DZADW v Minister for Immigration

[2014] FCCA 1943

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZADW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1943

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal’s refusal to grant the applicant a protection visa – no error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.422B, 425

Kopalapillai v Minister for Immigration and Multicultural Affairs (1988) 88 FCR 547
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356
SCAA v Minister for Immigration [2002] FCA 668 at [38]
NAHI v Minister of Immigration [2004] FCAFC 10
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZJYM V Minister for Immigration & Anor [2008] FMCA 652

Applicant: DZADW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: DNG 14 of 2014

Judgment of: Judge Harland

Hearing date: 12 August 2014

Date of Last Submission: 12 August 2014

Delivered at: Darwin

Delivered on: 27 August 2014

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application is dismissed pursuant to rule 13.03B *16.01 of the Federal Circuit Court Rules 2001.

2. That the applicant shall pay the costs of the Respondents fixed at $6,646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect the change in order (1) from rule ‘13.03B’ to ‘16.01’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 14 of 2014

DZADW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant lodged an application for a protection visa on 27 February 2014. The delegate refused her application on 19 March 2014. The applicant lodged an application for review with the RRT which was also refused. The applicant lodged her application to this court on 12 May 2014.

2. The applicant is a citizen of China. She represented herself at the hearing with the assistance of an interpreter. The applicant did not file any further evidence or written submissions in accordance with the orders made on 10 June 2014.

3. The applicant relied on three grounds in support of her application to this Court.  These grounds are set out in full.

   1. In the hearing, RRT did not consider my threat after I return to China, which was unfair.  When I go back China, the possibility that I will continue to practice Falun Gong is very high, so I will be persecuted by Chinese government.  This possibility is sufficient, but RRT did not evaluate this.  Also I will be harassed by my ex-husband Sun, tortured physically and mentally, RRT ignored the risk that I will be persecuted.

   2. RRT was biased during the hearing, the country information that is referenced did not conform to the reality.  Falun Gong is a physical and mental cultivation based on the principal of truth, compassion and forbearance.  According to ‘2011 Amnesty International (China Chapter)’, ‘2010 human rights report’ by the State Department, ‘Refugee identification and settlement policy’ published in 10 June 2009 by the British Ministry of the interior and the most authoritative reports about human rights can confirmed that persecution by Chinese government is still in process.  The attitude of government did not change.  However, RRT undervalued the seriousness that I will be persecuted by Chinese government.

   3. RRT should not consider subjectively that my evidence were false because now I am in detention centre, which was discrimination.  RRT should make decision based on the evidence I provided rather than where I am.  I do not think my case was reviewed by RRT carefully since RRT made the decision in a short period of time.

4. The applicant came to Australia on 28 February 2012 on a tourist visa. She overstayed her visa. She was picked up by migration officers on 18 February 2014.  She did not apply for a protection visa until after she was taken to a detention centre.

5. In her application for a protection visa she referred to her practice of Falun Gong in China and also problems with her ex-husband who is a policeman.

6. The applicant claims that she was arrested in 2000 for practising Falun Gong. The Delegate asked the applicant several questions about the practice of Falun Gong. It is clear[1] that the delegate was not satisfied with the applicant’s answers and was not satisfied that she was a genuine practitioner of Falun Gong.

   [1] Court Book p. 60

7. The delegate details the reasons for finding the applicant was not a genuine Falun Gong practitioner[2]. It was not the only issue which impacted on her credibility. Other factors include:

   a)She has the same address from 2004 until she left China in 2012.

   b)She left China to go to Japan and then England and did not seek protection in either country.

   c)She arranged her tourist visa and did not leave for several months.

   d)She was able to leave and return to China without difficulty despite claiming to be a known Falun Gong practitioner.

   e)She did not seek protection until she was taken into detention  after overstaying her tourist visa for several months.

   [2] Court Book p. 63

8. The tribunal confirmed in the delegate’s decision.

Ground one

1. At the hearing the applicant expanded on her complaint in ground one and said that the Tribunal did not give her enough time to express herself. She said she did not ask for more time she did not know the process.  She says that they cut her short when she was answering questions. I do not have the benefit of a transcript of the proceedings before the Tribunal.

