BKL17 v Minister for Immigration

[2020] FCCA 211

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKL17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 211

Catchwords:
MIGRATION – Application for judicial review of a decision of Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate not to grant the applicant a protection visa – whether the Tribunal’s findings were reasonably open to it – whether the Tribunal considered applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant: BKL17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1010 of 2017

Judgment of: Judge Manousaridis

Hearing date: 4 February 2020

Date of Last Submission: 4 February 2020

Delivered at: Sydney

Delivered on: 4 February 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Mr X Goffinet of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

3. The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1010 of 2017

BKL17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a citizen of the People’s Republic of China. He applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA) visa (Protection visa).

Claims for protection

1. I begin by setting out the claims for protection the applicant made in the form by which he applied for the protection visa. The claims are stated in the statement that forms part of that application. The applicant there claimed he was born in 1984. He started to practice Falun Gong in September 1997 when he was in junior school. The applicant’s teacher, who I will refer to simply as “Mr L”, talked about Falun Gong, and the applicant and others practised Falun Gong in Falun Gong classes for half an hour each time. In 1999 the government banned Falun Gong, and the applicant's parents did not allow him to practice Falun Gong. In September 1999 the applicant heard Mr L had been arrested and sentenced to three years detention in a labour camp. 

2. In July 2006 the applicant graduated from a business vocational college.  In September 2006 the applicant started to work in the sales department of a company. He travelled mainly to schools to promote the company's products.

3. In August 2007 the applicant hurt his waist when he built an umbrella. When he returned home the applicant experienced pain in his waist. His parents took him to hospital, and the doctor gave the applicant some medicines. The pain got more serious, but the applicant suddenly remembered that he had hurt his waist in junior high school, and that he had then recovered by practising Falun Gong. The applicant then commenced practising Falun Gong quietly in his room two to three times a week. 

4. In October 2008, after the applicant went back to the company, his colleague, Mr W, also came back. Mr W found out the applicant practised Falun Gong, and he asked the applicant whether he did practice Falun Gong. The applicant denied he did. 

5. In June 2009 the police came to the applicant and took him to the police station. They asked the applicant if he was a Falun Gong practitioner. The applicant initially denied he was, but after the police showed the applicant a book called “Zhuan Falun”, and that Mr W had reported the applicant, he admitted he was a Falun Gong practitioner.  The police wanted the applicant to list the names of other Falun Gong practitioners. The applicant said he had practised alone, but the police did not believe him. They tortured the applicant for one day. He was then sent to a particular place of detention and was tortured there. He was “arrested for eight months”.

6. In March 2010 the applicant found Mr W and asked why he reported the applicant.  Mr W repaid the applicant his lost wages, and promised him to get the applicant back to work.  The applicant forgave Mr W. 

7. The applicant was arrested again in September 2011 and detained for one month, and arrested in September 2012 and, again, detained for one month.  A friend of the applicant told him the government would continue to harass him so long as the applicant remained in China, and the applicant's friend suggested the applicant leave China. 

8. In February 2013, during the Chinese New Year period, the applicant gave 50,000 CNY to an officer in charge of the passport office in the police bureau. And in August 2013 the applicant's friend suggested to the applicant that he bribe the head officer of a police bureau with 50,000 CNY to have police check to leave China. The applicant finally arrived in Australia holding a student visa.

9. The applicant gave further details of his claims, and expanded on the claims he had already given, when he appeared before the Tribunal. The applicant gave details of the torture he suffered at the hands of the police. He claimed that when he was again arrested in September 2012 his parents, who had no idea about what was going on, asked the police why they were arresting the applicant. The police hit the applicant’s parents, and demanded that they pay RMB5,000 or they would otherwise not release the applicant.

10. After his detention in September 2011 he returned to the same employment.  He claimed that he was released from his September 2012 detention after his parents had paid about RMB5,000-6,000. The applicant said he had no trouble with immigration because he paid the bribes.  He said he raised the bribes by borrowing money from friends and family members.

11. The applicant also said that after arriving in Australia the applicant practised Falun Gong in his own home, but none of the other people who lived in the house in which he lived knew about his practice. The applicant said he occasionally goes to the house of a Ms Y, and they practice Falun Gong together. The applicant was aware Ms Y was also applying for protection because she introduced the applicant to the migration agent who assisted the applicant prepare his application for a protection visa. The applicant said that he and Ms Y practice Falun Gong together about every two to three weeks, and that sometimes he and Ms Y practice with other people who come from the province from which the applicant has come. Finally, the applicant said that if he returned to China he would continue to practice Falun Gong.

