SZTQF v Minister for Immigration

[2014] FCCA 1656

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1656

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

Kopalapillai v Minister for Immigration (1998) 86 FCR 547

Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405

Applicant: SZTQF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3048 of 2013

Judgment of: Judge Driver

Hearing date: 25 July 2014

Delivered at: Sydney

Delivered on: 25 July 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr L d'Avigdor

Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3048 of 2013

SZTQF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 7 December 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 made claims of a fear of persecution because of his past association with a Falun Gong practitioner.  Background information relating to the applicant’s claims for protection and the Tribunal decision on them are set out in the Minister’s outline of submissions filed on 17 July 2014.   

2. On 29 April 2012, the applicant, a citizen of the China, arrived in Australia on a student visa.

3. On 31 October 2012, the applicant applied for a protection visa.

4. On 4 March 2013, a Delegate of the Minister refused the application.

5. On 26 March 2013, the applicant applied to the Tribunal for review of the Delegate's decision.

6. On 5 November 2013, the applicant appeared before the Tribunal to give evidence and present arguments.

7. On 7 November 2013, the Tribunal affirmed the Delegate's decision.

8. On 6 December 2013, the applicant applied for judicial review of the Tribunal's decision.

Applicant's claims

1. The applicant claims to fear persecution because of the assistance he gave to a Falun Gong practitioner in China.  In summary, the applicant claimed that:[1]

   a)the applicant was friends with Chen Yu, a Falun Gong practitioner. Chen Yu taught the applicant's mother Falun Gong when she was ill, and the applicant came to learn about Falun Gong from Chen Yu;

   b)on 13 August 2011, the Chen Yu visited the applicant after midnight. He told the applicant that he was secretly distributing Falun Gong brochures with two fellow practitioners when they “met some joint-defence team member”.  Chen Yu ran away, but his two fellow practitioners were caught. The applicant allowed Chen Yu to stay at his house for a few days. The applicant drove him to a coach station on 16 August 2011, and sent him to Xiamen with some money;

   c)on 14 September 2011, two policemen searched the applicant's house and took him to Gaishan police station. The applicant was interrogated about his relationship with Chen Yu. The police put “white paper” on him and beat him with a police stick, and forced him to squat until he could not stand and fell to the ground. The applicant insisted that his relationship with Chen Yu was simply a “normal friendship”. The police let him go after 48 hours as they found no evidence connecting him to Falun Gong. The police told the applicant he would be in trouble if they found proof that he was involved in Falun Gong;

   d)the applicant fears that if the police found Chen Yu, he would confess and the applicant would be imprisoned. The applicant sought to go overseas, and hired an agent to organise a visa to Australia; and

   e)on 20 September 2012, five months after the applicant arrived in Australia, the applicant's wife informed him that she had been taken into the Gaishan police station. After being threatened, she informed the police that the applicant had let Chen Yu stay for three days. The police issued a notice requiring him to return to China for investigation.

   [1] Decision Record (DR) [10].

The Tribunal's findings

1. The Tribunal found that the applicant's evidence was not credible for the following reasons:

   a)the applicant had to be prompted by the Tribunal to provide information about issues that were central to his claims, and his responses were brief and expressed in very general terms;[2]

   b)aspects of the applicant's oral testimony lacked the same detail as his written claims.[3] The applicant was only able to remember certain dates contained within his written claims with precision. The Tribunal was concerned that the applicant was trying to recall dates contained in his written statement rather than recollecting events that actually happened to him.[4] This concern was strengthened by mistakes the applicant made in his evidence. For instance, the applicant confused events that happened months ago with events that happened over a year ago;[5]

   c)the applicant revealed a tendency to shift his evidence in an attempt to overcome the Tribunal's concerns;[6]

   d)the applicant gave contradictory and shifting evidence about when and how he was provided with a copy of his summons from the police. The Tribunal found this suggested that he had not been truthful about how he acquired the documentation presented to the Tribunal.[7] It put to the applicant that fraudulent documentation is readily available in China. In these circumstances, the Tribunal gave the applicant's documentary evidence little weight;[8]

   e)the applicant was able to leave China on a valid passport issued in his own name which strongly suggested that he was not of adverse interest to the Chinese authorities at the time he left China;[9] and

   f)it was improbable that the applicant would be motivated to flee China after being questioned by the authorities for sheltering a Falun Gong practitioner, but would not turn his mind to the risks his wife might face. This included the risk of having his wife visit the wife of Yu Chen.[10]

   [2] DR [20].

   [3] DR [21].

   [4] DR [22].

   [5] DR [23].

   [6] DR [24].

   [7] DR [26].

   [8] DR [28].

   [9] DR at [27].

   [10] DR at [29].

2. The Tribunal concluded that the applicant had fabricated the entirety of his claim, and did not accept any of it. Accordingly, the Tribunal found that there was no chance that the applicant would face serious harm for the purposes of s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act) or significant harm for the purposes of s.36(2)(aa) of the Migration Act.

