CBR17 v Minister for Immigration

[2020] FCCA 683

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBR17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 683

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered all of the applicants’ claims – whether the Tribunal acted fairly – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 417, 424A, 438, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

First Applicant: CBR17

Second Applicant: CBS17

Third Applicant: CBU17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1486 of 2017

Judgment of: Judge Manousaridis

Hearing date: 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Sydney

Delivered on: 27 March 2020

REPRESENTATION

First applicant appeared in person, on behalf of the second applicant, and as litigation guardian of the third applicant, assisted by an interpreter

Solicitors for the First Respondent: Mr L Leerdam of Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1486 of 2017

CBR17

First Applicant

CBS17

Second Applicant

CBU17

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The three applicants, who are citizens of the People’s Republic of China, apply for remedies in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minster) not to grant the applicants a Protection (Class XA) visa (Protection visa).

2. To be in a position to appreciate the grounds on which the Tribunal affirmed the delegate’s decision, it will be necessary to set out the migration history of the applicants, the history of the applicants’ various unsuccessful applications for a protection visa, and the proceedings before the differently constituted Tribunal that has considered the applicants’ claims.

Background

1. The first and second applicants arrived in Australia on 25 July 2008. They lodged an application for a Protection visa on 4 August 2008 (first PV application).[1] The first applicant made claims for protection, but the second applicant applied as a member of the first applicant’s family unit. A delegate of the Minister refused that application on 3 October 2008. The Refugee Review Tribunal (first Tribunal) affirmed the delegate’s decision on 30 December 2008.[2]

   [1] CB1-29

   [2] CB59

2. On 7 December 2011 the third applicant, who is the daughter of the first and second applicants, applied for a Protection visa (child PV application). A delegate of the Minister refused that application on 16 May 2012; and, on 30 October 2012, the RRT (second Tribunal) affirmed the delegate’s decision.[3]

   [3] CB392, [17]; CB203

3. On 27 November 2013 the applicants lodged a further application for a Protection visa (second PV application).[4] The first applicant was entitled to do so because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[5] The second applicant made claims for protection for the first time.[6] The third applicant applied as a member of the first and second applicants’ family unit.[7] A delegate of the Minister rejected the applicants’ claims for protection on 23 June 2016.[8]

   [4] CB67

   [5] SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

   [6] In their form of application, the second applicant applied as a member of the first applicant’s family unit: CB93. The first and second applicants, however, signed a joint statement setting out their claims: CB100-101

   [7] The third applicant was added as an applicant on 16 May 2014: CB121

   [8] CB136

4. The applicants applied for review of the delegate’s decision and they appeared before a differently constituted Tribunal (third Tribunal) on 5 November 2015 to give evidence and provide arguments.[9] By letter dated 5 February 2016 the third Tribunal identified information it considered would be the reason or part of the reason for affirming the delegate’s decision (first 424A letter).[10] The information the first 424A letter identified consisted of what the third Tribunal considered to be inconsistencies between the claims the first and second applicants made in the first and second PV applications, and in the child PV application. The first and second applicants responded with a statement dated 28 February 2016.[11]

   [9] CB171, CB176-177

   [10] CB195

   [11] CB224-231

5. The third Tribunal affirmed the delegate’s decision on 5 April 2016.[12] This Court, however, quashed the third Tribunal’s decision, and remitted the applicants’ application for review to the Tribunal because the third Tribunal assessed the second applicant’s claims only against the complementary protection criterion provided for by s.36(2)(aa) of the Act, and not also against the refugee criterion provided for by s.36(2)(a) of the Act.

   [12] CB233

6. By letter dated 6 March 2017 (second 424A letter), the Tribunal provided to the applicants the same information the third Tribunal provided to the applicants as information the Tribunal considered might be the reason or part of the reason for affirming the decision of the delegate.[13] The first and second applicants responded by statement dated 12 April 2017.[14]

   [13] CB269

   [14] CB374-375

The first and second applicants’ claims for protection

1. From this background, it will be apparent that the first and second applicants stated their claims on different occasions, including in their responses to the first and second 424A letters. It would be convenient, however, if I set out the claims they made in the statement that formed part of the second PV application. The claims are as follows:

   a)The first and second applicants came to Australia in July 2008 because they were Falun Gong practitioners who were persecuted, intimidated, and discriminated against, and whose land was taken by the local government.

   b)The first and second applicants are followers of Falun Dafa, and since their arrival in Australia they have kept on studying and practising Dafa. They have taken part in the “Telling Truth” activities.

   c)By their practice of Falun Gong, the first and second applicants implicated members of their family in China. Some of those members have been summoned and questioned by police, and others have been stopped contacting the first and second applicants. The local government in their hometown has been taking discriminatory measures against their family members. A countryman of the first applicant’s friends was prosecuted by the government just because he kept in contact with the first and second applicants.

   d)The first and second applicants maintained contact with their family in China through “our friend”. The first and second applicants influenced their friend to practice Falun Gong. In a month in 2013 the first and second applicants emailed their friend through the internet videos of celebrations of Falun Dafa Day held worldwide in different countries which the first and second applicants were able to view in Australia. The police discovered the videos, and “our friend was detained for that”.

   e)The police placed great pressure on the first and second applicants’ friend, and coerced the friend to inform the first and second applicants of the police’s demand that the first and second applicants return to China to make a confession, otherwise the police would not spare the members of the first and second applicants’ families. The parents of the first and second applicants declared they disowned the first and second applicants, and went into hiding. The brothers and sisters of the first and second applicants also promised not to continue their ties with the first and second applicants; but the police continued to coerce the brothers and sisters to call the first and second applicants every week and repeated what the police asked them to say to the first and second applicants.

   f)Since 2013 the situation in the first and second applicants’ hometown became worse and worse. The police cut of “my net connection and have been tapping my telephone”; “I’ve become afraid to call to my family”; and the first and second applicants “will be taking a risk if we choose to go back to China, because we’re unwilling to renounce our own faith”.

