AXE15 v Minister for Immigration

[2018] FCCA 1872

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXE15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1872

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958, ss.36, 48A, 474

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577
SZVTC v Minister for Immigration & Border Protection [2018] FCA 824

Applicant: AXE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1490 of 2015

Judgment of: Judge Cameron

Hearing date: 5 June 2018

Date of Last Submission: 5 June 2018

Delivered at: Sydney

Delivered on: 5 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr H. Gao of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1490 of 2015

AXE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of China who arrived in Australia on 22 May 2001 holding a Business (Short Stay) subclass 456 visa.  That visa ceased on 22 June 2001.  On 18 June 2001 the applicant lodged his first protection visa application with what is now the Department of Home Affairs (“Department”).  That decision was refused by an officer of the Department and that departmental decision was affirmed by the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent.   

2. Following the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant filed another protection visa application on 27 November 2013 relying on the complementary protection criteria contained in s.36(2)(aa) of the Migration Act 1958 (“Act”).  That application is the subject of this proceeding.  In his application the applicant alleged that he feared persecution in China because he is a Falun Gong practitioner.  On 13 May 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Tribunal for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

Claims for protection

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in statements accompanying his protection visa applications and in written and oral evidence submitted to the Tribunal.  As summarised by the Minister in his written submissions, the applicant made the following claims:

   6.1He has been a Falun Gong practitioner since 1995. He promoted Falun Gong in China and participated in a sit-down protest in 1999 after Falun Gong was declared unlawful by the Chinese government;

   6.2.As a senior Falun Gong practitioner, he was a team leader of the local Falun Gong organisation. As a result, he was arrested and detained between 8 and 23 March 2000, during which he was beaten and brainwashed;

   6.3He was kept under surveillance for a year following his detention. He went to Fuzhou to appeal to higher authorities however he received a hostile reception and was ‘fiercely smashed and flushed out’;

   6.4He secretly organised a group of Falun Gong practitioners who posted secret slogans and handed out leaflets. As a result, the local authorities sent a large number of police to enquire about the leaflets. Following the arrest of a group member, the applicant departed China for Australia;

   6.5After arriving in Australia, he was informed that the member of his group who had been arrested, had told the authorities that the applicant was the organiser of the group. He claimed that a warrant had been issued for his arrest and that his family was threatened by the local authority.

2. Additionally, before the Tribunal the applicant said that:

   a)the date of his arrest had been recorded incorrectly;

   b)he obtained his passport on a date in September 1999;

   c)Falun Gong was “truthfulness, compassion, tolerance and five exercises”;

   d)he practised and studied Falun Gong, including at Parramatta Council premises every Friday in a practice group.  That practice lasted for about an hour and the members of the practice group read the Zhuan Falun book together;

   e)he had the Zhuan Falun book.  It had nine chapters, although he did not know what they were called and guessed at the titles of the third or fourth chapter.  He did not know what the first chapter was about or, indeed, what any of the parts of the book were about; and

   f)he left China because he believed, sooner or later, the police would find out that he was distributing Falun Gong pamphlets.

3. The applicant also submitted to the Tribunal black and white copies of four photographs which he said showed him protesting outside the Chinese Consulate in Sydney. In evidence related to those photographs, the applicant told the Tribunal that his group went there once or twice a week to hold up a banner and practise Falun Gong outside the consulate. The applicant further told the Tribunal that he had started going to the Chinese Consulate to protest shortly after he arrived in Australia. The applicant confirmed that he obtained his Chinese passport from the Sydney consulate in May 2013.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   8.In affirming the decision under review, the Tribunal found that the applicant was not a credible witness.

   9.     The Tribunal found that the applicant’s knowledge of Falun Gong was minimal, which undermined his claim that he had been studying Falun Gong for almost 20 years. The Tribunal noted the applicant’s inability to meaningfully describe the primary Falun Gong text. The Tribunal noted the photographs submitted by the applicant, but did not find them to be supportive of the applicant’s claims. The Tribunal found that the applicant had never been a Falun Gong practitioner in either China or Australia.   

   10.The Tribunal also noted the various inconsistencies between the applicant’s written statement and his oral evidence at hearing, and did not accept that the applicant had ever promoted Falun Gong in any way in China, or that he had been detained by Chinese authorities in 2000 due to his participation in Falun Gong activities.

