FEDERAL COURT OF AUSTRALIA

SZOSQ v Minister for Immigration and Citizenship [2012] FCA 124

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (SZOSQ v Minister for Immigration and Citizenship [2011] FMCA 873) in which the Federal Magistrate dismissed the appellants’ application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the first appellant a Protection (Class XA) visa (“Protection visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellants was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3    The task of this Court in relation to the appeal brought by the appellants is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

4    For the reasons that follow, I am satisfied that no error on the part of the Federal Magistrate has been demonstrated and that the appeal should be dismissed.

BACKGROUND

5    The appellants are a wife, husband and son who are citizens of the People’s Republic of China, who arrived in Australia on Subclass 676 Tourist visas on 16 February 2010. On 30 March 2010 the first appellant lodged an application for a Protection visa with the Department of Immigration and Citizenship on the grounds that she feared serious harm on account of her being a Falun Gong practitioner. The first appellant claimed she had been detained and sentenced for her Falun Gong activities. Only the first appellant made claims for refugee status. The second appellant husband and the third appellant son made applications as dependent members of the first appellant’s family unit. As it is the first appellant’s claims that form the subject of this review, it is convenient that I refer to her as “the appellant”.

6    The appellant claimed she developed an interest in Falun Gong in 1998 through her uncle. She stopped practicing in 1999 when the Chinese government banned Falun Gong but she later resumed her Falun Gong practice in 2006 because she suffered from ill health, specifically a back injury from a car accident in 2004. The appellant practiced with her uncle and assisted him in distributing literature about the benefits of Falun Gong and criticising the government for its treatment of Falun Gong practitioners. On 22 September 2009 the appellant claimed she was arrested by the police whilst preparing some pamphlets for distribution and was subsequently sentenced to two years in a re-education camp. On 22 October 2009 she was sent to a re-education camp where she was to remain and receive re-education until 21 September 2011. However, she claimed that due to ill health she was temporarily released on 20 January 2010 on the condition that she did not practice Falun Gong and returned within six months. The appellant then fled to Australia with her husband and son. She claims that if she were to return to China she would be forced to complete her two year sentence and would be persecuted for being a Falun Gong practitioner and activist.

7    On 26 July 2010 a delegate of the Minister (“the delegate”) made a decision refusing to grant the appellants Protection visas. On 9 August 2010 the appellants filed an application in the Tribunal for review of the delegate’s decision. By letter dated 25 August 2010 the appellants were invited to appear at a hearing before the Tribunal scheduled for 14 September 2010. The appellants attended the hearing assisted by their migration agent. At the hearing, the first and second appellants and two further witnesses (Mr Zeng Lin, a Falun Gong leader in Sydney, and Mr Xiao Yu, a fellow Falun Gong practitioner) gave evidence.

The Tribunal’s Decision

8    Ultimately, the Tribunal was not satisfied that the appellant had provided a truthful account of her circumstances in China. The Tribunal found that she had fabricated her core claims relating to her involvement with Falun Gong in China and her associated claims of harm with the authorities to enhance her Protection visa application. The Tribunal was therefore not satisfied that the appellant was or had been a genuine or committed practitioner of Falun Gong.

9    There were a number of factors that led to the Tribunal’s adverse credibility findings including:

•    identified inconsistencies in her evidence between what was given at the delegate’s interview and the Tribunal hearing regarding her Falun Gong activities in China;

•    inconsistencies between her evidence and the evidence of the second appellant and the two other witnesses, Mr Lin and Mr Zheng; and

•    in particular, identified inconsistencies between her and her husband’s evidence regarding when they saw each other after she had been detained.

10    The Tribunal concluded that such inconsistencies arose because the appellant’s claims were fabricated and the appellants could not recall them accurately. The Tribunal also considered the documentary evidence provided by the appellant but concluded that this too had been fabricated or contrived to enhance her Protection visa application. The Tribunal also noted inconsistencies in the first appellant’s evidence concerning what she told her migration agent.

11    The Tribunal was also concerned that, in the circumstances, the Chinese authorities had taken no steps to prevent the first appellant from leaving the country and potentially evading her return to re-education. If the appellant’s claims were truthful, the Tribunal questioned why the Chinese authorities had not even taken basic steps to prevent her leaving the country such as confiscating her passport. The Tribunal also considered it unusual that although she had taken a significant risk in distributing pamphlets with her uncle, once she arrived in Australia she had not attempted to contact him.

12    The Tribunal was concerned at the six week delay after arrival in Australia before the appellants applied for Protection visas and about the credibility of the corroborating evidence of a Mr Xiao Yu. Ultimately, the Tribunal was not satisfied that the first appellant:

    had provided a truthful account of her circumstances in China;

    was a Falun Gong practitioner; and

    had been detained and sentenced by the Chinese Authorities.

