SZTWR v Minister for Immigration & Border Protection

[2014] FCCA 1913

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1913

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal gave “lawful consideration” to all claims made by the applicant – 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
NAJT v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 147 FCR 51
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
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

Applicant: SZTWR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 347 of 2014

Judgment of: Judge Emmett

Hearing date: 25 August 2014

Date of Last Submission: 25 August 2014

Delivered at: Sydney

Delivered on: 25 August 2014

REPRESENTATION

Counsel for the Applicant: Mr Leonard Karp

Solicitors for the Applicant: ProActive Legal

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 347 of 2014

SZTWR

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 22 January 2014 and handed down on 23 January 2014 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner, who fears harm for that reason from the authorities in China.

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, a summary of the decision of a 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 August 2012 having departed legally from China on a passport issued in his own name and a visitor visa issued on 14 July 2014.

2. On 31 October 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 11 March 2013, the Delegate refused the applicant’s application for a protection visa.

4. On 3 April 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 23 January 2014, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 17 February 2014, 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. Sections 36(2A) and 5 of the Act define “significant harm.”

7. 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.

8. 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.

9. 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, which asserted as follows:

   a)The applicant has been a Falun Gong practitioner since 1998. The applicant claims to have practised with “more than ten other practitioners”.

   b)The applicant was arrested by the police and detained in gaol after someone informed on him for distributing Falun Gong materials. Over the course of his detention, the applicant was “humiliated and hit, made to attend “brainwash class”, required to watch anti-Falun Gong videos and forced to write three statements disavowing Falun Gong and informing on other practitioners.

   c)Whilst the applicant was in detention his eyes were injured and he also “contracted serious intestinal infectious diseases”. The applicant stated that the authorities’ fear of this infectious disease spreading led them to release him from gaol to seek treatment.

   d)After his parole period expired, the applicant was sacked by his state-owned “original employer” and found it hard to obtain employment because of his “Falun Gong history”.

   e)Following his release from gaol, the applicant was made to report to the local police station on a regular basis. The police stopped surveilling the applicant after six months because they found that he did not engage in any activities related to Falun Gong. However, despite this, the applicant claimed that he is required to “attend the brainwash classes” when the “annual Falun Dafa Day comes and whenever there is a big political event”.

   f)In 2003, two people with whom the applicant had previously practiced Falun Gong were arrested and sent to labour camp.

   g)The applicant noted the difficulties that affected his family because of his association with Falun Gong; his child “couldn’t get into good school”; his wife lost her job and their relationship became “very tense.”

   h)In 2007, the applicant travelled to Singapore, Malaysia and Thailand to meet with his Falun Gong instructor, who had joined a group dedicated to “fighting against prosecuting Falun Gong practitioners.” On the request of his instructor, he and his fellow Falun Gong practitioners collected evidence of their “experiences of prosecutions” and sent these materials overseas to the instructor.

   i)In 2012, one of the Falun Gong practitioners with whom the applicant had been sending materials overseas to the instructor was arrested, his home searched and computer taken away. This led the applicant not to return to his home and instead go to “live elsewhere” with one of the other Falun Gong practitioners.

   j)The applicant claimed that the Falun Gong practitioner with whom he went in to hiding was tricked into going back home by the police and arrested. This increased the applicant’s fear of being “disclosed or arrested at any time.”

   k)Since his arrival in Australia, the police have been to the applicant’s home in China and investigated his wife. The applicant was instructed to return to China “as soon as possible to report to authority”.

The Delegate’s decision

1. On 5 March 2013, the applicant attended an interview with the Delegate.

2. On 11 March 2013, 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 and does not meet the alternative complementary protection criterion.

3. In making this decision, the Delegate made the following findings:

   a)The fact that the applicant was able to depart China on a passport in his own name indicated the his claimed fear of Chinese authorities was not well-founded as country information suggested that the applicant would not have been able to do so were he of interest to the Chinese authorities.

   b)The applicant’s delay in lodging his application for a Protection visa upon his arrival in Australia suggested he did not have a well-founded fear of returning to China.

   c)The combined effect of the applicant having returned to China, legally departed China twice, and the delay in lodging his application for a Protection visa, led the Delegate to conclude that the applicant was not a genuine Falun Gong practitioner. The Delegate found that the applicant’s practice of Falun Gong whilst in Australia was carried-out for the sole purpose of enhancing his visa application.

The RRT’s review and decision

1. On 5 April 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 4 Septembers 2013, 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 31 October 2013 to give oral evidence and present arguments.

3. On 31 October 2013, the applicant attended the RRT hearing and gave evidence.

4. 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.

