MZZSW v Minister for Immigration

[2014] FCCA 1612

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZSW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1612

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – Tribunal making serious adverse credit findings against applicant – significant inconsistencies in applicant’s statements – whether Tribunal failed to deal properly with applicant’s claims and to apply relevant tests – no jurisdictional error shown.

Legislation:  

Migration Act 1958, s.36(2)(aa)

Applicant: MZZSW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1525 of 2013

Judgment of: Judge Burchardt

Hearing date: 26 May 2014

Date of Last Submission: 26 May 2014

Delivered at: Melbourne

Delivered on: 11 August 2014

REPRESENTATION

The Applicant: In person (assisted by an interpreter)

Counsel for the First Respondent: Mr Rogers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 16 September 2013 is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,500. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1525 of 2013

MZZSW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 19 August 2013 by which the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.  The grounds set out in the application filed 16 September 2013 are as follows:

   “1.    The Tribunal unreasonably ignored that I felt nervous during the interview with the delegate.  I evidenced that my agent assisted me to get my travel visa.  In order to help me get visa, my agent misrepresented my employment history and described my profession as the head of administration in a medical instrument company but my real job was Chef/Cook on a comparatively low income.  This evidence was ignored by the Tribunal. 

   2.    The Tribunal unfairly reviewed my case.  I have a genuine fear of harm if I return to China.  I have been truthful in my account to the Department and to the Tribunal.  I am a Falun Gong practitioner and therefore there is high chance of harm if I return to China. 

   3.    The Tribunal did not carefully review my case.  I provided the Warrant Certificate that supports indicating my detention as I have claimed.  Unfairly the Tribunal did not regard this evidence as supporting my claim to have been persecuted in the past in China on account of being a Falun Gong practitioner.  I have also provided information in relation to my employment history in China.  The Tribunal did not consider my explanation with care. 

   4.    The Tribunal failed to make ‘real risk’ test, which imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention.  I am a practitioner of Falun Gong and have been adversely treated by Chinese authorities.  Thus, my claims gave rise to substantial grounds for believing that, as a necessary and foreseeable Australia to China, there is a real risk that I would suffer significant harm in the form of torture and punishment.  Therefor (sic) I satisfy the requirements of s.36(2)(a).”

2. The affidavit filed in support does not take the matter any further.

3. On 20 November 2013, Registrar Caporale made orders enabling the applicant to file any amended application, Supplementary Court Book and written submissions.  No doubt because of his complete lack of English and his lack of familiarity with the Australian legal system the applicant did not do any of those things.  Thus, the Court has only the written submissions of the first respondent and the Court Book (“CB”) together with the parties’ oral submissions to assist its assessment. 

The parties’ oral submissions

1. The applicant, who was assisted by an interpreter, said that he had been too afraid to bring any documents with him from China and, as a result, had no documents to give to the Tribunal.  He referred to four matters (which were clearly the grounds of application).  He said that because he did not speak English, his various documents had been drafted by friends who might have given rise to some misunderstanding and misinterpretation. 

2. Counsel for the first respondent was content to rely upon the written submissions and asserted, correctly in my view that nothing arose out of the oral submissions made.  

3. The applicant then said, in reply, the Tribunal had asked him if he had any evidence to support his membership of Falun Gong and that he had replied that he had participated in many activities.  He said he had many photographs but the Tribunal refused to accept them.  Despite counsel for the first respondent’s correct objection that these photographs were not before the Tribunal (see paragraph 64 CB 94), I permitted the applicant to pass his photographs to me and I looked at them.  The record should note that these photographs were undated and showed the applicant in some form of exercises, not, at least to me, immediately clearly Falun Gong or otherwise (it should be noted I profess no expertise whatever in this field)) and the photographs were imprecise as to where they were taken.  They could have been taken in Australia or China as far as I could see.

4. The applicant, as he had with the Tribunal, offered to provide the names of co-practitioners and further information from third parties to support his claim. 

5. In these circumstances, it is appropriate, in my view, to look at what material was before the Tribunal.  

The material in the Court Book

1. The application for a Protection (Class XA) visa runs from CB 1-33.  It includes, on CB 6, an employment history as a chef.  

