ABD15 v Minister for Immigration

[2015] FCCA 837

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABD15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 837

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – 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, ss.36(2)(a), 36(2)(aa), 91R(1), 476

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

Applicant: ABD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 593 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr L. Dennis
Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 593 of 2015

ADB15

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 on 12 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The grounds in the application are as follows:

   1 This is my second time to attend the RRT interview. However, the inconsistencies and refusal reasons raised in the RRT decision are almost same as the previous one in RRT decision. For example, my employment history, the event that my mother,. Aunt [X] and I arrested in 2012 and my two holidays, I have provided complete and compelling explanations and appeal to Federal Circuit Court successfully. lf RRT keep stating these reasons, and doubt my credibility from the start, then attending RRT interview is meaningless.

   2 In addition, my evidences regarding to sale of house are non contradiction and my explanations are reasonable. My husband and I separated in 2005. In 2011, he seldom returned home. He must had an affair outside, so I told officer he moved out in 2011. I could only put up with my husband, because the house we were living was under his name. If I divorced with him, I would be homeless. In September,. 2012, my mother passed away and I decided to leave China. So I divorced with him in November. 2012 and applied visa for going overseas. I arrived Australia in March. 2013. Later on I was told by my daughter that the property was currently vacant unless my daughter was on holiday from school. Thi8 is why I told the officer that the property was emptied during the interview. Also, I was also told by my daughter that my husband sold the property. Once I was threaten by my husband through phone of killing me if I return home. Over all, the property was under his name, but he barely stay at home overnight, in .my opinion we still remained living under the same roof until my departure from China in 2013.RRT did not clarify my evidences or investigate dutifully, and then made these false conclusion. I think RRT should be impose an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will and the justice would surely be undermined. Therefore, I find the RRT's decision is not made properly and legitimately.

   3 Since T was suffer insomnia and under huge pressure, I only had limited ability to provide evidences, which totally conformed to reality. RRT made use of their advantages heating about the bush continually and making meaningless logical trap in the hearing. And in the absence of a comprehensive assessment of my case, the officer directly stated that my evidence is fabricated . Facing questions and doubts, my emotion was affected severely. I refused to communicate with such non-professional officer, since no matter how I answered the question, she already made the decision. I thought the officer already made the judgment before the interview. This ignored my own situation and was against the law. According to the law, RRT should make full sense of my own situation and not require excessive evidences.

3. The last sentence of the first Court date is as follows:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Court identified to the applicant that it was concerned that, having looked at the grounds in the application and having read the decision, it failed to disclose any arguable jurisdictional error and that the Court was minded to consider exercising its powers to summarily dismiss the matter.  The applicant was invited to identify any arguable jurisdictional error, to which the applicant’s silent response was identified as advancing nothing.  In response to a further invitation to identify any ground of jurisdictional error, the applicant responded, saying, “I don't want to say anything.” 

5. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

6. It is clear that the grounds identified seek to challenge findings of fact that were open to the Tribunal and findings by the Tribunal as to the credit of the applicant which were also open.  The Tribunal found the applicant was not a credible witness.  Those findings of credit were clearly open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  The applicant arrived in Australia on 30 March 2013 and made an application for protection on 17 April 2013, which is the subject of an interview on 25 November 2013.  T delegate refused to grant a visa on 15 July 2013. 

7. The applicant appeared before a differently constituted Tribunal on 20 March 2014 and, by consent, on 19 September 2014, the matter was remitted to the Tribunal for further consideration.  A differently constituted Tribunal had the applicant appear before it on 4 February 2015 at which it received evidence and submissions.  A critical issue identified in this case was the credibility of the applicant’s claims and whether she had a well-founded fear of persecution in relation to China, which was the relevant country of reference and of which she is a citizen.  The Tribunal carefully set out the applicant’s claims and evidence and relevantly made adverse findings of credit relevantly in para.36 as follows:

   36. As to the applicant having faced the difficulties she claims in China, for the reasons that follow the Tribunal does not accept the applicant is a credible witness and suffered the harm or difficulties in her country that she claims for the reasons that she claims, which lead her to leave China and why she fears return. It finds the applicant’s testimony inconsistent, and implausible amounting to a fabrication for the reasons below. As a result it does not accept that the applicant is a witness of truth and does not accept that she is or was a Falun Gong practitioner, that either her father or mother were Falun Gong practitioner or any of them ever petitioned the authorities, that she fled China as a result of her house being demolished or faced the difficulties she claims as her house was demolished, or fears return from her husband, or as she no longer has anywhere to live.

