney

Delivered on: 19 November 2014

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Ms A Wong of DLA Piper Australia

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1198 of 2014

SZUHK

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 applicant a protection visa. 

2. The following statement of background facts relating to the applicant’s claims to protection and the decision of the Tribunal on them is derived from the Minister’s outline of legal submissions.

3. The applicant is a female citizen of China[1] who applied for a protection (Class XA) visa on 14 December 2012.    Her claims were set out in a statement attached to the application[2], which claimed, in summary that she feared harm from government officials who interfered with her clothes wholesale business.  The applicant claimed that those officials threatened and extorted money from her.  The applicant further claimed that her factory was set on fire on 21 June 2012.

   [1] DOB: 9 September 1977

   [2] CB 45-46

4. The application was refused by a delegate of the Minister on 19 August 2013[3] and an application for review was made to the Tribunal on 19 September 2013, which attached the delegate's decision[4].

   [3] CB 55

   [4] CB 65-85

5. The applicant provided the same statement to the Tribunal on 28 February 2014.[5]  The applicant attended a hearing before the Tribunal on 14 March 2014.[6]  On 1 April 2014 the Tribunal made its decision to affirm the decision not to grant the applicant a protection (Class XA) visa. 

   [5] CB 97-98

   [6] CB 99

The decision of the Tribunal

1. The Tribunal found that there were several inconsistencies in the applicant's own evidence and made an adverse credibility finding against the applicant.[7]  It found that the applicant gave inconsistent evidence about when she started her business[8], the length of renewal for her business licence[9], the reasons for the slowing down of her business[10] and the number of times she complained to the local officials.[11]

   [7] CB 124 at [16] and CB 126 at [25] 

   [8] CB 124at [17]

   [9] CB 124 at [18]

   [10] CB 124 at [19]

   [11] CB 124-125 at [20]

2. The Tribunal was not satisfied that the applicant was sleeping in a factory when it was set on fire.[12]  The Tribunal found that the applicant's evidence regarding her subsequent work in Shenzhen was inconsistent[13] and that her main reason for coming to Australia was economic.[14]

   [12] CB 125 at [21]-[22]

   [13] CB 125 at [23]

   [14] CB 125-126 at [24]

3. The Tribunal rejected all of the applicant’s claims and was not satisfied that the applicant owned a factory and ran a business in China, and was forced to pay bribes to local officials.  It did not accept that she complained to the authorities and as a consequence, the local officials burnt down her factory.  It did not accept that the applicant’s father received a call, warning the applicant to behave or that she too, will be burned.[15]

   [15] CB 126 at [26]

4. The Tribunal was not satisfied that the applicant satisfied the criterion in s.36(2)(a). The Tribunal stated that, as it rejected all of the applicant’s claims, it found there was no real chance of any harm occurring if the applicant were to return to China and the applicant did not satisfy the criterion in s.36(2)(aa).

5. These proceedings began with a show cause application filed on 2 May 2014.  The applicant continues to rely upon that application.  The application contains three grounds: 

   Grounds of application.

   1. RRT has denied that I owned a factory and business which is true.

   2. RRT has been wrong to question my honesty.

   3. RRT says I'm honest in relation to my employment and accepts that my employment may be limited but why denied that I had business.  This is unreasonable.

   (errors in original)

6. The application is supported by a short affidavit, which I received.  I also have before me as evidence the Court Book (“CB”) filed on 5 June 2014. 

7. The applicant complained that she had not received the Court Book.  I was told by the Minister’s solicitor that the Court Book had been dispatched via letter dated 5 June 2014 to the applicant at her then nominated address for service.  That address for service was changed by the applicant by a notice filed two months later.  The applicant continued to deny receipt of the Court Book.  I explained to the applicant what the Court Book contains.  I enquired of her whether she had any objection to me receiving it as evidence.  The applicant shrugged and, again, denied receipt of it. 

8. I received the Court Book into evidence and I am satisfied that the applicant has not been prejudiced by her non-receipt of it prior to today. 

9. Only the Minister has taken up the opportunity afforded in procedural orders for the parties to file and serve written submissions. 

10. This matter had been docketed to Judge Lloyd‑Jones and was listed to be heard by him on a show cause basis this morning at 10.15am.  His Honour was indisposed today and, hence, unable to deal with the case.  I had the matter called before me, and the applicant and the Minister’s solicitor appeared.  I was unable to deal with the matter at the time as I was hearing another case.  I enquired of the parties whether they could return in the afternoon at 3.30pm.  The Minister’s solicitor agreed but the applicant said that she had a medical appointment.  I asked the applicant for some evidence that she had a medical appointment.  She had none at the time, but I invited her to submit any medical evidence which showed that she was prevented from attending Court this afternoon for a medical reason.  I directed that the matter be adjourned for directions and/or hearing until 3.30pm. 

11. The applicant did not provide any medical evidence and appeared at the appointed time.  The show cause hearing proceeded. 

12. The applicant is not able to demonstrate any arguable case of jurisdictional error by the Tribunal.  The first two grounds advanced take issue with the Tribunal’s adverse credibility finding.  The finding was open to the Tribunal on the material before it.  As noted in the Minister’s submissions, the third ground appears to take issue with the Tribunal’s findings at [27],[16] which states:

    27.   When asked what the applicant fears if she returns to China the applicant indicated she will suffer economic hardship because she will not be able to do anything ‘big’, such as have her own business, and she will have to work for others.  The Tribunal accepts the applicant’s employment choices may be limited in China but it is satisfied she will be able to secure some form of employment.  It is not satisfied she will suffer harm because she cannot set up and run her own business. 

    [16] CB 126 at [27]

13. The Minister submits that, contrary to the ground pleaded, the Tribunal did not, in fact, find that the applicant was honest in relation to her employment.  The Minister submits that, properly understood, the applicant is taking issue with the Tribunal’s finding that she did not have a business.  The assertion in ground 3 that the decision was unreasonable is, in the circumstances, simply an expression of strenuous disagreement with the Tribunal’s finding.  On my own reading of the material, I can see no arguable case of jurisdictional error. 

14. I conclude that no arguable case of jurisdictional error by the Tribunal is available. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant did not wish to be heard on costs. 

16. I will order that the applicant to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount 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:  21 November 2014