BZACQ v Minister for Immigration

[2014] FCCA 406

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZACQ & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 406

Catchwords:
MIGRATION – Protection visa application – credibility of applicants.

Legislation:

Migration Act 1958 (Cth), ss.65, 91R (3), 424A, 36

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
Minister for Immigration and Multicultural Affairs v Yusuf, following Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Citizenship and Anor v SZIGV and Anor (2009) 238 CLR 342
SZBYR v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609

First Applicant: BZACQ

Second Applicant: BZACR

Third Applicant: BZACS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 726 of 2012

Judgment of: Judge Coates

Hearing date: 26 September 2013

Date of Last Submission: 26 September 2013

Delivered at: Brisbane

Delivered on: 11 March 2014

REPRESENTATION

Solicitors for the First Applicant: Self-Represented

Solicitors for the Second Applicant: Self-Represented

Solicitors for the Third Applicant: Self-Represented

Solicitor for the First and Second: Respondent: Ms G. O’Connor

ORDERS

1. That the title of the proceeding be amended by deleting the description of the first respondent as the Minister for Immigration and Citizenship and inserting the description as the Minister for Immigration and Border Protection.

2. That the Application filed 13 August 2012 and the Amended Application filed 11 February 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 726 of 2012

BZACQ

First Applicant

BZACR

Second Applicant

BZACS

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. As this application deals with protection visa issues and the applicants are foreign nationals, with little command of English and unrepresented, I have kept in mind the requirement for a fair hearing as stated in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146.

2. Three applicants, Chinese nationals, by way of amended application filed 11 February 2013, seek to overturn a decision of the Refugee Review Tribunal (the Tribunal) made on 17 July 2012.

3. The Tribunal affirmed the decision made by a delegate of the Minister for Immigration to refuse them protection (Class XA) visas under s.65 of the Migration Act1958 (Cth) (the Act).

4. The principal applicant is aged 47 and arrived in Australia on a long stay business visa, commonly known as a 457 visa, on 13 May 2009.

5. The visa was valid until 13 November 2011.

6. The other applicants are her husband and son, being named as family members.

7. For simplification I will refer to the principal applicant only, as her case is the same in all respects as the other applicants.

8. She applied for a protection visa on 1 November 2011, just two weeks before the expiry of her then current visa.

9. Her salient claim for protection is that she is a practitioner of Falun Gong and came to Australia because she could not practise such in China, although there is no evidence of any prior statement as to her devotion to Falun Gong.

10. The Tribunal received her statement to the effect that she was arrested by Chinese police in July 1999, after a dinner, and although she denied being a practitioner of Falun Gong, the police did not believe her. She said she was forced to sign a letter of guarantee of repentance and was let go next day, after her husband paid a fine.

11. She gave no evidence to the Tribunal of further difficulties with authorities.

12. The Tribunal decision refers to seeking detailed information from the applicant about Falun Gong, and states that she was unable to explain in depth the objectives of Master Li Hongzhi, a leading exponent of the practice or the philosophy of Falun Dafa, another name for the practice, and that she sought to refer to notes when answering these specific questions.

13. The Tribunal was entitled to test the applicant’s knowledge of her claims of being a practitioner.

14. The Tribunal carefully enquired into the name of the association as used by the applicant.

15. Her reference was to being a member of the Brisbane Falun Gong Buddhism Association, which was in conflict with oral evidence from Mr William Luo, president of the Falun Dafa Association of Queensland.

16. Mr Luo said internally the association was known as the Buddhist association because it was registered as the Buddhist Association, however the name was the Falun Dafa Association of Queensland.

17. The Tribunal put to Mr Luo that from its research the association was never known as the Buddhist Association and enquired whether he was merely trying to assist the applicant. He said the first national organisation was called the FO Xue Association and at this time there was only the Buddhist Association.

18. In testing Mr Luo’s evidence, the Tribunal determined from answers that he could only state that the applicant was a member of the association from September 2009, because that is what she told him. He had no independent knowledge of the applicant’s claim.

19. It is that type of evidence which satisfied the Tribunal that the applicant had no deep knowledge of or connection to the association in Brisbane, which reinforced doubt as to the basis of the protection claim. He had no independent knowledge of the applicant’s claim.

