SZUXB v Minister for Immigration

[2015] FCCA 1227

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1227

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:  

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.422

Applicant: SZUXB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2209 of 2014

Judgment of: Judge Driver  

Hearing date: 12 May 2015

Delivered at: Sydney

Delivered on: 12 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Senanayake of DLA Piper

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,240.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2209 of 2014

SZUXB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 18 July 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims arising out of an alleged dispute over land compensation and his practice of Falun Gong.  Background facts relating to the applicant’s protection claims and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 29 April 2015.   

2. The applicant is a male citizen of China who arrived in Australia on 27 May 2008 as the holder of a subclass 456 business visa.  He departed Australia on 15 June 2008 and returned on 5 September 2008 as the holder of another subclass 456 business visa.  That visa expired on 5 October 2008 and the applicant remained in Australia as an unlawful non-citizen.[1]

   [1] Court Book (CB) 54

3. The applicant applied for a protection (Class XA) visa on 3 May 2013.[2] His claims were set out in an undated statement accompanying the application.[3]  In summary, the applicant made the following claims:

   a)the applicant claimed that he was the owner of a textile factory and that while he was in Australia in March 2009 his wife advised him that the local government was undertaking a land acquisition where the factory was located and that his home and the factory were to be demolished;

   b)the applicant claimed that his family vacated the home on 25 August 2009 and now lived in poverty;

   c)on 28 June 2010 the applicant's father and ten of his neighbours protested at the complaints office in Haian town about the inadequate compensation they had received.  The applicant claimed that his father was threatened that the applicant would be harmed if he continued petitioning.  His father had sued the local government and was unsuccessful, and had gone into hiding to avoid being arrested for unlawful petitioning;

   d)the applicant claimed that he would petition the government and that he would be harmed due to his inability to repay loans he had taken out to build the factory;

   e)the applicant claimed that he had begun practising Falun Gong while in Australia.  He claimed that when his father was threatened they knew about the applicant's Falun Gong practice and said he would be sent to a detention centre.

   [2] CB 1

   [3] CB 33

4. The application was refused by the Minister’s delegate on 8 November 2013.[4]

   [4] CB 54

5. The applicant applied to the Tribunal for review of the delegate's decision on 5 December 2013.[5]

   [5] CB 68

6. The applicant gave oral evidence before the Tribunal on 4 April 2014. The Tribunal made its decision on 18 July 2014.

The decision of the Tribunal

1. The Tribunal identified a number of inconsistencies in the applicant's account about his land and the compulsory acquisition of the land, and the loans he said were owing.[6]  On the basis of those findings the Tribunal found that the applicant's claims regarding the compulsory acquisition of land and the lack of adequate compensation were fabricated and that the applicant was not a truthful witness.[7]  The Tribunal did not accept that the applicant or his father were being pursued in relation to loans or that the applicant would engage in protest action.[8]

   [6] see [36]-[50]

   [7] see [52]

   [8] see [53]-[54]

2. The Tribunal was not satisfied that the applicant was a genuine Falun Gong practitioner and did not accept that he had attended Falun Gong activities of any kind in Australia.[9]  This was on the basis of inconsistencies identified in the applicant's account regarding this claim[10] and the applicant's evidence that he did not practice the exercises.[11]  The Tribunal therefore did not accept that the applicant had been photographed attending Falun Gong activities, as he had claimed.[12]  The Tribunal did not accept that the Chinese authorities had threatened the applicant's father about the applicant's Falun Gong activities.[13]

   [9] see [66]

   [10] see [55]-[65]

   [11] see [66]

   [12] see [67]

   [13] see [67]

The present proceedings

1. These proceedings began with a show cause application filed on 8 August 2014.  The applicant continues to rely upon that application.  The grounds in the application are:

   1. The Tribunal underestimated my risk of being persecuted by the Chinese authority. This was judicial error since the Tribunal failed to properly make the well-founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559. It was not a rare case that land acquisition causing protest and persecution in China. The persecution was happened to my father, since we belong to "the same family unit", in my case, the Tribunal should have considered his situation with fair and justice.

   2. Tribunal unfairly refused to offer me protection saying my case was not covered by the Convention.  The Tribunal made an acceptable judgment about my experience in China; neither did it reflect the truth in a logic way.  My case was not only a dispute regarding land value, but also I had different political opinion against the Chinese authority.

   3. RRT doubted my credibility based on no evidences.  Regarding the first consistency, my evidences are credible.  We had some money, and then we borrowed money from bank and loan shark, so we set up the textile company.  My father was the legal owner of the factory while I myself managed it.  Maybe because the translation of my written statement, RRT mistakenly believed that we had some money meant the finance of the factory was totally based on our own money.  Since the factory was compulsory demolished by government, the compensation was not enough to pay the loan shark, if I return China, I will be harmed for sure. (errors in original)

2. The applicant has not taken up the opportunity I afforded him to file and serve an amended application and additional evidence.  The application is supported by a short affidavit.  I received the first two paragraphs of that affidavit as evidence and the third paragraph as a submission. 

3. I also have before me as evidence the court book filed on 2 September 2014. 

4. Only the Minister provided written submissions. 

5. I invited oral submissions from the applicant.  He expressed his disagreement with the Tribunal’s adverse credibility findings.  However, the dispute does not rise above a simple dispute over the Tribunal’s credibility assessment.  In my opinion, the adverse conclusions reached by the Tribunal were open to it on the material before it.  In that regard, I agree with the Minister’s written submissions. 

6. The Tribunal rejected all of the applicant's claims in relation to his father at [53]. In particular, it held that the property owned by the applicant and/or his father was not acquired by the government and rejected all associated claims following from that land acquisition claim.

7. The applicant appears to assert that his "case" was not only in relation to a dispute regarding land value, but that he had different political opinion against the Chinese authorities.  The Tribunal set out the applicant's claim in this regard at [19] and this was the subject of much of the Tribunal hearing

8. Contrary to the applicant's assertion that the Tribunal doubted the applicant's credibility based on "no evidences", the Tribunal relied on inconsistencies in respect of the applicant's evidence[14] to find that the applicant was not credible.  Properly understood, the applicant seeks to quibble with the Tribunal’s adverse credibility finding.

   [14] see [36]

9. One unusual feature of this case was that the review was completed by a different member to the one who conducted the hearing.  The Tribunal in its reasons at [3],[15] notes that the applicant had appeared before the Tribunal differently constituted on 4 April 2014 with the assistance of an interpreter.  Since then, the term of the member who then constituted the Tribunal had expired, and the matter was finalised by another member, who produced the statement of reasons. 

   [15] CB 94

10. Section 422 of the Migration Act 1958 (Cth) (Migration Act) provides relevantly that if the member who constitutes the Tribunal for the purposes of a particular review stops being a member, the principal member must direct another member to constitute the Tribunal for the purpose of finishing the review. The Minister has not put into evidence the direction from the principal member. It is, however, implicit from [3] of the Tribunal’s reasons that a direction was given by the principal member.

11. The applicant has not raised the absence of a written direction as an issue, and I proceed on the basis that s.422 of the Migration Act was complied with.

12. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. The decision is therefore a privative clause decision, and I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the amount of $3,240.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,240.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 May 2015