SZVCX v Minister for Immigration

[2015] FCCA 2488

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2488

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.91R

Minister for Immigration v SZLSP & Ors [2010] FCAFC 108

First Applicant: SZVCX

Second Applicant: SZVCY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2619 of 2014

Judgment of: Judge Driver

Hearing date: 10 September 2015

Delivered at: Sydney

Delivered on: 10 September 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms A Wong of DLA Piper

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2619 of 2014

SZVCX

First Applicant

SZVCY

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 27 August 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants, who are husband and wife.  The claims for protection were substantially made by the first applicant, the applicant husband.  References in this judgment to the applicant are intended to be references to him.  It was not entirely clear to the Tribunal whether the second applicant made claims in her own right, and that was explored by the Tribunal at the hearing it conducted. 

2. Background facts relating to the applicants’ claims for protection and the Tribunal decision on them are set out in the Minister’s outline of submissions filed on 1 September 2015. 

3. The applicants are a married couple from China.  The applicant claimed to fear harm for reasons of his involvement in Falun Gong.  No claims were made on, or behalf of, his wife in the visa application.

4. The applicant claimed to have been detained twice; once at the beginning of 2011 and another time in October 2012.  He claimed that the second time, he was tortured, signed a confession, paid a “penalty” and was released.

5. The applicant did not attend an interview with the delegate.[1]  On 26 March 2013 the applicant applied to the Tribunal for review and attached a copy of the Department's decision record with that application.[2]

   [1] Court Book (CB) 62

   [2] CB 75-85

The decision of the Tribunal

1. The Tribunal did not accept[3] that the applicants were involved with Falun Gong in China (either directly, or indirectly), or had any other profile that could attract relevant negative interest from the authorities.  It did not accept that the applicants left China for the reasons claimed.

   [3] at [24]

2. It accepted that the applicant demonstrated an understanding of Falun Gong tenets and practice sufficient for him to participate in Falun Gong activities here, but found that the applicant engaged in the conduct of associating with Falun Gong in Australia for the sole purpose of strengthening his claims to be a refugee. The Tribunal disregarded that conduct under s.91R(3) of the Migration Act 1958 (Cth) (Migration Act).[4]

   [4] see [26]

3. The Tribunal further considered the impact of the applicant's practice of Falun Gong in Australia on the second applicant, but was not satisfied that the applicant's Falun Gong activities in Australia had come, or would come, to the attention of Chinese authorities.[5]

   [5] see [28]

4. The Tribunal was not satisfied that the applicant satisfied the criterion set out in s.36(2)(a) of the Migration Act.[6]

   [6] at [29]

5. On the evidence before the Tribunal, it did not accept that the applicant's brief association with Falun Gong in Australia would give rise to a real risk of significant harm.[7]

   [7] at [30]-[33]

The present proceedings

1. These proceedings began with a show cause application filed on 22 September 2014.  The applicants continue to rely upon that application.  They have not taken up the opportunity I afforded them in orders made on 4 November 2014 to file and serve an amended application and additional evidence.  There are three grounds in the application following three paragraphs summarising the protection claims:

   Order sought by Applicant

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

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

   3, I have been actively practicing 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.

   The Grounds of the Application are:

   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 practicing 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 even I have provided them with supporting evidence

   (errors in original) 

2. I have before me as evidence the court book filed on 17 October 2014.  The applicant was unsure whether he had received the court book.  The Minister tendered a letter dated 17 October 2014,[8] which establishes that the court book was sent to the applicants at their nominated address for service.  I provided to the applicant the original court book from the file, and I explained the contents of it.  I am satisfied that the applicants have not been disadvantaged by the late provision of the court book.

   [8] exhibit R1

3. I received as a submission a short affidavit filed by the applicants with their application.  The applicants claim that the Tribunal erred in not giving proper attention to the risk that the first applicant would face should he return to China.  That risk was based upon the applicant’s asserted practice of Falun Gong both in China and in Australia.  The second applicant did not seriously contend that she had been a Falun Gong practitioner, which became clear at the Tribunal hearing.

4. The Tribunal found that the applicant had been untruthful in his assertions of past Falun Gong practice in China, and hence he would not be at risk of harm should he return to China by reason of that asserted past practice. The Tribunal accepted that the applicant had been a practitioner of Falun Gong in Australia, but disregarded that conduct consistently with s.91R(3) of the Migration Act on the basis that the conduct was engaged in for the sole purpose of enhancing the applicant’s claims to protection.

5. The Tribunal made no express finding whether the applicant would continue to practise Falun Gong should he return to China.  I am satisfied, however, that a fair reading of the Tribunal decision establishes that it was implicit that the Tribunal did not consider the applicant would continue to practise Falun Gong in China, given that he had not been a practitioner at all before he left China, and that he had not been a genuine practitioner in Australia.  There is no substance in the grounds of review in that regard. 

