SZUUB v Minister for Immigration

[2015] FCCA 2132

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2132

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether it was reasonably open to the Tribunal not to accept the applicant as a witness of credit – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Applicant: SZUUB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2033 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 July 2015

Delivered at: Sydney

Delivered on: 28 July 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter.

Solicitors for the Respondents: Mr L Gell of Clayton Utz

ORDERS

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

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2033 of 2014

SZUUB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicant is a national of China.  He seeks judicial review of a decision of the second respondent (Tribunal), who affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.  The applicant claims the Tribunal made a jurisdictional error by failing to consider the evidence of his risk of suffering significant harm if he returns to China.

2. To appreciate the jurisdictional error the applicant claims the Tribunal made and the oral submissions the applicant, who is not legally represented, made to me at the hearing it will be necessary to set out his claims for protection and the Tribunal’s reasons for rejecting those claims.

Applicant’s claims for protection

1. The applicant’s claims for protection were set out in a statutory declaration he made in support of his application for a protection visa.  In the statutory declaration he says that when in Africa he met a Falun Gong practitioner, who has a Falun Gong leader and activist in China but who had escaped from China after being prosecuted.  The Falun Gong practitioner introduced the applicant to the practice of Falun Gong.  In August 2011 the applicant returned to Beijing from Ethiopia.  A month later the applicant went to the police station to apply for some documents and was called into a room to have a private conversation with a police officer.  The police officer asked the applicant how he knew the Falun Gong practitioner and said:

   We know you are a good friend of [the Falun Gong practitioner] and you are still in contact with each other.  Please tell us his address in South Africa.

2. The applicant gave the police the Falun Gong practitioner’s old address.  The police officer asked the applicant a number of questions about the Falun Gong practitioner, but the applicant denied he knew the Falun Gong practitioner was a Falun Gong practitioner.  The police officer told the applicant that he was allowed to pass on a message to the Falun Gong practitioner that as long as he gave up Falun Gong the government would welcome him back to China at any time.  The police officer joked with the applicant that he could come to the police any time if he remembered anything and he would be rewarded for working for the government.

3. The applicant “felt the danger looming around” him and was very worried.  In addition, some unexpected things happened which were quite upsetting, and so he decided to visit Australia.  The applicant arrived in Australia on 11 December 2011 and returned to Beijing at the beginning of March 2012.  Three days after he returned home the Falun Gong practitioner rang the applicant and asked the applicant if he could help him find the whereabouts of his family.  The applicant went to the Falun Gong practitioner’s home but found there was no one there and the door was locked.

4. The applicant turned to leave and was stopped by two police in civilian uniforms.  The police took the applicant into the car and detained him in a small room, where he was interrogated.  The police threatened the applicant and smashed and slapped his face.  The applicant continued to deny knowing anything about the Falun Gong practitioner’s Falun Gong practice and was beaten until he could not stand the torture any more.  The applicant told the police of the conversation between him and the Falun Gong practitioner.

5. The applicant realised that his telephone had been hacked by the police.  He was secretly detained for two days, and because of the torture he had experienced in jail the applicant had facial spasms for which he had to undergo an operation.  The applicant then received a message from the Falun Gong practitioner that his family was also detained by the police and nobody had been informed of their whereabouts.  The applicant felt he was living in danger, so he decided to leave China with help from his family and connections by paying a lot of money.

6. The applicant arrived in Australia for the second time on 11 May 2012.  In early July 2012 the applicant’s wife rang him and told him that police came and pursued his whereabouts.  The applicant’s daughter was also questioned by the officers, who demanded the applicant come back to China and cooperate with the police.  The applicant’s family wanted him not to return.  The applicant’s facial spasm had improved from his practice of Falun Gong in Australia.  The applicant said he participated in the “Three Withdrawal” campaign and protested against Falun Gong “prosecution”. The applicant said he heard that there are many Chinese communist spies monitoring Falun Gong activities in Australia. 

Tribunal’s reasons

1. The Tribunal found the applicant was not a credible witness and had fabricated his claims for protection.  The Tribunal did not accept the applicant was a Falun Gong practitioner in Ethiopia, China or Australia.  The Tribunal relied on a number of matters for so concluding. 

2. First, at the hearing the applicant said that he was quite sure the police did not mention Falun Gong when he was questioned within a few days of returning to China from Ethiopia in August 2011. He said they just asked for information about the Falun Gong practitioner.  In his application the applicant claimed that the police asked whether the Falun Gong practitioner was a Falun Gong practitioner and also said they would summon the applicant if there was any new information about the Falun Gong practitioner or Falun Gong. 

