SZUST v Minister for Immigration

[2015] FCCA 1970

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUST v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1970

Catchwords:
MIGRATION – 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: SZUST

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1955 of 2014

Judgment of: Judge Manousaridis

Hearing date: 15 July 2015

Delivered at: Sydney

Delivered on: 15 July 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms N Senanayake

ORDERS

1. The name of the second respondent be changed to read Administrative Appeals Tribunal.

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

3. The applicant pay the first respondent’s costs set in the amount of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1955 of 2014

SZUST

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a protection visa.

2. To determine that claim, it will be necessary to say something about the claims for protection the applicant made and which were considered by the Tribunal and the Tribunal’s reasons for not accepting those claims and affirming the decision of the delegate.

3. The applicant’s claims for protection were contained in a statement accompanying the applicant’s application for a protection visa.  In that statement, the applicant, who is a citizen of China, claimed his father was an introverted person with a quick temper, but that after the mid-Autumn festival in 2011, he was a different person.  The applicant and his family were “puzzled how Father would [sic] have become a different person”.

4. On 15 July 2012, the applicant’s father asked the applicant to visit him.  When the applicant arrived, the applicant’s father led him into a room, removed a booklet from his pocket, and asked the applicant to make 20 copies of the booklet within three days.  The applicant’s father warned the applicant not to read the booklet or tell anyone about its contents.

5. On 16 July 2012, the applicant visited an old school friend who was the owner of a photo-developing business in Gucheng town that had a copy machine and a fax for customers to use.  The applicant told his friend he needed help with something and invited him to go to dinner.

6. At dinner the applicant told his friend about the changes in his father’s character, his father’s request to make 20 copies of a five-page booklet, and his father’s direction that the applicant should not read its contents or allow others to know its contents.  The applicant asked his friend if he could copy the booklet in his shop.  The applicant’s friend hesitated, and said making copies of a booklet without knowing the content of the booklet could get them both in trouble with the police if the content of the booklet is banned by the Chinese government. The applicant assured his friend he would not get in trouble, because the applicant would copy the booklet himself and, in the event trouble arose, the applicant would take all responsibility.  The applicant then used the copy machine to make 20 copies of the booklet for his father, and although the applicant tried not to look at the contents of the booklet, he did see three Chinese characters - “Yi Guan Dao” - which, translated, means “the pervasive truth” or “the consistent path” or “one unity truth”.

7. On the evening of 21 July 2012, when the applicant arrived home from work, the applicant’s mother rushed to his house in panic.  The applicant’s mother informed him that four police officers had come to search their home.  A booklet was found under the applicant’s father’s pillow and seized.  The police officers claimed they had received information that the applicant’s father is a believer of Yi Guan Dao, a reactionary religious group banned by the government, and they took the applicant’s father to the police station for questioning.

8. Sensing a disaster was looming, the applicant went to see his boss to ask him to save his father.  The applicant claimed his boss had good connections and “knows a lot of things”.  The applicant’s boss was also worried and told the applicant he would ask his friend to get some information. 

9. The applicant’s boss visited the applicant’s home on two occasions.  On the first, two days after the applicant asked his boss for help, the applicant’s boss told the applicant he had spoken to a friend who worked with the town PSB, and he informed the applicant that practising Yi Guan Dao is even more serious than the underground church on the government’s blacklist, and that even if they spent money, no government official would help them because they might themselves get into trouble and lose their job.  The applicant’s boss also informed the applicant that his father had been transferred to a detention centre and that he had asked his friend to have a word with the detention centre to look out for the applicant’s father to prevent him from being tortured.

10. On the second occasion, the applicant’s boss informed the applicant that his father’s case was the first of its kind in the town and that, due to its serious nature, authorities from the province and city had sent people to supervise the handling of his father’s case.  The applicant’s boss was worried that the applicant may be detained next because he made copies of the booklet and then encouraged the applicant to try to escape to prevent being detained and sentenced.  The applicant’s boss told the applicant to leave his home in secret the next day and not to lose time organising the visa.

11. The applicant claims his brother also told him to leave home as soon as possible and that he would take care of the matter of saving their father.  The applicant left his home on 25 July 2012, first staying with a friend living in the suburbs. An agent organised an Australian visa. The applicant arrived in Australia on 7 September 2012. 

12. The applicant further claimed his father was being detained in a detention centre, and, whilst detained, he had been badly tortured.  The applicant said he feared persecution if he returns to China because he said it is only a matter of time before the police in China become aware that he copied the booklets and that he will be immediately detained and sentenced for unlawfully copying an illegal booklet of the reactionary religious group Yi Guan Dao.

13. The Tribunal was not satisfied the applicant’s claims were genuine or that his evidence was truthful.  The Tribunal found the applicant fabricated his claims about copying a booklet regarding Yi Guan Dao and his claims regarding the subsequent arrest warrant being issued.  The Tribunal relied on a number of matters.  First, it found that country information did not support the applicant’s claims.  The country information indicated there had been no reports of arrests or detention of Yi Guan Dao practitioners by the Chinese authorities in China since 1994.  Second, the applicant had a limited knowledge of Yi Guan Dao.  Third, although the applicant arrived in Australia on 7 September 2012, he did not apply for a protection visa until 30 January 2013.  That suggested to the Tribunal that the applicant did not have a genuine fear of persecution in China. The Tribunal did not accept the applicant’s explanation for his delay in applying for a protection visa, namely, that he lacked confidence, English skills and finances. The Tribunal did not find that explanation credible in light of the applicant’s having obtained accommodation and employment soon after entering Australia.  Fourth, the applicant had previously provided false and misleading information to the Australian government in stating that his purpose for visiting Australia was to study.  Finally, the applicant left China on his own genuine passport.  That suggested to the Tribunal that the applicant was not of interest to the Chinese authorities because of his father’s involvement with Yi Guan Dao or the applicant father’s arrest or the applicant’s copying a booklet regarding Yi Guan Dao or for any other reason.

14. The application for review filed by the applicant raises one ground, and that ground is as follows:

    The circumstances which I am in currently, if I returned to my country I will be arrested because I was involved with my father to become a member of Yi Guan Dao religion and my father is currently in jail.  I request if the court registrar review my application for a grant protection visa in Australia.

15. The applicant, who is not legally represented, when invited to make submissions in support of his application, said he did not propose to make any submissions to the Court.  In those circumstances, what I must consider is the ground stated in the application for review.  That ground does not disclose any arguable case of jurisdictional error.  It only records disagreement with the Tribunal’s decision and repeats the claims the applicant made before the Tribunal that the applicant will face persecution if he returns to China because of his father’s involvement with Yi Guan Dao and the applicant’s being associated with his father’s involvement in Yi Guan Dao.

16. The ground appears to assume that the role of this Court is to determine whether the applicant has reasonable grounds for obtaining a protection visa.  The jurisdiction of this Court is not of that nature.  The jurisdiction of this Court is to determine whether decisions made by the Tribunal have been made according to law. 

17. In these circumstances, I am satisfied that the application for review does not disclose an arguable case for the relief it seeks.  I propose, therefore, to dismiss the application with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  20 July 2015