Tribunal’s reasons

1. The Tribunal did not accept the claims the first and second applicants made about their being Falun Gong practitioners in China before they came to Australia. The Tribunal relied on the following matters:[15]

   [15] CB401, [63], [64]

   a)The Tribunal found there were inconsistencies about when the first and second applicants commenced their Falun Gong practice in China.

   i)In the statement that formed part of the first PV application it was claimed the first and second applicants both started to practice Falun Gong in 2007; and in July 2007 village officials warned them to cease their practice, but they continued their practice until December 2007.[16]

   [16] CB397, [41]

   ii)In the child PV application it was claimed the first and second applicants commenced their Falun Gong practice in July 2007, and they were discovered by village officials in July 2007.[17]

   [17] CB397, [41]

   iii)At the hearing before the third Tribunal the first applicant claimed the second applicant had already been a Falun Gong practitioner in 2006 and he and the second applicant moved in together and he learnt the practice from the second applicant. The second applicant, however, said that she commenced practising Falun Gong in 2007 having learnt the practice from videos and materials.[18]

   [18] CB397, [41]

   b)The Tribunal found implausible the first applicant’s evidence that he did not know how the second applicant came to be involved in the practice of Falun Gong, and that he and the second applicant have not discussed that issue.[19]

   c)The first and second applicants gave inconsistent evidence about their being detained in China because of their Falun Gong activities.

   i)At the hearing before the delegate in relation to the child PV application, the second applicant claimed she had been detained for three days and one month after she and the first applicant commenced Falun Gong practice, that their land was confiscated in the later part of 2007, and they were arrested at the end of 2007.[20]

   ii)At the hearing before the second Tribunal (which related to the child PV application), the second applicant said she had been arrested and beaten in September 2007, and only mentioned the July 2007 arrest when prompted. At that hearing, on the other hand, the first applicant said he was arrested in 2008, but the second applicant had never been arrested.[21]

   iii)At the hearing before the third Tribunal the first applicant claimed he had been arrested in the middle of August 2007 and January 2008, whereas the second applicant said she had been arrested in July and September 2007; and that she had been captured and released a few times.[22]

   iv)The first and the second applicants did not in the first PV application claim they had been detained.[23]

   d)The first and second applicants did not mention at the hearing before the third Tribunal that their land had been confiscated, even though, the Tribunal found, the third Tribunal exhaustively explored with the first applicant the harm he claimed he faced in China due to his Falun Gong activities.[24]

   e)The Tribunal found inconsistencies in relation to the first and second applicants’ claims of sending Falun Gong materials to China from Australia. In their written claims the first and second applicants claimed they sent a video over the Internet to China in 2013. At the hearing before the third Tribunal the applicants were adamant they sent the material in 2011. In the statement that formed part of the child PV application, and before the delegate, the second applicant stated the material was sent in 2011, and at the hearing before the second Tribunal the second applicant said she sent materials to China in 2009.[25]

   [19] CB398, [44]-[48]

   [20] CB398, [48]

   [21] CB398, [48]

   [22] CB398-399, [49]

   [23] CB399, [50]

   [24] CB399, [53]

   [25] CB399-400, [57]

2. The Tribunal accepted that, in around 2012, the first and second applicants educated themselves about the basics of Falun Gong; and it was prepared to accept there was some public involvement by the first and second applicants from around 2012. In particular, the Tribunal accepted the first and second applicants participated in a range of public Falun Gong activities from 2015 to 2017, which included the handing out of pamphlets, attending a study group, on one occasion sitting outside the Chinese Consulate in Sydney, and attending a Falun Gong related cultural event.[26] The Tribunal, however, did not accept the first and second applicants are adherents of Falun Gong, or that they would wish to practice Falun Gong on their return to China. The Tribunal instead found that the first and second applicants educated themselves about Falun Gong in 2012, and participated in Falun Gong activities, for the purpose of supporting the child PV application, and the second PV application. The Tribunal found that “the evidence demonstrates an opportunistic intent on the part of the” first and second applicants.[27] The Tribunal did not “consider that the applicants have been truthful in relation to the history of their Falun Gong activities in while in Australia”.[28]

   [26] CB405, [92]

   [27] CB405, [93], [94]

   [28] CBB404, [83]

3. The Tribunal relied on the following inconsistencies:

   a)Before the Tribunal the first and second applicants claimed they had been practising Falun Gong at home since their arrival in Australia. The second applicant claimed before the delegate in the child PV application that she and the first applicant had been practising Falun Gong in Australia for about a year, but had not been to any meetings or groups in Australia.[29] Further, before the Tribunal, the first and second applicants claimed that they had started attending public events in Sydney occasionally when they moved to Newcastle in around 2009.[30]

   b)Before the third Tribunal the first applicant said he and the second applicant had started attending Falun Gong practice groups at the end of 2011. The second applicant, however, said they started practising in July 2012 and, when this was put to the first applicant, he said the second applicant was correct in stating their practice started in July 2012.[31]

   c)Before the third Tribunal the first applicant said the first and second applicants were not able to find any Falun Gong practice groups in Sydney when they moved there in early 2012, but before the Tribunal the first and second applicants said they were attending public events in Sydney approximately monthly from 2009, and that they maintained attendance at public events immediately on moving to Sydney in 2012.[32]

