SZVIV v Minister for Immigration

[2015] FCCA 1572

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1572

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6],
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 144 CLR 1
Selvadurai v Minister For Immigration And Ethnic Affairs and Another (1994) 34 ALD 347

First Applicant: SZVIV

Second Applicant SZVIW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2958 of 2014

Judgment of: Judge Nicholls

Hearing date: 13 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Sydney

Delivered on: 13 May 2015

REPRESENTATION

First Applicant: In Person

Second Applicant: In Person

Solicitors for the Respondents: Ms A Wong of DLA Piper

ORDERS

1. The application made on 24 October 2014 and amended on 23 January 2015 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants pay the first respondent’s costs set in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2958 of 2014

SZVIV

First Applicant

SZVIW

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made to this Court on 24 October 2014 and amended on 23 January 2015, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 September 2014, which affirmed the decision made by the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

1. The Minister has filed a bundle of relevant documents (“the Court Book” – “CB”) which was in evidence before the Court. The following background can be ascertained from those documents.

2. The applicants are citizens of the People’s Republic of China (“China”) and are wife (“the applicant”) and husband (“the second applicant”). The applicant arrived in Australia on 19 April 2012 on a visitor visa (CB 15). The applicant applied for a Protection (Class XA) visa on 12 July 2012 (CB 1 to CB 28). The second applicant applied as a member of the applicant’s family unit (CB 29 to CB 35). The applicant’s claims to protection were set out in a written statement (CB 38 to CB 39).

3. The applicant claimed to fear harm in China because she is a Falun Gong practitioner (CB 38 to CB 39). She claimed to have begun practicing “Falun doctrines” to improve her health. The applicant claimed that her parents, and one of her sisters, were Falun Gong practitioners. Further, that her mother had been imprisoned, and injected with a needle while detained, which the applicant believes led to her mother’s death after she was released. Her sister also passed away at this time. The applicant also claimed that she unsuccessfully sought to “clarify” with the authorities details relating to her mother’s name, and that she raised concerns about her mother’s “murder”. She claims that, in “retribution”, the government sought out her employer and the second applicant’s employer to “put pressure” on her. She then withdrew her application to “be left in peace” (CB 38).

4. The applicant’s father was allegedly detained by police on 13 January 2012 and his house was “raided”. The applicant received a “Criminal Detention Notice” stating that her father was detained “for utilizing cult organization to crush the legal system”. Her father was released on 23 January 2012 and urged the applicant to leave China. Later in the year her father was taken by the government for “brainwashing classes” and they threatened him with “danger” towards the applicant (CB 39).

5. The applicant was invited to an interview with the delegate (CB 61 to CB 67). The applicant did not attend the interview (CB 77.9). The delegate refused the application for protection visas on 11 October 2012 (CB 68). The delegate was unable to be satisfied that the applicant had substantiated a claim of a well-founded fear of persecution (CB 81). Further, the delegate was unable to be satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm on return to China (CB 84).

The Tribunal

1. The applicants applied to the Tribunal for review of the delegate’s decision on 7 November 2012 (CB 85 to CB 97). The applicants attended a hearing before the Tribunal on 22 October 2013 (CB 105). The Tribunal affirmed the delegate’s decision to refuse the grant of protection visas to the applicants on 30 September 2014 (CB 120 to CB 131).

2. The Tribunal’s account of the hearing is set out in its decision record ([14] – [31] at CB 122 to CB 127). The Tribunal was not satisfied that the applicant’s fear was genuine and was satisfied that she had “fabricated her claims to be a Falun Gong practitioner and to have experienced harm in the past for this reason”. The Tribunal found that “neither applicant ha[d] told the truth in their evidence” ([33] at CB 127 and [39] at CB 128) and had fabricated their claims and evidence in support of the protection visa application ([39] at CB 128).

3. The Tribunal was unable to accept that the applicant, or members of her family, were Falun Gong practitioners or that the police had warned her father about possible harassment of the applicant on return to China due to her Falun Gong practice in Australia ([40] at CB 128).

4. The Tribunal found that the claims the applicant raised at the Tribunal hearing differed from the claims as set out in the protection visa application and written statement. Of great concern, and “weighing heavily” in the Tribunal’s assessment of the applicant’s credibility, were the new protection claims raised by the applicant for the “first time at hearing” ([41] at CB 128). Those new claims are set out at [41] of the Tribunal’s decision record (at CB 128).

5. The Tribunal relevantly found ([42] at CB 128):

   “[42] These are all substantial claims of obvious significance to the applicant’s claims in her written statement. The applicant’s written statement was prepared at a time much more proximate to the events it purports to describe, and I would expect the applicant to have better recall of events at that time than at a later date. The applicant gave no explanation for not having included these claims in her protection visa application or written statement, other than to say that she must not have put much detail into it. The new claims were raised only after the applicants had already been refused protection visas by the delegate…”

6. The Tribunal considered that the fact that the applicant was able to enter and depart China on documents in her own name (and obtain a passport), despite the fact that she claimed her family were known Falun Gong practitioners and that the applicant was known by the Public Security Bureau for her practice, was evidence in support of the conclusion that the applicant was not of any interest to the Chinese authorities ([45] at CB 129). The Tribunal further found that voluntarily returning to China was not “consistent with a genuine fear of harm” ([44] at CB 129), noting that the applicant would have known, due to her mother’s treatment in China, that there was a “serious risk” in China for Falun Gong practitioners ([44] at CB 129).

