BQR15 v Minister for Immigration
[2016] FCCA 953
•26 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQR15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 953 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming to be a Falun Gong practitioner in China – applicant not believed – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 420, 424A |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v Chamnam You [2008] FCA 241 Minister for Immigration v Lat (2006) 151 FCR 214 Minister for Immigration v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration v SCAR (2003) 128 FCR 553 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZIAI (2009) 259 ALR 429 Prasad v Minister for Immigration (1985) 6 FCR 155 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration (2006) 228 CLR 153 SZJYA v Minister for Immigration (No 2) (2008) 102 ALD 598 SZJYM v Minister for Immigration & Anor [2008] FMCA 652 SZMDB v Minister for Immigration (2008) 105 ALD 499 SZOER v Minister for Immigration [2010] FCA 1100 SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 W148/00A v Minister for Immigration (2001) 185 ALR 703 |
| Applicant: | BQR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2250 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
INTERLOUCTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
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 2250 of 2015
| BQR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 17 July 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the application a protection visa. The applicant is from China and has made claims of persecution based upon his asserted 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 12 April 2016.
The applicant is a male citizen of China who applied for a protection (Class XA) visa on 7 November 2013[1]. The applicant set out his written claims in a statement accompanying his visa application[2].
[1] Court Book (CB) 1-30
[2] CB 27-29
The applicant claimed that he was introduced to Falun Gong at the end of 1998 and stopped practising after Falun Gong was banned in July 1999, but discussed it with his family at home. The applicant travelled to Australia on a work trip at the beginning of 2013 and claimed to have met with Falun Gong practitioners and obtained Falun Gong material whilst visiting Haymarket. He returned to China with a copy of the Epoch Times newspaper and his friends distributed copies of it in Hebei and Beijing. The applicant claimed that the Public Security Bureau subsequently conducted an investigation. They called him to their office and questioned him but he denied any involvement in the distribution of the materials. The applicant feared that he was under surveillance and was being followed. He claimed that his wife told him she regularly found undercover police near their house and the police also went to his workplace to check his records. The applicant made several unsuccessful attempts to escape before returning to Australia in August 2013 with the assistance of his wife. The applicant claimed that he also engaged in Falun Gong activities in Australia.
The delegate
The applicant attended an interview before the delegate, who refused the application for a protection visa on 16 July 2014[3]. The delegate was not satisfied that the applicant was a witness of truth or generally credible and found that he was not a genuine Falun Gong practitioner and did not accept that his claims for protection were genuine[4].
[3] CB 62
[4] CB 66-75
The Tribunal
On 18 August 2014, the applicant lodged an application with the Tribunal together with a copy of the delegate’s decision[5]. The applicant was invited to[6], and attended, a hearing before the Tribunal on 15 July 2015[7]. He provided copies of pages from his passport to the Tribunal[8] and photographs of himself holding Falun Gong banners[9].
[5] CB 81-87; see also, Item 9(a) of the Court Book index
[6] CB 90-91
[7] CB 92-93
[8] CB 95-103
[9] CB 104
In its decision, the Tribunal was satisfied that the applicant was not a Falun Gong practitioner[10]. It found[11] that his responses about his Falun Gong practice in China “were vague, confused, and inconsistent”, which raised “doubts about his claims”. It also found that his description of his Falun Gong practice as a “hobby”[12] did not support his claim to be a practitioner or someone who knew much about, or was committed to, Falun Gong[13].
[10] CB 110 at [11]
[11] at CB 111 at [14]
[12] CB 110-111 at [12]
[13] CB 111 at [14]
In its summary of what occurred at the hearing, the Tribunal recorded its exchanges with the applicant about identified inconsistencies in his written and oral evidence provided to the Tribunal and to the delegate about whether he practised Falun Gong after it was banned[14] and whether he returned to China with a copy of the Epoch Times or the Dayuangyuan newspaper[15]. The Tribunal found that the applicant’s inconsistent evidence about the significant newspaper claim raised “serious doubts about the claim and the applicant’s credibility”[16]. The Tribunal also had doubts about the applicant’s credibility because he raised a new claim for the first time at the Tribunal hearing that he was required to report to the Public Security Bureau in July 2013 concerning the materials he allegedly brought back to China. The Tribunal found his explanation for not raising this claim earlier was “not persuasive”[17].
