FEDERAL COURT OF AUSTRALIA

DZADW v Minister for Immigration and Border Protection [2014] FCA 1338

REASONS FOR JUDGMENT

1    This appeal was heard on 11 December 2014. At its conclusion, I dismissed the appeal with costs in favour of the first respondent. I made some observations to the appellant about why I dismissed her appeal, and said that I would publish more detailed reasons for the decision. These are my detailed reasons for dismissing the appeal.

2    The appellant came to Australia on a tourist visa, issued on 23 March 2011, although she arrived some 11 months later on 28 February 2012. That visa expired on 28 May 2012, and subsequently in February 2014 she was apprehended as an unlawful non-citizen. On 27 February 2014, effectively two years after her first arrival in Australia, she applied for a protection visa under the Migration Act 1958 (Cth) (the Act). The appellant claimed that she had a well-founded fear of persecution if she were to return to her native land, China, because she is a Falun Gong practitioner and has been since 1997.

3    As her application, both before a delegate of the first respondent (the Minister), and before the Refugee Review Tribunal (the Tribunal), failed because neither decision maker was satisfied that she was a genuine Falun Gong practitioner, it is not necessary to refer to country information which is said to show that Falun Gong practitioners in China are vulnerable to persecutory behaviour on behalf of the Chinese authorities.

4    As noted, the Tribunal on 7 April 2014 affirmed the decision not to grant to the appellant a protection visa. It described the issue as being whether the appellant has a well-founded fear of serious harm or persecution for a Convention reason, namely as a Falun Gong practitioner and/or the victim of domestic violence and/or a single and/or divorced woman in China. The present proceeding concerns only her status as a Falun Gong practitioner. The Tribunal found positively that the appellant had fabricated her evidence in relation to her being a Falun Gong practitioner and any consequences that will occur for her in the future. Consequently, it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under the Convention, and that she did not satisfy the relevant criteria for the grant of a protection visa in s 36(2)(a) of the Act.

5    The Tribunal gave reasons why it did not accept her claims. They were as follows:

(1)    when the appellant was interviewed by the Departmental officer for the purpose of the first decision by a delegate of the Minister on her protection visa application, on 11 March 2014, she had no meaningful knowledge of Falun Gong;

(2)    when the appellant was interviewed by the Tribunal in accordance with its normal processes at the hearing on 7 April 2014, she still had a significant deficit in the sort of knowledge which the Tribunal expected a Falun Gong practitioner to have about Falun Gong, and additionally that there had been a significant change in her level of knowledge of Falun Gong since the delegate’s interview on 11 March 2014 indicating to the Tribunal that she had accreted that information subsequent to her detention in Australia;

(3)    although the relevant country information indicated that those of interest to the Chinese authorities, including Falun Gong practitioners, would not be permitted to leave China, the appellant had left China for a short period in November 2010 to visit Japan on a valid Chinese passport, as well as in January 2011 visiting the United Kingdom, and in February 2012 leaving Australia on her Australian tourist visa supported by a valid passport, all of which indicated that she was not of interest to the Chinese authorities;

(4)    despite her claimed fear of persecution by reason of being a Falun Gong practitioner, and a claimed event of having been arrested in 2000 because of her Falun Gong practice, she did not apply for any form of protection visa or equivalent when she visited Japan in November 2010 or the United Kingdom in January 2011;

(5)    although the appellant was issued with a tourist visa enabling her to come to Australian in March 2011, she did not in fact leave to come to Australia for some 11 months thereafter;

(6)    when the appellant arrived in Australia on a tourist visa, she did not then apply for a protection visa, and did not do so for some two years, for much of which she was an unlawful non-citizen, and she only did so when she was detained in February 2014 some considerable time after her visa had expired;

(7)    the appellant had lived at the same address in China from 2004 until her departure in February 2012, and would therefore have been readily accessible to the authorities had they been concerned about her behaviour as a Falun Gong practitioner;

(8)    the appellant had only attended three Falun Gong activities in the period she had been in Australia.

6    The appellant sought judicial review of the Tribunal’s decision by the Federal Circuit Court (FCC). Both the FCC and this Court do not have the function of reconsidering the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It is necessary for the appellant to establish jurisdictional error on the part of the Tribunal before its decision can be set aside, and the matter if appropriate remitted to the Tribunal for reconsideration.

7    There were three grounds upon which the appellant sought judicial review of the decision of the Tribunal before the FCC, whose decision was given on 27 August 2014: see DZADW v Minister for Immigration and Border Protection [2014] FCCA 1943. They are set out in the reasons for judgment of the FCC.

