SZVTR v Minister for Immigration

[2016] FCCA 151

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVTR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 151

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 424A, 425

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
NAHI v Minister for Immigration [2004] FCAFC 10
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
VTAG v Minister for Immigration (2005) 141 FCR 291

First Applicant: SZVTR

Second Applicant: SZVTS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3386 of 2014

Judgment of: Judge Driver

Hearing date: 1 February 2016

Delivered at: Sydney

Delivered on: 1 February 2016

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. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3386 of 2014

SZVTR

First Applicant

SZVTS

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 10 November 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.

2. There are two applicants, who are a husband and wife from China.  At the time of the Tribunal decision, the second applicant, the applicant wife, was pregnant with a child who has since been born.  That child was not a party to the visa application dealt with by the Tribunal.  The Tribunal, nevertheless, made some observations in relation to issues raised in relation to the child should the family return to China.  Notwithstanding that consideration, I see no obstacle to the child making his own visa application in the future should his parents consider that course is appropriate.

3. The following statement of background facts relating to the applicants’ protection visa claims and the decision of the Tribunal on them is derived from the Minister’s outline of submissions filed on 21 January 2016.

4. The first named applicant (the applicant) is a male citizen of China born on 8 January 1985. He arrived in Australia on 7 September 2013. The second named applicant is his wife.

5. The applicant applied for a protection (Class XA) visa on 2 December 2013, and the second named applicant applied as a member of his family unit.[1] His claims were set out in a statement accompanying the application.[2] The application was refused on 24 April 2014.[3]

   [1] court book (CB) 1

   [2] CB 36

   [3] CB 14

6. The applicants applied to the Tribunal for review of the delegate's decision on 21 May 2014.[4]

   [4] CB 67

7. The applicant gave oral evidence before the Tribunal on 29 October 2014.[5] The Tribunal made its decisions on 10 November 2014.

   [5] CB 118

8. The applicant claimed to fear harm on the basis of his Falun Gong practice. He claimed that he was persecuted in China for practising Falun Gong, including being detained, questioned, beaten and forced to write a confession.

9. The second named applicant also claimed to practise Falun Gong with the applicant in Australia and China.

The Tribunal’s decision

1. The Tribunal was not satisfied as to the applicant's credibility in relation to a number of his claims.[6]  In particular, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner in China.[7]  The Tribunal reasoned, in summary, as follows.

   [6] CB 142 at [55]-[56]

   [7] CB 142 at [55]

2. The Tribunal found the applicant's evidence and claims regarding the extent of his Falun Gong practice in China to be unconvincing when assessed against his failure to demonstrate before the Tribunal any real knowledge of underlying Falun Gong beliefs, philosophies and principles.[8]

   [8] CB 143 at  [60]

3. The Tribunal was not satisfied that the applicant had been arrested and detained and questioned by police from the “610 police station” in May 2013,[9] having regard to independent country information. The Tribunal found that the applicant’s claims overall were not consistent with the treatment that could be expected to be received by someone who claimed that he admitted he had practised Falun Gong previously and was the subject allegedly of a current police/610 investigation.[10]

   [9] CB 143 at [61]

   [10] CB 143 at  [62]

4. Having regard to the Tribunal’s concerns about the applicant’s overall credibility, and the credibility of his claims, the Tribunal was also not satisfied as to his material factual claims.[11]

   [11] CB 144 at [63]-[65]

5. The Tribunal was not satisfied that the applicant engaged in Falun Gong activities, practice, and conduct in Australia otherwise than for the purpose of strengthening his refugee claims. Accordingly the Tribunal disregarded that conduct in assessing the applicant's claims for refugee protection, pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act).[12]

   [12] CB 142 at [57]

6. The Tribunal considered the evidence of a witness’ supporting the applicant about the applicants’ involvement in Falun Gong activities, as well as the applicant’s written submissions in this regard but was not persuaded by either.[13]

   [13] CB 142 at [59]

7. The Tribunal considered the second applicant’s claims to have been involved in Falun Gong practice in China and Australia. Having regard to its credibility findings, the Tribunal was not satisfied that the second named applicant had engaged in Falun Gong practice in China or that she had engaged in activities in Australia otherwise than for the purpose of strengthening the applicants’ claims for refugee protection.[14]

   [14] CB 144-145 at [66]

8. The Tribunal also considered the applicant’s written statement in relation to this issue and the applicants’ claim regarding their unborn child being discriminated against in China on the basis of belonging to a Falun Gong family. However, the Tribunal found that the submissions did not alter its opinion that the applicants were not Falun Gong practitioners.

