AFQ15 v Minister for Immigration
[2015] FCCA 995
•16 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFQ15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 995 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | AFQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 744 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 16 April 2015 |
| Date of Last Submission: | 16 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr K. Eskerie Sparke Helmore |
ORDERS
The proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.
The Court notes that these orders have been corrected pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 744 of 2015
| AFQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of the decision of the Tribunal made on 26 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The application identifies the following grounds:
1. The Tribunal found in paragraph 51 of its decision that the applicant's practice of Falun Gong "was undertaken for the purpose of furthering claims for protection" and was not genuine. The Tribunal did not put these concerns to the applicant and give him an opportunity to comment. This was a denial of procedural fairness.
2. The Tribunal stated at paragraph 51 of its decision that it was "not satisfied that the applicant participated in Falun Gong activities post 2007”. The Tribunal did not ask the applicant to provide it with evidence that he had participated in Falun Gong activities after 2007. This was a denial of procedural fairness.
3. The Tribunal, at paragraphs 61 to 70 of its decision, recorded nine difficulties it has with the applicant’s claims in respect of his pro-democracy activities in China. Some of the difficulties arose from inconsistencies between the applicant’s claims to an earlier Tribunal in 1998 and the applicant’s claims to the present Tribunal in 2014. In relation to the inconsistencies:
a) The Tribunal failed to take into account the significant passing of time between 1998 and 2014 and the fact that, in such a long period, it is common that a person's recollection of events deteriorates.
b) The Tribunal failed to put some of the inconsistencies to the applicant and give him an opportunity to comment. This was a denial of procedural fairness.
4. The Tribunal, in paragraph 63 of its decision, referred to an inconsistency in an aspect of the applicant's claims. There was no inconsistency. The Tribunal erred in finding that there was an inconsistency.
The application identified on the first return date:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The Response of the first respondent notes that the application does not establish any jurisdictional error and the first respondent indicated that there was no reason why the Court should not deal with the matter summarily. The Court then raised with the applicant that it was concerned that the application failed to disclose an arguable jurisdictional error. The applicant identified that there were a lot of things that were misunderstood, and that he wanted to get a barrister, and that the errors were those identified in the application.
The applicant asked for an adjournment. There is no utility in granting an adjournment if the proceedings are doomed to failure, as it will only increase the cost of the parties and utilise limited Court time. For the reasons given, I am satisfied that the proceedings are doomed to failure and that there is no utility in granting an adjournment. I take into consideration in respect of 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 at [24]-[25] and [59]-[60].
In relation to the adverse finding by the Tribunal as to the applicant's practice of Falun Gong, this was a matter for the Tribunal. The Tribunal made adverse findings in relation to the credit of the applicant, and these were matters that were open to the Tribunal to determine. It is not necessary that the Tribunal give the applicant an opportunity to comment on its conclusions as to credibility. There is no substance in relation to ground 1 and it does not disclose any arguable jurisdictional error
In relation to ground 2, this again is a challenge of the findings of fact made by the Tribunal adverse to the applicant in relation to his practice and participation in the Falun Gong. This was a matter for the Tribunal to determine, and it was open to the Tribunal to make adverse findings of fact to the applicant. In those circumstances, there is no substance in relation to ground 2 and does not disclose any arguable jurisdictional error.
In relation to ground 3, it was open to the Tribunal to make findings in respect of the matters identified in paras.61to 67. In para.60, the Tribunal said:
60. Given the information on this claim provided by the applicant in the hearing in respect of the current application, and based on the information contained in the previous Tribunal’s decision, the Tribunal now has significant difficulties with the applicant’s claims in respect of his pro-democracy activities in China.
It was in those circumstances that the Tribunal proceeded to identify the reasons for its concern in respect of the evidence given by the applicant. Those findings were open and those findings cannot be said to lack an evident and intelligible justification. There is no substance in relation to ground 3 and it does not disclose any arguable jurisdictional error.
In relation to ground 4, it is clear that para.63 identifies a relevant inconsistency for the Tribunal in its evaluation of the credit of the applicant. This was a matter within the scope of the review for the Tribunal to determine. Ground 4 does not identify any arguable jurisdictional error.
The applicant is a citizen of China and his claims were assessed against that country. The applicant applied for a protection visa on 5 December 2013, which the delegate refused on 6 May 2014. The applicant appeared before the Tribunal on 12 February to give evidence and present arguments. The Tribunal carefully summarised the applicant's claims in evidence. Importantly, the Tribunal identified the applicant's history in para.10:
10. The applicant arrived in Australia on 29 November 1994 on a tourist visa. He arrived on a Malaysian passport in the name of [K]. The applicant had left China on a Chinese passport in his name. The applicant applied for a Protection visa on 30 August 1995. This application was refused on 29 April 1997. The Tribunal affirmed the delegate’s decision on 10 June 1998. Reviews by the applicant to the Federal Court and Full Federal Court were dismissed. The applicant has made a number of requests to the Minister under s. 417 of the Migration Act to have the Minister substitute a more favourable decision for that of the Tribunal. Those applications were either not referred, or have not been considered by the Minister. Requests have also been made to the Minister under s.48B of the Migration Act to allow a further Protection visa application to be made. The relevant guidelines for this application have either not been met or the application has been returned or not finalised. The applicant was detained at Villawood Immigration Detention Centre from June 2004 until June 2005. The current application for a Protection visa was made on 5 December 2013.
