SZUTO v Minister for Immigration

[2015] FCCA 2990

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2990

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no arguable case raised for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13, Part 44

SZVIV & Anor v Minister for Immigration & Anor [2015] FCCA 1572
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 144 CLR 1

Applicant: SZUTO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2012 of 2014

Judgment of: Judge Nicholls

Hearing date: 2 November 2015

Date of Last Submission: 2 November 2015

Delivered at: Sydney

Delivered on: 2 November 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Ms B Rayment of Mills Oakley

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 18 July 2014 is dismissed pursuant to Rule 44.12 (1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2012 of 2014

SZUTO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 18 July 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), now known as the Administrative Appeals Tribunal, on 23 June 2014 which affirmed the decision of the delegate to refuse a Protection (Class XA) visa to the applicant (“the visa”).

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 9 May 2009 on a Student (Class 570) Visa.  The applicant returned to China in February 2010 and came back to Australia a month later. His student visa was cancelled on 28 May 2010. The applicant applied for a protection visa on 1 July 2013 (CB 1 to CB 26). The applicant’s claims were set out in a statement accompanying his protection visa application (CB 27 to CB 31).

3. The applicant’s claims to protection were said to arise out of his claim to fear harm from the Chinese authorities because he was a Falun Gong practitioner. The applicant’s parents practiced Falun Gong while he was in high school. His father was arrested during this period and “fled his hometown into hiding” and his mother was “summoned by the government” in 2006 for practicing Falun Gong (CB 29). The applicant was put in detention by the police in 2008 for two days, for his involvement in distributing Falun Gong leaflets.

4. The applicant travelled to Australia in May 2009 for the purpose of studying, after his parents had paid “guarantee money” to the government and signed a “written warranty, pledging not to contact any Falungong” activists outside China (CB 29). The applicant also claimed to fear harm because of his activities in Australia, as he would be seen to have breached the terms of this guarantee.

5. The applicant returned to China in February 2010 and introduced his family to the Shenyun Troupe. Further, he sent information about this troupe’s performance in Sydney in April 2012, to his father in China over the internet. The applicant claimed that the police checked his father’s computer and found the messages he had sent home about the troupe, and now his parents are “under the surveillance” of the “local government and police” (CB 30).

6. The delegate refused the application for the grant of the visa on 11 December 2013 (CB 47 to CB 64). Essentially, the delegate was not satisfied that the applicant was a credible witness (CB 55 to CB 59).

The Tribunal

1. The applicant applied for review of the delegate’s decision to the Tribunal on 7 January 2014 (CB 65 to CB 70) and attended a hearing before the Tribunal on 20 March 2014 (CB 77 to CB 79). The applicant provided further documents to the Tribunal, a copy of some passport pages, a lumbar spine x-ray document and untranslated documents (CB 80 to CB 90).

2. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 23 June 2014 (CB 92 to CB 106). The Tribunal found that the applicant was not a credible witness as he had “provided a number of pieces of inconsistent evidence” ([58] at CB 104). On this basis, the Tribunal did not accept his claims to protection ([60] at CB 104).

3. At the hearing with the applicant, the Tribunal put information to the applicant pursuant to s.424AA of the Act stating that the “previously inconsistent evidence or information” would be the reason, or a part of the reason, for affirming the decision under review. The applicant responded to this information at the hearing and provided further information to the Tribunal ([29] – [48] at CB 99 to CB 102).

4. The Tribunal found that the applicant’s “lack of basic knowledge about Falun Gong practice” was a “further strong reason” for the finding that the applicant was not a Falun Gong practitioner and that he had “fabricated his claim for the sole purpose of qualifying for the protection visa” ([56] at CB 103). Further, the Tribunal found that he was able to demonstrate “some knowledge” of Falun Gong practice, but that he had learnt these so as to “qualify for the protection visa” ([57] at CB 103 to CB 104).

5. The Tribunal found the applicant’s various explanations for the inconsistencies in his evidence, such as when his parents began practicing Falun Gong and his parent’s employment history, demonstrated the “unreliability of the applicant as a giver of evidence” ([59] at CB 104).

