SZVDE v Minister for Immigration

[2015] FCCA 2875

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVDE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2875

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicant a Protection visa – whether it was reasonably open to the Tribunal not to accept as credible the applicant’s claims for a Protection visa – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2)

Applicant: SZVDE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2631 of 2014

Judgment of: Judge Manousaridis

Hearing date: 21 October 2015

Delivered at: Sydney

Delivered on: 21 October 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Act) the time for making an application prescribed by s.477(1) of the Act be extended up to and including 23 September 2014.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,646.

4. The name of the second respondent be amended to Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2631 of 2014

SZVDE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the People’s Republic of China, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa. The application was lodged after the 35 day period prescribed by s.477(1) of the Migration Act 1958 (Act). 

2. In his application, the applicant applies for an extension of time.  The Minister does not oppose the Court making an order under 477(2) of the Act extending the time by which the applicant had to commence these proceedings.  It was clear from the date on which the matter was set down for hearing – that is to say, 29 October 2014 – that the Minister would take that position because on that day the matter was set down for final hearing. 

3. Given the relatively short delay in the applicant’s making his application and the evidence, which I accept, which shows the Tribunal did not arrange to send its decision to the applicant within 35 days of its decision, I am satisfied that it is in the interests of the administration of justice that an order should be made under s.477(2) of the Act to extend the time prescribed by subsection s.477(1) of the Act for the applicant making his application up to and including 23 September 2014, being the day on which the applicant filed his application.

4. I then turn to the application for judicial review that is before the Court.  Before I identify and consider the grounds on which the applicant seeks judicial review of the Tribunal’s decision, it will be necessary to set out the applicant’s claims for protection and the reasons for which the Tribunal did not accept those claims. 

Applicant’s claims for protection

1. The applicant’s claims for protection were set out in a statement that accompanied the applicant’s application for a Protection visa.  He claimed that he fled China because he protected a Falun Gong practitioner (Mr G) and he feared that he would be persecuted for that reason if he returns to China.  The asserted facts on which the applicant relied for those claims are as follows.

2. In August 2005 the applicant had arranged to meet Mr G at 10 am in front of Mr G’s building to play tenpin bowling.  When Mr G failed to appear, and after he unsuccessfully attempted to call Mr G, the applicant “went to his home to see him”. The applicant knocked on Mr G’s door and, when he received no answer, he pushed the door open and entered the room.  Mr G got out of his bedroom “with panic”.  Mr G closed the door and told the applicant he was practising Falun Gong.  The applicant became “scared” on hearing this news and told Mr G that Falun Gong had been “denounced by [the Chinese] government[to be] an evil cult”, and that Mr G should be “more cautious”.

3. On 10 January 2009, late at night, the applicant heard a knock at his door.  He opened it to find Mr G, who quickly entered the applicant’s home.  Mr G told the applicant “with a panic” that Mr G and two other Falun Gong practitioners encountered Public Order Joint Defence Force while putting Falun Gong-related leaflets into mailboxes.  Mr G told the applicant that one of the practitioners was caught and Mr G did not dare return to his home, but requested he stay at the applicant’s home.  The applicant agreed.  Mr G stayed at the applicant’s home for three days, after which the applicant took Mr G to a long distance bus station and gave him some money.

4. After Mr G left, the applicant “felt nervous every day”.  On 13 January 2009 while at work the applicant was arrested and taken to the police station.  He was placed in an interrogation room and he was questioned by two policemen who asked him if he had contacted Mr G recently.  The applicant replied, “not for some time.”  Dissatisfied with the applicant’s answer, the policemen beat him and forced him to crouch until he collapsed to the ground.  The applicant was released after 24 hours “because of lack of evidence”. 