   [29] CB404, [83]

   [30] CB404, [84]

   [31] CB404, [85]

   [32] CB404, [86]

4. In addition to relying on these inconsistencies for not accepting the first and second applicants are not adherents of Falun Gong, the Tribunal said it had “taken into account credibility concerns identified in relation to claimed difficulties in China as a result of Falun Gong activity”.[33]

   [33] CB405, [91]

5. The Tribunal considered three other claims. First, the first and second applicants claimed there are Chinese spies in Australia which the Tribunal considered to be a claim that there are spies who may have identified the first and second applicants participating in Falun Gong activities in Australia, and that this will expose them to risk of harm if they return to China. The Tribunal accepted there is evidence of Chinese people in Australia acting as informants to the Chinese government, but, on the basis of country information, it was not satisfied this would expose the first and second applicants to any real risk of harm if they returned to China.[34] The Tribunal found that the concern of Chinese authorities is directed to those who publicly practice Falun Gong in China or who spread Falun Gong in China; and the Tribunal found the first and second applicants do not fall within “these categories”.[35]

   [34] CB406, [98]-[100]

   [35] CB407, [102]

6. Second, the second applicant claimed a tourist berated her for her Falun Gong beliefs, took a photograph of the second applicant, and stated the tourist would report the second applicant to the Chinese authorities. The second applicant claimed the tourist asked the second applicant for her name, and the second applicant gave the tourist her name.[36] The Tribunal did not accept this claim. The Tribunal referred to its having put to the second applicant that it found it hard to accept the applicant would disclose her identity to this person, in response to which the second applicant said she was proud of her Falun Gong involvement. Later, however, the applicant’s representative indicated the second applicant only gave her Anglicised Christian name. In those circumstances, the Tribunal found it was not satisfied the second applicant was identified by a Chinese tourist which would lead to a real chance of the second applicant facing serious or significant harm.[37] In any event, the Tribunal found that the concern of Chinese authorities is directed to those who publicly practice Falun Gong in China or who spread Falun Gong in China; and the Tribunal found the first and second applicants do not fall within “these categories”.[38]

   [36] CB406-407, [101]

   [37] CB407, [102]

   [38] CB407, [102]

7. The third claim relates to the application of the family planning laws. The Tribunal found that the third applicant would be entitled to be registered and, for that reason, would not be regarded as a “black child”. The Tribunal also found that the first and second applicants’ second child, who was not a party to the application for review before the Tribunal, would be entitled to be registered without the payment of a social compensation fee.[39] The Tribunal found in any event that the first and applicant’s being subjected to the payment of a fine would not amount to significant harm.[40]

   [39] CB409, [107]

   [40] CB409, [111]

8. There is one final issue the Tribunal considered; and that relates to a certificate and notification that had been issued purportedly under s.438 of the Act. The Tribunal found that the certificates and notification is not valid, but the documents to which they relate are of no relevance to the applicants’ claims.[41]

   [41] CB410, [114]

9. On the basis of these findings the Tribunal was not satisfied that there is a well-founded fear that the second applicant would be persecuted for a Refugees Convention reason or for any of the reasons on which the second applicant relied for fearing harm;[42] and the Tribunal was not satisfied there are any substantial grounds for believing that, as a necessary and foreseeable consequence of the first and second applicants being removed from Australia to China there is a real risk they will suffer significant harm for any of the reasons they claimed, or for any other reason.[43]

   [42] CB410, [115]

   [43] CB410, [116]

Grounds of application and submissions

1. The application contains detailed text, both under the heading “Orders Sought by Applicant”, and under the heading “The Grounds of the Application are”. The grounds make the following complaints:

1. First, the Tribunal’s decision is not fair and comprehensive, and the decision is inconsiderable and reckless (Identified Ground 1).[44]

   [44] “Orders sought by Applicant”, [1]

2. Second, the first and second applicants “couldn’t go with tribunal’s five concerns about our claim are convincing and persuasive”, and that “[w]e have a strong feeling that tribunal try to find out as much as more the disadvantages in our previous claims in various stages”.[45] I take this to make two claims. The first is that the Tribunal manifested bias or gave rise to apprehended bias by the manner in which it relied on the inconsistencies it identified for finding the applicants’ claims lacked credibility (Identified Ground 2). The second is that it was not reasonably open to the Tribunal to rely on the inconsistencies it identified as a reason for not accepting the first and second applicants’ claims and for otherwise finding the first and second applicants were not credible witnesses (Identified Ground 3). The first and second applicants rely on the following matters:[46]

   a)It is unfair for people like the first and second applicants who have gone through quite a number of interviews and hearings (for the Tribunal to rely on the inconsistences as matters reflecting adversely on the credit of the first and second applicants) (Identified Particular 3(a)).

   b)The first and second applicants are less experienced in answering questions in court, and are unable to satisfy every single question with a good and exclusive answer each time (Identified Particular 3(b)).

   c)The Tribunal imposed too strict a standard of consistency on the first and second applicants (Identified Particular 3(c)).[47]

   d)The Tribunal failed to give a “good comprehension for people of limit[ed] education like” the first and second applicants, and especially their limited ability to understand the questions asked of them, and their ability to describe events. I take this to be a claim that the first and second applicants have limited education, and a limited ability to understand questions and describe events, and the Tribunal failed to take these matters into account when assessing their credibility (Identified Particular 3(d)).

   e)The Tribunal ignored “our numerous explanation [sic]”, about their being confused with certain verbal expressions, such as “detention or arrest” (Identified Particular 3(e)).

   f)The first and second applicants are “less skilled in verbal expression”, and have barriers in the English language, and this may have triggered “inevitable doubt, problem or misunderstanding in the communication between us and . . . [the] tribunal” (Identified Particular 3(f)).

