SZVYR v Minister for Immigration

[2016] FCCA 2630

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2630

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

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

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1

Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632; [2006] FCA 375

Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013]

HCA 18
Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41

Re Minister for Immigration and Multicultural Affairs; Ex parte

Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63

Applicant: SZVYR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 25 of 2015

Judgment of: Judge Barnes

Hearing date: 4 October 2016

Delivered at: Sydney

Delivered on: 4 October 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the Second Respondent.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 25 of 2015

SZVYR

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 for review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 3 December 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of China, applied for a protection visa in November 2013.  He did not attend a departmental interview.  The delegate refused his application on 30 January 2014.  The Applicant sought review by the Tribunal.

3. The Tribunal wrote to the Applicant on 24 October 2014 inviting him to a Tribunal hearing.  The Applicant attended the Tribunal hearing by video conference with the assistance of an interpreter. 

4. The Applicant claimed that in early 2004 he fell off a ladder at work and injured his back and that in October 2004 he took up the practice of Falun Gong at the suggestion of his employer who was a practitioner and who gave him a book about Falun Gong.

5. The Applicant claimed that in April 2006 both he and his employer were arrested for being Falun Gong practitioners, that in late 2006 he was released from detention and that he returned to his home area where he practised Falun Gong occasionally.  He told the Tribunal that from that time Chinese authorities came to his home to check on him and because of their suspicions of him, he was arrested and detained for three months in 2008 and for one month in September 2010.  He claimed that after money was paid to a friend with connections with the authorities, no further visits were made to his home by the authorities, but he left China in fear of the authorities because of their past treatment of him.  He feared they would again harm him if he returned to China because of his adverse record.  He did not claim to have practised Falun Gong in Australia.

6. In its reasons for decision, the Tribunal saw the issue as the Applicant’s credibility.  For reasons it gave, it found that he was not a witness of truth.  The Tribunal set out, in some detail, the cumulative concerns which led it to this conclusion and to find that the account of events on which the Applicant’s protection claims were based was false. 

7. The Tribunal first had regard to the Applicant’s knowledge of Falun Gong, which it saw as inadequate.  It set out the Applicant’s evidence in relation to his understanding as to what the “Falun” meant or symbolised and on related issues and his explanations for the deficiencies in his knowledge.  It found that he had failed to demonstrate knowledge of the fundamental aspect of the practice of Falun Gong that, through practice, a law wheel, or Falun, was installed by Master Li in the abdomen of the practitioner and rotated there to develop the energy the practice was meant to bring about.

8. The Tribunal was of the view that the Applicant could not explain his ignorance of rudimentary concepts of Falun Gong, but just said that he could not feel the things that the Tribunal had mentioned and just practised according to the book he had.  The Tribunal did not accept that if the Applicant did practise Falun Gong in China, he would not know what the practice was meant to bring about in his body.  It found that his ignorance of these matters casts significant doubts over his credibility.

9. The Tribunal also had regard to the fact that in his protection visa application and written statement the Applicant had failed to mention claims he later advanced at the Tribunal hearing to the effect that after his release from detention at the end of 2006 police regularly checked on him to see if he was practising Falun Gong, but these checks stopped when a well-connected friend was paid money.  The Tribunal recorded that when this omission from his application and written statement was put to him, the Applicant said that he had only wanted to mention big events with big impact and not detail, such as police harassment in his application and written statement.  The Tribunal did not accept that the evidence about harassment was omitted from the written statement and application form for that reason.  It had regard to the fact that the Applicant had also said that he had decided to leave China in late 2010 because of these visits from the Chinese authorities.  The Tribunal saw these as important events in his account and was of the view that if the Applicant was telling the truth, he would at least have mentioned them in his written statement.

10. The Tribunal also had regard to inconsistent evidence about the Applicant’s claimed detention in 2006, in particular, because the account in his written statement described being held at two specified police stations for specified periods and then sent to a detention centre whereas at the Tribunal hearing the Applicant referred to being held at a police station for two days and then taken to the detention centre and made no mention of being detained at a second police station.  The Tribunal rejected his explanation that he was not asked in which location he was detained and only how long he was detained, on the basis that he was closely questioned as to where he was held once arrested, but did not mention being held at a second police station.

11. In addition, the Tribunal had regard to the Applicant’s delay in departing from China, in particular the fact that he said he decided in late 2010 to leave, but waited until August 2013 to depart.  The Tribunal was of the view that the Applicant’s reasons for not leaving China earlier were vague and unconvincing.  It had difficulty accepting that if he had decided to leave China to avoid harm from the authorities, he had remained there for another two and a half years.  While it allowed for the fact that he would have needed the assistance of others to find a way of doing so, it found his evidence about this unconvincing.

