FEDERAL COURT OF AUSTRALIA

SZVIF v Minister for Immigration and Border Protection [2016] FCA 601

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The appellant is a citizen of China who has sought asylum in Australia. Her attempts to secure a protection visa from the respondent, the Minister for Immigration and Border Protection, have thus far been unsuccessful. The Minister’s delegate refused the appellant’s visa application in March 2014. The Refugee Review Tribunal subsequently rejected the appellant’s review application and affirmed the delegate’s decision. The appellant then challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia. The primary judge dismissed the appellant’s application with costs. The appellant now appeals to this Court from the judgment of the Circuit Court.

The appellant’s protection visa claims

2    The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa is that the appellant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugee Convention. In simple terms, Australia has protection obligations under the Refugee Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

3    Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person meets the complementary protection criterion if the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

4    The remaining subsections of s 36 and Subdivision AL of the Act contain additional provisions about protection visas. Other parts of the Act, such as Part 1, include provisions that define or explain various expressions used in s 36(2)(a) and (aa), such as significant harm and persecution.

5    In her protection visa application, the appellant claimed that she met one or other of the criteria for the grant of a protection visa on account of her being a Falun Gong practitioner or member. Falun Gong is a spiritual Chinese exercise and meditation system. The Chinese government, however, considers Falun Gong to be a cult and since around 1999 has persecuted and meted out at times harsh treatment to Falun Gong practitioners. It was implicit in the appellant’s protection visa application that she claimed that if she returns to China she will be persecuted or seriously harmed by the Chinese police or other authorities because she had practiced and would continue to practice Falun Gong.

6    The appellant’s claims and evidence concerning her involvement in and practice of Falun Gong are set out at length in both the Tribunal’s reasons and the judgment of the primary judge. In very short terms, the appellant claimed that she first became involved with Falun Gong when she travelled to New York in 2013. There she saw and subsequently spoke with a person who was promoting Falun Gong. As a result of that relatively brief encounter, she became interested in Falun Gong and took some material back with her when she returned to China.

7    The appellant claimed that following her return to China in March 2013, someone visited her house while she was playing a DVD about Falun Gong. She turned the television off, however shortly after the visitor left the police arrived. She was arrested and taken to the police station where she was questioned and mistreated. She was released 48 hours later after she paid a fine and signed a statement saying she would stay away from Falun Gong. She was, however, required to report to the police every week. She claimed that this surveillance by the police caused her to flee to Australia.

8    The appellant travelled to Australia on a tourist visa in May 2013. In August 2013 she applied for a protection visa.

9    A few months after arriving in Australia, the appellant joined a Falun Gong public practice in Campsie. She claimed to practice Falun Gong there every week. She also attended a Falun Gong meeting in Marrickville in October 2013 and said that she regularly hands out pamphlets.

10    In March 2014 a delegate of the Minister refused the appellant’s protection visa application. The delegate found that the appellant did not meet the protection visa criteria essentially because she was not satisfied that the appellant had given truthful evidence about her supposed Falun Gong activities, either in China or Australia.

The tribunal proceedings and decision

11    In April 2014 the appellant applied to the Tribunal for a review of the delegate’s adverse decision. Before the Tribunal, the appellant relied on a number of documents, including documents that she had previously provided to the Minister or the Minister’s delegate. Those documents mainly related to her Falun Gong activities in Australia and included photographs of the appellant at Falun Gong events in Australia. The appellant also relied on three witness statements: one from a person purporting to corroborate the appellant’s claims concerning her encounter with a Falun Gong practitioner in New York; a statement from a person supporting the appellant’s claim that she was a genuine Falun Gong practitioner, with reference to her practice of Falun Gong in Australia; and one from a person purporting to corroborate the appellant’s evidence that she was arrested in China. The appellant did not request the Tribunal to take oral evidence at the hearing from any of the individuals who had supplied statements. In relation to her claim that she was arrested in China, the appellant relied on a document that she said was an invoice for the fine she paid to the police in China

12    The appellant in due course gave evidence before the Tribunal. Unfortunately for the appellant, like the delegate, the Tribunal did not consider the appellant to be an honest or credible witness. In particular, the Tribunal did not believe the appellant’s account of her Falun Gong encounter in New York, or her account of how her association with Falun Gong came to the attention of the authorities in China and led to her arrest. The Tribunal reasoned that the appellant’s account of those events was, in a number of respects, implausible, and not credible. The Tribunal also pointed out a number of inconsistences in the appellant’s evidence.

