Aot15 v Minister for Immigration

[2016] FCCA 470

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 470

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error

Legislation:

Migration Act 1958 (Cth), s.36

Federal Circuit Court Rules 2001 (Cth)

Selvadurai v Minister for Immigration (1994) 34 ALR 347
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Re Minister for Immigration; Ex parte Durairajasingham  (2000) 74 ALJR 405
NADH of 2001 v Minister for Immigration [2004] FCAFC 328
Minister for Immigration (2001) 205 CLR 507
SBBS v Minister for Immigration (2002) 194 ALR 49

Applicant: AOT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1147 of 2015

Judgment of: Judge Driver

Hearing date: 4 March 2016

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Burnett of Clayton Utz

INTERLOCUTORY ORDERS:

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1147 of 2015

AOT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 March 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s legal submissions filed on 25 February 2016. 

3. The applicant is a citizen of the People's Republic of China (China). On 18 May 2013, he arrived in Australia on a visitor visa. [1]

   [1] Court Book (CB) 2.

4. On 24 June 2013, the applicant applied for a protection visa.[2] On 16 December 2013, he attended an interview before the Minister’s delegate (Delegate).[3] On 18 February 2015, the Delegate refused to grant the protection visa.[4]

   [2] CB 1-25.

   [3] CB 34.

   [4] CB 37-52.

5. On 20 March 2014, the applicant applied to the Tribunal for review of the Delegate's decision.[5]

   [5] CB 53-58.

6. On 15 July 2014, the applicant was invited to appear before the Tribunal. However, due to a clerical error, the invitation was sent to the applicant's former address. The applicant did not attend the scheduled Tribunal hearing. Although the Tribunal purported to affirm the Delegate's decision on 19 August 2014,[6] the applicant's case was reopened and the applicant was invited to a new Tribunal hearing on 12 February 2015.[7]

   [6] CB 66-70.

   [7] CB 71-72.

7. On 16 March 2015, the applicant attended a hearing before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.[8]

   [8] CB 84 [3].

8. On 24 March 2015, the Tribunal affirmed the Delegate's decision refusing the protection visa.[9]

   [9] CB 82-92.

9. On 24 April 2015, the applicant commenced the current proceedings.

Applicant's claims

1. The applicant claims to fear persecution from the Chinese authorities by reason of his practice of Falun Gong. In particular, the applicant alleges the following in his statement dated 24 June 2013:[10]

   a)in 1998 he began practising Falun Gong with his father. Another practitioner gave the applicant a copy of a book called "Zhuan Falun" and a CD, which he studied. The applicant practised Falun Gong in public and handed out flyers about Falun Gong with other practitioners;

   b)in July 1999, the Chinese government began to persecute Falun Gong adherents. The applicant and his father were summoned by the village security committee for interrogation;

   c)on 14 August 1999, the applicant and his father were detained at a local police station for a "whole day". They were interrogated, not allowed to eat or drink and asked to reflect;

   d)the applicant and his father continued to practise Falun Gong secretly and spread flyers during the night;

   e)on 11 November 1999, the applicant, his father and other Falun Gong practitioners were brought by the village security committee to the police station where they were detained for 10 days. During the detention, the police conducted a search of the applicant's home and confiscated possessions relating to Falun Gong;

   f)following his release, the applicant was subject to "criticism and education" by the village security committee and was interrogated by police "from time to time irregularly"; and

   g)the applicant left China as Falun Gong practitioners in his hometown are discriminated against and "constantly bullied".

   [10] Supplementary Court Book (SCB) 1-4.

Tribunal's findings

1. The Tribunal's decision was centrally based on an adverse credibility finding and a consequential rejection of the substance of the applicant's claims. In finding that it was "not satisfied the applicant is currently a genuine Falun Gong practitioner" [11]and that "the applicant has at least embellished (if not fabricated)"[12] parts of his claims, the Tribunal noted its concerns regarding the following:

   [11] CB 89 [29].