8. The Tribunal addressed an issue concerning the sale of the applicant’s home and relevantly found in paragraph 42:

   42.    Based on the above inconsistent answers, I therefore do not accept the applicant is credible as to her claims of her home being solely owned and sold by her husband and she having nowhere to live on her return.  I also find the applicant has fabricated evidence at the hearing before me that her husband continued to live with her up until when she departed China in 2013, to enhance her claims for protection. This adds to my finding the applicant is not a credible witness.

9. In relation to the applicant’s fears concerning her husband, the Tribunal found:

   44.    While I accept that in the past the applicant’s husband was a drunk and gambler and she had a difficult life with him, and he may have beaten her up for the reasons that follow I believe the applicant has fabricated her claim that she currently fears him on return and that he has recently threatened her.

   …

   48. Added to this is that I do not accept for the reasons above her recent claim that her husband remained living with her until 2013 as this is inconsistent with her previous evidence to the Tribunal in March 2014 and her evidence to the Department at interview that she only lived with her [child] prior coming to Australia.

   …

   50. For the reasons above I do not accept she is credible as to a continuing relationship or fear of her husband and it follows I do not accept that he has recently threatened her while she has been in Australia or forced her to pay him money or to pay money to the bank for the home or she has faced any difficulty from him after he moved out in 2011. I am of the view she has fabricated this claim at the hearing before me to enhance her claims for protection.

   This adds to my finding the applicant is not a credible witness.

10. In relation to the applicant’s employment in China, the Tribunal relevantly found:

    58. As to the reasons for the inconsistencies the Tribunal does not accept her explanations. Firstly, it is not plausible that she would tell the Tribunal (differently constituted) initially at the hearing in March 2014 that she was made redundant from the job at the [second workplace] so that she “could keep her head up” instead of saying she was fired from that job because, if she was fired from that job for petitioning the authorities, it supports her claims of persecution and it is not in her interests not to say so.

    59. Further her evidence as to how she departed the job at the previous Tribunal hearing is not consistent with her evidence at the hearing before me. I expect if true she was fired or faced any difficulty in her employment because of her father’s activities with Falun Gong, his treatment by the authorities and her subsequent actions petitioning the government that she would be consistent in evidence between the two Tribunal hearings as to how she left the job.

    60. On the basis of the evidence before it the Tribunal cannot be satisfied as to the credibility of the applicant with regard to her employment in China and whether or why she left her employment in China in 1999. It follows the Tribunal does not accept she was fired or made redundant or had her contract terminated because of her father’s involvement in Falun Gong and detention by the authorities or because of her claims she petitioned the authorities after his death.

    61. Further she has now claimed that she does not want to return to China because she will be unable to obtain employment. On the basis of her lack of credibility as to her past employment and as she did not raise this claim previously which I expect she would if true, particularly in her lengthy statement, I do not accept she is credible as to this claim.

    62. This adds to my finding the applicant is not a credible witness.

11. In relation to the applicant’s fears in respect of Falun Gong, the Tribunal relevantly found:

    64. The Tribunal finds that the applicant’s testimony is inconsistent with country information and internally inconsistent amounting to a fabrication for the reasons set out in the paragraphs below. As a result it does not accept that the applicant is a witness of truth and does not accept that the applicant is and was a genuine Falun Gong practitioner and faced the difficulties she claims. Together with the matters above this adds to the Tribunal’s overall finding that the applicant is not a witness of truth as to her claims of fearing return to China.

