SZSGB v Minister for Immigration
[2013] FCCA 1789
•8 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSGB v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1789 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection visa (Class XA) visa – no reviewable error – whether complementary protection criterion apply – no applicable criterion – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91X |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | SZSGB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2716 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 23 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Mr R. Baird of Clayton Utz |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 22 November 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSGB.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2716 of 2012
| SZSGB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1203239, a decision of Tribunal Member A. Rozdilsky dated 26 October 2012, affirming the decision of a delegate of the Minister for Immigration & Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.
In accordance with the Court Orders made on 5 February 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. A referral was made and written advice was provided after the applicant’s conference with an allocated panel advisor. The applicant was granted leave to file and serve a short written outline of submissions and list of authorities fourteen (14) days before the date of the hearing. The applicant elected not to file any written submissions or authorities, but instead chose to rely on oral submissions made at the final hearing.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.
The applicant is a female citizen of the People’s Republic of China (“China”) who arrived in Australia in May 2008 as the holder of a Student Guardian Class TU 580 visa which expired in the same year (CB 111 at [22]). Her son had been studying engineering in Australia since 2007 and, at the time of the Tribunal hearing, had not yet completed his studies.
On 24 October 2011, the applicant applied for a Protection (Class XA) visa. On 15 February 2012, a delegate of the Minister refused to grant the Protection visa and notified the applicant of the decision (CB 109 at [2]).
On 12 March 2012, the applicant applied to the Tribunal for review of the Minister’s delegate’s decision. On 27 September 2012, the applicant attended a hearing before the Tribunal. On 26 October 2012, the Tribunal affirmed the decision of the delegate (CB 11 at [20]).
The applicant claims that she fears for her safety because she has been implicated in the provision of material relating to the Falun Gong movement (CB 112 at [33]). The applicant specifically notes that:
a)In 1997, after her mother was diagnosed with liver cancer, the applicant advised her mother to practise Falun Gong on the basis that the applicant’s aunt had done so for the same ailment and had been cured within six months (CB 111 at [23]);
b)The applicant’s mother was cured of liver cancer after practising Falun Gong for six months and has continued to practise it since then (CB 112 at [24]-[25]);
c)Since the Chinese crackdown on Falun Gong started in 1999, the applicant’s mother has been sent to brainwashing classes and been forced to write a statement disavowing her association with Falun Gong, but has continued Falun Gong regardless (CB 112 at [26]-[27]);
d)The applicant is not a Falun Gong practitioner, has not had an interest in Falun Gong and has not been involved with Falun Gong in Australia, nor has she ever witnessed her mother practising Falun Gong or even spoken with her about its principles (CB 113 at [40]);
e)In 2008, after arriving in Australia, the applicant encountered Falun Gong material, including a written copy of a speech given by Master Li at New York in 2007, which she sent by post to her mother in China (CB 112 at [28]);
f)The applicant sent further speeches by Master Li to her mother in China on 31 October 2010 by asking a friend’s son personally to deliver the speech, and on 7 August 2011 by posting the speech (CB 112 at [29]-[30]); and
g)In September 2011 the applicant learned by speaking on the telephone to her brother that her mother had been detained by the Chinese police because the materials sent by the applicant to her mother on 7 August 2011 had been copied and distributed to other Falun Gong members (CB 112 at [30]-[31]).
The Tribunal’s Decision
The Tribunal found that the applicant did not have a subjective fear of persecution and, accordingly, was not a person to whom Australia owed protections obligations (CB 120 at [64]).
The Tribunal found that the applicant was not a witness of credit, because of the vague, implausible and inconsistent nature of her evidence (CB 118 at [53]-[54]).
The Tribunal did not find it credible that the applicant would risk and undermine the safety of her mother and brother in China, and her friend’s son who acted as courier in one instance, in light of the 1999 crackdown by the Chinese authorities and her mother’s experiences of being brainwashed and detained for two weeks (CB 118 at [54]).
The Tribunal noted that the applicant provided no independent or documentary evidence to corroborate her claims to have sent the documents to China (CB 118 at [54]).
The Tribunal remarked that the applicant’s ability to depart China without apparent hindrance signifies that she was not of interest to the authorities in China and was not wanted at the time of her departure (CB 119 at [57]).
The Tribunal also noted that the applicant delayed lodging her Protection visa application, having waited three and a half years after arriving in Australia before doing so (CB 119 at [59]).
