Fik17 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 303
•10 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FIK17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 303
File number(s): SYG 3809 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 10 April 2024 Catchwords: MIGRATION – persecution – review of Administrative Appeals Tribunal decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – whether application of wrong test amounted to jurisdictional error in circumstances where the Administrative Appeals Tribunal rejected the factual contentions on which the application was essentially based.
Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 474
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth Tribunals Amalgamation Act 2015, item 15AG, sch 9)
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
DPH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 902
Division: General Number of paragraphs: 18 Date of hearing: 19 February 2024 and 11 March 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person on 19 February 2024 but did not appear on 11 March 2024 Counsel for the First Respondent: Ms N.L. Gollan Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3809 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIK17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
10 APRIL 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant is a citizen of China who arrived in Australia on 10 May 2014. On 23 February 2015 she applied for a protection visa with what is now the Department of Home Affairs, alleging that she feared persecution in China because of her practice of Falun Gong. On 13 October 2015 the application was refused by a delegate of the first respondent (Minister). The applicant then applied to the Administrative Appeals Tribunal (Tribunal), for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At the time when the visa application was made, the Act relevantly provided:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
The United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (Convention) relevantly states:
A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(2)… owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Following amendments to the Act introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), whose presently relevant provisions commenced on 18 April 2015, at the time of the Tribunal’s decision s.36(2) of the Act provided:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
As a result of the amendments that commenced in April 2015, the Convention test of “refugee” was replaced. The amendments effected what the Explanatory Memorandum to the antecedent Bill described as a codification in ss.5H, 5J, 5K, 5L and 5LA of the Act of the terms and expressions “refugee”, “well-founded fear of persecution”, “membership of a particular social group consisting of family”, “membership of a particular social group other than family” and “effective protection measures” and how those terms are to be understood and applied in the context of protection visa applications.
BACKGROUND FACTS
The applicant’s claims for protection were made in her written application for a protection visa, at an interview with the delegate on 1 September 2015 and at a Tribunal hearing conducted on 8 November 2017.
In its decision, the Tribunal summarised as follows the key grounds relied on by the applicant in support of her application for protection:
14.The applicant told the Tribunal that her written application was completed with the assistance of her migration agent who spoke Mandarin. The migration agent had gone through the application with the applicant and read it back to her. The application was completed by the migration agent on the applicant’s instructions. The applicant said that everything in the application was true and correct.
15.The application stated that the applicant had lived at … Gayou City Jiangsu Province in China from January 2005 to May 2014 and that her occupation was an accountant. For details about her employment history, the applicant only put down ‘Accountant’. She stated that she was married with a husband and had a son, both of whom remain in China.
16.The applicant claimed that she was introduced to Falun Gong by a neighbour who noticed that the applicant’s health was not good. The neighbour taught the applicant how to practice [sic] Falun Gong. The applicant said that Falun Gong worked on her and that her health improved.
17.In October 2013, the applicant carried an appeal letter which she wrote the night before and travelled to Beijing to speak out about the advantages of Falun Gong at the Central Appeals Office. She said that this letter was thrown into the trash by the police. The police then took her back to Gayou City where the applicant was locked in the Gayou City Detention Centre with other practitioners. She said that was she entered the detention centre the local TV station videotaped her and the other practitioners.
18.The applicant states that at the detention centre she was handcuffed to a heating pipe for hours in a painful squatting position and was beaten by a guard with a plastic pipe. Because the applicant refused to renounce Falun Gong, she was handcuffed with one arm over her shoulder and one arm pulled back and around her waist and as a result she had no feeling in her arms for a long time.
19.She stated that after two months in the detention centre, she was transported to the Gayou City Mental Hospital and was forced to take drugs orally as well as by injection. She was also subject of electric shock treatment. She remained at the hospital for three months and was only released when the hospital was informed that the local authorities had no more money to pay for her stay at the mental hospital. She was then released to her family in March 2014.
