AXR15 v Minister for Immigration

[2015] FCCA 2486

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXR15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2486

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied an incorrect test, failed to consider a claim and failed to comply with s.424A of the Migration Act 1958.

Legislation:

Migration Act 1958, ss.36, 48A, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

First Applicant: AXR15

Second Applicant: AXS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1510 of 2015

Judgment of: Judge Cameron

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Sydney

Delivered on: 11 September 2015

REPRESENTATION

Counsel for the Applicants: Mr J. Mack

Solicitors for the Applicants: Gregory J Goold

Solicitors for the Respondents: Ms S. Burnett of Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1510 of 2015

AXR15

First Applicant

AXS15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first and second applicants, who are husband and wife respectively, are citizens of China.  On 11 April 2014 the second applicant lodged an application for a protection visa with the Department of Immigration and Border Protection (“Department”), alleging that she feared persecution in China because members of her family, including her husband, were Falun Gong practitioners.  The first applicant was included in that application as a member of his wife’s family unit, although he also made protection claims of his own.  On 21 August 2014 the applicants’ application for protection visas was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. 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 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

Background facts

1. The applicants’ travel and visa histories were set out in the Tribunal’s decision record and were, relevantly:

09/01/06	First applicant leaves China and travels to New Zealand.
12/01/06	First applicant arrives in Australia.
13/04/06	First applicant’s business visa expires.  No further substantive visa granted.
28/01/08	First applicant located by officers of the Department and placed in immigration detention.
13/02/08	First applicant lodges protection visa application.
28/02/08	First applicant’s protection visa application refused by a delegate of the Minister.
09/05/08	Decision of the delegate is affirmed by the Tribunal, differently constituted.
12/08/08	First applicant is granted a bridging visa and released from immigration detention.
17/09/08	First applicant’s application to this Court for review of the Tribunal’s decision dismissed: SZMJD v Minister for Immigration & Anor [2008] FMCA 1297.
04/10/08	First applicant’s first s.48A request (to lodge repeat protection visa application) refused.
29/06/09	First applicant’s first request for Ministerial intervention finalised as “not considered”.
08/02/10	First applicant’s second s.48A request refused.
25/11/10	First applicant’s third s.48A request refused.
06/12/10	First applicant’s second request for Ministerial intervention finalised as “not referred”.
04/01/11	United Nations Office of the High Commissioner for Human Rights (“OHCHR”) acknowledges petition by the first applicant for consideration by the Committee Against Torture.
28/01/11	First applicant’s bridging visa ceases and he becomes unlawful.
31/01/12	Second applicant enters Hong Kong on a genuine Chinese passport.
01/02/12	Second applicant arrives in Australia from Hong Kong on a fraudulent passport.
26/02/14	Both applicants are located by officers of the Department and placed in immigration detention.
11/04/14	Second applicant lodges protection visa application, with the first applicant included as a member of the family unit.
28/08/14	The applicants’ combined protection visa application is refused by the delegate.

1. As summarised by the Tribunal, the second applicant relevantly made the following claims:

   a)her father, brother and husband had been Falun Gong practitioners in China.  She was at risk of harm in China because of her connection with them;

   b)her husband was arrested in 2003 and forced to reveal her father’s role as the leader of a local Falun Gong group.  In 2004 her father was arrested and in 2005 he was convicted and sent to gaol where he died in 2010;

   c)she was not in contact with her brother and did not know where he was;

   d)her husband went into hiding after her father’s arrest. In 2006 he fled to Australia with the help of his employer who arranged a short stay business visa for him.  Afterwards, the police would come to her house two to three times a year to check whether he had returned;

   e)in 2008 she bribed a police officer to provide proof of her husband’s detention in China so that he could submit it with his first protection visa application.  This brought her husband’s case back to the attention of the police who, realising that he had fled, searched her home on 6 February 2008 for evidence of his Falun Gong involvement;

   f)in September 2008 the police went to the school where she worked seeking evidence that she had helped her husband to escape.  They had a warrant for her arrest but she managed to evade them and went into hiding with her children.  For the next four years, until her departure from China in February 2012, she lived with relatives at different locations and her children changed schools every term;  

   g)she obtained a Chinese passport in 2003 and a second one in July or August 2008.  She used the latter passport to travel to Hong Kong (in January 2012);

   h)if she returned to China she would be arrested on charges of having assisted a fugitive and would be tortured to extract information about her husband; and

   i)she did not seek protection immediately upon her arrival in Australia because, by that time, her husband’s visa had expired and she was scared that he would be located and detained.  They were also awaiting the outcome of her husband’s OHCHR application.