The Tribunal concluded that the applicant’s claims were wholly untrue and, accordingly, there was no real risk that the applicant would suffer persecution for a Convention reason (CB 119 at [54]).
The Tribunal further found the applicant did not face significant harm within the meaning of s.36(2)(aa) of the Migration Act (CB 120 at [65]).
Current Proceedings
The applicant filed an application for review of the Tribunal’s decision with this Court on 22 November 2012. The applicant was granted leave to file and serve an amended application and written submissions. No documents have been filed by the applicant since that date. In her Application the applicant seeks the following orders:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal, requiring them to determine applicant’s application according to law.
The grounds of the application are more in the form of submissions and are as follows:
1. My mother suffered cancer in 1997 and was expected to live only for six months. My aunt helped her practising Falun Gong. After six months, her cancer disappeared. In July 2008, I posted the copy of Maaster (sic) Li’s speech at a conference at New York to my mother and in October 2010, requested my friend’s son to take a letter to her. A copy of Master Li’s speech was enclosed. All the copies caused my mother to be detained by the police.
2. I’ll be persecuted if I return to China. But the Tribunal member was not satisfied that there is a real chance that I will be subjected to persecution by the authorities in China for a Convention reason.
3. The Tribunal failed to take all my claims into account and made a jurisdictional error in making his decision of refusing my application for protection visa.
The Minister submits that only the last paragraph constitutes a ground of review, with the first two paragraphs merely reciting the essential particulars of the applicant’s protection claim and the decision of the Tribunal respectively.
Minister’s Submissions
The Minister submits that in its unparticularised form the sole ground of review does not have any merit. The applicant alleges that the Tribunal failed to consider all of her protection claims in coming to its decision. However, each of the claims identified in paragraphs 1 and 2 of the grounds of the applicant’s Application was considered and rejected by the Tribunal (CB 118-119 at [54], [60]-[61]).
In respect of the third pleaded ground of review, an analysis of the Tribunal’s decision shows that it considered all aspects of the applicant’s protection claims. The Tribunal affirmed the delegate’s decision to refuse the protection visa on the basis that the applicant lacked credibility, findings as to which are the function of the primary decision maker par excellence: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The Minister submits that the Tribunal’s factual findings as to the applicant’s credibility were open to the Tribunal on the evidence before it, and the Courts have repeatedly held that a reviewing body shall not set aside such a finding: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 54; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411.
Given that the applicant’s judicial review application sets out the facts recited in her protection visa and that the ground lacks particulars, the Minister submits that the applicant is merely expressing disagreement with the Tribunal’s factual conclusions. Such disagreement is a challenge to the merits to the Tribunal’s decision. The assessment of the merits is not the function of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at 40-42 per Mason J.
Consideration
The applicant is self-represented and appeared at the hearing with the assistance of a Mandarin interpreter. At the First Court Date directions hearing the applicant indicated that she wished to participate in the NSW RRT Legal Advice Scheme. The applicant, in response to a question about her referral, informed the in Court that she did not attend a conference with a panel advisor, however, did subsequently receive written advice. The applicant did not elect to file an amended application and proceeded with the three basic and unparticularised grounds set out in her original Application filed in these proceedings (noted at [18] above). I am satisfied that the written submissions prepared by Mr Baird appearing for the Minister accurately and adequately address those three grounds and do not require any further comment or elaboration.
I invited the applicant to make oral submissions during the hearing. The applicant used this opportunity to explain that when the Tribunal had asked her to provide further evidence she was unable to as she had told the Tribunal of all the things that had happened to her. The applicant claimed that sometimes when the Tribunal Member asked her questions she did not understand what he was asking. I note that there is no ground pleaded by the applicant complaining about the quality or standard of interpretation before the Tribunal, that the applicant was assisted by a NAATI Level 3 qualified interpreter and that no transcript of the Tribunal hearing has been sought to be adduced. Accordingly, I decline to give this submission any further consideration.
The applicant stated that in 2011 she sent Falun Gong materials to her mother in China and, as a result, her mother was detained by the Chinese authorities. The applicant claimed that the Chinese authorities went to her mother’s house and asked her family to contact the applicant in Australia, requesting that she return to China. The applicant claims that if she returned to China she would be persecuted by the authorities.