2. At CB 29-31, the applicant’s Statement is set out.  It asserts that the applicant was born into a military family in Sichuan and that he suffered discrimination arising out of his father being sentenced to life imprisonment in a labour camp in Xinjiang.  It also asserted the applicant’s involvement in Falun Gong commencing in 1990, but, in 1997, the Chinese government prescribed Falun Gong.  He asserted that in 2008, his wife and himself were caught by the police practising Falun Gong with two other practitioners and were detained as a result for three months during which time he and his wife were beaten.  He had to pay a fine at the end of his incarceration.  He asserted that, because of his father’s history and the applicant’s own arrest, he was monitored by the police all the time.  The applicant asserted that upon his arrival in Australia, he had practised Falun Gong freely. 

3. The decision of the delegate is at CB40-56.  At CB44-45, the delegate paraphrased the applicant’s claims, in my view accurately enough.  The delegate set out detailed findings of fact which gave rise to adverse credibility findings at CB45-51.  These included the revelation (CB45):

   “According to the applicant’s application form and written statement, he is married to Defang XU with whom he has a daughter. 

   During the interview the applicant admitted that he had actually divorced this person in 1993 and subsequently re-married a person named SHU, Jinrong in 1997 after having an affair.  He indicated he did not disclose this information previously as he thought it would cause too much trouble and he didn't mean to lie.  He confirmed that his ex-wife, Defang XU, who is mentioned in his claims, is the mother of his daughter.  He stated he does not have any children with his second wife.  The applicant further stated that after he divorced his previous wife, they stayed in contact because they had a daughter together.”

4. The delegate found that given the way the matter was set out in the applicant’s Statement, this suppression of the fact of the divorce gave rise to doubts about the applicant’s reliability as a witness of truth. 

5. The delegate also noted that the recitation of the applicant’s employment as a chef was inconsistent of what he said to the delegate.  He conceded (CB47) that the designation of chef in his protection visa application form was intended to portray a situation of poverty and disadvantage.  In fact, as the delegate found, the applicant held a senior position at a medical services supply company in Chengdu before coming to Australia. 

6. There were other difficulties with the applicant’s evidence in relation to his claims for protection which I do not traverse in any detail, but which were cogent, in my view, at CB48-50.  The delegate did not accept that the applicant was ever a Falun Gong practitioner.  

7. The delegate also found (CB50-51) that while the applicant may have been the child of someone who was sentenced to life imprisonment as claimed; it had not given rise to the sort of discrimination that the applicant asserted, noting that the applicant was in a relatively good job before he came to Australia. 

8. In these circumstances, the delegate went on to find that the applicant was not a person to whom Australia owed Refugee Convention protection, nor did he satisfy the Complementary protection test in s.36(2)(aa) of the Migration Act 1958 (“the Act”). 

The application to the Tribunal

1. The only additional material provided by the applicant prior to the Tribunal hearing was a letter received on 1 May 2013 which annexed a Warrant Certificate from the Public Security Bureau of Meishan City (CB67-69).  This purported to show that the applicant had been arrested on 15 July 2008. 

2. A report was obtained from Post which was inconclusive (CB71) and the Tribunal sent the applicant a s.424A letter on 23 July 2013 (CB73-75). 

3. The applicant’s response is at CB76-78.  I note that, in particular, the applicant relied upon his nervousness at the meeting with the delegate.  

The Tribunal’s decision

1. The Tribunal set out the Application for Review and Relevant Law in unobjectionable terms at CB82-84.  The Tribunal set out the Claims and Evidence, which included a complete recitation of the applicant’s original Statement, at CB84-88.  I note, at paragraph 27, the Tribunal recorded the fact that, during the interview with the delegate, the applicant raised an additional claim that his ex-wife was a team leader when practising Falun Gong and that in 2008, after being released from three months detention, she organised people to go to Beijing to launch a complaint against the authorities as a consequence of which she received three years in a labour camp.  The applicant had not recalled this at the time his Statement of Claim was prepared.  

2. At CB88-96, the Tribunal recorded what was said at the actual hearing.  It is fair to say, while I do not propose to traverse it in any detail, that the Tribunal quite clearly traversed with the applicant a number of what might be thought to be inconsistencies in the applicant’s position from time-to-time. 