Tribunal’s reasons

1. The Tribunal found the applicant was not a witness of truth, and that he had fabricated his claims for the purpose of obtaining a permanent visa to remain in Australia.  The Tribunal relied on the following matters:

   a)The Tribunal found the applicant to be evasive in the evidence he gave in response to the Tribunal putting to the applicant that his claims for protection had significant areas of similarity with the claims for protection that Ms Y made, and who had introduced the applicant to the migration agent the applicant used.

   b)The Tribunal found the applicant's account of his detention and torture in China to be unconvincing. The applicant did not, in his written application, provide any detail about his mistreatment but, in contrast, he described at great length the health issue that he claimed led to his practising Falun Gong.

   c)The applicant’s evidence about some of the injuries he claimed to have sustained under torture was not consistent with the medical evidence the applicant provided to the Tribunal. 

   d)The Tribunal was not satisfied that a person who is willing to endure eight months of severe mistreatment and who had refused to sign an undertaking to stop practising Falun Gong would then be unable to provide any supporting evidence of his practice of Falun Gong in Australia. The Tribunal noted that the applicant claimed two friends of his knew about the practice, one of whom had her claims accepted by the Tribunal (differently constituted), but neither friend provided evidence.

   e)Seven months had passed between the time the applicant arrived in Australia and the time he applied for a protection visa, and four months after the applicant’s student visa had expired.

2. The Tribunal relied on additional matters for not accepting the applicant's claims. These included the following:

   a)Country information suggested that people who have been identified as Falun Gong practitioners had restricted employment opportunities, and there were widespread reports that employers were discouraged from hiring Falun Gong practitioners. The applicant claimed, however, that he returned to his place of employment after he had been detained, but he did not claim that his employer or parents had been targeted by the authorities.

   b)Master Li exhorts Falun Gong practitioners to practice with other Falun Gong practitioners in groups, and discourages practitioners from hiding the practice of Falun Dafa. The Tribunal accepted that practising in public is not possible in China, but practising Falun Gong in Australia in public is certainly possible.

   c)The Tribunal found the applicant's claimed current practice to be inconsistent with his stated commitment of never giving up his practice.

   d)The applicant’s claims for protection were very similar to those made by Ms Y.

   e)The applicant’s written statement was extremely similar in its particulars to the written statement made by another person from the same province as the applicant.

3. On the basis of these findings, the Tribunal was not satisfied the applicant is a practitioner, adherent, or believer in Falun Gong in China, or that he was arrested, detained or tortured because of his practice of Falun Gong. The Tribunal was also not satisfied the applicant is a practitioner of or believer in Falun Gong in Australia.

Grounds of application and course of hearing

1. I then turn to the application the applicant, who is not legally represented, filed with the Court.  It contains three grounds, and these are as follows:

   1.The Administrative Appeals Tribunal has bias against the applicant in making its decision.

   2.The Tribunal applied wrong test in making the decision.

   3.The Tribunal failed to carry out its statutory duty.

2. Before I consider these grounds I should set out briefly the course of the hearing before me. As I have already noted, the applicant is not legally represented, although, of course, he has appeared before me with the assistance of an interpreter. I first explained to the applicant the purpose of today's hearing and the procedure that was to be followed. 

3. In the course of his address the applicant made four points, and I take each of these to constitute a separate ground.  The first point, which I will refer to as the “first oral ground”, was a submission to the effect that the reason he delayed for seven months in making his application for protection was that he held a student visa, but he was cautious, because he wanted to know if he could practice Falun Gong in Australia, and it was only after he was satisfied that he could do so that he applied for protection.

4. The second point the applicant made, which I will refer to as the “second oral ground”, is directed, as I understood the applicant, to what he described as the Tribunal not finding logical the applicant’s explanation that his friend, Ms Y, had successfully applied for protection. That is a reference, as I understand it, to paragraph 61 of the Tribunal's reasons where the Tribunal records its having put to the applicant that it appeared “somewhat implausible” that he would not know that his friend, Ms Y, had successfully applied for protection. The response the Tribunal’s reasons records the applicant gave was that he never discussed Ms Ys situation as it was private.  The submission the applicant made to me was that the Tribunal was unreasonable in not accepting that explanation.