13    The Tribunal’s rejection of the appellant’s evidence concerning her Falun Gong encounter in New York and her arrest in China led it to effectively dismiss the witness statements that purported to corroborate the appellant’s evidence of those events. The Tribunal found that that those witness statements did not “genuinely reflect actual events”. The Tribunal also did not accept that the police invoice was genuine. The Tribunal referred to independent information that suggested that fraudulent documents are frequently used and readily available in China.

14    The Tribunal did accept some of the appellant’s evidence. In particular, it accepted that the appellant had been practicing Falun Gong in Australia. The Tribunal found, however, that the appellant was not a genuine practitioner in Australia. Rather, she had commenced her Falun Gong activities for the purpose of supporting her protection visa application. The Tribunal pointed, in that regard, to the fact that the appellant commenced her activities three months after her arrival in Australia and in the same month that she applied for a protection visa. The Tribunal reasoned that if she was a genuine practitioner, she would have joined a Falun Gong group sooner. The Tribunal did not accept the appellant’s explanation for her delay in seeking out a Falun Gong group in Australia. The Tribunal’s findings concerning the appellant’s motivation in engaging in Falun Gong activities in Australia led it to disregard those activities in assessing the Refugee Convention criterion as it was required to do by s 91R(3) of the Act.

15    The Tribunal did have regard to the appellant’s Falun Gong activities in Australia in considering whether the appellant met the complementary protection criterion. It correctly noted that s 91R(3) of the Act did not operate for the purposes of the complementary protection criterion. The Tribunal accepted that there was a “small possibility” that Chinese authorities in Australia may have come to know about the appellant’s Falun Gong’s activities in Australia. There was, therefore, a possibility of “adverse attention” if and when the appellant returned to China.

16    The Tribunal found, however, that the adverse attention would not amount to, or give rise to, “significant harm” as defined in s 36(2A) of the Act. The Tribunal accepted that it was possible that the appellant could be questioned by authorities upon her return. It reasoned, however, that because the appellant was not a genuine practitioner, she would simply tell the authorities that she had no intention of practicing or advocating Falun Gong in China. According to the Tribunal, that response would satisfy the authorities. The harm that the appellant would suffer would accordingly be limited to brief detention and questioning, and possibly some ongoing reporting requirements or monitoring.

17    The end result of the Tribunal’s findings concerning the appellant’s claims and evidence was that it was not satisfied that the appellant met either the Refugee Convention criterion or the complementary protection criterion for a protection visa.

The circuit court proceedings and judgment

18    The appellant sought judicial review of the Tribunal’s decision in the Circuit Court pursuant to s 476 of the Act. She sought an order quashing the Tribunal’s decision.

19    The appellant was not legally represented in the Circuit Court. It is perhaps not surprising, in those circumstances, that the three grounds set out in the appellant’s application to the Circuit Court did not properly raise any jurisdictional error capable of supporting the relief that she sought. Rather, the grounds simply challenged the merits of the Tribunal’s factual findings concerning the appellant’s claims and evidence and advanced arguments for why the Tribunal should have accepted her claims. Notwithstanding the deficiencies in the appellant’s application, the primary judge gave careful consideration to the issues and arguments raised in the appellant’s written application and oral submissions.

20    The appellant’s first ground took issue with the Tribunal’s findings concerning the appellant’s evidence about her Falun Gong encounter whilst in New York and her activities, arrest and mistreatment by the police in China. The appellant contended that the Tribunal’s findings and reasons were unfair and a mistake.

21    The primary judge found that the Tribunal’s findings concerning those aspects of the appellant’s evidence were open to the Tribunal for the reasons it gave. The primary judge rejected any suggestion that the Tribunal’s reasons or findings were illogical, irrational or unreasonable. Her Honour found that it could not be concluded that no rational or logical decision maker could have employed the reasoning or arrived at the decision that the Tribunal did: cf. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

22    The primary judge also rejected any suggestion that the decision was unfair, in the sense that the Tribunal did not afford the appellant procedural fairness in accordance with the Act. Her Honour rejected any suggestion of actual or apprehended bias.

