SZVVR v Minister for Immigration

[2016] FCCA 1137

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVVR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1137

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal failed to properly exercise its jurisdiction – real chance test – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

First Applicant: SZVVR

Second Applicant: SZVVS

Third Applicant: SZVVT

Fourth Applicant: SZVVU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3484 of 2014

Judgment of: Judge Street

Hearing date: 12 May 2016

Date of Last Submission: 12 May 2016

Delivered at: Sydney

Delivered on: 12 May 2016

REPRESENTATION

Counsel for the Applicants: Mr L Karp

Solicitors for the Applicants: Christopher Levingstone & Associates

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The amended application is dismissed.

2. The first and second applicants pay the costs of the first respondent fixed in the amount of $5900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3484 of 2014

SZVVR

First Applicant

SZVVS

Second Applicant

SZVVT

Third Applicant

SZVVU

Fourth Respondent

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ, within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 11 November 2014, affirming a decision of the delegate not to grant the applicants Protection (Class XA) visas.

2. The first applicant is the mother of the third and fourth applicants and her husband is the second applicant.  The second, third and fourth applicants do not advance independent claims for protection, but rely upon being family members in respect of the application made by the first applicant. 

3. All applicants were found to be citizens of China and their claims were assessed against that country.  The first applicant arrived in Australia on 13 June 2009, with a subclass UR163 visa, using a passport issued by the People’s Republic of China.  The first applicant applied for a subclass UR163 visa on 28 July 2008, which was granted on 21 January 2013, and was to expire on 28 October 2013. 

4. The first applicant thereafter departed Australia on 8 July 2010 and retuned on 26 August 2010.  The first applicant again departed on 7 April 2011 and returned on 6 May 2011.  The first applicant again departed on 20 March 2012 and returned to Australia on 26 April 2012.  The first applicant then departed on 11 April 2013 and arrived in Australia on 30 April 2013. 

5. It was not until 21 June 2013 that the first applicant lodged her application for protection.  The first applicant claimed to fear harm of persecution in China because of her involvement with a group named the Society of Primary Education.  The first applicant contended that she advocates the removal of Young Pioneers of China movement from the Chinese primary education system.  The first applicant also feared persecution on the basis of her political opinion. 

6. The first applicant claims that two other persons associated with her, in forming the Society of Primary Education, have been imprisoned for inciting subversion of state power.  The delegate found the first applicant was not a witness of truth, and that the first applicant had embellished or entirely fabricated her material claims. It was in those circumstances the delegate found that the first applicant did not meet the criteria for the grant of a visa. 

7. The applicants were invited to, and attended, two hearings before the Tribunal on 16 October 2014 and 4 November 2015 to give evidence and present arguments.  Relevantly, the Tribunal found that it was not satisfied that the first applicant had a well-founded fear of persecution if she returns to China, based on her claim that she will be persecuted because of her political opinion.

8. The Tribunal found it was not satisfied that the Society of Primary Education, that the first applicant claims to have established, exists.  The Tribunal found it was not satisfied as to the applicant’s credibility in relation to a number of claims.  The Tribunal in particular referred to the applicants’ delay in the application for protection, and relevantly said:

   I am not satisfied, having regard to my concerns about the applicant’s credibility, and credibility of her claims, that the submissions, material and information advanced by the applicant satisfied the tribunal of the applicant’s claims. 

9. That material included material in relation to the Criminal Code of People’s Republic of China, in relation to those engaged in the subversion of political power. It was in those circumstances that the Tribunal found it was not satisfied in relation to the applicants’ claims.

10. The Tribunal found that, having regard to the totality of the evidence, the findings regarding the credibility of the first applicant, and the credibility of a number of her claims, the Tribunal did not believe that there is a real chance of persecution of the first applicant for her claimed political opinion or her political activities, should she return to China now in the reasonably foreseeable future. The Tribunal also found that there is not a real risk that the first applicant would suffer significant harm if removed from Australia to China. 

11. The ground of the amended applications is as follows:

    1. The Tribunal failed to lawfully exercise its jurisdiction by failing to consider and decide the claim that formed the basis of the first applicant's application, that being that she fundamentally disagreed with the Chinese government policy of politically indoctrinating children in the course of their primary application.

12. It is clear from para.9 of the Tribunal’s reasons that the Tribunal understood that there was a claim by the first applicant of fear of persecution on the basis of her political opinion. 

13. Mr Karp of counsel took the Court to the Tribunal’s reasons and, relevantly:

    27. … She was asked about her statements in support of her protection application outlining her views and in particular the statements in response to question 43 and 48 of her application. The applicant indicated that her philosophical views regarding primary school education reform in China were correctly stated in her responses to those questions.

    28. The applicant was also asked about a reference to a political agenda or priority for the Society. The applicant said political reform of the Chinese political system was a longer term goal of the Society. That objective was more broadly stated in the documentation provided to the delegate and did not appear to be restricted to primary education reform.

14. Mr Karp advanced the contention that the Tribunal had focused on the existence of the society and had not made findings in relation to the first applicant’s claim in respect of her political opinion and views held relating to the Chinese government policy of politically indoctrinating children in the course of their primary education. 

15. Mr Karp of counsel submitted that the Tribunal should have made express findings in relation to the applicant’s views of a political kind in relation to the Chinese government’s policy of indoctrinating children.  Attention was also drawn to the sentence in para.55 of the Tribunal’s decision, referring to a fear of harm of persecution in China because of her involvement with the society. 

16. Mr Karp contended that there was no discussion or finding about whether the first applicant really did have a political opinion opposed to political indoctrination of children and the existence of the Young Pioneers of China.  The Tribunal’s reasons in para.27 quoted above refer to the first applicant’s response to questions in her application.

17. Question 43 asked why the first applicant left China, and the substance of the response in that regard referred to the Young Pioneers being a political organisation for children aged 6 to 14 solely for the purpose to instil communism into the mind of those children, so that they could be loyal to the communists from their childhood. 

18. Mr Karp of counsel accepted that it was the substance of that answer that was the basis for the contention of the first applicant’s alleged political opinion further identified in answers given in response to questions 45, 46, and 47, as well as 48, in the application.  Mr Karp contended that the structure of the Tribunal’s reasons should be read as focusing solely upon the existence of the society. 

19. The Tribunal’s reasons are not to be read with a keen eye for error.  The reference to both question 43 and question 48 identifies that the Tribunal differentiated between the existence of a society, and fears relating to the first applicant’s political opinion.  After para.27, the following para.28 makes that clear, where the Tribunal refers to the applicant “was also asked”. 

20. Of a fair reading of the Tribunal’s decision, the Tribunal properly identified the first applicant’s claim in relation to a fear of persecution on the basis of her political opinion, and made a finding that was open to it, that the first applicant did not have a well-founded fear of persecution if she returns to China, based on her claim that she will be persecuted because of her political opinion. 

21. That finding was reinforced by what was said by the Tribunal at para.48, that it did not believe there was a real chance of persecution of the first applicant for her claimed political opinion or political activities should she return to China now or in the reasonably foreseeable future. 

22. I do not accept the contention that there was no finding in relation to the first applicant’s political opinion.  Further, I do not accept the submission that the Tribunal’s focus was confined to the existence of the society.  I do not accept the submission that the Tribunal failed to lawfully exercise its jurisdiction, as alleged in the amended application.  The amended application fails to make out any jurisdictional error.  The amended application is dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 May 2016