   11.The Tribunal accepted that the applicant publicly performed Falun Gong exercise in front of the Chinese consulate in Sydney. However, the Tribunal did not accept the applicant participated in these activities due to his genuine belief in Falun Gong. Nor did the Tribunal accept that the applicant had engaged in protest activity on any other occasion.

   12.The Tribunal found that the applicant would not be harmed in China as a result of his public demonstrations of Falun Gong. The Tribunal noted that the Chinese authorities issued the applicant with a new passport in May 2013 without any difficulties and considered that this indicated a lack of interest in the applicant by the Chinese authorities.

3. It might be noted that although in para.12 of its reasons the Tribunal noted that the applicant had not been prevented by s.48A of the Act from lodging another protection visa application on the basis of the complementary protection criterion, and thus implicitly recognised that the only basis upon which the applicant could seek a further protection visa was by reference to the complementary protection criterion found in s.36(2)(aa) of the Act, it went on to consider not only that issue but also whether the applicant might otherwise be entitled to protection by reference to the Convention.

4. Although the Tribunal went further than it needed to by stating conclusions concerning Convention-related protection obligations, that does not, in my view, have any material effect on the validity of its decision concerning the complementary protection application made by the applicant. This is because the Tribunal’s findings concerning the applicant were, to put it briefly, that his claims were not to be believed either in the complementary protection context or in the Convention context. It did not accept that the applicant had been a Falun Gong practitioner or that his activities in Australia would imperil him were he to return to China.

PROCEEDINGS IN THIS COURT

1. In the application commencing these proceedings the applicant alleged:

   1. I refer to the Full Federal Court decision, Minister for Immigration and Citizenship v SZLSP[2010] FCAFC 108 (3 September 2010) which includes the following:

   The notion that acting as an “arbiter of religious doctrine may be jurisdictional error, His Honor commented (at 552[16] that: “Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal Knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of Arbiter of doctrine with respect to any religion.’

   Further, His Honor, Gray J pointed out in Wang’s case at 552,[16] “that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. Degrees of understanding and commitment of those practicing any particular faith will vary. To ascribe who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.”

   However, in the RRT decision record, from Paragraph 43 to Paragraph 48, the tribunal was virtually acting as an arbiter of religious doctrine. It was apparent that I had to satisfy the tribunal that I possess a specific level of doctrinal knowledge to justify being regarded as a guanine Falun Gong practitioner. The way that RRT approached my claims is explicitly inconsistent with above-mentioned Court decisions and in tum, constituted a judicial error.

   2.At Paragraph 65 of RRT decision record: “the tribunal accepts the Chinese authorities may be aware of the applicant’s activities outside their Sydney Consulate. However, even assuming they may have been able to identify the applicant the available evidence does not suggest these activities have created an actual adverse interest in the applicant by the Chinese Authorities ...”

   However, the Tribunal failed to indicate what evidence it relays on to suggest that a person whom is known to the Chinese Authority, being engaged in FaLun Gong activities, has not attached their attention.

   Overwhelming country information indicates the Chinese Authorities are treat imputed political opponents harshly, that they closely monitor Chinese nationals overseas and that returnees are questioned upon return to China. I was engaged in FaLun-Gong protest outside the General-Consulate of China as the Tribunal agreed; therefore, there is a real chance that I will be seriously harmed by the Chinese Authority upon my arrival in China.

   The Tribunal quoted the extracted country information, in relation to Falun Gong in China, from UK Home office 2002 in its decision; but failed to realize UK Home Office Country of origin report for China also reveals how failed asylum seekers were treated upon their returns.

   On 16 June 2008 ABC New Reported - The suicide of a man known as Mr. Zhang was forcibly returned to China by Australian Immigration authorities. He was beaten and tortured after he was returned to China because of his involvement with Pro-democracy groups in China decades ago.