20. As it had to do, the Tribunal put the applicant on notice that the evidence may lead to findings that she was not a sincere practitioner and that she would then not face a risk of persecution if she returned home to China.

21. She was given opportunity to respond pursuant to s.424A of the Act, to a number of issues which are stated at paragraph 64 of the decision.

22. Particularly mentioned is the vagueness of her information about when she began to practice Falun Gong and the diligence she claimed in following Falun Gong, as well as other issues.

23. Her response went to mistakes in interpretation, which the Tribunal then took into account, but found that mistakes in dates and in other non-essential information was not relevant to its view of the applicant’s credibility.

24. The decision is very detailed, referring not only to the considerations for people claiming to be in need of protection and explaining that to the applicants, but then being very particular in testing the claims of the applicant and giving notice about issues of importance, such as vagueness in knowledge of Falun Gong and use of a notebook to assist with her answers, whether there was a real fear of persecution given there had only been one incident in 1999, her delay in travel after being granted a 457 visa and the lateness of her application for protection.

25. As to the delay in making the application for a protection visa, being a ground upon which the genuiness of the claim may be doubted, the Tribunal formed the view that leaving such an important claim until two weeks before the expiry of the 457 visa created doubt as to a real fear of persecution.

26. The Tribunal found intriguing the decision by the applicant to delay travel to Australia after the grant of the 457 visa. The Tribunal concluded if she believed she was at risk of persecution, she would not have delayed travel for 18 months after the grant of the visa, the delay being inconsistent with the fear expressed.

27. The Tribunal found she was not a credible person.

28. To be successful, the applicant will have to show that the decision was tainted by jurisdictional error.

29. The court’s role in such a review was stated in SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2013] FCAFC 146, by Alsop J:

    “The Migration Act and the Judiciary Act provide for judicial review of the Tribunal’s decision. That judicial review is the application that was brought to the Federal Magistrates Court. It is important to understand that the application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error.”

30. I was also referred to the concept of jurisdictional error as stated by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf, following Craig v South Australia (1995) 184 CLR 163:

    “…[Where a Tribunal] falls into error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error that will invalidate any order or decision of the Tribunal which reflects it.”  

31. The submissions of the first respondent referred me to s.36 of the Act, which refers to protection visas and the need for the Minister to be satisfied that Australia owes an obligation to an applicant under the Refugees Convention.

32. Against this background, the grounds of the application are:

    a. The Tribunal has wrongly applied s.91R (3) of the Migration Act 1958 (Cth) and has breached natural justice;

    b.    The tribunal erred by failing to give enough weight to the evidence of the witness and the evidence produced by Amnesty International; and

    c.    The Tribunal erred by depriving the Applicants of the procedural fairness due to the translation errors in the departmental interview.

33. An interpreter was arranged by the court to interpret from the Mandarin   language.

34. The first respondent orally objected to parts of the material of the applicants which went to the merits of the case and to alleged errors in the interpretation at the Tribunal hearing.

35. Following SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs, as this is a matter for review, it is not one in which an examination of the merits of the case may be conducted and on that ground the objection will be upheld.

36. As to disputes over the interpretation, which is ground three of the application, that is a matter for expert evidence, the applicants being unable to make a mere claim that the Tribunal acted on misunderstood or misconstrued interpretations of what was said.

37. The first respondent submitted that any mistakes as alleged were not critical to the Tribunal’s decision.

38. The applicants provided a translation of parts of the transcript.

39. Apart from not providing all of the transcript, the issue is that the applicants have to establish that errors made in interpretation led to jurisdictional error by the Tribunal.

40. As I understood the applicant’s submission, mistakes made affected her credibility in the eyes of the decision-maker.

41. Credibility is an important issue.

42. I was referred in oral submissions to mistakes made as to when the applicant practised Falun Gong, and what believers of the practice hold, and even to a wrong birthdate.

43. The applicants said as the Tribunal accepted the translation mistakes, it concluded that the applicants were not practitioners of Falun Gong.

44. The argument I believe is that the interpreter was so incompetent that nothing translated could be relied on.

45. Getting a date wrong as to a birthday, or from when the applicant practised Falun Gong, or what the believers of the religion hold, does not amount to a denial of procedural fairness so as to become jurisdictional error.

