SZUHG v Minister for Immigration and Border Protection
[2015] FCA 919
•12 August 2015
FEDERAL COURT OF AUSTRALIA
SZUHG v Minister for Immigration and Border Protection [2015] FCA 919
Citation: SZUHG v Minister for Immigration and Border Protection [2015] FCA 919 Appeal from: SZUHG v Minister for Immigration & Anor [2015] FCCA 663 Parties: SZUHG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 239 of 2015 Judge: NICHOLAS J Date of judgment: 12 August 2015 Legislation: Migration Act 1958 (Cth) ss 36(2), 91R, 476 Date of hearing: 12 August 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: A Wong of DLA Piper Counsel for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 239 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUHG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
12 AUGUST 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
3.The name of the second respondent be amended to Administrative Appeals Tribunal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 239 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUHG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
12 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an appeal against an order of the Federal Circuit Court of Australia made on 2 March 2015, dismissing an application made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal made on 2 April 2014 affirming the decision of the Minister’s delegate to refuse the appellant a protection visa.
The appellant is a citizen of the People’s Republic of China who arrived in Australia on 6 March 2013. He applied for a protection visa on 30 May 2013 with the assistance of a registered migration agent. The appellant’s claim was based upon him being a Falun Gong practitioner.
Following the refusal by the delegate to grant the appellant a protection visa, the appellant applied to the Refugee Review Tribunal for a review of the decision. The Tribunal identified the issues before it as being whether or not the appellant had a well-founded fear of persecution in China for one or more of the reasons set out in relevant provisions of the Refugees Convention and, if not, whether or not there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there was a real risk that the appellant would suffer significant harm. It was, therefore, necessary for the Tribunal to consider whether the appellant had a well-founded fear of persecution in China because he is a Falun Gong practitioner. The Tribunal stated that it was not satisfied that the appellant had a well-founded fear of persecution for this reason.
The Tribunal also considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there was a real risk that the appellant would suffer significant harm. The Tribunal noted that it was not satisfied that this was so. In particular, the Tribunal stated that it was not satisfied the appellant had a well-founded fear of persecution in China on account of his religion or a well-founded fear of persecution on account of his political opinion or imputed political opinion as a Falun Gong practitioner. The Tribunal reached this conclusion in circumstances where it was not satisfied that the appellant was a truthful witness, and where it considered that his claim that he feared he would be harmed if he were returned to China was fabricated.
In its reasons for decision the Tribunal explained why it did not regard the appellant as a truthful witness. It considered the appellant’s knowledge of aspects of Falun Gong was extremely limited and inconsistent with his claim to have been a genuine Falun Gong practitioner since 1999. In particular, the Tribunal had regard to the appellant’s inability to provide the names of the five Falun Gong exercises. It is apparent that the Tribunal had great difficulty accepting that the appellant could have practised Falun Gong for 14 years and still not be able to name the five exercises.
Similarly, the Tribunal also found it difficult to accept that the appellant did not have any real knowledge of the circumstances that gave rise to the ban on Falun Gong in China which the Tribunal found to have occurred around the same time as the appellant claimed to have commenced practising Falun Gong.
Other matters affecting the appellant’s credibility related to his travel in 2001, 2005 and again in 2010 between China, South Korea and Japan. In each of those years the appellant travelled to South Korea or Japan on a number of occasions. The Tribunal found that he returned to China on each occasion without making any inquiries or considering options for protection in either South Korea or Japan. This was in circumstances where, according to the appellant’s evidence, each time he left China for South Korea, Japan and finally Australia, he did so due to discrimination and fear relating to his practice of Falun Gong.
So far as the appellant’s claim that he feared to return to China for a Convention-related reason is concerned, the Tribunal disregarded the appellant’s involvement with Falun Gong in Australia in accordance with s 91R(3) of the Act. However, it took the appellant’s involvement with Falun Gong in Australia into account when evaluating his claim for a protection visa by reference to the s 36(2)(aa) criterion, that is, the complementary protection criterion in s 36(2)(aa). Even then, the Tribunal, while satisfied that the appellant’s own evidence indicated that he had been involved with Falun Gong in Australia to a very limited extent, did not accept there was any evidence that the appellant’s limited involvement with Falun Gong in Australia was known by the Chinese authorities or that it would create any difficulties for him upon his return.
Accordingly, the Tribunal concluded that the appellant did not meet the Refugees Convention criteria in s 36(2)(a) or the complementary protection criteria in s 36(2)(aa) of the Act. It therefore affirmed the decision not to grant the appellant a protection visa.
The appellant brought his proceeding in the Federal Circuit Court which was, in due course, heard by the primary judge. The application filed by the appellant was accompanied by a short affidavit in which the appellant stated there was no religious freedom in China and that, as a Falun Gong practitioner, he was scared to go back to China as he may face persecution by the authorities.
