SZSPW v Minister for Immigration

[2013] FCCA 973

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSPW v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 973

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – no jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.91R, 424AA

SBBS v Minister for Immigration [2002] 194 ALR 749

Applicant: SZSPW

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 382 of 2013

Judgment of: Judge Driver

Hearing date: 30 July 2013

Delivered at: Sydney

Delivered on: 30 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms D Watson
Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,900.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 382 of 2013

SZSPW

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 29 January 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Fujian Province in China and had made claims of persecution based upon her practice of Falun Gong. 

2. A short chronology of relevant events is set out below:

03.02.08	Applicant arrived in Australia on student visa
02.03.11	Applicant applied for protection visa
06.06.11	Delegate refused application for protection visa
30.06.11	Application for review of delegate's decision lodged with the Tribunal
02.09.11; 17.12.12 16.01.13	Tribunal hearings
29.01.13	Tribunal affirmed decision not to grant the applicant a protection visa
27.02.13	Proceedings commenced in Federal Magistrates Court (now the Federal Circuit Court)

The applicant’s claims

1. The applicant claimed to come from a family of Falun Gong practitioners and that her father had been arrested by the police as a result of his practices.  She was discriminated against at her school and subject to bullying.  She was encouraged by her parents to practise Falun Gong secretly at home.  As a result of the discrimination against the family, the applicant’s sister was sent to Japan for her studies.  The applicant came to Australia to study but she stopped going to school due to economic pressure on her parents.  She applied for protection so she could practise Falun Gong freely.

2. The applicant’s protection visa application was refused. The Minister’s delegate essentially did not accept that she was a practitioner of Falun Gong on credit grounds. The delegate further noted the delay in applying for the protection visa and considered that this suggested that she did not depart China due to the Chinese authorities’ interest in her Falun Gong practices. The delegate also noted that there was no evidence, other than her assertion, that she was a member of a Falun Gong association in Australia and any claimed participation in activities was limited. Insofar as the applicant had been involved in such activities, the delegate formed the view that these had been engaged in for the sole purpose of strengthening her claims and were therefore disregarded in accordance with s.91R(3) of the Migration Act 1958 (Cth) (Migration Act).

3. Before the Tribunal, the applicant provided a statutory declaration from a person described as a Falun Gong practitioner and a supervisor at a bookshop.  She stated that the applicant had attended activities at the bookshop between 1 March and 9 March 2011 and that the applicant was a genuine Falun Gong practitioner. The applicant gave oral evidence before the Tribunal concerning her Falun Gong activities and her claimed difficulties in China as well as her father’s arrest.

4. There was a long delay following the first Tribunal hearing. Due to the introduction of new provisions in the Migration Act providing for an additional criterion for the grant of a protection visa on 24 March 2012 (commonly referred to as the complementary protection provisions), the applicant was invited to make submissions addressing those criteria and also invited to attend a further hearing[1].

   [1] Relevant Documents (RD) 74-5

5. The applicant provided submissions[2] in response to that invitation by letter dated 13 December 2012.

   [2] RD 78-104

6. A further hearing occurred on 17 December 2012, however, the hearing had to be further adjourned as the applicant had not received a copy of the audio tape of the earlier hearing. The hearing resumed on 16 January 2013. The applicant gave further oral evidence regarding her experiences in China, the arrest of her father and her practice of Falun Gong in China and in Australia. The Tribunal referred to information contained in the applicant’s student visa application which appeared to be inconsistent with her claim that her father had been arrested and imprisoned for a lengthy period. The Tribunal discussed this issue with the applicant, relying on the provisions of s.424AA of the Migration Act. She was given the opportunity to respond to this information later, after an adjournment, or to respond in writing. However, the applicant elected to comment on the information during the hearing[3].

   [3] see [63] and [64] (RD 147)

Tribunal decision

1. The Tribunal did not accept that the applicant’s father had been arrested in 1999 on account of his Falun Gong practice, nor that he had been in prison since then.  This finding was based on the fact that the applicant had claimed at the first hearing that she had visited her father once while he was in prison, and produced a visiting certificate which, if true, indicated that she would have been about 17 when this occurred, but at the second hearing had said that she visited her father two or three times and that she had been around 14 the last time she visited. The discrepancies were such that the Tribunal did not accept her evidence regarding visiting her father as true. Furthermore, the Tribunal had regard to information in the applicant’s student visa application which indicated that her father lived with her and her mother and gave details of his employment and income.  The Tribunal had regard to other documentary evidence provided by the applicant to demonstrate her father was in prison, but considered it was outweighed by this evidence.

2. The Tribunal did not accept the applicant’s claims regarding her family’s involvement with Falun Gong, found that her father was not arrested as claimed, nor that the applicant had suffered discrimination while growing up as the daughter of Falun Gong practitioners.