8    It is of course necessary to note, as the appellant pointed out in the course of the hearing of this appeal, that both in this Court and in the FCC, the appellant was not legally represented. Consequently, the expression of her grounds of appeal should be, and were, interpreted liberally to explore the extent to which they might have raised an arguable ground of review.

9    The FCC classified the first ground of review as one concerning the Tribunal failing to accord procedural fairness to the appellant, or at least procedural fairness as prescribed by s 422A of the Act. In particular, the appellant asserted that she was not given enough time by the Tribunal to express her concerns, that her answers were cut short, and additionally that the Tribunal failed to take into account that she was physically constrained by an injury to her leg because she was on crutches which impaired her capacity adequately to demonstrate to the Tribunal certain Falun Gong exercises.

10    The FCC noted that the Tribunal, at the end of the hearing, had specifically asked the appellant whether there was anything else she wanted to add to what she had said previously. It took that as indicating that the appellant was not cut short or confined in the information she could have given to the Tribunal. That was a conclusion readily available on the material before the FCC. It also noted that the principal criticism of the appellant’s Falun Gong knowledge was not based on her inability to demonstrate movements, but her lack of knowledge, and there was no reference in the decision to the appellant being unable to carry out any particular movements which, as it observed, was not surprising as the physical impediment of the appellant having to use crutches would have been quite obvious. Consequently, it did not consider that the Tribunal had failed in the respect asserted to accord the appellant a fair hearing.

11    The second ground of appeal, in essence, asserted that the Tribunal approached consideration of the claim with a closed mind. The FCC did not find that there was any information which supported the claim of bias on the part of the Tribunal. The fact that findings have been made contrary to the evidence of the appellant was not, of course, itself evidence of pre-judgment: see SCAA v Minister for Immigration [2002] FCA 668 at [38].

12    The third ground of review argued by the appellant asserted that she had been discriminated against whilst in the detention centre, impeding her ability to present her claim to the Tribunal. As the FCC pointed out, the fact that the appellant was in a detention centre as an unlawful non-citizen did not have any bearing on whether the Tribunal properly accorded her procedural fairness in accordance with s 422A of the Act. Nor did the fact of her detention provide an adequate reason for her delay of some two years between her first arrival in Australia and her application for a protection visa. She had provided an explanation for that delay, namely ignorance of the law, which the Tribunal had considered in the course of its reasons. Consequently, that ground too did not provide a reason to set aside the decision of the Tribunal.

13    There are two grounds of appeal to this Court (grounds 2 and 3 to the Federal Circuit Court are compounded into one ground) and the grounds of the appeal are explained at some length in the notice of appeal itself. They were supplemented by the oral submissions of the appellant.

14    In my view, allowing for the disadvantage of the appellant having to represent herself, it is appropriate to categorise ground 1 as in part seeking merits review of the decision of the Tribunal that she had fabricated her claim to be a Falun Gong practitioner, and in part a complaint of a lack of procedural fairness on the part of the Tribunal while cutting short the evidence which she might have given to the Tribunal. For the reasons referred to above, it is necessary only to consider the second aspect of that contention.

15    To the extent that that ground of appeal seeks to attack the finding of adverse credit on the part of the appellant, it is necessary only to be satisfied that the findings were based on rational grounds and arrived at after consideration of matters logically relevant to the issue of credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547. I agree with the FCC that the reasons for the Tribunal rejecting the reliability of the appellant’s evidence that she is an active Falun Gong practitioner were available, and were both rational and indeed persuasive. In relation to its procedures, the recital by the Tribunal in its reasons of the course of its hearing indicates that it gave the appellant the opportunity to address its concerns about accepting her evidence, and to comment on the basis for those concerns, as well as giving her an opportunity to say whatever else she wanted to say at the completion of the hearing. Indeed, the appellant did make additional submissions as a result of that invitation. Accordingly, there is no foundation for the asserted denial of procedural fairness. Ground 1 of the Grounds of Appeal in this matter should be rejected. The Federal Circuit Court is not shown to have erred in the way in which it addressed the question, nor in its assessment of the procedures or the quality of the procedures of the Tribunal.

16    The appellant in the course of her submissions on this appeal and in her grounds of appeal referred to her having been arrested in 2000 for practising Falun Gong, and the associated threats from her ex-husband about reporting her for being a practising Falun Gong. The Tribunal understood those matters, but it was not persuaded by them. Indeed, it positively found for the reasons it expressed that the past arrest had not occurred, or at least had not occurred by reason of her practising Falun Gong.