5. The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.

6. The RRT found the applicant was not a witness of truth.

7. The RRT found that there was not a “real chance or real risk” that the applicant “will suffer harm amounting to serious or significant harm in his country for the reasons that he claims if he returns to his country.”

8. The RRT found that the applicant was not a Falun Gong practitioner as he had claimed; that he had not been “arrested and/or detained by authorities in his country”. As a consequence of these findings, the RRT concluded that the applicant’s family had not been harassed by police in China because of their “connection or relationship with the applicant.”

9. The RRT found that the applicant gave “confused evidence” about what had happened to him in China. This included contradictory statements about when he became of interest to the authorities, when he was detained for the first time, and when he lost his job. When the RRT asked the applicant about the apparently contradictory nature of his statements on these issues, he said that he “forgot” and that “there were too many questions and he was confused.” The RRT found that given the significance of being detained and losing one’s job, it was unlikely that the applicant would have “forgotten or overlooked this event later in the hearing”. 

10. The RRT found the apparent ease with which the applicant obtained travel documents and departed, and then returned to China, to be inconsistent with his claims to fear persecution. The RRT noted that the applicant had departed China twice, once in 2007 and once in 2012, using a passport in his own name, “which was issued without difficulty to him in 2007”. The RRT further noted that the applicant had been able to live at his usual address and work in China for many years prior to travelling to Australia.

11. The RRT put these concerns to the applicant and described his response as “confused and at times inconsistent”. The RRT stated that the applicant gave a variety of explanations as to why he was able to continue to live at his address, obtain work and travel in his own name.

12. The RRT also considered the veracity of a document produced by the applicant, which he claimed pertained “to his arrest in China in 2001.” While the RRT accepted that the document contained the information that the applicant said it did, the RRT viewed the document in the light of its broader finding that the applicant was not a witness of truth, and also in the context of country information regarding the “prevalence of document fraud in China”. This led the RRT to determine that the document was not reliable evidence of the applicant’s claims to have been arrested and detained for the reasons he claimed.

13. Regarding the applicant’s assertion that he was a Falun Gong practitioner, the RRT accepted that the applicant had a “reasonable” knowledge of Falun Gong and had “practiced Falun Gong in Australia and has participated in Falun Gong activities in Australia”. The RRT further accepted that the applicant’s witness at the RRT hearing and other Falun Gong practitioners believed that the applicant was a “genuine Falun Gong practitioner” and that his association with Falun Gong had caused him to face difficulties in China. However, despite these findings, the RRT believed that the witnesses had no independent knowledge of the applicant’s life in China and had instead relied upon statements made by the applicant himself as the source of their evidence. Given the RRT’s concerns with the truthfulness of the applicant more generally, it found that the witness statements were not “impartial” and were “unreliable evidence that the events relayed to them by him actually took place.” This led the RRT not to give any weight to the evidence provided by the witnesses and Falun Gong practitioners about what happened to the applicant in China.

14. The RRT accepted that the applicant had engaged in Falun Gong practise and activities in Australia. However, the RRT found that such conduct was entered into for the purpose of strengthening his refugee claims. Accordingly, the RRT determined to disregard that conduct in considering whether the applicant has a well-founded fear of persecution in China for a Convention-related reason.

15. Having rejected the applicant’s claims of past harm in China, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention-related reason were he to return to China. The RRT concluded that the applicant did not have a well-founded fear of persecution in China and for this reason the applicant was not a person to whom Australia owed protection obligations.

16. 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 there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, China, there is a real risk that the applicants would suffer significant harm. As such, the RRT concluded that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

17. Accordingly, having determined 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, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr. Leonard Karp, of counsel.

2. At the commencement of the hearing, Mr. Karp confirmed that the applicant relied on the ground contained in the Further Amended Application, filed on 7 May 2014, as follows:

   “1. The Tribunal made a jurisdictional error in failing to consider give lawful consideration to a claim that clearly arose on its own findings and the information before it.

   Particulars

   (a) That the applicant was a genuine Falun Gong practitioner in Australia, despite not have been whether or not he was one in China.”

3. In support of the ground, Mr. Karp contended that the RRT had not considered the extent to which the applicant practised Falun Gong in Australia and the nature of his practice in Australia in light of the evidence of the witness he called and the references upon which he relied. Mr. Karp submitted that the RRT should have considered the duration and frequency of the applicant’s Falun Gong practise in Australia. Mr. Karp submitted that the RRT approached the matter on the basis that because the applicant was not a genuine Falun Gong practitioner in China, therefore he was not a genuine Falun Gong practitioner in Australia and that his activities in Australia were undertaken for the purpose of strengthening his refugee claims.

