SZVMK v Minister for Immigration & Border Protection
[2015] FCCA 1730
•23 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVMK v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1730 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth) s.477 Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Cases Cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZVMK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3147 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 23 June 2015 |
| Date of Last Submission: | 23 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitor for the Respondents: | Mr Mikhail Glavac (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3147 of 2014
| SZVMK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 12 November 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 24 September 2014 and handed down on 25 September 2014 (“the RRT”).
On 5 March 2015, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the matter was adjourned to 19 March 2015.
On 19 March 2015, the applicant again attended a directions hearing before a Registrar of the Court. The applicant confirmed she wished to continue with her application for judicial review of the RRT’s decision. At that time, the applicant required an extension of time to bring an application for judicial review. Whilst the Orders made on 19 March 2015 do not address the issue of whether the applicant should be granted an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth), they are plainly made predicated on the basis that time would be extended to the applicant and, accordingly, I formally make that Order.
At the directions hearing, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 16 June 2015. The applicant was also directed to file and serve written submissions in support of the grounds of her application by 16 June 2015.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant, together with a copy of the costs schedule.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The first respondent, in written submissions, summarised the background of the applicants’ claims and the RRT’s decision, as follows:
“Background
4.On 22 June 2013, the applicant, a citizen of China, arrived in Australia. On 8 July 2013, the applicant applied for the protection visa. On 3 March 2014, a delegate of the Minister refused to grant the protection visa to the Applicant (Delegate's decision).[1] On 28 March 2014, the applicant applied to the Tribunal for review of the Delegate's decision.[2]
[1] Court Book (CB), 44.
[2] CB, 60-64.
5.By letter dated 23 July 2014, the Tribunal wrote to the applicant inviting her to attend a hearing.[3] The applicant attended the hearing on 19 September 2014.[4]
[3] CB, 69-70.
[4] CB, 69, note that at [3] of the DR the Tribunal refers to 20 September 2014. This appears to be a slip error.
6.On 24 September 2014, the Tribunal affirmed the Delegate's decision, notifying the applicant by letter dated 25 September 2014.[5] On 11 November 2014, the applicant applied to this Court for judicial review of the Tribunal's decision and for an order extending time to apply pursuant to s.477(2) of the Act.
[5] CB, 74.
Applicant's claims for protection
7.The applicant's claims for protection were based on the alleged persecution she had suffered in China based on her Falun Gong activities. The applicant's claims were set out in a written statement sent to the Department on 16 July 2013 (written statement),[6] and elaborated upon at the Tribunal hearing on 20 September 2014.
[6] CB, 33-36
Written Statement
8.The applicant claimed that:
a) she became involved with Falun Gong in February 1996 through a friend and colleague at work (referred to as “Master Wang”. Her activities in 1996 included practicing the exercise of " Buddha Stretching a Thousand Arms" under the direction of Master Wang and handing out leaflets at a park;
b) due to her "active involvement” with Falun Gong the police "noticed" her and searched her house. The applicant stated that, " when the police came… she was out shopping, otherwise she would definitely have resisted them and then been detained";[7]
[7] CB, 77 (DR [9]).
c)she was blackmailed by her employer who threatened to report her to the Government for practising Falun Gong unless she did " many things that were against her conscience";[8]
[8] CB, 77 (DR [9]).
d) she practiced Falun Gong every two Months under Master Wang's instruction until her mother "forbade her". She then continued to practise secretly in her room from August 1997 to 2011;[9]
[9] CB, 77 (DR [9]).
e) in October 2011 she made contact with a Falun Gong organisation and on 14 October 2011 she regathered with five other Falun Gong practitioners at Master Wang's home. She was discovered by police on 9 March 2012 and taken to the police station.[10] She was detained for 24 hours and interrogated by an "angry policeman" who sealed her mouth with adhesive tape and shouted at her. She sustained injuries during the detention;
[10] CB, 77-78 (DR [9]).
f) after her detention, and because of her involvement with Falun Gong, she was fired by her employer, and her son was "was mistreated and isolated";[11]
[11] CB, 78 (DR [9]).
