SZUUX v Minister for Immigration

[2018] FCCA 583

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUX v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 583

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matters of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 438, 474

Federal Circuit Court Rules 2001, r.44.12

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUUX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2067 of 2014

Judgment of: Judge Cameron

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Sydney

Delivered on: 5 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr H. Gao of Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,326.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2067 of 2014

SZUUX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of China who relevantly arrived in Australia on 12 July 2011 holding a tourist visa. That visa expired on 12 January 2012 and the applicant lived in Australia as an unlawful non-citizen until 20 August 2012 when she lodged an application for a protection visa with what is now the Department of Home Affairs. In her protection visa application the applicant alleged that she feared persecution in China and in Japan, where she was a permanent resident, because she is a Falun Gong practitioner. On 5 December 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to her.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576 [57]).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, the applicant will not have made out an arguable case unless she can demonstrate that it is at least arguable that the Tribunal’s decision is affected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. As already noted, the applicant is a citizen of China. On 29 October 1999 she moved to Japan and in 2006 she became a permanent resident there. The applicant claimed that she lived in Japan until 21 June 2011. The applicant claimed that she feared persecution in China because she practised Falun Gong.  She also claimed that she had feared returning to Japan after she was detained there for taking part in Falun Gong activities.  The applicant’s claims for protection were summarised by the Minister in his written submissions in the following terms which I adopt:

   6.1her father was a devout Falun Gong practitioner and under the influence of her father, the applicant started practicing [sic] Falun Gong in 1997.

   6.2in the evening of 7 August 1999, the applicant’s parents and 2 other Falun Gong practitioners were arrested by the Chinese local authorities. The applicant’s father was detained, tortured and beaten. He was subsequently sent to a labour camp and released on 8 February 2000. Despite their experience, the applicant’s parents did not give up their belief.

   6.3on 29 October 1999 the applicant went to Japan to study. One of the motivating factors was that there was religious freedom overseas, so she did not need to give up her Falun Gong belief.

   6.4on 17 February 2009 the applicant’s father was detained and tortured by local authorities due to his Falun Gong belief. He was sent to a labour camp for 1 year, during which he was tortured.

   6.5after her father passed away in November 2010, the applicant actively participated in Falun Gong activities in Japan. However, on 25 December 2010, while she was participating in Falun Gong activities, the applicant and her friends were beaten by 2 unknown men. The applicant was subsequently detained by the Japanese police for 24 hours and accused of ‘undermining social order’.

   6.6the applicant was once married to a Japanese national but she divorced him after he repeatedly abused her. She subsequently married a Chinese national in Australia …

   6.7the applicant would be persecuted for her religious belief in China and Japan.

2. At the Tribunal hearing the applicant also gave evidence to the effect that:

   a)her father was arrested in February 1999 and detained for half a year, being released in August 1999;

   b)she went to China for work and from 1999 to 2009 she returned to China two or three times to see her parents for about 10 days.   She returned to China from Japan twice in 2010, before and after her father’s death, and in June 2011 to see her mother for three weeks;

   c)the applicant was released from detention in Japan the morning after she was arrested on 25 December 2009; and

   d)she did not practise Falun Gong from 1999 until 2010 and she did not make inquiries about seeking protection in Australia until August 2011. 

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:

   8.The Tribunal noted the various inconsistencies in the applicant’s evidence.  In particular, the Tribunal found that the applicant gave inconsistent evidence regarding the date, duration and number of times her father was detained by the Chinese authorities.  The Tribunal noted that the applicant’s evidence regarding her purported detention in Japan was inconsistent.  The Tribunal further noted that the applicant’s evidence regarding when she first made inquiries in Australia about Protection visas was inconsistent. The Tribunal also noted that the applicant’s evidence that she left China for Japan in 1999 because there was religious freedom overseas was inconsistent with the applicant’s admission that she did not practice [sic] Falun Gong in Japan until 2010.

   9.The Tribunal also expressed concerns about other aspects of the applicant’s claims.  The Tribunal noted the multiple trips to China the applicant had made, which it considered to be inconsistent with the applicant’s purported fear of persecution in China.  The Tribunal also noted the applicant’s delay in applying for a Protection visa.  Further, the Tribunal noted the inherent implausibility and speculative nature of the applicant’s assertion that the 2 men who allegedly assaulted her in Japan on 25 October [sic] 2010 were Chinese agents.