   [12] CB 87 [19].

   a)the applicant's evidence regarding his reporting requirements in China. At the Tribunal hearing, the applicant initially gave evidence that he had been required to attend the police station once every one or two months for ten years, and later amended his statement to attendance once every one or two months for four or five years then one or two times per year thereafter. Due to "inefficiencies", he would remain at the police station for up to half a day before being questioned and released.[13] The Tribunal found that this treatment did not amount to "discrimination" and being "constantly bullied" as claimed in his written statement of 24 June 2013;

   b)delays in obtaining a passport and leaving China. The applicant claimed to have been subject to constant harassment since his detention in 1999 but did not leave China until 2013.[14] The Tribunal rejected his explanation that he did not initially know how to leave China, noting that he had further delayed his departure from China for four years after obtaining his passport in 2009;[15]

   c)implausibilities regarding the applicant's departure from China. The applicant claimed that he departed China legally, on a passport in his own name that had been arranged for him by a friend. The applicant did not have any evidence as to how his friend obtained the passport and did not claim that any bribe was paid or he had to approach airport staff in any required manner. The Tribunal found that the applicant left China legally as "he is of no ongoing interest to the Chinese authorities"; [16]

   d)inconsistent and late evidence raised by the applicant at the hearing, namely:

   i)(applicant's father) The applicant initially indicated that his father is now retired and "relaxing" at home, but later claimed his father was currently subject to onerous and ongoing reporting requirements as a former "leader" of the Falun Gong in the local area.[17] The Tribunal found that the latter comments were "provided at a time in the hearing when the applicant may have presumed it would enhance his case" and rejected them as untrue;

   ii)(Authorities' current search for the applicant) Late in the hearing, the applicant claimed that only one day previous, the Chinese authorities had come to his home in China to seek his whereabouts. The Tribunal found that "this new evidence ha[d] been put to enhance the applicant's case"; [18] and

   e)limited Falun Gong activities in Australia. After discussion with the applicant at the hearing, the Tribunal was not satisfied that the applicant practised Falun Gong in Australia as regularly as he claimed (being two or three times per week), noting that no corroborative evidence had been provided. [19] It noted country information indicating that the treatment of Falun Gong practitioners upon return to China is influenced by their profile and willingness to renounce their beliefs.[20] The Tribunal accepted that the applicant may undertake a "limited and irregular practise in Australia" but was not satisfied that this would be seen as an "active role" in Falun Gong. Accordingly, it did not accept that the applicant's Australian Falun Gong activities would have come to the attention of the Chinese authorities and found that, even if this were not the case, it was satisfied that the applicant would "willingly and readily renounce his practice of Falun Gong".[21]

   [13] CB 86 [17].

   [14] CB 87 [21].

   [15] CB 87-88 [22].

   [16] CB 88 [24].

   [17] CB 86 [15].

   [18] CB 88 [23].

   [19] CB 89 [31].

   [20] CB 90 [34].

   [21] CB 90 [34].

2. In light of the above, the Tribunal, although accepting that the applicant had some historic involvement in Falun Gong,[22] did not accept that he has any continuing interest in or connection with Falun Gong after being detained in 1999.[23] It was therefore not satisfied that the applicant is a genuine Falun Gong practitioner.[24] It found that he would not continue to practise Falun Gong if he returned to China.[25] The Tribunal was also not satisfied that the applicant's irregular practice of Falun Gong in Australia has come to the attention of Chinese authorities.[26] Accordingly, the Tribunal found that the applicant did not satisfy the criteria under ss.36(2)(a)[27] or 36(2)(aa)[28] of the Migration Act 1958 (Cth).

   [22] CB 89 [27].

   [23] CB 88 [25].

   [24] CB 89 [27].

   [25] CB 90 [30].

   [26] CB 90-91 [34].

   [27] CB 91 [36].

   [28] CB 92 [42].

Present proceedings

1. These proceedings began with a show cause application filed on 24 April 2015.  The applicant continues to rely upon that application.  It is supported by a short affidavit filed with it which I received as a submission.  The applicant has not taken up the opportunity afforded him by orders made by Registrar Morgan on 21 May 2015 to file and serve an amended application or additional evidence.

2. The applicant raises two grounds of review:

   1.   Jurisdictional error has [been] made.

   The tribunal doubts my claim without substantive evidence and reach mistaken conclusion

   2.   RRT considers my case with bias.

   RRT does not completely consider my situation. They consider little about harm I will suffer if I return to China.

3. I invited oral submissions from the applicant this afternoon.  He first stated that he was, in effect, holding something back at the time of the consideration of his claims by the Minister’s delegate.  In the event that there was some issue at that stage of the process the Tribunal’s review overcame any obstacle.

4. The applicant also asserted that the Tribunal member asked many tricky questions.  The Tribunal, however, is entitled to test vigorously claims made by a visa applicant.  The applicant complained that he was not able to explain things clearly to the Tribunal and he was at a loss to understand why he had been disbelieved.  I explained to him the basis upon which the Tribunal had drawn its adverse credibility conclusions.