3. The Tribunal also noted the contradictory evidence which the applicant gave at the hearing that she did not practice Falun Gong until 2011, as opposed to her original claims in support of her visa application that her family encouraged her to practice Falun Gong in secret in China.

4. In relation to the applicant’s claims that she practised Falun Gong in Australia, the Tribunal noted that she was able to answer questions about Falun Gong.  However, the Tribunal did not accept that she was a regular Falun Gong practitioner.  The Tribunal identified a number of matters which caused it to form this view.  First, the statutory declaration provided by the applicant only stated that she had been involved in activities between 1-9 March 2011.  Secondly, on her own evidence, she only began practising Falun Gong regularly in May 2011, some three years since her arrival in Australia, and, notably, around the same time that she lodged her protection visa application. Thirdly, after having given evidence that it was not considered important what time someone practices Falun Gong or where they practice, the applicant then claimed that she got up at 1.55am to practice, particularly in circumstances when she claimed that she then also had to wake at 5.00am to get to Kogarah to practice as that is where her mentor practiced.

5. The Tribunal did, however, accept that the applicant had been to a bookshop and been assisted by people there and may have attended some Falun Gong events and that she knows the Falun Gong exercises and its guiding principles. However, the Tribunal found that such activities constituted conduct engaged in for the sole purpose of strengthening her claims to be a refugee. Such conduct was therefore disregarded pursuant to s.91R(3) of the Migration Act.

6. The Tribunal found that the applicant did not have a well-founded fear of persecution and did not meet the refugee criterion for the grant of a protection visa.

7. In relation to its consideration of the complementary protection provisions, the Tribunal acknowledged that conduct which it had disregarded pursuant to s.91R(3) could not be so disregarded when considering the complementary protection provisions. However, the limited activities which the Tribunal accepted had been engaged in by the applicant were not considered to bring her to the adverse interest of the Chinese authorities on her return. The Tribunal found that the applicant did not meet the complementary protection criterion for the grant of a protection visa.

8. These proceedings began with a show cause application filed on 27 February 2013.  The applicant continues to rely upon that application but has augmented it.  The original application contains three purported grounds:

   1. RRT subjectively disregarded the absolutely genuine evidence before it.

   2. RRT made prejudicial errors in the decision on the application.

   3. please refer to the attachment

9. The reference at [3] to the attachment appears to be a reference to the affidavit which accompanied the original application.  There is a document attached to that affidavit headed “Application for Review” and dated 26 February 2013.  The document is in the nature of submissions in support of the application. 

10. The applicant augmented the application in the following ways.  On 18 June 2013 the applicant filed an affidavit which set out additional grounds for the application.  I treated that document as a supplementary application:

    1. The Tribunal and the primary decision maker erred in failing to recognize the principle of non-[refoulement] contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).

    2. The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of [lack] of bona fides.

    3. The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.

    4. The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8.

11. On 22 April 2013 the applicant filed an affidavit which attached a number of documents.  The first is headed “Attachment.”  I accepted that document as a submission.  The second is a statutory declaration made on 8 April 2013.  I declined to accept that as it was directed to supporting the applicant’s protection visa claims and it post-dated the Tribunal’s decision.  There follows three photocopies of licences apparently held by the applicant in Australia which I did not receive.  I received two household registration documents, being copies of the Chinese originals and English translations which were documents before the Tribunal.  Exhibit R1 is a letter from the Tribunal to the applicant dated 30 January 2013 which discloses that the Tribunal returned a number of documents to the applicant including two household registration books, and I am satisfied that those documents attached to the affidavit are household register documents as referred to by the Tribunal.  Finally, the affidavit annexes two colour photographs of a Falun Gong demonstration in the front of Parliament House in Canberra apparently taken in March 2013.  I declined to accept those photographs as evidence as they post-date the Tribunal decision. 

12. I also have before me as evidence the book of relevant documents filed on 20 March 2013. 

13. The applicant made detailed oral submissions today in support of her application.  She had the benefit of having read to her the Minister’s legal submissions prior to me coming on the bench.  The applicant mounted a detailed and sophisticated attack upon the Tribunal’s factual findings.  The submissions made by the applicant, however, do not in my view rise above a contest over the merits of the Tribunal decision.  As I explained to the applicant, if the Tribunal decision is a valid one, only the Minister can change it.  The applicant did not address in her submissions the propositions advanced in the grounds in her original application or in the supplementary documents except insofar as they contested the merits of the Tribunal decision.  Those grounds are addressed in the Minister’s written submissions.  The Minister’s submissions deal adequately with those grounds and I agree with them. 