2. The applicant also said that when she was asked to demonstrate the five movements the Tribunal did not consider that she had hurt her leg which she says should have been obvious from the fact that she was on crutches. Again the transcript would show whether or not the applicant raised a complaint at the time.

3. The applicant then sought an adjournment to obtain the transcript. The lawyer for the Minister, Ms Nanson opposed that application and said that it could be revisited at the end of the hearing if the Court was uncomfortable with proceeding with the evidence before it. Ms Nanson also pointed out neither of these points were referred to in ground one and that the Minister was not on notice about those issues.  In light of the further argument before, a transcript is not necessary.

4. As Ms Nanson pointed out at paragraph 22 of the decision the Tribunal asked the applicant if she had anything else she would like to say. This is contradictory to the applicant complaints that she was not given enough time to explain her position.

5. It is also clear from paragraph 10 and 11 of the Tribunal’s decision that the Tribunal’s concern about the applicant being a Falun Gong practitioner was not only based on her inability to demonstrate the movements but her lack of knowledge. There is no reference in the decision to the applicant being unable to carry out any of the movements. One would expect there to be reference to that as she was in fact impeded by the use of crutches. The movements are demonstrated at Annexure A of the Tribunal decision.

6. The applicant also complained about the Tribunal’s treatment of Falun Gong. She felt it should be treated as a religious belief “like every religion around the world”. She felt that the Tribunal should have shown it more respect.  This complaint is misconceived.

7. The Tribunal referred to the applicable law at paragraphs 23 to 26. The applicant must establish that she is owed protection under the refugee Convention “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion…”.  The delegate[3] noted that Falun Gong could be considered a religion under the convention but that the Falun Gong movement itself does not consider itself to be a religion. The delegate referred to the fact that the Chinese government sees it as a challenge to its political authority.

   [3] At Court Book [13]

8. Whether or not, as the applicant asserts, Falun Gong should be treated as a religion makes no difference to the applicant’s claim as it is clear that the delegate treated her claim as relying on the convention ground of actual or imputed political opinion.  It does not matter which of the five convention grounds is relied on.  The result would be the same as the considerations apply.

9. It is clear that the issue of concern of the delegate and the Tribunal was the applicant’s credibility and that they were not satisfied that she has a “well-grounded fear”. She may have a subjective fear which may or may not be unreasonable or irrational but that is not the test. There is an objective element to the requirements for the fear to be well grounded.

10. The other convention ground that the applicant could be seen to be relying on is being a member of a social group being divorced women suffering from domestic violence are unable to obtain effective state protection. Ms Nanson says that that would come within a convention ground but that this is not what the applicant claimed and the Tribunal address this.

11. Ms Nanson points out that the applicant was on notice from the hearing before the delegate and the delegate’s decision about the concerns the  delegate had about her evidence. She was on notice that she had to convince the Tribunal about these issues.

12. As the Tribunal was not satisfied that the applicant had a well-grounded fear based on a convention reason it was not then required to consider whether or not the applicant would suffer persecution on her return to China. The Tribunal pointed to several factors which it found did not support the applicant’s claim of being a known Falun Gong practitioner in China. These included the fact that she demonstrated limited knowledge and in some instances incorrect knowledge about Falun Gong, she only engaged in Falun Gong practices in Australia on three occasions during the period she was in Australia until her arrest and she was able to obtain a passport in 2007 and travelled to Japan and the UK without being intercepted by the government as a Falun Gong practitioner. There was also a significant delay between her obtaining a tourist visa and actually leaving for Australia. All of these factors count against the applicant being fearful of being persecuted because of her practice of Falun Gong and because of any threats or harassment by her ex-husband.

13. Ms Nanson submitted that the process of the Tribunal was not unfair. The applicant was accorded natural justice in accordance with section 422B of the Migration Act 1958 and was invited and did attend the hearing in accordance with section 425. She was given the assistance of a Mandarin interpreter.