5. On 14 January 2009 the applicant was informed by his wife that the police had searched their house.  The applicant was horrified at the action of the police and he was worried Mr G would be caught and confess to police.  On advice from his wife, the applicant asked an agent to apply for a visa to Australia in March 2009.  While in Australia, in August 2011, the police searched the applicant’s home in China and took his wife to the police station for investigation.  The applicant’s wife, who could “not stand threat and beating of police” told them that the applicant had helped Mr G. The police asked the applicant’s wife to tell the applicant he was requested to return to China for “assistance in investigation for harbouring a Falun Gong practitioner”.

6. The applicant consulted a migration agent, who told him his situation was “not in the scope for protection”.  He applied for a Protection visa, however, after he heard his friend had been granted a Protection visa.

Tribunal’s decision

1. The Tribunal did not accept the applicant’s claims for protection were credible.  The Tribunal found that evidence the applicant gave before the Tribunal was inconsistent with the claims the applicant made in his application for a Protection visa. 

2. The first inconsistency related to how the applicant discovered Mr G was a Falun Gong practitioner.  Before the Tribunal the applicant claimed that in August 2005 he went to Mr G’s home and “saw him sitting cross-legged on the floor” and asked if he was practising Falun Gong.  The applicant also said that he saw two other people he did not know sitting cross-legged on a mat. In his application for a Protection visa, the applicant did not mention two other persons being present when he entered Mr G’s home.  Further, the applicant did not say in his application for a Protection visa that he saw Mr G sitting cross-legged on the floor.  What the applicant said was that Mr G came out of the bedroom after the applicant entered Mr G’s home.  The Tribunal put this inconsistency to the applicant.  The applicant responded by saying his accounts “should be the same.

3. The second inconsistency relates to the circumstances in which the applicant claimed he sheltered Mr G.  Before the Tribunal, the applicant said Mr G telephoned him and asked him to return home.  When he arrived, at around 6 or 7 pm, Mr G begged the applicant to allow him to stay at his home for three days.  Mr G did not at the beginning tell the applicant why he wanted to stay at the applicant’s house.  The applicant said he did not ask Mr G why he wanted to stay.  The applicant said that the police were searching for Mr G and he knew that fact, even though he had no conversations with Mr G about it because the applicant knew Mr G was a Falun Gong practitioner.  The applicant said he asked Mr G to leave.  This account is different from the account the applicant gave in his application for a Protection visa.  In that application, the applicant said Mr G informed the applicant why he wanted to be sheltered, namely, that he and two other practitioners had encountered the Joint Defence Force while putting Falun Gong-related leaflets into mailboxes.

4. The Tribunal relied on other matters for not accepting the applicant’s claims to be credible:

   a)The applicant had left China with no difficulty.  He renewed his passport in Sydney and the passport was issued on 1 March 2013, after he had applied for a Protection visa.  Relying on country information, the Tribunal found that these facts were inconsistent with the Chinese authorities having any interest in the applicant.

   b)The applicant’s delay in applying for a Protection visa.  The applicant arrived in Australia in April 2009, yet he did not apply for protection until 29 November 2012.  The Tribunal did not accept the applicant’s explanation for his delay.

   c)The Tribunal found inconsistent the applicant’s evidence that he worked in Korea for three years from 2005 to 2007 and returned to China in 2007 with his being in China in August 2005, being the month in which the applicant claimed he was told Mr G practised or witnessed Mr G practising Falun Gong in Mr G’s home.

5. The Tribunal, therefore, did not accept the applicant had discovered Mr G was a Falun Gong practitioner;  that the applicant had hidden Mr G in his home; that the applicant was arrested, detained and beaten by police; that police searched the applicant’s home;  that, after arriving in Australia, police again searched the applicant’s home in China and detained the applicant’s wife, who divulged his involvement in hiding Mr G;  that the police or any authority in China had any interest in the applicant because he sheltered a Falun Gong practitioner;  or that the applicant is an actual or imputed supporter of Falun Gong or will be in the future if he returns to China.