    65. Firstly, the applicant has provided vague and confusing answers as to where and how she practised Falun Gong in China. While she has consistently stated that she began practising in 1997/8 her answers were vague at the hearing before me as to whether she practised in the park and whether she practised alone or with her parents at this time. At the hearing before me she said she practised at her parent’s place, when asked whether she practised in the park at this time she initially said she was curious and would see people practising in the park. When I asked her to clarify whether she went and practised in the park, she said sometimes at night, and then she said not often, as she practised with her parents. She said at that time she would undertake the first four movement exercises with them, then cook for them and undertake the 5th meditation exercise at home. She then said when her father was alive she didn’t go to the park to practise. When I questioned this and the confusing nature of her evidence she said she went to [a location] sometimes in front of her parents’ home but said and confirmed that she always practised with her parents. When asked how often she practised at that time she provided confusing answers, she said she practised the exercises almost every day and when I asked whether she went to her parents’ place every day, she said not every day, mostly Saturday and Sunday and she then said she would practise sometimes with them and sometimes at home. She said the regular practise consisted of doing the 5 exercises. When I questioned that she said she had practised at home but previously said she only practiced with her parents, she said she would do the meditation, referring to the 5th exercise at home

    …

    68. I do not accept this response and expect if the applicant was practising with her parents before it was banned she would be able to recall consistently whether she practiced regularly, where she practiced and whether she practised at home. While I accept this is many years ago and may render it difficult to remember, I expect that as at that time Falun Gong was not banned she could recall consistently her regularity of practise and where and how she practised. While not in itself determinative, this adds to my finding the applicant is not a credible witness.

    69. Secondly, as to her practice the applicant indicated at the hearing before me that after her father died [in] October 1999, she stopped practising for two to three months, but she tried to persuade her mother to stop practising but she would not and would close her door and practise at home. However as I raised with her, at the Department interview she indicated that after her father passed away both she and her mother stopped practising for a long time. When questioned as to the length she indicated it was for about six months and then [Aunt] persuaded her mother to start practising again and then she started again. When I raised with her the inconsistency and that this may lead me to find she is not credible, she said that she knew if her mother was alone she would practise. I do not accept this response and expect the applicant to be consistent as to whether her mother sopped practising or not. While not in itself determinative as it was a long time ago it adds to my finding the applicant is not a credible witness.

    70. Further, for the reason that follow I find that the applicant is not a witness of truth as to being questioned by anyone regarding her Falun Gong practice or distribution of pamphlets in 2013. In particular when I asked her what lead her to leave China to come to Australia, she said that in around February 2013 members of the neighbourhood committee came and questioned her about the distribution of Falun Gong pamphlets in the mailbox. When I raised with her that in her statement and previously she said it was the police who came and questioned her, she said the neighbourhood committee is next to the local police station. I do not accept this response and expect if she was questioned by the police or neighbourhood committee in 2013 she would be consistent as to this claim, particular as Falun Gong is banned and it is a serious offence and as it happened so recently. She said she can’t sleep and has difficulty remembering and referred to being on medication. As she repeated this answer on various occasions I have considered this below and rejected it as a reason she cannot provide consistent answers as to significant maters, particularly in this case, as to whether it was the police or neighbourhood committee who questioned her. Further added to this, as I raised with her, at the Department interview when asked when she last had contact with the authorities she referred to the 2012 incident and not being questioned in 2013. As the Department interview was held in the same year, in November 2013 that she alleges she was questioned by the police or neighbourhood committee, I expect if she was questioned she would have recalled that. For these reasons I do not accept the applicant was questioned by the police or neighbourhood committee in 2013 regarding her Falun gong practice or the distribution of Falun gong pamphlets. This adds to my finding the applicant is not a credible witness.

    71. Further, as raised with her at the Department interview the applicant claimed that after she left China the police came to her home again as there were Falun Gong pamphlets distributed locally and her [child] was so scared [he/she] went and stayed with the applicant’s sister. She also referred to this at the hearing before me when asked whether the police or neighbourhood committee had come to her house since she left. However when asked she could not provide any detail and when I asked when they came, who came and what happened, she said she could not remember. When I questioned her whether the event happened at all, as she had said to the Department interview it was the police and they came in the September holidays and she did not raise it in her statement, she said she cannot remember. I note at the Department interview she indicated she forgot to put it in her statement. I do not accept these responses and expect if her [child] was questioned by the police about Falun Gong pamphlets she would have included it in her statement and be able to provide more detail than she was able to do at the hearing before me. This leads me to find her [child] was never questioned by the police or anyone else about Falun Gong or Falun Gong pamphlets in the area. This adds to my finding the applicant is not a credible witness.

