SZTTU v Minister for Immigration

[2014] FCCA 1953

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1953

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – 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

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

First Applicant: SZTTU

Second Applicant: SZTTV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 88 of 2014

Judgment of: Judge Driver

Hearing date: 27 August 2014

Delivered at: Sydney

Delivered on: 27 August 2014

REPRESENTATION

The Applicants 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 applicants are 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 88 of 2014

SZTTU

First Applicant

SZTTV

Second 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 17 December 2013.  The Tribunal affirmed a decision of a Delegate of the Minister not to grant the applicants protection visas.  There are two applicants, who are a husband and wife.  They claim protection on the basis of the first applicant’s (the applicant wife) practice of Falun Gong.  References in this judgment to “the applicant” are intended to be references to her. 

2. The following statement of background facts is derived from the Minister’s written submissions filed on 20 August 2014.

3. The applicants are nationals of China. The first applicant is the wife of the second applicant.  The second applicant is included in the protection visa application as a member of the family unit.

4. On 30 August 2012, the applicant applied for a protection visa[1].

   [1] Court Book (CB) 1 - 49

5. On 21 December 2012, a Delegate of the Minster of Immigration refused to grant the protection visa[2].

   [2] CB 50 - 82

6. On 17 January 2013, the applicant applied to the Tribunal for review of the Delegate's decision[3].

   [3] CB 83 - 99

7. On 18 September 2013, the applicants appeared before the Tribunal to give evidence and present arguments[4].

   [4] CB 108 - 120

8. On 17 December 2013, the Tribunal affirmed the Delegate's decision[5].

   [5] CB 121 - 135

9. On 14 January 2014, the applicants commenced judicial review proceedings in this Court.

Applicants’ claims

1. The applicant claims to fear persecution in China on account of her “religion”. Specifically, the applicant claims that she and her family are Falun Gong practitioners.

2. The applicant's claims are set out in detail in the Tribunal's decision record[6].  However, her fear of harm is said to arise predominately from an incident that occurred on 14 May 2012 (the incident).  On this date, the applicant states that her parents secretly gathered with three other Falun Gong practitioners at their home in China.  The applicant was in Australia at the time and telephoned her parents. During the call, the police attended her parents’ house.  A policeman spoke to her on the phone and asked her name and where she was living.  Since that time, the applicant has not called her family again.  She found out later that, following the incident, her parents were arrested and detained for two weeks and that the police found Falun Gong materials that the applicant had sent to her parents.  The police “found” the hospital that the applicant had worked in (impliedly, in China) and told her to return immediately to that job or she would be in jeopardy.  She did not return to China and, consequently, lost her job at the hospital[7].

   [6] CB 126 - 127 [7] - [14]

   [7] CB 127 [15]

Tribunal decision

1. Having considered each of the applicant's claims, the Tribunal concluded that the applicant was not a credible witness. The Tribunal was concerned by the applicant's evidence and found that it was vague and contradictory in a number of crucial respects, inclusive of the following:

   a)it was implausible that the applicant fled China for fear of persecution, only to return six months later due to her parents' claimed ill health[8];

   b)if, in fact, the applicant's parents had been regularly detained, the applicant would not send them Falun Gong materials over the internet knowing that communications are monitored in China[9];

   c)the applicant recanted some of her evidence with respect to the incident in 2012 and the balance of her claims were not corroborated by her husband's evidence[10]. Accordingly, the Tribunal was satisfied that the events described did not actually happen;

   d)the applicant gave non-specific and inconsistent evidence in support of the claim that her parents are Falun Gong practitioners and had been detained by the Chinese authorities for that reason. The Tribunal considered that if the applicant's claims were true, she could be expected to recall the instances of her parents' detention in greater detail[11]; and

   e)the applicant had only a limited knowledge of the practices of Falun Gong[12].

   [8] CB 130 [33]

   [9] CB 130 [35]

   [10] CB 130 [35]

   [11] CB 130 [34]

   [12] CB 131 [40]

2. In light of the foregoing, the Tribunal found that there was no credible evidence to support a conclusion that the applicant practised Falun Gong in China or Australia, or that her parents were Falun Gong practitioners. 

3. The Tribunal thus found no relevant risk of harm to the applicant in China.  It concluded that there was not a real chance that the applicant would suffer serious harm in China for any Convention reason. Nor did it find that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there existed a real risk that she would suffer harm.

4. Accordingly, the Tribunal determined that the applicant was not a person with respect to whom Australia owed protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).

The present proceedings 

1. These proceedings began with a show cause application filed on 14 January 2014.  The applicants continue to rely upon that application.  Under the heading “Orders sought by Applicant” there are three paragraphs which reiterate the applicant’s claims for protection:

   1, I am a Chinese citizen and I am a genuine Galungong member.  I have been practicing for years and I have been warned to be put in prison if I continue this activity.

   2, I can not stop practicing Falungong since it has helped a lot with my health condition.  My partner and I can not go back to China since we are very scared to be sentenced.