[14] CB 111 at [13]
[15] CB 111 at [15]
[16] CB 111 at [16]
[17] CB 112 at [17]
The Tribunal also referred to the applicant’s limited knowledge of Falun Gong as demonstrated at the Departmental interview and recorded in the delegate’s decision record. It found that his limited knowledge of Falun Gong raised “serious doubts about his claims of ever being a practitioner or involved in the practice at any level”[18]. As the applicant gave the Tribunal a copy of the delegate’s decision with his application for review[19], the exception in s.424A(3)(b) of the Migration Act 1958 (Cth) (Migration Act) operated to exclude this information from the ambit of s.424A[20].
[18] CB 112 at [18]
[19] CB 87
[20] Minister for Immigration v Chamnam You [2008] FCA 241 at [16]
In addition, the Tribunal had regard to country information about China’s exit and entry procedures and relied on the applicant’s ability to depart China without difficulty on his own passport to find that he was of no adverse interest to the Chinese authorities. It also relied on his almost five month delay in applying for protection after arriving in Australia to support this conclusion[21].
[21] CB 112 at [19]-[22]
The Tribunal considered four photographs provided by the applicant at the Tribunal hearing in support of his claims to have engaged in Falun Gong activities in Australia. However, after finding that such activities were engaged in for the sole purpose of strengthening his protection claims, the Tribunal disregarded that conduct pursuant to s.91R(3) of the Migration Act[22]. The Tribunal[23] also put the applicant on notice at the hearing of the operation of s.91R(3)[24].
[22] CB 113 at [24]-[25]
[23] at CB 113 at [24]
[24] SZJYA v Minister for Immigration (No 2) (2008) 102 ALD 598
For these reasons, the Tribunal did not accept any of the applicant’s key factual claims and found there was no real chance that he would suffer serious harm in China[25]. Having rejected his factual claims to fear harm, the Tribunal assessed whether there was a real risk that the applicant would suffer significant harm given his Falun Gong activities in Australia. It is impermissible for the Tribunal to disregard an applicant’s conduct in Australia when assessing their claims for complementary protection[26].The Tribunal was not satisfied that the Chinese authorities would know that the applicant had engaged in Falun Gong related activities in Australia or had acquired a profile as a result of those activities that would be of any interest to the Chinese authorities. Accordingly, it also found he did not satisfy the complementary protection criterion[27].
[25] CB 113 at [23], [26]-[27]
[26] SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 at [51]-[76]
[27] CB 114 at [28]-[29]
The present proceedings
These proceedings began with a show cause application filed on 13 August 2015. The applicant continues to rely upon that application:
1. The Tribunal is not satisfied that there is a real chance that I am suffer harm or for my other Convention reason. The Tribunal made error in this finding.
2. The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under Refugees Convention. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.
The application is supported by a short affidavit which I received as a submission. In that affidavit the applicants asserts that he was denied procedural fairness and that the Tribunal made errors in dealing with his claims for protection.
The applicant has not taken up the opportunity afforded by procedural orders made by a registrar on 24 September 2015 to file and serve an amended application or additional evidence.
The only evidence I have before me is the court book filed on 2 November 2015.
I invited oral submissions from the applicant today. He had brought with him a written statement which he read with the assistance of the interpreter. He raised five issues.
The first is the proposition that the Tribunal failed to follow its obligations under s.420 of the Migration Act and that thereby the review opportunity afforded to him was not a fair one. In the absence of particulars the proposition is not one that would establish an arguable case of jurisdictional error. There is a further problem in that it is not clear from the authorities that a breach of s.420 would constitute a jurisdictional error without more. In the present case there is nothing before me to support the contention that there was a want of procedural fairness in the Tribunal’s proceeding, whether that be based upon the Migration Act or more generally.
Secondly, the applicant asserts that the Tribunal did not carefully consider the danger that he would face in China as a Falun Gong practitioner. The short answer to that proposition is that the Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that he was a genuine practitioner in Australia. The Tribunal disregarded his conduct in Australia pursuant to s.91R(3) of the Migration Act but, nevertheless, and properly, considered that conduct in relation to the issue of complementary protection. The Tribunal found that the applicant would not face a real risk of significant harm. No arguable case of error is demonstrated by the applicant’s assertion.
