SZUMK v Minister for Immigration

[2015] FCCA 733

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 733

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error – application dismissed.

Legislation: 

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Applicant: SZUMK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1563 of 2014

Judgment of: Judge Street

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Sydney

Delivered on: 24 March 2015

REPRESENTATION

There being no appearance by or on behalf of the Applicant.

Solicitors for the Respondent: Ms S. Lloyd
Minter Ellison

ORDERS

1. The application be dismissed.

2. Applicant pay costs fixed in the sum of $4700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1563 of 2014

SZUMK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal delivered on 6 May 2014 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa.  The proceedings were fixed to a final hearing today and that date was communicated to the applicant by letter dated 11 March 2015, sent to the address on the applicant’s change in service for address which was provided to the Court on 17 September 2014.

2. The applicant has been called both by the pseudonym and the applicant’s real name, with the direction that the real name not be published and there has been no appearance.  The Court has also attempted to contact the applicant by the telephone number on the change of address for service and there has been no response to the attempted telephone calls by the Court.

3. The application identifies the following grounds:

   1. The Refugee Review Tribunal’s finding that there were no persecution of the applicant, was a finding which could not reasonably have reached.

   2. The Tribunal has not taken or adequately taken into consideration the applicant’s claim that she had previously practice Falun Gong adverse to the Chinese government.

   3. The Tribunal failed to consider that the Chinese government persecuted all Falun Gong practitioners no matter how long or how well these people practised Falun Gong.

4. As a matter of fixed for final hearing, I will treat this as a final hearing despite the absence of the applicant. 

5. The applicant is a citizen of China and her claims were assessed on that basis.  She came to Australia as the holder of a 570 student visa which expired on 26 August 2013.  On 26 March 2013, the applicant applied for a protection visa.  On 8 April 2013, the Department received a letter from the applicant withdrawing her application for a protection visa and on 30 April 2013, the applicant lodged a second application for a protection visa. 

6. The delegate refused to grant the visa on 5 August 2013, following which the applicant applied to the Tribunal on 9 September 2013 for a review of the delegate’s decision.  The applicant appeared before the Tribunal on 11 February 2014 to give evidence and present arguments and was assisted with an interpreter. 

7. The Tribunal identified the relevant law in relation to whether Australia has a protection obligation to the applicant, and carefully set out the applicant’s claims and evidence which were addressed in para.10 and the Tribunal noted that the applicant had not attended an interview with the department on 9 July 2013. Relevantly, the Tribunal made serious adverse credit findings in relation to the applicant.  I am satisfied those credit findings were apt on the material and it cannot be said that that those credit findings lack an evident and intelligible justification. 

8. Relevantly, the Tribunal found:

   13. The Tribunal has considered the applicant evidence and has serious concerns about her credibility and veracity of her claims. During the hearing, the Tribunal found the applicant to be evasive in relation to some aspects of her evidence and found other aspects of her evidence to be implausible. There were inconsistencies in her evidence and the Tribunal formed the view that she was fabricating some of her evidence as she was giving it. The Tribunal did not find the applicant’s evidence to be convincing or persuasive. The Tribunal’s concerns are noted below.

   …

   16. … The applicant’s poor knowledge of Falun Gong raises concerns in relation to the credibility of her claims.

   …

   18. The Tribunal is of the view that if the applicant is a genuine Falun Gong practitioner she would have started practising Falun Gong as soon as possible after her arrival in Australia. The Tribunal is of the view that she would have used the opportunities available in Australia to participate in group exercises, attend classes to learn more about Falun Gong and attend Falun Gong related activities. Her failure to do so raises doubts as to whether she is a genuine Falun Gong practitioner. 

   19. …The Tribunal finds it implausible that the applicant’s employer would have allowed her to return to her employment as a sales manager after she had been detained by the Chinese authorities for a period of 2 months for being a Falun Gong practitioner and then sponsor her to travel to Australia for the purpose of studying there.

   20. …The Tribunal is of the view that it is implausible that the applicant’s employer would not know that she had been detained for 2 months for being a Falun Gong practitioner. This issue concerns in relation to the credibility of the applicant’s claims.

