SZUDM v Minister for Immigration

[2014] FCCA 3207

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3207

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal Tribunal – no arguable case raised for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 476

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13, Part 44

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 40
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265

First Applicant:	SZUDM
Second Applicant:	SZUDN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 877 of 2014

Judgment of: Judge Nicholls

Hearing date: 22 October 2014

Date of Last Submission: 22 October 2014

Delivered at: Sydney

Delivered on: 22 October 2014

REPRESENTATION

Applicant: First applicant in person and on behalf of the second applicant

Solicitor for the Respondents: Ms M Stone of DLA Piper Australia

ORDERS

1. The application made on 1 April 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants pay the first respondents costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 877 of 2014

SZUDM

First Applicant

SZUDN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 1 April 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 March 2014, which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. The following background can be discerned from a bundle of relevant documents in evidence before the Court (“the Court Book” – “CB”). I also note that I granted leave for the filing in Court of a supplementary Court Book (“SCB”), which is a copy of a letter dated 22 January 2014 from the Tribunal to the applicant. The copy of that letter should have been included in the Court Book, but for whatever reason was omitted.

2. The letter was an invitation to the applicant to comment on, or respond to, certain information, and is identical in terms to the letter sent to the second applicant on the same date (see CB 136 to CB 139). I note that the applicant responded to the letter (see SCB and CB 140 to CB 141).

3. The applicants are citizens of the People’s Republic of China (“China”). The first named applicant (“the applicant”), arrived in Australia on 25 March 2012 as the holder of a student visa. She applied for a protection visa on 28 November 2012 (CB 1 to CB 26).

4. The applicant’s claims to protection were set out in a written statement attached to her application (CB 27 to CB 32). She claimed to fear harm in China because of her practice of Falun Gong.  She gave an account of how she came to take up this practice following the birth, out of wedlock, of her child. She claimed to have been subsequently arrested by police and interrogated because of her involvement with Falun Gong, and her distribution of Falun Gong material. She claimed also to have been denied employment. Further, that she practised Falun Gong in Australia and that, as she said, “spies” monitored such activities in Australia. 

5. The second named applicant (“the second applicant”) before the Court is the applicant’s husband. He was subsequently included in the application for the protection visa on 5 April 2013 as a member of the applicant’s family unit (CB 55 to CB 61).

6. The delegate refused the application on 31 July 2013. After interviewing the applicant, the delegate found that the applicant was not a genuine Falun Gong practitioner. Further, the delegate found that she had not come to the adverse interest of the Chinese authorities (CB 87).

The Tribunal

1. The applicants applied for review to the Tribunal on 27 August 2013 (CB 92 to CB 97).  They attended a hearing before the Tribunal on 14 January 2014 (CB 128). At that hearing the second applicant told the Tribunal he also practised Falun Gong in Australia ([12] at CB 147). Following the hearing, the Tribunal wrote separately to both applicants by letters dated 22 January 2014 (CB 136 to CB 139 and SCB).

2. The letters invited comment on, or a response to, certain information that the Tribunal said would be the reason, or a part of the reason, for affirming the delegate’s decision. This information included what was provided at the interview with the delegate by the applicant concerning the circumstances of her departure from China, addresses in China provided by her in her application for the student visa, and at the interview with the delegate.

3. It made reference to evidence given by the second applicant at the hearing with the Tribunal concerning his Falun Gong practice and, further, information concerning the Tribunal’s investigation of a particular website which the applicant had referred to in her evidence before the Tribunal concerning an aspect of her Falun Gong practice. The Tribunal put them on notice of the relevance of this information to the outcome of the review.

4. The Tribunal found that, while the applicant displayed a reasonable level of knowledge about Falun Gong, that she was, nonetheless, not a Falun Gong practitioner, and that her claims had been fabricated.  It also found that the second applicant was not a Falun Gong practitioner ([17] at CB 147).

5. The Tribunal gave reasons for this conclusion. The reasons arose from the Tribunal’s concerns and findings about the applicant’s evidence concerning a number of matters. These were the timing of the applicant’s departure from China and the circumstances around this departure ([18] at CB 147 to CB 148), and inconsistencies between the evidence of each of the applicants concerning the second applicant’s practice of Falun Gong ([19] at CB 148 to CB 149). The Tribunal found “…that both have memorised and learnt critical details…” about the applicant’s claimed fear ([19] at CB 148 to CB 149).

6. Further, the Tribunal had concerns about why the applicant did not tell her husband about her Falun Gong practice until after he proposed marriage ([20] at CB 149 to CB 150), and about the applicant’s evidence concerning her claimed arrest and detention in March 2010. The Tribunal had further concerns about certain subsequent events concerning her claim that her Falun Gong mentor featured on a Falun Gong video available on the internet ([21] at CB 150), and the applicant’s failure to assist her mentor ([22] at CB 150 to [23] at CB 151). In addition, the Tribunal had concerns about the applicant’s evidence and claims about her various residences in China and her household registration ([26] at CB 151 to CB 152), the claimed circumstances in which the applicant said she met her Falun Gong mentor ([27] at CB 152), and the delay in applying for a protection visa after arrival in Australia ([28] at CB 152 to CB 153). 