    72.    Further at the hearing before me the applicant said that her mother was questioned once by the authorities after the death of her father in 1999. When questioned as to whether they had an interest in her she said she did not know. When asked whether prior to her being detained in 2012 whether her mother was ever questioned before following her father’s death she provided vague answers, and said they focused on her father prior to that and that she did not know. However as I raised with her at the previous Tribunal hearing held in March 2014, she said that every time someone put up Falun Gong posters in the area, people from the neighbourhood committee would come and talk to her mother.  She said everyday someone was knocking on the door of her mother. In response when I questioned her about the inconsistency she indicated that there was Falun Gong material everywhere and there was a lot of Falun Gong material placed as her mother lives close to the flower and bird market. I do not accept this response and expect if the applicant’s mother was questioned regularly by the neighbourhood committee about Falun Gong material in her area that the applicant would be consistent as to this in her evidence between the Tribunal hearings. This adds to my finding the applicant is not a credible witness.

    …

    79.    For all the reasons considered above I do not accept that the applicant is credible as to her claim of being a genuine Falun Gong practitioner, or that she ever practised Falun Gong in China, or that she was questioned in 2013 or questioned and detained in 2012 for being a Falun Gong practitioner, or her [child] was questioned at the applicant’s home about Falun gong material in the area or her parents were Falun Gong practitioners. This adds to my finding the applicant is not a credible witness.

1. The Tribunal said in paragraph 80:

   80.    For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome.  On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to her claims as to why she departed China and why she fears return.

2. The Tribunal continued to relevantly found:

   83. Accordingly, for all of the above reasons, in light of its findings that she was not a reliable witness, the Tribunal has no confidence in accepting that her evidence about the key aspects of her claims was based on her personal or actual experiences and considers it was fabricated to create a claim to be owed protection.  On the evidence before it, the Tribunal does not accept the applicant ever was, is currently or will be a genuine Falun Gong practitioner, that she ever practised Falun Gong in China publicly or privately, alone, with her father or mother or [her aunt], that either of her parents were Falun Gong practitioners, that her father wrote to the Chinese authorities giving reasons why Falun Gong is not an evil cult, protesting the harsh treatment of other practitioners or arguing why the practise of Falun Gong is good. The Tribunal does not accept her father died as a result of being detained and tortured in 1999 for questioning the ban of Falun Gong or treatment of Falun Gong practitioners, that she and her mother petitioned the Chinese authorities in order to clarify the truth and seek justice and were told Falun Gong practitioners deserve such punishment, The Tribunal does not accept that the applicant’s mother suffered [health condition] because her husband was detained and tortured because he was a Falun Gong practitioner or because he petitioned the Chinese authorities. The Tribunal does not accept the applicant lost her job because of her father being a Faun Gong practitioner or questioning it being banned or because she with her mother petitioned the authorities.

   84. It follows the Tribunal does not accept that her mother was questioned repeatedly by the authorities or neighbourhood committee when there were Falun Gong pamphlets in the area, that she together with her mother and [aunt] were questioned, harmed, detained and fined 5000RMB in 2012 after being caught practising Falun Gong with a picture of Master Li or guaranteed to stop practising Falun Gong, that she was further questioned and warned  at home by either the police or neighbourhood committee in February 2013 regarding Falun Gong matters or because there were pamphlets in the area. The Tribunal does not accept that the applicant’s sister regularly sent gifts to the local police so she and her mother could have peace. It does not accept that her [child] has been questioned since her departure at their home because of Falun Gong material in the area. For all the above reasons, on the evidence before it, the Tribunal does not accept that the applicant is, was or ever has been, a genuine or committed Falun Gong practitioner. The Tribunal finds that the applicant will not practise Falun Gong if she returns to China.

   …

   86. The Tribunal rejects the entirety of the applicant’s claims in relation to Falun Gong related events and activities in China. The Tribunal does not accept the applicant, her parents or her [child] have ever been of adverse interest to the Chinese authorities.

   87. With regard to her other claims based on her lack of credibility the applicant does not accept her husband has recently threatened her or sold her home or that she has to pay money to the bank for the new home as he threatened her or that she fears return for any of the reasons she claims associated with her husband. While it accepts in the past when they were still in relationship she may have faced the difficulties she claims, it does not accept since he moved out in 2011 she suffered any difficulties from him. It does not accept they were living together at the time she departed China or had any association with him after 2011. It further does not accept as true her husband has sold the home and she has nowhere to live on her return home.

