SZVWY v Minister for Immigration

[2016] FCCA 189

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 189

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – 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, 425, 426, 447, 477

Minister for Immigration v MZYTS [2013] FCAFC 114
Minister for Immigration v SZNVW (2010) 183 FCR 575
Minister for Immigration v SZNCR [2011] FCA 369

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 25
NABE v Minister for Immigration (No. 2) [2004] FCAFC 263; (2004) 219 ALR 27
Re Minister for Immigration ; ex parte Durairajasingham (2000) 168 ALR 40
SZQWL v Minister for Immigration [2012] FMCA 388

Applicant: SZVWY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3580 of 2014

Judgment of: Judge Driver

Hearing date: 4 February 2016

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms S Given of Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application under s.476 of the Migration Act is extended up to and including 22 December 2015.

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

4. The applicant is 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 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3580 of 2014

SZVWY

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 by the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 13 November 2014.   The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his asserted practice of Falun Gong.  Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s written submissions.  

2. The applicant, a citizen of China, first arrived in Australia on 1 September 2013 as the holder of a visitor (class FA) visa[1]. On 23 September 2013, the applicant applied for a protection (class XA) visa[2].

   [1] Court Book (CB) 52

   [2] CB 1

3. The applicant claimed to fear harm in China because he was a practitioner of Falun Gong. The applicant claimed to have begun practising Falun Gong in 1998 having seen people practising in a local park.  The applicant claimed that in 1999 people were forbidden from practising Falun Gong and the police made practitioners (including the applicant) sign a guarantee that they would stop.  The applicant claimed he continued to practise in secret.  The applicant claimed that police visited him in October 2012 and May 2013 to ensure that he had given up Falun Gong[3].

   [3] CB 18

4. On 11 February 2014, a delegate of the Minister refused to grant the protection visa[4]. On 12 March 2014, the Tribunal received an application for review of the delegate’s decision[5].

   [4] CB 60

   [5] CB 61

Tribunal decision

1. On 13 November 2014, after a hearing on 17 September 2014[6], the Tribunal affirmed the decision under review[7].

   [6] CB 76

   [7] CB 86

2. The Tribunal had “serious concerns” about the reliability of the applicant’s evidence and, when considered cumulatively, found that the applicant was not a “reliable or credible witness”.  The Tribunal found the applicant’s evidence to be “vague, confused and inconsistent, and appeared to evolve and develop over time …”[8].

   [8] CB 94 at [47]

3. The Tribunal’s concerns with the applicant’s evidence included the applicant’s claims about his encounters with the authorities. In the applicant’s written statement, he only mentioned that the police came to his house in October 2012 and May 2013. However, at the hearing, the applicant claimed he had “continuous problems” with the authorities[9].

   [9] CB 94 at [48]

4. The applicant claimed that he was detained twice, and was mistreated and beaten in detention[10].  When providing an explanation for why he was detained, the applicant claimed for the first time that “on numerous occasions” he had engaged in protests outside government buildings about the mistreatment of Falun Gong partitioners. The applicant claimed to have participated in such protests “every year”, which resulted in a warning and a fine[11].

   [10] CB 95 at [49]-[51]

   [11] CB 95 at [52]

5. The Tribunal found it “difficult to understand and accept” that these matters would only be raised at the hearing and would not be included in the applicant’s written statement, particularly in circumstances where the applicant was represented[12].  The Tribunal found that the applicant did not provide a “satisfactory explanation” for failing to raise such “significant matters”[13]. The Tribunal found that the applicant’s inability to provide a “consistent account” of these matters “reflect[ed] poorly on his credibility and reliability as a witness”[14].