5. The third point the applicant made, which I will refer to as the “third oral ground”, is that the frequency with which a person practices Falun Gong is not the important thing.  The important thing is what is in your heart. 

6. The fourth point the applicant made, which I will refer as the “fourth oral ground”, is that he did not attend Falun Gong activities frequently because he did not wish to donate money; and he did not wish to donate money because he had doubts – that is my characterisation of the applicant's submission – that if he were to donate money it would fall into the right hands.

7. In the remainder of these reasons I will consider each of the oral grounds I have just set out, and then I will consider each of the grounds set out in the application, having regard to submissions the applicant made.

First oral ground

1. As to the first oral ground, the Tribunal, in its reasons, records that it asked the applicant why he waited for seven months before lodging his application for protection. That is recorded in paragraph 22, as is the applicant's response.  The Tribunal records the applicant stating that he had no idea whether there was religious freedom in Australia and that he found out he could lodge a claim for protection from a woman, Ms Y, who came from the same place in China and introduced the applicant to the migration agent that the applicant used.  It is not clear that the explanation the Tribunal records the applicant gave is entirely the same explanation the applicant gave to me, but I will proceed on the basis that the two explanations are at least consistent. 

2. In any event, the Tribunal considered the significance of the applicant's delaying for seven months in making an application for protection, and the explanation the applicant gave, at paragraph 73 of its reasons. The Tribunal said that it considered that if the applicant genuinely feared returning to China, and was only able to depart China by paying a significant amount of money, as he claimed, the applicant would have sought protection in Australia sooner than he did.  The Tribunal said it did not accept the explanation the applicant gave that he was unaware there is religious freedom in Australia.  The Tribunal there referred to the fact that there is information about protection visas and religious freedom in Australia that would readily have been available among international students.

3. The Tribunal made no jurisdictional error by the manner in which it considered this part of the applicant's claims.  It identified the matters on which it relied for not accepting the applicant's explanation, and it was open to it to reject that explanation given those matters.  It was also open to the Tribunal to rely as a matter going against accepting the applicant's claims that he had delayed by seven months making an application for a protection visa.

Second oral ground

1. I then turn to the second oral ground which, as I have already noted, relates to the Tribunal’s not accepting the applicant's explanation in support of his evidence that he was not aware that Ms Y had successfully obtained protection. This part of the applicant's submissions goes no further than expressing disagreement.  It was open to the Tribunal to find the explanation implausible given the other evidence the applicant had given about his relationship with Ms Y, namely that they were friends, that they practised Falun Gong together, and that they used the same migration agent, being the migration agent that was referred to the applicant by Ms Y. The second oral ground, therefore, discloses no jurisdictional error by the Tribunal.

Third oral ground

1. As to the third oral ground, it is not apparent from the Tribunal's reasons that this was put to the Tribunal.  In any event, the ground is no more than an appeal to the merits of the applicant's claims and, in particular, it is an appeal to provide an explanation for what the Tribunal found to be inactivity by the applicant so far as the practice of Falun Gong is concerned.  Even if this submission had been put to the Tribunal, however, I am not satisfied that it could have made any difference to the outcome.  As I have already noted, one of the matters on which the Tribunal relied was the teaching of Master Li, which was to the effect that Falun Gong practitioners should practice in groups and are to be discouraged from hiding the practice of Falun Dafa.  Therefore the third oral ground discloses no jurisdictional error.

Fourth oral ground

1. As to the fourth oral ground, again it is not apparent from the Tribunal's reasons that the applicant did offer to the Tribunal, as an explanation for not attending public events, his unwillingness to make donations because of his scepticism that any donation would end up in the right hands.  I am not prepared to find that the applicant did make any such submission or gave any evidence to that effect. 

2. If, however, he did, I cannot be satisfied that it could have realistically have affected the outcome of the decision, and that is so because, among other things, the Tribunal referred to teaching of Master Li, to which I have already referred, of which I should perhaps say something more, and here I am referring to what the Tribunal said in paragraph 86 of its reasons.  The Tribunal there refers to Master Li exhorting Falun Gong practitioners to practice with other practitioners and groups, and discourages hiding the practice.  Master Li indicates that social contact is essential for the practice of Falun Dafa, noting that it should be practised among everyday people. For these reasons I am not satisfied that the fourth oral ground discloses any jurisdictional error.