Grounds of application

1. I now turn to the grounds of review stated in the grounds of application.  There are three.  The first is:

   The Tribunal did not exactly following 36(2)(aa) of the Act. As a non-practising supporter of Falun Gong, I will face significant harm if returning to China. The Tribunal wrongly undervalued the evidence I got adverse attention of authorities in China in the past and that my wife had been subject to police questioning after I left China.

2. This ground does not disclose any jurisdictional error.  It does no more than manifest disagreement with the Tribunal’s conclusion that it did not accept the applicant’s claim for protection to be credible.  It was reasonably open to the Tribunal to conclude the applicant’s claims were not credible for the reasons the Tribunal gave.  Ground 1 therefore fails.  The second ground of application is:

   When assessing the credibility of my claims, although the Refugee Review Tribunal (the Tribunal) is not required to accept uncritically any or all of the claims made in my applicant, the benefit of the doubt should be given as I am generally credible but unable to substantiate all of my claims. The Tribunal ignored my evidence and wrongly concluded that I had not attracted the adverse attention of the Chinese authorities.

3. This ground makes a number of distinct claims.  The first is that there was some doubt in the applicant’s evidence, and that such doubt should have been resolved in the applicant’s favour.  There is no such principle or, if there is, a breach of such a principle does not necessarily lead to the  Tribunal making a jurisdictional error.  In any event, it was reasonably open to the Tribunal to consider the doubts it had about the credibility of the applicant’s claims were sufficiently substantial to lead it not to accept the applicant’s claims were credible.  The second claim made in the second ground is the assertion that the applicant was credible but was unable to substantiate his claims.  There is no merit in that claim.  It was for the Tribunal to assess the applicant’s credibility, and it was reasonably open to the  Tribunal for the reasons it gave for not accepting the applicant’s claims as being credible.  The third claim made in the second ground is that the Tribunal ignored the applicant’s evidence.  That claim also has no merit.  The Tribunal considered the applicant’s evidence.  It considered the applicant’s evidence, but did not accept it.  For these reasons, ground 2 fails.

4. The third ground stated in the application is:

   The Refugee Review Tribunal (RRT) unfairly ignored my well-founded fear of persecution in China. I am a Falun Gong practitioner. The campaign initiated by the Chinese Communist Party (CCP) against practitioners of Falun Gong since July 1999, aimed at eliminating the practice in China. According to Amnesty International, it includes a multifaceted propaganda campaign, a program of enforced ideological conversion and re-education, and a variety of extralegal coercive measures such as arbitrary arrests, forced labor, and physical torture sometimes resulting in death. Thus, this religion reason of fear set out in the Refugees Convention should have been considered by the RRT.

5. This ground assumes the applicant claimed before the Tribunal that he was a Falun Gong practitioner.  The applicant made no such claim.  The applicant claimed he feared persecution because he harboured a Falun Gong practitioner.  The basis of his claim was that he would be imputed with being a Falun Gong practitioner or supporter.  The Tribunal considered that claim and rejected it. 

6. Further, there is no substance to this ground to the extent it claims the Tribunal ignored the applicant’s claims for having a well-founded fear of persecution in China.  As my recitation of the Tribunal’s reasons indicates, the Tribunal did consider the applicant’s claims.  What it did was consider them, but unfortunately for the applicant, reject them.  For these reasons, ground 3 therefore also fails. 

7. Given my conclusions, it follows that the application must be dismissed.

8. I invited submissions as to the question of costs.  The Minister applies for costs, seeking the amount of $6,646.  The applicant opposes any such order on the ground that he lacks the financial capacity to meet such costs order.  That is not a reason for the Court not to exercise its discretion to order costs against the applicant who has failed in the proceedings.  As I informed the applicant, any issue in relation to his ability to pay those costs is a matter that he will need to discuss with the Minister’s lawyers in the event or to the extent to which the minister seeks to take any action to enforce the costs orders. 

9. For those reasons, I also propose that the applicant pay the minister’s costs seeking the amount of $6,646.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  27 October 2015