9. The Tribunal considered whether the applicants’ activities in Australia in terms of Falun Gong activities and practices would mean that the applicants would be at real risk or of a real chance of suffering significant harm should they be removed from Australia to China.[15]

   [15] CB 145 at  [68]

10. The Tribunal, having accepted that the applicants did engage in Falun Gong practice and activities in Australia,[16] acknowledged that these activities could have come to the attention of the Chinese authorities. However the Tribunal found that the applicant is not a high-profile practitioner, nor does he occupy any leadership or coordination role in Australia with Falun Gong practitioners.[17]

    [16] CB 145 at [68]

    [17] CB 146 at [71]

11. Consequently, the Tribunal found neither applicant was at risk of significant harm as a result of the applicant’s Falun Gong activities in Australia.[18]

    [18] CB 147 at [72]

The present proceedings

1. These proceedings began with a show cause application filed on 5 December 2014.  The applicants continue to rely upon that application.  Attached to the application is a document which, under the heading “Orders Sought by Applicant”, sets out seven paragraphs.  A further three paragraphs are set out under the heading “The Grounds of the Application are”.  The grounds as expressed are, in fact, a repetition of the applicants’ protection visa claims. 

2. The first applicant attended Court today and confirmed that the applicants intended that their grounds be those set out under the heading “Orders Sought by Applicant”.   The Minister’s submissions deal adequately with those grounds.

3. The first ground alleges that the Tribunal failed to comprehensively consider the applicant’s statement and evidence, in particular his commitment and actual involvement in Falun Gong in China and Australia.

4. The Tribunal did consider the applicant’s statement and evidence and this ground seeks to take issue with the Tribunal’s credibility finding.

5. The Tribunal set out the applicant's claims in detail from [13] - [15], as well as setting out the evidence the applicants and their witness gave at both Tribunal hearings from [17] - [53].

6. There is no suggestion on the face of the decision record that this evidence was not considered in the ultimate findings of the Tribunal.

7. The Tribunal gave clear, detailed and cogent reasons for its credibility finding, which was open to it to make as the decision-maker par excellence.[19]

   [19] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407, 423

8. Ground 2 again alleges that the Tribunal overlooked the applicant’s actual involvement with Falun Gong in Australia.

9. The Tribunal did not overlook the applicant’s involvement, it did however disregard the applicant’s conduct in Australia, pursuant to s.91R(3) of the Migration Act, because it was not satisfied that the applicant’s conduct in Australia was undertaken otherwise than to strengthen his protection claims. This was a finding open to the Tribunal to make.

10. For completeness, the Tribunal did correctly reconsider the applicants’ conduct in Australia, when considering s.36(2)(aa) of the Migration Act.

11. Ground 2 also complains that the Tribunal “made a decision by country information which is irrelevant in my case.”  In addition, Ground 5, takes issue with the Tribunal’s reliance on country information. The country information to which a Tribunal has regard and the weight it gives that information is a factual matter for that Tribunal.[20]

    [20] NAHI v Minister for Immigration [2004] FCAFC 10, [11]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 64-65 (Brennan J); VTAG v Minister for Immigration (2005) 141 FCR 291, 298 [41]

12. Ground 3 again seeks to cavil with the Tribunal’s credibility finding. It suggests the credibility finding was based solely on the fact that the applicant could not provide evidence in relation to his arrest, detention, interrogation and release. There were however, several other factors contributing to the Tribunal’s adverse credibility finding, such as inconsistencies, and the depth of the applicant’s knowledge of Falun Gong.

13. Ground 4 is simply a statement of disagreement with the Tribunal’s findings in relation to the second applicant’s involvement in Falun Gong, which are set out at [66]. These findings were reasonably open to the Tribunal on the facts and evidence before it.

