SZVWK v Minister for Immigration

[2016] FCCA 1053

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWK & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1053

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in rejecting the claims of the second applicant in circumstances where it found that the second applicant’s claims were intrinsically linked to the claims of the first applicant and the first applicant’s claims were comprehensively rejected – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZNSP & Anor (2010) 184 FCR 485
Applicant S20/2002 198 ALR 59

First Applicant: SZVWK

Second Applicant: SZVWL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3552 of 2014

Judgment of: Judge Emmett

Hearing date: 4 May 2016

Date of Last Submission: 4 May 2016

Delivered at: Sydney

Delivered on: 4 May 2016

REPRESENTATION

Counsel for the Applicants: Mr Ben Zipser

Solicitor for the Respondents: Ms Priscilla Blackadder
(Sparke Helmore Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3552 of 2014

SZVWK

First Applicant

SZVWL

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 27 November 2014 and handed down on 28 November 2014 (“the Tribunal”).

2. The first applicant is a citizen of the People’s Republic of China (“China”) and claims to be a Falun Gong practitioner, who fears harm from the Chinese authorities (“the First Applicant”). The second applicant is the wife of the First Applicant and was included in the First Applicant’s application for a protection visa (“the Second Applicant”). The Second Applicant advanced claims for protection that largely corroborated the claims of the First Applicant.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 3 August 2012, the second applicant arrived in Australia as the holder of a student guardian visa.

2. On 15 June 2013, the Applicant arrived in Australia on a visitor visa.

3. On 9 September 2013, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

4. On 30 April 2014, the Delegate refused the Applicant’s application for a protection visa.

5. On 25 May 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

6. On 27 November 2014, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

7. On 19 December 2014, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

5. Sections 36(2A) and 5 of the Act defines “significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicants’ application for a protection visa

1. The Applicant provided a statement in support of his protection visa application in which he stated:

   a)In 1985, when still a university student, the First Applicant became involved in student organisations and subsequently involved in demonstrations against government corruption and demonstrations in favour of democracy.

   b)The First Applicant was subsequently allocated to a small and poor city and because he had no money to bribe his boss, the First Applicant was made to do manual labour.

   c)In May 1989, the First Applicant went to Beijing to join other student protestors in the fight against government corruption and to democracy. As a result, the First Applicant’s wages were garnisheed and he was forced to write self-criticism every day.

   d)In August 1990, the First Applicant moved back to his hometown, after paying a bribe. However, the person he bribed was replaced and he was soon unemployed.

   e)During this period, the First Applicant met some Falun Gong practitioners and was introduced to Falun Gong. He soon became the main organiser of Falun Gong activities.

   f)Due to the government crackdown on Falun Gong practitioners, the First Applicant lost his home and his freedom.

   g)On 20 November 2003, the First Applicant escaped to Malta. He then escaped to the United Kingdom because he was unsure whether Malta was safe.

   h)During this period of time, the Second Applicant and the daughter suffered due to their connection with the First Applicant.

   i)In March 2007, the Second Applicant was beaten severely and almost died. In order to protect the Second Applicant, they were divorced on 20 July 2007;

   j)On 3 January 2010, the First Applicant returned to China after he was told by a friend that it is now safe. He later remarried the Second Applicant.

   k)The First Applicant continued to practise Falun Gong after he returned to China, often at his brother’s house in the countryside;

   l)On 23 July 2011, the First Applicant’s brother was arrested along with other Falun Gong practitioners. The brother was subsequently tortured and killed by the Chinese authorities because the brother refused to tell the authorities the whereabouts of the First Applicant.

   m)After the death of the brother, the First Applicant continued to practise Falun Gong at his shop, but the Bureau of Industry and Commerce found Falun Gong related books at his shops and cancelled his business licence.

   n)The First Applicant went into hiding and escaped to Australia.

   o)The First Applicant is afraid that if he returns to China, he would be captured by the authorities and subjected to forced organ harvesting.

2. In addition, the Second Applicant claimed that she was harassed by the Chinese authorities due to the First Applicant’s status as a Falun Gong practitioner. She stated that in March 2007, she was beaten by the Chinese authorities and almost died from her injury.

The Delegate’s decision

1. On 31 January 2014, the applicants attended an interview with the Delegate.

2. On 14 February 2014, the Delegate wrote to the applicants, informing them that the Department had received adverse information in relation to the First Applicant’s protection visa application.

