SZVKO v Minister for Immigration

[2016] FCCA 349

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVKO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 349

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal considered applicant’s claims – whether Tribunal biased – no jurisdictional error.

Legislation:

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

Applicant: SZVKO

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3047 of 2014

Judgment of: Judge Manousaridis

Hearing date: 18 February 2016

Delivered at: Sydney

Delivered on: 18 February 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondent: Mr Wiese of Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,000.

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3047 of 2014

SZVKO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript) 

1. The applicant is a citizen of the People’s Republic of China (China).  He seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister), not to grant the applicant a Protection (Class XA) visa (Protection visa). 

2. I first turn to the applicant’s claims for protection.  These are contained in a statement that formed part of the applicant’s application for a Protection visa.  In that statement, he claimed to fear persecution from police in China in connection with events that arose out of his discovery of an antique copper urn on a building site. 

3. According to his statement, the applicant was a construction builder.  While carrying out building foundation work at building sites, the applicant came across antique items which he could then take to his friend, Mr W, the owner of an antique shop, who would sell the items and split the profits with the applicant.  On 20 June 2013, while digging foundations on a particular site, the applicant found a copper incense urn.  Mr J, a colleague of the applicant, noticed the applicant’s discovery and wished to look “at the treasure”, as he was in the antique business. 

4. After examining the urn, Mr J offered the applicant 20,000 RMB.  The applicant did not accept the offer, because he believed he might have been able to sell the urn for 200,000 RMB.  The applicant told Mr J that he would keep the urn as an heirloom.  Mr J was quite upset with this response.  The applicant took the urn to Mr W, who confirmed it was “good stuff” and would immediately go to Beijing to find a buyer. 

5. On 22 June 2013 three policemen arrived at the applicant’s home after receiving information that the applicant was a key member of Xiang Gong.  The police accused the applicant of secretly developing the members and doing this practice.  Despite the applicant’s denials, the police searched the applicant’s home and located in a small storage room in the backyard “reactionary CDs and promotion materials”.  The applicant was shocked, did not know how those items had come to be in his storage room.  The applicant told the police that it was a “set-up”, and that he had never seen those items before. 

6. The applicant was then taken to the police, where he was interrogated and ill-treated by being bashed and kicked.  The applicant was released the following morning after his wife paid 50,000 RMB as bail security.  At midnight on 24 June 2013, after hearing the applicant was in trouble, Mr W came to the applicant’s home by scaling his backyard wall.  Mr W told the applicant that an expert examination had confirmed the urn was an imperial item from the Tang dynasty worth 1 million RMB and that the urn was in the care of a friend in Beijing while he looked for a buyer. 

7. Mr W told the applicant that because Mr J was in the antique business, he would have known that the urn was worth more than 20,000 RMB, and he would certainly be capable of bribing the police to set up the applicant.  After discussing his options with Mr W, the applicant decided he should go into hiding by making an overseas trip, and it was agreed the applicant would leave the following night to secretly stay at the home of a close friend, who would organise the trip. 

8. The Tribunal found the applicant was not a witness of truth, and that he fabricated his claims that he had attracted the adverse attention of Chinese authorities and that he was accused of being involved in Xiang Gong.  The Tribunal relied on a number of matters:

   a)First, country information indicated that the practice of Xiang Gong, which was also known as Fragrant Gong, was different from the practice of Falun Gong, and, unlike Falun Gong, Xiang Gong was not illegal in China.  The Tribunal found the applicant did not plausibly explain why the Chinese authorities would accuse him of being involved with Xiang Gong. 

   b)Second, the applicant was able to travel out of China using a passport issued in his own name.  Based on country information to which the Tribunal referred, that indicated to the Tribunal the applicant was not of adverse interest to Chinese authorities. 

   c)Third, the applicant applied for a passport in March 2013, months before the applicant departed China.  That indicated to the Tribunal that the applicant had planned to depart China before his alleged arrest by the police. 

   d)Fourth, the applicant gave contradictory evidence about where he lived before he departed China.  Fifth, the applicant’s claims lacked detail and documents that could corroborate his claims. 

9. The Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations pursuant to section s. 36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) or section 36(2)(aa) of the Act.

10. The application filed by the applicant states three grounds of review.  The first is:

    I was persecuted by Mr [W] and our local police, who were bribed by Mr [W].

    The applicant, who is not legally represented, made no submission in support of or in relation to this ground.  The ground as stated in the application discloses no jurisdictional error; it only repeats the claims for protection – or part of the claim for protection the applicant made to the Tribunal.  This Court, of course, does not have jurisdiction to determine whether the applicant had or has a valid claim for protection.

11. The second ground is: :

    I couldn’t continue staying home and was forced to travel overseas.  I told my miserable experience in detail to the RRT member and answered the member’s all questions.

    The applicant made no submission in relation to this ground.  The first sentence of the ground is a submission about why the applicant could not stay in China.  That is a matter that is relevant only to whether the applicant had a valid claim for protection.  It does not disclose any jurisdictional error.  The second sentence seems to express disagreement with the Tribunal’s finding that the applicant’s claims lacked detail.  It also, perhaps, impliedly claims the Tribunal ought to have accepted the applicant’s claims because he answered all of the Tribunal’s questions.  If that is the intended meaning of the second sentence, it only expresses disagreement with the Tribunal’s not having accepted the applicant’s claim.  That does not disclose any jurisdictional error. 

12. The third ground is:

    But the RRT member had bias against me and failed to take all claims into account according to s91R of Migration Act 1958, making jurisdictional error.

    The applicant made no submission in relation to this ground.  There is nothing in the material before me that suggests the Tribunal was actually biased or that it conduct itself in a manner that might lead a reasonable person to apprehend bias on the part of the Tribunal, and there is nothing to suggest the Tribunal did not take into account all of the applicant’s claims.  The Tribunal set out the applicant’s claims.  The Tribunal questioned the applicant about this claims, and the Tribunal gave cogent reasons for not accepting the applicant’s claims.  It was reasonably open to the Tribunal to find the applicant fabricated his claims for the reasons the Tribunal gave. 

13. The applicant made no other submissions, and in fact made no submissions at all in support of his application. 

14. For these reasons, I propose to make an order that the application be dismissed.

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

Associate: 

Date:  22 February 2016