Mr Baird, appearing for the Minister, submits the applicant’s oral submissions are essentially of the same nature as the grounds of review contained in the Application. Mr Baird submits that it is clear that she seeks merits review and, insofar as Ground 3 suggests, some aspect of the applicant’s claims was not addressed by the Tribunal, however, she has not identified was that was. Mr Baird submits that the Tribunal dealt with the entirety of the applicant’s claims under both the Refugees Convention and complementary protection when it rejected everything she said.
The Tribunal’s relevant conclusions appear at [56]-[61] (CB 119) of the Decision Record, where it states:
56. The tribunal finds that the applicant’s overall credibility is seriously undermined.
57. The Tribunal further notes the applicant’s ability to depart China without apparent hindrance, and finds that she was not of interest to the authorities in the PRC, and that she was not wanted by the authorities at the time of her departure.
58. The Tribunal notes that the applicant has not been an active Falun Gong practitioner in Australia.
59. The Tribunal again notes that the applicant delayed lodging her protection visa application and repeats its finding that the applicant does not have a subjective fear of persecution.
60. The Tribunal rejects the applicant’s claims to have sent Falun Gong materials to her mother in the PRC. Given its findings regarding the applicant’s credibility, the Tribunal does not accept that the applicant’s mother and aunt are Falun Gong practitioners, and that they suffered any harm in the PRC for these reasons or that there has been any interest in the applicant by the authorities in the PRC for either her mother’s claimed association with Falun Gong, that of her aunt, or as a result of the applicant’s claimed sending of Falun Gong materials to the PRC.
61. In summary, the Tribunal does not accept as credible the claims by the applicant regarding claimed interest in her on the part of the authorities for reasons that she sent Falun Gong materials to the PRC or her mother or aunt’s association with Falun Gong, and it is not satisfied that she has or will be involved in any Falun Gong activities in Australia or China or be perceived of having sent Falun Gong materials or having involvement in Falun Gong or of being a Falun Gong practitioner in her own right in the reasonably foreseeable future which will attract the adverse interest of the PRC authorities. The Tribunal is not satisfied that the applicant will be targeted or mistreated by the authorities in China.
(CB 119)
When the Tribunal made findings against the applicant’s credibility, it also rejected the applicant’s evidence that her mother and aunt practiced Falun Gong, or that there had been any interest in her mother or aunt by the Chinese authorities for that reason. The Tribunal, at [61] of the Decision Record, concluded that the applicant would not attract any adverse interest from the Chinese authorities upon her return.
The Tribunal’s adverse credibility finding and consequential rejection of the applicant’s claims are a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (supra) per McHugh J at [67], where his Honour stated:
…[A] finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that she was not credible.
In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679, their Honours Tamberlin and RD Nicholson JJ (with Lee J dissenting) observed at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):
"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge `has failed to use' or `has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the `evidence' or which was `glaringly improbable'".
See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The claim advanced by the applicant to seek protection from persecution as described in the Refugee Convention was rejected by the Tribunal. The rejection was primarily on the basis of credibility. As the applicant is a self-represented litigant and on her own admission has no knowledge of the review process she is attempting to pursue. I have read the contents of the Court Book, being the only evidence before the Court, and particularly the Decision Record and there is no error apparent.
An additional issue is whether Australia owes the applicant complementary protection. A convenient summary of the new provision of the Migration Act is contained in the then Bill’s second reading speech on 24 February 2011. The speech indicates that the new provision establishes criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and Refugees Convention:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
- the arbitrarily deprivation of life;
- having the death penalty carried out;
- being subjected to torture;
- being subjected to cruel or inhuman treatment or punishment; or
- being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)
As discussed above, the claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal. They were rejected primarily on the basis of credibility and, secondly, the applicant’s claim that her mother and aunt were Falun Gong practitioners and this would attract the interest of the Chinese authorities if the applicant should return to China was rejected. The Tribunal did not accept that the applicant would be perceived to be involved in Falun Gong either here or in China and, as a result, would not attract adverse interests from the Chinese authorities. In these circumstances none of the issues raised in the complementary protection criteria are relevant. None of the complementary protection criteria were raised by the applicant in her claims, but this is understandable in the case of an unrepresented litigant, unfamiliar with the language and legal administration of this country and having very limited opportunity to avail herself of this knowledge or assistance.
On a fair reading of this material no jurisdictional error is apparent. Consequently, the Application should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 8 November 2013
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