   [45] “Orders sought by Applicant”, [2]

   [46] “Orders sought by Applicant”, [2]

   [47] This, at least, is how I understand the statement: “I don’t think tribunal member can also meet the requirement as they requested for us”.

3. Third, the Tribunal’s credibility concerns about the first and second applicants’ “Falun Gong issue” was not fair, reasonable or comprehensive (Identified Ground 4).[48] This part of the ground is directed to the Tribunal’s findings at paragraphs 41-46 of its reasons for decision, and to the Tribunal’s consideration of the inconsistencies it found in relation to the first and second applicants’ claims about the arrests of the first and second applicants in China. The first and second applicants claim the Tribunal ignored “many explicit and specific explanations”, and that the first and second applicants may have different recollections of the time of their casual practice of Falun Gong. The first and second applicants also claim they used the language (in Mandarin) of “being caught or picked up” which could literally be translated as “detained or arrested”, and that this misinterpretation “may form one of the main reasons for creating inconsistencies in our claim and lead [sic] us in  a vulnerable situation”.[49]

   [48] “Orders sought by Applicant”, [3]

   [49] “Orders sought by Applicant”, [3]

4. Fourth, the Tribunal did not “give a good understanding” of the first and second applicants’ explanation for the inconsistencies the Tribunal identified in relation to the sending of Falun Gong material to China (Identified Ground 5). I take this to be a claim that the Tribunal did not understand or properly consider the explanations the first and second applicants gave on these inconsistencies.

5. Fifth, the Tribunal showed “poor consideration to our explanation in regards to our involvement of Falun Gong public practice due to our remote residential location” in Newcastle (Identified Ground 6).[50]

   [50] “Orders sought by Applicant”, [5]

6. Sixth, the Tribunal failed to take into account the risk to which the applicants and their families would be exposed if they practised Falun Gong openly (Identified ground 7).[51]

   [51] “Orders sought by Applicant”, [5]

7. Seventh, the Tribunal did not consider “significantly and thoroughly” the risk to the second applicant because the second applicant gave out her name to the Chinese tourist (Identified Ground 8).[52]

   [52] “Orders sought by Applicant”, [6]

8. Eighth, the Tribunal ignored “indisputable fact” that Falun Gong relatives and family members are affected in China, and the Tribunal’s findings in paragraphs 106-114 of its reasons about “our children” (being the paragraphs in which the Tribunal considered the first and second applicants’ claims in relation to the family planning laws) “is inconsiderable and stressful” (Identified Ground 9).[53]

   [53] “Orders sought by Applicant”, [7]

9. Ninth, the Tribunal’s reasons for not accepting the explanations of the first and second applicants are unclear. This part of the grounds rhetorically asks why the Tribunal did not raise its concerns with the first and second applicants by asking them to specifically explain, and why the Tribunal did not ask the first and second applicants about their faith. The first and second applicants claim the Tribunal wished to follow the decisions made by the third Tribunal, rather than consider new comments from the first and second applicants (Identified Ground 10).[54]

   [54] “Orders sought by Applicant”, [8]

10. Tenth, the Tribunal did not give the first and second applicants’ claims “significant weight, understanding and consideration”, and it failed to given them a “fair go”, displaying an “attitude and decision” that was not helpful, and which caused stress and upset (Identified Ground 11).[55]

    [55] “Orders sought by Applicant”, [9]

11. Eleventh, the Tribunal failed to give the first and second applicants an ample chance to demonstrate their understanding and knowledge of their faith and “showcase the evidence”; and the Tribunal gave the first and second applicants “no access to any further explanation or comment on the outstanding issues off [sic] the hearing” (Identified Ground 12).[56]

    [56] “Orders sought by Applicant”, [10]

12. In that section of the application headed “The Grounds of the Application” the first and second applicants assert matters that can only be relevant to their claims for protection (Identified Ground 13):

    a)The first and second applicants are committed Falun Gong practitioners who fear returning to China.

    b)After entering Australia the first and second applicants maintained their Falun Gong practice.

    c)The first and second applicants practised Falun Gong in their home after they arrived in Australia, and engaged in Falun Gong group study and public campaigns.

    d)The first and second applicants have great concerns about their two Australian born children; the first and second applicants, and their children, have no home to return to besides Australia.

    e)The applicants seek protection by the Australian government.

13. The first and second applicants, who are not legally represented, were present at the hearing before me, but the first applicant made submissions on behalf of all applicants. He made the following submissions:

    a)The first applicant was interrupted by the Tribunal member while giving evidence (Identified Ground 14).

    b)The first and second applicants were not given sufficient time to give their evidence because the Tribunal asked the first and second applicants to wrap up the hearing (Identified Ground 15).

    c)There were inconsistencies in the evidence the first and second applicants gave because of the time that had passed between the day on which they gave evidence and the events to which the evidence related, and between the occasions on which the first and second applicants gave evidence (Identified Ground 16).