3. The Tribunal set out its Findings and Reasons at CB96-99.  The Tribunal did not accept that the applicant had any genuine or any fear of harm if he returned to China, and found that he had not been truthful in his account to the Department and to the Tribunal.  The Tribunal did not accept that the applicant was, or was perceived to be, a Falun Gong practitioner now, or in China, and that he did not therefore face any harm if he returned. 

4. The kernel of what the Tribunal said is at paragraphs 75 and following (CB97-98) as follows:

   “75.  The applicant’s account contains several inconsistencies, which have either not been explained at all or have not been explained in a manner the Tribunal considers to be satisfactory. 

   76.  These inconsistencies include the applicant’s failure to clarify in his written claim that the woman with whom he was arrested in 2008 was not his wife, but was in fact his ex-wife, a matter that only emerged during the departmental interview.  As the applicant’s claim of arrest in 2008 is a central element of the applicant’s claim of past time in China on account of being a Falun Gong practitioner, the Tribunal considers that an omission of this nature seriously undermines the credit of the claim in its entirety. 

   77.  The Tribunal further does not accept there is any plausible explanation for the applicant’s omission of the detail in his written claim that the applicant’s “wife” was a Falun Gong “Team Leader”, and that she was subsequently imprisoned in a labour camp for three years, claims which only emerged during the primary interview.  The Tribunal considers the verbal claims in this regard merely to be subsequent invention by the applicant motivated by an intention to strengthen the prospects of his claim. 

   78.  There is no information before the Tribunal indicating that the Warrant Certificate produced by the applicant subsequent to the hearing is not what it purports to be.  However, there is nothing in the document itself indicating either the reason for the applicant’s detention in May 2008 or indicating that the applicant was detained for a period of three months as he has claimed.  In view of its assessment of the applicant’s claims more generally, the Tribunal does not regard this evidence as supporting his claim to have been persecuted in the past in China on account of being a Falun Gong practitioner.  Ultimately, the Tribunal does not accept the applicant’s verbal claim made at the primary interview but not in the written application, that he had to bribe police to erase his criminal files. 

   79.  Other inconsistencies in the applicant’s account, when considered together, tend collectively to undermine the applicant’s credit. 

   80.  These include the inconsistencies in relation to whether it had been fellow Falun Gong practitioners or old army colleagues of his father who had assisted the applicant to depart China. 

   81.  The applicant has also provided ongoing inconsistent information in relation to his employment history in China.  In the written application, the applicant was only ever employed as a chef/cook on a low income.  This conflicted with information in the visitor visa application, which was put to the applicant during an interview with the delegate, which the applicant appeared to confirm.  Similarly during the hearing the applicant confirmed that he had prior to coming to Australia been employed as the head of administration in a medical instruments company.  In post hearing submissions, the applicant reverted to the position that he had only ever been a chef/cook in China and that his previous agent had misrepresented his employment history.  The vacillations in the applicant’s account concerning his employment history further undermine the applicant’s credit in the eyes of the Tribunal. 

   82.  Concerning the practice and the philosophies of Falun Gong in particular, and even taking into account the applicant’s claim to have limited education, the Tribunal found the applicant’s knowledge to be extremely limited for a practitioner claiming to have commenced practise from the outset when the practice was initially developed and publicised by Li Hong Zhi.  In this regard, the Tribunal considers it significant that the applicant was unable even to correctly identify the year that Falun Gong commenced as a practice in China under the teachings of Li Hong Zhi.  The applicant indicated that this occurred in 1990, whereas all publicly available information indicates it had been 1992.  In the same manner, the Tribunal gives weight to the applicant’s inability to correctly state the year Falun Gong was officially banned by the Chinese authorities – the applicant stated 1997 when all other records indicate it had been 1999.  The applicant had sought to explain this latter discrepancy by a claim that the crackdown occurred two years earlier in Sichuan province than it had in the rest of the country.  The applicant provided no evidence in support of this and the Tribunal has been unable to identify any independent country information indicating an earlier crackdown on Falun Gong during 1997 in the applicant’s home province.  

   83.  Furthermore, despite a claim to have practiced Falun Gong in Melbourne and to have fellow practitioners who are in a position to support the applicant’s claims, the applicant has provided no written statements in support from other Falun Gong practitioners in Australia and nor were any witnesses produced at the hearing conducted by the Tribunal.  Although the applicant stated that he had photographs taken showing his practice of Falun Gong in Melbourne, none were ever produced.  In addition, the applicant’s description of his practice of Falun Gong in Australia was vague and unpersuasive. 