3. On 30 April 2014, the Delegate refused the applicants’ application for protection visas on the basis that the applicants are not persons to whom Australia has protection obligations under the Convention and do not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 25 May 2014, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 18 September 2014, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 14 October 2014 to give oral evidence and present arguments. The hearing was rescheduled to 7 November 2014.

3. On 7 November 2014, the applicants attended the Tribunal hearing and gave evidence.

4. The Tribunal explored the First Applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicants country information for comment. The Tribunal identified with particularity the country information to which it had regard.

5. The Tribunal rejected the First Applicant’s claim that he has a genuine fear for his life in China due to his status as a Falun Gong practitioner. The Tribunal found the First Applicant’s failure to seek protection while he was in the United Kingdom and Malta, and his subsequent return to China from the United Kingdom, to be inconsistent with this claim.

6. The Tribunal also found that despite the First Applicant’s claim that he was persecuted by the Chinese authorities due to his status as a student activist and a Falun Gong practitioner, he was able to obtain a business licence and passport renewals from the Chinese authorities. Having regard to country information, the Tribunal found the First Applicant’s claims to be implausible.

7. In light of the Tribunal’s concerns over the First Applicant’s credibility, the Tribunal placed little weight on the witness statement that was provided to the Tribunal following the hearing. The Tribunal noted that it “would not be difficult for the Applicant to get a person to write such a statement”. The Tribunal’s concerns over the First Applicant’s credibility also led it to conclude that the First Applicant’s brother’s death was not caused by the Chinese authorities, although the Tribunal did accept that the First Applicant’s brother had died.

8. Further, since the Tribunal found the Second Applicant’s protection claims to be intrinsically linked to the claims of the First Applicant, in light of its credibility concerns over the First Applicant’s claims, the Tribunal rejected all of the Second Applicant’s claims for protection.

9. The Tribunal also considered whether the applicants met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country, China, there is a real risk that the applicants would suffer significant harm.

10. Accordingly, having determined that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

11. On 27 November 2014, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa. 

The proceeding before this Court

1. The applicants were represented before this Court by Mr Ben Zipser, of counsel. 

2. Mr Zipser confirmed that the applicants relied only on Ground 1 in his initiating application filed on 19 December 2014, as follows:

   “1. The Tribunal, at paragraph 24 of its decision, did not accept the evidence of the second applicant because of its concerns about the credibility of the first applicant. This reasoning process involved jurisdictional error.”

3. At the heart of Mr Zipser’s submissions is a complaint about the manner in which the Tribunal considered the Second Applicant’s claims.  The Second Applicant’s claims, as stated in her protection visa application, are as follows:

   “44. Have you experienced harm in that country?

   Yes, I have. Because my husband practiced ‘falungong’ and was found by the government. He escaped to overseas. The government could not find him. They always came to my house and took me somewhere. Then, they let me tell them where my husband was, but I did not do that, so they hit me. In March 2007, they caught me again and hit me, which nearly cause me to die. I stayed in hospital for 3 months. I have photos as evidence.

   45. What do you fear may happen to you if you go back to that country?

   In May 2013, the government discovered my husband practice ‘falungong’ again. I fear that the government would do the same things again, including asking and hit me.

   46. Who do you think may harm/mistreat you if you go back?

   The people from the government will harm me.

   47. Why do you think this will happen to you if you go back?

   The policies to ‘falungong’ of the government were not changed. I clearly know what they will do to the practicers of ‘falungong’ and their family.

   48. Do you think the authorities of that country can and will protect you if you go back?

   The government regards the practicers of ‘falungong’ and their family as the enemy.”

   (Errors in original; emphasis added).

4. In support of his submissions, Mr Zipser read the affidavit of Ziyi Cui, affirmed on 26 April 2016, annexing a transcript of the Tribunal hearing. Mr Zipser took the Court to two exchanges that the Second Applicant had with the Tribunal about her claims. Those exchanges are as follows:

   “Member: Now tell me why you left China and why you don’t want to go back?

   Second Applicant: The main reason is that my husband practice Falungong. Previously he practices Falungong a lots of people came to my home to find him. They came many times. For several occasions, I was taken ways by force. I was detained for a few days.

