SZVDK v Minister for Immigration and Anor

[2017] FCCA 747

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVDK v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 747

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal erred in failing to consider reason for delay in application for protection visa – whether the Tribunal’s reasoning was illogical or unreasonable – no jurisdictional error – application dismissed.

Legislation:

Constitution (Cth), s.75(v)

Migration Act 1958 (Cth), s.474

Applicant: SZVDK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2643 of 2014

Judgment of: Judge Smith

Hearing date: 22 March 2017

Date of Last Submission: 22 March 2017

Delivered at: Sydney

Delivered on: 22 March 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G. Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed. 

2. The applicant pay the first respondent’s costs fixed in the amount of $5,300.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2643 of 2014

SZVDK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EXTEMPORE & REVISED

Background

1. The applicant is a citizen of China who arrived in Australia on 29 July 2013 on a tourist visa.  At about the time of the expiry of that visa, the applicant applied for a protection visa.  The applicant claimed that her husband, who remained in China, commenced practising Falun Gong in 2011.  At that time the applicant was working in Japan and upon her return to China in 2012, she learned more about Falun Gong from her husband.  The applicant started to practise Falun Gong under her husband’s guidance.  The applicant claimed that at the end of 2012, her husband was warned by the neighbourhood community that if the Police had evidence that the husband distributed Falun Gong material, or was reported, the whole family would suffer. 

2. After this, the husband talked with his family about sending the applicant (his wife), and their child overseas.  Towards the end of March 2013, the applicant’s husband was taken to the police station, and their house was searched.  The Police took books, tapes, CDs and other Falun Gong material.  The applicant’s husband was forced to provide the names of other Falun Gong practitioners and the source of that material.  He was abused and tortured.  At the end of May 2013, while visiting the applicant’s husband in detention, the applicant claims that their child stepped up and criticised the police for what had occurred to the husband. 

3. The applicant then entrusted the child to relatives and left China.  She claims to have a fear of  persecution or harm on account of these matters if she were to return there. 

Tribunal’s decision

1. On 3 March 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.  The delegate did not accept that the applicant and her husband were Falun Gong practitioners and rejected the claim that the husband had been detained and tortured. The delegate found that the applicant was not a person of interest to the Chinese authorities and was not at risk of harm if she were to return there. 

2. The applicant then applied to the Refugee Review Tribunal[1] for review of the delegate’s decision.  The applicant attended a hearing conducted by the Tribunal on 21 August 2014.  That hearing, according to the evidence before the Court, took place over the course of an hour and a half.  The applicant gave evidence and made submissions with the assistance of an interpreter in the Mandarin language.  The Tribunal handed down its decision on 29 August 2014 affirming the decision of the delegate.  Like the delegate before it, the Tribunal did not accept the applicant’s claims:  specifically, it found that the following were false:

   ·The applicant or her husband (or her son) were Falun Gong practitioners or would be imputed as such in China.

   ·The applicant’s husband was arrested for the reasons claimed by the applicant, or at all. 

   ·The applicant’s husband was arrested and detained for any reason.

   ·The applicant’s son challenged some of the persons detaining his father. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. The Tribunal gave a number of reasons for those findings by reference to particular aspects of the applicant’s evidence.  The first of those aspects concerns the delay in lodging the application for a protection visa.  In this respect, the Tribunal said at [13] of its reasons, that given the alleged urgency of her situation, it did not accept that the applicant would have delayed her protection visa application for three months if she was seeking to establish herself in Australia and provide protection and assistance to her family for the reasons she had claimed.

4. The second aspect dealt with by the Tribunal in terms of its findings was the applicant’s husband’s Falun Gong practice.  In this respect it said at [19]:

   … I do not accept it is plausible that on the one hand the husband would fear for his family’s safety and yet allegedly continue to engage in activities in a way that may cause them to be in danger while in China.  

5. The third aspect was the applicant’s own Falun Gong practice.  At [25] of its reasons, the Tribunal explained that at the hearing it had asked the applicant if she knew of any of the Falun Gong exercises, and that the applicant had said that she did not practise or perform any of those exercises.  The Tribunal noted that the country information that it had seen indicated that “any genuine Falun Gong practitioners would not apparently ever perform the material exercises”. 

6. The next aspect dealt with by the Tribunal was the applicant’s claims concerning her 16 year old son. The Tribunal rejected this claim on the basis that it had rejected the claim that the applicant’s husband had been detained: [29]. Finally, the Tribunal dealt with the applicant’s departure from China at [32] to [34]. On the basis of its credibility findings, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The applicant now seeks judicial review of the Tribunal’s decision. This Court has the same jurisdiction in respect of the Tribunal’s decision as the High Court has under s.75(v) of the Constitution. That fact, together with the operation of s.474 of the Migration Act 1958 (Cth), means that the applicant, in order to succeed, must establish that the Tribunal’s decision was affected by jurisdictional error. That is, broadly put, that it was affected by some significant error of either substance or procedure which affected the way in which the Tribunal exercised its power and duty to review the delegate’s decision.

2. There are two grounds in the application filed by the applicant: 

   1Regarding to my delay in lodging the protection visa application, I arrived in Australia on a tourist visa on 27 May 2013, and lodged protection visa application on 23 August 2013 in less than three months. When I came to Australia, I had legal visa to stay Australia safely, it was not necessary for me to apply protection visa. I did not speak English and that in China I had learnt not to trust anyone. After I understand the law and cultures in Australia I started to prepare materials immediately. It also took time to prepare documents and forms. I lodged my application in three months, this kind of delay was reasonable.

   2In Para 19, RRT officer did not accept it is plausible that on the one hand my husband would fear for family’s safety and yet allegedly continue to engage in activities. The fact ignored by RRT was in the end of 2012, my husband came to think of sending our child and me overseas, but the reason finally made the decision to go overseas was he was arrested and mistreated by police. Thought he was warned in the end of 2012, my husband is a devout Falun Gong practitioner, it was entirely possible that he continued to practice Falun Gong. He thought it would be fine if the policy could not find any evidences.

   (Errors in original)

3. These grounds do not, on any view, raise any jurisdictional error. Rather, what they do is to put forward arguments which might support findings in favour of the applicant and, in particular, in two respects: namely, her delay in applying for a protection visa, and secondly, the fact that her husband continued to practise Falun Gong and engage in other activities even though he had been warned at the end of 2012 that doing so might affect the safety of his family. 

4. It may be that, if accepted, those arguments might have led the Tribunal or some other decision-maker to arrive at different findings of fact.  However, they do not establish that the Tribunal made any error going to its jurisdiction.  The findings made by the Tribunal in rejecting the credibility of the applicant’s evidence and claims were, in my view, based upon logical grounds and inferences that arose reasonably upon the material before it.  In other words, those findings were open to the Tribunal. 

5. At the hearing today, the applicant who appeared for herself, said that it was impossible for her to find evidence in China as she was here in Australia, and that she had provided the maximum evidence in support of her claims.  That may well be so however, it does not undermine the fact that the Tribunal was obliged to review the delegate’s decision on the basis of the material before it, and that it did so. 

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       19 April 2017