   88. With regard to her claims regarding abuse in 2008 at the hands of the authorities because she refused to move, based on her lack of credibly the Tribunal does not accept the compensation offered was unfair and all the 12 households in the building opposed the government compensation offer, nor one evening a dozen people came to their place and smashed the doors, and as a result some neighbours moved away. It does not accept that again in March 2008 a group of thugs came to smash their doors again at around 11 pm, and as they could not put up with such harassment they opened their doors, a scuffle broke out and both her and her husband were beaten or she was hit with an iron bar, blacked out and was taken to hospital. It does not accept she went with her husband to the police station to report what had happened but the police blamed them for not cooperating with the urban development plan. It does not accept she had to pay more money for the new place as it is bigger because she was forcibly moved. It does not accept she is of any interest to the authorities as a result of these claims.

   …

   90. It follows that the Tribunal does not accept that at the time she departed China in March 2013 she held any concerns for her safety or feared being harmed for any of the reasons she claims.

   …

   92. However, based on its findings as to the applicants’ credibility and findings of fact outlined in paragraphs 80 to 90 above the Tribunal has found for the reasons outlined above that the applicant is not now or never was a Falun Gong practitioner, that neither of her parents were Falun Gong practitioners, that she ever publicly or privately practised Falun Gong in China or was ever detained or questioned by the authorities or anyone because she was suspected of being a Falun Gong practitioner or as the family member of a Falun Gong practitioner. It does not accept she faced any discrimination, was fired or made redundant from her job or asked to leave or suffered psychologically because of her or her parents’ claimed practice of Falun Gong and treatment by the authorities. It follows it does not accept that the authorities had any interest in the applicant at the time she left China in March 2013 or will have based on her claims in China for the reasons she claims were she to return to China in the reasonably foreseeable future.

   93. For these reasons, as the Tribunal has found she is not credible and was not a genuine Falun Gong practitioner, the Tribunal does not accept that she would, nor would she wish to, practise Falun Gong on return to China. 

   94. Notwithstanding the above findings the Tribunal accepts that in Australia the applicant has visited the [Suburb 2 and Suburb 1] Falun Gong practice sites and practised Falun Gong, been involved in demonstrations as outlined in the photographs in [an Australian city] in 2013 against the Chinese Government, attended lectures and obtained knowledge of Falun Gong. However, for the reasons outlined above, as the Tribunal is not satisfied that the applicant was ever or is a genuine Falun Gong practitioner, the Tribunal is not satisfied that the reason for the conduct in Australia in undertaking these activates has been otherwise than to strengthen her claim to be a refugee. Therefore as required by s.91R(3) the Tribunal has therefore disregarded this conduct in assessing her claim to have a well-founded fear of persecution in China. In response when section 91R(3) was outlined and raised with her at hearing the applicant did not respond.

   95. The Tribunal therefore finds there is no real chance that she will be identified, questioned, arrested, detained or interviewed by the Chinese authorities as a Falun Gong practitioner or imputed to be a Falun Gong practitioner or because she is the family member of a Falun Gong practitioner.

   …

   97.    On the basis of the applicant’s lack of credibility the Tribunal does not accept she ever faced the difficulties she claims because her house was demolished and she was not given sufficient compensation, or she was attacked by thugs, had her arm harmed by an iron bar or faced any of the difficulties she claims. It does not accept she was forcibly moved and required to pay extra to the bank. It does not accept at the time she left China she was of any interest to the authorities for this reason. It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were she to return to China in the reasonably foreseeable future for any of the reasons associated with the demolition of her home in 2008, lack of appropriate compensation, their claimed refusal to move and relocation to a new address and for the other reasons associated with this claim.

   …

   99. While the Tribunal accepts the applicant had a number of abortions in the past and that these may have been forced upon her, it is her evidence that these occurred when her [child] was in [school]. As her [child] is now [age] and it is her evidence she is unlikely to become pregnant again due to her age and as she is not in a relationship, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were she to return to China in the reasonably foreseeable future because she will be forced to have another abortion.

