SZUQD v Minister for Immigration

[2015] FCCA 923

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 923

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.425, 476

Applicant: SZUQD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1833 of 2014

Judgment of: Judge Street

Hearing date: 14 April 2015

Date of Last Submission: 14 April 2015

Delivered at: Sydney

Delivered on: 14 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms S. Lloyd
Minter Ellison

ORDERS

1. The application be dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $5000..

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1883 of 2014

SZUQD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s. 476 of the Migration Act 1958 in respect of a decision made by the Tribunal on 5 June 2014 affirming a decision not to grant the applicant a Protection (Class XA) visa.  The application identified the following grounds:

   1. The Tribunal unfairly reviewed my case. 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 and therefore there is high chance of harm if I return to China.

   2. The Tribunal did not carefully review my case. I provided the Warrant Certificate that supports indicating my detention as I have claimed. Unfairly the Tribunal did not regard this evidence as supporting my claim to have been persecuted in the past in China on account of being a Falun Gong practitioner. I have also provided information in relation to my employment history in China. The Tribunal did not consider my explanation with care.

   3. The RRT did not consider the physical damage I suffered from the persecution, and this is not fair. I have been subjected to arrest more than one time and spiritual persecution. This resulted in my memories of history, and may appear vague memory problems. RRT should take full account of my physical condition, if necessary, my physical condition should be evaluated. RRT ignored that bot the hearing and interview were stressful situations. Also due to memory loss arising from the persecution, I could not provide evidence from my Falun Gong knowledge.

2. Ground 1 is clearly an impermissible challenge to the finding of fact made by the Tribunal.  It was a matter for the Tribunal to determine whether it accepted the credibility of the applicant.  It was of considerable relevance in this case that the applicant was granted a visa to come to Australia in 2010 and never used that visa in relation to assessing whether the applicant’s claims were genuine.  It is also of considerable relevance that the applicant came to Australia on a tourist visa on 29 June 2012 and did not make any claim until 26 March 2013.  The applicant has a number of children, one of whom is living in Australia. 

3. The delegate did not accept that the applicant was telling the truth.  The Tribunal did not accept that the applicant was telling the truth in relation to his claims in evidence and his fears in relation to being a Falun Gong practitioner.  Those findings were open to the Tribunal.  There is no substance in relation to ground 1. 

4. It is clear from the Tribunal’s reasons that it carefully reviewed the applicant’s evidence and claims.  The applicant, in fact, had two hearings before the Tribunal – the first on 14 April 2014 and the second on 23 May 2014.  Moreover, it is clear that the arrest warrant was a matter to which the Tribunal referred at paragraphs 21 to 28, and the arrest warrant was something expressly identified as being taking into account at para.70.  Accordingly, there is no substance in the proposition that the Tribunal did not have regard to that evidence.  It was a matter for the Tribunal what weight it gave to the evidence adduced, and there is no jurisdictional error identified by ground 1 or ground 2. 

5. In relation to ground 3, this is, again, an impermissible challenge to the findings of fact made by the Tribunal. It is clear from the Tribunal’s reasons that it was alive to the difficulties that the applicant may have, as identified at paras.69, and 94-95. I am clearly satisfied that the Tribunal complied with its statutory requirements including the obligation under s.425 of the Act. Accordingly, there is no jurisdiction error disclosed by ground 3. The applicant was invited to expand upon the reasons why the grounds were arguable and to identify a jurisdictional error and did not put any submissions.

6. It is clear from the reasons of the Tribunal that it carefully identified the applicant’s background and the information provided at the time of his application and his further statement and his interview on 4 July 2013 and 19 August 2013.  As indicated, the Tribunal conducted two hearings in which it carefully summarised the applicant’s evidence including the matters of obvious concern, to which I have already referred, in the paras.34, 35 and 37.  It is clear at the second hearing the Tribunal carefully raised its concerns in relation to the applicant’s claims and sought his comment and response in relation to those matters. 

7. The Tribunal found that the applicant was a citizen of China, and his claims were assessed against that country.  The Tribunal identified the serious concerns it had in relation to the credibility of the applicant, particularly after the delegate had found that the applicant had fabricated his claims.  In relation to the credibility of the applicant, the Tribunal relevantly found:

   58.    With regards to his other claims, for the reasons discussed below, the Tribunal had significant concerns about the reliability of his evidence in support of his claims, and, for the reasons discussed below, did not find him to be a reliable or credible witness. 