   10.In light of its concerns, the Tribunal was not satisfied that the applicant was a witness of truth.  In particular, it did not accept that:

   10.1.the applicant had any basis to fear harm because of   practising Falun Gong in Japan and did not accept that the applicant was a Falun Gong practitioner or participated in Falun Gong activities in Japan or China.

   10.2. the applicant’s father was a Falun Gong practitioner   who was detained and tortured on 2 occasions.

   10.3. the applicant’s mother was a Falun Gong practitioner.

   10.4. the applicant had ever been a Falun Gong practitioner or would be in the future. (references omitted)

PROCEEDINGS IN THIS COURT

Grounds of application

1. In the application commencing these proceedings the applicant alleged:

   1.Jurisdictional error has been made.  The Tribunal member does not believe I am a genuine Falungong practitioner based on unsubstantiated grounds.

   It is stated in my refusal decision of RRT that it does not accept that if the applicant’s claims were genuine, she would have forgotten the most recent detention of her father.

   It is clear I did not forget that date and I corrected my mistake by myself.  I do not think people can remember clearly what happened four or five years ago.

   2.Some questions asked by the Tribunal member are misleading and there may exist wrong interpretation, which leads to Tribunal member’s misunderstanding of my answer.

   It is stated in my refusal decision of RRT:

   “When the Tribunal repeated that she did not fear persecution if she returned to China, the applicant said she only feared that she would be arrested after her parents died. When the Tribunal checked that she had said that she only feared persecution since her mother died in 2011, the applicant said yes. When the Tribunal repeated that she had said that before that, she did not fear persecution, the applicant said she did fear persecution”.

   My answer is that as a practitioner, I did fear persecution. After my parents died, I got more frightened.

   3.The Tribunal holds the view that my fear of harm on return to China or Japan is not well-founded. I believe Tribunal member does not completely and properly consider my situation.  My re-entry permit to Japan was expired by 20 June, 2014 when I was waiting for the decision of RRT.  If I was not mistreated in Japan, why did I not return to Japan?  Further, Fulungong is still prohibited in China. As a practitioner, how can I survive?

2. Allegations 1 and 3 made in the initiating application do not rise above invitations to the Court to engage in a reconsideration of the merits of the applicant’s protection visa application.  The success of those allegations depends on the Court accepting that the applicant was a Falun Gong practitioner in circumstances where the Tribunal has concluded that she was not.  That is to say, the applicant wants the Court to reach a finding on the merits of her claim to deserve protection on the grounds of her claimed adherence to Falun Gong, different from the Tribunal’s.  The Court cannot do that.

3. As for the second allegation, it suggests a more substantive issue but it is unsupported by the facts which are given as particulars of the allegation.  The fact that a witness’s evidence may be internally contradictory is, without more, only evidence of that fact. 

4. None of the grounds which the applicant has pleaded raises an arguable case for the relief claimed, namely, certiorari and mandamus, on the grounds of jurisdictional error.

Oral submissions

1. At the show cause hearing, the applicant addressed the Court on a number of matters.  The substance of them was in large part that the Tribunal should have reached a conclusion on her visa application different from the one which it did reach.  Those submissions did not identify any arguable case of jurisdictional error on the Tribunal’s part. 

2. I do note the applicant’s submission that the revision of her evidence concerning the particular dates when her father was arrested and released, which is noted in para.16 of the Tribunal’s decision, was the result of distress and upset. But the point is that the applicant’s evidence concerning when, precisely, her father was detained and released was not determinative of her case. Relevantly, the Tribunal was concerned that the applicant had told it that her father had been detained but once, whereas in her earlier accounts she had said he had been detained twice. It was the inconsistency which concerned the Tribunal.

3. In the discharge of his obligations as a model litigant, the Minister has filed and read the affidavit of Dominic Eberl affirmed 18 August 2017 to which was annexed a certificate pursuant to s.438 of the Act and to which at the hearing was added a copy of the documents referred to in that certificate. It would appear that the documents are concerned with organising an interpreter for the applicant’s appearance before the Tribunal. That the applicant was not shown those documents by the Tribunal did not cause her any practical unfairness.

CONCLUSION

1. I am not satisfied that the applicant has demonstrated that her application has raised an arguable case for the relief claimed, and nor has anything that she has said at the hearing of the application.

2. In the circumstances, the application will be dismissed pursuant to r.44.12(1)(a) of the Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  16 March 2018