SZUPU v Minister for Immigration

[2015] FCCA 914

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 914

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Applicant: SZUPU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1812 of 2014

Judgment of: Judge Street

Hearing date: 10 April 2015

Date of Last Submission: 10 April 2015

Delivered at: Sydney

Delivered on: 10 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1812 of 2014

SZUPU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s. 476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 3 June 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) Visa.

2. The grounds of the application are as follows:

   1. RRT interrupted me frequently and won’t allow me to finish my sentences.

   2. The interpreter is very impatient and asked me to stop frequently.

   3. The RRT asked very mean questions and has bias against me.

   4. RRT ignored my statement and evidence and says it will disregard a lot of my evidence by saying simplifying the facts.

   5. My experience is complicated, RRT has no right to ask me to simplify my experience. It’s unreasonable and unfair.

   6. RRT says the whole interview is only two hours, this is unfair to set my evidence within this time. I wasn’t afforded the procedural fairness.

3. The material that was before the Tribunal in the Court book has been marked as an exhibit and the applicant has adduced no other evidence.  The applicant has confirmed receipt of the first respondent’s submissions and response to the invitation as to whether the applicant wished to say anything, as to why there was a jurisdictional error in the decision of the Tribunal, the applicant indicated that she did not wish to say anything.

4. The applicant is a citizen of China and her claims were assessed against that country as the country of reference.  The applicant arrived under a student visa in Australia on 5 December 2012, which was valid until 30 September 2013.  It was only on the 26 September 2013 that the applicant applied for a protection visa when her student visa was about to expire.

5. The Tribunal made adverse findings in relation to the credit of the applicant that were clearly open on the material before the Tribunal.  The Tribunal’s decision notes that the delegate refused the applicant’s application on 30 January 2014 and that the applicant appeared before the Tribunal on 29 May 2014 to give evidence and present arguments.  The Tribunal notes that at that hearing, the Tribunal raised with the applicant the various problems with her evidence and the issues of credibility.

6. Those issues of credibility were patent in light of the fact that she arrived under a student visa and it was only on the expiry of that student visa that the applicant applied for protection.  The Tribunal carefully identified the claims of the applicant, including her claims relating to Christianity.  The Tribunal found that it was not satisfied the applicant had any involvement in the underground Christian Churches in China and found that like her other claims this was entirely fabricated in an attempt to provide a basis for protection in Australia.

7. The Tribunal was not satisfied the applicant would seek to pursue any involvement with the underground churches upon her return to China and materially the Tribunal found it was not satisfied that there was any real chance the applicant will suffer harm if she returns to China now or in the reasonably foreseeable future or as a result of any association with any underground Christian Churches.

8. The Tribunal relevantly found that it was not satisfied that the applicant had a well-founded fear of persecution for reasons of her religion, her political opinion or imputed political opinion or for any other Convention reason if she returns to China now or in the reasonably foreseeable future.  The Tribunal addressed the considerations of complementary protection and noted that it had not accepted the applicant’s claims in relation to the acquisition of her business by the authorities and had not accepted that she or her family have suffered any harm as a result of that issue.

9. The Tribunal found that it is not satisfied the applicant will suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture, cruel or inhumane treatment or punishment or degrading treatment or punishment for any reason upon her return to China.  The Tribunal then found that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk she would suffer significant harm.

10. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under s.36(2)(a) and s. 36(2)(aa) of the Migration Act were not made out.  Those findings of the Tribunal were clearly open.  The findings cannot be said to lack an evident and intelligible justification.  There is no substance in relation to ground 1 of the application. There was nothing identified by the applicant as to any material matter upon which the applicant was unable to present evidence. The testing of the applicant’s evidence by the Tribunal and focus upon the matters required to be addressed to establish a protection obligation do not give rise to any jurisdictional error.

11. There is no evidenced to support any assertion of inability to present the applicant’s claims and it is clear from the Tribunal’s decision that the applicant’s claims were carefully identified and properly addressed.  There is no substance in relation to ground 2 and no evidence has been adduced to identify any material aspect in respect of which it is alleged there is some interpretation. There was no supporting content in respect of the alleged impatience and I am satisfied that this was not conduct upon a reasonable might apprehend that the Tribunal failed to bring and independent and impartial mind to the determination of the matter on its merits.  I am satisfied that there was no aspect of the applicant’s material claims that the Tribunal did not properly address in its review.

12. The allegation in Ground 3 of bias against the Tribunal by reason of asking mean questions is without substance.  A reasonable person would not consider that the Tribunal might not bring an impartial or independent mind to the determination of the matter on its merits by reason of conduct involving asking questions testing the applicant’s evidence.  It was a legitimate and relevant matter for the Tribunal to pursue appropriate questions to determine the credibility of the applicant in relation to her claims.

13. There is no substance in relation to ground 3.  In relation to ground 4, it is clear that the Tribunal carefully identified the applicant’s claims and the evidence given by the applicant and there is no substance in relation to ground 4.  In relation to ground 5, this appears to be a misconception that the Tribunal was not entitled to test and determine the credit of the applicant.  The applicant’s credit was a matter for the Tribunal to determine.

14. There is no substance in the assertion that the Tribunal’s review was either unreasonable or unfair.  Further, the findings were clearly open on the material before the Tribunal and cannot be said to lack evident and intelligible justification.  In relation to ground 6, it is clear that the Tribunal carefully addressed the applicant’s claims and the applicant’s evidence, and there is no substance in the assertion that the conduct of the review was unfair or that the applicant was not afforded procedural fairness. It is clear that the applicant had a genuine hearing and that the Tribunal complied with the statutory regime in the conduct of the review. In these circumstances, it is clear that the application does not identify any jurisdictional error in the conduct of the review by the Tribunal.  The application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015