23    In her submissions to the primary judge, the appellant apparently took issue with the Tribunal’s rejection of the police invoice and the corroborating witness statements. The primary judge held that the Tribunal’s treatment of those documents was not indicative of jurisdictional error. Her Honour found that the Tribunal did not simply disregard potentially corroborative material: cf. Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at 492 [37]-[38] (North and Lander JJ, Katzmann J agreeing at 492 [42]). Rather it assessed and considered the genuineness of those documents and the weight to be given to them in the context of its other findings, including its rejection of the appellant’s underlying claims. The primary judge reasoned that the assessment of the weight to be given to evidence was a matter entirely for the Tribunal. The appellant’s complaints about the Tribunal’s rejection of the documents accordingly did not reveal any jurisdictional error.

24    The appellant also apparently contended before the primary judge that the Tribunal should have had regard to scientific evidence. That submission was presumably made in the context of the Tribunal’s rejection of the police invoice. The primary judge rejected that contention on the basis that there was no scientific evidence and no request for the Tribunal to make any inquiries in that regard. Nor was the Tribunal obliged to conduct any inquiries of that nature concerning the genuineness of the document: cf. Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429. The primary judge noted that the Tribunal had reached a concluded view concerning the genuineness of the police invoice: cf. Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105. That view was based on the Tribunal’s rejection of the appellant’s evidence concerning the events in China and the evidence concerning document fraud in China.

25    The appellant’s second ground in the Circuit Court was directed at the Tribunal’s findings concerning the appellant’s Falun Gong activities in Australia. The appellant correctly pointed out that the Tribunal’s finding that she was not a genuine Falun Gong practitioner in Australia was largely based on timing. In her submissions before the primary judge, the appellant advanced reasons explaining why she did not commence public Falun Gong practice soon after she arrived in Australia.

26    The primary judge characterised those arguments as amounting to impermissible merits review. Her Honour concluded that the Tribunal’s factual findings concerning the genuineness of the appellant’s Falun Gong activities in Australia were open to the Tribunal for the reasons which it gave. The primary judge also noted that no jurisdictional error was apparent in the Tribunal’s application of s 91R(3) of the Act in relation to the Refugee Convention criterion.

27    The appellant’s third ground was simply that she wanted the Circuit Court to consider her situation. The primary judge noted in relation to that ground that the Court did not have jurisdiction to consider her case insofar as she simply sought merits review.

28    The primary judge concluded that the appellant had not established any jurisdictional error by the Tribunal and dismissed her application with costs.

The appeal

29    The appellant was not legally represented in relation to her appeal. Regrettably, but again understandably, the appellant’s grounds of appeal do little more than assert that the Tribunal’s decision was unfair and unreasonable and that the Circuit Court did not consider her situation. The appellant did not file any written submissions. At the hearing she did not advance any submissions beyond those contained in the notice of appeal.

30    The appellant’s contention that the Tribunal’s decision was unfair and unreasonable was considered and rejected by the primary judge. The primary judge was correct to find that the Tribunal’s decision and reasoning was not illogical, irrational or unreasonable in the sense that that might support a finding of jurisdictional error.

31    Illogical or irrational reasoning or findings by a Tribunal may lead to a finding of jurisdictional error on the basis of legal unreasonableness. However, the test for illogicality or irrationality involves asking whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131]. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds might come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148].

32    There are some aspects of the Tribunal’s reasoning that on one view are somewhat weak or flimsy. To give but one example, the Tribunal effectively rejected the appellant’s evidence concerning the discovery of her Falun Gong activities and subsequent arrest in China simply because it did not “strike the Tribunal as credible” that the appellant would have opened the door to someone she did not know while she was watching a Falun Gong DVD. Yet the appellant’s evidence was that she thought that the man was from the water company and was there to check her water meter. She also said that she quickly turned the television off. Not every decision-maker would necessarily view that evidence as being inherently implausible.

