SZONY v Minister for Immigration
[2017] FCCA 2986
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZONY v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2986 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider a claim – whether the Tribunal misunderstood a claim – whether the applicant was given a fair hearing – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 476 |
| Cases cited: SZONY v Minister for Immigration & Anor [2010] FMCA 884 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 |
| Applicant: | SZONY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 377 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 10 November 2017 |
| Date of Last Submission: | 10 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms E Warner Knight of Australian Government Solicitor |
ORDERS
The application made on 22 February 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 377 of 2016
| SZONY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 February 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 29 January 2016 affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The applicant is a citizen of the People’s Republic of China (CB 2). She arrived in Australia on 20 September 2009 as the holder of a visitor visa (CB 3). The applicant applied for a protection visa which was received by the Minister’s department on 28 April 2014 (CB 1 to CB 34).
The applicant had previously applied for a protection visa which was refused by a delegate of the Minister. The applicant’s appeal process culminated in the dismissal in this Court of an application seeking review of the former Refugee Review Tribunal’s decision to affirm that delegate’s decision (see SZONY v Minister for Immigration & Anor [2010] FMCA 884).
Following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the applicant applied for another protection visa on the basis of the complementary protection criterion in s.36(2)(aa) of the Act. The delegate refused the application on 17 February 2015. The applicant was notified by letter of the same date (CB 37 to CB 54).
The applicant applied for review to the Tribunal on 23 March 2015 (CB 55 to CB 56). By letter dated 30 October 2015, and sent via email on the same date to her representative authorised to receive correspondence on her behalf, the applicant was invited to a hearing before the Tribunal on 9 December 2015 (CB 61 to CB 64). The applicant attended the hearing on that date (CB 68 to CB 70). The Tribunal affirmed the delegate’s decision on 29 January 2016 and the applicant was notified by letter sent to her representative authorised to receive correspondence on her behalf via email on 1 February 2016 (CB 73 to CB 82).
The applicant claimed to fear harm from the Chinese authorities on the basis that she was a Falun Gong practitioner. She claimed to have started practising Falun Gong in 2010 ([14](a) at CB 80). At the hearing before the Tribunal, the applicant also claimed that she was being monitored by the Chinese authorities in Australia due to her involvement with Falun Gong. The Tribunal put its concerns to the applicant as to why she had not raised this earlier with the delegate. The Tribunal also put inconsistencies in the applicant’s evidence in this regard to the applicant at the hearing, and the applicant “replied that she was telling the truth” ([14](a) at CB 80).
At the hearing before the Tribunal, the applicant was able to state that Falun Gong began in China in 1992. However, and amongst other things, the applicant was unable to name the seminal Falun Gong text, was unable to describe the “five universal objectives” of Falun Gong, and the Tribunal put to the applicant that “her superficial knowledge of [Falun Gong] and casual attitude towards it indicated that she would not be of adverse interest to the Chinese authorities”. The Tribunal noted that the applicant’s answer was “unresponsive” and after a “long pause” she claimed that Falun Gong “was her personal belief” ([14](b) at CB 80 to CB 81).
The Tribunal found that as a cumulative result of the applicant’s evidence, and the information before it, the applicant was not “a person of credit” ([14](b) at CB 80 to CB 81). The Tribunal stated that the applicant’s claim of anticipated persecution on return to China was “unsupported by any other convincing, reliable or independent material”, other than “one phone call” from her family in China. Therefore, the Tribunal found that the claimed harm “[was] pure speculation and ha[d] no foundation based on fact” ([14](b) at CB 80 to CB 81).
Further, the Tribunal considered that since the applicant’s claim to having been monitored by the Chinese authorities only arose at the hearing, in the circumstances, this indicated that the claim was a “fabrication”. As a result, the Tribunal found that the applicant was not a Falun Gong practitioner nor was she ever monitored in Australia by the Chinese authorities as she had claimed. The Tribunal affirmed the delegate’s decision on that basis ([14] at CB 80 to [18] at CB 82).
The applicant first appeared before a Registrar of the Court on 7 April 2016. The Registrar made orders, amongst other things, giving the applicant the opportunity to file any amended application and further evidence by way of affidavit in the proceedings. The applicant has filed no further documents.
The applicant again appeared before a Registrar of the Court on 25 August 2016, and the Registrar made various orders, including that the applicant and the Minister file written submissions before the final hearing which was also set down before me today. The applicant filed no written submissions. The Minister filed written submissions on 3 November 2017.
The application to the Court is in the following terms:
“Orders sought by Applicant
1. I don’t think DIBP and AAT’s decisions are fair to me and I don’t think my commitment on my belief of Falun Gong and my practice has been prudently and thoroughly considered.