6. While the Tribunal did not accept “any of the claims” that the applicant advanced in support of his visa application ([60] at CB 104 to CB 105), the Tribunal accepted that the applicant had “spinal or back pain problems”. However, it did not accept that they were a result of torture in China as the “medical evidence” did not support this claim and there was no other evidence supporting this claim ([61] at CB 105).  The Tribunal accepted, on the basis of medical evidence provided, that his grandmother and father have “health problems” but did not consider this evidence “pertinent” to deciding the review ([62] at CB 105).

7. The Tribunal found that the applicant did not have “a well-founded fear of being persecuted for any Convention reason”. Further, the Tribunal, having regard to the claims and evidence put forward by the applicant, found that there was “no real risk that the applicant would suffer significant harm if [he] returned to China”. The Tribunal found that the applicant did not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act ([64] – [67] at CB 105 to CB 106).

Application before the Court

1. The grounds of the application to the Court, and the orders sought, were set out in an attached document. They are in the following terms:

   “Orders sought by Applicant

   1, I am a Chinese citizen and I am a genuine Falungong member. I have been practicing for years and I have been warned to be put in prison if I continue this activity.

   2, I can not stop practicing Falungong since it has helped a lot with my health condition. I can not go back to China since I am very scared to be sentenced.

   3, I have been actively practicing Falungong since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since I will be facing danger.

   …

   The Grounds of the Application are:

   1, I disagree with Immigration and RRT's decision since I am a genuine Falungong member. They did not consider that I will be in danger if I return.

   2, RRT did not consider that I am still actively practicing in Australia and it will also bring me a big trouble if I return home.

   3, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence”

Before the Court

1. The applicant appeared before the Court in person on 3 September 2014 and was assisted by an interpreter in the Mandarin language. By orders made on that day, the applicant was given the opportunity to file any further amended application and any evidence by way of affidavit. The applicant was put on notice at the first Court date that if he did not provide evidence in support of his application, or put any legal arguments before the Court, the Minister would seek to have the matter dismissed pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) (a “show cause” hearing).

2. At the next Court event, a callover on 11 March 2014, the Minister sought that the matter be set down for a “show cause” hearing as the application did not raise an arguable case for the relief sought. The matter was set down for a show cause hearing today. The applicant appeared in person and was assisted by an interpreter in the Mandarin language. Ms B Rayment appeared for the Minister.

3. When given the opportunity to address the Court, the applicant said he had “nothing” to say.  When subsequently pressed, the applicant asked the Court to consider his difficulties if he were to return to China. 

4. What is immediately apparent is that that latter statement misunderstands, and I say this with the respect to the applicant, the nature of these proceedings.  The Court has no power to grant the applicant a protection visa. The Court’s role is focused on the question of whether the Tribunal, in affirming the delegate’s decision, made a lawful decision [fell into jurisdictional error]. 

5. The application form lodged by the applicant sets out the orders sought and the grounds of the application in an attachment. I note that both the orders sought by the applicant, and the grounds of the application put to the Court, are in identical terms, including grammatical errors, as to those expressed in an application considered by this Court in May of this year (SZVIV & Anor v Minister for Immigration & Anor [2015] FCCA 1572).

Issue Before the Court

1. In any event, the issue before the Court now is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the only recognisable order that the applicant seeks is an order that the Tribunal’s decision be quashed and returned to it for reconsideration.

2. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. Other than seeking the quashing of the Tribunal’s decision, the other statements under the heading of “Orders Sought by the Applicant”, are no more than a general repetition of the applicant’s claims to be a Falun Gong practitioner and that he would suffer harm on return to China. These assertions do not assert jurisdictional error on the part of the Tribunal, and therefore cannot be said to raise an arguable case for the relief that is sought. 