It was in the circumstances where the applicant's claim for complementary protection had not been addressed that the Tribunal came to deal with the application for review, as identified in para.11. The Tribunal identified in para.14 the issues that the applicant had faced in relation to evaluating the credit of the applicant, and made an adverse finding as follows:
14. The Tribunal has sought to take into account the applicant’s claims about his depression and memory difficulties. The general observation of the Tribunal is that the evidence given by the applicant ranged from being reasonably detailed and specific, with the ability to answer with a degree of clarity some questions, to other situations where the applicant had no recollection of issues – such as basic Falun Gong practices – to answers being given in a somewhat rambling manner, veering off topic. The Tribunal did not form the impression that the reason for shortcomings in the applicant’s evidence in the hearing was due to a cognitive impairment, although of course the Tribunal is not in a position to make a medical assessment. As is clear from the Tribunal’s findings on the specific claims, difficulties with the applicant’s evidence go beyond the evidence given by the applicant in the hearing. The Tribunal has considerable difficulties with all aspects of the applicant’s evidence. The Tribunal is not satisfied that those difficulties are substantially explained by memory or cognitive difficulties due to depression.
The Tribunal noted that the applicant had repudiated any claim of fear of persecution on the ground of Christianity. However, the Tribunal took that matter into account in relation to an adverse finding of credit:
20. Given the Tribunal’s impression of the applicant, based on all of the materials in the relevant files which show the progress and articulation of his claims, the Tribunal is not satisfied that the applicant is the type of person that would have allowed his immigration advisor to make factual claims without his knowledge. The Tribunal is of the view that the applicant was fully aware that he was making claims on the basis of Christianity, which were false, but he subsequently decided to repudiate those claims.
It was in those circumstances where the Tribunal carefully turned to the applicant's evidence and claims in relation to Falun Gong. The Tribunal made adverse findings as follows:
47. There are many credibility difficulties in the applicant’s evidence relating to all of his claims, and specific difficulties are outlined in the assessment of each claim. In terms of the Falun Gong claims, the key credibility issue is that the applicant was not able to name any one of the five exercises in Falun Gong, which are at the core of its practice. Neither was the applicant able to demonstrate at all any exercise, or any part of an exercise. The Tribunal does not accept the applicant’s claim of depression as an explanation for this complete lack of knowledge. The Tribunal is of the view that even with a depressive condition the applicant would have some memory, and be able to provide at least some indication of the five basic exercises. The lack of any knowledge of the exercises cause the Tribunal to consider that the applicant has had, at best, cursory exposure to Falun Gong.
…
50. The Tribunal is prepared to accept the references he has provided from practitioners of Falun Gong at face value. These would suggest that the applicant had exposure to and some practice of Falun Gong whilst he was in immigration detention, and when he left detention, up until early 2007. The Tribunal is prepared to accept that up until this time, after his release from detention, the applicant participated in some Falun Gong activities, but given the applicant’s lack of basic knowledge of practices, the Tribunal considers that this activity was minimal and cursory. The Tribunal does not think that the applicant has practised Falun Gong nearly to the extent that he claimed in his written claims or in the hearing.
51. The Tribunal is not satisfied that the applicant participated in Falun Gong activities post-2007. The Tribunal notes that the timing of the applicant’s practice of Falun Gong coincided with the lead up to him making a new Protection visa claim and requests for Ministerial intervention in 2007. Based on its assessment of all the applicant’s evidence, and the Tribunal’s credibility concerns, it considers that the applicant has demonstrated a willingness to act in an opportunistic way in relation to his various claims. The Tribunal forms the view in relation to his Falun Gong claims, that his practice of Falun Gong was undertaken for the purpose of furthering claims for Protection and Ministerial intervention. The Tribunal is not satisfied that the applicant’s practice of Falun Gong was genuine. The Tribunal is not satisfied that depression is the reason that the applicant ceased to practice Falun Gong.
…
53. Based on the fact that the applicant’s practice of Falun Gong was minimal, ceased some years ago, and was not genuine, the Tribunal is not satisfied that the applicant would recommence practice of Falun Gong should he return to China. The Tribunal does not consider that the applicant would reveal to authorities that he had been a Falun Gong practitioner given that he was not a genuine practitioner and that it would not be in his interests to reveal this information.
…
56. Given that Chinese authorities will not be aware of the applicant’s minimal practice of Falun Gong in Australia, and that the applicant will not reveal this information should he return to China, there is no basis on which the Tribunal finds the applicant would suffer harm in China as a result of his Falun Gong activities.
57. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, that he will suffer significant harm as result of his Falun Gong activities.
