SZVJQ v Minister for Immigration

[2015] FCCA 2883

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2883

Catchwords:
MIGRATION – Review of former 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), ss.36, 91R

Minister for Immigration v Jia (2001) 205 CLR 507
Re JRL; Ex parte CJL (1986) 161 CLR 342

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SZRUI v Minister for Immigration [2013] FCAFC 80

First Applicant:	SZVJQ
Second Applicant:	SZVJR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3000 of 2014

Judgment of: Judge Driver

Hearing date: 27 October 2015

Delivered at: Sydney

Delivered on: 27 October 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary 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 $3,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3000 of 2014

SZVJQ

First Applicant

SZVJR

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 2 October 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grand the applicants protection visas.  There are two applicants, who are a wife and her husband.  The relevant protection claims were made by the first applicant, the applicant wife.  Any references to “the applicant” in these reasons are intended to be a reference to her. 

2. The applicants are from China.  The first applicant claimed protection on the basis of her asserted practice of Falun Gong.  Background facts relating to the applicant’s protection claims and the decision of the Tribunal on them are set out in written submissions filed on behalf of the Minister on 16 October 2015.   

3. In a statement[1] provided to the Minister's delegate, the applicant claimed to be a Falun Gong practitioner and claimed that her mother, who also practised Falun Gong, was arrested and detained for some 96 days.  She claimed that on 20 December 2011 she was arrested at her house while practising Falun Gong with her mother.  She was sentenced to three years in the labour camp, but because she had just given birth, the police did not put her into the labour camp and instead required her to report to them monthly.

   [1] CB 37-39

The decision of the Tribunal

1. The Tribunal did not accept that the applicant was ever a Falun Gong practitioner in China[2], or that her mother was a Falun Gong practitioner and gave little weight to the photographs and letters from Falun Gong practitioners, submitted by the applicant[3].  The Tribunal held that the only profile that the applicant had with the Chinese authorities was that of an ordinary citizen[4]. 

   [2] at [76] of the decision

   [3] at [77]

   [4] at [85]

2. The Tribunal was prepared to accept that the applicant had participated in Falun Gong activity in Australia and had acquired knowledge about Falun Gong whilst in Australia[5]. That conduct was disregarded in accordance with s.91R(3) of the Migration Act 1958 (Cth) (Migration Act)[6].

   [5] at [81]

   [6] at [84]

3. The Tribunal held that the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Migration Act[7].

   [7] at [92]

The present proceedings

1. These proceedings began with a show cause application filed on 28 October 2014.  The applicant continues to rely upon that application. She had not taken up the opportunity I afforded her to file and serve an amended application or additional evidence.  There are four grounds in the show cause application:

   1. The Tribunal officer Ms Frances Simmons did not consider any material that we submitted to support our claim.  After we arrived in Australia, we did not meet any Falun Gong practitioner fellows, it took me around few months to find them.  After I joined them, I started practising and studying about Falun Gong, I also attended lots of important events of Falun Gong.  I submitted many photos and documents to the Tribunal officer to support my claim, but she did not consider my evidence in her decision records.

   2. The reason why we are afraid to go back to China is because we were forced to send to labour camps as practicing Falun Gong, so my husband and I decided to apply for refugee visa and hope to get the Australian government protection.  Unfortunately, during the interview, the Tribunal officer Ms [Frances] Simmons did not seriously listen to my statement and in conversation she repeatedly interrupted my talking, I feel very unfair.  During the nearly four hours of RRT interview, I was influenced by her unfriendly and aggressive attitude, I was in a state of high tension, there are times I would like to make an adjournment.  The official, Ms [Frances] Simmons, kept asking me questions, and when I was answering the question, she interrupted and questioned me, which made my thoughts very confusing.  This caused me to make a mistake about my mother’s persecution date (it happened in 2001, not in 2010), but after I realized that mistakes I made, I corrected it immediately and repeatedly said the correct date (2001).  But the official did not understand my case, she doubted the credibility of the testimony because of this, I think this decision is wrong and not enough humanity.

   3.The tribunal officer does not believe that I did not sentence to labour camps because I was just during a period of breast-feeding.  But in fact, it is true that the Chinese government treated Falun Gong as a cult and practitioners will be detained and persecuted by the government, but this cannot be generalized, as a mother, I have just given birth, they would not put my son and me apart.  According to Article 214 of Criminal Procedure Law of the People’s Republic of China and Article 17 and 25 of Prison Law of the People’s Republic of China, which stated that if a criminal is a pregnant woman or a woman who is breast-feeding her own baby, she temporarily not be put in prison.  Even though I was not sent to labor camps, I have also been punished.  I had to report to police each week.  This is a true story, but the Tribunal officer thought it is not true, she does not accept my explanation, do not let me complete statement, simply do not think it really interrupted my words.  Therefore, I think this is very unfair judgment.  I think she had a bias against me

   4.I wish the Federal Circuit Court of Australia could consider my situation. (errors in original)

2. The application is supported by a short affidavit, which I received into evidence.  I also have before me as evidence the court book filed on 11 December 2014. 

3. The applicant made oral submissions today.  Only the Minister prepared written submissions. 

4. The applicant’s concerns as expressed in her oral submissions traverse much of the ground addressed in her grounds of review.  She is concerned that the Tribunal, in her words, “rejected” or rejected the veracity of documentary evidence she submitted to support her claims.  The show cause application is couched in terms of the Tribunal overlooking relevant material, but it is clear from the Tribunal decision that nothing was overlooked.  It is the case, as I explained to the applicant, that the Tribunal did not accept that the material submitted by the applicant satisfied it that the applicant was a Falun Gong practitioner in China or that she was a genuine Falun Gong practitioner in Australia. 

