SZSLN v Minister for Immigration and BORDER Protection

[2013] FCCA 1510

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1510

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, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
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
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
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 at 272
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: SZSLN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3108 of 2012

Judgment of: Judge Emmett

Hearing date: 1 October 2013

Date of Last Submission: 1 October 2013

Delivered at: Sydney

Delivered on: 1 October 2013

REPRESENTATION

The applicant  appeared in person with the assistance of an interpreter

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3108 of 2012

SZSLN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

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 21 November 2012 and handed down on 20 November 2012 (“the RRT”).

2. The applicant claims to be a citizen of the Peoples’ Republic of China (“China”) and a Falun Gong practitioner and feared persecution in China for that reason. 

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 6 July 2011, having departed legally from China on a passport issued in her own name and a TU-570 Student visa issued on 16 June 2011.

2. On 28 November 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 30 May 2012, the Delegate refused the applicant’s application for a protection visa.

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

5. On 21 November 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 24 December 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to section 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 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. Section 36(2A) of the Act provides that:

   “(2A)  A non‑citizen will suffer significant harm if:

   (a)  the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)  the death penalty will be carried out on the non‑citizen; or

   (c)  the non‑citizen will be subjected to torture; or

   (d)  the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)  the non‑citizen will be subjected to degrading treatment or punishment.”

7. Relevant terms are defined in s.5(1) of the Act.

8. 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.

9. 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 of Part 7 includes ss.424A and 425, which provide:

   “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.”

10. 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.

11. 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 her protection visa application in which she stated: 

   a)The applicant learnt about Falun Gong from her cousin in early 1998. She started practising Falun Gong with her cousin in the 1999. Her cousin set up tutorial classes in his village, played videos and showed her how to practise Falun Gong.

   b)Since Falun Gong practice was prohibited in China, the Falun Gong activities in the applicant’s cousin’s village stopped. The applicant and other practitioners decided to practise in secret. 

   c)In early 2000, the applicant was married and moved into her husband’s house. She continued to practise Falun Gong in secret. She gave birth to a son in 2001.

   d)In 2010, the applicant discovered was pregnant again. A second child is contrary to China’s ‘One Child Policy.’ She wanted to keep the baby so she hid herself from the Family Planning officers until after the baby was born.

   e)In late 2010, after the baby was born, Family Planning officers searched the applicant’s house and discovered the baby. They wanted the applicant to pay a fine and have her sterilized. Furthermore, they found Falun Gong materials and videos. She was sent to a detention centre and held there for three months.

   f)The applicant’s family paid a bribe and the applicant was released from detention after she signed a guarantee that she would no longer practice Falun Gong and that she would report regularly to the police station. The applicant and her family were monitored by police.

   g)The applicant continued to study Falun Gong secretly after her release. Her second child was prohibited from being registered in China. The applicant then applied to come to Australia on a student visa.

   h)Following her departure from China, the applicant claimed that authorities continued to harass her husband and family. As a result, her husband went into hiding and in July 2012 they divorced in order to give her husband some distance from her problems.

   i)The applicant claimed that she has practised Falun Gong since arriving in Australia and feared that she had come to the adverse attention of authorities in China. She claimed to fear persecution if returned to China because of her continuing practice of Falun Gong and her failure to report to police.

The Delegate’s decision

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

2. On 30 May 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 not to be a credible witness and comprehensively rejected her claims of past harm in China for the reasons claimed. Further, the Delegate did not accept that the applicant had been engaged in Falun Gong activities in Australia.

The RRT’s review and decision

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

2. On 29 August 2012, the RRT wrote to the applicant informing her 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 4 October 2012 to give oral evidence and present arguments.

3. On 4 October 2012, the applicant attended the RRT hearing and gave evidence.

4. On 5 October 2012, the RRT wrote to the applicant informing her that the RRT had scheduled a second hearing in her case. The letter invited the applicant to attend the second hearing 22 October 2012 to give oral evidence and present arguments. The applicant did not attend the second hearing.

5. On 22 October 2012, the RRT wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it (“the s.424A Letter”).

6. On 31 October 2012, the applicant’s migration agent responded to the s.424A Letter.

7. The RRT summarised the applicant’s written claims and her interview with the Delegate. The applicant confirmed the accuracy of the content of her application forms and statement.

8. The RRT explored in significant detail the applicant’s claims and put to her concerns it had about her evidence, noting her responses. The RRT also identified with great particularity the country information to which it had regard in considering the applicant’s claims for protection. 

9. In particular, the RRT put to the applicant inconsistencies that concerned the RRT in the evidence given by the applicant at the hearing with her written claims. The RRT also put to the applicant its concern about new claims raised by the applicant for the first time at the hearing.

10. Ultimately, the RRT rejected the applicant’s claims to have ever practised Falun Gong in China or to have suffered persecution for that reason. The RRT found the applicant’s evidence to be ‘inconsistent, contradictory, confused and unreliable’.

11. Further, the s.424A Letter raised inconsistencies in the applicant’s claims for protection with the information provided by the applicant in support of her application for a student visa.