12. Considered cumulatively, the Tribunal found on the basis of these concerns that the Applicant was not a witness of truth and that the account of events on which his claims were based was false.  It did not believe that he had ever practised Falun Gong in China and was of the view that his account of being introduced to Falun Gong by an employer who also practised was false.  Nor did it believe he was at any time arrested, detained, visited or harassed by the authorities.

13. The Tribunal recorded that it had had access to the departmental file relating to the application the Applicant made for a visitor visa to come to Australia in 2013 and that the Applicant had said that a friend he had mentioned had inserted all the information in that application without his knowledge.  The Tribunal continued:

    Solely for the purposes of determining this review application, the Tribunal will accept that false information may have been put forward in this application by another person to enable the applicant to obtain a visa.  On that basis, the Tribunal considers that there is no information in this application [and I interpose that is clearly a reference to the visitor visa application] material to the grounds on which this review has been determined.

14. The Tribunal went on to point out that the fact that the Applicant allowed another person to complete a visitor visa application and was unaware of its contents did not mean that the reasons he had advanced for leaving China were true. 

15. The Tribunal was of the view that there was no credible evidence that Chinese authorities had adverse interest in the Applicant or that they or anyone else in China had ever harmed him.  It found there was no credible evidence as to why the Applicant left China and did not wish to return.  It concluded there was not a real chance he would suffer serious harm in China and found that he did not hold a well founded fear of persecution based on any Convention ground.

16. For the same reasons, given that it had found that the Applicant was not a witness of truth and that the account of events on which his claims were based was false and having regard to the absence of credible evidence that he had suffered harm or that the authorities or anyone else wished to harm him or as to why he left China and did not want to return, the Tribunal found that the Applicant did not meet the complementary protection criteria.  Accordingly, it affirmed the delegate’s decision.

17. The Applicant sought review by application filed in this Court in January 2015.  He has not filed an amended application or any written submissions. 

18. There are three grounds in the application.  Before considering these grounds, it is convenient to consider the issues that the Applicant raised at the hearing today when given the opportunity to elaborate on his concerns about the Tribunal decision and procedures. 

19. He appeared to claim that the Tribunal had refused his application because his Falun Gong practice was “not good”, whereas the Chinese government would persecute him as a Falun Gong practitioner whatever the level of his knowledge or practice. 

20. First, the Tribunal did not simply refuse the application because the Applicant’s Falun Gong practice was “not good”.  Rather, his lack of knowledge of fundamental precepts of Falun Gong was one of the concerns which, on a cumulative basis, led to the Tribunal rejecting his credibility.

21. Credibility concerns are a matter for the Tribunal, as the decision-maker par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1), and the Tribunal’s credibility conclusions in this case were reasonably open to it on the material before it for the reasons which it gave.

22. Having rejected the basis on which the Applicant made his claims for protection, in particular his claim that he was a Falun Gong practitioner (and this is related to ground 2), it was not necessary for the Tribunal to go on to consider what harm might occur in China to those who were Falun Gong practitioners or involved in Falun Gong.  Beyond this, this claim seeks impermissible merits review.

23. The Applicant also took issue with the conduct of the Tribunal, insofar as he participated in a Tribunal hearing which, it appears from the court book, was conducted on 3 December 2014 and the Tribunal shortly thereafter – indeed, on the same day – proceeded to make its decision.  He indicated that he felt he should have been allowed to appeal, instead of the Tribunal immediately making its decision.  When I asked him to clarify, he suggested that he should have had a further chance and that possibly he could have found some more supporting evidence and put it to the Tribunal.

24. Insofar as this may be seen as taking issue with the invitation to or conduct of the Tribunal hearing (which is raised in ground 3 in the application), the Applicant was invited to participate in a hearing on 3 December 2014 by hearing invitation letter of 24 October 2014 which informed the Applicant of matters such as the consequences of non-appearance and otherwise complied with the requirements of the Migration Act 1958 (Cth)(the Act).

25. It is the case that the hearing invitation indicated that the location for the application was in Canberra and that arrangements had been made to conduct the hearing by video conference with a Tribunal member and interpreter in Sydney.  However, the Tribunal issued such invitation in circumstances where in his protection visa application the Applicant had provided a home address in the ACT.  Moreover in the hearing invitation the Tribunal went on to state, “If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible”.  The Applicant, apparently through his migration agent, completed a response to hearing invitation form.  There is nothing in the material before the court to suggest that the Applicant sought to attend the Tribunal hearing in person or that he took any other issue with the manner in which the hearing was conducted.  No jurisdictional error is established on this basis. 

