SZUPQ v Minister for Immigration

[2015] FCCA 518

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 518

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424AA

Applicant: SZUPQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1796 of 2014

Judgment of: Judge Driver

Hearing date: 6 March 2015

Delivered at: Sydney

Delivered on: 6 March 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, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1796 of 2014

SZUPQ

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 29 May 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from China and had made claims of persecution based upon her asserted practice of Falun Gong.  The applicant first travelled to Australia on 2 January 2013 on a tourist visa.  She left China lawfully on 1 January 2013.  Her tourist visa had been granted on 27 December 2012 and was valid until 16 January 2013.  Her then current passport had been issued by the Chinese authorities on 8 May 2012.  She had no difficulties in obtaining the passport.  She had previously held a Chinese passport, with which she had travelled to Singapore, Malaysia, and Thailand, as well as to the territory of Macau. 

3. The applicant applied for a protection visa on 8 January 2013.  The Minister’s delegate refused that application on 29 July 2013.  At that stage the applicant was represented by a registered migration agent.  She sought review from the Tribunal on 23 August 2013.  The applicant was not represented by an agent on the review. 

4. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  She had not attended an earlier interview with the Minister’s delegate, to which she had been invited.  However, she did attend the Tribunal hearing on 20 May 2014.  The Tribunal’s decision record records extensive credibility concerns held by the Tribunal at that hearing.  The Tribunal, in its decision, found that the applicant’s evidence was particularly evasive, vague, and contradictory.  The Tribunal’s disbelief extended to basic issues about the applicant’s claimed personal background. 

5. The Tribunal, at the hearing, put to the applicant, pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act), a letter she had written to the Department in January 2014 enquiring about a spouse visa. That information appeared inconsistent with the applicant’s claimed personal circumstances in China. The applicant had made claims of detention in China as a result of her Falun Gong practice. The Tribunal disbelieved those claims, and indeed, was not satisfied that the applicant was a genuine Falun Gong practitioner at all.

6. The Tribunal found that the applicant was not a witness of truth.  The Tribunal did not accept the applicant’s basic claims of studying accountancy or computing, or working in that field, and in finance in China.  The Tribunal did not accept that the applicant has a husband in China, or that she suffered from postnatal depression after the birth of her son.  The Tribunal did not accept that the applicant had become a Falun Gong practitioner, or had had any involvement in Falun Gong in China.  Neither did the Tribunal accept that the applicant had undertaken any Falun Gong activities in Australia.  The Tribunal concluded that the applicant was not entitled to protection, either as a refugee or pursuant to the complementary protection criteria. 

7. These proceedings began with a show cause application filed on 30 June 2014.  The applicant continues to rely upon that application.  Under the heading “Grounds of application”, there are two paragraphs:

   1. Since 2007, I was a Falun Gong practitioner.  And was persecuted by the China authorities.  The Refugee Review Tribunal had bias against me and didn’t believe I was a [Falun] Gong Practitioner.  However, this is not supported by evidence or materials.  The Tribunal just assumed that I am not a Falun Gong practitioner and refused any of my claims.

   2. I request the Federal Circuit Court will accept my judicial review application for the decision of the Tribunal.

8. The applicant has not taken up the opportunity I afforded her to file and serve an amended application.  She relies upon a short affidavit filed with her application. 

9. I also have before me as evidence the court book filed on 5 August 2014.

10. There is no substance to the asserted ground of review.  That ground could be an assertion of no evidence, or could be an assertion of bias.  Plainly, there was evidence before the Tribunal to support its adverse credibility findings.  There is no evidence of bias.  The applicant confirmed during oral argument today that her only concern with the Tribunal decision is that she was not believed.  The purported second ground in the application is simply a request that the Court review the Tribunal decision. 

11. The applicant is unable to demonstrate any arguable case of a jurisdictional error by the Tribunal. Accordingly, I will dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks costs in the sum of $3,326, which was the amount prescribed at the time the application was filed.  The applicant did not wish to be heard on costs.  I will order that the applicant is to 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 March 2015