5. In my opinion, there is no substance in the grounds of review raised.  In relation to the first ground, the Tribunal was not required to gather evidence in order to refute the applicant’s claims.  In relation to the second ground, there is on the available material no suggestion of bias.  The applicant’s claims were considered by the Tribunal, although the applicant is dissatisfied with that consideration.

6. In relation to the grounds of review advanced, I otherwise agree with the Minister’s submissions.

Ground 1

1. Ground 1 proceeds on a flawed premise. It is open for the Tribunal to make findings based upon inferences, and it is unnecessary for it to be possessed of any particular contradictory evidence in order to reject claims made by an applicant.[29]

   [29] Selvadurai v Minister for Immigration (1994) 34 ALR 347, 348 (Heerey J); Kopalapillai v Minister for Immigration (1998) 86 FCR 547, 552 (O'Connor, Branson and Marshall JJ).

2. In any event, the applicant's assertion that the Tribunal "doubts my claim without substantive evidence" is factually incorrect. The Tribunal clearly considered the applicant's claims as set out in his statement dated 24 June 2013 and in his oral evidence before the Tribunal. However, it identified several implausibilities and new claims raised at a late stage of the Tribunal hearing, leading the Tribunal to find that "the applicant has at least embellished (if not fabricated)"[30] parts of his claims. The Tribunal also took into account the applicant's significant delay of 10 years between being detained and obtaining a passport, and further four year delay in departing China, which suggested that the applicant "is not a genuine Falun Gong practitioner as claimed". [31] The Tribunal therefore found that the applicant was not a reliable witness.[32]  Such a credibility finding is a matter for the Tribunal[33] which was open to the Tribunal on the evidence.

   [30] CB 87 [19].

   [31] CB 87-88 [21]-[22].

   [32] CB 87 [19].

   [33] Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67].

3. Ground 1 is without merit.

Ground 2

1. Ground 2 asserts that the Tribunal was biased, and that it failed to consider the "harm I will suffer if I return to China". Both assertions are without merit and must fail.

2. A claim of bias can only be made out where the Tribunal's conduct would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to the question to be decided.[34] Such an allegation must be strictly alleged and proved.[35] The applicant has not indicated what aspect of the Tribunal's conduct supports any claimed bias and none is apparent.

   [34] NADH of 2001 v Minister for Immigration [2004] FCAFC 328 at [14] per Allsop J.

   [35] Minister for Immigration v Jia Lengeng (2001) 205 CLR 507 and SBBS v Minister for Immigration (2002) 194 ALR 49 at [43]-[44].

3. It is also evident on the face of the Decision Record that the Tribunal expressly considered the risk of harm to the applicant should he return to China. At [24], the Tribunal found that the applicant was able to leave China legally as he "is of no ongoing interest to the Chinese authorities (or anyone else)". [36] It then went on to assess the risk of harm to the applicant in the future at [29]-[34] of its decision. In doing so, it gave reasons as to why he would not be of any interest to the Chinese authorities, including that the applicant would not wish to practice Falun Gong in China[37] and his limited and irregular practice of Falun Gong in Australia would not have come to the attention of Chinese authorities.[38]

   [36] CB 88 [24].

   [37] CB 89 [30].

   [38] CB 90 [34].

4. Ground 2 is without merit.

5. Two additional points should be made:  the first is that during the course of today’s hearing at one point both the applicant and the interpreter expressed some difficulty in understanding one another.

6. I tested their capacity to understand one another by asking some general conversational questions.  I was satisfied on the basis of those questions and answers that the standard of interpretation today was adequate. 

7. The second point to note is that the decision of the Tribunal in issue was the second Tribunal decision purportedly made on the review.

8. The first Tribunal decision was purportedly made on 19 August 2014.[39]  That decision was made following the failure of the applicant to appear at the hearing to which he had been invited.  As noted above the Tribunal had failed to send a hearing invitation to the correct address for the applicant and a second hearing invitation was issued to him, which he accepted.  I have proceeded on the basis that the Tribunal was not functus officio after purportedly making its initial decision.

   [39]CB 67.

9. If I am wrong in that and the Tribunal’s function was exhausted after the first purported decision, the applicant’s position, in my view, would, in substance, be the same.  No error is apparent on the face of the first decision that there was insufficient material to support a positive decision.

10. If, on the other hand, the procedural error went to jurisdiction that would have necessitated the matter being remitted to the Tribunal for re-hearing. That re-hearing has, in fact, occurred and the applicant has not suffered any disadvantage.

11. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error affecting the decision by the Tribunal under review. 

12. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs. 

14. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

15. I will also direct that the name of the second respondent be amended to the Administrative Appeals Tribunal.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 15 March 2016