   21. The applicant lodged an application for a Protection visa on 26 March 2013. On 8 April 2013, the Department received a letter from her withdrawing he application for a Protection visa. On 30 April 2013, she lodged a second application for a Protection visa. At the hearing, the Tribunal questioned the applicant as to why she withdrew her first application for a Protection visa. She responded that there were some inaccuracies in her first application for a Protection visa and she provided the details of the inaccuracies in the first application for a Protection visa such as incorrect dates of marriage, divorce and when she went to Dubai, incorrectly stated that she practised Falun Gong in Hong Kong and did not mention that she was detained for a second time between September 2009 and November 2009.

   22. In the statement dated 13 March 2013 lodged in support of her first application for a Protection visa, the applicant stated that a few weeks previously she was contacted by her former supervisor at her job in China and told that the police suspected that she had connections with Falun Gong overseas. She stated that she was terrified that the Chinese Communist Party had become aware of her Falun Gong activities in Australia. The applicant did not give evidence that this was one of the inaccuracies in her first visa application. However, she made no mention of this in the statement lodged in support of her second application for a Protection visa. The Tribunal is of the view that if this occurred it is significant and very relevant to her application for a Protection visa. Her failure to mention it in her second application for a Protection visa raises concerns in relation to the credibility of her claims.

   23. In the statement lodged in support of her first application for a Protection visa, the applicant made no mention of her second husband being violent to her or threatening her. In the statement lodged in support of her second application for a Protection visa, the applicant claimed that her second husband was violent to her and she applied for protection to avoid persecution from the Chinese government and torture from her second husband. Not mentioning her second husband's violence and threats was not one of the inaccuracies in the first application for a Protection visa mentioned by the applicant at the hearing.

   …

   25. The applicant gave evidence to the Tribunal that her second husband visited her parents in January 2013 and told them that he wanted to reconcile with her and live a good life with her. She stated that she fears he will inform the Chinese authorities that she is a Falun Gong practitioner if she does not reconcile with him. The Tribunal finds it implausible that the applicant's second husband would wish to reconcile with the applicant in January 2013 when they have been separated since 2011 and she has been living in Australia since 24 August 2012. When the Tribunal raised with the applicant the issue that she did not mention her second husband visiting her parents in January 2013 in her written statement in support of her second visa application, she responded that she overlooked it and thought that it would be alright to give a few examples. When the Tribunal noted that avoiding "torture" from her second husband was one of the two reasons given by her for applying for a Protection visa, she did not respond.

   26. The applicant gave evidence that she went to Dubai for a holiday on 10 April 2010 for a period of 10 days. This was after she claims that she was detained for 3 months in 2008 and 2 months in 2009. She voluntarily returned to China at the end of her holiday in April 2010. This is inconsistent with her claims of persecution by the Chinese authorities and her consequent fear of returning to China. When the Tribunal raised this as an issue with the applicant, she responded that she went to Dubai because her first husband did not want her to get involved, they got divorced, she was depressed and wanted to relax. She stated that when she returned from Dubai she heard that "Hong Kong has a lot of democracy" and she was introduced to her second husband. The applicant's response does not address the issue raised by the Tribunal. It is also inconsistent with her evidence that she divorced her first husband on 11May2010 which was after she returned from Dubai and not before she went to Dubai as claimed. These issues raise concerns in relation to the credibility of her claims.

   …

   28. The records of the Department indicate that the applicant arrived in Australia on 23 August 2012 on a temporary Student visa. She did not lodge her first application for a Protection visa until 26 March 2013 which was approximately 7 months after her arrival in Australia. When the Tribunal put this information to the applicant, pursuant to s.424AA of the Act, she responded that when she first arrived here she was not aware of Protection visas. She stated that she became aware of Protection visas in January 2013.

