FEDERAL COURT OF AUSTRALIA

SZRNF v Minister for Immigration and Citizenship [2013] FCA 650

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The appellants pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1    The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court now continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, I have retained the terminology of Federal Magistrate and Federal Magistrates Court for convenience and because that terminology was current both at the time the impugned decision was made and the appeal was heard.

2    The appellants are citizens of the People’s Republic of China who arrived in Australia on tourist visas on 23 August 2011. They are husband and wife, and for convenience I will refer to them in that way. On 13 September 2011, the husband applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) (Migration Act). He claimed to fear persecution in China resulting from his practice of Falun Gong. The wife made no separate claims for protection; she applied as a member of his family unit.

3    A delegate of the Minister for Immigration and Citizenship (Delegate) refused the applications on 7 December 2011. The appellants applied to the Refugee Review Tribunal (Tribunal) for review of the Delegate’s decision on 3 January 2012 and they attended a hearing of the Tribunal on 30 April 2012. The Tribunal affirmed the Delegate’s decision on 4 May 2012.

4    On 30 May 2012, the appellants sought judicial review of the decision of the Tribunal by the Federal Magistrates Court. The Federal Magistrate dismissed the application: SZRNF v Minister for Immigration [2012] FMCA 1208 (SZRNF).

5    By an application dated 24 December 2012, the appellants appealed from the Federal Magistrate’s judgment to this Court. The appeal was heard on 5 March 2013. The husband appeared unrepresented but with the assistance of an interpreter. He purported to represent the wife but I took the view that I should not dispense with compliance with r 4.01 of the Federal Court Rules 2011 (Cth). The wife’s claim is entirely contingent on the husband’s claim.

CLAIMS MADE IN APPLICATION

6    In the statement attached to his visa application, the husband claimed that he practised Falun Gong and he faced persecution in China for refusing to give it up. In summary the detail of his claim was:

•    His mother-in-law was a devout Falun Gong practitioner who commenced practice in 2000. The appellants lived with his mother-in-law and she tried to persuade them to practise, but they were too busy to listen and they knew Falun Gong was forbidden in China.

•    In 2007, the police broke into his mother-in-law’s house where she was meeting with several other Falun Gong practitioners. He tussled with the police in an effort to prevent them from arresting his mother-in-law. He was taken to the police station where he was tortured to reveal the names of Falun Gong practitioners and the times and places they met. When he denied being Falun Gong, he was heavily beaten. After a night of torture, he suffered permanent nerve damage and muscular atrophy to his leg. He was then detained for a week during which he witnessed the persecution of Falun Gong believers, raising his interest in Falun Gong.

•    He was dismissed from his employment after he was released from detention and could no longer do heavy work because of his leg injury. His mother-in-law tried to convince him to engage in Falun Gong to assist with his leg pain. He refused out of fear.

•    In 2009, his mother-in-law was again arrested for practising Falun Gong. She was detained for some months and experienced torture during this time. She continued to practice upon her release and the husband was touched by this.

•    He commenced practising Falun Gong under his mother-in-law’s instruction in January 2010 when he was suffering a great deal of pain in his leg. He found that the pain was reduced and he became devout. He believed that Falun Gong could strengthen his health and purify his soul.

•    In early 2010, he was caught practising Falun Gong and detained by police for 15 days during which time he was again tortured. He says that he lost hope in the Chinese Government and decided to leave China because he believed there was no democracy or human rights in China.

•    The appellants sold their home and went to South Korea with the intention of seeking asylum but had to return to China when they found out that they could not apply for refugee protection in South Korea.

•    A month after his return from South Korea, the husband was caught by police attending a Falun Gong assembly and detained for a month.

•    Upon his release, the appellants came to Australia on a tourist visa and immediately sought out a Falun Gong organisation and a migration agent to assist in applying for a protection visa.

Proceedings in the refugee review tribunal

7    The appellants both attended the hearing before the Tribunal. Both gave evidence and were assisted by a Mandarin-speaking interpreter.

8    Immediately before the Tribunal hearing, the appellants provided to the Tribunal:

•    Tickets for the appellants to the Shen Yun performance in Sydney on 27 April 2012 and photographs of the appellants at the performance;

•    A certificate of release for the husband, dated in 2011, stating that it was issued by a named detention centre; and

•    A detention warrant, dated a month before the certificate of release, stating that the husband had been detained for unlawful assembly and disturbing public order.