14. I have also considered the written submissions prepared by Ms Nanson and the authorities she referred to in those submissions.

15. I accept her submissions the Tribunal is entitled to make a finding about the applicant’s lack of credibility. The Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1988) 88 FCR 547 considered the issue of the Tribunal’s credibility findings. In order for a Tribunal’s credibility findings to stand they must be based on rational grounds after a consideration of the relevant issues. The Full Court said at 558:

    “whilst the decision maker concerned to evaluate credibility of the testimony of a person who claims to be refuge in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and any evidentiary inconsistencies, there is not a rule that a decision maker may not reject the applicant’s testimony on credibility grounds unless there are no possible explanation for delay or inconsistency.” 

16. Ground one fails.

Ground two

1. The applicant complains that the Tribunal was biased. It is extremely difficult for an applicant to establish this by simply by referring to the reasons for decision of the Tribunal: see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17].

2. As Ms Nanson refers to SCAA v Minister for Immigration [2002] FCA 668 at [38] which says:

   “the mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind at the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that sell for decision.”

   An adverse finding does not demonstrate bias. The applicant would need to point to findings being contrary to the evidence, unreasonable or which indicated prejudgment. There is nothing to suggest that the Tribunal conducted the hearing improperly.  There is no basis for the applicant’s complaint that the Tribunal was biased.

3. The applicant complains about the country information and refers to two documents in ground two which she says she provided to the Tribunal. In NAHI v Minister of Immigration [2004] FCAFC 10 the Full Court of the Federal Court of Australia addressed the use of country information. At [11] the Court stated that the weights the Tribunal gives to country information is a matter for the Tribunal as it is part of the fact-finding function of the Tribunal. The Tribunal is entitled to use the country information to assess an applicant’s claim that the applicant has a well-founded fear of persecution. It also said that the issue of the accuracy of the country information is a matter for the Tribunal and not a Court as for a Court to consider it would involve a Court in engaging in an impermissible merits review.

4. In all submissions the applicant made general comments that she felt that the Tribunal was not clear on the social system in China and that there are a lot of persecutions there.  She referred to her ex-husband working in government and threatening to report her if she returns to China. Ms Nanson pointed out that there is no evidence before the Tribunal that the applicant’s ex-husband works for the government and that he would report her if she returned to China. To the contrary the applicant says in her statement annexed to her application that her ex-husband threatened her and wanted to remarry her.[4]

   [4] See Court Book p. 128

Ground three

1. The applicant complains that she was discriminated against because she was in a detention centre. The applicant was unable to point to anything specific to support this claim. She said the tribunal just have to trust that she is a practitioner of Falun Gong.

2. The issue of people being in detention centres is a matter for government policy and not the Tribunal or the Courts. Many people that appear before the Tribunal are in detention centres.  This fact has no bearing on the merit of an applicant’s claim.  There is nothing in the court book to suggest that the fact that the applicant is in a detention centre has had any bearing on either the delegate or the Tribunal’s decision.

3. One of the issues that the Tribunal referred to quite properly was the delay by the applicant in applying for a protection visa.  The applicant says she did not understand the legal system and did not know what her rights were and that was why she hesitated. She said that it was only when she was in the detention centre that people there explained to her the options and that this explains the delay.  In Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 Heerey J held that the delay by an applicant in lodging an application for a protection Visa is a legitimate factual issue for tribunal to take into account in assessing the applicant’s fear of persecution. Barnes FM (as she then was) reviewed the authorities addressing delay in SZJYM V Minister for Immigration & Anor [2008] FMCA 652. It is clear from the Tribunal’s reasons that delay alone was not the reason for rejecting the applicant’s claims.

4. The Tribunal considered her explanation as is referred to at Court Book page 127 [32-34].  It is clear that the Tribunal did base its decision on the evidence which the applicant put before the Tribunal and assessed her specific circumstances and was not satisfied as to her credibility.

5. Ground three is not made out.

6. As the applicant has been wholly unsuccessful and costs follow the event I will order the applicant to pay the respondent’s costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 27 August 2014