SZUPA v Minister for Immigration & Border Protection
[2014] FCCA 2689
•14 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUPA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2689 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZUPA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1753 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 14 November 2014 |
| Date of Last Submission: | 14 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter. |
| Solicitor for the Respondent: | Mr Stephen Spiers (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1753 of 2014
| SZUPA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 26 June 2014.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
On 14 October 2014, the applicant attended a directions hearing before me. The applicant did not have the assistance of an interpreter at that directions hearing. For that reason, the applicant was provided with the contact details of translating and interpreting services in a document headed in his own language, which also contained the contact details of legal services providers.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that may flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for judicial review of the Refugee Review Tribunal’s decision (“the RRT”). The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 24 October 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 24 October 2014.
The applicant was unrepresented before the Court this morning, although has the assistance of a Mandarin interpreter.
The applicant confirmed that he had not filed any further documents in support of his application and that he relied on the grounds of his initiating application. Those grounds are as follows:
“1. Regard to the claim that I was almost arrested by the police, because I took part in the Falun Gong activity, the Tribunal doubts the credibility is without evidence. In my written statement, what I want to express is distributing leaflets, maybe the mistake of translation caused the misunderstanding that the officer thought I was passing out leaflets to passerby. However, the fact is that I posted leaflets on such things as walls, lamp posts and notice boards in bus station. I tried to distribute leaflets with no one around, but unfortunately I was observed by the police at that day. My evidences are true and reliable without contradictions. The Tribunal made the conclusion that there are some contradictions in my evidences is totally unfair.
2. I meet the refugee criteria. RRT did not consider my fear of persecution. I am always in poor health, since I practised Falun Gong, my health improved a lot. Because the dispute with the head of the village, I was considered as a cult by the government and I therefore have been detained. RRT ignored the possibility I will be persecuted and did not review my case fairly.
3. The Tribunal failed to make a fair ‘complementary protection’ grounds test. I am of interest to the Chinese authorities because practicing Falun Gong. I would face persecution upon return to China. There are substantial grounds for believing that there is a real risk that I will suffer significant harm if I removed from Australia to China.”
The applicant was invited to say whatever he wished in support of those grounds, however, declined to make any submission in support of any of the grounds.
The background of this matter and the applicant’s claims are accurately summarised in the first respondent’s submissions as follows:
“Background
4. This is an application for judicial review of a decision by the Refugee Review Tribunal (Tribunal) made on 27 May 2014, by which it affirmed a decision of a delegate of the Minister (Delegate) to refuse to grant the applicant a Protection (Class XA) visa (protection visa).
5. On 5 May 2013, the applicant, a citizen of China, arrived in Australia on a Tourist visa. He absconded from his organised tour group and his absence was discovered on 14 May 2014.
6. On 21 May 2013, the applicant applied for the protection visa.
7. On 26 November 2013, the Delegate refused to grant the protection visa.
8. On 4 December 2013, the applicant applied to the Tribunal for review of the Delegate’s decision.
9. On 22 May 2014, the applicant, represented by his migration agent, appeared before the Tribunal to present arguments and evidence.
10. On 27 May 2014, the Tribunal affirmed the Delegate’s decision.
11. On 26 June 2014, the applicant applied for judicial review of the Tribunal’s decision.
Applicant’s Claims
12. The Applicant claims to fear harm in China on the basis that:
(a) he is a Falun Gong practitioner; and
(b) he has been accused of making a false accusation against an official for reasons related to a land dispute.
13. In two statements provided by the applicant in support of the protection visa application, the applicant provided information regarding the circumstances of his birth and family background. However, at the Tribunal hearing, the applicant confirmed that no claims for protection arose from these circumstances.
14. In support of his claims the applicant asserted that:
(a) in September 2010 he was caught by the police handing out leaflets extolling the virtues of Falun Gong. While attempting to escape he was hit by a car and fractured his leg. The police did not arrest him but noted his identity;
(b) in October 2010, he heard that the headman of a village sold a homestead (presumably the applicant’s) to provide a location for a coking plant. The applicant believed that the coking plant would be too close to the village. The applicant went to the “country director” to report the headman of the village, who told him to return home while he investigated;
(c) after the applicant returned home on 5 May 2012, he was arrested and detained for 6 days on charges of being a member of a cult organisation;
(d) the applicant was forced to sign a confession. He later recanted that confession and explained to an official that he had been forced to sign it, but was again tortured and forced to admit the original statement was correct. He was sentenced to prison for 6 months but only served 2 months. He returned home in September 2012. As a result of all these events, he lost his job and his wife left him; and
(e) the person who introduced him to Falun Gong told him that he could only survive if he went abroad. The applicant elected to travel to Australia and found a company that would help him.”
A copy of the RRT’s decision record is annexed to an affidavit of the applicant sworn 17 June 2014 and filed in support of the applicant’s initiating application filed on 26 June 2014.
The RRT’s decision record makes clear that it explored the applicant’s claims with him at a hearing in some detail and put to the applicant concerns it had about the applicant’s claims and noted the applicant’s responses. The RRT also noted that it had listened to the recording of the applicant’s interview with a delegate of the Department and satisfied itself that the summary of the applicant’s evidence in the delegate’s decision record presented a fair account of the applicant’s evidence.
The RRT noted the applicant’s evidence that he had not practised Falun Gong in Australia or read any Falun Gong literature. Ultimately, the RRT did not accept that the applicant is or was a Falun Gong practitioner and rejected his claims arising from his alleged involvement in Falun Gong.
The RRT concluded that the applicant would not be regarded by authorities in China as a practitioner of or associate of Falun Gong. The RRT also found that he would not become involved in Falun Gong were he returned to China in the reasonably foreseeable future and therefore concluded that there was not a real chance that the applicant could face harm in China for any reason associated with Falun Gong.
The RRT also considered the applicant’s claims relating to a land dispute and put to the applicant, pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Act”), information before it relating to the Department’s file regarding checks undertaken by the tour company prior to the applicant’s departure from China, which showed that the applicant continued to be employed there, despite the applicant’s claim to the contrary.
The RRT also put to the applicant, pursuant to s.424AA of the Act that in his application for protection, he stated that he had travelled to Korea in July 2012, which was inconsistent with his claims to have been in detention from 5 May 2012 to 8 September 2012. The RRT noted that the applicant did not seek further time to comment on either of the matters identified.
Ultimately, the RRT comprehensively rejected all the applicant’s claims relating to the circumstances giving rise to his alleged arrest in China in May 2012 and detention until September 2012. The RRT found that the applicant travelled to Korea in July 2012 and remained in employment in accordance with his protection visa application.
The RRT considered whether the applicant met the complementary criterion in section 36(2)(aa) for protection and concluded that, as the applicant had made no claims other than those comprehensively rejected by the RRT, the RRT has no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he would suffer significant harm.
The RRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility finding. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J)
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
None of the applicant’s grounds particularise any error capable of review by this Court and appear to be more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review, which this court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
None of the grounds of the application were supported by particular evidence or written or oral submissions. The allegations that the RRT ignored the possibility that the applicant will be persecuted, did not review his case fairly and made unfair findings presently have no prospect of success.
In relation to the applicant’s complaint about the RRT’s findings in its consideration of whether the applicant met the complementary protection criterion, the RRT’s finding would appear to be open to it on the evidence material and for the reasons it gave.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 26 June 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett.
Associate:
Date: 19 November 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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