   29. The Tribunal does not accept that this explains her delay. The applicant is an educated woman and has a Bachelor degree from a university in Beijing. She was studying in Australia in English. The Tribunal is of the view that the applicant had the ability and the opportunity to make inquiries with the Department or to check the Department's website or do some research on the internet to ascertain her options soon after her arrival in Australia and would have done so if she was persecuted in China and feared persecution if she returns to China as claimed. She did not provide any explanation as to why her first application for a Protection visa was lodged on 26 March2013 when she found out about Protection visas in January 2013. This delay in lodging her application for a Protection visa raises concerns in relation to the credibility of her claims.

   …

   31. The Tribunal is of the view that if the applicant withdrew her first application for a Protection visa because it was not accurate and lodged a second application for a Protection visa, she would have taken particular care to ensure that her second application for a Protection visa was accurate and contained all the relevant evidence. Her evidence to the Tribunal was that she provided her migration agent with the information to prepare her second application for a Protection visa and the information she provided was true and correct. The Tribunal is of the view that it is significant that the applicant made no mention of the fact that the Chinese police made inquiries with her parents as to whether she was practising Falun Gong overseas in her applications for Protection visas. The Tribunal formed the view that the applicant was fabricating this evidence as she was giving it. This raises concerns in relation to the credibility of her claims.

   32. There were a number of inconsistencies in the applicant's evidence. She gave three different dates as to when she became a Falun Gong practitioner as referred to above. She claimed that one of the reasons she went to Dubai on 10 April 2010 was because she was depressed after divorcing her first husband. This was inconsistent with her evidence that she divorced her first husband on 11 May 20 I 0 which was after she returned from Dubai. She gave evidence that she worked in China Town doing odd jobs between August 2012 and June 2013. She subsequently stated that she did not work prior to June 2013. These inconsistencies raise serious concerns about the applicant's credibility and the veracity of her claims.

   33. Having considered all the evidence, the Tribunal finds that the applicant is not a witness of truth and that she fabricated her claims for the purpose of obtaining a Protection visa. The Tribunal does not accept that the applicant was persecuted by the Chinese government because of her involvement in Falun Gong. The Tribunal does not accept that the applicant's first husband was a Falun Gong practitioner, that he taught her about Falun Gong, that he was ever arrested and detained by the Chinese authorities because he was a Falun Gong practitioner, that he protested outside the Qingdao government building many times in relation to Falun Gong or that he practised Falun Gong in or outside the Qingdao government building.

   34. The Tribunal does not accept that the applicant practised the Falun Gong exercises to treat back pain after the birth of her child, that she told her parents that she did so or that they told her to stop doing so. The Tribunal does not accept that the applicant practised Falun Gong in China, that she read some pamphlets on Falun Gong given to her by her first husband, that someone "dobbed in" her first husband in relation to the practise of Falun Gong, that she was questioned in relation to the practise of Falun Gong on I May 2008, that she was arrested and detained on I May 2008, that her parents were questioned on 1 May 2008 about her and her first husband practising Falun Gong or that she was released after three months when her family gave the deputy director 20,000.00 RMB.

   35. The Tribunal does not accept that the applicant took leave from her job in November 2008 to visit her first husband after his release from detention, that he was bruised and mentally disorientated because he had been detained in relation to Falun Gong or that he would not stop seeking justice in relation to Falun Gong despite being told to "let it go". The Tribunal does not accept that the applicant was arrested in relation to Falun Gong in September 2009 and detained for 2 months. The Tribunal does not accept that the applicant's first husband wanted to divorce her because he did not want her and their daughter to suffer in relation to Falun Gong. The Tribunal does not accept that the breakdown of the applicant's first marriage was in any way related to Falun Gong or her first husband's mental health as a result of being detained because of his practise of Falun Gong.

   36. The Tribunal does not accept that that the applicant's first husband suggested she continue to practise Falun Gong after their divorce or that she secretly did so. The Tribunal does not accept that the applicant went to Dubai because her first husband did not want her to get involved in any Falun Gong related issues. The Tribunal does not accept that the applicant's second husband tortured her or threatened to report her to the police for practising Falun Gong if she hid from him. The Tribunal does not accept that the police would not accept the applicant's application to renew her passport because of her involvement in Falun Gong or that she paid the deputy director of the police station 20,000.00 RMB to renew her passport.

