SZUJJ v Minister for Immigration

[2016] FCCA 2243

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2243

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Federal Circuit Court Rules 2001, r.44.12
Migration Act 1958, ss.36, 474

Cases cited:

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUJJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1381 of 2014

Judgment of: Judge Cameron

Hearing date: 19 August 2016

Date of Last Submission: 19 August 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E. Warner Knight of Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12 of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,326.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the second respondent in this proceeding.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1381 of 2014

SZUJJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 6 June 2013. On 4 July 2013 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that she feared persecution in China because of her religious beliefs. On 10 December 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court today for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to her.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful today the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The applicant’s claims were summarised by the Minister in his written submissions as follows:

   4.The applicant claimed to fear persecution in China for reason of her involvement with Falun Gong and her association with Falun Gong practitioners.  In her application, she claimed to have started practising Falun Gong as a result of her parents’ involvement in Falun Gong. She said that her parents were spreading Falun Gong, so the government began to pay attention to them.  She claimed her parents sent her to study in Shenyang from 2006 to 2010 as they feared the government’s attention would affect her.  Following this, she moved to Beijing to work as an office clerk.

   5.The applicant also claimed that she was told by her family’s lawyer that her parents were sentenced to 3 years imprisonment for organising Falun Gong.  She claimed that in Beijing she met a Falun Gong enthusiast and developed a deep understanding of Falun Gong which she practised in secret.

2. I adopt the Minister’s summary of the applicant’s claims.

3. The applicant was invited to attend an interview with the delegate on 5 December 2013.  She did not attend the interview or contact the Department to request a postponement.  She attended a hearing before the Tribunal on 4 April 2014.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. In his written submissions the Minister set out the Tribunal’s findings and reasons in the following terms which I adopt:

   7.The Tribunal affirmed the decision of the Minister’s delegate on 17 April 2014. It found that the applicant’s evidence was not credible, and that she had manufactured her claims.  The Tribunal did not accept the applicant was a Falun Gong practitioner or that she associated with any Falun Gong practitioners.

   8.The Tribunal considered a number of country information reports relating to the treatment in China of Falun Gong practitioners and the treatment of their associates and family members.

   9.The Tribunal found the applicant’s responses to even simple questions, such as where she lived and worked in China, to be evasive and changing. It found she was not frank or honest in her evidence to the Tribunal on simple issues.  For example, in her Protection visa application she claimed that before she moved to Beijing she lived in Shenyang City, at the hearing she claimed she lived in Mudanjiang, Heilongjiang and Dongbei before moving to Beijing.  She also gave changing evidence as to the reason why she had not attended the interview with the delegate. The Tribunal considered these matters cast significant doubt on the reliability of her evidence.

   10.The Tribunal noted that at the hearing the applicant claimed she had obtained her passport in 2013 in [her home city], but after being reminded of her claim that she had been warned by her family lawyer to remain in Beijing to avoid persecution in [her home city] due her parents’ imprisonment, the applicant changed her evidence and claimed that she applied for the passport in [her home city], but then returned to Beijing, and PSB sent the passport to her there.  The Tribunal considered that these inconsistencies cast serious doubt on her claims of her parents’ alleged Falun Gong practice and imprisonment, and her claim that she had been told by her family’s lawyer not to return home.  Furthermore, the Tribunal found that the applicant’s ease of obtaining a passport was inconsistent with country information concerning treatment by authorities of relatives of Falun Gong practitioners.

   11.The Tribunal then turned to consider the applicant’s evidence in respect of her own Falun Gong practice.  It found her evidence of her own practice, and that of her parents to be particularly vague, lacking in detail and inconsistent.  For example, at the hearing, the applicant indicated she was unsure about her parents’ Falun Gong practice.

   12.The Tribunal found the applicant’s knowledge of Falun Gong was highly unpersuasive and the lack of detail about Falun Gong she provided was not consistent with a genuine Falun Gong practitioner.  The Tribunal noted the applicant’s limited knowledge of important aspects of Falun Gong, including the principal text of Falun Gong, and found it cast considerable doubt on her claims to have been a practitioner in China.

   13.The applicant’s evidence about her Falun Gong practice in Australia was similarly vague and inconsistent.  The Tribunal also noted the applicant at one point said she did not read Falun Gong material regularly, though later claimed she read it frequently, and as to her own practice of Falun Gong in Australia, the Tribunal had to prompt the applicant, who ultimately claimed she had not practised since July 2013, agreed she could not demonstrate the exercises and claimed she was too busy with her work.  The Tribunal did not accept that the applicant had ever practised Falun Gong in Australia.

   14.Finally, the Tribunal turned to consider the complementary protection criteria. Given the applicant had made no claim to fear harm in China on any other basis, the Tribunal was not satisfied that there are substantial grounds for believing there is a real risk the applicant would suffer significant harm in China for any reason. It found the applicant did not satisfy the criterion under s 36(2)(aa) of the Act.

   (References omitted)

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.RRT in unfair.  By asked me about my work status and my China address are not related to my Protection application.  RRT should not be unsatisfied my credibility, because of I didn’t provide my work status and China address.

   2.As a Fulun Gong practitioner, once I come back to China, they will persecute me not matter I am a senior practitioner or junior practitioner.

Ground 1

1. The nature of the unfairness alleged in the first ground of the application is not clear on the face of the application and was not clarified or explained at the hearing today.  It appears to be an assertion that the questions asked of the applicant by the Tribunal concerning her work in Australia and her addresses in China were ones which unreasonably put her in a bad light or which the law otherwise required not be asked because answers to those questions could have no proper relevance to the Tribunal’s review. 

2. The applicant did not attempt to make out an argument to the effect of the latter characterisation of her claim and, in any event, I do not think that such a characterisation would be arguable.  This is because a Tribunal is entitled to ask questions which elucidate the claims before it, even if the answers put an applicant’s credibility into question.  The questions to which the applicant referred were questions of that nature. 

3. Similarly, the former characterisation of the applicant’s first allegation is not arguable because it disputes the Tribunal’s right to consider an applicant’s credibility and to ask questions relevant to that consideration.  To the extent that the questions to which the applicant takes objection were directed to testing the general credibility of her account, the response is that the Tribunal was entitled to do that.

Ground 2

1. The second ground of the application is no more than an invitation to the Court to reach a finding on the merits of the applicant’s protection visa application different from the Tribunal’s.  The Court is not empowered to do that.  Consequently, that ground is not arguable.

Conclusion

1. It has not been demonstrated that the applicant has an arguable case for the relief she claims.

2. Consequently, the application will be dismissed pursuant to r.44.12 of the Court’s Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 30 August 2016