BJS15 v Minister for Immigration

[2018] FCCA 2254

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJS15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2254

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

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: BJS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1960 of 2015

Judgment of: Judge Cameron

Hearing date: 26 June 2018

Date of Last Submission: 26 June 2018

Delivered at: Sydney

Delivered on: 26 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A. Keevers of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1960 of 2015

BJS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUTION

1. The applicant is a citizen of China who arrived in Australia on 13 November 2013. On 11 February 2014 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in China because of his practice of Falun Gong. On 25 June 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has sought judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. On 13 August 2015 a registrar of the Court dismissed the proceeding under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.  That order was subsequently set aside on 28 September 2015 and the matter listed for final hearing.   

3. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its 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.

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

BACKGROUND FACTS

Protection visa claims

1. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Minister in his written submissions in the following terms which I adopt:

   4. The applicant’s claims were set out in a written statement accompanying his application for a protection visa.  Those claims were, in summary, as follows:

   (a) The applicant was persecuted by the Chinese government due to his practice of Falun Gong. In October 2003, the applicant married and he and his wife cultivated a small farm. Due to the hard physical nature of the work, the applicant’s health deteriorated. At the beginning of 2007, his friend (Mr Z) told him in secret of the practice of Falun Gong. The applicant commenced practising Falun Gong and over time his body became stronger.

   (b) As the applicant continued his practice of Falun Gong, he aspired to communicate with, and learn from, other practitioners and introduce the practice to his relatives and friends. The applicant’s wife opposed this.

   (c) On 15 June 2011, Mr Z was arrested for distributing Falun Gong leaflets. While under interrogation, Mr Z confessed to police the applicant’s practice of Falun Gong with Mr Z.

   (d) On 21 June 2011, the applicant was arrested by police and taken to the police station where he was beaten and forced, under torture, to sign a letter guaranteeing that he would not practise Falun Gong. The applicant was then detained for 15 days and while detained, he was required to attend “brainwashing classes”, was beaten and kicked, and tortured and asked to inform on other Falun Gong practitioners.

   (e) Following his release, the applicant was required to report [to] local police every two [weeks]. The applicant was ostracised by his neighbours and friends as a “cultist” and on 1 September 2011 the local government terminated their contract with the applicant, resulting in him losing his farmland.

   5.The applicant made the following additional claims before the Tribunal:

   (a) The applicant contracted hepatitis from a family member, and Mr Z told him that Falun Gong would help with the hepatitis and that he was cured in 2013.

   (b) Following a tip-off to local police by a neighbour that the applicant continued to practise Falun Gong, the applicant was arrested for a second time in March 2012 and detained for a period of 15 days. During this time, he was beaten by the police and sustained several injuries, for which he had to attend a local clinic for treatment. On his release, he was required to both report to local authorities and to pay them money. (References omitted)

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

   6.The Tribunal made comprehensive adverse credibility findings in respect of the applicant’s claims. In making those findings, the Tribunal had regard to a number of inconsistencies in the applicant’s evidence at the hearing, and in particular the following:

   (a) The applicant’s failure to raise in his written statement his claim of having been infected with hepatitis, which the Tribunal put to the applicant for comment. In response, the applicant said that his statement had been prepared by his representative and that because his hepatitis had been cured in 2013, he did not think to mention it.

   (b) The applicant’s failure to previously mention his claim to have been arrested and detained in March 2012, which the Tribunal put to the applicant for comment. The applicant replied that the failure to mention the claim in his statement was the fault of his representative.

   (c) The inconsistency in the applicant’s claim at hearing to have lost his farm in June 2013, whereas his written statement indicated that he lost his farm on 1 September 2011.

   (d) The inconsistency in the applicant’s claim as to when he began practising Falun Gong – the applicant stated before the Tribunal that he commenced practice in 2011 but in his statement [and subsequent evidence to the Tribunal, claimed that he commenced practising in 2007. When the Tribunal put this to the applicant, he replied that “he just got it wrong”.

   7.The Tribunal also expressed its concern that the applicant appeared to lack basic knowledge of the tenets of Falun Gong. The Tribunal put to the applicant country information before it which was at odds with the applicant’s statements about Falun Gong. The Tribunal was not satisfied with the applicant’s response and did not accept the applicant’s claim to have been practising Falun Gong for the period that he claimed in light of his ignorance of Falun Gong’s basic tenets.