2. AAT’s failure to take careful consideration in my case and doubt about my credibility is unacceptable and made me a real stressful. I have a fear to return to my origin country as Chinese government still remain high political pressure on Falun Gong practitioners and persecution against those with commitment of Falun Gong have never terminated. The situation in China never changes better but even worse.
3. AAT’s decision gave unclear reason of why my practice was unacceptable. I have provided with true reason on my situation and I don’t think my explanation produced an inconsistent result.
4. I don’t think I have been listening and understanding comprehensively through the hearing. If any problems occurred in communication I think it must be related to the result of my stress, poor ability of expression during the hearing or my upset and nervous through out the hearing.
5. I don’t think AAT has given a significant understanding and consideration in my claim as a whole.
6. AAT failed to properly consider our commitments to our faith and ignored the evidence provided, failed to give a fair consideration to my honest explanations on questions and doubts, giving a wrong interpretation of our credibility.
7. AAT failed to give me a chance further explain the questions and making a comment to the outstanding questions off the hearing.
The Grounds of the Application are:
1. I came from China. As a Falun Gong practitioner I have strong fear to return to China. After entering Australia, I pursued my belief and kept on practicing it. I know for sure as a Falun Gong practitioner, I have no future, and prosperity in China as Chinese government still remain the high political pressure and crack down on those with commitment of Falun Gong faith and I must be the target in danger and risk if forced to return.
2. I practiced Falun Gong after arrived in Australia both at home and in public and I get involved in various campaigns of protesting and telling truth activities against Chinese Communist Regime in persecuting Falun Gong and its supporters. I firmly believe my family will be ruined and socially biased if we insist not to denounce our faith. The reality is we proclaim our commitment and will do nothing to betray our belief.
3. My Falun Gong commitment is outlawed in China and people who pursuing it have been targeted and tortured by Chinese government as evil cult, arrested and persecuted and even harvesting organs. Falun Gong family members are also adversely affected and socially discriminated in every aspect of life including educational, and carrier development and human right.
4. My risk and danger is imminent and unavoidable if I was driven to go back to China and fell into a victim of the biggest loser and life challenge.
5. For sake of my freedom, and my family as a whole. I firmly believe I will be at vast risk in origin therefore I expect a protection by Australian government and wish my claim and situation can be well reconsidered.”
[Errors in original.]
At the hearing, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. The Minister was represented by a senior solicitor. When given the opportunity to address what are said to be the grounds of the application to the Court, the applicant said that she had nothing to say. I should just note, given what I said earlier, this is not the first occasion that the applicant has appeared before the Court in a protection visa matter.
By way of a page headed “Attachment to Grounds of Application”, the applicant sets out various matters under two headings. As mentioned to the applicant during the hearing, the format and content of this document is in great part similar to what has been presented in a number of other cases in matters of this type before this Court, involving persons from the People’s Republic of China.
Dealing first with the second of the two headings, that is, “[t]he grounds of the [a]pplication”. Even on a fair reading, these matters can only be described as the applicant’s recitation of her claims to fear harm as set out in her application for the protection visa, and as ultimately put before the Tribunal. At best, what are said to be the grounds of the application can only be seen as a request for this Court to engage in impermissible merits review. As I explained to the applicant at the hearing, for her to succeed in her application to the Court, at the very least, the Court would need to find that the Tribunal’s decision was affected by jurisdictional error, or, as I explained for the applicant’s benefit, a “legal mistake”.
What are said to be the grounds of the application do not make any proper assertion of legal error, let alone can they be said to make out jurisdictional error in the Tribunal’s decision.
The first heading in the applicant’s document (“[o]rders sought by [the] [a]pplicant”), notwithstanding what is stated, appears to be some attempt to assert grounds that the applicant seeks to put before the Court.
Ground one asserts that the delegate’s decision was not “fair” to the applicant. This Court has no jurisdiction to review the delegate’s decision (s.476(2) of the Act). That part of the ground must fail.
Ground one also asserts that the Tribunal’s decision was not “fair” to the applicant because the Tribunal did not “thoroughly” consider her Falun Gong belief and practice. On the evidence, this cannot be made out. The Tribunal did consider the applicant’s claims as they were put to it. In the circumstances, it appears that the applicant’s complaint that her claims were not “thoroughly considered” is an expression of the applicant’s disagreement with the Tribunal’s findings and its conclusion. On the evidence before the Court, the Tribunal’s conclusion and the findings that informed it, were reasonably open to it. Ground one is not made out.
Grounds two, five, and six make similar complaints to that set out in ground one and, to the extent that they make such similar complaints, they fail for the same reason.
Ground two also appears to take issue with the Tribunal’s adverse finding as to the applicant’s credibility. The applicant says that this made her “stressful”. Grounds four, and perhaps five, appear to raise similar complaints, and in the same context. As the Minister correctly submits, it would appear that the complaint is that the applicant became stressed at the hearing before the Tribunal, when the Tribunal put its concerns to her about her evidence.