3. Second, the Tribunal did not accept that the applicant left China in December 2011 because he felt danger was looming.  That is so because the applicant did not leave China for nearly four months after the date on which he claimed he was interviewed by the police.

4. Third, the Tribunal found that the applicant’s motivation for coming to Australia was to look for possible business opportunities after the applicant lost his money in relation to an interest he acquired in a farm in Shandong in September or October 2011.  The Tribunal based that finding on the applicant’s having applied for a visa to visit Australia in December 2011 and arrived in Australia less than a week later. 

5. Fourth, the applicant’s returning to China was inconsistent with his claim to have left China because he was fearful the police would find out he was a Falun Gong practitioner.

6. Fifth, the applicant remained in China for nearly two months after he claimed he had been detained and beaten following his return from China. 

7. Sixth, the tribunal found the applicant’s claims that he had been questioned about the Falun Gong practitioner when he was at the police station within days of his return to China from Ethiopia in August 2011 and then to have been contacted by the Falun Gong practitioner within days of his returning to China from Australia in March 2012, who asked the applicant check on the Falun Gong practitioner’s family, to be implausible.

8. The Tribunal accepted the applicant had some knowledge of Falun Gong practice.  It found, however, the applicant acquired that knowledge for the purpose of making his protection visa.  The Tribunal considered four photographs the applicant provided to the Tribunal which the applicant claimed showed him participating in Falun Gong activities.  The Tribunal, however, did not accept that the photographs established the applicant practised Falun Gong in Australia.  The Tribunal relied on two matters.  One was that although a digital date stamp was available on the camera with which the photographs were taken, each photograph showed “0000.00.00.00.00”.  The second matter was that one of the four photographs had annotations which were inconsistent with what the applicant claimed the photograph showed.  On the reverse side of the relevant photograph the date 14 July 2012 is written.  The applicant, however, said that the photograph showed the applicant attending an annual Falun Gong meeting in Melbourne in September or October 2012.

9. The Tribunal did not accept that spies in Australia would know that the applicant has been practising Falun Gong in Australia.  First, the Tribunal did not accept the applicant would be identified as a Falun Gong practitioner by spies because of his activities as shown in the photographs he produced.  Second, there was no country information before the Tribunal to support a finding that Chinese spies attend Falun Gong activities, identify practitioners, resulting in the practitioners being harmed when they return to China.

Grounds of application

1. The application for review filed by the applicant raises one ground, which is as follows:

   The RRT failed to consider my evidence of my risk of suffering significant harm:  s36(2)(aa) if I return to China.

   This ground does not identify the evidence the applicant claims the Tribunal failed to consider.  For that reason alone that ground cannot succeed. 

2. At the hearing before me, the applicant submitted he was not convinced by the Tribunal’s decision to the extent it relied on the applicant’s having travelled in and out of Australia. This does not disclose any jurisdictional error by the Tribunal.  The submission expresses disagreement with the Tribunal’s decision and nothing more.  As I informed the applicant, this Court does not have jurisdiction to determine whether the Tribunal was correct to conclude the applicant was not entitled to a protection visa.  The role of the Court is to determine whether the Tribunal undertook its review on the applicant’s case according to law. In my opinion, it was reasonably open to the Tribunal to rely on the applicant having returned to China in March 2012 as a matter adversely affecting the applicant’s credit.  It was certainly reasonably open to the Tribunal to rely on that matter, together with the other matters on which the Tribunal relied, for concluding the applicant was not a credible witness. 

3. The applicant also submitted before me that towards the end of the hearing before the Tribunal the applicant had to remind the Tribunal that he had submitted photographs in support of his claim.  The applicant submitted to me that this indicated the Tribunal did not carefully verify or check the evidence the applicant provided to the Tribunal.  I do not agree.  That the Tribunal may have been unaware of evidence at one stage of the hearing cannot reasonably give rise to the inference that when the evidence was drawn to the Tribunal’s attention the Tribunal did not consider or properly consider the evidence.  In any event, the Tribunal’s reasons indicate that the Tribunal considered in some detail the photographs the applicant submitted, but for the reasons it gave it found the photographs did not establish the applicant practised Falun Gong.  It was reasonably open to the Tribunal to make that finding. 

4. In my opinion, the Tribunal considered the applicant’s evidence that was relevant to his claim that he would suffer significant harm if he were to return to China.  Unfortunately for the applicant, the Tribunal did not accept the applicant’s evidence.  It was reasonably open to the Tribunal not to accept the applicant’s evidence for the reasons it gave. 

5. For these reasons, therefore, I propose to dismiss the application and order that the applicant pay the first respondent’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 7 August 2015