g) at the suggestions of her husband, in March 2013, the applicant travelled to South Korea (As Australia was too far),[12] but felt discriminated against in that county and returned to China. Upon her return, the applicant was interrogated again and detained for 24 hours by Chinese authorities. The applicant decided to finally leave China for Australia; and
[12] In the written statement the applicant actually said she travelled to "North Korea", however the Tribunal hearing seems to have proceeded on the basis that the applicant travelled to South Korea: see DR at [19], [50]. The stamps in the scanned copy of the applicant's passport included on the Tribunal file are not sufficiently legible to determine the question. In any case, nothing turns on whether North or South Korea was intended by the applicant. The fact of the applicant's travel to "Korea" was only dispositive in that, first, it evinced the applicant's ability to travel freely, despite allegedly being of interest to Chinese authorities (see DR at [47]-[48]) and, second, that she returned to China because she felt she was "looked down on" in Korea, despite claiming to fear persecution in China (see DR at [46]).
h) following her arrival in Australia on 9 July 2013, her husband had advised her not to return because the police were still interested in her and she was known to them as a person with connections with local Falun Gong organisations.
Tribunal hearing
9.At the hearing the applicant elaborated on her written statement in response to the Tribunal's questioning. In summary, the applicant asserted that:
a) she decided to leave China because, after having been arrested on the first occasion in "March 2011", she was required to report monthly to the police station as a known member of Falun Gong. She was at Master Wang's home when she was arrested and, as she was a bit "introverted" in her police interrogation, she did not admit that she was a member of Falun Gong, but merely stated that she "liked to help them";[13]
b) she first became involved with Falun Gong in 1996 and practiced with Master Wang "three or four times", but afterwards took to practising in private because her mother found out about her association with the group and "others might look at her strangely" if she went to practice with the group. She claimed that she practiced Falun Gong in private "when she felt upset or couldn't sleep";[14]
c)Falun Gong was banned in China in 1996, about "half a year" after she had "started to know" about Falun Gong;[15]
d) she knew only two Falun Gong exercises;[16]
e) she was not currently involved with Falun Gong, but was "listening to Buddhist doctrine";[17] and
f) there was no reason that she was afraid of returning to China that she had not mentioned to the Tribunal.[18]
[13] DR at [18], [25]-[26].
[14]CB, 80 (DR at [22]-[23]).
[15] CB, 80 (DR at [24]).
[16] CB, 81, (DR at [27]).
[17] CB, 82 (DR at [32]).
[18] CB, 82 (DR at [32]).
10.The Tribunal sought to explore the applicant's knowledge of Falun Gong exercises by asking if she could demonstrate any of the Falun Gong exercises.[19] The applicant demonstrated the exercise mentioned in the written statement ('Buddha Stretching a Thousand Arms') and the other exercise she knew ('Nine Levels Buddhist Fa'). She performed both while seated on the floor.[20]
[19] CB, 81 (DR at [30]).
[20] CB, 81 (DR at [30]).
Tribunal decision
11.The Tribunal had concerns about the applicant's evidence which it put to her during the course of the hearing, namely that:
a) country information indicated that Falun Gong was banned in China in July 1999, not July 1996 as was contended by the applicant. The applicant responded that Falun Gong "was already banned in her work unit" as of July 1996;[21]
[21] CB, 80 (DR at [24]).
b) it "had great difficulty reconciling" the length of the applicant's alleged practice of Falun Gong with her evidence that she knew only two Falun Gong exercises. The Tribunal also noted that the applicant could not name the five exercises described by Master Li, who founded Falun Gong;[22]
[22] CB, 81 (DR at [28]).
c) according to information on Falun Gong practices, the applicant's demonstration of "Buddha Stretching a Thousand Arms" ought to have been performed standing and the applicant's demonstration of "Nine Levels Buddhist Fa" did not resemble the exercise she performed even though it is performed while seated;[23]
[23] CB, 82 (DR at [31]).
d) country information indicated that Chinese authorities act to stop Falun Gong practitioners from leaving China and thus, as the applicant had left China on a passport in her own name, this suggested that she had never come to the adverse attention of the Chinese authorities because of her Falun Gong activities;[24]
[24] CB, 82 (DR at [33]).