   [12] CB 95-96 at [53]

   [13] CB 96 at [54]

   [14] CB 96 at [54]

6. The Tribunal also noted “other irregularities” in the applicant’s evidence about key aspects of this claims[15].  These included:

   a)the applicant initially claimed that he did not practise Falun Gong after the ban in 1999. However, he subsequently claimed that he practised “in secret at home”, then that he “practised it continuously”.  The Tribunal found this evidence to be “vague and confusing and far from persuasive”[16];

   b)the Tribunal did not accept the applicant’s explanation for inconsistent information about his employment provided in his Tourist visa application and protection visa application.  The Tribunal found the applicant’s explanation to be “far from impressive” and that it demonstrated a “willingness to amend and adapt his evidence …”[17];

   c)the Tribunal found the applicant’s knowledge of Falun Gong to be “far from impressive” and found that it was “reasonable to expect” that someone who claimed to have practised since 1998 would have a greater knowledge and understanding than the applicant demonstrated[18];

   d)the Tribunal also found it “reasonable to expect” that the applicant would have availed himself of the opportunity to practise Falun Gong in Australia, which he had not done[19].

   [15] CB 96 at [55]

   [16] CB 96 at [55]

   [17] CB 96 at [56]

   [18] CB 97-98 at [59]-[60]

   [19] CB 98 at [61]

7. For these reasons, the Tribunal rejected all of the applicant’s claims[20]. The Tribunal was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act)[21].  Based on its factual findings, the Tribunal was not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm and accordingly found that he failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act[22].

   [20] CB 98 at [64]; CB 99 at [65]

   [21] CB 99 at [66] and [70]

   [22] CB 99 at [68]-[70]

The present proceedings

1. These proceedings began with a show cause application, filed on 22 December 2014. The applicant continues to rely upon that application. The application was filed a few days outside the period prescribed in s.477(1) of the Migration Act. The applicant explained the circumstances in an affidavit accompanying the application and sought an extension of time. The Minister did not oppose an extension of time, bearing in mind that the time limit for filing the application coincided with the Martin Place siege. I granted the extension of time, pursuant to s.447(2) of the Migration Act.

2. In addition to the applicant’s affidavit, I have before me as evidence the court book, filed on 12 March 2015. 

3. Although the applicant continues to reside at the address disclosed on his application, he denied receipt of both the court book and the Minister’s submissions.  I provided a copy of the court book to him for the purposes of today’s hearing.  I am satisfied that he has not been prejudiced by the late provision of the court book.

4. The Minister’s submissions were read to the applicant before I came on the bench.  That process took a long time and was not completed.  When I came on to the bench the Minister’s solicitor asked me to either release the interpreter and obtain another one, or adjourn the proceedings to another day when a more effective interpreter would be available.  I explored that issue with the applicant through the interpreter.  It was apparent that there were some difficulties in interpretation.  Curiously, the applicant (through the interpreter) said that the interpreter was very good and he did not want him to leave.  However, he was speaking very softly and I surmise that he may have felt embarrassed.  I released the interpreter and was able to obtain the assistance of a replacement interpreter without any significant delay.  I am satisfied that the standard of interpretation thereafter was appropriate. 

5. I discussed with the applicant the grounds of review in the application, which are:

   1.    The Tribunal failed to give sufficient consideration to my claims that I will be persecuted by the Chinese Government if I return to China due to my Falun Gong involvement.  I have been practicing Falun Gong for a long time.

   2. The Tribunal failed to invite me to submit written evidence from a witness.  My friend is also a Falun Gong practitioner and he has been granted a protection visa in Australia.  He could not attend the hearing as he needed to go to work.

6. The applicant was unwilling or unable to address those grounds in oral argument but raised other matters.  He complained that there was a problem of interpretation at the Tribunal hearing.  That might seem ironic in terms of what occurred at the hearing today but, more importantly, there is no evidence of any problem of interpretation at the Tribunal hearing.  The issue is not mentioned in the application and the applicant has not taken up the opportunity afforded to him, in orders made by consent by Registrar Morgan on 12 February 2015, to file and serve an amended application or affidavit evidence, including a transcript of the hearing.

7. The applicant today requested the provision of legal assistance for these proceedings.  There is, however, nothing in these proceedings that would warrant the provision of pro bono legal assistance. 

