SZSKW v Minister for Minister for Immigration and Border Protection

[2013] FCCA 1733

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKW v MINISTER FOR MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2013] FCCA 1733

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth) reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

Applicant: SZSKW

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3032 of 2012

Judgment of: Judge Emmett

Hearing date: 28 October 2013

Date of Last Submission: 28 October 2013

Delivered at: Sydney

Delivered on: 28 October 2013

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Mr Richard Baird (Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
 AT SYDNEY

SYG 3032 of 2012

SZSKW

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 23 November 2012 and handed down on 26 November 2012 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China and of Falun Gong faith and Han ethnicity.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa and the decision of the delegate of the first respondent(“the Delegate”)  and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 1 December 2011 having departed legally from China on a passport issued in his own name and a TR676 visa.

2. On 16 December 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act (“the Department”).

3. On 1 June 2012, a delegate of the Department refused the applicant’s application for a protection visa (“the Delegate”).

4. On 27 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 23 November 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 19 December 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated the following:

   a)The applicant is a Falun Gong practitioner. When in China, he did not publicly admit his beliefs. He worked at the Zhengzhou Railway for more than ten years and was sacked because of his involvement in Falun Gong.

   b)In July 1997, the government announced that Falun Gong was illegal and started a cleansing movement against it. The applicant believed that Falun Gong and all its practitioners were good.

   c)In 2000, whilst working as a conductor on a train, the applicant received secret instructions that the train would be used to send back Falun Gong practitioners who had gone to Beijing to lodge complaints to the Government. The applicant arranged a separate compartment for the people and saw the police push about 20 people into it.

   d)The applicant again received orders that people would be sent home on the train from Beijing. After expressing sympathy for the practitioners, the applicant was investigated and locked up. Following this incident, the applicant was dismissed and not employed again.

   e)After losing his employment, the applicant and his family received much criticism. In May 2009, the applicant’s wife divorced the applicant because of their lifestyle and the humiliation they endured.

   f)The applicant found a new job and started practising Falun Gong with his new boss. On 1 July 2011, a security guard saw them practising and reported them. The police arrested the applicant and detained him for three days. The applicant was threatened and punished and shocked with electricity. His body was left with scars and his eyes were damaged as a result of having light shined on them.

   g)After his release, the applicant was questioned by police every week. The applicant was under high levels of stress and could not concentrate at work. The applicant found it extremely hard to work with his colleagues and found no other option than to come to Australia. The applicant now seeks protection from the Australian government.  

The Delegate’s decision

1. On 30 April 2012, the applicant attended an interview with the Delegate.

2. On 1 June 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate found the applicant’s claims of past harm in China not to be plausible. The Delegate found the applicant was not familiar with Falun Gong doctrine and that he is not a genuine Falun Gong practitioner.

4. The Delegate concluded that the applicant had fabricated his claims for the purpose of his protection visa application.

The RRT’s review and decision

1. On 27 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided no further documents in support of his review application.

3. On 28 August 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 21 September 2012 to give oral evidence and present arguments.

4. On 21 September 2012, the applicant attended the RRT hearing and gave evidence.

5. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

1. The RRT noted the range of concerns it had in respect of the inconsistencies of the applicant’s evidence over time. In particular, the RRT noted the inconsistencies in the claims made by the applicant with regards to the frequency with which he was required to report to the police in the period between July 2011 and the time he left China; in his written claims, the applicant stated that he had to report to police on a weekly basis, however before the RRT the applicant claimed that he was required to report to police three times a day.

2. The RRT raised its concern regarding the inconsistency between the applicant’s claims and available country information. In particular, the RRT noted that the applicant’s ability to obtain a passport and then depart China without difficulty indicated that the applicant was not of interest to the Chinese authorities as a Falun Gong practitioner; this cast further doubt on the applicant’s claims to have been reporting to police three times a day, given his passport was issued on 6 September 2011.

3. The RRT considered the applicant’s evidence at hearing to be vague, evasive and lacking in relevant detail. The RRT noted the applicant had difficulty recalling aspects of his claims regarding his involvement with Falun Gong in China and the place and manner in which he began practising. The RRT expressed similar concerns with regard to the applicant’s evidence about his knowledge and practise of Falun Gong, finding it to be “vague, evasive and unconvincing”. The RRT accepted that the applicant had some knowledge of Falun Gong, but when asked for specifics, the applicant became vague and evasive, and his answers lacked consistency.

4. The RRT acknowledged that aspects of the evidence provided by the applicant and his boss had been consistent, but remained troubled by significant inconsistencies in the applicant’s account of his arrest and detention against the account given by his boss. The RRT put to the applicant inconsistencies that caused it to doubt the truthfulness of the applicant. The RRT explained to the applicant that the inconsistencies put his credibility in issue and may be part of the reason for affirming the decision under review. The applicant was then invited to comment or respond. The RRT noted the applicant’s responses.

5. The RRT found that the applicant was not a truthful witness and that he had fabricated his claims of past involvement and harm in China by reason of being a Falun Gong practitioner. In reaching this finding, the RRT cited the inconsistencies within the applicant’s evidence; the shallowness of the applicant’s adherence to and engagement with the Falun Gong belief system; the vague and contradictory character of his evidence at the hearing; and the fact that the applicant departed from China on a valid passport without any apparent difficulties. The RRT was not satisfied by the applicant’s explanations for the deficiencies and inconsistencies in his evidence and found that his claims were not otherwise credible by reason of corroborating evidence, internal logic or persuasive or relevant detail. The RRT found that the applicant had fabricated his claims to support his claims for protection.

6. While the RRT accepted that the applicant may have engaged in Falun Gong activities in Australia, it was not satisfied that the applicant’s involvement was for any purpose other than for strengthening his refugee claim. Accordingly, the RRT disregarded the conduct in accordance with s.91R(3) of the Act.

