SZULS v Minister for Immigration

[2015] FCCA 987

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 987

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application to show cause – whether applicant has raised an arguable case for the relief he seeks – no arguable case demonstrated – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: SZULS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1500 of 2014

Judgment of: Judge Manousaridis

Hearing date: 14 April 2015

Delivered at: Sydney

Delivered on: 14 April 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Applicant: Mr K. Eskerie of
Sparke Helmore Lawyers

ORDERS

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

2. The applicant pay the first respondent’s cost set in the amount of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1500 of 2014

SZULS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent moves for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application commencing these proceedings be dismissed because the application does not raise an arguable claim for the relief it seeks. By that application the applicant applies to set aside a decision of the second respondent (Tribunal) which affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. Before the Tribunal the applicant claimed that in China he grew fruit trees and had a transportation business.  The applicant or his parents, it is not clear which, owned the orchard on which the applicant grew trees.  The applicant left China because his life was threatened by a person whom I will refer to as “Mr X”.  The reason for the threat was that Mr X had an orchard that was not as productive as the orchard owned by the applicant or by his parents, and Mr X coveted the applicant’s orchard.  The applicant feared Mr X because Mr X has a brother-in-law who is associated with an underground gang, and Mr X assaulted the applicant on a number of occasions.  The applicant further claimed that Mr X took his or his parents’ orchard, yet the applicant still feared him. 

3. The Tribunal did not find the applicant to be a credible witness.  Although the Tribunal found the applicant’s evidence before the Tribunal to be broadly consistent with the claim the applicant made in his written application for protection, the Tribunal nevertheless found there were significant variations.  The Tribunal found the applicant’s claims that he travelled from China to Australia because he was frightened of Mr X to be farfetched and improbable.  It also found the claim to be vague and unconvincing.  The Tribunal found the applicant could not plausibly explain why Mr X would have an adverse interest in the applicant, given that, according to the applicant’s evidence, Mr X had obtained the orchard from him.  The Tribunal did not find persuasive the applicant’s evidence that Mr X hated the applicant.  The Tribunal also found the applicant was unable to plausibly explain why he did not attempt to relocate to another province in China.  Because the Tribunal did not accept the applicant was a credible witness, it did not accept the applicant suffered any harm or that the applicant would suffer any harm if he were to return to China. 

4. The application for review contains the following grounds of review: 

   1. [Mr X] has a supporter of his relative who works at PSB of his local town. He intended to buy my orchard with large harvest. I refused it. He hired the thug to brutally beat me and threatened to be eliminated. I am an ordinary person and powerless to resist. No one can support me. I had to sell my truck to escape Dajun MA. When the situation in China changes, I will return to China.

   2. The Tribunal member said: “I have found that the applicant has not suffered any harm in the past for the reasons claimed.” I think the member’s view is not just.

   3. The RRT member made jurisdictional error.

5. The applicant appeared without any legal representation.  Each of the grounds specified in the application was interpreted to the applicant, and he was invited to make submissions in relation to those grounds.  The applicant made no oral submissions.  He said that everything was in the documents.  I will therefore consider each of the grounds of review stated in the application. 

6. The first ground of review repeats the claims for protection the applicant made to the Tribunal.  It does not raise any arguable case of jurisdictional error by the Tribunal.  Whether or not the applicant had a valid claim for a protection visa was a matter that was within the Tribunal’s jurisdiction to decide.  The only role of this Court in relation to decisions made by the Tribunal is to consider whether the Tribunal in any given case has exercised its jurisdiction according to law. 

7. The second ground stated in the application simply expresses disagreement with the Tribunal’s conclusions.  It too therefore raises no arguable case of jurisdictional error.  As I have already stated, it is not the role of this Court to determine whether an applicant such as the applicant before this Court in this case has a valid claim for a protection visa. 

8. The third ground baldly asserts jurisdictional error.  That is a conclusion of law.  The applicant has not identified in his application any aspect of the Tribunal’s decision affirming the delegate’s decision or any aspect of the processes by which the Tribunal affirmed the delegate’s decision that raises an arguable case of jurisdictional error.  Quite apart from the three grounds raised by the applicant in his application, there is nothing in the material before me that suggests the Tribunal undertook its review of the applicant’s claims in a manner other than according to law. 

9. I propose therefore to dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and order that the applicant pay the first respondent’s costs.

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

Associate: 

Date:  17 April 2015