   3.At Paragraph 29(b) in the RRT decision record; the tribunal member requested the contact number of [name], the organiser of our DAFA study group, I thought her number was stored in my mobile phone, but somehow I was not able to retrieve her number during the hearing. I believe the Tribunal should have granted me a day or two such that I would provide her contact details to the Tribunal, which is of significance for [name] will attest that I have been attending DaFa studying group and a bona fide FaLun Gong practitioner. The Subsection s422B(3) of the Migration Act, 1958 requires the tribunal to act in a way that is fair and just, but the tribunal failed to do so, thereby; erring in applying the s422B of the Migration Act, which amounted to a judicial error. (Without alteration)

Ground 1

1. The burden of the first ground of the application was that the Tribunal had acted as an arbiter of doctrine, as that term is understood in light of authorities such Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 and, most recently, SZVTC v Minister for Immigration & Border Protection [2018] FCA 824. However, it is apparent, from a consideration of the Tribunal’s reasoning, that it did not purport to determine what a genuine Falun Gong practitioner ought to know. In this regard, it made the following observations:

   a)the applicant had been asked to describe Falun Gong but could state little more than the phrase, “truth, compassion and tolerance” and that it had five exercises for people’s health;

   b)the applicant could name and give a brief description of the five exercises and he knew the year that Falun Gong was created and the name of its founder, but little else;

   c)the applicant showed little or no understanding of any of the stated premises underlying Falun Gong;

   d)the applicant claimed to be studying and practising Falun Gong every week in Australia, however, when asked to describe the basic principles of Falun Gong, he merely replied, “Falun Dafa is good, and that truthfulness, compassion and tolerance are good”.  When asked if he could speak of anything else, he merely stated, “by practising you can strengthen your body”;

   e)the applicant was not clear as to the meaning of the Falun;

   f)the applicant was not able to give a reasonable explanation why he could not provide information about Falun Gong during his previous protection visa application;

   g)the applicant also claimed to possess and to have read and studied the primary Falun Gong text, Zhuan Falun, including to have read it on a weekly basis with his Falun Gong study group.  However, he was able to provide very little detail about this text.  The Tribunal noted that when asked what the first chapter was about he could give no answer and then when asked to describe what any part of the book was about, after hesitation just stated the words, “Celestial Eye” without being able to add any more; and

   h)when the Tribunal repeated its request that he describe any part of the book, the applicant is recorded by the Tribunal as having remained silent until stating that he did not understand.  When the Tribunal asked why he did not understand, the applicant is recorded as having responded, “How do you want me to describe it?” and when then invited to describe any part he liked, he merely stated, the Tribunal has recorded, that the book had nine chapters and that each chapter had many points.

2. The exchanges between the Tribunal and the applicant at the Tribunal hearing provided a sufficient basis for the Tribunal to conclude that such knowledge as the applicant had of Falun Gong was inconsistent with his claims and that those claims were to be disbelieved.  For these reasons, the first ground of the application is not made out.

Ground 2

1. The second ground of the application alleged that the Tribunal had no evidentiary basis for its finding that the evidence did not suggest that he had come to the adverse attention of the Chinese authorities. 

2. It is important to record in the context of that allegation that at para.60 of its reasons the Tribunal records the applicant as having claimed to have protested with others outside the Chinese Consulate in Sydney in relation to China’s treatment of Falun Gong practitioners once or twice a week since he came to Australia, which it will be remembered was in 2001.  The Tribunal also recorded that the applicant had supplied it with photographs of a protest outside the Chinese Consulate involving himself and other people, ostensibly Falun Gong practitioners.  The Tribunal noted that similar photographs had been submitted to the Tribunal as previously constituted in the context of the applicant’s earlier claim regarding protest activity outside the consulate in 2001. 

3. The Tribunal went on to state that it accepted that the applicant had been involved in that activity on the two occasions depicted in the photographs, albeit that it was not satisfied that he had done so on any other occasion.

4. The Tribunal’s reasoning was that the protests in which the applicant had been involved, of which the Tribunal accepted there had been only two, were low key. It also noted that the applicant’s passport was reissued by the Chinese Consulate in Sydney on a date after the first of those protests. It was open to the Tribunal, in those circumstances, to conclude that the applicant’s activities did not actuate adverse interest on the part of Chinese authorities.

Ground 3

1. The applicant’s allegation that the Tribunal did not provide him with time or allow him time to provide the contact details of the organiser of his Falun Gong study group, and that its decision to reach a final decision without allowing him that time amounted to a miscarriage of discretion, fails on two simple facts. The first of those is that the applicant told the Court, in answer to a question, that he had not asked the Tribunal for further time. The second is that he had in fact had sufficient time to provide the Tribunal with the information in question, if he had had it, because the Tribunal’s decision was delivered more than a month after the hearing and, during that period, the applicant actually provided the Tribunal with further information, as recorded in para.30 of the Tribunal’s decision record. In the circumstances, no miscarriage of discretion has been demonstrated.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated and, consequently, the application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  11 July 2018