SZSHI v Minister for Immigration

[2013] FCCA 1717

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1717

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal biased – whether Tribunal fell into jurisdictional error.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(aa), 65, 91R(3)

Applicant A165 of 2003 v Minister for Immigration & Anor [2004] FCA 877
SZHVL v Minister for Immigration & Anor [2008] FCA 356

Applicant: SZSHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2766 of 2012

Judgment of: Judge Raphael

Hearing date: 15 October 2013

Date of Last Submission: 15 October 2013

Delivered at: Sydney

Delivered on: 15 October 2013

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

3. The name of the First Respondent be amended to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2766 of 2012

SZSHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 22 February 2012 as a visitor. On 5 March 2012 she applied to the Department of Immigration for a protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth)[1].  On 12 July 2012 the delegate of the Minister refused to grant her a protection visa.  On or about 8 August 2012 she applied to the Refugee Review Tribunal for a review of the decision of the delegate.  She attended a hearing before the Tribunal together with an interpreter.  On 2 November 2012 the Tribunal determined to affirm the decision not to grant her a protection visa.

   [1] “Act”

2. The basis of the applicant’s claim that she was a person to whom Australia owed protection obligations was her alleged adherence to and practice of Falun Gong.  She told that she had taken up the practice after some health problems in about 2010.  She had been told that the practice of the Falun Gong exercises would be of assistance to her.  She said she took it up and her illness was cured within a year.  Later she heard that persons who practised Falun Gong were liable to prosecution in China.  She became fearful and decided that she should flee the country and come into Australia where she believed she would have the freedom to practice her exercises without Government interference.  She thought that if she went back to China she would be arrested. 

3. She told the Tribunal that she thought that if she could remain in Australia for some time, say two or three years, things might blow over and she could go back to China safely.  She told the Tribunal that she had been handing out Falun Gong posters, or pamphlets, whilst in China and that some of her fellow practitioners had been arrested in October 2011.  The applicant also told the Tribunal that she had carried out some Falun Gong activities whilst in Australia.  She attended practice sessions in Auburn and she attended a protest that was held in Hyde Park.  She showed the Tribunal some photographs of herself at the protest meeting.

4. The Tribunal questioned the applicant upon her story and discussed with her certain inconsistencies in it.  In particular, the fact that her claim relating to distributing Falun Gong materials in August 2011 in China had not been raised by the applicant in her written claims.  The Tribunal also considered that the applicant was inconsistent in her evidence about exactly when she started to practice Falun Gong in China given that at one stage she said she had taken it up in 2010 and at another that she had been aware of it for some seven years or so. 

5. The conclusion that the Tribunal came to was that the applicant was not a truthful witness and she had fabricated her claim for protection. 

   “[76]In reaching this view, I have had regard to significant inconsistencies within the applicant’s evidence, the shallowness of her engagement with, and adherence to, the Falun Gong belief system, the vague and contradictory character of her evidence at the hearing, and the fact she departed China on a valid passport without any apparent difficulties.  I am unsatisfied by the applicant’s explanations for the inconsistencies in her evidence and her claims are not otherwise credible by reason of corroborating evidence, internal logic, consistency over time, or persuasive or relevant detail.” [CB 133]

6. The Tribunal then goes on in the course of its findings and reasons to clarify and explain its basis for the decision extracted above. 

7. The Tribunal took into account, as it was obliged to, the applicant’s activity in Australia for the purposes of considering whether or not it would be a matter to take into consideration under s.91R(3) of the Act.

   “[84]For the reasons set out above, our concerns about the credibility of the applicant’s claims to have been involved in Falun Gong activity in China. As I put to the applicant in the hearing in the context of s91R(3) one view of her conduct in Australia was that her involvement in Falun Gong in Australia was for the sole purpose of strengthening her claim to be a refugee. After carefully considering the applicant’s evidence I am not satisfied that the applicant began participating and engaging in Falun Gong activities in Australia as a genuine expression of her religious or political beliefs or for other reasons not associated with making an application for protection. In accordance with s.91R(3), I therefore disregard the applicant’s conduct in participating and engaging in Falun Gong activities in Australia. I do not accept the applicant will participate and engage in Falun Gong activities in China. I find the applicant would not and would not wish to participate in Falun Gong activities in China should she return.” [CB 135]

8. The Tribunal also considered the applicant’s claim for protection under the complementary protection provisions found at s.36(2)(aa) of the Act.