20.The applicant stated that she has been tortured many times, both mentally and physically.
21.After coming to Australia, the applicant attended local Falun Gong practice.
THE TRIBUNAL’S DECISION AND REASONS
After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. In that connection, the Tribunal referred to s.5H(1)(a) of the Act as being the source of the definition of a refugee and also referred to ss.5J to 5LA as prescribing additional circumstances in which Australia may or may not have protection obligations to a given individual.
The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:
10. … the Tribunal found that there were several inconsistences between the applicant’s oral evidence and written application.
11. The Tribunal found that the applicant demonstrated a lack of basic understanding of Falun Gong, including that the applicant was unable to name the five exercises involved in Falun Gong practice and was unable to accurately answer how many times each exercise needed to be repeated. When asked where the Falun/Law Wheel was located, the applicant also stated in oral evidence that it was located at the front of the chest, whereas the correct answer was the abdomen.
12. Tribunal noted that when it asked the applicant to explain the lack of understanding, she stated that she practised in a “messy way” and had no mentor to teach her. The Tribunal found this inconsistent with the applicant’s written claims that she was taught by her neighbour.
13. The Tribunal put to the applicant that her evidence that she believed Falun Gong was banned after the Tiananmen Square Protests of 1989 was inconsistent with country information that Falun Gong appeared in 1992 and found that the applicant’s response that she believed the Tiananmen Square Protest was linked to Falun Gong “concerning” as it suggested she had no understanding of history of Falun Gong. Her understanding also “in conflict” with her written application where the applicant made reference to a crackdown by the Chinese authorities on 20 July 1999.
14. The Tribunal found that the applicant’s oral evidence concerning previous instances of past harm was inconsistent with her written claims. At the hearing, the applicant gave evidence that the incident occurred in 2012 or 2013 and police came to her house, seizing a Falun Gong book from her bedside table and “dragged her directly to hospital” where she was given oral medication and injections. She further claimed that she was released because the authorities believed she would no longer practice because she had been tortured. The Tribunal informed the applicant that these claims were “very different” to her written application, noting that in her written claims she stated that she was taken from the detention centre to the hospital and not from her house directly. The Tribunal considered the applicant’s explanation that she could not remember the detention as it was “not serious” but found this to be unsatisfactory particularly given that her written application stated that she was beaten and handcuffed in a position which she described as “carrying the sword”.
15. The Tribunal also considered the applicant’s departure from China and found that the applicant was able to leave China on a passport issued on 3 March 2014 following her purported detention in China despite country information stating that it was it was “very difficult” for Falun Gong practitioners who were known to authorities to obtain a passport to leave China. When this was put the applicant, the applicant claimed that perhaps she could leave because she was not seen as “big issue” by authorities. The Tribunal had difficulty accepting this explanation based on the applicant’s written application that she was detained for approximately five months.
16. The Tribunal considered the applicant’s explanation about the delay in seeking protection, namely that that she did not know what to do and came to know of it when speaking with a friend at birthday party, but had difficulty accepting that the applicant, who had left China because of persecution would only enquire about protection in Australia when attending a birthday party, especially given her unlawful status could have resulted in her interception by Australian authorities and removal to China.
17. The Tribunal considered the applicant’s evidence about her previous employment, residences and her marital status and found that she did not disclose in her application: that she was working in hairdresser business with her husband for more than 10 years before separating from him and working in sales for a photography company; she worked with this company from November 2011 until she left China; and that, she had lived in Shanghai. The Tribunal found that the applicant was unable to explain why she did not disclose her previous employment and found her employment history inconsistent with country information which indicated that Falun Gong practitioners experienced difficulty findings employment beyond low-skilled jobs such as cleaning.