46. Ms O’Connor, for the first respondent, submitted that any errors made by the interpreter were overcome by the invitation pursuant to s.424A of the Act to address any matters adverse to the applicants.

47. That occurred.

48. The applicants raised issues of the standard of interpretation, which the Tribunal accepted.

49. The lack of credibility findings, clearly identifiable in the decision, were not based on innocuous mistakes of interpretation.

50. Among other things, the Tribunal made adverse findings on the applicant’s credibility because when being questioned about the beliefs or teachings of Falun Gong, she referred to her notebook for answers.  

51. As well, as I have referred to, the Tribunal also examined and decided that she gave no evidence of being involved in any dispute with authorities over Falun Gong since 1999, on obtaining a 457 visa she did not travel to Australia for 18 months and she did not make this important protection application until two weeks before the expiry of her 457 visa.

52. The Tribunal referred to what it must consider in relation to a protection visa application and stated the evidence it relied on to come to a conclusion the applicant was not a credible person, thus upholding the delegate’s decision.

53. The applicant has not produced probative evidence that the interpretation itself caused the finding against credibility, and in fact, such a claim is against the plainly worded findings stated in the decision, which were not based on minor differences as to the meaning of stated words or sentences.

54. In effect, it was the actions of the applicant herself, including reference to her notebook and failure to leave China soon after being granted a 457 visa, which were the persuasive reasons for the findings against credibility. These were findings open to the Tribunal.

55. That the applicant said she was nervous and required the notebook cannot be verified now, but the essential findings of the Tribunal make reference to these issues which led to the finding that she was not a sincere practitioner and therefore she could not show a well-founded fear of persecution. The finding had nothing to do with alleged errors of interpretation.

56. For those reasons, the applicant cannot succeed on ground three.

57. As to ground one, that the Tribunal wrongly applied s.91R(3) of the Act, I must state there was not a great deal of positive submission from the applicant on this section.

58. The applicant’s case is that she did not engage in conduct, by joining Falun Gong in Australia, to boost her case.

59. It is her case that such cannot be considered because of the section and that the Tribunal disregarded natural justice in considering her conduct in Australia.

60. The section refers to disregarding conduct in Australia by a person claiming to have a well-founded fear of persecution, however, the High Court in Minister for Immigration and Citizenship and Anor v SZIGV and Anor (2009) 238 CLR 342, stated at paragraph 9:

    “The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection vias in seeking to demonstrate a well-founded fear of persecution within the mean of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in with Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art1A(2). Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91 R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the test.”

61. It was submitted by the first respondent that the Tribunal was then entitled to consider the applicant’s conduct while in Australia in deciding whether there was evidence of being a sincere Falun Gong practitioner.

62. This ground necessarily fails for lack of identification of jurisdictional error.

63. As to ground two, that the Tribunal erred by failing to give weight to the evidence of a witness produced by Amnesty International, again there was little by way of oral submission on this ground.

64. However, the first respondent pointed to the decisions which preclude the court from interfering with the weight given by the Tribunal to particular evidence it considers.

65. The Tribunal considered evidence from Mr Luo and a Ms Bei and stated that less weight was given to what they said.

66. That was because there was no independent or corroborative evidence to support their statements about the applicant’s commitment to Falun Gong.

67. This is important, particularly in relation to Mr Luo who said his knowledge of the applicant joining Falun Gong in Brisbane in September 2009 was imparted to him by the applicant. It was simply not his own observed knowledge.

68. The applicant claims that she was denied opportunity to comment on all of the Tribunal’s considerations.

69. The Tribunal was under no compulsion, pursuant to s.424A as claimed, that subjective assessments of evidence provided by them and others should have been put to the applicants.

70. Apart from the Tribunal putting the applicants on notice about relevant issues, I accept the position as stated by the High Court in SZBYR v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609 at paragraph 18, that such:

    “…does not encompass the tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of details or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…”

71. Crucial areas of doubt were put to the applicant pursuant to s.424A. No more was required.

72. The applicants cannot succeed on this ground.

73. Inevitably, the applicants have not produced evidence to show that they are genuine protection visa applicants, and so their application must be dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Coates

Associate: 

Date:     11 March 2014