2. The first applicant made the following claims:

   a)he started practising Falun Gong in 2002;

   b)on 6 June 2003 he was taken to the local police station where officers tried to extract from him the identity of the leader of his Falun Gong group.  He refused to provide this information and was beaten severely as a result.  He stopped practising Falun Gong in China after this incident;

   c)work colleagues advised him in 2004 that they had noticed “suspicious” looking people following him;  

   d)he travelled to Hong Kong, New Zealand and then Australia as part of a business trip which had been arranged by his employer.  He travelled on a passport in his own name which he had applied for in January 2003 and which was issued to him in April 2003; 

   e)in January 2008 he applied to the Chinese Consulate in Sydney to renew his passport; and

   f)he had practised Falun Gong in Australia but stopped about a year after his wife’s arrival in Australia and was no longer a practitioner.

3. The applicants also provided post-hearing submissions to the Tribunal.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under s.36(2)(aa) of the Act or under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), an immaterial mis-description of the relevant test under s.36(2)(a) of the Act.

2. The Tribunal found that both applicants had fabricated their claims to protection and did not accept that either of them had ever been the subject of adverse interest, attention or mistreatment by the Chinese authorities.  The Tribunal was satisfied that neither applicant had a genuine fear of harm in China. 

Findings in relation to the second applicant

1. The Tribunal did not accept that the second applicant was in hiding from September 2008 until her departure from China in February 2012, noting that:

   a)her children continued to attend school throughout this period;

   b)according to independent country information, the Chinese authorities had computerised access to the records of persons the subject of warrants.  In light of this information, the Tribunal did not accept that a warrant had been issued for the second applicant’s arrest in September 2008 (the implication being that she would not have been able to depart China legitimately had there been a warrant for her arrest);

   c)the second applicant claimed that she had lived with relatives throughout this period.  The Tribunal did not accept that the police would not have been able to locate her had they wished to; and

   d)the second applicant remained in the same province in China throughout this period which, in the Tribunal’s view, would have increased the likelihood of the Chinese police being able to locate her without difficulty.

2. The fact that the second applicant had been able to obtain a genuine passport in her own name in July or August 2008 indicated to the Tribunal that she was of no interest to the Chinese authorities.  In this regard, the Tribunal accepted independent information which indicated that persons who were under investigation, wanted by the authorities or family members of known Falun Gong practitioners were unlikely to be able to obtain a passport or were likely to have their passport (or their identification documents) confiscated.  The Tribunal found that the following aspects of the second applicant’s claims were inconsistent with that information:

   a)her husband had been arrested on 5 June 2003 as a suspected Falun Gong practitioner and leader and had fled China on a passport in this own name;

   b)her father had been arrested in 2004 and imprisoned in 2005 as a Falun Gong practitioner and leader;

   c)the police searched her home in February 2008 looking for evidence against her husband as a suspected Falun Gong practitioner and against her for helping him evade the authorities; and

   d)she had drawn attention to herself in 2008 by approaching a police officer to get evidence relating to her husband’s detention so that she could send it to him for his protection visa application.

3. The Tribunal was also satisfied, in light of the independent information, that the second applicant’s ability to travel to Hong Kong on a genuine passport in her own name indicated that she was of no interest to the Chinese authorities.     

4. The Tribunal found that the second applicant’s actions since arriving in Australia were inconsistent with a genuine fear of return to China:

   a)she applied for protection on 11 April 2014, more than two years after her arrival in Australia;

   b)because she had arrived in Australia on a false passport, she had never had lawful authority to enter and remain here and so was liable to be removed at any time.  However, for over two years she did not take any steps to regularise her status;

   c)she only lodged her protection visa application after she had been taken into immigration detention.  The Tribunal found that the timing of her application was more consistent with a desire to extend her stay in Australia and to effect her release from immigration detention than with a genuine fear of return to China; and

   d)given the first applicant’s experience in seeking protection in Australia, ignorance of the process could not explain the second applicant’s delay in seeking protection.

5. The Tribunal was satisfied that the second applicant had used a false passport to travel to Australia in order to conceal from Australian authorities her connection with the first applicant.  This indicated to the Tribunal that the second applicant was prepared to engage in deception and untruths and provided further support for its conclusion that her claims had been fabricated.

6. In relation to a photograph provided by the second applicant to the Department, the Tribunal noted that it had no basis on which to determine whether the person depicted was the second applicant’s father, when the photograph was taken or whether the person in the photograph was in prison.  However, given that it was satisfied that the second applicant had fabricated her claims, the Tribunal concluded that even if the person in the photograph was her father and the photograph had been taken when he was in prison, this did not establish that he had been imprisoned because he was a Falun Gong practitioner and leader or that the second applicant was subjected to harm as the daughter of such a person.  