The grounds considered

Identified Ground 1

1. This ground is a bare assertion that the Tribunal’s decision is not fair and comprehensive, and that its decision is inconsiderable and reckless. The ground does not identify the matters on which the applicants rely for claiming the Tribunal’s decision is not fair, or for claiming it is reckless. I do not accept the Tribunal’s reasons are not comprehensive. The Tribunal identified the applicants’ claims, considers each of the claims, and gave reasons for not accepting those claims. For the same reasons, I do not accept the Tribunal’s reasons are inconsiderable and reckless.

2. Identified Ground 1, therefore, fails.

Identified Ground 2

1. This ground is directed to the Tribunal’s relying on the inconsistencies it identified for not accepting the first and second applicants’ claims.

2. That the Tribunal relied on inconsistencies does not by itself manifest any bias, actual or apprehended. In appropriate circumstances a person’s making claims that are inconsistent is a rational ground for a decision maker to doubt or not to accept the claims. That the Tribunal relied on the inconsistencies it identified, therefore, does not by itself manifest actual or apprehended bias.

3. Further, each of the inconsistencies the Tribunal identified were inconsistencies on which a rational decision-maker could reasonably have relied for doubting the veracity or accuracy of the first and second applicants’ evidence. It is true that, if considered alone, a reasonable decision-maker in the position of the Tribunal might have viewed some of the inconsistencies the Tribunal identified as not particularly significant. But the Tribunal identified and relied on a number of inconsistencies, and it considered the effect of those inconsistencies as a whole. If a reasonable decision-maker in the position of the Tribunal viewed all of the inconstancies together, as the Tribunal did, it would have been reasonably open to that decision-maker to rely on the inconsistencies as a reason, or as part of the reasons, for not accepting the first and second applicants’ claims they had practised Falun Gong in China, that they had been detained in China because of their practice, that they practised Falun Gong in Australia, or that, to the extent they did so, they did so as genuine adherents of Falun Gong.

4. Identified Ground 2, therefore, fails.

Identified Ground 3

1. Identified Ground 3 identifies six matters on which the first and second applicants rely for claiming it was not reasonably open to the Tribunal to rely on the inconsistencies on which it did rely for not accepting the credibility of their claims. The first (Identified Particular 3(a)) is that it was unfair for the Tribunal to rely on inconsistent evidence where the first and second applicants participated in a large number of interviews, and have expressed their claims on a number of different occasions spanning over a number of years.

2. I do not accept it is inherently unfair for a decision-maker in the position of the Tribunal to have considered relevant whether the claims the first and second applicants stated on different occasions are consistent. It is true that it would not be open to a reasonable decision-maker to rely on what could only be regarded as minor or inconsequential inconsistencies, or on inconsistencies that could reasonably be accounted for only by the passage of time. This part of the applicants’ grounds, however, does not claim, and, in any event, I am not satisfied, that the inconsistencies on which the Tribunal relied were of this nature.

3. Further, in the second 424A letter the Tribunal gave the first and second applicants notice of the inconsistencies the Tribunal identified and considered to be significant, and the first and second applicants made submissions about those inconsistencies. The Tribunal set out the explanations the first and second applicants gave;[57] and it considered those explanations.[58] The Tribunal, however, for reasons it gave, did not accept the explanations. In not accepting the first and second applicants’ explanations the Tribunal acknowledged the potential for confusion about the precise timing and the date of events that had occurred many years ago,[59] but the Tribunal found that the development of a spiritual belief which the applicants claimed had become central to their lives would, if true, be “relatively clear in their minds”.[60] Further, the Tribunal found that some of the inconsistencies are “glaring”, and others, such as the first and second applicants’ failure in the hearing before the third Tribunal to mention the claim they earlier made that land had been confiscated, to be “telling as to the credibility of that claim”.[61]

   [57] CB397, [42]; CB399, [51]; CB400, [60]

   [58] CB398, [43]; CB399, [52]; CB400, [61]

   [59] CB398, [43]; CB399, [52]; CB400, [61]

   [60] CB398, [43]

   [61] CB400, [61]

4. The second of the six matters on which the first and second applicants rely for claiming it was not reasonably open to the Tribunal to rely on the inconsistencies it did rely for not accepting the credibility of their claims is that they are less experienced in answering questions in court, and they are unable to satisfy every single question with a good and exclusive answer each time (Identified Particular 3(b)). That is an assertion of fact without any evidentiary support, and which, in any event, does not appear to have been raised before the Tribunal. Further, the assertion of fact does not identify the evidence the first or second applicants gave that is said to have been affected by this asserted fact, or the manner in which the asserted fact affected the ability of the first and second applicants to give evidence or advance their case. Additionally, the first and second applicants had the assistance of a representative; after the hearing their representative requested, and the Tribunal provided, an audio recording of the hearing before the Tribunal;[62] and, after the first and second applicants’ representative was provided with the audio recording of the hearing, the first and second applicants prepared and submitted to the Tribunal a further statement.[63] Thus, to the extent the first and second applicants suffered from any asserted disability, they had an opportunity to address that disability in the further statement they provided to the Tribunal.