   “[87]I do not accept the applicant meets the complementary protection criteria in section 36(2)(aa). I have rejected the applicant’s claims of past harm in China. I have found that the applicant is not a Falun Gong practitioner and does not have a genuine commitment to the practice of Falun Gong. I have also considered the applicant’s conduct in participating [in] Falun Gong activities in Australia and, given her limited involvement in these activities and the particular circumstances of her case, I do not consider there is a real risk that these activities will bring her to the adverse attention of the authorities. On the evidence before me and having regard to country information and the individual circumstances of the applicant, I find there is not a real risk the applicant will face significant harm in China. It follows that I am not satisfied that there is substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she will suffer significant harm.” [CB 136]

9. On 27 November 2012 the applicant applied for a review of that decision from this court.  There were three grounds of this Application.  The first was:

   “1.In No. 79 of the RRT decision, the Tribunal member said, “Indeed, having observed the applicant’s vague and hesitant responses to the questions about her Falun Gong practice in China I have formed the view that she was not speaking about the events in which she was a participant but trying to recall her statement of claims.”

   This statement of what the Tribunal had said in part of its Findings and Reasons is not, in itself, a ground upon which the applicant can seek review.  In paragraph 2 of the Application she attempts to explain the matter.

   “2.I didn’t receive much education, particularly, I was very nervous at the hearing because it was my first time before a foreign officer questioning me.  Therefore, I can reply the questions fluently and immediately.” 

   In actual fact this was not the first time the applicant had been questioned by an officer.  She attended an interview with a delegate [CB 67], however, the applicant did not claim at that Tribunal hearing that she was nervous.  She did, however, make claims that her memory was not very good and these were dealt with at [62] [CB 129] and again at [79] [CB 134]. 

   What ground 2 of this Application seems to be saying is that if she is given another chance she will be more fluent and immediate in the manner in which she responds to questions.  That is not a basis for finding a jurisdictional error on the part of the Tribunal.

   The third ground is:

   “3.I think the Tribunal member’s view is not fair to me.  The Tribunal member had bias against me, so made jurisdictional error in the decision on 2th [sic] November 2012.”

10. It hardly needs repeating that actual bias is not easily proved.  As Lander J said in Applicant A165 of 2003 v Minister for Immigration & Anor [2004] FCA 877 at [59]:

    “[59]    It requires proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker's predetermined decision would not vary.”

    In SZHVL v Minister for Immigration & Anor [2008] FCA 356 McKerracher J said at [17]:

    “[17]    It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”

11. Nothing has been put to me today that would help me identify any bias on the part of the Tribunal in this matter.  Reading the decision record as a whole it seems to me that the applicant was fairly dealt with.  She put forward a weak case that did not satisfy the Tribunal that she was a person to whom Australia owed protection obligations.  There is really no more to it than that. 

12. When the applicant appeared before me today she told me that her health had been poor so she participated in the practice of Falun Gong. She did it secretly at home because of her poor educational background.  Later she heard of persecution.  She felt scared and came to Australia and lodged an application. She asked that the court not send her home. She felt scared whenever she saw a policeman.  She told me that she thought Australia believed in human rights and that she felt free here. I have no reason to disbelieve any of these sentiments but the task of this Court is not to grant visas but to ensure that those who do make their decisions lawfully. In my view the decision made in respect to this applicant was lawful and therefore her application must fail.  It is dismissed. The applicant must pay the First Respondent’s costs assessed in the sum of $5,000.00. The name of the First Respondent be amended to Minister for Immigration and Border Protection.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  24 October 2013