14. In the application filed 27 February 2013, the applicant alleged that the Tribunal “subjectively disregarded the absolutely genuine evidence before it”, the Tribunal “made prejudicial errors in the decision on the application”, and then referred to an attachment. The attachment, which is more in the form of a submission, alleges that the Tribunal did not consider the matter on the basis of the evidence put before it, and made errors by not accepting some of her evidence. She also complained that the Tribunal disregarded a document which the applicant provided to demonstrate that she had visited her father in prison.

15. In an affidavit filed on 22 April 2013, the applicant included an attachment which purports to set out further submissions. The first matter raised in that document concerns the applicant’s evidence on the issue of the number of visits to her father while in prison. Much of what is stated in the paragraph numbered 1 in that document is, in reality, additional evidence attempting to explain the inconsistencies highlighted by the Tribunal on the issue of the applicant’s visits to her father in prison.  There is also an allegation concerning the way in which a question was interpreted to the applicant, therefore explaining her response.  None of these matters appears to have been raised during the hearing, despite these discrepancies being raised with the applicant.  Furthermore, if the applicant is seeking to argue that some error in translation occurred (and she did not assert that such an error occurred in her oral submissions), then no transcript has been filed to support such an allegation.  The factual basis for any assertion of procedural unfairness has not been made out.

16. The matters set out in the paragraphs numbered [2]-[5] and [7]-[8] merely cavil with the factual findings of the Tribunal on a number of issues and do not constitute proper grounds of review.  Paragraph [6] seeks to explain why the applicant ceased her studies in Australia which is not relevant to any legal issue in this application.

17. The applicant filed a further affidavit on 18 June 2013 which sets out further grounds of review. The first ground, which refers to the failure to consider non-refoulement, is misconceived.  The Tribunal found that the applicant was not owed protection obligations, therefore the issue of non-refoulement did not arise.

18. Grounds 2 and 3 appear to raise allegations of bias, which are without foundation.  The Tribunal found the applicant not to be a credible witness in relation to her claims of what had occurred to her and her family in China and gave detailed reasons as to why it came to this conclusion.  The Tribunal also gave detailed reasons as to why her activities in Australia were viewed as being solely for the purpose of strengthening her refugee claim.  Furthermore, as a number of judicial decisions have emphasised, such an allegation is a serious one to be brought, which must be clearly alleged and proved, and it is extremely rare for such an allegation to be made out relying solely on the written reasons for the decision under review[4].

    [4] see SBBS v Minister for Immigration [2002] 194 ALR 749 at [42]-[49]

19. Ground 4 is unintelligible. Part 8 of the Migration Act deals with judicial review and the jurisdiction of the Courts to review migration decisions and privative clause decisions. It has no relevance to any issue to be raised in relation to the decision of the Tribunal.

20. An issue which arose during the course of argument was the Tribunal’s consideration of the complementary protection criterion.  The applicant had claimed to have suffered physical harm at school and outside of school when she was attacked while riding her bike.  At [76] of its reasons[5], the Tribunal found, on the evidence before it, that it did not accept that the applicant was ever bullied, insulted or scorned when she lived in China on account of Falun Gong.  The applicant’s claims included claims of being beaten and having her nose broken. 

    [5] RD 153

21. The Tribunal did not specifically deal with that physical harm when considering the complementary protection criteria.  I have considered whether that absence discloses error.  The solicitor for the Minister took me to the applicant’s protection claims reproduced on pages 30 and 31 of the court book.  That statement refers to the claim of physical harm in the context of the applicant being a member of a family of Falun Gong practitioners.  On 10 October 2012 the Tribunal wrote to the applicant inviting her to appear before the Tribunal for the second hearing and specifically directed the applicant’s attention to the elements of the complementary protection criterion[6].  The applicant provided a statement apparently in response to that letter[7].  The applicant’s attention in that document was directed to her Falun Gong claims.  In that context it is understandable that the Tribunal also directed its attention to the applicant’s Falun Gong claims in dealing with the complementary protection criterion. 

    [6] See RD 74

    [7] RD 78-82

22. It probably would have been better if the Tribunal had specifically dealt with the applicant’s claims of physical harm as a child disconnected from the Refugee’s Convention nexus but, in circumstances where the asserted harm occurred while the applicant was a child attending school and it was not claimed that that harm would recur in circumstances unconnected with the applicant’s asserted practice of Falun Gong, I do not consider that the Tribunal fell into jurisdictional error by failing specifically to deal with the claim of past physical harm under the complementary protection criterion. 

23. I conclude that the applicant has failed to demonstrate that the Tribunal fell into jurisdictional error.  The Tribunal’s decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

24. In consequence of the dismissal of the application the Minister seeks an order for costs.  The Minister seeks costs fixed in the sum of $5,900.  The applicant did not wish to be heard on costs and addressed briefly the merits of my judgment.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,900.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  2 August 2013