CHG15 v Minister for Immigration

[2016] FCCA 1365

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHG15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1365

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicants – whether the Tribunal failed to accord the applicants procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476.

Cases cited:

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

First Applicant: CHG15

Second Applicant: CHH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2990 of 2015

Judgment of: Judge Street

Hearing date: 3 June 2016

Date of Last Submission: 3 June 2016

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The first applicant appeared in person.

Solicitors for the First Respondent: Ms M Blackadder
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2990 of 2015

CHG15

First Applicant

CHH15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 8 October 2015 affirming the decision of the delegate not to grant the applicants’ protection visas.  Both applicants were found to be citizens of China and their claims were assessed against that country.  Both applicants had earlier made protection applications that had been refused. 

2. The first applicant, consistent with the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, made a further application in which the second applicant was included as a member of the family unit. That application was assessed by the Tribunal on the grounds of complementary protection.

3. The applicants arrived in Australia together on 28 May 1996 as the holders of Tourist (subclass 676) visas.  Both visas ceased on 28 August 1996.  Both applicants then remained unlawfully in Australia.  The primary applicant lodged an application for protection on 12 December 1996.  That application was refused on 6 June 1997 and the refusal was affirmed by a Tribunal on 19 April 1999.  The first applicant then remained unlawfully in Australia and on 20 January 2000 was detained in an immigration centre.

4. The first applicant then lodged for a ministerial intervention and, for reasons that are not apparent, the first applicant was then released on a bridging visa on 18 February 2000.  That visa ceased on 4 July 2000 and the first applicant again remained unlawfully in Australia until the lodgement of the second application for protection on 23 May 2014.  The second applicant also lodged an application for protection on 12 May 1997.  That application was refused on 27 March 1998 and that decision was affirmed by a Tribunal on 25 September 1998.

5. The second applicant’s associated bridging visa expired on 2 November 1998.  The second applicant then remained unlawfully in Australia until she was located by departmental compliance officers as an unlawful citizen on 20 January 2000 and was detained.  Again for a reason that is not apparent, the second applicant was granted a bridging visa which ceased on 4 July and the second applicant remained unlawfully in Australia until the making of this second application.  In the first applicant’s original application, he claimed to fear harm because of his involvement in an underground pro-democracy organisation.

6. In the second applicant’s original application she claimed to fear harm because of her own involvement in a pro-democracy movement, a result of which she claimed to have been arrested and mistreated.  In the second application, the first applicant made various claims that his parents had practiced Falun Gong before he and his wife came to Australia but they had suspended their practice in 1999 when the government declared Falun Gong an evil cult.  The applicant claimed that in 2010 the applicants converted to Falun Gong and took part in campaigns to propagate the Dafa between 2010 and 2013.

7. Every time the applicants took part in Falun Gong activities the first applicant alleged they were photographed by unidentified persons.  In 2013 the first applicant received a call from his family cautioning him that the couple’s Falun Gong activities were being closely monitored by the Chinese Government and the family begged him to stop those activities.  Moreover, at the end of 2013 one of the first applicant’s countrymen who was a Falun Gong practitioner, was repatriated to China where his house was searched and the authorities found a photograph of him with the first applicant campaigning for Falun Gong in Australia.

8. The delegate made adverse findings in relation to the credibility of the applicants and found that they were not genuine or committed Falun Gong practitioners and refused to grant the applicants’ protection visa on 27 February 2015.  The applicants applied for review on 1 April 2015.  The applicants were invited to attend a hearing by a letter dated 1 September 2015 to take place on 25 September 2015.  That invitation included an opportunity for the applicants to make a request for witnesses to be the subject of oral evidence from the Tribunal.

9. Although the form was filled out, there was no such request made by the applicants.  It is apparent that the applicants appeared before the Tribunal on 25 September 2015 and gave evidence and presented arguments.  At the commencement of the hearing, the Tribunal raised with the first applicant that, before the delegate, both applicants stated they were no longer claiming to fear harm if they returned to China for political reasons as had been raised in their earlier applications.  The first applicant confirmed that that was correct.