5. The Tribunal accepted that the applicant had engaged in Falun Gong activities in Australia rather belatedly and solely for the purpose of enhancing her protection claims.  The applicant is concerned that she was not believed, and she disputes adverse credibility findings made by the Tribunal.  That concern, however, does not rise above a simple dispute over the merits of the Tribunal decision.  In my opinion, the adverse credibility findings made by the Tribunal were open to it on the material before it. 

6. The applicant has a particular concern about her proposition that she was relieved of the obligation to attend a labour camp because she was a nursing mother.  That proposition was specifically raised before the Tribunal but rejected. 

7. Ground 3 raises the proposition that some immunity to nursing mothers from the application of Chinese law, insofar as it calls for a custodial sentence, is provided by Article 214 of the Criminal Procedure Law of the People’s Republic of China.  The applicant also refers to Article 17 and Article 25 of the Prison Law of the People’s Republic of China. 

8. I do not have the advantage of having any Chinese legislation before me for perusal.  I asked the applicant if she had such material, and she answered in the negative.  It is apparent from the Tribunal’s decision record that it was not taken to the provisions of the Chinese criminal law which the applicant now seeks to rely upon.  In the circumstances, I see no arguable case of error in the Tribunal’s approach. 

9. The applicant also makes various allegations about things said and done by the Tribunal presiding member during the course of the Tribunal hearing.  I directed in procedural orders I made on 19 November 2014, which the applicant consented to, that any party wishing to rely on the evidence of the Tribunal hearing must file and serve a transcript of that hearing annexed to an affidavit.  The applicant has not done that.  I enquired whether she had available the sound recording of the Tribunal hearing.  She confirmed that she was given a CD containing the sound recording but she had not brought it with her.  In the circumstances, the applicant is not able to support any allegation of bias by the Tribunal with evidence. 

10. I otherwise agree with the Minister’s written submissions in relation to the grounds of review. 

Ground 1

1. The applicant alleges that the documents in support of her claim to be a Falun Gong practitioner submitted by her were not considered by the Tribunal member.  This cannot be factually made out.

2. The applicant provided no documentary evidence to the delegate. At the Tribunal hearing, the applicant submitted numerous photographs and statements from alleged Falun Gong practitioners, which the Tribunal set out in detail at [17]. The Tribunal then referred to the photographs at [54]-[55] and put to the applicant that the statements of the Falun Gong practitioners in China lacked detail and may be given little weight in support of her claims, as a result[8].

   [8] see [56] of the Tribunal decision record

3. The Tribunal held that the photos and letter did not overcome its concerns about the credibility or plausibility of the applicant's claims and they were afforded little weight[9].  Properly understood, the applicant takes issue with the factual findings of the Tribunal's decision.  This ground is not arguable.

   [9] at [77]

Ground 2

1. The second ground alleges that the Tribunal member regularly interrupted the applicant, which confused the applicant's thought process as the Tribunal member was “unfriendly and aggressive”.

2. There is no transcript before the Court to make good the applicant's assertion.  The Tribunal was cognisant of the difficulties faced by asylum seekers, including nervousness and anxiety in the hearing room[10].  It also considered the applicant's evidence that she was nervous before the Tribunal, but did not accept that this explained the shifting evidence in relation to what year the applicant's mother was detained[11].

   [10] at [65]

   [11] at [70]

3. Further, the inquisitorial nature of the Tribunal’s proceedings must be taken into account, such that the Tribunal is necessarily required to test an applicant’s evidence, often vigorously[12].

   [12] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [29]-[30]; SZRUI v Minister for Immigration [2013] FCAFC 80 at [4] per Allsop CJ, [24] per Flick J, [87] per Robertson J

4. The applicant also alleges that there were times which she felt like requesting an adjournment.  On the face of the decision, no adjournment request is evident and in fact, the Tribunal hearing record discloses that the hearing began at 1.15pm, with an adjournment taken between 3.20pm-3.40pm.  Accordingly, Ground 2 cannot be made out.

Ground 3

1. The third ground takes issue with the Tribunal’s finding that the applicant was not sentenced to a labour camp and asserts bias against the Tribunal member.  The applicant, in her show cause application, refers to country information which stated that pregnant women who are breast feeding would not be put into prison.

2. The applicant, at the Tribunal hearing, was provided with an opportunity to comment on country information which suggested that it was improbable that the applicant would be able to avoid detention simply because she had a young child.  The applicant did not point to any country information to the contrary and the information referred to by the applicant in this application was not before the Tribunal member.  Accordingly, the Tribunal’s findings were open to it, based on the material  before it.

3. With respect to the allegation that the Tribunal member was biased, an allegation of bias must be firmly established and distinctly made and clearly proved[13].  Without such particulars, this aspect of this ground must fail.

   [13] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J); Minister for Immigration v Jia (2001) 205 CLR 507, 531 [69] (Gleeson CJ), 546 [127] (Kirby J)

Ground 4

1. The fourth ground merely seeks that the Court consider the applicant’s situation, which does not assert any jurisdictional error on the part of the Tribunal.

2. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.   

3. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the amount of $3,300.  The applicant did not wish to be heard on costs.  The amount sought by the Minister is below scale, and I have no difficulty in accepting that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister, when considered on a party-party basis.

5. 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 $3,300.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 November 2015