2. Ground one, in part, asserts a disagreement with what is said to be the “immigration decision”. If this is some complaint about the delegate’s decision, then this Court has no jurisdiction to review the delegate’s decision in circumstances where, with reference to s.476(2) of the Act, the decision was reviewable, and reviewed, by the Tribunal. No arguable case is raised in those circumstances.

3. The ground also disagrees with the Tribunal’s decision and restates that the applicant is a genuine Falun Gong member.  On a plain reading of the Tribunal’s decision record, its conclusion, and the central reason for its decision, was its finding that the applicant was not a credible witness, and was not credible in the claims that he had made. The Tribunal ultimately found that the applicant was not a Falun Gong practitioner.  Plainly, the applicant disagrees with that finding.  However, it is the case that the Court has no power to intervene, and substitute its own findings of fact for those of the Tribunal. Noting that a finding as to an applicant’s credibility is a finding of fact. What is apparent, on the material that is before the Court, is that the Tribunal’s findings that led to the conclusion, and the conclusion itself, were all reasonably open to the Tribunal to make on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

4. In my view, on any plain reading of the Tribunal’s decision record, the reasons that the Tribunal gave were probative of the material that was before it.  In all, therefore, ground one asks this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu ShanLiang [1996] HCA 6; (1996) 185 CLR 259). Ground one does not raise an arguable case for the relief sought.

5. The applicant also complains that the Tribunal did not consider the risk of future harm to him, if he were to return to China.  This assertion cannot be made out on the evidence that is before the Court.  I note that the Tribunal’s expression, and its application of the relevant law in its decision record, does not reveal any misunderstanding of the relevant law, or any error in its application of the law.  The Tribunal gave comprehensive reasons for its conclusion that the applicant was not a credible witness.  No arguable case is raised in circumstances where the Tribunal’s central findings in this regard were all reasonably open to it (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332).

6. Ground two asserts that the Tribunal did not consider that the applicant was actively practicing Falun Gong in Australia, and would face harm on return to China for this reason.  The Tribunal’s decision record plainly reveals that this complaint is without merit.  The Tribunal did consider the applicant’s claims and evidence in relation to his Falun Gong practice in Australia.  For example, I note what is set out at [33] of the Tribunal’s decision record (at CB 100).  The Tribunal found, however, that he had not engaged in Falun Gong activity in Australia, or, for that matter, China.

7. The Tribunal’s findings in this regard were reasonably open to it on what was before it.  As I have said earlier, the Court cannot intervene to substitute its own findings of fact for those of the Tribunal.  Such findings, in the circumstances, are not susceptible to review by this Court.  No arguable case is raised by ground two.

8. Ground three appears to assert that the Tribunal’s decision was unreasonable because it rejected the truthfulness of the applicant’s claims. This was said to be because the applicant did not provide any evidence in support of his claims.  Again, on a fair reading of the Tribunal’s decision record, the Tribunal found adversely to the applicant because of its finding as to his lack of credibility and, separately, the long delay in applying for protection in Australia after arrival in this country.

9. The findings as to the lack of credit arose out of what the Tribunal found to be inconsistencies in his claims, and evidence, and what the Tribunal found was the applicant’s limited knowledge of Falun Gong, which was not commensurate with the claimed length and depth of his Falun Gong practice.  Again, these findings were reasonably open to the Tribunal. The Court is not able to intervene to substitute its own findings for those of the Tribunal.

10. I cannot see, in the circumstances, that the Tribunal failed in its application of the relevant law or came to a conclusion that was so unreasonable that no reasonable decision maker could have come to it.  Again, no arguable case is raised for the relief that the applicant seeks (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 144 CLR 1 at [78] per Heydon J and [130] – [131] per Crennan and Bell JJ). In all, therefore, I agree with the Minister, that, even at their highest, the grounds seek impermissible merits review and are therefore not of assistance to the applicant.

Conclusion

1. The grounds of the application do not raise an arguable case for the relief sought. It is the case that the rules of this Court provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicant is confined to the grounds in the application to the Court (r.44.13(1) of the FCC Rules). The applicant did not raise anything today that would have made it appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules.

2. In the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  9 November 2015