18. The Tribunal found the issue before it was the “credibility of the applicant”. It accepted the applicant was a citizen of China but otherwise rejected the applicant’s claims and did not find her to be a witness of truth. The Tribunal found that the inability of the applicant to tell it “even the most basic information” regarding Falun Gong exercises, the fact that her written claims regarding past harm differed significantly from her oral evidence, her ability to depart China without difficulty, and her delay in applying for protection in Australia led to the inevitable conclusion that the applicant’s claims were not true.
19. The Tribunal found that the applicant was vague about dates and circumstances and, on more than one occasion, attempted to justify her inability to recall detail due to her being given medication in hospital. However, the Tribunal rejected this explanation because it did not accept that the applicant was detained as either outlined in her claim or as outlined in her oral evidence.
20. The Tribunal ultimately found that the applicant was not a genuine Falun Gong practitioner and found that the previous instances of past harm had not occurred. The Tribunal did not accept that the applicant practiced [sic] Falun Gong either in China or Australia. Accordingly, the Tribunal found that there was no real risk that the applicant would face serious harm if she were to return to China.
THE PROCEEDING IN THIS COURT
In her application commencing this proceeding the applicant said:
AAT said when I appeared before the tribunal to give evidence in support of my claims, a number of inconsistencies arouse between my oral evidence and my written application. Actually from the time when I was persecuted by the Chinese government to present, more than 5 years have passed. It is also plausible that such as long time passed and I do not remember all the detailas of some persecutions. When I came to Australia first, I did not know to apply for a protection visa, so I did not deliberately prepare some evidence, mainly by memory. It is normal that memory will fade with the time passed.
When I was practicing Falun Gong in China, it is true that my neighbor taught me, and my neighbor's knowledge of Falun Gong also comes from her friends. So I have not received the systematic knowledge of Falun Gong. Because it is banned by the government to practice Falun Gong, my friends also can not practice it in public. They can only teach each other through friends in order to minimize the impacts, this is also a way to protect ourselves. However, AAT did not believe what I said and did not consider the issued from the view of Falun Gong practitioners, as a result, the decision made by AAT is definitely not correct.
In the end, AAT's letter concluded that I did not meet the criteria, but they did not give me specific reasons . Is this the real refusal letter? Or is simply a mere sham? I hope the court could give me a fair opportunity to appeal.
(errors in original)
This matter was listed for hearing on 19 February 2024. Following the applicant’s address, the Court drew the parties’ attention to the fact that the Tribunal had applied the wrong test to the review before it. The provisions of the Act upon which it relied did not apply to the applicant and the Tribunal should have applied the Act according to its terms as they stood when the visa application was made, including by reference to the refugee test under the Convention. The matter was adjourned to allow the Minister time to consider the significance of that information and he has subsequently agreed that the Tribunal did apply anachronous law.
The matter was adjourned for further hearing to 11 March 2024, at which time the applicant did not appear. At the resumed hearing the Minister submitted that, notwithstanding the Tribunal’s error, its decision ought not be set aside because that error had had no practical impact on the outcome of the review which had been based on adverse credit findings rather than on a failure to satisfy one or more of the particular requirements of the Convention test.
The Tribunal’s decision was indeed based on a comprehensive rejection of the factual contentions advanced by the applicant in support of her claim to fear persecution in China for her practice of Falun Gong. In short, the Tribunal just did not believe that her claims were truthful. That being so, as a matter of practical justice it would not matter which test was applied because, on the Tribunal’s factual findings, the applicant did not satisfy either of them. In that connection I accept the Minister’s submission that this matter is broadly analogous to the situation considered by Jagot J in DPH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 902.
That being so, attention must now turn to the particular contentions advanced in the applicant’s application and to whether they identify any other error by the Tribunal that might go to its exercise of jurisdiction. They do not. The matters alleged in the application are solely ones of fact and invite merits review which the Court may not entertain. The application does suggest that the applicant was not given reasons for the Tribunal’s decision but its reasons are found in its decision record, a copy of which the applicant annexed to her affidavit in support of the application so that contention is not made out.
CONCLUSION
Error going to jurisdiction has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 10 April 2024
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