SZUUT v Minister for Immigration

[2014] FCCA 2598

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2598

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – Application set down for immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – Application dismissed pursuant to r.44.12(1)(a).

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), rr.44.11(a), 44.12(1)(a), 91R

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1

Applicant: SZUUT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2061 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 11 November 2014

Delivered at: Sydney

Delivered on: 11 November 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with a Mandarin interpreter.

Solicitor for the First Respondent: Mr J Pinder of Minter Ellison

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be set down for an immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,367.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2061 of 2014

SZUUT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 23 July 2014 by the applicant, SZUUT, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member J. Kelly on 27 June 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister“), to refuse to grant the applicant a Protection (Class XA) visa.

2. The applicant, pursuant to s.91R of the Migration Act 1958 (Cth) (the “Migration Act“) has been granted a pseudonym and cannot be identified by name.

Background

1. In setting out the following background material I have quoted directly from the Court Book prepared by the Minister’s representative.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. On 6 May 2011, the applicant, a citizen of the People’s Republic of China (“China”), arrived in Australia as the holder of a Student visa (CB 3).

3. On 8 June 2012, the applicant applied for a Protection visa (CB 1 - 29).  The applicant also provided a statement with his Protection visa application (CB 30-31)

4. On 11 September 2012, a delegate of the Minister refused to grant the Protection visa (CB 106-131).

5. On 15 October 2012, the applicant applied to the Tribunal for review of the delegate's decision (CB 133-138).

6. On 9 January 2014, the Tribunal sent correspondence to the applicant's mailing address acknowledging the review application (CB 139-144).

7. By letter dated 6 August 2013 the Tribunal advised the applicant that it was unable to make a favourable decision on the information before it alone and invited the applicant to appear at a hearing on 29 October 2013 (CB 145-146).

8. The applicant appeared at the hearing before the Tribunal with a Mandarin interpreter (CB 153-155).

9. The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa by decision dated 27 June 2014 (CB 166-173).

The applicant’s protection claims

1. The applicant’s substantive protection claims were contained in a statement attached to his Protection visa application.  His protection claims were:

   a)While he was studying in Australia, the applicant’s family’s property in China has been demolished by the government for the purpose of constructing a road.  As a result, the applicant’s parents were forced to move in with the applicant’s grandparents.  There would be no space for the applicant to stay if he returned to China.  Further, the applicant’s parents were in the process of presenting a petition to a higher authority; and

   b)The applicant is a Yi Guan Dao believer.  The Chinese Government does not allow its existence in China and believers will be killed.  The applicant fears he will be persecuted as a Yi Guan Dao believer if he returns to China.

The Tribunal’s Decision

1. The Tribunal, in affirming the decision under review:

   a)Raised its concerns with the applicant’s about whether it could believe his claims at [21] (CB 168);

   b)Further raised concerns it had that the applicant’s claims had been fabricated at [26] (CB 169);

   c)Found the applicant’s claims had been fabricated and that applying for a Protection visa had been his parents’ idea.  If the applicant had had a genuine fear of persecution, based on the applicant’s knowledge that friends had applied for visas, the applicant would have initiated applying for the visa at [27] (CB 169);

   d)Did not accept the applicant was a Yi Guan Dao practitioner on the basis that his knowledge of it was negligible.  Further, the Tribunal considered the applicant’s claims about going to the Buddhist temples with his mother and did not accept that Yi Guan Dao was the religion practised there.  It did not accept that public practice of a religion outlawed in China since the 1950s would be allowed.  The applicant stated the temples were Buddhist.  The Tribunal found that statement did not assist the applicant as he had previously stated he first started liking Yi Guan Dao when visiting those temples and if they were not Yi Guan Dao temples, the applicant’s attending them could not have been the reason for him deciding he liked Yi Guan Dao at [28]-[29] (CB 169);

   e)Did not accept the applicant’s parents’ house had been compulsorily acquired by the town government or that it had been demolished, that his father and uncle had been beaten, or that there were court proceedings on foot in relation to the compulsory acquisition.  No documentation was provided to support the claim, even though the Tribunal expected there would be many documents available if a court case was on foot.  The Tribunal also noted the applicant claimed he thought the Tribunal would think any documents were fake, but it stated that would depend on the nature of the documents at [30] (CB 169-170); and

   f)Found that the applicant’s statement that his maternal grandfather was living with the applicant’s parent “in the current” place when he left China and was still living with them to be inconsistent with the claim his parent’s house had been demolished since he had left China at [31] (CB 170).

2. The Tribunal ultimately found the applicant’s claims had been fabricated at [33] (CB 170). The Tribunal found that, as a result, there was not a real chance the applicant would suffer serious harm in the reasonable foreseeable future for a Convention reason if he returned to China and, therefore, the applicant was not a person in respect of whom Australia has protection obligations under the Refugees Convention and that the applicant did not satisfy the criterion in s.36(2)(a) of the Migration Act at [34]-[35].