   Member: Please slowly. Thank you.

   Second Applicant: And also I was beaten.

   …

   Member: Who beat you up?

   Second Applicant: The government people came to my home and find my husband but he was not home and then I was taken away. And then they investigated me and I was detainee in the basement and they start investigation. I was asked where my husband was. I did say I said I did not know then they beat me up.

   Member: Thank you.

   Second Applicant: After the beating and my memory become very bad and I could not remember lots of things.

   (Errors in original; emphasis added).

5. A fair reading of the Second Applicant’s claims made clear that any harm she allegedly suffered in China was due to her marriage to the First Applicant who was a Falun Gong practitioner and who was persecuted for that reason.

6. However, the Tribunal rejected the First Applicant’s claims ever to have been involved in any Falun Gong activities in China or Australia, or to have suffered any harm for that reason. The Tribunal’s decision record discloses a detailed exchange between the Tribunal and the First Applicant. The Tribunal explored the First Applicant’s claims with him in some detail and put to him concerns it had about his claims, including his claim to have been involved in anti-government demonstrations in China.

7. Ultimately, upon consideration of the First Applicant’s evidence as a whole, and in light of the Tribunal’s credibility concerns regarding that evidence, the Tribunal did not accept that the First Applicant was ever involved in any demonstrations against the government in China that was or could have been perceived as ‘anti-Chinese authorities’.  The Tribunal found that the First Applicant had never suffered harm in China for any of the reasons claimed. Although the Tribunal accepted that the First Applicant’s brother had passed away, it rejected the First Applicant’s claim that his brother’s death was caused by the Chinese authorities.

8. The Tribunal acknowledged that the Second Applicant had made separate claims and summarised them at the outset of its decision record.  The Tribunal then, under a separate heading “The Claims of the Secondary Applicant”, considered those claims. However, in circumstances where the Tribunal comprehensively rejected the Applicant’s claims to have been a Falun Gong practitioner or ever to have suffered harm for that reason or any other reason in China, it is unsurprising that the Tribunal did not accept the evidence of the Second Applicant. The Tribunal found her claims to be “intrinsically linked” to those of the First Applicant.

9. In the circumstances, The Tribunal did not accept that the Second Applicant had ever been harmed in China as a result of the First Applicant’s practice of Falun Gong, or that the authorities ever went to her house, or that she was ever taken anywhere by Chinese authorities; was ever assaulted or physically abused by Chinese authorities; was almost killed by Chinese authorities or that she fears that the government would discover the First Applicant’s Falong Gong practice again and would cause her harm. 

1. In rejecting the Second Applicant’s claims, the Tribunal also had regard to two photographs showing facial injuries to the Second Applicant.  The Tribunal accepted that the Second Applicant had suffered facial injuries. However, in consideration of the evidence as a whole, and having regard to its adverse credibility findings in respect of the First Applicant’s claims, the Tribunal did not accept that those injuries were the result of abuse or physical ill-treatment by the Chinese authorities as claimed by the Second Applicant. 

2. The Tribunal's findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

3. Mr Zipser also referred the Court to Minister for Immigration and Citizenship v SZNSP & Anor (2010) 184 FCR 485 at [36], where North and Lander JJ referred to the principle espoused in Applicant S20/2002 198 ALR 59 that where an applicant’s claims have been found to be fabricated and credibility poisoned beyond redemption, and a tribunal is entitled to reject evidence which would, if accepted, have been corroborative of the applicant’s account.

4. In his written submissions, Mr Zipser contends that in light of those authorities, the Tribunal was required first to consider the Second Applicant’s evidence and assess her claims, then make a determination of the weight the Tribunal would place on any corroborating evidence. 

5. I do not accept that submission.  In the present case, the claims of the Second Applicant were found to be “intrinsically linked” to those of the First Applicant. As stated above, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave. In light of that finding, the Second Applicant’s claims could not have been accepted where those of the First Applicant had been rejected. 

6. There is no error in the Tribunal’s conclusion that neither of the applicants satisfied the protection criterion under s.36(2)(a) of the Act or the complementary protection criterion under ss.36(2)(aa) of the Act and none is alleged.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the First Applicant matters of concern it had about his evidence and noted the First Applicant’s responses. The Tribunal discussed with the First Applicant the independent country information before it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  18 May 2016