17    On this appeal, there were a number of specific points made by the appellant to dispute finding about the level of her commitment to Falun Gong, and to challenge the Tribunal’s finding that her evidence on the topic was fabricated. She repeated that, at the time of the Tribunal hearing, she was physically impaired and could not do the exercises which the Tribunal expected her to do. That was addressed by the FCC, in terms which were appropriate. She said that there was some difficulty at the Tribunal hearing with the quality of the interpreter. That is not a matter which previously has been raised, but is now offered as an explanation for an answer which she gave to the Tribunal which, she said, was a consequence of a misunderstanding of the question of the Tribunal. There is no material available upon which this Court can be satisfied that that circumstance arose. Next, she sought to explain her limited engagement with other Falun Gong practitioners in Australia because her health prevented her from having the energy to join Falun Gong practitioners in Australia, and compelling her to practice Falun Gong only at home alone. That material was not presented to the Tribunal, although it raised concerns about her limited practice of Falun Gong whilst in Australia. It is not a matter which can demonstrate that the Tribunal erred in a relevant way, that is it exceeded its jurisdiction, by not addressing it. The appellant also reasserted that which she had asserted to the Tribunal, and to the FCC, that she did not know of her right to apply for a protection visa until after her detention in Australia in February 2014. That was a matter previously addressed, and it is not shown to have been considered in a way which involved legal error either by the Tribunal or by the FCC. She also complained of the lack of appreciation by the Tribunal of the adverse consequences which may befall Falun Gong practitioners in China. The Tribunal referred to those consequences, but it said it did not need to address them in detail because it simply did not accept that the appellant was in China an active Falun Gong practitioner. The appellant also repeated in her submissions about having been arrested in China as a Falun Gong practitioner in 2000, and having been impeded from getting additional evidence from friends in China because they were fearful of supporting her. That was in part because of the influence of her ex-husband. Again, that was a matter which was considered by the Tribunal. It did not accept her evidence about that. It is not shown that the approach of the Tribunal to considering those assertions involved error of the relevant kind on its part. Finally, the appellant complained that the Tribunal’s decision was subjective and therefore amounted to discrimination against her. She said the Tribunal did not recognise that it was very difficult for her to escape from China to Australia. As I have noted, it is not a ground of review upon which the Tribunal’s decision might be set aside that it had reached a view about the credibility of the appellant with which she did not agree. It took into account, adversely to her, her capacity to have left China on three occasions after 2000 (in 2010, 2011 and 2012) on a lawfully issued China passport. It is not shown to have erred in a material way in that respect.

18    Those points do not provide a basis for now setting aside the Tribunal’s decision. To a large extent, they reflect an attempt to re-argue the merits of the factual finding made by the Tribunal. In part they assert a state of affairs, or a reason for certain conduct or answers, which was not put to the Tribunal. When the focus is given to those propositions required by the Act, namely whether the Tribunal somehow erred by exceeding or misunderstanding its jurisdiction and power, they do not demonstrate such error on the part of the Tribunal. My comments in the preceding paragraph in part show why that is the case. More generally, they simply do not show that the Tribunal erred in the exercise of its jurisdiction in a way which would enable the Court to set aside the Tribunal’s decision.

19    The second ground of appeal in this Court concerns both the allegation of bias and the decision-making process of the Tribunal. There is no information to support the suggestion that the Tribunal was biased, either from a careful reading of its reasons or from any external material. The complaint about the quality of its factual finding is, in my view, simply a disagreement with the findings and conclusions which it reached. The Tribunal was entitled to have regard to the delay in making a claim for a protection visa in Australia despite what she claimed to be a well-founded fear of persecution as a Falun Gong practitioner. It was rational for the Tribunal to take into account that delay, even though it was part of the appellant’s claim that she did not know of her right to apply for such a visa promptly upon her arrival in Australia. The Tribunal did take account of her claim that the delay was through her ignorance, but in the overall assessment of her evidence and the context in which it was given and the events to which it referred, it did not accept her evidence on that aspect. It was entitled to use the delay as relevant to assessing the genuineness, or the depth, of her alleged fear of persecution because of her being a Falun Gong practitioner: see Selvadurai v Minister for Immigration (1994) 34 ALD 347.

20    As I indicated when announcing my decision at the completion of the hearing, in my view it is not shown that the Tribunal erred in a way which exposes its decision to adverse judicial review, so that it should be set aside. No such error is demonstrated. Nor is it shown that there was any error on the part of the Federal Circuit Court in assessing the quality of the Tribunal decision to determine whether it did demonstrate jurisdictional error on the part of the Tribunal. I also indicated that I would fix the time from which any application for leave to appeal from the decision which I announced on 11 December 2014 to the date of the publication of these reasons. I do so. That time will, therefore, run from 15 December 2014, namely the date of these reasons for decision.

21    Finally I confirm that, in the circumstances, there was no reason for the normal order as to costs not to routinely follow and such an order was also made.

Associate:

Dated:    15 December 2014