The Tribunal turned to pro-democracy activity in China and made an adverse finding in para.60 as previously set out. It was in those circumstances the Tribunal then made adverse findings:
71. For all these reasons, the Tribunal is not satisfied that the applicant has been a witness of truth in relation to his pro-democracy activities in China. At most, the Tribunal is prepared to accept that the applicant had some involvement as a student in the 1989 pro-democracy activities and may have continued that activity at a low level after 1989. The Tribunal is not satisfied that the applicant was detained by the PSB in 1989. The Tribunal is not satisfied that the applicant’s documentary evidence of an Order for Punishment for Public Security Breach from 1998 is genuine. The Tribunal is not satisfied the applicant was a leader of a group that participated in the 1989 events. The Tribunal is not satisfied that the applicant took a prominent or public role in pro-democracy activity post 1989 and came to the attention of the police or the PSB. The Tribunal is not satisfied that an arrest warrant was issued for the applicant in April 1994. In that respect, the Tribunal is not satisfied that the Arrest Warrant that the applicant has provided the Tribunal is genuine.
…
73. As the Tribunal has determined that the applicant has not been targeted by authorities due to his pro-democracy activity in China, and nor has an arrest warrant been issued for him, there is no real risk of harm to the applicant on this basis in the reasonably foreseeable future should he return to China.
…
75. The Tribunal is not satisfied that the applicant’s participation as an ordinary protester in the 1989 movement creates a real risk of significant harm to the applicant. Overall, in terms of the applicant’s political activity in China, as found by the Tribunal, it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk that he will suffer significant harm.
The Tribunal turned to the issue of pro-democracy activity in Australia, and relatively made adverse findings in paras.80 and 81.
The Tribunal addressed the issue of obtaining of false documents in China, and relevantly found:
85. The Tribunal is of the view that the passport obtained by the applicant was a legitimately obtained passport in his own name, even if relied on false information in the applicant’s identity card as to his originating province. The Tribunal is not of the view that the passport would be considered by the Chinese authorities to be a fraudulent passport. In any event, if the Tribunal is wrong, the Tribunal refers to advice from DFAT in 2009 referred to in the decision of the delegate (which the applicant has provided to the Tribunal) in which the Post indicated that it was ‘not aware of any first-hand information regarding any incidents where Chinese nationals, having left the PRC using a fraudulent passport, have faced criminal sanction upon their return’. The Tribunal also notes that the passport was issued and used over twenty years ago, which is a factor to consider in the risk of action being taken. The Tribunal does not consider there is a real risk of the applicant facing significant harm as a result of his passport being issued on the basis of misinformation now or in the reasonably foreseeable future.
…
88. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that he will suffer significant harm on the basis of the prior use of a passport and the obtaining of an identity card based on false information as to the applicant’s place of origin.
In relation to the inability to obtain Chinese travel documents, the Tribunal relevantly found:
94. The information in these Departmental documents was put to the applicant pursuant to section 424AA of the Migration Act. It was noted that the information relating to the applicant being uncooperative with the Department’s request that he take action to secure a passport is inconsistent with his own claims that he has taken all steps to secure a passport and that might cause the Tribunal to question the credibility of the applicant and the extent to which he has acted in good faith.
95. The applicant indicated that he has genuinely taken all steps possible to secure a travel document and it is not true that he has been difficult in his interactions with the Department.
…
98. The Tribunal is of the view that there is no reason, if necessary steps are taken, that the applicant will not be in a position to obtain a travel document to return to China.
99. The Tribunal is not satisfied 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 as a result of the lack of identity documents.
In relation to claims relating to the Chinese people in Australia, the Tribunal relevantly found:
103. The Tribunal is not satisfied that the applicant’s involvement in helping others in detention prepare Protection visa applications will come to the attention of the Chinese authorities or, if it does, that it would result in any adverse interest in the applicant as a result.
…
106.The Tribunal is not satisfied 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 as a result of his time spent away from China or as a result of his activities in Australia or as a result of being a failed asylum seeker.
It was in these circumstances that the Tribunal made adverse findings with respect to the applicant's claims in respect to s.36(2)(aa) as follows:
107. The Tribunal has considered each of the applicant’s claims separately, and in terms of its findings of fact, has found in each case that there is not a real risk of the applicant facing significant harm should he be returned to China. The Tribunal also considers the applicant’s claims cumulatively, namely its findings with respect to: the applicant’s Falun Gong practice, the applicant’s pro-democracy activity in China; the applicant’s pro-democracy activity in Australia; the obtaining of and use of supposedly fraudulent documents; the inability to secure a valid travel document; and time spent out of China. Considering all of these claims cumulatively, the Tribunal remains of the view that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk he will suffer significant harm for any reason, cumulatively, arising on the evidence.
108. For all the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
109. There is no suggestion that the applicant satisfies s.32(2) on the basis of being a member of the same family unit is personally satisfies s.36(2)(aa) and who holds a Protection visa. Accordingly, the app does not satisfy the criterion in s.32(2).
It was a matter for the Tribunal to determine the credit of the applicant. The findings made by the Tribunal were open. It is clear the applicant had a genuine hearing. It is clear the Tribunal complied with its statutory obligations in relation to the review. It is clear the proceedings are doomed to failure, and I am clearly satisfied the proceedings disclose no arguable jurisdictional error. The proceedings are summarily dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 20 April 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Summary Judgment
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