   …

   60.    Importantly, the Tribunal had the opportunity to observe the applicant give evidence over the course of two hearings over five hours, during which it was able to question him at length about his claims and test his reliability as a witness.  His evidence with regard to key aspects of his claims was vague and general, and, when asked for more detail, his responses were hesitant and he often appeared to be evasive and did not provide clear or direct answers, and, on a number of matters his evidence evolved and changed over time.  Indeed, he was at times confused and uncertain in the answers he gave to questions which, if the events claimed had taken place, the Tribunal would have expected clearer answers, and, on a number of matters, he provided inconsistent and contradictory evidence.  Furthermore, aspects of his claims, including that he began practicing Falun Gong in 1991 and was able to practice it for 21 years in China with only minor penalty, despite the authorities being aware of his practice, were not supported by the available independent information, which indicate that, what is known as Falun Gong began on 13 May 1992 and that, since it was banned in July 1999, its practitioners have been treated harshly by the authorities and been sentenced to lengthy terms of imprisonment involving hard labor and torture.  All of these instances undermined his overall credibility and lead the Tribunal to form the view that his evidence about these claims was not based on his personal experience, but had been fabricated to strengthen his claims for protection.

   …

   63.    In his initial evidence at the beginning of the second hearing, he amended his evidence regarding when he received the banknote, claiming that he had checked his records and realised he made a mistake, and that he had received that note on 28 March 2007 and not in 1992.  His explanation for the error was his faulty memory; however, as put to him, it was difficult to believe he could make such a significant miscalculation of 15 years, especially when he had been so definite and sure of his evidence at the first hearing.  His claim that he had kept a record of all of his Falun Gong activities was also difficult to believe, because, as put to him, maintaining a record of one’s involvement in an illegal and banned activity was dangerous and risky, and the fact that he had not before mentioned the existence of the note book added to the Tribunal’s concerns with the credibility of that claim.  The Tribunal has considered but does not accept his claim that he had mentioned in at the first hearing, as there is not record of him making that statement.  In addition, his reason for not including that notebook with the other documents he claimed his son sent him, that it was too dangerous to try and take it out of China, was difficult to reconcile with his claim that other potentially dangerous and incriminatory materials, including his copy of the Zhuan Falun, the banknote, his arrest warrant and detention notice, were taken from his home and office in Baotou by his son to Beijing, and given to a classmate of his son in Sydney, who then carried them to Australia.  Moreover, as put to the applicant, it was difficult to believe that he would endanger the safety and liberty of a college student in Australia by asking him to take out of China banned materials such as the Zhuan Falun, especially when he could easily have obtained a copy of the book in Sydney.  His claim that it was fine for a student to take the Zhuan Falun book out of China, is not supported by any independent information and is difficult to believe.

   64.    The Tribunal found his evidence on all of these matters to be concerning and problematic, and it formed the view that his evidence evolved in response to the questions raised by the Tribunal, and was not based on his own, personal experiences.  Likewise, his evidence with regard to his claim that he had to report to the police, which he raised for the first time at the first hearing, also evolved and changed in response to questions from the Tribunal.  His initial evidence was that he had to report to the police monthly for ‘two to three months’ after he was released from being ‘detained for a few days with other practitioners’ in August 2008.  His clear evidence at the first hearing was that after his detention in 2009, following his arrest on his way to Beijing, he was convicted of ‘belonging to Falun Gong and disrupting a government official’ and fined 30,000RMB and made to sign a renunciation letter, and, that between then and his departure in June 2012, he had no problems or difficulties with the police.  That evidence was consistent to a degree with his other claim that the reason he did not use his visa to come to Australia in late 2010 was because he had signed the renunciation letter and felt his troubles had come to an end.  However, later in the hearing, in the context of explaining why it took him nine months in Australia to lodge his application for protection, he said that in January 2013 his son told him the police had come back looking for him, and that when he was in China the police used to come to his factory every 10 days and took him to the station to question him about his Falun Gong practice.  When asked why he had not mentioned that claim before he said he had a bad memory and cannot remember everything.  Then, following a further series of questions from the Tribunal, he said he had in fact been required to report to the police every two weeks and it was because of his failure to report after his departure that they came looking for him in January 2013.  When asked why he had not before provided that significant piece of information, he said that he was not familiar with these things, and, when asked again why he had not ever mentioned a reporting requirement, he said he did not know what to say.

   65.    The Tribunal has carefully considered his responses to its concerns about his failure to mention significant information about his contact with the police in China, including his claim to have been subject to regular reporting requirements; however, while it is prepared to accept that he might not have perfect memory recollection, in the circumstances it does not accept that his poor memory provides a satisfactory explanation for why he did not mention before the first hearing that he had been required to report to the police every two weeks prior to his departure in June 2012 or that the police had come to his factory every 10 days and taken him to the station for questioning.  Indeed, the Tribunal found his evidence about these claims to be unclear, vague and lacking in detail, and that it evolved and changed at each point of him being questioned about it.  The Tribunal considers it reasonable to expect that he would be able to give consistent evidence about significant information such as whether or not he was required to report to the police after his claimed detention, when that reporting commenced and how often and for how long it continued, and whether and when the police came to his factory every 10 days and took him to the station, and his inability to do so reflects poorly on his credibility and his reliability as a witness. 