3. I then turn to the grounds stated in the application.  Each of these grounds was interpreted to the applicant.

Ground 1 of application

1. In relation to ground 1 the applicant said the Tribunal did not believe the evidence he provided, and said that the information he did provide was not accurate. The applicant said that he had provided evidence of injuries to his body.  He submitted the Tribunal was biased because it did not accept that evidence. 

2. That the Tribunal did not believe the applicant's evidence and, indeed, found the applicant not to be a witness of truth, cannot by itself give rise to any arguable claim of actual or apprehended bias (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, at [38]). In any event, there is nothing in the material before me that could give rise to any arguable case of actual or apprehended bias. It is apparent from the Tribunal’s reasons that the Tribunal Member identified the claims the applicant made, put matters to the applicant that were of concern to the Tribunal, and the Tribunal, for reasons that were open to it on the material before it, and for the reasons it gave, decided not to accept the applicant's claims.

Ground 2 of application

1. In response to ground 2 the applicant initially said he did not have any comment, however, after Mr Goffinet for the Minister completed his submissions, the applicant did make some submissions in relation to that ground. His submissions related to the Tribunal’s finding that the medical evidence the applicant provided was not consistent with the injuries the applicant claimed he had suffered under torture in China.  The submission in terms was that in doing so the Tribunal applied the “wrong test” so the submission may better be characterised as a submission that it was not open to the Tribunal to make such finding. 

1. The Tribunal did, in its reasons, refer to medical evidence the applicant had provided.  This is to be found in paragraphs 54 to 57 of the Tribunal’s reasons. The Tribunal, at paragraph 55 of its reasons, accepted that the applicant had an injury to his right ankle some time ago, has hearing loss, and has lost a front tooth; and the Tribunal found that this evidence was consistent with the applicant's evidence relating to the injuries the applicant claims he suffered as a result of physical mistreatment during the period for which he was detained. The Tribunal, however, noted early in its reasons that the applicant had claimed that as a result of his ill treatment his shoulders had been dislocated.  In paragraph 56 of its reasons the Tribunal found that the medical evidence before it indicates that the applicant's shoulders had not been dislocated and that the bursitis and tendinosis could have been a result of any heavy labour involving his shoulder, such as he described his work in China prior to his arrest and detention, and his current work in the construction industry.

2. The applicant referred me to the existence of other medical evidence, or the possible existence of other medical evidence located in China, but it is clear, and the applicant did not submit otherwise, that such evidence was not before the Tribunal.

3. The Tribunal made its ultimate finding in paragraph 72 of its reasons in relation to the applicant's medical evidence by repeating that some of the injuries the applicant suffered as a result of his mistreatment is not consistent with the medical evidence he provided to the Tribunal. 

4. There is nothing, therefore, that suggests the Tribunal made any jurisdictional error in finding that the medical evidence on which the applicant relied was not consistent with at least some of the injuries the applicant claimed he sustained when detained in China.  The findings it made in that regard were open to it for the reasons it gave based on the material that was before it.

5. If I then turn to ground 2 as currently formed, it is a bald assertion.  It does not identify the test the Tribunal was required to apply; it does not identify the test the Tribunal, in fact, applied; and it does not identify in relation to what the Tribunal is said to have applied the wrong test.  It discloses no jurisdictional error.

Ground 3 of application

1. Finally there is ground 3. When the ground was interpreted, the applicant said he did not have any comment.  As formed, the ground goes no further than assertion.  It does not identify the statutory duty it is claimed the Tribunal failed to carry out; nor does it state the facts and matters on the basis of which it could be said that the Tribunal failed to carry out any of its statutory duties. 

2. It is not, of course, for the Court to make out a case of jurisdictional error but, nevertheless, when one looks at the Tribunal's reasons, as I have, and when one considers submissions that have been made in relation to it, as I also have, one gets an impression of the decision the Tribunal made; and it is apparent from the Tribunal's reasons, as I have already said, that it identified the applicant's claims, it put matters of concern to the applicant for his comment, and the Tribunal considered the claims, evidence, and comments the applicant made; and the Tribunal made its decision for reasons that were open to it on the material that was before it.  I therefore cannot be satisfied the Tribunal failed in carrying out its statutory duty.

Conclusion

1. The end result of these reasons, therefore, is that I am not satisfied the applicant succeeds on the grounds set out in the application or in the grounds or contentions that he has advanced before me.  Stated shortly, I am not satisfied the Tribunal made any jurisdictional error in its decision in affirming the delegate's decision not to grant the applicant a protection visa.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 February 2020