   100. The Tribunal accepts the applicant may have had a tough life in the past because when her [child] was born the doctors were negligent and she sued them, she could only have one child, she had a poor relationship with her husband as claimed in the past prior to 2011, her sister and brother-in-law kept their distance and she had [abortions], the last while her [child] was in [school] and this affected her physically and psychologically. However for the reasons above, and as raised with the applicant, the Tribunal does not accept she continues to be in a relationship with her husband, or he continues to live in her home or that she will again become pregnant and have to have an abortion. It was her evidence that she is no longer in a relationship and probably too old so unlikely to fall pregnant. On the basis of these changed circumstances, together with the difficulties claimed, the Tribunal does not accept that the difficulties she will face for these reasons amounts to a real chance of persecution involving serious harm. It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were she to return to China in the reasonably foreseeable future for any of the reasons she claims associated with having a tough life.

   101. The applicant has also claimed she fears return as she will be unable to find employment. However based on the applicants lack of credibility, that this claim was only raised at the hearing before me and that she was employed in China, it follows that the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of persecution involving serious harm were she to return to China in the reasonably foreseeable future as she will be unable to obtain employment.

   102. Therefore the Tribunal does not accept that there is a real chance of the applicant being persecuted if she returns to China on the basis of her claims considered individually and cumulatively. The Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution within the meaning of the Convention as qualified by the Act.

3. The Tribunal turned to the issue of complementary protection and relevantly found:

   104.  The Tribunal has rejected the entirety of the applicant’s evidence in relation to Falun Gong related activities and events in China as the Tribunal has formed the view that those claims were fabricated. The Tribunal accepts that the applicant has attended Falun Gong related activities in relation to the practise of the exercises and the study of Falun Dafa and Falun Gong related events in Australia and attended two demonstrations in 2013 as outlined in the photos submitted. The Tribunal is of the view that she did so for the purpose of strengthening her claims to be a refugee. The Tribunal is mindful that s.91R(3) does not apply with respect to conduct in the context of complementary protection.

   …

   107.  In this case, the Tribunal has rejected the entirety of the applicant’s claims in relation to Falun Gong related activities and events in China and found that she was not and is not a Falun Gong practitioner. The Tribunal has also found that she and her parents were not of adverse interest to the Chinese authorities. The Tribunal has accepted that the applicant has attended Falun Gong related activities and events in Australia. There is no evidence before the Tribunal to suggest that she organised these activities or events or had any leadership role in these activities and events.

   …

   109.  The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm because of her attendance at parks to practise Falun Gong, Lectures and attendance at two demonstrations protesting against the Chinese Government. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) for these reasons.

   …

   111.  Based on the applicant’s lack of credibility and my findings of fact above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act as her house was demolished, proper compensation was not paid or she had to move to a new home, or because she owes the bank money or any matter related to her home and events she claims happened in 2008 and after.

   112.  Having regard to my finds of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act because she had a tough life, had abortions, and because of the difficulties she faced with her husband and claims she will face. In this regard while the Tribunal has accepted she may have had a difficult marriage and he was physically and verbally abusive, it finds that they divorced in 2011 and since then he has not lived with her, nor owns the property. She has also claimed that although she likes children, she does not think she is able to and does not have a partner. While the Tribunal accepts it must have been difficult for her in the past, due to the change of circumstances it does not accept that were she return to Chian the difficulties she now claims she faces or will face in this regard amounts to significant harm as exhaustively defined in s.36(2A) and s.5(1). With regard to her claims of a tough life in the past, while it accepts as noted above that she suffered many of the difficulties she claims regarding her difficult marriage, [child’s] health, suing Doctors and abortions, the Tribunal is not satisfied that the difficulties she will face on return because of her past tough life or as her sister and brother-in-law won’t have contact with her amounts to significant harm as defined as exhaustively defined in s.36(2A) and s.5(1).

   113. On the basis of the Tribunal’s findings of fact above and that the applicant is not a witness of truth the Tribunal does not accept she will face the difficulties she claims from her husband, including threats, beatings for any of the reasons she claims or that he has sold the house or she has nowhere to live or she cannot find employment. The Tribunal reiterates that these are new claims made at the hearing before me and expects if they were true she would have made them previously. For these reasons I therefore do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act  from her husband for the reasons she claims.

   114. On the basis of all of the evidence before me, and her claims considered individually and cumulatively I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.

4. It was in those circumstances that the Tribunal affirmed the decision of the delegate.  I am completely satisfied the applicant had a genuine hearing and that the findings made by the Tribunal were open on the material before the Tribunal.  The proceedings were clearly doomed to failure.  I am completely satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015