   84.  The Tribunal further does not accept that the applicant is at risk of persecution or significant harm upon return to China as the son of person who is imprisoned.  In view of the Tribunal’s concerns as to the applicant’s credit in relation to his claims generally, the Tribunal does not accept that the applicant has in fact been persecuted in the past as the son of a former soldier imprisoned for life in a labour camp.  In particular, the Tribunal regards the inconsistencies in the applicant’s evidence concerning his employment history as indicating that the applicant is prepared to misrepresent his own history so as to create the appearance of poverty and disadvantage which is not reflective of the applicant’s true history.  The Tribunal also gives weight to the information held by the Department concerning the visitor visa application indicating that the applicant was able to demonstrate sound knowledge of the medical instruments company and finds that the applicant had worked there prior to coming to Australia, as conceded by the applicant in his primary interview and during the hearing, although subsequently denied by the applicant in post hearing submissions.  Further, the applicant’s own evidence was that after the “open door policy” which followed the end of the Cultural Revolution, prejudice against people from “bad family backgrounds” greatly diminished.  In light of the above, the Tribunal rejects the applicant’s claim that his daughter suffered adverse treatment at school as a consequence of any adverse profile on the part of the applicant.”

5. Against that background, the Tribunal found that the applicant was not a practitioner of Falun Gong, and placed no weight on the Warrant Certificate as being supportive of the applicant’s claims. The Tribunal went on to conclude, not surprisingly in the circumstances, that the applicant was not owed protection obligations pursuant to the Convention, nor did he meet the test in s.36(2)(aa) of the Act as to the Complementary protection regime.

Ground 1

1. This ground effectively has three subcomponents.  First, it is said the Tribunal unreasonably ignored the applicant’s nervousness before and during the interview with the delegate.  The second subcomponent is that the applicant’s agent might have misrepresented his employment history and profession.  Third, it is asserted that his evidence in this regard was ignored by the Tribunal.  

2. In my opinion, it is clear that the Tribunal was aware of the applicant’s claim to have been nervous before the delegate, because the matter was clearly raised in the applicant’s written submissions. Reading the Tribunal’s decision fairly and as a whole, however, there is nothing to suggest that any nervousness before the delegate can have operated in a material way upon the Tribunal’s conduct of the case and the process of reasoning it adopted. The reality is that the Tribunal, as the written submissions of the first respondent (paragraph 26) explain, did not believe the applicant.

3. The assertion that the agent misrepresented the applicant’s employment history does not take the applicant, in my view, any further.  The fact is that inconsistencies in his employment history were clearly articulated by the applicant himself both before the delegate, and more particularly, before the Tribunal at the hearing.  The endeavour to resile from the position articulated before the Tribunal in the post-hearing written material was plainly something that the Tribunal was both conscious of and entitled to take into consideration. 

Ground 2

1. This is, in substance, no more than an assertion that the Tribunal’s decision was one that the applicant does not agree with.  The applicant’s assertion that he was truthful belies the inconsistencies that the Tribunal found to be established. 

Ground 3

1. Insofar as this touches on the matter of the Warrant Certificate, there is nothing in my view untoward about the Tribunal’s treatment of the matter.  The Tribunal did not find the document to be a forgery.  The Tribunal’s observations about the Warrant Certificate, set out above, were in my view clearly open to it on the materials. 

2. To the extent that this ground raises the question of the applicant’s employment history in China, it is already dealt with above. 

Ground 4

1. Insofar as ground 4 asserts a failure to apply the relevant applicable tests, I accept the submission of the first respondent that it is clear that the Tribunal did address the question of Convention protection and the Complementary protection regime.  It did so in terms, and in my view it did not fall into jurisdictional error in so doing. 

Conclusion

1. The applicant’s claims are not made out. In the face of the very significant inconsistencies in the applicant’s position from time-to-time, as recorded in the lengthy extract of the Tribunal’s decision set out above, the Tribunal’s decision was clearly open to it. No jurisdictional error is shown. The application must be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  11 August 2014