The application filed by the appellant included the following three grounds:
1.RRT did not review the risk that I would be persecuted by Chinese government carefully. I have a genuine fear of harm if I return to China. I have been truthful in my account to the Department and to the Tribunal. I am a Falun Gong practitioner; I practiced Falun Gong since I was in China and therefore there is high chance of harm if I return to China.
2.The Tribunal unfairly reviewed my case. The evidences that I provided in the interview and hearing were true. Though I did not mention that I went to Korea in 2001 because I had joined Falun Gong in 1999 and I had been monitored by the Chinese government and discriminated against in my employment, it is not contradict to my previous evidences. The reasons that I did not apply protection visa after I went to Korea and Japan were I went to strange countries; the language and culture were different. I did not know for my situation I can apply refugee visa. If I knew, I would apply for sure since there was no need for several years of wandering life. With the fear of being troublesome, I went back to my family. Because I miss my wife and son so much, I return to China on 2 occasions. RRT did not accept my explanations. RRT thought that I failed to make any attempts to lodge an application for protection, so my claim to have fled China to those places was false. Such conclusion is incorrect and unfair. (Para. 19-21).
3.RRT has denied me of procedural fairness by failing to provide adequate reasons for the finding of a fact. In Para 23, “The Tribunal does not accept that he attempted to learn about…for the sole purpose of strengthening his claims to be a refugee.” This finding is not only without foundation but also a poor reflection of mind of prejudgment and negativity. RRT should not speculate and make conclusion based on no evidences. RRT should be imposed an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will. Therefore, I find the RRT’s decision is not made properly and legitimately.
At the hearing before the primary judge the appellant had little to add to what was said in his grounds, although he did state, according to the primary judge’s reasons, that he had a relative in prison in China who had practised Falun Gong. This was apparently not something that had been raised before the Tribunal, nor, as his Honour pointed out, could it assist in determining whether the Tribunal had made a jurisdictional error.
The primary judge considered each of the appellant’s three grounds for review. It is apparent from his Honour’s reasons that he interpreted the grounds liberally with a view to determining whether any of the matters raised might involve an error of law. In the course of doing so, the primary judge concluded that the Tribunal addressed all matters of substance raised by the appellant, and that his claims were rejected because the Tribunal did not believe them to be true. His Honour was satisfied that the findings made by the Tribunal in relation to the appellant’s credit were reasonably open to it. It was on this basis that his Honour was satisfied that ground 1 did not raise any legal error.
As to the second ground relied upon by the appellant, the primary judge concluded that by this ground the appellant was seeking to engage in impermissible merits review of the Tribunal’s findings. His Honour rejected ground 2 on that basis.
In relation to ground 3, the primary judge treated it as raising two distinct complaints. First, that the appellant was not afforded procedural fairness, and secondly, that the Tribunal had prejudged the appellant’s application and that its decision was therefore vitiated by bias or a reasonable apprehension of bias.
The first of these complaints, as articulated by the appellant in his grounds of review, was based upon the failure of the Tribunal to give adequate reasons in relation to the appellant’s involvement with Falun Gong in Australia. As I have mentioned, the Tribunal disregarded such involvement in accordance with s 91R(3) of the Act in relation to the application of s 36(2)(a). The Tribunal noted that s 91R(3) did not apply in relation to the application of s 36(2)(aa), but, as previously mentioned, found that the appellant was unlikely to suffer significant harm on his return to China as a consequence of his limited involvement with Falun Gong in Australia. The primary judge said that the Tribunal gave cogent reasons for these findings, which were open to it on the material before it.
In relation to the allegation of bias, the primary judge said that he could not see, on a fair reading of the Tribunal’s reasons, that it had brought a closed mind or “a mind of prejudgment” to the determination of the appellant’s case and that he did not think that a well-informed lay observer might reasonably apprehend the Tribunal to have done so. His Honour therefore concluded that ground 3 was not made out.
The appellant’s grounds of appeal are as follows:
1.RRT has bias against me as I was deprived of the benefits of doubts.
2.RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.
3.The evidences that I provided in the interview and hearing was true.
4.The Tribunal under evaluated the risk of serious harm that I will face if going back to China.
The first of these grounds must be rejected for the reasons given by the primary judge. The Tribunal’s reasons do not suggest that it had prejudged the appellant’s claims, nor is there any reason to believe that a well-informed lay observer might reasonably apprehend that the Tribunal had prejudged the appellant’s claims. The primary judge correctly rejected the allegation of bias.
As to ground 2, there was nothing in the evidence before the primary judge to suggest that the appellant was denied procedural fairness. As the primary judge’s reasons recognise, the only unfairness complained of by the appellant is that the Tribunal did not accept the truthfulness of his evidence.
The third and fourth grounds of appeal seeks to challenge the Tribunal’s findings on questions of fact and to have the Court engage in impermissible merits review.
I am satisfied that the primary judge’s decision in this matter was correct. In the result, the appeal will be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 24 August 2015
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