7. The Tribunal was satisfied that the reason the applicant had failed to provide her father’s “Criminal Detention Notice” document was because the notice did not exist, and that her father was not detained ([48] at CB 130). The Tribunal considered that the delay and timing of her protection visa application was due to her motivation for lodging the protection visa application. This motivation was found to be a wish to extend her stay in Australia, and not from a genuine fear of harm on return to China ([51] at CB 130).

8. The Tribunal was satisfied that the applicant’s claims to protection were fabricated and that neither applicant had provided “truthful evidence” such that it could be satisfied of the genuineness of the applicant’s claims ([52] at CB 130 to CB 131). On that basis, it found that there were no grounds for believing that the applicants would suffer serious or significant harm if they were to return to China. 

Application to the Court

1. The applicant applied for review to this Court on 24 October 2014. The orders sought and grounds of the application were set out in an attachment to the application. The orders sought by the applicant are in the following terms:

   “Orders 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 and my husband will be facing danger.”

2. The grounds of the initiating application are in the following terms:

   “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 just because of the absence of the evidence.”

3. The applicant purported to file a document with the Court’s Registry on 23 January 2015. This document was titled “Amendment of the grounds of the application”. The document does not mention the Orders sought in the applicant’s initiating application but adds a fourth ground to the application for review. It is in the following terms:

   “4. RRT is unreasonable to infer the conclusion and it is wrong citation information involved in the last sentence of paragraph 29. (‘the original of which he had produced at the hearing and which had been issued in March 2998’).”

4. Although the applicants did not seek formal leave to file such a document, I have proceeded on the basis that regard should be had to this additional complaint raised by the applicants. 

Before the Court

1. At the first Court date in this matter the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Given the nature of the grounds of the initial application, the Minister pressed that the matter proceed to an immediate “show cause” hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

2. The matter was set down for a show cause hearing today. The applicants were also given the opportunity to file any amended application and any evidence by way of affidavit. The applicants filed a document with the Registry of this Court on 23 January 2015 which is before the Court (see above at [17]). The applicants have not filed anything further in support of their application.  I note that I have written submissions from the Minister.

3. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. The applicants seek orders which are not in any proper or recognisable form. They appear to repeat the applicant’s claims to protection. However, I otherwise understood that the applicants seek orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

4. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

5. At the hearing today the applicants appeared in person and were assisted by an interpreter in the Mandarin language. Ms A Wong appeared for the Minister.

6. In essence, two matters were raised before the Court today by the applicants.  First, the applicants stated that they were expecting to receive a risk assessment of their situation before they were sent back to China. The applicant subsequently said that she understood, after explanation from the Court, that the Tribunal’s decision record was such a risk assessment.

7. The second matter raised relates to ground four of the amended application, and I will address that below. 

Consideration

1. Ground one asserts a disagreement with what is said to be the “immigration decision”. If this is some complaint about the delegate’s decision, then this Court has no jurisdiction to review the delegate’s decision in circumstances where that decision was reviewable by the Tribunal (s.476(2) of the Act). Therefore, no arguable case is raised in those circumstances.

2. The ground also disagrees with the Tribunal’s decision and states that the applicant is a “genuine Falun Gong member”.  On any plain reading of the Tribunal’s decision record, the Tribunal’s conclusion and the central reason for its decision, was its finding that the applicant’s claims were fabricated, and that the applicant was not a Falun Gong practitioner.  The applicants disagree with that finding made by the Tribunal.

3. This Court has no power to intervene and substitute its own findings of fact for those of the Tribunal.  On what is before the Court, the Tribunal’s findings that led to this conclusion, and the conclusion itself, were all reasonably open to the Tribunal on what was before it. It is clear that the Tribunal gave reasons for the decision that were probative of the material that was before it. Ground one, therefore, in essence, seeks impermissible merits review to be conducted by this Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). No arguable case is raised.

4. Ground two appears to assert that the Tribunal failed to consider a claim made by the applicant. That is, that the applicant would suffer harm on return to China because she continued to practise Falun Gong in Australia.  Despite the opportunity given to the applicants to file further material, and the opportunity given to the applicants today, they were unable to point to any of the evidence before the Court to support the proposition that she had made any such claim to the Tribunal.

5. I note what was set out in the applicant’s written statement concerning her claims to fear harm. Further at [7] of that statement, she claimed that the authorities (at CB 39):

   “[7]...warned my father that if they discovered that we were joining in Falun Gong overseas, they would never leave us in peace.”