9    In addition to those documents, the Tribunal had regard to the appellants’ Department of Immigration file, material referred to in the Delegate’s decision and independent country information.

10    The Tribunal did not accept the appellants as truthful witnesses. At paragraph [68], the Tribunal makes the following comments:

… The Tribunal considers that the applicants have manufactured the totality of their claims regarding their experiences in China and their reasons for leaving China. The Tribunal considers that much of the applicant’s evidence was not credible, not consistent with the independent evidence and that he showed a tendency to alter his evidence in response to concerns raised by the Tribunal regarding aspects of his evidence. …

11    The Tribunal’s reasons for this conclusion include findings by the Tribunal that:

•    The evidence as to the husband’s knowledge of his mother-in-law’s practice of Falun Gong was inconsistent and he altered his evidence at the hearing in this regard.

•    The husband’s account as to when he discovered Falun Gong was illegal was not credible. The Tribunal did not believe that he would not have discussed this issue with his mother-in-law at some stage before 2007 when he first claimed to be aware. His mother-in-law is said to have practised since 2000 and he lived in the same house with her since 2005, and practitioners met there. The evidence on this issue is “indicative of the fact that it has been manufactured and raises serious doubts as to the overall credibility of the applicants’ claims.” [71].

•    It was not credible that the wife had not suffered any repercussions as a result of the husband and the mother-in-law’s practice of Falun Gong and the evidence of the appellants to that effect suggested that the claims had been fabricated.

•    The appellants’ claim to have travelled to South Korea to seek protection was “problematic” and “manufactured” in an attempt to overcome an issue created by travel to South Korea for a vacation as part of a tour group, with no intention to seek protection there. It was not credible that, having sold their house and planning to stay in South Korea, they would stay only 5 days and rely on the advice of a student whom they met as to the availability of refugee protection. Accepting that South Korea only rarely grants that protection, the appellants’ claim that there was no process for seeking protection as a refugee in South Korea was false and inconsistent with the independent country evidence.

•    The Tribunal did not accept that the husband and his mother-in-law were Falun Gong practitioners in China or that they were detained or arrested at any time. The Tribunal accepted that the husband’s leg injury had occurred but not during a beating while in detention. For these reasons and because fraudulent documents are relatively easy to obtain in China (based on independent reports) and in the context of problematic evidence previously discussed, the Tribunal did not accept that the documents provided by the husband of his detention and release were genuine.

•    It was not open to it to consider any engagement in Falun Gong activities in Australia because the Tribunal considered that to the limited extent to which the appellants engaged in those activities (including attendance at a Shen Yun performance), it was for the sole purpose of strengthening their claims. Accordingly, that evidence must be disregarded under s 91R(3) of the Migration Act.

•    The Tribunal was not satisfied that the husband had ever suffered harm in China for his practise of, or association with, Falun Gong and that there was no real chance that he would suffer harm in the future if he returned to China.

•    The Tribunal was also not satisfied, in considering the criteria for the purposes of the complementary provisions under s 36(2)(aa) of the Migration Act, that there was evidence that there were substantial grounds for believing that as a necessary and foreseeable consequence of removing the appellants from Australia to China that there was a real risk that the appellants would suffer significant harm or that Chinese authorities would become aware of those Falun Gong activities, given the extremely limited extent to which they have engaged in those activities in Australia and the Tribunal’s findings about the husband’s lack of involvement in Falun Gong while in China.

12    Accordingly, the Tribunal found that neither of the appellants was “a person to whom Australia has protection obligations” and affirmed the decision to not grant them protection visas.

proceedings before the federal magistrate

13    The application for judicial review before the Federal Magistrate relied upon two grounds (errors in the original):

1.    In RRT’s decision record, par 79, the RRT considered inadequately of the Complementary Protection provisions. RRT said “the applicant has not claimed and the Tribunal is also not satisfied that the applicant’s limited involvement in Falun Gong activities in Australia will be known by the Chinese authority and that any such involvement will result in a real risk that the applicants will suffer significant harm upon their return to China.” RRT has not provided any reasons or foundation to exclude the possibilities that it might be possibly known by Chinese authorities. The applicant’s failure to claim the risk does not exonerate the RRT’s obligation to consider the risk of being persecuted upon return to China.

