SZUYD v Minister for Immigration

[2015] FCCA 2552

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2552

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2011 (Cth), r.44.12(1)(a)

Applicant: SZUYD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2331 of 2014

Judgment of: Judge Manousaridis

Hearing date: 8 September 2015

Delivered at: Sydney

Delivered on: 8 September 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms S Sangha of Mills Oakley Lawyers

ORDERS

1. Pursuant to r.44.12(a) of the Federal Circuit Court Rules 2011 (Cth) the application is dismissed.

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

3. The name of the second respondent be amended to read the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG

SZUYD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The first respondent (Minister) seeks an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 that the application for review be dismissed, because the application does not raise an arguable case for the relief it seeks.  By that application for review, the applicant, who is a citizen of the People’s Republic of China (China), seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa). 

Applicant’s claims for protection

1. The applicant’s claims for protection are set out in a statement that accompanied the applicant’s application for a Protection visa.  In that statement, the applicant, who is from a village in China, claims he was “beaten, tortured and persecuted”, because he opposed the local government’s “corrupt” appropriation of farmland for the expansion of a “storage battery factory” in 2005.  After the factory was constructed, its operations destroyed the previously “tranquil life” of the village, polluting the air and causing the applicant to ingest “lead dust” and to become ill.

2. In 2006, together with 20 other villagers, the applicant sought to “put an end to the pollution” and appealed to the “higher authorities” to intervene.  When the factory continued production over the following months, the applicant and the villagers attempted to stop production.  That resulted in “severe conflict with the security guards of the factory”, where the “town parties committee, the government and the police came to intervene”, and turned on the applicant and the villagers. 

3. Outraged that the events that took place, the applicant and the villagers sought further appeal to the county government in 2007.  During May to July 2007, the applicant and the other villagers went to Xushui three times to seek assistance, but on each occasion they were told that the leaders were at meetings and made the applicant and villagers return to their village.  In August 2010, the applicant and the villagers decided to go to Baoding to appeal there.  On their way, the applicant and villagers were intercepted by “some gangsters sent by the town government”. Five of the villagers were severely injured, but the applicant managed to escape. 

4. After this incident, the applicant decided to take legal action “against these people who defied laws”.  Two weeks later when the applicant was looking for a lawyer, his wife called him and told him not to return home because the government had sent police to arrest him.  The applicant hid for a while until a friend told him he could apply to go abroad. 

Tribunal’s decision

1. The Tribunal found the applicant not to be a credible witness.  First, the Tribunal found vague or lacking in details the applicant’s evidence about his claimed involvement in petitioning the government about the factory, the basis on which he believed he was of adverse interest to the authorities in China and his hiding in China before he departed for Australia.  Second, the Tribunal found there were significant discrepancies between the applicant’s written statement, and the applicant’s evidence before the Tribunal and the Tribunal found the applicant gave no adequate explanation for the discrepancies.

2. Third, the fact the applicant travelled out of China on a valid passport suggested the applicant was not of adverse interest to the authorities.  Fourth, the applicant did not attend an interview with the delegate even though the applicant had been invited to appear at such an interview.  That suggested to the Tribunal the applicant did not hold a genuine fear of harm if he were to return to China.  Fifth, the applicant arrived in Australia on 26 December 2012, but he did not apply for a Protection visa until 18 March 2013.  The Tribunal expected that if the applicant did have a genuine fear of harm, he would have applied for a Protection visa earlier. 

3. The Tribunal therefore found that the applicant does not face a real chance of suffering serious harm now or in the reasonably foreseeable future in China because of his political opinions. The Tribunal also found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to China, that there is a real risk he will suffer significant harm.

Grounds of review

1. The applicant raises two grounds in his application:

   1. RRT HAVE DESCRIMINATIO (sic) ON ME, FAILED TO CONSIDER MY REAL SITUATION.

   2. RRT IS UNFAIR TO ME.

2. The applicant, who is not legally represented, made no submission in relation to the first ground.  In relation to the second ground, the applicant only said that he felt life is better in Australia than in China. 

3. By themselves, none of the grounds stated in the application raises any arguable case of jurisdictional error.  As to the first ground, it is beyond argument that the Tribunal’s reasons for decision indicate the Tribunal understood the applicant’s claims, invited the applicant to provide further details of those claims, explored with the applicant matters that were of potential significance to the Tribunal’s consideration of the applicant’s claims, and ultimately considered the applicant’s claims and the evidence the applicant gave.

4. The second of the two grounds also disclosed no arguable case of jurisdictional error.  The ground does not identify the matters on which the applicant relies for claiming that the Tribunal was unfair to the applicant.  There is nothing in the reasons of the Tribunal, or in any of the other material that is before me, which suggests any unfairness by the Tribunal in the manner in which it dealt with the applicant’s case. 

5. The applicant made submissions about the Chinese Government not being bound by the rule of law, and not respecting human rights.  As I informed the applicant, this Court does not have jurisdiction to consider such questions.  The Court’s jurisdiction is limited to determining whether the Tribunal considered the applicant’s case according to law.  I asked the applicant whether he had anything to say about whether the Tribunal considered his application before it according to law.  The applicant said he had nothing to say about that.

6. For these reasons the application filed by the applicant discloses no arguable case for the relief it seeks. I propose, therefore, to make an order dismissing the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) and order that the applicant pay the Minister’s costs. 

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

Date: 17 September 2015