SZVDY v Minister for Immigration

[2016] FCCA 2559

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVDY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2559

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Cases cited:

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609;

[2007] HCA 26

Applicant: SZVDY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2674 of 2014

Judgment of: Judge Barnes

Hearing date: 27 September 2016

Delivered at: Sydney

Delivered on: 27 September 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2674 of 2014

SZVDY

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 for review of a decision of the former Refugee Review Tribunal dated 22 August 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of the Peoples’ Republic of China, applied for a protection visa in October 2013.  The application was refused in circumstances where the Applicant did not attend the departmental interview.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing conducted with the assistance of an interpreter. 

3. The Applicant’s claims for protection were set out in his protection visa application and an accompanying written statement which was also provided to the Tribunal.  In essence, he claimed that he feared persecution or harm in China as a Falun Gong practitioner.  He claimed he had been detained on several occasions in the past because of his practice of Falun Gong.  The Tribunal recorded that at the hearing he stated that the reason he had problems with the Chinese authorities (although he himself was not a very active Falun Gong practitioner) was because of his connection with his former high school teacher who had introduced him to Falun Gong. 

4. In its reasons for decision the Tribunal set out the Applicant’s claims of involvement with and practice of Falun Gong.  It referred to country information about Falun Gong and the treatment of practitioners by Chinese authorities.  It summarised the Applicant’s evidence, noting that there was an inconsistency between his application and his written statement as to the date on which he was expelled from high school.  In the written statement this was said to have happened in 1999, whereas in the Form C application the date was given as 1998.  The Tribunal observed that this discrepancy had been canvassed at the hearing as was discussed further in its reasons.  The Tribunal also recorded that in addition to the claim that he was targeted as a Falun Gong practitioner and feared harassment and detention, the Applicant also claimed that his father and daughter had been targeted by association and that his daughter had been expelled from school due to his Falun Gong links. 

5. However, based on the Applicant’s evidence and its relationship to his written statement and protection visa application form, the Tribunal had a number of “significant concerns” about his claims.  It found it most significant that at the hearing the Applicant had been unable to explain even the most basic elements of the Falun Gong belief system or practises and gave inconsistent evidence about the extent to which he had practised Falun Gong. 

6. The Tribunal set out in some detail the exchange with the Applicant at the hearing about his understanding and practice of Falun Gong and recorded his limited explanations, including his evidence that he had not much to say in relation to how he practised; that he was not practising in Australia because he did not have time because he was working; and that he had read a book (which the Tribunal noted was not a Falun Gong book) but was not able to describe its content as he had read it years ago.  In addition, the Tribunal had regard to the fact that the Applicant was not able to demonstrate what he had done when he had practised Falun Gong two hours a day two days a week; that he had incorrectly said that there were only three essential Falun Gong exercises and could not name any of them; that he could not explain anything about the moral code of Falun Gong or other concepts that were raised with him; and that he had given only cursory answers in relation to the other issues raised by the Tribunal (albeit he was able to provide correct information in relation to some limited matters such as where the Falun existed in the body and the Falun Gong belief that human beings are essentially good). 

7. The Tribunal found that the Applicant’s lack of knowledge about Falun Gong was not consistent with his claims about the extent of his practice of Falun Gong.  It did not believe that anyone with that extent of practice would not at least know basic texts and exercises. 

8. The Tribunal recorded that it had put to the Applicant that it had difficulty believing he was a Falun Gong practitioner as he had almost no knowledge of Falun Gong, including basic aspects of its practice.  It considered the Applicant’s reply that he did not treat Falun Gong as seriously as others did and treated it as a hobby.  However, the Tribunal had regard to the fact that at another point in the hearing the Applicant had said that Falun Gong was very important to him.  

9. Nevertheless the Tribunal addressed the Applicant’s oral claim that his problems were because of his connections with his teacher and that he himself was not very active as a practitioner.  However it noted that in his written statement the Applicant had said he was not targeted by the authorities until October 2004 as a result of handing out leaflets, whereas his association with the teacher, a Mr Lu, had occurred in around 1996 to 1998 or 1999.  While the Applicant claimed that the handing out of the leaflets was organised by Mr Lu, the Tribunal found that it was not plausible that the Applicant would be targeted over the years simply by reason of his association with Mr Lu, as this implied that Mr Lu was of considerable interest to the authorities, whereas on the Applicant’s own evidence Mr Lu had been released from detention after a short period in 1998 or 1999. 