7. The Tribunal concluded that the applicant had been “untruthful in her evidence” and that the second applicant’s evidence lacked credibility ([30] at CB 153 to [31] at CB 154).  The Tribunal rejected the factual basis on which both applicants said they feared harm in China ([32] at CB 154).

8. As against the criterion for the grant of the protection visa set out at s.36(2)(a) of the Act, it disregarded their claimed Falun Gong conduct in Australia, as the Tribunal was not satisfied such conduct was done other than for the purpose of strengthening their refugee claims ([33] at CB 154). In relation to the criterion at s.36(2)(aa) of the Act, the Tribunal considered their claims on the basis that they did attend at a Falun Gong site in Australia, but it was, for reasons that it gave, not satisfied that there were substantial grounds for believing that there was a real risk of significant harm for this reason if they were to return to China ([36] at CB 154 to [37] at CB 155).

Application Before the Court 

1. The grounds of the application to the Court are in the following terms: 

   “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 practising 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 the original.]

2. The application to the Court also sets out orders sought by the applicants, and makes reference to these at two places.  In what could be described as the “usual” part of the application form under the heading of “Orders Sought by Applicants”, the applicants seek an order that the decision of the Tribunal be quashed. However, there is a second heading subsequently added in the application, “Orders Sought by Applicant”, and these are:

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

   2, I cannot stop practising Falungong, since it has helped a lot with my health condition.  I cannot go back to China since I am very scared to be sentenced. 

   3, I have been actively practising 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 the original.]

Before the Court

1. At the first Court date in this matter, on 30 April 2014, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. She indicated that the second applicant knew of her attendance. On that occasion an order was made setting down the matter for mention at a callover on 10 September 2014. Orders were made, amongst others, giving the applicants the opportunity to file an amended application and any evidence by way of affidavit in support of their grounds. The applicant was put on notice that if nothing further was filed, the Minister may seek an immediate show cause hearing on 10 September 2014, pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

2. On 10 September 2014 the applicant again appeared in person. She was assisted by an interpreter in the Mandarin language. In circumstances where nothing further had been filed by the applicants, the Minister sought that the matter proceed to a show cause hearing. I agreed, in the circumstances, that that was appropriate given the grounds of the application. I should note that the grounds, as indeed the “orders sought by the applicant”, appear to be grounds relating only to the applicant and not the second applicant. 

3. In any event, it became apparent at that time that the Minister had not properly served the applicants with the Court Book at the latest address provided by them as the address for service in these proceedings. Therefore, I adjourned that hearing until today to allow proper service and to give the applicants a reasonable opportunity to consider the material in the Court Book. 

4. At the hearing today the applicant again appeared in person.  She was assisted by an interpreter in the Mandarin language.  She explained that her husband, the second applicant, had attended outside the Court, but remained outside to look after their young child and that he knew that she would speak on his behalf. 

5. Given that the applicant remained unrepresented before the Court, I took the opportunity again to explain to the applicant that the issue before the Court involved the question of whether the Tribunal had fallen into “legal error”. In essence, that the Court could not be concerned with the merits of the claims to protection, but only with the lawfulness of the Tribunal’s decision. Given that the hearing was conducted pursuant to Part 44 of the FCC Rules, the specific question is whether the grounds of the application put before the Court raise an arguable case for the relief that the applicants seek.

6. When given the opportunity to address the Court, the applicant expressed her concern that, while the Tribunal member did raise a number of “questions” (concerns) with her at the hearing, and in writing, the Tribunal still rejected her “explanation”. The applicant suggested that the Tribunal did not have a thorough understanding of her background, and did not understand the political situation in China. She also acknowledged that she herself lacked legal knowledge, but had tried to get a lawyer to assist her.

The Issue

1. The issue before the Court today is whether the grounds of the application raise an arguable case for the relief that is sought. The applicants seek an order that the Tribunal’s decision be quashed. While it is not noted on the application form, I accept that the applicants would expect and seek, in those circumstances, that the matter be returned to the Tribunal for reconsideration. I will deal later with the second set of “orders sought by the applicant”. 

2. If the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed. I note that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. Ground one of the application asserts disagreement with the Tribunal’s finding that the applicant was not a genuine Falun Gong practitioner in China, and that the Tribunal did not consider that she would be in danger if she were to return. 

2. The difficulty for the applicant is that, on the evidence before the Court, the Tribunal did consider the applicant’s claims in this regard and rejected them. It did so on the basis of the evidence that was put before it. As I sought to explain to the applicant earlier in the hearing, these findings were reasonably open to the Tribunal on what was before it. The Tribunal gave reasons for the findings, which were probative of the material before it.