10. It was in those circumstances that the Tribunal focused on the applicants’ claims in relation to the alleged practice of Falun Gong.  It is apparent from the Tribunal’s reasons that the Tribunal explored the matter with both applicants in relation to the alleged practice of Falun Gong and raised with the applicants concern in relation to their respective evidence about the practice of Falun Gong.  The Tribunal referenced its concern to the applicants that they had admitted being untruthful in the past which might mean they were being untruthful about their Falun Gong practice.

11. The Tribunal found that the applicants had purposely attended and photographed themselves performing the Falun Gong exercises for the purpose of strengthening their claims following the interview with the delegate.  The Tribunal did not accept that the documents were evidence of the genuineness of the applicants’ Falun Gong practice.  The Tribunal did not accept that the first named applicant’s parents were Falun Gong practitioners. The Tribunal did not accept that they were visited or harassed by authorities or that the applicants had been told to stop their practice of Falun Gong in Australia.

12. The Tribunal was not persuaded the applicants were genuine Falun Gong practitioners or that they would practice Falun Gong upon return to China. The Tribunal did not accept that the applicants’ participation in Falun Gong activities in Australia, regardless of their motive, had come to the attention of Chinese authorities. The Tribunal did not accept that there is a real risk that the applicants would suffer significant harm for the reason of being Falun Gong practitioners if they were moved from Australia to China. It was in these circumstances that the Tribunal found that the criterion under s.36(2)(aa) was not satisfied in relation to the applicants and affirmed the decision of the delegate.

13. On 10 December 2015 a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavits, and submissions.  No such documents were filed.  The grounds of the application are as follows:

    1. I can not accept DIBP and AAT's decisions because our real situation and fear in relation to Fa Lun Gong practice are failed to be taken into a thorough account. As committed pursuers of Fa Lun Dafa, we will be persecuted and life challenged if are forced to remove to China as the Communist Regime never give up the repression imposed on Fa Lun Gong practitioners and persecution are escalating even now.

    2. AAT's doubt for our credibility of application is against the truth and unacceptable. We are practitioners on faith of truthfulness, kindness and forbearance. We put our faith into practice by telling the truth, and physically involvement in various Falun Gong's campaigns in public with hard evidence and witness which AAT has ignored The member has over looked the fact and our sincere concern that we have been targeted in the public practicing, and our explosion is likely and inevitably suspected by the Communist spies or secret agents, according to Australian media.

    3.AAT's decision gives unclear reason about why we are considered to attend purposely and photographed ourselves performing Falun Gong exercises in public. We are upset about this conclusion and feel vulnerable and innocent.

    4. I don't think AAT has given a significant understanding and consideration in our current claim of Fa Lun Gong and its implication on our fate and future. Our claim for protection is merely for our faith, instead of life style although we have been residing in Australia for over a decade and assimilated in this country we love.

    5. AAT failed to give a fair consideration to our honest explanations on questions and doubts, giving no well consideration and investigation to all the evidence provided, misread and abused them in review.

    7. AAT failed to gave us a chance making a comment to the outstanding questions off the hearing. We are so disappointed and stressful in such dominant attitude in our case review and couldn't accept such irresponsible and reckless decision.

    1. I and my wife are both Chinese nationals arriving in Australia since 1996. After entering Australia, we experienced hard life and difficulties and pursued our faith of Fa Lun Gong at later stage and eventually harvested a great deal both spiritually and physically in renewing our lives. We pursue our faith by keeping active involvement in practicing and study, playing an active role in various campaigns with evidence. We have fear to be persecuted due to our faith if we have been forced to return to origin as Fa Lun Gong is outlawed in China and those who pursuing our faith have been targeted by Chinese government as evil cult.