Findings in relation to the first applicant

1. Having affirmed the decision of the delegate to not grant the second applicant a protection visa, the Tribunal found that the first applicant could not be granted a protection visa on the basis that he was a member of the second applicant’s family unit. Consequently, the only claim which remained for consideration was whether he satisfied the complementary protection criteria in s.36(2)(aa) of the Act.

2. The Tribunal found that the first applicant did not practise Falun Gong prior to his departure from China and that therefore he had not been subjected to any form of harassment, mistreatment, detention or monitoring for that reason.  The Tribunal reached this conclusion because the first applicant’s actions after his arrival in Australia were not consistent with a fear of harm in China or with a fear of returning to China:

   a)he claimed that he was mistreated by the police on 1 June 2003 but did not leave China until January 2006 despite having a passport issued in April 2003;

   b)he entered New Zealand prior to arriving in Australia but made no attempt to seek protection at that point; 

   c)he entered Australia on 12 January 2006 but did not seek protection until 13 February 2008;

   d)his Australian business visa expired on 13 April 2006 at which point he was liable to immediate removal from Australia as an unlawful non-citizen but he made no attempt to regularise his status in Australia to avoid that risk;

   e)he lodged his 2008 protection visa application only after he was detained as an unlawful non-citizen.  In the Tribunal’s view, the timing of his application was consistent with an intention to extend his stay in Australia and to obtain release from immigration detention rather than with a genuine fear of harm in China;

   f)on or around 28 January 2011 the first applicant attended the Chinese Consulate in Sydney in order to renew his passport.  This suggested to the Tribunal that he had no fear of the Chinese authorities; 

   g)his last bridging visa expired in January 2011, at which point he again became an unlawful non-citizen liable to removal from Australia.  However, he made no attempt to regularise his status in Australia to avoid that risk; and

   h)despite being familiar with the process of seeking protection in Australia, the first applicant did not counsel or encourage his wife to lodge her own protection visa application – and to include him in it – until after they were both placed in immigration detention.

3. The Tribunal also noted that the first applicant’s claims were not supported by independent evidence available to it.  That evidence indicated that a person in his position (i.e. a suspected Falun Gong practitioner) would have been refused a passport or, if in possession of one would have had it confiscated, and that anyone under surveillance by the Chinese authorities on suspicion of being a Falun Gong practitioner would have experienced difficulty passing through security when attempting to depart China.  The Tribunal noted in this regard that although the first applicant had been detained in June 2003, his passport had not been taken from him then or at later times when he claimed to have been under surveillance.  Further, he had been able to leave his home province, transit through Hong Kong and depart China without any difficulty which, according to the independent information, strongly indicated that he was not at that time of any interest to the Chinese authorities.

4. The Tribunal noted that the first applicant did not mention his father-in-law in his original protection visa application and only did so later, in the application in which he was included as a member of his wife’s family unit.  The Tribunal was satisfied that he had not raised this claim at the first opportunity because it was not true.

5. In light of these matters, the Tribunal was not satisfied that there were any grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, there was any risk that he would suffer significant harm.

Proceedings in this Court

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

   1.The Refugee Review Tribunal (RRT) committed jurisdictional error by failing to apply the correct test pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth):

   Particulars

   a.In relation to the [First] Applicant’s claim, the RRT erroneously considered issues relevant to whether the [First] Applicant was owed protection obligations under s.36(2)(aa) of the Migration Act at [69], [92], [93], [94], [95],[96], [97], [98] and [101].

   b.In relation to the [Second] Applicant’s claim the RRT merely made a conclusory statement in relation to whether there is a real risk she would suffer significant harm [83].

   2.The RRT committed jurisdictional error by failing to take into account the [Second] Applicant’s claim for protection based on her brother’s involvement with Falun Gong.

   Particulars

   The [Second] Applicant raised that her protection claims were based on her association to her father, husband and brother who were Falun Gong practitioners at [4]. The Tribunal made no finding in relation to the brother.

   3.The RRT failed to comply with the exhaustive statement of the natural justice hearing rule in the Act by not complying with the requirements of s.424A or otherwise s.424AA of the Act.

   Particulars

   a.The RRT assumed that the [Second] Applicant would have known about the process for applying for a protection visa based on the purported knowledge of the [First] Applicant. 

   b.The RRT used this assumption as part of the reason, for affirming the decision under review at [34], [76](d).