3. While the ground asserts the Tribunal’s error with reference only to the applicant, I note that the Tribunal proceeded in the same manner in relation to the second applicant.  As the Minister, in my view, correctly submits, ground one seeks impermissible merits review by this Court. This cannot be said in those circumstances, to raise an arguable case for the relief sought. 

4. Ground two asserts that the Tribunal did not consider that the applicant actively practised Falun Gong in Australia, and would face difficulty on return to China because of this. Again, while I note that the ground refers only to the applicant, I will address it as if the complaint was made in relation to both applicants. On the evidence before the Court, the Tribunal did consider the applicants’ claims that they practised Falun Gong in Australia. While it accepted that they attended and practised Falun Gong in Australia, the Tribunal found, first, for the purposes of the Refugees Convention, that this was done for the sole purpose of strengthening their refugee claims. It, therefore, disregarded this conduct for the purposes of s.91R(3) of the Act.

5. For the purposes of the complementary protection criterion, the Tribunal considered whether this practice would result in a real risk of significant harm on return. It found that this would not be the case. The Tribunal gave reasons for this.  Again, its findings were reasonably open to it. I cannot see that there is any error in the Tribunal’s application of the relevant tests in its consideration of the two criteria for the grant of the protection visa. In all, the ground, again, seeks impermissible merits review. No arguable case is evident. 

6. Ground three takes issue with the Tribunal’s adverse credibility finding in relation to the applicants. The ground appears to assert that there was an absence of evidence to support this finding.  It may be best to deal with this in two parts.

7. First, if this is an assertion disagreeing with the Tribunal’s findings as to the credit of the applicants’ claims, then here, again, the Tribunal’s findings in this regard, including its findings on credibility, were all reasonably open to it to make on what was before it, and it gave reasons.  This is simply a challenge to the Tribunal’s factual findings, including findings as to credit (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 40)

8. Second, it may be that ground three seeks to assert the Tribunal had concerns with the credibility of the applicants because of the “absence” of evidence. I understood the complaint to be that the Tribunal was unreasonable in its concern. Here, again, I agree with the Minister that, on any plain, let alone fair, reading of the Tribunal’s decision record, it cannot be said that the Tribunal disbelieved the applicant because of the absence of any corroborative evidence. I note that such disbelief in those circumstances may reveal jurisdictional error (Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041).

9. The Minister referred the Court to two parts of the Tribunal’s decision record. First, where the Tribunal noted that no supporting material had been provided in relation to one aspect of the claim. That is, the applicant’s claimed attendance at Falun Gong practice sites in Australia ([30] at CB 153). Nonetheless, the Tribunal accepted that the applicant had attended at such sites. It cannot be said, therefore, that the Tribunal was “unreasonable” in making an adverse finding as to the truthfulness of that claim because of the absence of any evidence, given that it accepted the claim. 

10. Second, the Minister referred to the Tribunal’s decision at [21] (at CB 150), where the Tribunal set out its concerns regarding the applicant’s evidence in relation to her claimed Falun Gong mentor, and what had happened to her in China.  The applicant referred the Tribunal to a particular website. The Tribunal said that it had checked the website and searched for details about the mentor and noted there was no relevant video on the website as had been claimed, nor any mention of the applicant’s mentor’s claimed arrest and detention.  This was also one of the subjects of the Tribunal’s letter to the applicant inviting her comment in writing on this information.  The difficulty for the applicant is the Tribunal was entitled to explore the “truth” of the applicant’s claims. This included the search of the website. Again, the applicant’s grounds do not raise an arguable case for the relief that the applicants seek.

1. It is the case that r.44.13(1) of the FCC Rules provides that at a show cause hearing the applicant is confined to the grounds mentioned in the application, and the relief that is sought. Nonetheless, I do have regard to what is under the heading of “Orders Sought by the Applicant”, that is what I have described as the second set of orders sought by the applicant. I note that they are not in any recognisable form as orders for the relief sought in matters of this type.

2. Whatever their nature, or character in that regard, none of the three groupings of statements under that heading rise above a repetition of the statement of the applicant’s claims to be a genuine Falun Gong practitioner in China, and a practitioner in Australia, and that the applicant would be of interest to the Chinese authorities on return. The “orders” in that sense also seek impermissible merits review and no arguable case is raised here.

3. The applicant’s submissions before the Court today also did not assist her on the question of whether the grounds of the application raise an arguable case. What the applicant put to the Court today, in essence, was again a disagreement with the Tribunal’s findings, and its ultimate conclusions.

4. As I said earlier, the applicant gave her explanations to the Tribunal in relation to its concerns. The Tribunal considered these explanations, and rejected them.  As the Minister, in my view correctly, submitted, the Tribunal was entitled to do so as it was not required to uncritically accept the applicant’s explanations and claims (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). Again, what the applicant put to the Court could only be seen as seeking impermissible merits review. No arguable case is raised by the applicant’s submissions to the Court.

Conclusion

1. In all therefore, no arguable case is raised for the relief that the applicants seek. It is appropriate, therefore, that I make the order that the Minister seeks. That is, that the application made to the Court be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  8 February 2016