26. The Applicant’s concern really appears to reflect his view that the Tribunal ought to have prompted and stimulated some elaboration of his claims after the hearing, put its provisional reasoning to him or specifically asked him to provide further evidence or to seek an adjournment to put further material before it. 

27. However, the Tribunal is under no such obligation. There is nothing in the material before the court to indicate that it failed to afford the Applicant the opportunity to give evidence and present arguments as required under s.425 of the Act. It is for an Applicant to advance evidence and argument and for the Tribunal to respond to the case advanced (see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1 per Gummow and Hayne JJ at [187]). The Tribunal is not obliged to prompt and stimulate an elaboration of the Applicant’s claims (see Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632; [2006] FCA 375 per Allsop, Jacobson and Graham JJ at [26]). Nor is it under a general obligation to press an Applicant to call for further evidence or to seek an adjournment (see Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41 per Keane CJ at [22]).  This is not a case in which the Tribunal was under some obligation to make an inquiry into a critical fact, the existence of which was easily ascertained (cf Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25]). There is no suggestion that the Applicant sought an adjournment which was not granted by the Tribunal (and see Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18).

28. The concerns the Applicant expressed in general terms in his oral submissions do not establish any jurisdictional error on the part of the Tribunal. 

29. As to the grounds in the application, the first ground is that the Tribunal breached s.424A of the Migration Act. No particulars were provided and the Applicant was unable to assist in identifying the basis for this claim.

30. As the First Respondent submitted, the Tribunal did rely on written information given by the Applicant during the process that led to the delegate’s decision (his application form and his written statement). It also relied on information given to the Tribunal, including at the hearing, for the purpose of the review. However, such information is within the exemptions in s.424A(3)(b) and (ba) of the Act, so that the obligation under s.424A(1) did not arise.

31. The First Respondent also, quite properly, addressed the issue of information in the Applicant’s visitor visa application.  As set out above, the Tribunal acknowledged that it had access to the file relating to the visitor visa application and that the Applicant had said that his friend inserted all the information in that application without the Applicant’s knowledge.

32. However, while the Tribunal accepted for the purposes of the review that false information may have been put forward in that application, it was of the view that there was no information in the visitor visa application material to the grounds on which the review was determined and, indeed, there is no other reference to any such information in its reasons for decision. In these circumstances, it has not been established that any part of the visitor visa application amounted to information that formed the reason or part of the reason for affirming the decision under review such as to give rise to the obligation in s.424A(1) of the Act. Ground 1 is not made out.

33. Ground 2 is that the Tribunal failed to consider the real situation in China (which was said to be that Chinese authorities persecute all Falun Gong practitioners and all persons involved in Falun Gong).  The Applicant was not able to elaborate, beyond his oral submission which I have discussed above.  As indicated, the Tribunal’s credibility finding was reasonably open to it on the material before it.  Having rejected the claim that the Applicant was a Falun Gong practitioner, it was not required to consider any persecution by the Chinese authorities that might occur to those who were Falun Gong practitioners.  Ground 2 is not made out.

34. Ground 3 is a generally expressed assertion that the Tribunal failed to give the Applicant a meaningful opportunity to present arguments in support of his claims. Beyond what was said in oral submissions, the Applicant had nothing to add to this ground. I have addressed the oral submission. As indicated, there is nothing in the material before the court to support any claim that the Tribunal failed to comply with s.425 of the Act. Having regard to the hearing invitation and also having regard to the Tribunal reasons for decision (the only evidence before the court as to what occurred in the hearing) it appears that the Tribunal raised its credibility concerns and specific issues with the Applicant such as to put him on notice of dispositive issues arising for determination (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63). Ground 3 is not made out.

35. The Applicant has been unsuccessful.  It is appropriate that he meet the legal costs of the Minister.  The Minister seeks costs in the “scale” amount of $6,825 referred to in the Rules at the time of the review application.  However, as I indicated to the solicitor for the Minister, in other matters involving the same or very similar limited degree of complexity and material as is present in this case, other solicitors for the Minister have sought (and have been granted) costs of a significantly lower amount, in particular in the order of $4,500.  I consider that that is an appropriate and reasonable amount of costs for a matter of this nature and complexity.

36. The Minister also seeks an order that the name of the Second Respondent be amended.  I propose to make an order in those terms.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 13 October 2016