Thirdly, the applicant contends that he is a victim of torture which has caused him to suffer from a psychiatric condition which affected his capacity to participate in the Tribunal’s review and to give evidence and answer questions. There is nothing in the court book to support that proposition. It does not appear to have been an issue that was raised before the Tribunal. It is true that at [12] of its reasons[28], the Tribunal records the applicant as responding to a question by saying that he was nervous. That is something which could be anticipated to confront any review applicant before the Tribunal and there is nothing in the Tribunal’s decision record to suggest that the applicant was, in any way, inhibited in his capacity to give evidence and to respond to the Tribunal’s questions at the hearing conducted by the Tribunal. In the absence of any medical evidence this argument goes nowhere.
[28] CB 111
Fourthly, the applicant contends that the Tribunal failed to consider country information that it is possible to use bribery or influence to depart China, notwithstanding that one’s name may be on a black list. Again, this is not something which was raised before the Tribunal. The applicant simply confirmed that he was able to enter and leave China using his own name and passport without any problems.
Finally, the applicant contends that the Tribunal did not consider the circumstances of Falun Gong practitioners in China more generally. That is correct, but in circumstances where the Tribunal did not accept that the applicant is a Falun Gong practitioner, such consideration was unnecessary.
I reject each of the contentions raised by the applicant in oral argument as not demonstrating an arguable case of jurisdictional error. The applicant’s written grounds of review are dealt with in the Minister’s submissions, with which I agree.
The application contains two grounds of review.
Ground 1
The first ground states that the Tribunal made an error in finding that it was not satisfied there was a real chance that the applicant would suffer harm for any Convention reason. This is not a proper ground of review and, at its highest, is simply an expression of the applicant’s dissatisfaction with the Tribunal’s factual conclusions.
Ground 2
The second ground asserts that the Tribunal failed to carry out its statutory duty because it did not refer to any independent information when considering the applicant’s application. This ground is misconceived. The Tribunal was not required to make the applicant’s case for him[29]. Nor was it obliged to act as cross-examiner or prompt and stimulate an elaboration which the applicant chose not to embark on[30]. If the Tribunal cannot be satisfied on the basis of the material presented that the applicant’s claims are genuine, then it had no duty to make further inquiries or obtain information beyond what was provided to it by the applicant.[31] This is not a case where the Tribunal was under a duty to inquire in the sense that there was a failure to make an inquiry about a critical fact the existence of which was easily ascertained[32]. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction[33].
[29] Abebe v Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155 at 176
[30] SZMDB v Minister for Immigration (2008) 105 ALD 499 at [36]-[37]; SZBEL v Minister for Immigration (2006) 228 CLR 153 at [47]; Minister for Immigration v QAAH of 2004 (2006) 231 CLR 1 at [40]; Minister for Immigration v SCAR (2003) 128 FCR 553 at [36]
[31] Minister for Immigration v SZIAI (2009) 259 ALR 429; Minister for Immigration v SGLB (2004) 207 ALR 12 at [17], [19], [43] and [124]
[32] Minister for Immigration v SZIAI at [25]; SZOER v Minister for Immigration [2010] FCA 1100 at [32], [39]–[54]
[33] Minister for Immigration v Lat (2006) 151 FCR 214 at [76]
The applicant’s affidavit filed in support of the application contains a bland assertion that he was denied procedural fairness but this allegation cannot succeed in the absence of any particulars to make it meaningful.
The Tribunal’s conclusion that the applicant was not credible is a finding of fact par excellence[34]. The Tribunal’s conclusion on credibility was based on the cumulative effect of the matters to which it referred[35]. It was also open to the Tribunal to take into account the applicant’s delay in applying for protection as a relevant factor when assessing his fear of persecution and credibility provided that the delay is not treated as concluding the question in relation to those matters[36].
[34] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[35] W148/00A v Minister for Immigration (2001) 185 ALR 703 at [69]
[36] SZJYM v Minister for Immigration & Anor [2008] FMCA 652 at [61]
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs.
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.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 April 2016
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