12. The RRT also noted the applicant’s claims that she feared that her involvement in public activities in Australia promoting Falun Gong and admonishing the Chinese Communist Party had come to the attention of the Chinese authorities as she had been photographed at a public rally in Australia.

13. The RRT accepted that the applicant had participated in Falun Gong rallies in Australia which were photographed and reproduced on the website of the Epoch Times. However, the RRT was unable to identify the applicant in the photograph. Nevertheless, the RRT was unable to rule out the remote possibility that the applicant’s involvement in these activities in Australia has or will in the foreseeable future come to the attention of the Chinese authorities.

14. The RRT explained to the applicant the contents of s.91R(3) of the Act and informed her that it accepted that she had practised Falun Gong in Australia and had a certain degree of knowledge of Falun Gong. However, the RRT also put to her its concerns about the genuineness of her motivation for engaging in the activities in Australia.

15. Accordingly, whilst the RRT disregarded those activities in considering whether the applicant is entitled to Convention based protection pursuant to s.91R(3) of the Act, because it found that the applicant had participated and engaged in Falun Gong activities in Australia for the sole purpose of supporting her claims for protection. The RRT was not satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee.

16. However, because of the remote possibility referred to above that her conduct in Australia may come to the attention of authorities in China, the RRT considered whether there were grounds for considering whether there was a real risk that the applicant would suffer significant harm on that basis. The RRT considered if the applicant would be entitled to complementary protection pursuant to s.36(2)(aa) of the Act as a result of that conduct.

17. Ultimately, the RRT found that the applicant’s role in those activities was not sufficient such that the applicant was at real risk of significant harm for that reason. In reaching that conclusion, the RRT had regard to independent country information before it as to the profile required for a person to be at risk for that reason. The RRT found that the applicant was a low level participant with a low profile and that there is no evidence before the RRT to indicate that such persons are at risk of harm beyond being interviewed, which the RRT found not to amount to significant harm.

18. The RRT also accepted that the applicant may be placed under surveillance, were she to return to China but, again, was not satisfied that any mental anguish the applicant may suffer as a consequence amounted to ‘significant harm’.

19. Otherwise, the RRT found that there were no grounds for believing that there was a real risk that the applicant will suffer significant harm if she was to return to China now, or in the reasonably foreseeable future.

20. Accordingly, the RRT concluded that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa) of the Act and consequently 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 she 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 also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for her if a costs order was made against her. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that she wished to continue with her application.

4. 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 her own language.

5. At the commencement of the hearing, the applicant confirmed that she has not filed any amended application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her application. The applicant confirmed that she relied on the grounds contained in an application filed on 24 December 2012 as follows:

   “1. I am a Falun Gong practitioner and was arrested and suffered persecution. My life was under constant harassment after I was released from detention. After arrival of Australia, I joined Falun Gong activities, attending the Melbourne anti-persecution protest. My picture appeared in the Epoch Times website.

   2. But the Tribunal to take all my claims and evidences into account and made a decision of refusing my application. The Tribunal made jurisdictional error. ”

6. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

7. None of the complaints in the grounds were supported by particulars, evidence or submissions. I asked the applicant what were the claims and evidence that she asserted the RRT had failed to take into account. The applicant replied that it was her photograph from the newspaper and on the website.

8. The RRT’s decision record makes clear that the RRT understood that the applicant claimed to fear persecution in China by authorities because her photograph was taken while she was participating in a public rally in Australia and that her photograph was subsequently reproduced on a webpage for the Epoch Times.

9. However, the RRT noted that the photograph which the applicant claimed included herself was a photograph of approximately 50 people and was one of 28 separate photographs of the public protest on the website. The RRT was unable to identify the applicant in the photograph.

1. As stated above, in considering the applicant’s refugee claims, the RRT found that the applicant had participated in these activities in Australia for the sole purpose of strengthening her claims to be a refugee and, accordingly, that conduct was disregarded pursuant to s.91R(3) of the Act.

2. The RRT did have regard to this conduct in considering whether the applicant satisfied the complementary protection criterion in s.36(2)(aa) of the Act. However, as stated above, based on independent country information before it, the RRT was not satisfied that a person with the low profile, that the RRT found the applicant to have, was someone at risk of harm in China by reason of that conduct. As stated above, the RRT considered whether the consequence of surveillance that may apply to the applicant in China because of her conduct in Australia amounted to significant harm for the purposes of s.36(2A) and the relevant definitions in s.5(1) of the Act, and concluded that it would not.

3. 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/MRT 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).

4. It is also well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. The RRT’s findings 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).

6. In the circumstances, the grounds do not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (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).

7. The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “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.”

8. Following the completion of submissions for the first respondent, the applicant was invited again to say anything further that she wished in support of her application. The applicant replied that she had participated in many activities and not for the purpose of assisting her protection application. I asked the applicant whether there were any other activities in which she claimed to have participated that were not considered by the RRT, and she answered ‘no’.

9. In the circumstances, the grounds of the applicant’s application are not made out.

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 her evidence both at the hearing and in writing and noted the applicant’s responses. The RRT also identified independent country information to which it had regard. The RRT then 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-six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  1 October 2013