10. The Tribunal concluded that the Applicant’s evidence concerning his involvement in Falun Gong lacked substance, was inconsistent and lacked credibility such that it was not satisfied that he was or had ever been a Falun Gong practitioner or that he had been targeted by association with a Falun Gong practitioner. 

11. In addition, the Tribunal found that there was inconsistency, a lack of clarity and a tailoring of the Applicant’s oral evidence in relation to the year in which he was expelled from high school.  It referred to the contradiction in his written statement and application form.  It observed that the Form C, which referred to 1998, was consistent with the dates given for the Applicant’s education in his protection visa application form, but was inconsistent with the written statement in which he claimed he was expelled in 1999.  The Tribunal explained that it was important to clarify this discrepancy given that the major suppression and outlawing of Falun Gong did not occur until mid-1999.  The Tribunal was of the view that the fact that Falun Gong had not been outlawed in 1998 meant that the Applicant’s claims that in 1998 Mr Lu had been arrested and that he was expelled from high school lacked credibility. 

12. The Tribunal indicated that at the hearing it had spent some time attempting to clarify the year the Applicant was expelled, but recorded that it had found it very difficult to get clarity on this point from the Applicant.  The Tribunal was of the view that the Applicant’s evidence was unclear and unsatisfactory and that his explanation that he left school in 1998 but was expelled in 1999 was tailored implausibly in the hearing to explain the discrepancies.  This supported the Tribunal’s concern about the Applicant’s evidence generally and its inability to be satisfied that he was ever a Falun Gong practitioner or targeted due to association with a Falun Gong practitioner. 

13. Further, the Tribunal found the Applicant’s claims about when he obtained a passport and why he did not come to Australia earlier if he feared harm to be inconsistent and unsatisfactory.  It had regard to the Applicant’s confirmation that while his passport was issued in 2007 he did not travel to Australia for some five years.  It considered his explanation that it was hard to get a visa, that his activities were limited by local government and that the passport was not given to him until 2010, but found that this was inconsistent with what was said in the written statement.  The Tribunal found that the Applicant’s oral claim that he did not actually get the passport until 2010 was another example of tailoring evidence during the hearing to address Tribunal concerns.  The Applicant’s evidence on this point was said to confirm his general lack of credibility. 

14. The Tribunal concluded that the Applicant was not a consistent or credible witness and was not satisfied as to key elements of his claims.  Its key concern was his “almost complete inability” to explain the Falun Gong belief system, or its practices, exercises, texts, values or beliefs and his inconsistency about the extent of his interest in Falun Gong.  The other matters of concern were said to be subsidiary concerns that reinforced the Applicant’s overall lack of credibility. 

15. The Tribunal concluded that it was not satisfied that the Applicant was or had ever been a Falun Gong practitioner or that he had been associated by the authorities with a Falun Gong practitioner of interest.  It was therefore not satisfied that he (or his family) was targeted by the authorities or that he had been imprisoned as a result of his association with Falun Gong.  As this was the basis for the Applicant’s claimed fear of harm in the future, the Tribunal found that it was not satisfied that there was a real chance the Applicant would be persecuted for a Convention reason if he returned to China. 

16. For the same reasons, the Tribunal found that the Applicant did not meet the complementary protection criterion.  It affirmed the decision not to grant the Applicant a protection visa. 

17. The Applicant sought review by application filed in this court on 26 September 2014.  There are three grounds in the application.  He raised another issue in his affidavit.  The Applicant did not file any amended application or written submissions, but addressed the grounds in his application today. 

18. The first ground in the application is a contention that the Tribunal breached procedural fairness in connection with the making of the decision. No particulars were provided, except insofar as the Applicant asserted in his affidavit that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth).

19. When I asked him if he wanted to elaborate on this ground and how the Tribunal denied him procedural fairness, the Applicant took issue with the Tribunal’s conclusion that he was not credible because of his limited knowledge of Falun Gong. 

20. It has not been established that the Tribunal denied the Applicant procedural fairness in relation to the manner in which it assessed the Applicant’s credibility.  Credibility findings are a matter for the Tribunal as the decision-maker.  Its findings in this matter were reasonably open to it on the material before it for the reasons which it set out and discussed in its reasons for decision.  Insofar as the Applicant disagrees generally with the Tribunal’s conclusion he seeks impermissible merits review. 

21. I have also considered whether there was any failure by the Tribunal to comply with its statutory obligations under s.424A of the Act.