6. The applicants also assert that the Tribunal’s adverse credibility findings were unreasonable.  I agree with the Minister’s submissions on that issue.

7. The applicant provided some photographs (to support his claim that he had been attending the Hurstville Falun Gong site since March 2014 and Riverwood since April 2014) and a statutory declaration in support of his claims to be a Falun Gong practitioner.[9] The Tribunal ultimately held that the applicant had engaged in the conduct of associating with Falun Gong in Australia for the sole purpose of strengthening his claim to be a refugee and disregarded that conduct under s.91R(3).[10] 

   [9] The Minister notes that although this document was cited by the Tribunal at [20] of its reasons, this document does not appear on the file

   [10] see [26]

8. The Tribunal held[11] that the second applicant was:

   very reluctant to give any evidence in support of this application and did not even wish to sit in the hearing room, agreeing to do so only when I asked her to clarify, for the record, some confusing indications as to her overall standing in this matter. 

   [11] at [28]

9. The applicant's wife's evidence was summarised at [23]:

   Summing up claims made by and on behalf of [the second applicant], she is not herself a Falun Gong practitioner, she only ever briefly tried the Falun Gong exercises in private and does not suggest she was ever detected doing so except by the first applicant; she did not witness [the applicant’s] activities in China but was called to attend a police station when he was arrested; she departed China legally on a valid passport, validly issued but with help from a contact of [the applicant] …

10. The Tribunal held that the second applicant's evidence did not help overcome the serious deficiencies in the applicant's evidence.[12]

    [12] see [23]

11. I am satisfied that the Tribunal’s findings were open to it on the material before it and for the reasons that it gave.

12. In his oral submissions, the applicant claimed that there was confusion at the Tribunal hearing in relation to the terms “teacher” and “instructor”.  He said that the confusion was apparent to him, even though he only understood the Mandarin portions of the hearing exchanges.  He said that the confusion became apparent to him towards the end of the Tribunal hearing.  He said he did not have an opportunity to raise his concern with the presiding member.  There is nothing in the Tribunal’s decision record to support the applicant’s assertion.  That is not surprising, given that the applicant does not claim to have drawn any problem to the presiding member’s attention. 

13. In the orders I made on 4 November 2014, I required all further evidence in this matter to be by affidavit, save for any transcript of the Tribunal hearing.  The applicant has not provided any transcript, which he says he could not afford, and neither has he provided any further affidavit evidence.  He did not bring to Court the sound recording of the Tribunal hearing, which might have provided some basis for testing his assertions.

14. An examination of the Tribunal decision record does not disclose that anything turned on the identification of any of the persons referred to by the applicant as either a teacher or an instructor.  It is in my view highly improbable that if there was any confusion as to those terms, it had any impact on the outcome.

15. I raised with the Minister’s solicitor in oral argument two other issues which occurred to me as potentially arguable issues.  The first concerns the Tribunal’s finding at [21] of its reasons[13] that the applicant's knowledge of and spiritual engagement with Falun Gong was not consistent with what one would expect of a person who had remained absorbed in practising and disseminating Falun Gong material privately and publicly over four years.  The Tribunal gave that concern some weight.

    [13] CB 102

16. I have considered whether that finding is arguably affected by error, having regard to the decision of the Full Federal Court in Minister for Immigration v SZLSP & Ors[14].  A distinguishing characteristic of that case was that the Tribunal had dismissed the applicant's answers to questions about Falun Gong knowledge as wrong without any evidentiary foundation for that dismissal.  In the present case there was a logical analysis leading to the Tribunal’s conclusion.  This leads me to the view that it is not arguable that the Tribunal’s finding was an arbitrary one leading to jurisdictional error. 

    [14] [2010] FCAFC 108

17. The other issue I raised concerned the applicant's claim that Chinese spies might have seen him practising Falun Gong in Australia, and that the Chinese authorities had infiltrated Falun Gong groups in Australia.  The Tribunal at [28] and [33] of its reasons[15] dismissed those assertions on the basis that the applicant had produced no evidence to support them.  I have considered whether it was unreasonable for the Tribunal to expect the applicant to produce evidence of Chinese spying activity, which, by definition, would be expected to be covert. 

    [15] CB 104 and 105

18. The Minister’s solicitor pointed out that even if that were so, the applicant could have produced some evidence, for example, another practitioner who might have been able to say something about what supported practitioner fears of Chinese Government surveillance.  The applicant's assertions were bare assertions.  In the circumstances, the Tribunal’s dismissal of them was not unreasonable.   

19. I have concluded that the applicant has not established an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

20. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale as it applied at the time the application was filed.  The applicant did not wish to be heard on costs.  I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  15 September 2015