14. Ground 6 alleges that the Tribunal failed to offer the applicants any chance to make a comment on outstanding questions from the hearing. There was no obligation on the Tribunal to allow the applicants any further time after the hearing.

15. Nevertheless, it is relevant to note that the applicants were afforded two hearings. At the conclusion of the second hearing the Tribunal put its concerns to the applicants and provided them with an opportunity to respond to those concerns. It was arguably not necessary for the Tribunal to do this, as there were no matters which enlivened its s.424A obligations. However the Tribunal may simply have been seeking to ensure compliance with s.425 of the Migration Act, and it allowed the applicants additional time to make written submissions, which they did, and which were taken into account by the Tribunal in making its decision.

16. Ground 7 alleges that the Tribunal failed to consider that the second named applicant was pregnant, and failed to consider the applicants’ claim to fear harm for that child due to their Falun Gong background. The Tribunal dealt with this claim at [66] and on the basis of its finding that the applicants were not Falun Gong practitioners in China, the Tribunal sufficiently dealt with the claim.

17. The applicant made oral submissions today.  He raised a number of issues not dealt with any specificity in the application before the Court.  The applicant asserts that the Tribunal showed bias or prejudgement.  That is said to have been based upon the first applicant’s impression at the hearing.  He referred to facial expressions used by the presiding member.  That is not something I am able to express any view about except to say that something more than alleged facial expressions would be needed to advance a case of bias.

18. Registrar Morgan made orders in this matter on 22 January 2015.  The applicants were given the opportunity to file and serve affidavit material, including a transcript of the Tribunal hearing.  They have not taken up that opportunity. 

19. The only evidence I have before me is the court book filed on 20 January 2015. I accepted the affidavit prepared by the first applicant and filed with the application as a submission. 

20. On the basis of the evidence before me, there is nothing to support an assertion of bias or prejudgement. 

21. The applicant also submits that the presiding member displayed ignorance about Falun Gong at the first hearing and that this was confirmed by his witness at the end of that hearing.  It is apparent that the Tribunal formed its view about the genuineness of the applicants’ claims not on the basis of any personal knowledge but on the basis of the material presented by the applicants and country information.  It is apparent from the Tribunal’s decision that the applicant and his witness were questioned at length about Falun Gong and their practice and knowledge of it. 

22. The applicant asserts that the evidence of his witness, Lin Zheng, should have been given more weight.  That evidence is recited by the Tribunal in its decision at [19] to [21]. [21]  The Tribunal’s conclusion about Mr Zheng’s evidence is dealt with very briefly at [59] of its reasons. [22]  All that can be said is that it is apparent that Mr Zheng’s evidence did not dispel the Tribunal’s concerns about the applicants’ claims of having been Falun Gong practitioners in China. 

    [21] CB 134

    [22] CB 142

23. The Tribunal did not accept that the applicants were practitioners in China at all or that they were genuine practitioners in Australia.  The Tribunal accepted that the applicants had engaged in Falun Gong activities in Australia but disregarded them on the basis that they were engaged in solely for the purpose of enhancing their protection visa claims.  It is apparent that that view by the Tribunal was formed notwithstanding the evidence of Mr Zheng.  While a more comprehensive discussion of the Tribunal’s views about Mr Zheng’s evidence might have been helpful, the allocation of weight is a matter for the Tribunal.  I see no arguable case of jurisdictional error by the Tribunal in relation to its treatment of the evidence of Mr Zheng.

24. The applicant also made submissions concerning the Tribunal’s treatment of his wife’s claims, including in relation to their unborn child.  In that regard, it should be noted that no claims were advanced on behalf of the then unborn child separate from the claims of the applicants themselves.  The rejection of the applicants’ claims necessarily involved the rejection of any assertion of a likelihood of harm of the child.  Although the second applicant claimed to be a Falun Gong practitioner as well as the husband, her claims were, essentially, supportive of those of the applicant.  As a matter of practical reality, her claims stood or fell with those of the applicant.

25. The applicants have not persuaded me that there is an arguable case of jurisdictional error by the Tribunal. 

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

27. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.   The applicant did not wish to be heard on costs.  The second applicant did not appear at today’s hearing due to her family responsibilities. 

28. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

29. I will also order that the name of the second respondent be amended to the Administrative Appeals Tribunal.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 February 2016