7. Having found that the applicant had fabricated his claims of past harm in China, the RRT did not accept that he is at risk of any future harm as a Falun Gong practitioner. The RRT therefore did not accept that there was a real chance that the applicant would be persecuted for his political opinion (real or imputed), or his real or perceived involvement in Falun Gong (whether this was regarded as falling under the Convention ground of religion, imputed political opinion or membership of a particular social group) if he were to return to China now or in the reasonably foreseeable future. Having considered these claims singularly and cumulatively, the RRT concluded that the applicant did not have a well-founded fear of persecution for a Convention reason.

8. Having decided that the applicant did not satisfy s.36(2)(a) of the Act, the RRT considered the complementary protection criteria in s.36(2)(aa). The RRT found that in light of the findings that the applicant was not a Falun Gong practitioner, it did not consider that there was a real risk that the applicant would suffer significant harm in China as a result of his limited involvement with Falun Gong in Australia. It followed that the RRT was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there was a real risk that he would suffer significant harm.

9. Accordingly, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 15 March 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language should he wish to take his own advice.

4. At the commencement of the hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

5. The applicant confirmed that he relied on the grounds contained in his application filed on 19 December 2012, as follows:

   “Orders sought by the Applicant 

   (state precisely each order sought by way of final relief)

   1. I disagree with RRT’s decision because my risk and danger in origin due to my Falun Gong background have not been carefully considered.

   2. RRT did not consider thoroughly to my belief and actual practising of Falun Gong in China and Australia

   3. RRT made unfair decision to my case and failed to ask for further evidence or give me a chance to [comment] on pending questions to benefit my claim or statement.

   The Grounds of the Application  are:

   1. I am a Falun Gong practitioner, and I have been involved in underground Falun Gong practise and experienced persecution in China. I was biased due to my background and ended up lost freedom seeking employment and normal lived in origin. I have strong fear of return to origin.

   2. My Falun Gong background also affected my career, life and family, losing indignity and honour in community, being unfairly treated in every aspect of social life.

   3. I lost confidence living in China as I was desperate and hopeless seeking career development, feeling no guarantee for security, and freedom to ensure a regular life style.  ”

6. All of the paragraphs were interpreted for the assistance of the applicant and the applicant was invited to say whatever he wished in support of his complaints about the RRT’s decision.

7. The three paragraphs under the heading “Orders sought by the Applicant” appear to contain the applicant’s complaints about the RRT’s decision. When invited to say whatever he wished in support of those complaints, the applicant said nothing more than that he could face a risk of danger if he was returned to China.

1. None of those complaints identify any error capable of review by this Court and appear to be no more than an attempt by the applicant to have the merits of his case reconsidered. However, the Court has no jurisdiction to do so (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] North, Lander and Katzmann JJ stated as follows:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

1. There was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 15 March 2013, the applicant was given an opportunity to file a transcript of the RRT hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

2. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

3. A fair reading of the RRT’s decision record makes clear that the RRT comprehensively explored the applicant’s claims with him at the hearing and put to the applicant concerns it had about his evidence. In accordance with s.424AA of the Act, the RRT also gave to the applicant information which it considered may be the reason or part of the reason for affirming the decision under review. During the hearing, the applicant was given a short adjournment to allow him to consider his answers to questions asked by the RRT arising from inconsistent information provided by his boss in her application for protection. The applicant’s responses and explanations to concerns put to it by the RRT were noted by the RRT.

4. There is nothing to indicate that the RRT did not fully comply with the requirements of s.424AA. As stated above, the applicant has not sought to prove non-compliance either by giving evidence or tendering a transcript of the RRT hearing. In the absence of such evidence, the Court should infer that the RRT did comply with its obligations: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J.

5. There was no other information before the RRT and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

6. Ultimately, the RRT did not accept any of the applicant’s explanations for matters of concern put to the applicant by the RRT about his evidence. The RRT comprehensively rejected the applicant’s claims of ever having been a Falun Gong practitioner in China or suffering harm in China for that reason. The RRT found the applicant’s evidence to be vague, evasive, contradictory and to have been fabricated.

7. The RRT concluded that the applicant does not have a well founded fear of persecution for a Convention reason if he was to return to China now or in the reasonably foreseeable future.

8. The RRT also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The RRT found that the applicant would not practise Falun Gong upon his return to China and that his limited involvement in Falun Gong activities in Australia would not put him at real risk of being brought to the adverse attention of authorities in China. Accordingly, the RRT was not satisfied that there are 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 that he would suffer significant harm.

9. The RRT’s findings and conclusions were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

10. It is for the applicant to satisfy the RRT, being the relevant decision-maker, that he meets the criteria for being a refugee. If the RRT, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the applicant must be refused a protection visa.

1. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]:

   “…The proceedings before the [RRT] are inquisitorial and the [RRT] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [RRT] must then decide whether that claim is made out. “

2. The three statements made by the applicant in his application under the heading “The Grounds of the Application”, and which are quoted above, are no more than restatements of his claims and do not disclose any further complaint capable of amounting to jurisdictional error in the RRT’s decision. As stated above, these paragraphs were read to the applicant and he was invited to explain any further complaint contained in those paragraphs. The applicant had nothing further to say.

3. Accordingly, none of the complaints identified by the applicant demonstrate any jurisdictional error on the part of the RRT and none is apparent on the face of the RRT’s decision record.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT also gave the applicant information that may be part of the reason for affirming the decision under review and invited the applicant to comment or respond in accordance with s.424AA of the Act. The RRT also identified independent country information to which it had regard. The RRT put to the applicant independent country information before it and invited the applicant to comment upon it. The RRT made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date:  28 October 2013