2.    In RRT’s decision record, par 76, the RRT considers that it is beyond its role to speculate as to the reasons that the applicant came to Australia and lodge an application for a Protection visa. RRT refused to consider important information which would be essential to applicant’s protection visa application. The role of RRT should be inclusive of assessing the applicant’s situation in China. RRT made a jurisdictional mistake about what its role is and breaches procedural fairness by not taking the legitimate and relevant factor of reason the applicant and his wife came to Australia and lodge application for a Protection visa.

14    In oral submissions, the husband made additional complaints:

•    He took issue with the Delegate’s decision, in particular the Delegate’s question to him as to whether or not he would say that he was a Falun Gong practitioner if asked by the Public Security (Investigation Bureau) in China (the Delegate drew an adverse inference from the husband’s answer that he would deny being a practitioner on the basis that a Falun Gong practitioner would not do that because of their commitment to truthfulness).

•    He asserted that the Tribunal was biased.

•    He took issue with the factual findings made by the Tribunal.

•    He complained that the Tribunal rejected the documents that he had submitted in support of his application.

•    He asked the Federal Magistrate whether or not he wanted to see the scars on his body.

15    The Federal Magistrate found that none of the grounds revealed jurisdictional error and dismissed the appellants’ application with costs.

The Appeal to this Court

16    The grounds of the appeal to this Court as set out in the notice of appeal are (errors in the original):

1.    Bias of the Honour, Judge of Federal Magistrate Court against the Applicant.

2.    Error of the Honour, Judge of Federal Magistrate Court, in failing to hear the evidence given by the applicant.

3.    Error of the Honour, Judge of the Federal Magistrate Court, in failing to identify the jurisdictional error made by the Second Respondent.

The appellants provided no particulars of these grounds.

Ground 1: Bias

17    The husband’s oral submissions concerning this ground were a generalised complaint that neither the Tribunal nor the Federal Magistrate accepted the facts and evidence provided by the appellants but instead “speculated as to their own reasons” in saying that the appellants claims were false.

18    The Minister’s representative submitted that there was no material before the Court to support either an allegation of actual or apprehended bias on behalf of the Federal Magistrate.

19    The Federal Magistrate did make some remarks which might be construed as critical of the husband.

20    The Federal Magistrate remarked on the husband’s failure to attend a meeting with a panel lawyer from the Refugee Review Tribunal Legal Advice Scheme organised to assist him and he noted that the appellants had “not exhibited any understanding of the nature of the proceedings they … initiated and sought to prosecute”: at [26]-[28]. When I asked the husband about this issue, his response indicated that he did not avail himself of this service because he apprehended that the panel lawyer would have a negative attitude to his case which is why he did not speak to them. On my reading of SZRNF, the essence of the Federal Magistrate’s remarks is that the appellants failed to take an opportunity which might have assisted them to put their case in the most effective way. I see no evidence of bias in these remarks and they appear to be well founded.

21    The Federal Magistrate found that the appellants’ allegation of bias against the Tribunal was “misguided”: at [33]. The Federal Magistrate reviewed the Tribunal’s decision record and determined that there was nothing “to support any allegation that the Tribunal failed to bring an open mind to the proceedings … [nor] has the applicant indicated the existence of any other evidence that may have supported his claim in this regard”: at [34]. Having considered the Tribunal’s decision record, and in the absence of evidence or particulars of the ground which raise issues that are not apparent on the face of the record, I can see no error in this determination; the findings of the Tribunal seem open to have been made by it and do not appear either illogical nor irrational.

22    The Federal Magistrate also refused to view the husband’s scars and described the husband’s attempt to show them to the Court as “yet another example of the applicant’s misunderstanding of the nature of these proceedings”: at [37]. The husband also offered this Court the opportunity to view his scars, which I declined. The Tribunal accepted that the husband bears scars, and this issue was not in contention before the Federal Magistrate or this Court. The Tribunal did not accept, having regard to all of the evidence, that the husband got the scars in the manner he claimed: at [75]. That finding is open to the Tribunal and for the Federal Magistrate to view the scars would not have been probative of any issue in contention and may have led to impermissible merits review. I do not consider that the manner in which the Federal Magistrate dealt with this issue is indicative of bias or otherwise inappropriate.