   [62] CB370

   [63] CB371-375

5. The third of the six matters on which the first and second applicants rely for claiming it was not reasonably open to the Tribunal to rely on the inconsistencies is that the Tribunal imposed too strict a standard of consistency on the first and second applicants (Identified Particular 3(c)). I do not accept that claim. For the reasons I have already given, it was reasonably open to the Tribunal to rely on the inconsistencies it identified for not accepting the credibility of the first and second applicants’ claims.

6. The fourth of the six matters on which the first and second applicants rely for claiming it was not reasonably open to the Tribunal to rely on the inconsistencies on which it did rely for not accepting the credibility of their claims is that first and second applicants have limited education, and a limited ability to understand questions and describe events (Identified Particular 3(d)). These are assertions of fact made without any evidentiary support, and which do not appear to have been put to the Tribunal. The grounds do not identify the evidence the first and second applicants gave to the Tribunal that is said to have been affected by this asserted disability, or the manner in which the asserted disability affected the ability of the first and second applicants to give evidence or advance their case. Further, as I have already noted, the first and second applicants had the assistance of a representative; and they provided an additional statement to the Tribunal after the hearing. Thus, to the extent the first and second applicants suffered from any asserted disability, they had the opportunity to address it in a further statement to the Tribunal.

7. The fifth of the six matters on which the first and second applicants rely for claiming it was not reasonably open to the Tribunal to rely on the inconsistencies is the Tribunal ignored “our numerous explanation [sic]”, about the first and second applicants being confused with certain verbal expressions, such as “detention or arrest” (Identified Particular 3(e)). The ground does not identify the “numerous explanation [sic]” to which it refers. It is fair to assume, however, that the first and second applicants intend to refer to the information they gave in their response to the second 424A letter under the heading “About the arrest”.[64] The applicants there stated “there was an error in translation for choosing the accurate word”. The Tribunal referred to this explanation, but it not accept it because it was not prepared to accept there were any translation errors in the absence of evidence to that effect.[65] I therefore do not accept this part of the first and second applicants’ claims that the Tribunal did not consider the explanation they gave about the inconsistent claims relating to the arrest and detention of the first and second applicants in China.

   [64] CB228

   [65] CB399, [51]

8. The final matter on which the first and second applicants rely for claiming it was not reasonably open to the Tribunal to rely on the inconsistencies is that they are “less skilled in verbal expression”, and have barriers in the English language, and this may have triggered “inevitable doubt, problem or misunderstanding in the communication between us and . . . [the] tribunal” (Identified Particular 3(g)). These, again, are asserted facts without any evidentiary support that do not appear to have been put to the Tribunal; and the first and second applicants do not identify what evidence they gave or failed to give was affected by these asserted deficiencies. As I have already noted, a representative assisted the first and second applicants, and they took advantage of the opportunity to provide to the Tribunal a further statement after the hearing.

9. For these reasons, identified Ground 3 fails.

Identified Ground 4

1. This ground is directed to those paragraphs of the Tribunal’s reasons where the Tribunal identifies inconsistencies on which it relied for not accepting the first and second applicants’ claims in relation to their practice of Falun Gong in China. It repeats claims that the Tribunal did not consider explanations the first and second applicants gave for their inconsistencies. For reasons I have already given, the Tribunal identified, considered, but rejected the explanations the first and second applicants gave for their inconsistencies.

2. Identified Ground 4, therefore, fails.

Identified ground 5

1. This ground is directed to the Tribunal’s consideration of the explanation the first and second applicants gave for the inconsistencies in relation to the claims concerning the sending of Falun Gong material to China.

2. The Tribunal’s consideration of the explanations consisted of its setting out a passage from the third Tribunal’s reasons which identified the inconsistent claims the first and second applicants had made in relation to the sending of Falun Gong materials to China, and the explanations the first and second applicants gave for those inconsistencies. The explanation the third Tribunal recorded the first and second applicants gave is that they had thought of sending the Falun Gong material to China in 2013 but had soon realised that material would not get through the restrictions placed on the Internet; and they thought the translator may not have understood them, or the translator may have taken the wrong message when the translation was made.[66] The Tribunal noted that in their response to that part of the second 424A letter that related to the inconsistences about the Falun Going materials the first and second applicants claimed they sent to China, the first and second applicants gave the same response they gave to that part of the first 424A letter that referred to the same inconsistencies. The Tribunal found that the first and second applicants’ explanations do not adequately explain the inconsistencies; and that is because there was a clear written claim the first and second applicants sent Falun Gong materials to China in 2013.[67]

   [66] CB400, [57]

   [67] CB400, [51]

1. I do not accept the Tribunal did not understand the explanations the first and second applicants gave, or that they did not properly consider the explanation. The Tribunal’s reasons for not accepting the explanation were reasonably open to it. The Tribunal’s rejection was not unfair or hypercritical, as the first and second applicants claim; nor was the Tribunal’s rejection based on its giving no more than an impressionistic consideration of the explanations the first and second applicants gave.

2. Identified Ground 5 also fails.

Identified Ground 6

1. In this ground the applicants claim the Tribunal gave “poor consideration to our explanation in regards to our involvement of Falun Gong public practice due to our remote residential location” in Newcastle. The explanation to which this part of the applicants’ claims refers is that given in the first and second applicants’ response to the second 424A letter under the heading “About Our Open Participation in the Falungong [sic] Activities”.[68] The first and second applicants there referred to difficulties they had travelling to Sydney.