13    The Tribunal concluded that the first appellant had obtained knowledge of Falun Gong for the purposes of her Protection visa application. On the basis that the Tribunal was satisfied that the appellant’s purpose was to enhance her application for a Protection visa, the Tribunal disregarded the first appellant’s Falun Gong activities in Australia as required by s 91R(3) of the Migration Act. The Tribunal dismissed the applications on the basis that the first appellant did not have a well-founded fear of persecution. The Tribunal noted the second and third appellants did not make any persecution claims themselves.

14    On 8 October 2010 the Tribunal made a decision affirming the delegate’s decision not to grant the appellants Protection visas. The appellants were notified of this decision by letter dated 11 October 2010.

THE FEDERAL MAGISTRATE’S DECISION

15    On 1 November 2010 the appellants filed an application for review in the Federal Magistrates Court. At the hearing before the Federal Magistrate on 3 March 2011, the appellants lodged an amended application relying upon the following grounds:

1.    The Tribunal failed to consider whether there was a real chance that the applicant father or the third applicant, if required to return to China, would suffer persecution in China as a result of the Falun Gong activities undertaken by the applicant mother in Australia, and disregarded the involvement of the applicant mother in Falun Gong in Australia in assessing whether Australia had protection obligations to the applicant father and the third applicant.

2.    The applicant father claimed that the applicant mother “was suffering from back pain and Falun Gong cured her”. The Tribunal failed to consider this claim.

3.    One reason the Tribunal rejected the claims of the applicant mother was because it found that “the only apparent benefit she was able to identify in Falun Gong was relief from back pain which in the Tribunal’s view is a rather superficial appraisal of Falun Gong”. The Tribunal overlooked evidence given by the applicant mother in making this finding.

4.    The witness Zeng Lin gave written and oral evidence that the applicant mother was a “genuine Falun Gong practitioner”. The Tribunal failed to have regard to this evidence in the course of making a finding to the contrary.

16    Generally, the grounds alleged that the Tribunal had failed to consider relevant evidence in making its decision, thereby resulting in jurisdictional error. The Federal Magistrate considered each of the grounds separately and ultimately dismissed the application for review on the basis that his Honour was satisfied that the Tribunal had considered all the relevant evidence in making its decision.

17    The first ground was put as an instance of the Tribunal failing to consider a claim made by the second and third appellants which was said to be raised by the materials and evidence before the Tribunal. However, the Federal Magistrate held that the Tribunal did not need to consider the impact of the first appellant’s Falun Gong activities in Australia on the likelihood of the second and third appellants facing persecution in China because that claim was not made to the Tribunal. The Federal Magistrate held that there was no obligation for the Tribunal to consider a claim for protection which was never articulated by the second and third appellants.

18    At [45], the Federal Magistrate dismissed the appellants’ second ground on the basis that the Tribunal had dealt with the second appellant’s evidence that the first appellant’s practice of Falun Gong had alleviated her back pain. The Federal Magistrate found that the Tribunal had considered the evidence given by the second appellant regarding the first appellant’s back pain and that no claims had been raised by the second appellant which the Tribunal had not addressed.

19    The Federal Magistrate dismissed the third ground on the basis that the Tribunal had specifically addressed the question of the appellant’s claims regarding the benefits she had obtained through practicing Falun Gong, including the spiritual benefits she had experienced in addition to her back pain relief. The Federal Magistrate was satisfied that the Tribunal had not overlooked evidence relating to the benefits of Falun Gong claimed by the appellant.

20    The Federal Magistrate dismissed the fourth ground on the basis that the Tribunal had considered the first appellant’s claim that she was a genuine Falun Gong practitioner and in doing so it had regard to Mr Lin’s evidence. The Tribunal noted that Mr Lin’s evidence clearly related only to her Falun Gong practice in Australia, about which there was no dispute. The Federal Magistrate noted that in his evidence Mr Lin clearly stated that he was not informed by the first appellant as to the nature of her problems in China. Therefore, the Federal Magistrate noted that Mr Zeng Lin’s evidence was not relevant to the Tribunal’s determination of the appellants’ claims and dismissed the fourth ground. The appellant’s application was dismissed on the basis that no jurisdictional error was revealed by the appellant’s grounds of review.

GROUNDS OF APPEAL IN THIS COURT

21    On 1 December 2011, the appellants filed a Notice of Appeal in this Court which contained the following stated grounds of appeal:

1.    The Tribunal was not satisfied that the applicant has been or is a genuine or committed Falun Gong practitioner. The Tribunal fell into jurisdictional error in making this finding.