   3, I have been actively practicing Falungong since I arrived in Australia.  I believe that Chinese government still look for me if I return.  My family told me not to go back since I will be facing danger. (errors in original)

2. Under the heading “The Grounds of the Application are”, there are three more paragraphs in which the applicants set out their disagreement with the Tribunal decision:

   1, I disagree with Immigration and RRT’s decision since I am a genuine Falungong member.  They did not consider that I will be in danger if I return.

   2, RRT did not consider that I am still actively practicing in Australia and it will also bring me a big trouble if I return home.

   3, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence (errors in original)

3. I received as a submission the applicant’s affidavit filed with the application on 14 January 2014.  

4. I received as evidence the court book filed on 21 March 2014. 

5. The applicants have had the opportunity since 4 March 2014 to file and serve an amended application and additional evidence.  They have not taken up that opportunity.  Only the Minister filed written submissions pursuant to orders that I made on 4 March 2014, which provided that further opportunity. 

6. The simple reiteration of the applicant’s claims for protection cannot form any assertion of jurisdictional error by the Tribunal.  Neither can the applicants’ disagreement with the outcome before the Tribunal support such an assertion.  While ground 3 asserts that the Tribunal decision was in some respect unreasonable, it is plain to me that the credibility findings of the Tribunal were open to it on the material before it and were logically based. 

7. In her oral submissions, the applicant asserted that she and her husband were given inadequate time at the Tribunal hearing to explain their claims.  She said that the Tribunal member arrived about half an hour late, and left about half an hour early.  She also said that the hearing was truncated because the interpreter had to leave.  She conceded that she had not raised any concern at the Tribunal hearing.  Neither was that concern raised in the present application as a ground of review. 

8. Pages 108 and 109 of the court book contain the administrative hearing record of the Tribunal hearing.  Page 108 shows that the interpreter arrived at 10.36am and started performing some form of duty at 10.45am.  The interpreter finished that duty at 2.35pm.  Page 109 of the court book discloses that the hearing opened at 11.36am.  That supports the proposition that the member had been delayed.  There was an adjournment between 12.41pm and 12.50pm.  The applicant said that this was because she was distressed.  The hearing concluded at 2.33pm.  The record shows that the hearing ran for a little short of three hours.  The applicants doubted that the hearing record for starting and finishing times was accurate.  They suggested that I might check the sound recording of the hearing to check the starting and finishing times.  However, they had not brought the sound recording with them and they were unable to tell me what it might disclose.  I have no reason to doubt the accuracy of the hearing record in the court book.  There is nothing in the material before me to support the proposition that the hearing opportunity afforded the applicants was not a fair one. 

9. I otherwise agree with and adopt the Minister’s submissions in relation to the grounds of review.

Assertions 1, 2and 3

1. Assertions 1, 2 and 3 do not establish any actual contentions. Nor do they seek to explain how the Tribunal has erred in its decision.  Instead, they merely re-iterate the applicant's claims for protection, and, in so doing, seek to engage the Court in merits review.  This Court is not a forum that can adjudicate the merits of a case[13].

   [13] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

Ground 1

1. Ground 1 is constituted by two statements.  First, the applicant states that she disagrees with the Tribunal's decision.  This statement merely quarrels with the outcome of the hearing and must be dismissed on that basis.  Secondly, the applicant alleges that the Tribunal did not consider that she would be in danger if she were to return to China.  The Tribunal's Decision Record discloses that the Tribunal engaged in a lengthy and comprehensive examination of the applicant's claims to fear harm in China.  Indeed, the majority of the Tribunal's decision is referrable to this consideration. Having rejected the factual matrix upon which the applicant's fear of harm relied, it followed that the applicant would not be harmed in China for the reasons that she claimed. This finding was reasonably open on the material before the Tribunal, and, as such, it is not open to review by this Court.

Ground 2

1. Ground 2 alleges that the Tribunal did not consider that the applicant was actively practising Falun Gong in Australia, and that this will cause “trouble” for her in China.  Contrary to this Ground, the Tribunal considered the first part of these claims, and held that there was “no credible evidence to support a conclusion that the applicant practiced Falun Gong in Australia”[14]. This finding subsumes the question of whether the applicant faces harm in China as someone who claims to have practiced Falun Gong in Australia.

   [14] CB 131 [41]

Ground 3

1. By Ground 3, the applicant contends that the Tribunal's decision to reject her application because of the lack of supporting evidence was “unreasonable”.

2. The complaint in this ground is factually misconceived. A fair reading of the Tribunal's decision record reveals that the Tribunal rejected the applicant's claim for a number of reasons, one of which was the absence of corroborating evidence. 

3. In any event, the Tribunal is entitled to draw inferences from, and make conclusions with respect to, the absence of evidence submitted in support of a claim. The issue of what weight is to be given to evidence is a question for the Tribunal alone. A court of review cannot disturb those findings unless they were not open to the Tribunal on the material before it.[15]  I have found that the Tribunal’s finding were open to it.

   [15] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

4. I conclude that the applicants have not established an arguable case of any jurisdictional error by the Tribunal.

5. 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).

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicants did not wish to be heard on costs.

7. I will order that the applicants are 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 thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 August 2014