23    The remarks made by the Federal Magistrate about the conduct of the case and the manner in which the appellants prosecuted their claims were ones that were open to him and the husband did not seek to argue otherwise on appeal to this Court. None of these remarks show or even suggest that the Federal Magistrate brought a closed mind to his judicial functions.

24    The husband argued before the Tribunal, the Federal Magistrate and this Court: why would people in their 60s sell their home in China and come to a new country where they are now too old to establish themselves if the reason was not to seek protection? Indeed, the manner in which the Tribunal dealt with this question formed part of the second ground of appeal to the Federal Magistrate. I perceive no error in the Tribunal’s rejection at [76] of any obligation to speculate. Nor do I perceive error in the reasons given by the Federal Magistrate at [47]-[54]; it is the Tribunal’s obligation to consider the evidence before it and to determine, based on that evidence, whether it has reached the state of satisfaction required by s 65 of the Migration Act. The Tribunal must set out the reasons for its decision, which includes reference to the evidence, but it is not required to speculate about the appellants’ motivations above and beyond satisfying itself about whether the appellants have a well founded fear of persecution for a Convention reason. Finally, the question is not so compelling or have only one necessary answer that it would, standing alone, put the Tribunal on enquiry within the concepts discussed by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [19]-[25].

25    The husband provided no evidence or particulars in support of his contention of bias which went beyond the face of the reasons of the Tribunal and the Federal Magistrate. The complaint in relation to the decision of the Federal Magistrate, without particulars, is ultimately a complaint about the Federal Magistrate’s failure to overturn the decision of the Tribunal. Complaints of this nature were addressed by Katzmann J in SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [25]:

It is rare for bias (actual or presumed) to be made out on the basis of the reasons of a decision-maker alone: cf. SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44] (relating to an allegation of bad faith). It is abundantly clear that, when the applicant complains of bias, he is complaining solely on the basis that the decision went against him: the Tribunal did not believe me, so it must have been biased. In law, that argument is doomed to fail.

26    On the material provided, there is no evidence of circumstances such that a fair minded and informed person might reasonably apprehend that either the Tribunal or the Federal Magistrate might not have brought an impartial mind to bear on their decisions: see NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14].

27    Despite the patent disappointment of many of the appellants in cases of this kind, it is not within the power of either the Federal Magistrate or this Court to conduct a merits review of the decision of the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This ground of appeal must fail.

Ground 2: Error in failing to hear the husband’s evidence

28    This ground of appeal does not state which evidence the Federal Magistrate refused to hear.

29    The Minister’s representative suggested that the ground may take issue with the Federal Magistrate’s refusal to look at the husband’s scars and if so, I have dealt with this issue at [22] above.

30    As mentioned at [14] above, the oral submissions made by the husband to the Federal Magistrate took issue with the factual findings of the Tribunal and the Tribunal’s rejection of the documents he provided to it as fabricated. The Federal Magistrate did not err in his reasoning at [35]-[36]. Factual findings, including findings as to credibility and whether documents are genuine, are matters for the Tribunal where there is a rational and logical basis for those findings. The Tribunal at [75] did not err in deciding issues relevant to the appellants’ credibility before deciding what (if any) weight to give to the documentary evidence of detention and release supplied by the appellants: see Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50.

31    In oral submissions the husband reiterated his contention that the law should be based on facts (as asserted by the husband) and that decision makers should not “act on their own thoughts”. He said that the Federal Magistrate did the same thing as the Tribunal. It appears that the failure of the Federal Magistrate complained of is not a failure to have put before him new evidence, but rather his failure to overrule the Tribunal in its findings of credibility of the appellants and their rejection of the detention warrant and release certificate as not genuine. Appropriately, the Federal Magistrate undertook judicial review of the Tribunal’s decision where it appears only merits review would have met the expectations of the appellants. I find no error in the Federal Magistrate’s approach.

Ground 3: Error in failing to identify jurisdictional error

32    In oral submissions, the husband provided no particulars of this ground, and said he thought it not right that neither the Tribunal nor the Federal Magistrate accepted that he had been through the experiences he claims. In the absence of obvious error on the face of the reasons of the Tribunal and the Federal Magistrate, this claim suffers the same defects as the other grounds of appeal and must be rejected.

Conclusion

33    None of the grounds of appeal have merit. I dismiss the appeal with costs.

Associate:

Dated: