ACB15 v Minister for Immigration

[2015] FCCA 757

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACB15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 757

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, ss.476

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

Applicant: ACB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 503 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

The Applicant appeared in Person

Solicitors for the Respondent: Ms N. Maddocks
DLA Piper Australia

ORDERS

1. Proceedings be summarily dismissed

2. Applicant to pay the First Respondent’s costs fixed in the sum of $1100.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 503 of 2015

ACB15

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 made on 3 February 2015, affirming a decision not to grant the applicant a protection visa.  The application identified the following grounds:

   1. The decision of the Tribunal, who has particularly weighted the credibility found in the previous protection visa application to determine my current submission:

   a) is affected by the procedural unfairness.

   b) failed to take into account relevant considerations.

2. The application under the First court date identifies:

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

3. The Court raised with the applicant that, having looked at the application and having read the decision of the Tribunal, it was concerned that the matter failed to disclose an arguable jurisdictional error.

4. The applicant indicated that he felt the Tribunal was not fair and that he was not happy with the decision.  In considering exercise of the Court’s summary jurisdiction 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 identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60]. It was a matter for the Tribunal to make findings in relation to the credibility of the applicant which does not identify any jurisdictional error, and there is no substance in the grounds of the application.

5. This Court is not a Court of general appellate review and, in considering whether its jurisdiction has been properly invoked in respect of an application for a Constitutional writ, it must be satisfied that there is an arguable jurisdictional error.  The background of the applicant having arrived in Australia was relevant in relation to the determination by the Tribunal:

   1. The applicant arrived in Australia [in] October 2008 as the holder of a Tourist visa and a passport issued to him by the government of the People’s Republic of China (China).  He applied for a Protection visa [in] October 2008, claiming to fear being harmed in China because he was a Falun Gong practitioner.  That application was refused by a delegate of the Minister for Immigration [in] December 2008 and then on review by a differently constituted Tribunal on 6 April 2009.  

6. This application was reconsidered by reason of the matters identified in para.2 of the Tribunal’s decision:

   2. Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC, the applicant was eligible to have his claims assessed against the Complementary Protection criterion, and, on that basis, he lodged a further application for a Protection visa [in] September 2013, which is the subject of the present review.

7. It is clear the Tribunal carefully evaluated the claims and evidence of the applicant and, in particular, his assertions raised in relation to his Falun Gong practice.  The Tribunal’s reasons identify a basis for concern as to the credibility of the applicant in relation to those claims:

   18. The Tribunal noted that the irregularities in his evidence caused it some concerns about the reliability of his evidence and the overall credibility of his claims.  It noted that his evidence at the hearing was inconsistent with his evidence to the Department about his encounters with the authorities in China; his evidence about his claimed practice in China was vague and lacking in detail; he had been unable to name the five exercises or give any detailed explanation of the basic principles of Falun Gong, despite claiming to have read the ‘Falun Gong Book’ and to have practiced Falun Gong for a long period of time; the Tribunal noted that these matters all caused it to have concerns about the reliability and credibility of his claims and evidence to have been a genuine practitioner and to have practiced Falun Gong in China and in Australia, as well as his claim to have been mistreated in China because of his Falun Gong practice and to have a genuine fear of being harmed on return.  When asked to comment, he said he had nothing to say.

   19. The Tribunal noted that the irregularities in his evidence caused it some concerns about the reliability of his evidence and the overall credibility of his claims.  It noted that his evidence at the hearing was inconsistent with his evidence to the Department about his encounters with the authorities in China; his evidence about his claimed practice in China was vague and lacking in detail; he had been unable to name the five exercises or give any detailed explanation of the basic principles of Falun Gong, despite claiming to have read the ‘Falun Gong Book’ and to have practiced Falun Gong for a long period of time; the Tribunal noted that these matters all caused it to have concerns about the reliability and credibility of his claims and evidence to have been a genuine practitioner and to have practiced Falun Gong in China and in Australia, as well as his claim to have been mistreated in China because of his Falun Gong practice and to have a genuine fear of being harmed on return.  When asked to comment, he said he had nothing to say.

8. The Tribunal found that the applicant was a national of China and assessed his application on that basis in relation to the complementary protection.  The Tribunal carefully identified the applicant’s claims and, relevantly, made findings. 

   30. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility on these matters lead it to find that he was not a reliable witness and that the account of events on which his protection claims are based is false.  As discussed above, critical aspects of his evidence were inconsistent and the Tribunal considers that on more than one occasion he was willing to adjust and adapt his evidence to fill in perceived gaps in his claims.  Further, at times he was confused and uncertain in the answers he gave to questions which, if the events claimed had taken place, the Tribunal would have expected clearer answers, and, at other times, he was hesitant and appeared evasive in giving responses and often did not provide clear or direct answers, but gave vague and general responses.  His attempts to explain why he did not raise the significant matter of his claimed second detention at the hearing, which included that the Tribunal did not ask him the specific question, was difficult to accept in light of the clear questions it asked him at the hearing, and, in the Tribunal’s view, further undermined his credibility as a witness.  In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’.  It has carefully considered his claim that the events in questions occurred many years ago and that he ‘gave up’ Falun Gong in 2013, which was his explanation for the irregularities in his evidence.  However, the Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant was not a reliable witness. 

   31. Accordingly, for all of the above reasons, in light of its findings that he was not a reliable witness, the Tribunal has no confidence in accepting that his evidence about the key aspects of his claims was based on his 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 that he ever practiced Falun Gong in China or in Australia, or that he had any connection to or involvement with Falun Gong practitioners in China or in Australia.  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.  For these reasons, the Tribunal does not accept that he would, nor would he wish to, practice Falun Gong on return to China.  It follows as a matter of logic that the Tribunal does not accept there is a real risk he would suffer significant harm on return for reasons of his claimed connection to or practice of Falun Gong. 

   32. In light of its finding that he never practiced Falun Gong in China and had no connection to or involvement with Falun Gong practitioners in China and was not a genuine or committed practitioner in China, and in light of his inconsistent, vague and confused evidence about his claimed mistreatment in China, the Tribunal does not accept that he ever came to the adverse attention of the authorities in China or that he was ever arrested, detained or mistreated by the authorities in China for the reasons claimed. 

   33. Accordingly, on the evidence before it, and having considered his claims individually and cumulatively, the Tribunal does 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 he will suffer significant harm. 

   34. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has complementary protection obligations and it finds that he does not satisfy the criterion set out in s.36(2)(aa).  There is no suggestion the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2) for a Protection visa.

9. I am satisfied that there is no substance in the grounds advanced in the application and that the proceedings are clearly doomed to failure. The applicant was provided with a genuine hearing and the findings made were open.  I am satisfied there was no denial of procedural fairness and that the Tribunal complied with the statutory scheme. There is no substance in the alleged irrelevant considerations. I am clearly satisfied the proceedings have no reasonable prospects of success.  The proceedings are summarily dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 March 2015