6. On a fair reading this cannot be said to be a claim on its own that the applicant was Falun Gong practitioner either in China or overseas. Rather it was a part of the central claim that she was a Falun Gong practitioner in China. In context, therefore, this part of the applicant’s statement is to be understood that as a Falun Gong practitioner in China the authorities warned her father that she should not practise Falun Gong overseas.

7. However, as set out above, the Tribunal found, for reasons that it gave, that the applicant was not a Falun Gong practitioner, and it found that she would not suffer harm for this reason if she were to return to China. Such findings were reasonably open to the Tribunal on what was before it (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 (“Durairajasingham”)).  In the absence of any actual claim as to the practice of Falun Gong in Australia, no arguable case is raised by ground two.

8. Ground three appears to assert that the Tribunal’s decision was unreasonable because it rejected the truthfulness of the applicant’s claims because the applicant did not provide any evidence in support. 

9. It must be said that any plain reading of the Tribunal’s decision record reveals that the reason the Tribunal found adversely to the applicant’s credit was not because there was any lack of corroborating evidence. The adverse credibility findings were based on the Tribunal’s various findings of inconsistencies and inadequacies in the evidence presented by the applicants. These were, variously, the return of the applicant to China from Korea, the delay in departing China, the delay in seeking protection in Australia after arrival and because the applicant raised a series of substantial claims at the Tribunal hearing for the first time, in circumstances where these claims were of such character that they should, and could, have been raised at an earlier time since the application for the visa. These findings were reasonably open to the Tribunal on what was before it

10. Further, it is the case that if reasonable minds could differ about the Tribunal’s reasoning, it could not be said to be illogical (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 144 CLR 1 (“SZMDS”) at [78] per Heydon J and [130] – [131] per Crennan and Bell JJ). It cannot be said it was unreasonable of the Tribunal to suspect the truthfulness of the applicant’s claims because of any absence of evidence.  In fact, there is no factual basis for the applicant’s complaint that the Tribunal rejected the truthfulness of her claims for reason only of the absence of corroborative evidence. No arguable case is raised by ground three.

11. I note, for the sake of completeness, the Minister’s submission that the Tribunal is not required to have rebutting evidence available, before it can hold that the applicant’s claims were not made out (Selvadurai v Minister For Immigration And Ethnic Affairs and Another (1994) 34 ALD 347).

12. The fourth ground of the application as amended appears to raise two matters.  The first is that the Tribunal’s conclusion was unreasonable.  In this regard, I agree with the Minister’s written submissions (at [22]) that in relation to the allegation that the Tribunal was unreasonable, if reasonable minds might differ in the result, the decision cannot be set aside for jurisdictional error as illogical, irrational or unreasonable, merely because one conclusion has been preferred to another (SZMDS).

1. I agree with the Minister that this ground is an attempt to take issue with the factual findings made by the Tribunal, noting that a finding as to an applicant’s credibility is another factual finding made by the Tribunal within the proper exercise of its jurisdiction (Durairajasingham).  That element of ground four, therefore, does not raise an arguable case. 

2. The second element of ground four is one that the applicants raised with the Court today. 

3. At [29] (at CB 126) of its decision record, the Tribunal plainly made an error where it referred to the second applicant’s passport as having been issued in “March 2998”.  Before the Court today, the second applicant submitted that in such a “serious document” as the Tribunal’s decision record, such an error should not have been made. I agree with the second applicant in that regard.  However, the answer to this complaint derives from the second thing that the second applicant put to the Court. This was whether this error played any part in the Tribunal’s decision record and, in particular, the disbelief of their claims to fear harm if they were to return to China.

4. I agree with the Minister’s submissions today that this error, as to the date of issue of the second applicant’s passport, did not play any part in the applicant’s claims to protection and, importantly, did not feature in any adverse finding made by the Tribunal.  The Tribunal gave reasons for its adverse credibility findings against the applicants. None of these reasons were related to the date of issue of the second applicant’s passport. 

5. In the circumstances, therefore, the Minister’s submission that this was simply a “typographical error” must be accepted.  In its decision record, the Tribunal made plain that the second applicant’s passport had been produced to it at the hearing, and a copy of the relevant page of that passport is reproduced at page 113 of the Court Book.  What is reproduced there shows that the second applicant’s passport was issued on 12 March 2008.  The incorrect reference, therefore, in the Tribunal’s decision record to the incorrect date of issue is not a material error to the Tribunal’s findings, nor its ultimate conclusion and decision.

6. Notwithstanding what I have just said (at [42] above), I agree with the second applicant that the Tribunal should have taken greater care and not made such a mistaken reference. Nonetheless, no legally arguable case is raised in the circumstances by any such error.

Conclusion

1. In all, the grounds of the application do not raise an arguable case for the relief sought. It is the case that the rules of this Court provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicants are confined to the grounds mentioned in the application to the Court (r.44.13(1) of the FCC Rules). The applicant did not raise anything today that would have made it appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules.

2. In the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 11 June 2015