   [68] CB374-375

2. I do not accept this ground. The Tribunal referred to the first and second applicants’ explanation, and also to the evidence the first and second applicants gave to the Tribunal that they started to attend public Falun Gong events in Sydney soon after they moved to Newcastle in 2009, and that they did so about once a month.[69] The Tribunal, however, did not accept the evidence of the first and second applicants because it was inconsistent with the evidence the second applicant gave to the delegate in relation to the child PV application.[70]

   [69] CB403, [75]

   [70] CB403, [76]

3. Identified Ground 6, therefore, also fails.

Identified Ground 7

1. This ground claims the Tribunal failed to take into account the risk to which the applicants and their families would be exposed if the applicants practised Falun Gong openly. This ground appears to be directed to the claim the first and second applicants made that the Falun Gong activities the Tribunal accepted they engaged in would expose them to a risk of harm. The ground claims the Tribunal failed to consider that claim. That is incorrect. The Tribunal recognised the first and second applicants made such a claim. It considered but rejected the claim.[71]

   [71] CB406-407, [98] – [103]

2. Identified Ground 7, therefore, also fails.

Identified Ground 8

1. This ground claims Tribunal did not consider “significantly and thoroughly” the risk to the second applicant because the second applicant gave out her name to the Chinese tourist. The first and second applicants claim the Tribunal’s assessment of this claim was “uncompassionate, irresponsible and biased”. I do not accept this claim. I have set out in paragraph 15 of these reasons the Tribunal’s consideration of this part of the second applicant’s claims. I am satisfied the Tribunal properly considered the claim and made findings in relation to that claim that were reasonably open to it.

2. Identified Ground 8, therefore, also fails.

Identified Ground 9

1. This part of the first and second applicants’ case asserts the Tribunal ignored “indisputable fact” that Falun Gong relatives and family members are affected in China, and that the Tribunal’s findings in paragraphs 106-114 of its reasons about “our children” (being the paragraphs in which the Tribunal considered the first and second applicants’ claims in relation to the family planning laws) “is inconsiderable and stressful”.[72]

   [72] “Orders sought by Applicant”, [7]

2. This ground assumes as a fact that which the first and second applicants claimed, namely, that the first and second applicants are adherents of Falun Gong and that, even if not adherents, their public Falun Gong activities in Australia would expose them to risk if they returned to China. The Tribunal, however, considered but did not accept that claim. Further, there was not before the Tribunal a claim of risk of harm to members of the first and second applicant’s family independently of the risk of harm to which the first and second applicants claimed they faced; but even if there were such a claim, the Tribunal would have had no jurisdiction to consider it because it would have been a claim in relation to persons who could not have been entitled to be granted a Protection visa.

3. Identified Ground 9 also fails.

Identified Ground 10

1. This part of the first and second applicants’ case claims the grounds on which the Tribunal did not accept their claims are not clear. I do not agree. As my summary of the Tribunal’s reasons should indicate, the Tribunal’s reasons for not accepting the first and second applicants’ claims are clear.

2. This part of the first and second applicants’ case suggests the Tribunal did not alert the first and second applicants of its concerns with their case. I do not accept that suggestion. The Tribunal sent to the first and second applicants the second 424A letter, and the Tribunal raised a number of its concerns at the hearing, a matter confirmed not only by what the Tribunal recorded in its reasons, but also by the first and second applicants providing an additional statement to the Tribunal after the hearing.

3. The ground criticises the Tribunal for not exploring with the applicants the extent of their faith in Falun Gong. That by itself discloses no jurisdictional error. It was for the first and second applicants to put before the Tribunal evidence about their faith. More relevantly, however, the Tribunal accepted the first and second applicants have knowledge of Falun Gong; but, for reasons reasonably open to it, the Tribunal found that the first and second applicants acquired this knowledge and they participated in Falun Gong activities in Australia “to enhance their claims for Protection visas, rather than demonstrating a genuine belief”.[73]

   [73] CB405, [95]

4. The ground also claims that the Tribunal was determined to follow the decision of the third Tribunal rather than consider the new comments the first and second applicants made. This is an allegation of actual bias; and there is no substance to it. The Tribunal issued the second 424A letter, it questioned the first and second applicants at the hearing before it, it identified the claims the first and second applicants made, and it considered each of the claims, referring to the evidence and submissions the first and second applicants gave and made.

5. Identified Ground 10 also fails.

Identified Ground 11

1. This part of the first and second applicants’ case in effect asserts the Tribunal did not properly consider the first and second applicants’ claims, and failed to give the applicants a “fair go”. I do not accept these claims. As I have already noted, the Tribunal issued the second 424A letter, it questioned the first and second applicants at the hearing before it, the Tribunal identified their claims the first and second applicants made, and it considered each of the claims, referring to the evidence and submissions the first and second applicants gave and made.

2. Identified Ground 11 fails.

Identified Ground 12

1. This part of the first and second applicants’ case claims the Tribunal failed to give the first and second applicants an ample chance to demonstrate their understanding and knowledge of their faith and “showcase the evidence”; and the Tribunal gave the first and second applicants “no access to any further explanation or comment on the outstanding issues off [sic] the hearing”. I do not accept these claims. It was for the applicants to present the evidence they wished to present, and they were given an opportunity to do so. Further, by issuing the second 424A letter, and by asking questions of the first and second applicants, as revealed in the Tribunal’s reasons, the Tribunal alerted the first and second applicants of the issues that were of concern to the Tribunal, and, by doing so, gave the first and second applicants a fair opportunity to address those issues.