8. The Court notes that in para.69 the Tribunal expressly said that the applicant is not a reliable witness and that the accounts of the events on which his protections claims are based is false.  Relevantly, the Tribunal continued to find:

   69. As discussed with him at the hearing, these matters caused the Tribunal to have doubts about the reliability of his evidence and the credibility of his claims to be at risk of harm on return.  Considered cumulatively the concerns the Tribunal holds about the applicant’s credibility on these matters lead it to find that he is not a reliable witness and that the account of events on which his protection claims are based is false.  In making these findings the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’.  However, the Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that he is not a reliable witness. 

   70. In making these findings it has taken into account the documents he gave the Tribunal at the first hearing, including the Arrest Warrant, the Detention Certificate and the receipt for the payment of his fine, which, on their face, confirm and support aspects of claims, including that he had been arrested and detained for reasons relating to his alleged practice of Falun Gong.  However, as discussed with him at the hearing, independent information from credible sources including DFAT and the US State Department (see Appendix 2), indicated that false and fraudulent ‘official’ documents, including police and court warrants and notices, were reported to be widely available on the black market in China and that it was not difficult to obtain replica, forged, documents; in light of that information, whether it is prepared to accept that the documents are genuine, ultimately rests on its assessment of his reliability as a witness.  The Tribunal has carefully the evidence and information before, including the delay in the production of the documents and the apparent ease of obtaining false ‘official’ documents in China, however, in light of its finding that he was not a reliable or credible witness, in the circumstances, it does not accept that the documents noted above were issued by the Chinese police or other organ of the Chinese government or that they are genuine or authentic documents, and it places no weight on those documents in its assessment of whether the applicant is owed protection. 

   71. Accordingly, having carefully considered the evidence and information before it, the Tribunal has reached the view that it has no confidence in accepting any of the applicant’s evidence about his claimed past in China, or the reasons for his conduct in Australia.  In light of its finding that he was an unreliable witness, and, for all the reasons discussed above, the Tribunal does not accept that he is or ever was a genuine adherent or practitioner of Falun Gong, that he participated in or engaged in or was involved in any activity in China in relation to Falun Gong.  It follows that it does not accept any of his evidence regarding his claimed mistreatment in China for his claimed involvement with Falun Gong, and it does not accept that he was ever arrested, charged, convicted, detained, fined or imprisoned for any reason, including his claimed involvement in Falun Gong.  In light of its finding that he is not, and never has been, a genuine adherent or practitioner of Falun Gong, the Tribunal does not accept that the applicant would, or would wish to, participate in Falun Gong activities in China should he return.      

   72. In relation to his former business and the resumption of his land by the government, in light of its finding that he was not a reliable witness, it has little confidence in accepting any of his evidence regarding those matters, including his claimed petitioning.  In any event, it notes that his clear evidence at the first hearing was that he had no fears in relation to those matters.  His clear evidence was that, while he had lodged a complaint with the local authorities about the resumption and had been prevented from filing a petition in Beijing by the local authorities, the matter had come to an end in 2009 and that, in the two and a half years in which he remained in China after his attempt to go to Beijing, he took no further action about the matter.  It notes that later in the hearing he amended his evidence and said he would seek to re-agitate the matter, but in light of his failure to take action in his final two and a half years in China, and, in light of it now being approximately six years since the land was resumed, the Tribunal considers the prospect of him taking such action in the future to be unlikely, and, in the circumstances, it is not prepared to accept that he would take that action on return.  Accordingly, having carefully considered the evidence before it, including the documents he gave the Tribunal at the first hearing about his former business, its resumption and his associated complaint, the Tribunal prefers the initial evidence given by the applicant to the Tribunal that the matter has come to an end, and accordingly, in light of that evidence, and its finding that he was an unreliable witness, the Tribunal does not accept that there is a real chance that he would suffer harm in the future in relation to the resumption of his land and closure of business in 2008 and his associated complaints, and it does not accept there is a real chance he would suffer any harm because of any future action taken in relation to those matters, which it does not accept he would take. 