22. The Applicant did not address this claim or identify any information to which s.424A would apply. Nor is any apparent on the material before the Court. It is the case that, as was pointed out by the solicitor for the Minister, the Tribunal recorded that it had invited the Applicant at the hearing to comment on inconsistencies in his evidence. These were inconsistencies in his written evidence to the Department, his oral evidence to the Tribunal and the written document he provided to the Tribunal. Such matters are not such as to give rise to the obligation under s.424A(1) of the Act but are within the exceptions to the s.424A(1) obligation in s.424A(3)(b) and (ba) as information that the Applicant gave for the purposes of the application for review and information given during the process that led to the decision under review. This is not a case in which there was information provided orally by the Applicant to the Department which would not be within the s.424A(3) exceptions.

23. In any event, inconsistencies as such do not in themselves constitute information for the purposes of s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [18]). There is nothing in the material before the Court to suggest any failure by the Tribunal to comply with s.424A of the Act.

24. Moreover, the Tribunal’s account of what occurred at the Tribunal hearing (which is the only evidence before the Court in that respect) suggests that the Tribunal appropriately raised with the Applicant its concerns about aspects of his evidence and other matters that were dispositive issues for the purposes of s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). No jurisdictional error is established on the basis contended for in ground 1 of the application or in the accompanying affidavit.

25. Ground 2 is that the Tribunal failed to consider that “Chinese authorities persecute all Falun Gong practitioners and all the persons involved in Falun Gong”.  The difficulty with this ground, as pleaded, is that while the Tribunal indicated an awareness of country information in relation to persecution of Falun Gong practitioners in China, it was not satisfied that the Applicant was or had ever been a Falun Gong practitioner.  Having rejected the factual basis on which he claimed to fear harm, it was not necessary for the Tribunal to go on to consider country information which may have been of relevance had it reached the view that the Applicant was a practitioner of or involved in Falun Gong.

26. Similarly, insofar as the Applicant raised an issue in relation to the consequences for those associated by the authorities with a Falun Gong practitioner of interest, the Tribunal addressed the aspect of his claims based on his association with his former school teacher Mr Lu.  However, again, the Tribunal was not satisfied that the Applicant had been associated by the authorities with a Falun Gong practitioner of interest and in such circumstances country information as to whether or not the Chinese authorities persecuted persons who were associated with practitioners and implicated on that basis did not have to be addressed by the Tribunal.  This ground is not made out.

27. The third ground in the application is that the Tribunal failed to consider that the Applicant would be placed in danger if he returned to China.  This ground seeks impermissible merits review having regard to the fact that the Tribunal rejected the factual basis for the Applicant’s claims. 

28. Insofar as this ground may be seen as taking issue with the Tribunal’s findings in relation to the complementary protection criterion, it is the case that the Tribunal’s findings in that respect were based on its reasons and findings of fact with respect to the Refugees Convention claims and criterion.  However, there is nothing in the material before the Court to suggest that there was any other asserted factual basis for any claims by the Applicant in relation to the complementary protection criterion.  In particular, there is no indication that the Applicant advanced any separate complementary protection claims.  In such circumstances it was open to the Tribunal to rely on its findings that there was no real chance of the relevant harm alleged for Convention criterion purposes in assessing whether there was a real chance of significant harm for complementary protection criterion purposes.  As Marshall J pointed out in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] this is so in circumstances “when the same essential claims and facts were being relied on in each aspect of the [applicant’s] case”.

29. The Tribunal gave adequate consideration to the complementary protection criterion.  No jurisdictional error is established on that basis.  This ground is not made out. 

30. Finally, I note that insofar as the Applicant raised in oral submissions a contention that mere association with a Falun Gong practitioner could lead to persecution, the Tribunal was aware of and addressed that aspect of his claims, in particular his claim that the reason he had problems with the authorities was because of his connection with his teacher (which he put to the Tribunal during the hearing).  However, as indicated, the Tribunal rejected this claim for reasons which it gave which were reasonably open to it, including the finding that it was implausible that the Applicant would be targeted over the years simply by his association with Mr Lu, as this implied that Mr Lu was of considerable interest to the authorities, whereas, on the Applicant’s evidence, Mr Lu had been detained in either 1998 or 1999 and then released after a short period.  The Tribunal has not been shown to have failed to consider this aspect of the Applicant’s claims.

31. As none of the grounds raised or relied on by the Applicant are made out and no jurisdictional error is apparent on the material before the Court, the application must be dismissed.

32. The Applicant has been unsuccessful.  It is appropriate that he meet the Minister’s costs.  The Minister, appropriately in my view, seeks costs in the sum of $4500.  This is a reasonable amount having regard to the nature of this and other similar matters.  It is also appropriate to amend the name of the Second Respondent.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 5 October 2016