The present application

1. These proceedings began with a show cause application filed on 6 December 2013.  There are four grounds in that application:

   1. When assessing the credibility of my claims, although the Refugee Review Tribunal (the Tribunal) is not required to accept uncritically any or all of the claims made in my applicant, the benefit of the doubt should be given as I am generally credible but unable to substantiate all of my claims.  The Tribunal ignored my evidence and wrongly concluded that I had not attracted the adverse attention of the Chinese authorities.

   2. The Tribunal made unreasonable comment about my evidence.  It was described as brief and expressed in very general terms.  This comment did not reflect the fact that I provided detailed evidence during the hearing.  I evidenced that I helped my friend who was a leader of Falun Gong.  I confirmed the name of my friend and his Falun Gong activity.  I also provided the evidence the police were looking for me because they believed me to be a kind of accessory.

   3. The Tribunal unfairly ignored the complication nature that my wife was not arrested by the police.  My wife had been questioned by the police because the police targeted me more important.  It is more than usual in China that the husband is the head of the family and responsible for the whole family.  Thus, the police were keen to catch me other than my wife.  Another reason the police made no harm to my wife might be she was the main connection I had in China.  The police wanted to use my wife as bait to catch me.

   4. The Tribunal did not exactly follow 36(2)(aa) of the Act.  As a non-practising supporter of Falun Gong, I will face significant harm if returning to China.  The Tribunal wrongly undervalued the evidence I got adverse attention of authorities in China in the past and that my wife had been subject to police questioning after I left China. (errors in original)

2. The applicant continues to rely upon that application. 

3. The application is supported by a short affidavit filed with it.  I received paragraphs 1 and 2 of that affidavit as evidence and paragraphs 3 and 4 as a submission.

4. I also have before as evidence the court book filed on 14 February 2014. 

5. The Minister’s solicitor tendered additional documents which became exhibit R1. 

6. As I explained to the applicant during oral argument, the main difficulty with his application is that his grounds of review cavil with the merits of the Tribunal decision. On my reading of the court book, the Tribunal met its statutory obligations under the Migration Act.

7. The applicant told me from the bar table that he has difficulty expressing himself and he was nervous before the Tribunal.  That may be so, but the Tribunal does not record any particular problem being drawn to its attention.  There is nothing before me to indicate any procedural unfairness.  The applicant also told me that he had difficulty in the hearing before this Court because he speaks the Fuzhou dialect.  He says that he had requested an interpreter fluent in that dialect but was told one could not be found.  I have not been able to corroborate any such request from the court file.

8. In his application to the Court and the supporting affidavit, the applicant claimed to speak Mandarin.  He appeared before me in person with the assistance of a Mandarin interpreter on 29 January 2014.  He completed an information sheet on that day in which he requested a Mandarin interpreter for this hearing.  The applicant indicated to me today that he had some interaction with someone at the court registry where he was told that a Fuzhou interpreter could not be found.  That is, in my view, unlikely.  I have no record of any such request being made to me.

9. I agree with and adopt the Minister’s submissions concerning the four grounds of review. 

10. By Ground 1, the applicant seeks to review the merits of the Tribunal's decision. Specifically, Ground 1 seeks to challenge the accuracy of the Tribunal's credibility findings. The merits of any claim to protection, including matters going to the weight to be given to claims or evidence, are for the Tribunal to determine. Judgments as to the credibility of an applicant’s evidence are matters for the Tribunal and are not open to challenge on review.[11]  Ground 1 also makes an unparticularised claim that the Tribunal ignored the applicant's evidence. I am satisfied that the Tribunal had regard to all of the evidence and claims before it.

    [11] Re Minister for Immigration; Ex parte Durairajasingham (Durairajasingham) (2000) 74 ALJR 405 at [67] per McHugh J.

11. By Ground 2 the applicant challenges the reasonableness of the Tribunal's findings. There is nothing unreasonable or illogical in the Tribunal's findings which were open to it on the material before it.

12. By Ground 3, it appears that the applicant's complaint is with the Tribunal's finding at [29]. This ground must fail. First, it appears that the applicant has misunderstood the nature of the Tribunal's finding. The Tribunal did not concern itself with why the applicant's wife had not been arrested. Instead, its focus was the applicant's apparent lack of concern for his wife, and how this bore upon his credibility. Secondly, Ground 3 puts forward an explanation for the applicant's lack of concern for his wife. This explanation does not appear to have been put before the Tribunal and is not relevant to these proceedings. To the extent that the applicant did provide reasons to the Tribunal for his lack of concern, the Tribunal’s reasons indicates that the Tribunal did in fact consider them. Essentially, the applicant is again seeking a review of the merits of the Tribunal's decision.

13. With respect to Ground 4, the Tribunal did not misapply the law in its treatment of complementary protection. This ground seeks to challenge the conclusion reached by the Tribunal, and the weight it gave to the applicant's evidence. Assessments of credibility are matters for the Tribunal par excellence and ought not to be disturbed by the reviewing Court.[12] Accordingly, Ground 4 is without merit.

    [12] Durairajasingham at [67]; Kopalapillai v Minister for Immigration (1998) 86 FCR 547

14. The applicant is unable to point to any arguable case of jurisdictional error by the tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant appeared distressed and declined to make any further submissions.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 July 2014