    The Grounds of the Application are:

    1. I and my wife are both Chinese nationals arriving in Australia since 1996. After entering Australia, we experienced hard life and difficulties and pursued our faith of Fa Lun Gong at later stage and eventually harvested a great deal both spiritually and physically in renewing our lives. We pursue our faith by keeping active involvement in practicing and study, playing an active role in various campaigns with evidence. We have fear to be persecuted due to our faith if we have been forced to return to origin as Fa Lun Gong is outlawed in China and those who pursuing our faith have been targeted by Chinese government as evil cult.

    2. As committed practitioners, we rely on our faith as spiritual support second to none and committee it till end of life. Our claim for protection in based on the fact of threats, killing and repression imposed by Chinese government. Our risk and danger is inevitable and predicted in origin as our fellow practitioners there are targeted by the authority and affect family's members as a whole.

    3. For sake of my faith, we long for protection by Australian government and wish our new claim and situation can be reconsidered.

14. At the commencement of the hearing, the Court explained to the applicants that this was a final hearing in which the Court would decide whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power, or a denial of procedural fairness to the applicants.  The Court explained that in summary this meant that the Court was determining whether the decision of the Tribunal had been made lawfully and whether the decision of the Tribunal had been made fairly.

15. The Court explained that if satisfied that the Tribunal’s decision was affected by relevant legal error the matter would be remitted for further hearing and the decision of the Tribunal set aside.  The Court explained that if not satisfied the decision was affected by relevant legal error the applicants’ application would be dismissed.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then submissions from the solicitor for the first respondent and then submissions from the applicants.  The first applicant confirmed that he understood the nature of the hearing as explained by the Court.

16. Paragraphs 1-7 of the orders sought by the applicant are in substance an invitation to this Court to engage in an impermissible merits review.  The Court is satisfied that the applicants had a genuine hearing and that the adverse findings in relation to the credibility of the applicants were open on the material before the Tribunal.  The Court is satisfied that the Tribunal complied with its statutory obligations on the material before the Court and that on the material before the Court it cannot be said that the applicants were denied procedural fairness. 

17. The Tribunal engaged in an orthodox examination of the applicants’ claims and evidence and clearly raised the issues concerning the applicants’ credit in respect of the practice of Falun Gong and the earlier want of proof in relation to their earlier applications. Nothing said in paras.1-7 under the heading, “Orders sought by the applicant” identifies any jurisdictional error by the Tribunal. 

18. Paras.1-3 under “The grounds of the application are” are in substance a repetition of the applicants’ claims and thus do not identify any jurisdictional error.  From the bar table the first applicant sought to maintain that the assertion that he was not a Falun Gong practitioner was irresponsible.  The first applicant went so far as to seek to attack the solicitor for the first respondent as putting irresponsible submissions.  That contention by the first applicant was completely lacking in substance.  There was no foundation for any such submission by the first applicant.

19. The first applicant maintained, despite the fact he had been in Australia since 1996, that he still could not speak English. The firsr applicant asserted that he was a vulnerable person.  The first applicant asserted that the evidence they had given had been truthful.  The adverse findings by the Tribunal were manifestly open on the material before the Tribunal.  The first applicant sought to raise other issues concerning his desire to recover money that he said he had provided, his concerns relating to a skin condition that he claimed he had, and his claims relating to some original documents.  None of those matters identified any jurisdictional error by the Tribunal.

20. To the extent that the Tribunal made adverse findings in relation to the applicants that is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The first applicant sought to suggest that he had brought forward the application in relation to the second claim for protection after reading about the ability to do so in a Chinese newspaper.  At the time the first applicant accepts that the applicants were still, unlawful persons in Australia. 

21. The proposition that the first applicant coming forward whilst an unlawful person in Australia and making a second application was in some way to the first applicant’s credit was a matter for the Tribunal to determine.  Nothing said by the applicants identified any basis upon which the adverse findings by the Tribunal were not open. Nothing said by the applicants identified any jurisdictional error.

22. The applicant is dismissed.

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

Date: 22 June 2016