SZUHL v Minister for Immigration

[2015] FCCA 289

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 289

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

Migration Act 1958 (Cth), s.91R

Applicant: SZUHL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1202 of 2014

Judgment of: Judge Driver

Hearing date: 11 February 2015

Delivered at: Sydney

Delivered on: 11 February 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Senanayake 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 in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1202 of 2014

SZUHL

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 9 April 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had claimed protection on the basis of his asserted practice of Falun Gong.  The applicant arrived in Australia on a student visa in 2007.  He sought a protection visa on 23 November 2012.  The Minister’s delegate refused that application on 20 March 2013. 

2. The applicant sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing.  The applicant attended that hearing on 12 December 2013 and gave evidence and presented arguments.  It is apparent from the Tribunal’s record of what occurred at the hearing that the Tribunal had reservations about the applicant’s claims. 

3. The Tribunal made comprehensive adverse credibility findings against the applicant. The Tribunal found that the applicant did not commence practising Falun Gong until he came to Australia and became a serious practitioner in 2010. The Tribunal found that the applicant only engaged in that practice in order to support a claim for protection. His conduct was, therefore, disregarded pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act). The Tribunal found that the applicant had not been a practitioner in China and at no stage was he a genuine practitioner. Accordingly, the Tribunal found that he would not be at risk of significant or serious harm, because of his asserted Falun Gong practice, should he return to China.

4. The applicant relies upon his show‑cause application filed on 5 May 2014.  There is an attachment to that application which contains six paragraphs.  The first three paragraphs set out in summary form the applicant’s claims to protection.  The second three paragraphs purportedly set out the grounds of review.  Of those, the first two grounds simply expressed disagreement with the Tribunal’s reasoning.  The third ground asserts unreasonableness.  I confirmed with the applicant that he is arguing that the Tribunal acted unreasonably in a legal sense.  When prompted by me, he confirmed that he claims that the conclusions reached by the Tribunal were not open to it on the material before it.  That assertion is not, in my view, arguable. 

5. It is plain from the Tribunal’s decision record that there was material before the Tribunal which formed a rational basis for the Tribunal’s reasons.  That material included the evidence provided by the applicant at the hearing before the Tribunal and his migration history.  To the extent that the last ground is intended to be a no‑evidence ground, I agree with the Minister that there was material available to the Tribunal supporting its decision. 

6. The show cause application was supported by a short affidavit, which I received as a submission.  In that affidavit, the applicant simply confirms his fear of returning to China. 

7. I received as evidence the court book filed on 16 June 2014.  I provided the applicant with the opportunity, in directions I made on 8 July 2014, to file and serve an amended application and additional evidence.  He has not taken up that opportunity; neither was he, in the course of oral argument, able to point to any other asserted jurisdictional error by the Tribunal.  On my own reading of the material, no arguable case of error is apparent to me.

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

9. 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 $3,326.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  19 February 2015