33    That finding led the Tribunal to reject the appellant’s evidence concerning her arrest. It also led the Tribunal to find that the witness statement that purported to corroborate the appellant’s arrest “does not genuinely reflect actual events”. There was no other basis for that finding. On one view that reasoning is somewhat circular and unsatisfactory. On one view, at least, it would have been preferable for the Tribunal to have regard to the purported corroborating material in assessing the credibility of the appellant’s account, rather than simply rejecting it after having considered the credibility of the appellant’s evidence.

34    There is, however, clear authority for the proposition that the Tribunal does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the appellant’s credit and then giving attention to the corroborating evidence: SZNSP at 492 [37] (North and Lander JJ, Katzmann J agreeing at 492 [42]); Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [35]. The Tribunal would fall into jurisdictional error if after making an adverse credibility finding, it simply refused to consider the corroborative evidence: SZNSP at 492 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 73 ALD 1 at 12 [49] (per McHugh and Gummow JJ). The corroborative evidence must still be assessed and weighed in the balance with all the other evidence.

35    The primary judge found, however, that the Tribunal did not disregard the corroborative evidence. Her Honour found that the Tribunal assessed and considered the weight to be given to the corroborative evidence. Given the brevity of the Tribunal’s reasoning concerning the corroborative evidence, that is perhaps a fairly generous reading of the Tribunal’s consideration of the witness statements. Nevertheless, the primary judge was correct to reject any suggestion that the Tribunal simply disregarded or ignored the corroborative material.

36    Whilst the Tribunal’s reasoning is brief and in parts somewhat unconvincing, it cannot be concluded that its reasoning or decision was irrational, illogical or unreasonable. It cannot be concluded that no rational or reasonable decision-maker could have employed the reasoning, or reached the decision, that the Tribunal did. It was open to the Tribunal, on the material before it, to reject the appellant’s evidence concerning her apparent Falun Gong epiphany in New York, the discovery of her Falun Gong activities in China and her arrest and mistreatment in China on account of her practice of Falun Gong.

37    It was equally open to the Tribunal to find that the appellant began practicing Falun Gong in Australia for the purposes of strengthening her protection visa claim based on the Refugee Convention. The Tribunal did not err in applying s 91R(3) of the Act in assessing whether the appellant met the Refugee Convention criterion.

38    As for the Tribunal’s assessment of whether the appellant’s Falun Gong activities in Australia gave rise to a real risk that the appellant will suffer significant harm if returned to China, it is perhaps again fair to say that some would view the Tribunal’s reasoning as somewhat unconvincing. The Tribunal’s reasoning hinged on the proposition that if the appellant was questioned by the Chinese authorities about her Falun Gong activities while in Australia, she would simply tell them that she did not intend to practice Falun Gong in China. The Tribunal also did not accept that the appellant would practice Falun Gong in China, either in public or private. Those findings were based on the Tribunal’s finding that the appellant does not hold a genuine belief and motivation in the practice of Falun Gong. That finding, in turn, was based essentially on the mere fact that the appellant did not commence her Falun Gong activities in Australia until three months after her arrival.

39    Whilst not every decision-maker would necessarily have employed that reasoning, or arrived at those findings, it does not follow that the reasoning or findings were irrational, illogical or unreasonable. It was at least open to the Tribunal to find that it was not satisfied that there was a real risk that the appellant would suffer significant harm on her return to China as a result of her Falun Gong activities in Australia.

40    The appellant’s contention that the Circuit Court did not consider her situation is misconceived. The Circuit Court’s jurisdiction in a judicial review application under s 476 of the Act is to determine whether the Tribunal properly exercised its jurisdiction under the Act. It is not for the Circuit Court itself to consider the appellant’s “situation” in the sense of whether the appellant was in fact at risk of harm if returned to a receiving country. The primary judge considered the appellant’s arguments insofar as they could be characterised as asserting jurisdictional error on the part of the Tribunal. The primary judge was correct to reject those arguments for the reasons already given.

Conclusion and disposition

41    The appellant has failed to demonstrate any appealable error on the part of the Circuit Court. Her appeal is dismissed with costs.

Associate:

Dated:    26 May 2016