SZUTT v Minister for Immigration and Border Protection
[2015] FCA 879
•13 August 2015
FEDERAL COURT OF AUSTRALIA
SZUTT v Minister for Immigration and Border Protection [2015] FCA 879
Citation: SZUTT v Minister for Immigration and Border Protection [2015] FCA 879 Appeal from: Application for leave to appeal: SZUTT v Minister for Immigration & Anor [2015] FCCA 721 Parties: SZUTT v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 370 of 2015 Judge: RANGIAH J Date of judgment: 13 August 2015 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – refusal to grant protection visa – whether any jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)
Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Federal Court Rules2011 (Cth) r 35.12Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Date of hearing: 13 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia Counsel for the Second Respondent: The second respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 370 of 2015
BETWEEN: SZUTT
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
13 AUGUST 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to Administrative Appeals Tribunal.
2.The application is dismissed.
3.The applicant pay the respondents’ costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 370 of 2015
BETWEEN: SZUTT
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE:
13 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application under r 35.12 of the Federal Court Rules2011 (Cth) for leave to appeal from a judgment of the Federal Circuit Court of Australia given on 27 March 2015. The Federal Circuit Court dismissed the applicant’s application for constitutional writs pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the grounds raised no arguable case for relief.
The applicant’s application to the Federal Circuit Court challenged a decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 June 2014 affirming a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.
The applicant’s claim before the Tribunal was that he feared persecution in China because of his religion. He claimed to be a member of the underground Local Church and that he had been persecuted in China before he arrived in Australia. The Tribunal found that the applicant was not a credible witness. It did not accept the claims he advanced in support of his application. The Tribunal found that the applicant was not a person to whom Australia owes protection obligations under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).
The applicant’s application to the Federal Circuit Court was based on the following grounds:
1, I don’t think RRT’s made a fair decision for my review as the member never untaken a careful and thorough consideration on my fear of no return to origin due to my commitment of local church, which has been outlawed and persecuted in China since early 80s.
2, RRT failed to consider in good faith with my statement, explanation and comments given in the hearing, ignoring the hard experience and threat due to my involvement and practice with underground church in origin.
3, RRT failed to prudently consider my constant pursuing in Christianity and church involvement in Australia especially my knowledge and church reference provided by church elder.
4, RRT failed to well consider my comments as invited off the hearing with details on each question asked.
5, It is unfair for RRT to make a judgment and decision simply depending on general country information and ignore the particulars and in my case by swiping away the details of explanation in particular the reason and special manner of departing China. RRT has ignored the fact that anything out of normal practice, track or procedure may definitely happen via paid arrangement or personal contact, and this is norm and prevailing social practice in present China.
(Errors in original.)
As to the first and second grounds, the Federal Circuit Court considered that the applicant was seeking impermissible merits review of the Tribunal’s decision. The primary judge held that the finding that the applicant was not credible was a matter for the Tribunal alone and that the finding was open to the Tribunal.
As to the third ground, the primary judge decided that the applicant’s Christianity and church involvement in Australia were considered by the Tribunal. His Honour said that to the extent that the applicant was challenging the Tribunal’s failure to accept his evidence, there was no arguable case of jurisdictional error.
The primary judge said that the fourth ground was difficult to understand. His Honour held that to the extent that the applicant sought to assert that the Tribunal did not properly consider the applicant’s answers to its questions, there was no arguable case of jurisdictional error.
As to the fifth ground, the primary judge held that the Tribunal was entitled to have regard to country information, and the weight that it gave to that information was a matter for the Tribunal.
As the primary judge concluded that the applicant had failed to demonstrate an arguable case of jurisdictional error by the Tribunal, his Honour ordered that the application be summarily dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules.
The grounds of the applicant’s application for leave to appeal are as follows.
1. I am a Chinese citizen and Christian who will be facing persecution by Chinese government due to my believes
2.I cannot go back to China since I am very scared to be sentenced and discriminated.
3. RRT member and the Federal court did not well consider of my fears and persecution if return to my home country.
(Errors in original.)
The applicant was unrepresented at the hearing but made oral submissions with the assistance of an interpreter. The applicant said that he had come to Australia to escape persecution and wrongful accusations in China. He said that members of the Local Church are persecuted in China and that he had come to Australia to pursue freedom of his religion genuinely, peacefully and freely. The applicant submitted that the Tribunal incorrectly decided that his claims were fake, and that it should have decided that his claims were genuine.
The applicant submitted that the Tribunal should not have doubted his claims on account of the fact that he did not attend the Local Church in Australia for 20 months after his arrival. He said that it was difficult to make contact with the Church because of his lack of knowledge of English and because of some difficulties he had with being cheated out of some money, which made him wary in terms of his dealings with authorities. He also said that he had been able to produce photographs and statements from elders of the Church, which demonstrated that he was a genuine member of the Local Church in Australia. He argued that in these circumstances the Tribunal should have accepted his claim as being genuine.
The applicant’s grounds of appeal are directed entirely to the merits of the Tribunal’s decision. He argues that the Tribunal’s decision was wrong. However, this Court has no jurisdiction to set aside a decision of the Tribunal on the basis that it should take a different view of the merits of the case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291–292.
The decision of the Tribunal was open to it. The decision was not unreasonable. The applicant has not demonstrated any arguable case of error on the part of the Federal Circuit Court, or of jurisdictional error on the part of the Tribunal. The application must be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 3 September 2015
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