As mentioned earlier, despite opportunity given to the applicant by a Registrar of this Court, she has provided no evidence and, in particular, no transcript of the hearing before the Tribunal. Therefore, the only relevant evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s references in its decision record.
Section 425 of the Act obliges the Tribunal to raise with an applicant, at the hearing, the issues that are dispositive or determinative of the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494). In that context, the applicant is entitled to assume that unless the Tribunal raises other issues, the issues dispositive of her application in the delegate’s decision, are the “issues” in the review.
In this regard, it would have been clear to the applicant following the delegate’s decision, that her entire account of her Falun Gong practice and beliefs was at issue. By the time she appeared before the Tribunal, the applicant would have known that the delegate had found that she was not a credible witness. Ultimately, that was also the view that the Tribunal took of the applicant’s entire account of her Falun Gong practice.
No jurisdictional error can be seen to arise in the current circumstances. At the hearing, the Tribunal put to the applicant its concerns about her claims, and gave her the opportunity to respond. That is, the Tribunal discharged its procedural fairness obligation.
Specifically, in relation to her claim in ground two, to have been stressed or to have found the experience, as she says, “real stressful”, there is no evidence before the Court now to support the proposition that the applicant was prevented from giving her evidence and making her arguments because of the Tribunal’s questions. The Tribunal is entitled to question the applicant, and even, as has been said, where that questioning is vigorous (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80). No jurisdictional error arises in this regard.
Ground five also complains that the applicant’s claims were not considered “as a whole”. There is no explanation in the applicant’s application as to what is actually meant by that complaint. There was no explanation from the applicant at the hearing before the Court. But as the Minister, in my view given the evidence, correctly submits, the entirety of the applicant’s account was not believed, and therefore there was no legal error in the Tribunal not stating explicitly, that it considered the applicant’s claims cumulatively or “as a whole”. Once the Tribunal rejected the entirety of the applicant’s factual basis to fear harm, then there was nothing else for the Tribunal to consider.
Ground three also complains that the Tribunal gave “unclear reason of why her [presumably Falun Gong] practice was unacceptable”. I cannot see that the Tribunal made any finding that the applicant’s practice was “unacceptable”. What, in essence, the Tribunal found was that, after giving the applicant the opportunity to respond to its concerns, the Tribunal was not persuaded that the applicant was telling the truth.
When the Tribunal’s key finding that the applicant was not a Falun Gong practitioner is read in the context of the Tribunal’s account of its concerns that were expressed to the applicant, that finding was reasonably open to the Tribunal to make on what was before it.
Ground three, in the circumstances, cannot be seen as anything rising above a request for the Court to conduct impermissible merits review.
Ground six, where the applicant asserts that the Tribunal failed to “properly consider” her claims, is similar to ground one, and is not made out for the same reasons.
As the Minister submits, ground seven is not clear. If, however, the complaint is that the Tribunal did not give the applicant another opportunity after the Tribunal hearing to further explain her claims, then it is the case that there is nothing before the Court to show that the Tribunal offered the applicant, or told the applicant, that she could make further submissions or provide further explanations. However, and importantly, nor is there any evidence before the Court that the applicant asked for any such opportunity. The applicant’s ground appears to misunderstand that, in the circumstances, the opportunity to give her evidence and give her explanations, was at the hearing before the Tribunal.
In the circumstances, there is nothing to show that the Tribunal was obliged to provide the applicant with another opportunity. As the Minister correctly submits, on the evidence before the Court, there was no matter that appeared to be outstanding that required an opportunity for further explanation. Ground seven also does not reveal jurisdictional error in the Tribunal’s decision.
I cannot see that jurisdictional error arises from the grounds of her application to the Court.
Given that the applicant was unrepresented before the Court, I did consider whether there was any other matter, on the evidence before the Court, that may indicate some legal error on the part of the Tribunal. I cannot see that any such error arises on the material.
The applicant made her claim to be a Falun Gong practitioner in Australia. She would have been on notice from the delegate’s decision that the truthfulness of that claim, and her entire account, was not believed and was at issue. At the hearing before the Tribunal, the applicant was given the opportunity to again address that issue and to explain her case. The Tribunal addressed all of the relevant matters before it at the hearing.
In its decision record the Tribunal set out the applicant’s evidence, and also recorded its concerns about that evidence as put to the applicant at the hearing. Its finding that the applicant was not a person of credit arises, on a fair reading, from the accumulation of the concerns that it expressed to the applicant at the hearing. In the circumstances, the Tribunal’s finding that the applicant was not, and never had been, a Falun Gong practitioner was reasonably open to it on what was before it.
Conclusion
Absent jurisdictional error in the Tribunal’s decision, it is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 5 December 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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