   37. The Tribunal does not accept that the Chinese police questioned the applicant's parents in 2013 in relation to her practising Falun Gong overseas. The Tribunal does not accept that the applicant's second husband visited her parents in 2013 and told them that he wanted to reconcile with her. The Tribunal does not accept that the applicant fears that her second husband will inform the Chinese authorities that she is a Falun Gong practitioner if she does not reconcile with him. The Tribunal does not accept that the applicant's former supervisor at her job in China contacted her in Australia and told that the police suspected that she had connections with Falun Gong overseas.

   38. The Tribunal does not accept that the applicant has read the book Zhuari Falun in Australia, that she has participated in the Falun Gong exercises at sites in Australia or that she has practised Falun Gong at home in Australia. The Tribunal does not accept that the applicant left China to avoid persecution from the Chinese government and torture from her second husband.

   39. The Tribunal rejects the entirety of the applicant's claims in relation to Falun Gong related events and activities in China. The Tribunal finds that the applicant and her first husband were not Falun Gong practitioners in China and were not of adverse interest to the Chinese authorities.

   40. The Tribunal has considered the applicant's conduct in Australia. The Tribunal accepts that the applicant may have watched some videos on Falun Gong in Australia. The Tribunal is not satisfied that she watched the videos on Falun Gong in Australia because she has a genuine interest or belief in Falun Gong. The Tribunal is of the view that the applicant watched videos on Falun Gong in Australia for the purpose of strengthening her claims to be a refugee. The Tribunal disregards the applicant's conduct in Australia in accordance with s.91R(3) of the Act.

   41. The Tribunal finds that the applicant is riot a genuine Falun Gong practitioner and that she will not seek to practise Falun Gong if she returns to China now or in the reasonably foreseeable future.

   42. Having considered all of the applicant's claims, singularly and cumulatively, the Tribunal finds that there is no real chance that she will be at risk of persecution on the grounds of religion or any other Convention reason if she returns to China now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a).

9. Those serious adverse findings resulted in the Tribunal rejecting the applicant’s claims in relation to Falun Gong and alleged related to events and activities in China.  The Tribunal found, as was open to it, that there was no real chance that the applicant will face the risk of persecution on the grounds of religion or any other convention reason if she returns to China now or in the reasonably foreseeable future.  The Tribunal considered the issue of complementary protection and relevantly found:

   43. The Tribunal has rejected the entirety of the applicant's evidence in relation to Falun Gong related activities and events in China as the Tribunal has formed the view that those claims were fabricated. The Tribunal accepts that the applicant has watched some videos on Falun Gong in Australia. The Tribunal is of the view that she did so for the purpose of strengthening her claims to be a refugee. The Tribunal is mindful that s.91R(3) does not apply with respect to conduct in the context of complementary protection.

   44. The Tribunal has considered whether this conduct will result in a real risk of significant harm on the applicant's return to China. The Tribunal is satisfied that the Chinese authorities would not be aware that she has watched videos on Falun Gong in Australia.

   45. The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).

1. Ground 1 is clearly an impermissible challenge to a finding of fact that was open to the Tribunal and I agree with the respondent’s submission that it cannot be made out.  It is also clear from the Tribunal’s reasons that the Tribunal properly considered the applicant’s claim, in particular at [10] and [14]-[18], and that ground 2 is again an impermissible challenge to the findings of fact that were for the Tribunal to determine. 

2. In relation to ground 3, it is obviously of relevance that the Tribunal rejected the applicant’s claims in relation to Falun Gong and related events and activities in China, which of itself means there is no substance in relation to the third ground.  Relevantly, the Tribunal held that the applicant and her husband were not Falun Gong practitioners in China and were not of adverse interest to the Chinese authorities. 

3. Accordingly, the Tribunal was not required to consider how the Chinese government treats Falun Gong practitioners and, relevantly, no country information was put to the Tribunal to support any favourable determination by the Tribunal in relation to the applicant’s claims.  In these circumstances, it is clear there is no jurisdictional error.  Each of the alleged grounds in the application is without substance.  The proceedings have no reasonable prospect of success.  The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 March 2015