   73. With regard to his initial claim that his son had told him in early 2013 that his former staff had come looking for him and informed his son that they would take action against him and sue him, the Tribunal notes that, when asked about his former staff at the second hearing, the applicant gave clear evidence that he has no problems with his former employees and they do not want anything from him.  The Tribunal has considered the evidence before it in relation to this matter, and prefers the clear evidence given by the applicant to the Tribunal, and accordingly, in light of that evidence, and its finding that he was an unreliable witness, it does not accept that the applicant would suffer harm from or in relation to his former employees and his business that came to an end in 2008. 

   74. In relationship to his conduct in Australia, on the evidence before it, including the photographs he provided at the hearing, the Tribunal accepts that the applicant has performed Falun Gong exercises outside the Chinese Consulate in Sydney on one occasion, where he met Falun Gong practitioners.  However, in light of his inconsistent evidence about the details of his claimed involvement with Falun Gong practitioners, and its finding that he was an unreliable witness, the Tribunal does not accept that he went to a ‘big parade’ with other practitioners or that he met with or practiced with other people who practice Falun Gong apart from outside the Chinese Consulate.  Having carefully considered all the information before it, the Tribunal is not satisfied that the applicant began participating and engaging in Falun Gong or anti-CCP activities in Australia as a genuine expression of his spiritual or political beliefs, or for other reasons not associated with making an application for protection.  Indeed, for all of the reasons set out above, the Tribunal has formed the view that the applicant commenced participating and engaging in Falun Gong and anti-CCP activities in Australia, and did so, for the sole purpose of supporting his claims to protection, and is not satisfied that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.  The Tribunal has considered the possibility that, since participating and engaging in Falun Gong and anti-CCP activities in Australia, the applicant has, in fact, become a genuine and committed adherent and practitioner of Falun Gong.  However, taking into account all the information before it, the Tribunal does not accept that possibility.  In accordance with s.91R(3), in assessing his claims, the Tribunal disregards the applicant’s conduct of participating and engaging in Falun Gong and anti-CCP activities in Australia. 

   75. For all of the above reasons, the Tribunal does not accept the applicant’s claims that he would suffer persecution in China for reasons of his past, present or future practice of, or involvement with, Falun Gong or Falun Dafa, or any related or associated anti-CCP activity.  The Tribunal finds that there is not a real chance that the applicant would suffer Convention-related serious harm in the reasonably foreseeable future if he returns to China.  Accordingly, the applicant does not have a well-founded fear of persecution in China for a Convention reason and is not a person in respect of whom Australia has protection obligations under the Refugees Convention.

1. Having found that the applicant did not have a well-founded fear of persecution and was not a person in respect of whom Australia had protection obligations, the Tribunal turned to the consideration of the criteria in respect of complementary protection and relevantly found:

   77. With regard to the applicant’s claims to fear harm on the basis of his practice of Falun Gong in China, in light of the Tribunal’s findings that he is not a genuine or committed adherent or practitioner of Falun Gong, and that he would not, and would not wish to, practice Falun Gong on return to China, or engage in any related anti-CCP activity, the Tribunal considers there are no grounds for believing that there is a real risk the applicant will suffer significant harm on that basis. 

   78. In regards to the applicant’s Falun Gong and anti-CCP activities in Australia, the Tribunal notes that the complementary protection criterion contains no equivalent ‘good faith’ requirement as does the refugee criterion through s.91R(3).  Accordingly, the Tribunal must take into account the applicant’s actual association, involvement and participation in Falun Gong and anti-CCP activities in Australia, in its consideration of whether he is owed complementary protection.  In light of the above finding that the applicant would not, and would not wish to, practice or promote Falun Gong on return to China, or engage in any related anti-CCP activity, the issue for determination is whether there are substantial grounds for the Tribunal to believe that there is a real risk the applicant’s engagement in the activities in Australia would bring him to the adverse attention of the authorities if he were to return to China.  In this context the Tribunal has considered his involvement in the Falun Gong and anti-CCP activities, which was limited to performing Falun Gong exercises outside the Chinese Consulate in Sydney on one occasion, where he met Falun Gong practitioners.  In light of the minor and limited nature of these activities, on the evidence before it, the Tribunal does not considers that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm on that basis.

   79. With regard to his claims to fear harm in relation to his former business and the resumption of his land by the government, including with regard to his former employees, and his associated past petition and complaints, in light of its earlier reasons with regard to there not being a real chance that he would suffer harm for those reasons, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm in that way. 

   80. Having considered the applicant’s circumstances singularly and on a cumulative basis, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that she will suffer significant harm. 

2. There is no substances in the alleged jurisdictional errors.  The findings of the Tribunal were clearly open.  It cannot be said that the findings lack an evident and intelligible justification.  It was open to the Tribunal to make the adverse findings of credit in relation to the applicant.  The application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015