3. The Tribunal then considered the alternative criterion (complementary protection) under s.36(2)(aa) of the Migration Act and, having found the applicant’s claims for protection had been fabricated, was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk he would suffer significant harm.

Current Proceedings

1. The applicant filed his application for review of the Tribunal’s decision in this Court on 23 July 2014.  The applicant pleads the following three grounds:

   1.  Jurisdictional error has been made.  The Tribunal does not accept my claims without substantiative evidence.

   2.  The Tribunal considers my case with bias and some of my claims are ignored.

   3.  The Tribunal does not fully consider potential risk I will face upon return of China.

2. At the first court date directions hearing, the application was set down for an immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).

Applicant’s Submissions

1. At the show cause hearing, the applicant was offered the opportunity to make submissions in support of his application.  He indicated he had no submissions to make.

2. After the Minister’s representative had made his submissions, the applicant was offered the opportunity to make submissions in reply to the Minister’s oral submissions and written response.  He indicated had no submissions to make.

Minister’s Submissions

1. Mr Pinder, appearing for the Minister, indicated that the Minister’s Response, which had been filed on 14 August 2014, addressed the three grounds contained in the application.  Accordingly, it is convenient to reproduce the statements contained therein:

   Grounds of opposition or further orders

   1.  The First Respondent says that the Ground 1 does not articulate any arguable jurisdictional error on the part of the Second Respondent.  It was for the Applicant to present evidence and arguments to the Second Respondent in support of his application.  The Second Respondent is not required to uncritically accept an applicant’s claims or evidence, nor is it required to obtain evidence to ‘disprove’ and applicant’s claims.

   2.  To the extent that Ground 2 alleges bias on the part of the Second Respondent, the First Respondent says that this allegation should not succeed.  It is well established that an allegation of actual or apprehended bias is a serious charge which must be clearly alleged and distinctly proved.

   3.  To the extent that Ground 2 alleges that the Second Respondent failed to consider a ‘claim’ made by the Applicant, the First Respondent says that this allegation should not succeed.  The decision record indicates that the Second Respondent had regard to, but did not accept, the totality of the claims for protection which were raised by the Applicant.

   4.  The First Respondent says that Ground 3 merely seeks to engage the Court in impermissible merits review of the Second Respondent’s decision, and consequently it does not raise any arguable jurisdictional error.

Consideration

1. For the following reasons, the application raises no arguable case for the relief claimed.

Ground 1

1. Ground 1 complains that the Tribunal did not accept the applicant’s claims without substantive evidence.  There are very clear authorities that establish the proposition that the Tribunal does not have to accept an applicant’s claims and evidence it total or in part (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J). In the matter presently before the Court, in my view, the Tribunal has made findings that were reasonably open to it on the material before it and no error of the nature pleaded is apparent.

2. No arguable case for the relief claimed is raised by this ground.

Ground 2

1. Ground 2 raises two distinct allegations, namely bias on the part of the Tribunal and a failure to consider a “claim” made by the applicant.

2. To the extent that the applicant raises either a claim of actual or apprehended bias, it is well established that such an allegation is a serious charge and it must be clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). In the current proceeding, it is clear the applicant has failed to discharge that onus as he has failed to provide any particularisation of this allegation and, consequently, no arguable case for the relief claimed by the applicant has been raised.

3. To the extent that the applicant raises a claim that the Tribunal failed to consider a “claim” made by the applicant, this claim cannot succeed.  If such a failure was apparent, this could give rise to jurisdictional error on the part of the Tribunal (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1). The applicant’s claims were contained in his written statement attached to his Protection visa application and in his oral submissions made to the Tribunal. The applicant’s claims were advanced on two bases, being:

   a)That his parents’ house had been demolished and he could not go back to China; and

   b)He was a Yi Guan Dao practitioner and would be persecuted and possibly killed if he returned to China.

   These claims were both rejected by the Tribunal as they were found to have been fabricated (see [13] above).  The factual basis for the claims was rejected.  On a fair reading, the Tribunal dealt with all the claims put forward by the applicant.  No arguable case for the relief claimed has been raised by the applicant.

Ground 3

1. Ground 3 of the application alleges the Tribunal has not fully considered the risk he faces upon his return to China, however, the Tribunal considered the applicant’s claims under both the Refugees Convention and complementary protection criterion, and found there was not a real chance or a real risk, respectively, that the applicant would suffer harm.  There is nothing to suggest the Tribunal did not apply the proper tests and standards when considering both the Convention criteria and complementary protection criteria and, on a fair reading, the Tribunal cited the correct law and applied it.  Further, to the extent this claim seeks to cavil with the merits of the Tribunal’s decision, such an allegation merely seeks to engage the Court in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272). Accordingly, this ground does not raise an arguable case for the relief claimed.

Conclusion

1. The application before the Court does not raise an arguable case for the relief claimed. On a fair reading of the Tribunal’s Decision Record and the Court Book, no jurisdictional error is apparent. Consequently, the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with costs awarded to the Minister.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  11 November 2014