   8. The Tribunal ultimately found that the applicant was not a witness of truth and that the account of events he gave in support of his protection application was false. It therefore comprehensively rejected the totality of his claims. The Tribunal found that there was no credible evidence before it as to why the applicant had left China or why he feared to return. … (References omitted)

2. In addition, because of the Tribunal’s finding that the applicant was not a witness of truth, it did not accept the applicant’s further claim that he had practised Falun Gong while in Australia.

THE PROCEEDING IN THIS COURT

1. In the application commencing this proceeding the applicant alleged:

   1.RRT had discriminatio [sic] on me, failed to take my evidence and my real situation into consideration.

   2.RRT is unfair to me, they don’t believe me, and their decision is subjective.

2. In substance, the matters raised by the allegations contained in the initiating application make a single collection of allegations and it is convenient to deal with them by issue rather than by allegation number.  The issues which the application raises are:

   a)bias in the form of prejudgment reflected in the allegations of discrimination and unfairness;

   b)failure to consider claims and evidentiary material;

   c)failure to believe the applicant; and

   d)arbitrary decision making, reflected in the allegation of subjectivity.

3. It is worth noting at this point that none of those allegations were particularised and consequently they all lack meaningful substance. 

4. At the hearing of this application the applicant also submitted that the Tribunal had asked him the wrong questions and had challenged some of his contentions or evidence. 

Bias

1. It is unclear whether the allegation is of actual or apprehended bias.   Should it be the former, there is no evidence before the Court which would shed any light on this matter other than what is contained in the Tribunal’s decision record.  Having regard to the material in that document and the absence of proper particularisation and detailed submissions in relation to such an allegation, I am unable to find that the Tribunal brought to the review a mind that was not open to persuasion regardless of the material which might have been put before it. 

2. Were the allegation to be one of apprehended bias, the only potentially relevant evidence is what is contained in the Court Book, which was exhibit A.  Significantly, no transcript of the Tribunal hearing was introduced into evidence.  The simple fact that the Tribunal challenged the applicant on some of his contentions, as the Tribunal’s reasons record, is not sufficient on its own to indicate a predisposition which would lead a fair-minded lay observer informed of the relevant facts to apprehend that the Tribunal might not have been bringing to the task at hand a mind open to persuasion. 

3. To the extent that the applicant has alleged bias against the Tribunal, I find that the allegation is not made out. 

Failure to consider claims and evidentiary material

1. Without any particularisation of this allegation one cannot say what the applicant thinks the Tribunal failed to consider.  However, as the Minister’s summary of the material before the Tribunal would suggest, it is not apparent that the Tribunal did indeed fail to consider the applicant’s claims or the material he advanced in support of them.

Failure to believe the applicant

1. The Tribunal’s failure to believe the applicant was the consequence of the inconsistencies between important aspects of his accounts.  It was open to the Tribunal to be concerned by those inconsistencies and to disbelieve the applicant because of them.  That being so, no jurisdictional error is disclosed by the fact that the Tribunal did not believe the applicant. 

Arbitrary decision making

1. The assertion of subjectivity was, as I have implied, really an allegation of arbitrary decision making. I do not agree with this contention.  The Tribunal set out the material before it, analysed it and came to a logical conclusion based on that analysis. There was nothing arbitrary about the Tribunal’s decision.

Wrong questions

1. It was unclear what the applicant meant by his submission that the Tribunal asked him the wrong questions but it seems that he may have been saying that the factual propositions on which some of the Tribunal’s questions to him were based were flawed.  If so, the applicant did not identify the questions in issue apart from saying that the Tribunal’s questions about Falun Gong were different from what he practised. 

2. The Tribunal’s decision makes it clear that the Tribunal put factual propositions, not unreasonably based on independent country information, to the applicant and invited him to respond.  Significantly, the Tribunal’s decision records that at the hearing the applicant did not challenge the Tribunal’s factual propositions or do anything other than to try to explain his apparent ignorance of fundamental tenets of Falun Gong belief. 

3. Further, at the hearing of this application the applicant did not contend that the form or substance of the Tribunal’s questions led to any denial of procedural fairness. 

CONCLUSION

1. For these reasons, none of the contentions made in the initiating application or at the hearing of this matter demonstrates that the Tribunal’s decision is affected by jurisdictional error. 

2. Consequently, the application will be dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  23 August 2018