2.    The Tribunal erred in its application of s 91R (3) of the Migration Act.

22    The appellants’ grounds of appeal were not particularised. Despite orders made on 1 December 2011 allowing the appellants to file and serve written submissions 10 clear working days before the hearing date (by 6 February 2012), none were filed or served. At the hearing on 20 February 2012 the appellant was self-represented and assisted by an interpreter.

23    At the hearing, the appellant made submissions which repeated some of the claims made by her to the Tribunal. She contended that she had told the Tribunal the truth and that the Tribunal had unfairly disbelieved her. She further said that the Chinese authorities will be aware of her Falun Gong activities in Australia and that she will be persecuted should she be returned to China. She is pregnant and worried that her pregnancy will be forcefully terminated should she be returned.

24    The first respondent contended that:

    the first ground fails to identify any error in the judgment of the Federal Magistrate and instead invites the Court to undertake impermissible merits review;

    without any further particulars to make it meaningful, the first ground of appeal amounts to no more than an expression of displeasure by the appellant with the factual conclusions made by the Tribunal; and

    the second ground lacks any meaningful particulars to substantiate the allegation that the Tribunal erred in its application of s 91R(3) of the Migration Act.

25    The first respondent recognised that the third appellant is a minor and seeks no order for costs against the third appellant.

CONSIDERATION

Ground One

26    The first ground is unparticularised and does not refer to any particular error in the decision of the Federal Magistrate or how the Tribunal’s findings constitute jurisdictional error. Taking a broad view, I will infer that the appellants are agitating the ground pressed below that the Tribunal failed to consider the evidence before it in making its decision thereby committing jurisdictional error and that the appealable error is the Federal Magistrate’s failure to identify that the Tribunal had erred in such a way.

27    As the Federal Magistrate outlined at [14]-[32], the Tribunal properly considered all of the relevant evidence in coming to its finding that the appellant was not a genuine Falun Gong practitioner. Having reviewed the evidence, the Tribunal was not satisfied of the truthfulness of the appellant’s claim. The Tribunal rejected the appellant’s key claim on the basis of adverse credibility findings made against the appellant based upon a number of factors that were open to it as the arbiter of the facts and evidence. Where the Tribunal disregarded evidence, it was entitled to disregard that evidence by virtue of s 91R(3) of the Migration Act. Consistently with that provision and after considering all of the evidence, the Tribunal was not satisfied that the appellant had engaged in Falun Gong activities in Australia otherwise than for the purpose of enhancing her refugee claim.

28    Insofar as the first ground seeks a merits review of the Tribunal’s decision, it is neither the role of the Federal Magistrates Court nor of this Court to review the merits of the appellant’s claim: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and 291 (Kirby J).

29    I can find no error in the approach taken by the Federal Magistrate in reviewing the Tribunal’s decision. Therefore, ground one must be dismissed.

Ground Two

30    The second ground is also unparticularised and does not identify any particular error in the judgment of the Federal Magistrate. It also appears that it is a new ground and therefore requires leave to be raised by the appellant. The relevant principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must at least be shown that the ground has a reasonable prospect of success.

31    Relevantly, section 91R(3) of the Migration Act provides:

Persecution

(1)  …

(2)  …

    (3)      For the purposes of the application of this Act and the regulations to a particular person:

(a)     in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)  the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

32    The Federal Magistrate noted at [19] that counsel for the appellant conceded in the court below that there was no error in the Tribunal’s application of s 91R(3). The Tribunal had accepted the appellant’s practice of and involvement with Falun Gong in Australia. However, the Tribunal was not satisfied that the appellant had been a genuine Falun Gong practitioner in China. In view of the Tribunal’s finding that the first appellant was not a genuine Falun Gong practitioner and that she had no genuine interest in Falun Gong, the Tribunal found that her involvement with Falun Gong in Australia had been for the sole purpose of enhancing her application for a Protection visa. The Tribunal was therefore satisfied that it was obliged to apply s 91R(3).

33    The Tribunal’s application of s 91R(3) is based upon factual findings including adverse credibility findings which it was open for the Tribunal to make. I can identify no jurisdictional error in the Tribunal’s application of s 91R(3) of the Migration Act nor in the Federal Magistrate’s review of the Tribunal’s application of that provision. Therefore, the second ground has no prospects of success and leave to raise it must be refused.

DISPOSITION

34    For those reasons the appeal must be dismissed. The first and second appellants should pay the Minister’s costs of the appeal. I will make orders to that effect.

Associate:

Dated:    23 February 2012