8. The applicant also asserted that he could give additional documents, presumably in support of his protection visa claims.  He sought to tender in court a statement from his friend, Mr Zhou, which, according to its terms, was proffered in support of his protection visa claims.   I declined to receive it, not least because the applicant conceded that the statement was prepared after the Tribunal hearing and decision.

9. The applicant was not able to engage in any serious discussion concerning the grounds of review advanced in his application.  Those grounds, and a further issue raised in the applicant’s supporting affidavit, are addressed in the Minister’s submissions.   I agree with those submissions. 

10. The application raises two grounds of review.  In addition, in the applicant’s supporting affidavit (sworn/affirmed on 19 December 2014), the applicant makes the following claim for protection:

    2. I fear that I will be persecuted by the Chinese Government due to my involvement with my wife’s Falun Gong practice.

    and gives the following explanation for inconsistencies in his evidence:

    6. There were some minor inconsistencies among the evidence and I have explained to the Tribunal that I had a bad memory due to my age.

11. In substance, the first ground in the application invites the Court to undertake impermissible merits review[23]. The Tribunal expressly engaged with the applicant’s claims and evidence, which demonstrates that it effectively conducted its review function under the Migration Act[24].  The Tribunal’s findings were open to it for the reasons it gave.  Moreover, the Tribunal’s conclusion that the applicant was not credible is a finding of fact par excellence[25].

    [23] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

    [24] cf Minister for Immigration v MZYTS [2013] FCAFC 114 at [38]

    [25] Re Minister for Immigration ; ex parte Durairajasingham (2000) 168 ALR 407 at [67]

12. The second ground contends that the Tribunal failed to invite the applicant to “submit written evidence from a witness”. The relevant effect of s.426 of the Migration Act is that within seven days after being notified of the hearing invitation, an applicant may give the Tribunal written notice that he wants the Tribunal to obtain oral evidence from a witness. The Tribunal must have regard to the applicant’s wishes as expressed in the notice, but is not required to obtain that evidence[26]. A failure to have regard to a notice/the applicant’s wishes pursuant to s.426(3) amounts to jurisdictional error[27].

    [26] Migration Act, ss.426(2) and (3)

    [27] SZQWL v Minister for Immigration [2012] FMCA 388 at [42]-[45]

13. In the present case, the applicant did not request that the Tribunal take oral evidence from a witness. In the applicant’s “Response to Hearing Invitation” form, the applicant indicated that he did not wish for the Tribunal to take oral evidence from another person[28]. The decision record indicates that, at the hearing, the Tribunal asked the applicant why he had not included his friend, Mr Zhou, as a witness in his application. In response, the applicant said he would get a witness statement from Mr Zhou; however, no such statement was ever provided to the Tribunal. In these circumstances, the Tribunal complied with its obligations under Division 4 of Part 7 of the Migration Act.

    [28] CB 74

14. In relation to [2] of the applicant’s supporting affidavit, the applicant’s claim to fear persecution on the basis of his wife’s Falun Gong practice is a new claim that was not raised before the Tribunal. The Tribunal is not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before it[29].

    [29] NABE v Minister for Immigration (No. 2) [2004] FCAFC 263; (2004) 219 ALR 27 at [60]

15. Insofar as the applicant alleges, by way of [6] of his supporting affidavit, that he was denied a “real and meaningful” opportunity to participate in the hearing because of his “bad memory”, in making its findings, the Tribunal “allowed for the possibility of discrepancies arising because of genuine lapses of memory …”, but ultimately did not accept this explained or excused the credibility concerns. The Tribunal provided a “real and meaningful” invitation pursuant to s.425 of the Migration Act. Further, the material before the Court does not provide any foundation for a claim that the applicant was entirely unfit to participate in the Tribunal hearing[30].

    [30] Minister for Immigration v SZNVW (2010) 183 FCR 575; Minister for Immigration v SZNCR [2011] FCA 369 at [30]-[33]

16. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, accordingly, order that the applicant be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order. 

18. I will order that the applicant 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 of Schedule 1 to the Federal Circuit Court Rules.

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

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  9 February 2016