SZRVX v Minister for Immigration

[2013] FCCA 914

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRVX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 914

Catchwords:
MIGRATION – Review of decision of RRT – where Tribunal made admittedly mistaken findings of fact – whether such findings contributed to decisions – whether findings were an error within jurisdiction – where applicant made complaints about interpretation but advanced no evidence.

Legislation:
Migration Act 1958 (Cth), s.91R(3)

NABE v Minister for Immigration & Anor (No.2) (2004) 219 ALR 27
SZJBD v Minister for Immigration & Anor (2009) 179 FCR 109

First Applicant: SZRVX

Second Applicant: SZRVY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2160 of 2012

Judgment of: Judge Raphael

Hearing date: 17 July 2013

Date of Last Submission: 17 July 2013

Delivered at: Sydney

Delivered on: 17 July 2013

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr T Reilly

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. Application of First Applicant dismissed.

2. First Applicant to pay the First Respondent’s costs assessed in the sum of $5,400.00.

3. Application of Second Applicant dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2160 of 2012

SZRVX

First Applicant

SZRVY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 26 August 2011.  On 31 October 2011 he applied for a protection (Class XA) visa.  He was interviewed by a delegate of the Minister who, on 19 March 2012, refused to grant a protection visa.  The applicant then sought review of that decision from the Refugee Review Tribunal.  He attended a hearing before the Tribunal and on 7 September 2012 the Tribunal determined to affirm the decision under review.  At the time of the application and the Tribunal hearing there was an additional applicant who was married to the principal applicant and who had completed Form D, an application for a member of a family unit who did not have her own claims.  The applicant, in his written submissions to the court dated 30 May 2013, has provided the court with a copy of a divorce certificate issued out of this court on 18 October 2012 from which it appears that he has been divorced from the second applicant.  He tells the court that the second applicant was informed of today’s hearing but she has not appeared.

2. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of membership of a particular social group.  It was the applicant’s claim that whilst living in China he became an adherent of Falun Gong.  In his application for the visa he stated that he was detained by the Baoshan Branch of the Shanghai PSB on 26 August 2008 because he was a Falun Gong practitioner had helped one “HS”, another practitioner, to make anti-Government promotional materials.  He was detained at the Baoshan District Detention Centre where he was tortured and on 8 October 2008 he was sentenced to a three year jail term.  He was sent to Baihu Prison in Anhui Province where he was also tortured and harassed by other criminals.  He stayed until his release on 29 April 2011 which he obtained by bribing an officer.  The applicant claimed that since his release he had been continually harassed and found it impossible to find a job and he had been socially ostracised in China.

3. At the Tribunal hearing the Tribunal noted that it had listened to the tape of the interview between the applicant and the delegate.  At the time of the Tribunal hearing the applicant had added to his claims that he was involved in Falun Gong activities in Australia which had been publicised so that it would cause problems for him should he return.  The Tribunal put to the applicant certain matters of concern to it.

   “[58]It was put to him that there appeared to be many coincidences in his claims regarding his departure from China; a cousin who could lift the blacklist long enough to issue a passport and a friend who could get him through the airport…

   [59] It was put to him that it appeared strange that he could display great initiative in gaining a passport illegally and then finding his way through Pudong Airport via an intermediary and yet he took weeks to find someone who could help him with a protection claim.  [CB 175].

4. The Tribunal informed the applicant of the requirements of s.91R(3) of the Migration Act 1958 (Cth) in relation to his activities whilst in Australia.

5. In its findings and reasons the Tribunal concluded that it could not accept that the applicant was a genuine Falun Gong practitioner because the applicant’s knowledge of Falun Gong did not reflect the length of time that he claimed he had been a follower of the movement.  It accepted that he had attended sessions and study groups since his arrival in Australia but it did not consider that his interest in Falun Gong had pre-dated his arrival in Australia.  The Tribunal concluded that his motivation for engaging in Falun Gong related activities in Australia was for the sole purpose of strengthening his claim and determined to disregard that conduct when considering whether or not the applicant had a well-founded fear of persecution.

6. The Tribunal referred to other inconsistencies in the applicant’s evidence before concluding that he had not, in fact, been detained nor that his wife had lost her job as a result of his Falun Gong activities.  The Tribunal expressed concern about the time taken to apply for a protection visa.

   “[81]I do not therefore accept that language difficulties stopped the applicant from applying for protection.  It was put to him that he had claimed to show greater initiative in leaving China, but little if any initiative in trying to seek protection once in Australia which raised concerns about how fearful he was of returning to China.  The fact that he could find a place to practice Falun Gong within two days of arriving in Australia and yet could not apply for protection is further indication that he did not place a high priority on claiming protection.” [CB 179]

7. The Tribunal then turned to consider the complementary protection obligations.  It noted that it had found that the applicant had not practised Falun Gong in China and would therefore not do so on his return to that country.  The Tribunal considered the applicant’s activities within Australia and noted that although he had submitted photos of himself at Falun Gong activities there was no evidence presented that such actions would have come to the attention of the Chinese authorities.  The Tribunal therefore came to the view that there was no real risk that the applicant would suffer significant harm upon his return to China.

