SZWCT v Minister for Immigration

[2015] FCCA 586

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 586

Catchwords:
MIGRATION – Refugee Review Tribunal – protection class XA visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.36

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZWCT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 367 of 2015

Judgment of: Judge Street

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Sydney

Delivered on: 12 March 2015

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Self-Represented

Solicitors for the Respondent: Ms S. Lloyd
Minter Ellison

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 367 of 2015

SZWCT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal of 13 January 2015 affirming the decision of the delegate not to grant the applicant a Protection class XA visa.  The application indicates that the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings. 

2. The Court identified to the applicant its concern that the application did not disclose any arguable jurisdictional error, and that the Court was minded to consider exercising its powers of summary dismissal.  The applicant indicated that he believed the decision was unfair, and that the Tribunal had failed to adequately take into account his risk on return to China by reason of being a Falun Gong member.  The applicant said that if unsuccessful he will lodge a further appeal.  The grounds raised in the application are as follows:

   1. The decision by Refugee Review Tribunal is affected by jurisdictional error.

   2. Refugee Review Tribunal ignored relevant evidence provided by the applicant in making the decision.

   3. Refugee Review Tribunal failed to consider the real situation in China about persecution of Falun Gong. 

3. In considering the exercise of the Court’s summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

4. It is clear that ground 1 fails to articulate or identify any arguable jurisdictional error.  Ground 2 seeks to raise the suggestion of determining what was or was not relevant evidence, which was a matter for the Tribunal.  For the reasons that I will summarise shortly, I am satisfied the Tribunal properly engaged in its inquisitorial process and took into account the claims of the applicant and that the findings it had made were open on the evidence before it.  The third ground is an impermissible challenge to the finding of the Tribunal of fact. 

5. It is clear from the reasons of the Tribunal that it carefully considered the assertions of persecution by the applicant in relation to Falun Gong.  The Tribunal noted that the applicant arrived in Australia with his wife on 26 November 2013 as the holder of a subclass 600 visitor visa.  It was 10 days after that, on 6 December 2013, that he lodged an application for a protection visa.  The Tribunal noted that he asserted fears of returning to China because he would be persecuted as a Falun Gong practitioner.  On 11 April 2014, the delegate refused to grant the visa. 

6. The applicant applied for a review by the Tribunal on 20 May 2014, and appeared before the Tribunal on 20 October 2014 to give evidence and present arguments.  The Tribunal identified the relevant law to be applied and turned to address the issues of credibility that arose on the applicant’s evidence.   The Tribunal found the applicant to be a national of China and assessed his claims as against China as the receiving country.  The Tribunal carefully identified the applicant’s claims and found:

   31. …By way of summary, I do not find the applicant to be a credible witness.  Overall, I did not find the applicant’s evidence to be plausible, persuasive, or convincing. 

7. The Tribunal set out in considerable detail its reasons in relation to its concern as to the credibility of the applicant.  Relevantly, the Tribunal noted, in its detailed consideration, the applicant’s responses: 

   39. …The applicant's responses to my question in relation to the Falun Gong texts lead me to question whether he has read any of the material or simply learnt the name of the principal text.  

   41. …In summary, the applicant admitted to the Tribunal that he has not practiced Falun Gong since 1999 (that is, more than 15 years ago) and, even prior to this, he did so only occasionally.  He has no knowledge of the contents of the seminal text and refused to perform any exercises for me.  This leads me to question whether he ever was a Falun Gong practitioner.

8. The Tribunal found as a matter of fact it was not satisfied that the applicant has a well-founded fear of being persecuted as an imputed follower of Falun Gong.  The Tribunal identified the assertions of the applicant in relation to activities as having been implausible, in particular, in respect of his alleged arrests.  The Tribunal noted the two passports that he had been issued with by the authorities, and that his current passport was issued in 2011.  And the Tribunal said that:

   50. The fact that he was able to obtain his current passport in October 2011 leads me to conclude that the applicant was not of adverse interest to Chinese authorities and that his claim of multiple detentions for being a Falun Gong practitioner is false.

9. The Tribunal also identified in its credibility findings his overseas travel to Japan and returning to Hong Kong, and the Tribunal said:

   52. …I regard as implausible that he should return to China willingly in these circumstances - or at least to the same city in China.  It raises for me serious doubts as to whether any of the claimed detentions occurred. 

10. Further, the Tribunal found, after identifying the applicant’s history as follows:

    54. The Tribunal is not satisfied that the applicant’s explanations as to his failure to relocate to another part of China are consistent with his claim to fear detention at the hands of local authorities.

    56. … I do not accept that the applicant was ever a genuine Falun Gong practitioner.

11. That finding of fact was clearly open on the material before the Tribunal.  That finding does not lack an evident and intelligible justification.  The Tribunal noted that the applicant was unable to provide any detailed information or evidence to satisfy any of his claims that detentions occurred.  The Tribunal did not accept the applicant’s claims, and specifically did not accept that the applicant was:

    60. …

    ·ever a Falun Gong practitioner or started practising Falun Gong in 1995 and practiced occasionally until late 1999;

    ·jailed for three years from late 1999 until May 2002 because he was a Falun Gong practitioner;

    ·detained from September 2003 until November 2003 because he was a Falun Gong practitioner;

    ·detained from September 2005 until November 2005 because he was a Falun Gong practitioner;

    ·detained from July 2008 until November 2008 because he was a Falun Gong practitioner; and,

    ·detained from September 2010 until November 2010 because he was a Falun Gong practitioner.

12. The Tribunal found that the applicant had not been truthful about his claims and the reasons he feared returning to China.  The Tribunal said:

    61. I find the applicant’s claims to be entirely fabricated in order to achieve a desired migration outcome.  I do not accept that if he was to return to China, he will practice Falun Gong or be detained by Chinese authorities for this reason. 

13. The Tribunal found that it was not satisfied there was a real chance that if he returns to China the applicant will be persecuted for one or more of the five reasons set out in Refugees Convention. The Tribunal found that the applicant did not meet the criteria under s.36(2)(a) of the Act. The Tribunal considered the application of s.36(2)(a)(a) and found that there were no substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that he will suffer significant harm.

14. It is for those reasons that the Tribunal affirmed the decision of the delegate.  It is in light of those findings that it is clear that the grounds identified by the applicant have no substance and are doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings be summarily dismissed.

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

Associate: 

Date:  16 March 2015