4. Mr. Karp submitted that the RRT’s reasoning process raises concerns about the extent to which the RRT considered the applicant’s motives for his conduct in Australia and the evidence in support. Mr. Karp submitted that there was no consideration of the evidence of supporting witnesses by the RRT in the context of considering whether the applicant was a genuine adherent to Falun Gong in Australia. Mr. Karp submitted that the evidence of the applicant’s witnesses was to the effect that the applicant practised Falun Gong several times a week and that he studied and meditated.

5. However, a fair reading of the RRT’s reasons makes clear that the RRT did consider whether the applicant’s witnesses were capable of corroborating the applicant’s claims of past harm and Falun Gong practise in China and concluded that they did not. The RRT referred specifically to the written statement of a witness and fellow Falun Gong practitioner in Australia that the applicant had difficulties as a Falun Gong practitioner in China and was held in custody and questioned about those practices and activities in China.

6. The RRT accepted that the applicant’s witnesses considered the applicant to be a genuine Falun Gong practitioner who had experienced difficulties for that reason in China. The RRT also accepted that the applicant has a reasonable knowledge of Falun Gong and has practised Falun Gong in Australia and has participated in Falun Gong activities in Australia.

7. However, given the RRT’s adverse credibility findings in respect of the applicant’s claims, the RRT found that the witnesses’ statements about what the applicant told them happened to him in China were neither impartial nor reliable evidence that such events took place. The RRT therefore concluded that it placed no weight on the evidence of the applicant’s witnesses about what happened to the applicant in China.

1. Mr. Karp referred the Court to NAJT v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 92-3 in support of the proposition that a decision-maker must at least “really and genuinely” give consideration to witnesses supporting evidence. However, in NAJT, the Court noted that the decision-maker at “no point provided any reason for depreciating [the witness’s] evidence”.

2. The RRT made no such error in the case before this Court. As is clear from the above, the RRT referred specifically to the evidence of the applicant’s witnesses and gave reasons as to why it placed no weight on that evidence as supportive of the applicant’s claims to have a well-found fear of persecution in China.

3. 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). 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)

4. Further, 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).

5. Despite having found that the applicant is not a genuine Falun Gong practitioner and having comprehensively rejected the applicant’s claims to have been so in China and to have suffered harm for that reason, the RRT accepted that the applicant had engaged in Falun Gong practice and activities in Australia. The RRT then considered the applicant’s motivation for his activities in Australia and concluded that they were engaged in by the applicant for the purpose of strengthening his claim to be a refugee. Having made that finding, in accordance with s.91R(3) of the Act, the RRT disregarded the applicant’s Falun Gong conduct in Australia in determining whether the applicant has a well-founded fear of persecution in China for a Convention-related reason.

6. Mr. Karp submitted that in considering the applicant’s motivation for Falun Gong conduct in Australia, the RRT should have considered the evidence before it of the frequency, duration and detail of the applicant’s Falun Gong practice in Australia, including the evidence of his witness to that effect.

7. In support, Mr Karp read the affidavit of Da Wei David Gu, affirmed 6 May 2014, annexing a transcript of the RRT’s hearing. The transcript discloses that the RRT explored with the applicant in some detail his Falun Gong practice in Australia, which it ultimately accepted. The evidence of the applicant’s witness was to the effect that the witness saw the applicant at Falun Gong practice a few times a week.

8. Mr. Karp submitted that this evidence was not considered by the RRT. However, the RRT states in its decision record that it had regard to all of the evidence before it. In the circumstances, I do not accept that the RRT did not consider that evidence. In any event, it was not probative of whether the applicant’s Falun Gong practice in Australia was motivated by something other than to strengthen his refugee claims.

9. The RRT’s rejection of the applicant’s witnesses’ evidence is in the context of its comprehensive adverse credibility findings made in relation to the applicant’s claims to have suffered harm in China by reason of being a Falun Gong practitioner. The reasons for the RRT’s adverse credibility findings include inconsistencies in the applicant’s own evidence, which it discussed with the applicant at the hearing; its finding that the applicant was not of interest to the authorities in China at any time given that the applicant was able to leave China without difficulty using a passport in his own name; and that the applicant had exited China in 2007 and returned in the same year. The RRT did not accept the various explanations given to it by the applicant for concerns that it raised with him and noted the exchanges it had with the applicant in some detail. The RRT’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave.

10. In the circumstances, the RRT gave “lawful consideration” to all claims before it.

11. Accordingly, the ground for judicial review is 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 and a further witness at a hearing; and, had regard to all material provided in support, including other witness statements. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard.

2. 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.

3. 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.

4. 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.

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

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  25 August 2014