8. On 3 October 2012 the applicant applied for review of the Tribunal’s decision in this court.  The grounds of application were threefold.  The first was:

   “The Tribunal made a significant mistake in its decision.  As a matter of fact, my wife and I arrived in Australia on 26 August 2012 instead of 27 July 2012. However, the Tribunal stated in its decision as follows:

   “Having arrived on 27 July 2012, his claim for protection was not submitted until 31 October 2012; more than three months after his arrival.”

   The Tribunal then made its finding significantly based on the above mistake.  I do not believe that the Tribunal has genuinely and fairly assessed my review application.”

9. It is correct that in its decision record the Tribunal has tripped over itself with regard to the dates of the applicant’s arrival in Australia.  It is certainly incorrect to have said that the applicant arrived on 27 July 2012 or that he applied for his visa on 31 October 2012, particularly when the decision of the Tribunal was itself written on 7 September 2012, but this is clearly a typographical error and is one that the applicant has repeated in his own grounds of application stating that he arrived in 2012.  However, at [2] [CB 171] the Tribunal notes that the applicant left Pudong Airport in China on 25 August 2011 and in [2] [CB 168] it notes that he applied for the protection visa on 31 October 2011.  It is correct to say that the Tribunal proceeded on the basis that there was a three month delay in applying for a protection visa rather than a two-month delay.

10. Mr Riley, who appears for the Minister, states in his helpful written submissions at [6]:

    “[6]However there is no error of law in the Tribunal making a wrong finding of fact:  Waterford v Commonwealth (1987) 163 CLR 54 at [77]; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]. Even if this factual error could have affected the outcome before the Tribunal, that would not establish a jurisdictional error: NABE v MIMA (No 2) (2004) 144 FCR 1 at [68]. Accordingly, this complaint does not establish any jurisdictional error by the Tribunal.”

11. It is well to extract from the decision in NABE v Minister for Immigration & Anor (No.2) (2004) 219 ALR 27[1] what was said at [68]:

    “[68]This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”

    [1] “NABE”

12. It is difficult for this court to speculate as to whether or not the error made here might have contributed to the Tribunal’s view of the applicant’s credibility.  In this particular matter it does seem that there were sufficient other matters of concern to the Tribunal about the applicant’s evidence and that its comments about the time taken to apply for the protection visa were no more than a make weight.  But in any event I believe that this case is so similar to that considered by the Full Court in NABE that it would not be possible for me to make a finding contrary to it.

13. The second ground was:

    “The Tribunal failed to consider correctly that I am a genuine Falun Gong practitioner; and that I must be subjected to persecution on my return.”

    Stated in this way the ground is no more than a plea for merits view that is impermissible.

14. The third ground of application was:

    “The Tribunal failed to give me particulars of the information which the Tribunal has considered as a reason or part of the reason to affirm the decision under the review; and the Tribunal failed to ensure me to understand the particulars of the information; and the Tribunal failed to give me a genuine chance to comment or respond to them.”

    Now this ground was clearly provided to the applicant by a “friend.”  It bears little relevance to what actually occurred.  It is clear from a reading of the decision record that the applicant’s claims were given detailed consideration by the Tribunal.  The concerns the Tribunal had about the veracity of those claims were expressed to the applicant and he had a chance to comment upon them.

15. On 30 May the applicant filed with this court a set of submissions containing six pages.  The gravamen of this document is to point out a number of other small factual errors made by the Tribunal.  For example in paragraph 27 of the Tribunal’s decision record the Tribunal states:

    “He claimed that he possessed a genuine Chinese passport issued by the entry and exit administration of Guangzhou where his huko is.”

    The applicant says that the location should be a city in Jiansu Province.  He makes a similar comment about the statement in paragraph 36 that he practised Falun Gong in that city and not in Guangzhou.  Much of the other comments take issue with the factual findings of the Tribunal or enlarge upon the evidence that he previously gave and clarify it.  If this court was to consider these matters it would be providing the applicant with merits review which, as has been noted, is impermissible. 

16. The applicant also makes some comment about the quality of the interpretation services that he received and the accuracy of his statements made to the delegate and to the Tribunal.  In these matters an applicant has the onus of establishing to the required standard allegations of this nature.  This court has always believed that allegations concerning interpretation matters should be proved by evidence of other interpreters, although there has been some suggestion from the Federal Court that perhaps this court itself can do this by listening to tapes SZJBD v Minister for Immigration & Anor (2009) 179 FCR 109. Whatever may be the correct statement of law the applicant has provided neither and the court is thus left with a mere assertion that has no weight. The same comments must apply to the applicant’s submissions that he did not say various things to the delegate or to the Tribunal that were reported as having been said; although in this case it may well have been possible for the court to make its own decision based upon a hearing of the interview tape. The applicant complains that he only knew about these problems when he received the Minister’s submissions on 9 July but, in fact, he attended a directions hearing on 29 November 2012 in which order 1 was:

    “The applicants file and serve any affidavit containing additional evidence relied upon, including any transcript of the Tribunal hearing, and any amended application setting out each ground of review relied upon and complete particulars by 5 February.”

17. Given that it was the applicant’s responsibility to establish the grounds he did, in the court’s view, have adequate time to do so.

    In the light of these comments it will be clear that I am unable to provide the applicant with the review he seeks.  The application must be dismissed and the applicant must pay the first respondent’s costs which I assess in the sum of $5,400.00.

18. For the sake of completeness I will confirm my order that the application of the second applicant be dismissed.  I make no order as to costs against that applicant.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  24 July 2013