SZUVY v Minister for Immigration

[2014] FCCA 2913

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUVY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2913

Catchwords:
MIGRATION – Review by Refugee Review Tribunal – application for order dismissing application because it raises no arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), s.425

Applicant: SZUVY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2149 of 2014

Judgment of: Judge Manousaridis

Hearing date: 5 December 2014

Delivered at: Sydney

Delivered on: 5 December 2014

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents: Ms L. Buchanan of Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2149 of 2014

SZUVY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) applies for an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The Minister submits the application filed in these proceedings does not raise an arguable case for the relief it claims.

2. By that application, the applicant, who is a national of the People’s Republic of China, seeks to set aside an order of the second respondent, the Tribunal, which affirmed the decision of a delegate of the first respondent, the Minister, not to grant the applicant a protection visa.  The applicant’s claims for protection are based on the following alleged facts. 

3. The applicant studied at a Sydney college from April 2008 to March 2009.  His father borrowed money from private creditors to fund the applicant’s trip to Australia.  The applicant’s father, however, was unable to repay the loan after he lost his source of income as a fisherman.  The applicant fears he would be harmed by the creditors if he returns to China, because the creditors told the applicant’s father that they would kill the applicant if the loan is not repaid. 

4. The Tribunal did not find the applicant to be a credible witness.  The applicant’s testimony at the hearing, the Tribunal found, was “repeatedly contradictory, evasive, vague, or unclear”.  The Tribunal set out some examples.  The applicant said that his father entered into the loan in 2007, which was repayable by instalments, but his father ceased making repayments when he lost his job.  Asked when the applicant’s father lost his job, the applicant said either 2006 or 2007.  

5. Another example is where the applicant said his father stopped being able to fish before his father took out the loan. And yet another is the applicant saying that he intended to work in Australia to obtain money to repay the loan, and had repaid some of the loan, but was unable to state how much of the loan he had repaid.  Apart from being vague, the Tribunal found this evidence to be inconsistent with the applicant having stated to the delegate that the applicant had not sent any money to China to repay the loan. 

6. The Tribunal brought to the applicant’s attention this contradiction, but the Tribunal was not satisfied with the applicant’s explanation.  Having found the applicant not to be a credible witness, the Tribunal found the applicant has not been seriously or significantly harmed in the past by any private creditors, the authorities, or the police in China because of an unpaid loan, nor is there a real chance that the applicant will be seriously or significantly harmed by them in the reasonably foreseeable future if he returns to China. 

7. In his application for review, the applicant raises two grounds.  The first is that the Tribunal “deprived me of Natural Justice”.  At the hearing before me in response to my invitation whether the applicant wished to say anything in relation to this ground, the applicant submitted that he felt the Tribunal did not believe what he said.  He also reiterated what he claimed at the Tribunal: that he feared he will be harmed if he returned to China, but that the Tribunal did not feel the same way.  These submissions do not disclose any failure by the Tribunal to accord the applicant natural justice. 

8. From the decision of the Tribunal itself, it is clear the applicant was given the opportunity to appear before the Tribunal to give evidence and present arguments, and the applicant took advantage of that opportunity. The Tribunal, as it was entitled to do, questioned the applicant about his claims. There is nothing in the Tribunal’s reasons for decision, and the applicant has put before the Court no other material that suggests the Tribunal did not accord the applicant natural justice or that the Tribunal did not provide the applicant with a hearing as required by s.425 of the Migration Act 1958 (Cth). Accordingly, ground 1 of the application raises no arguable case for the relief the applicant seeks in his application.

9. The second ground is, “the First Respondent breached my privacy to information by releasing my name and other confidential details on the departmental website as part of the January 2014 Detention Statistics for a period of several days before 19 February 2014”. 

10. The Minister submits that there is nothing in the Tribunal’s reasons to suggest that the applicant had raised this alleged breach of privacy as a ground for protection. In those circumstances, the Minister submits, it is not arguable that the Tribunal made any jurisdictional error by failing to address any such claim.  I agree.  There is nothing in the reasons for decision to indicate that the applicant had raised breach of confidentiality as a ground for his claimed fear, and the applicant has put nothing before me to suggest that there was material before the Tribunal which ought to have given rise to an allegation on the part of the Tribunal to consider any such claim. 

11. At the hearing before me, the applicant said from the bar table that after the hearing before the Tribunal the applicant informed his migration agent about the breach of his privacy and requested his migration agent to make a telephone call.  Whether that is true or not, and for the purposes of these reasons I will assume it is true, there is nothing to indicate that the agent had communicated this issue to the Tribunal.  In my opinion, therefore, ground 2 also raises no arguable case for the relief the applicant seeks in his application. 

12. At the hearing before me, the applicant made other submissions which could only reasonably be understood as claims which, if accepted, might entitle him to a protection visa.  The applicant said that before he came to Australia, he was told by agents that after he completed his studies in Australia, he would be able to find work and then be able to repay the money his father borrowed to fund the applicant’s trip to and study in Australia.  The applicant said he was misled because, although he did work, he was paid at a very low rate.  The applicant said he has provided this information to the Department. 

13. The applicant also said that after his father’s fishery business was closed, his family appealed to the authorities.  That resulted in the applicant’s parents being physically harassed.  Whether or not these claims are true is not relevant to the question I have to determine on this application.  That question is whether the application raises an arguable case for the relief the applicant seeks in the application he has filed.  That turns on whether there is an arguable case that the Tribunal made a jurisdictional error. 

14. That the applicant may have grounds for a protection visa cannot disclose any jurisdictional error on the part of the Tribunal unless those grounds have been advanced before the Tribunal and the Tribunal failed to consider those grounds according to law.  There is nothing to suggest that, to the extent that these grounds were made by the applicant to the Tribunal, the Tribunal failed to consider and determine them according to law.  For these reasons, I am of the opinion that the application should be dismissed with costs.   

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 December 2014