Ground 1

1. Although the first ground of the application particularised matters relevant to each applicant separately, the same argument was made for both of them. The Court was referred to passages in the Tribunal’s decision which referred to what the Tribunal assessed to be the applicants’ lack of fear that they would be harmed if returned to China. The applicants correctly pointed out that while one of the criteria for the grant of a protection visa under s.36(2)(a) of the Act is that the visa applicant has a subjective fear of persecution in his or her country of nationality or habitual residence, the criteria for the grant of a protection visa on complementary protection grounds under s.36(2)(aa) of the Act contain no such criterion. The applicants submitted that the Tribunal had erred by considering their complementary protection claims by reference to a test relevant to a Convention-related claim under s.36(2)(a), namely whether they had a subjective fear of harm if returned to China.

1. The applicants’ argument misconstrues the Tribunal’s reasons.  The Tribunal was not saying that the applicants were not entitled to protection visas on complementary protection grounds because they did not satisfy a Convention-related test.  It was saying that they were lying.  In the first of the paragraphs cited by the applicants in particular 1(a) of their application to this Court, the Tribunal said:

   The Tribunal finds that both applicants have fabricated their claims to protection. … The Tribunal is satisfied that neither applicant has a genuine fear of any harm if they were to return to China.

2. The Tribunal’s statement that the applicants did not harbour the fear they alleged was no more than an expression of its conclusion that they did not believe what they were saying to it with the consequence that the purported foundation for the alleged fear was also non-existent.  It found that the applicants’ behaviour and the true facts of their claimed histories and circumstances were such that there was no basis for their claims to fear harm if returned to China and that, in the absence of an accepted basis for such fears, it was not satisfied that they would face significant harm in China.

3. The error alleged in the first ground of the application is therefore not made out.

Ground 2

1. The applicants alleged that although the Minister’s delegate had attended to the second applicant’s claim that her alleged fear of harm in China was based in part on her brother having been a Falun Gong practitioner, the Tribunal had not done so too and had therefore failed to exercise its jurisdiction completely.  This allegation arises out of the fact that although the Tribunal made it clear in its reasons that it was aware that the second applicant’s claims were partly based on her brother’s alleged involvement with Falun Gong, it did not, in connection with her claims, make any express finding on that issue. 

2. It was unnecessary for the Tribunal to make a particular finding on the second applicant’s claim concerning her brother.  This is because it rejected the truthfulness of her claims by reference to her own behaviour, finding that it belied the genuineness of those claims.  That finding subsumed the issue raised concerning the second applicant’s brother.

3. The Tribunal’s decision was based on its consideration of the second applicant’s claims to have been in hiding, to her evidence concerning her Chinese passport and her departure from China, to her reasons for using a Taiwanese passport to enter Australia and to her behaviour once in Australia.  The Tribunal concluded that those matters demonstrated the falsity of the second applicant’s claims. 

4. In those circumstances it was not necessary for the Tribunal to devote more attention to issues connected with the second applicant’s brother than it did. 

Ground 3

1. The applicants alleged that one of the Tribunal’s reasons for affirming the delegate’s decision concerning the second applicant was the knowledge it imputed to her concerning the protection visa process which, when coupled with her delay in seeking protection, led to an inference that her claim to fear harm in China was not genuine. The applicants alleged that the knowledge imputed by the Tribunal to the second applicant concerning the protection visa process was information which it had been obliged to give to the second applicant for her comment or response pursuant to s.424A(1) of the Act. That sub-section provides:

   424A Information and invitation given in writing by Tribunal

   (1) Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

2. However, that provision is subject to the exceptions set out in s.424A(3) which provides:

   (3) This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application for review; or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c) that is non‑disclosable information.

3. The fact that the second applicant was aware of her husband’s first protection visa application was information which she herself had provided to the Tribunal when she told it that she had bribed a Chinese police officer in 2008 to obtain information which would help her husband’s first application for protection. Therefore, by virtue of s.424A(3), it did not need to be notified to her under s.424A(1). The second applicant also told the Tribunal that she had wanted to apply for protection immediately upon her arrival in Australia but had not done so because of the consequences which this might have had for her husband. The knowledge implied by that evidence was also information which fell within the s.424A(3) exceptions.

4. Being in possession of such information, it was open to the Tribunal to infer that the second applicant was sufficiently aware of the protection visa application process that ignorance of it did not explain her delay in making her own application. The inference which the Tribunal drew as to the second applicant’s level of knowledge was not “information” as that word in understood in the context of s.424A(1): SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190, and so did not need to be notified to her under s.424A(1).

5. For those reasons, the third ground of the application is not made out.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

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

Associate: 

Date:  11 September 2015