2. Identified ground 12 also fails.

Identified Ground 13

1. Identified Ground 13 is a set of claims that are relevant only to the claims for protection the first and second applicants made before the Tribunal. This Court does not have jurisdiction to determine whether the first and second applicants are entitled to the grant of a Protection visa. Identified Ground 13, therefore, discloses no jurisdictional error.

Identified Ground 14

1. At the hearing before me I asked the first applicant a number of questions to determine the nature of this ground. The first applicant submitted the Tribunal interrupted the first applicant to enable the interpreter to interpret what the first applicant said. The first applicant submitted that this interrupted his train of thought. The first applicant, however, did not identify any particular evidence he was prevented from giving. He did not submit that this was a matter he or his representative brought up with the Tribunal, or that the interpreter was not competent, or that a competent interpreter could have interpreted the evidence the first applicant gave without requiring the first applicant to pause to permit the interpreter to interpret what the first applicant said.

2. Identified Ground 14 also fails.

Identified Ground 15

1. The first applicant submitted that the first and second applicants were not given sufficient time to give their evidence because the Tribunal asked the first and second applicants to wrap up the hearing. The first applicant said he expected the hearing would take three hours, but it went for a shorter time. I asked the applicant whether there was evidence he did not give to the Tribunal which he would have given had the Tribunal not wrapped up the hearing. The applicant said there were many stories he wanted to tell, but he did not identify any of the stories he wanted to tell.

2. There is no transcript of the hearing before the Tribunal. I am therefore not prepared to find that the Tribunal ended the hearing without being satisfied the first and second applicants had been given an opportunity to say all they wanted to say in support of their case. As I have already noted, the first and second applicants were assisted by a representative; after the hearing their representative requested, and the Tribunal provided, an audio recording of the hearing before the Tribunal;[74] and, after the first and second applicants’ representative was provided with the audio recording of the hearing, the first and second applicants prepared and submitted to the Tribunal a further statement.[75] The first and second applicants did not claim in that statement they had not been given a sufficient hearing; and in any event, I infer that, by forwarding that statement to the Tribunal, the first and second applicants exhausted all they wanted to say in support of their claims.

   [74] CB370

   [75] CB371-375

3. Identified Ground 15 also fails.

Identified Ground 16

1. This ground claims there were inconsistencies in the evidence the first and second applicants gave because of the time that had passed between the day on which they gave evidence and the events to which the evidence related, and the time that passed between the occasions on which the first and second applicants gave evidence. This ground goes no further than disagreeing with the Tribunal’s not accepting one of the explanations the first and second applicants gave to the Tribunal for inconsistencies in their claims. It discloses no jurisdictional error.

Other issues – s.438 Certificate

1. In the course of the various applications for review four certificates were issued purportedly pursuant to s.438 of the Act.[76] The Tribunal referred to the fourth of the certificates, but the Minister accepts the Tribunal did not disclose to the first and second applicants any of the certificates. The Minister submits, however, that the documents covered by the certificates were not material to the Tribunal’s decision. In support of that contention Mr Leerdam, who appeared for the Minister, read an affidavit of Ms Saunders and tendered the documents covered by the four certificates.[77]

   a)There are two documents covered by the certificate dated 13 October 2008.[78] One is a confirmation of a booking for an interpreter.[79] The other is a document prepared by a tour operator providing details of the first and second applicants absconding from the tour group.[80]

   b)The certificate dated 23 June 2014 covers one set of documents,[81] being documents in relation to an application that was made on behalf of the applicants that the Minister exercise his power under s.417 of the Act.[82]

   c)The first of two certificates dated 22 November 2016[83] covers a document addressed to “[email protected]” advising of the setting aside of the third Tribunal’s decision, records from a computer of various requests made by the first and second applicants, a document containing a checklist required to be completed at the time of making of “the RRT reviewable decision”, and a copy of the document from the tour operator to which I refer in (a).[84]

   d)The second of two certificates dated 22 November 2016 covers a document titled “Protection Visa Application VALIDITY CHECK” and the document to “[email protected]” advising of the setting aside of the third Tribunal’s decision.

   [76] CB56; CB65, CB66, and CB150

   [77] The documents covered by three of the certificates were exhibited to the affidavit of Ms Saunders; and the documents covered by the other certificate were tendered as a separate exhibit (exhibit 4)

   [78] CB56

   [79] Exhibit 1, page 11

   [80] Exhibit 1, pages 12-15

   [81] CB65

   [82] Exhibit 1, pages 17-29

   [83] CB66

   [84] Exhibit 1, pages 31-42

2. At the hearing before me these documents were drawn to the attention of the first applicant, but he made no submission in relation to them.

3. I am satisfied that the Tribunal’s not disclosing to the first and second applicants the certificates, or the documents covered by the certificates, were not material to the decision the Tribunal made. All of the documents are irrelevant to the claims the first and second applicants made, and also to the issues the Tribunal considered as arising from those claims. Thus, the Tribunal made no jurisdictional error by not disclosing the certificates to the first and second applicants.

Disposition and costs

1. The applicants have failed on the grounds and submissions on which they rely. I propose, therefore, to order that the application be dismissed.

2. At the hearing I invited submissions in relation to costs. The Minister submitted costs should follow the event and that, if the Minister succeeds, I should set those costs in the amount of $6,825. I am satisfied costs should follow the event, and that it is reasonable that I set the Minister’s costs at $6,825. I propose, therefore, to order that the first and second applicants pay the Minister’s costs set in the amount of $6,825.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 March 2020