e) there were inconsistencies between the written statement and the oral information provided by the applicant at the hearing, including the year in which she was first arrested;[25] and
[25] CB, 82 (DR at [34]).
f) it had no medical evidence before it which indicated that the depression the applicant claimed to suffer would prevent her from recalling details of her claims.[26]
12.The Tribunal found that the applicant was not a credible witness and rejected her claims in their entirety.[27] It accepted that Falun Gong has been banned by the Chinese government, and its practitioners are subjected to serious mistreatment in China,[28] but noted that:
a) the applicant had provided inconsistent evidence in her written statement and at the hearing;[29]
b) the applicant's evidence about her involvement with Falun Gong was vague and unconvincing, and she lacked both knowledge of Falun Gong and the ability to correctly perform its core exercises;
c)the applicant's claim to have returned to China from South Korea because "people looked down on her" was not a plausible explanation for why she returned to a country in which she feared persecution;[30] and
d) the fact the applicant was able to travel out of China to South Korea and Australia on her own passport indicated that she was not of any adverse interest to the Chinese authorities for any reason.[31]
13.In light of its findings regarding the applicant's credibility, the Tribunal was not satisfied that the applicant met either the refugee criterion or the complementary protection criterion.[32] On 24 September 2014 the Tribunal affirmed the delegate's decision to refuse to grant a protection visa to the applicant.”
[26] CB, 84 (DR at [42]).
[27] CB, 84 (DR at [40]). The matters that the Tribunal did not accept are itemised at DR [50]-[51].
[28] CB, 84 (DR at [41]).
[29] CB, 84 (DR at [42]).
[30] CB, 86 (DR at [46]).
[31] DR at [47]-[48]. Note that the applicant gave evidence at the hearing that on both occasions that she left China, first to travel to South Korea and then later to travel to Australia, she did so without issue (DR at [21]).
[32] DR at [52]-[55].
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
The applicant confirmed that no further documents had been filed by her, either in accordance with those directions, or otherwise. The applicant further confirmed that she had no further documents to provide to the Court this morning.
The applicant confirmed that she relied on the ground contained in her application for judicial review, filed on 12 November 2014, as follows:
“1. The tribunal stated that I was able to depart China without difficulty indicates that I was not of any adverse interest to the Chinese authorities. However, the tribunal did not see the fact that I was persecuted. The tribunal would not accept that I am true refugee in the first place, otherwise the tribunal should take my evidence more seriously.”
The ground was interpreted for the applicant, who was invited to say whatever she wished in support of that ground. Without responding in any clear manner to the ground, the applicant appeared to suggest that she was suffering from depression at the time that she appeared before the RRT.
The first respondent tendered a bundle of documents, identified as the ‘Court Book’ and filed on 31 March 2015, which was marked Exhibit 1R. Exhibit 1R contains a copy of the RRT’s reasons. Those reasons refer specifically to the applicant’s response to various concerns put to her by the RRT regarding her claim to be suffering from depression. The RRT noted that while the applicant may suffer from depression, the RRT did not have any medical evidence before it to indicate that the depression from which she suffered would prevent her from recalling details of her detention. Accordingly, the RRT did not accept that her depression was sufficient to adequately explain the inconsistencies in her evidence.
Ultimately, the RRT found that the applicant was not a credible witness. The RRT found the applicant’s oral evidence presented at the RRT hearing to be inconsistent with her written claims. The RRT further found the applicant’s evidence about her practice of Falun Gong in China to be vague and unconvincing, and that her knowledge of Falun Gong was not consistent with a person who claimed to have practiced Falun Gong in China in the circumstances that she did.
The RRT ultimately found that the applicant fabricated her claims for protection in their entirety. The RRT’s decision record discloses various exchanges it had with the applicant about her claims and notes matters of concern it had about her evidence and notes her responses. There is nothing on the face of the RRT’s decision record to suggest that the RRT’s adverse credibility findings were not open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
I understand the applicant’s complaint to be more in the nature of a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 12 November 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 7 July 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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