FEDERAL COURT OF AUSTRALIA

WZAUY v Minister for Immigration and Border Protection [2017] FCA 190

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the costs of the first respondent to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the former Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection (class XA) visa.

2    The appellant is a male citizen of China of Han ethnicity and Falun Gong faith. He arrived in Australia in June 2006 on a tourist visa.

3    The appellant first lodged an application for a protection (class XA) visa on 10 July 2006 (Previous Protection Visa Application). The application was refused on 4 October 2006 and that decision was affirmed by the Tribunal in January 2007. The appellant’s bridging visa A ceased on 22 May 2007 and the appellant was detained by the Department of Immigration and Border Protection in March 2014 due to his unlawful status.

4    The Previous Protection Visa Application was assessed only in relation to the criteria in s 36(2)(a) of the Migration Act 1958 (Cth), as it was lodged before the inclusion of s 36(2)(aa) in the Act.

5    The appellant applied for the present protection (class XA) visa in April 2014 (Present Protection Visa Application). In his application, the appellant said he left China because he was a member of “Fa Run Gong” and had been detained for 14 days as a result of that membership.

6    The appellant claimed that he would be detained, tortured, unemployable and denied social welfare if he returned to China, and the authorities would not protect him as Falun Gong activities are illegal in China.

7    The Present Protection Visa Application was refused by a delegate on 30 May 2014. On 10 October 2014, the Tribunal affirmed the delegate’s decision under review.

8    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 16 August 2016, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and so dismissed the appellant’s application. See WZAUY v Minister for Immigration & Anor [2016] FCCA 2024.

9    The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed 6 September 2016.

DELEGATE’S DECISION

10    The delegate stated that there were evident discrepancies, inconsistencies and false information presented in the appellant’s written and verbal claims, which led the delegate to express serious doubts as to the veracity of the claims.

11    According to the delegate, the appellant raised additional claims in his protection visa interview on 22 May 2014, including that the appellant printed and distributed Falun Gong leaflets between 1998 and 2001, assisted and provided refuge to Falun Gong practitioners who were fleeing from the Chinese authorities, went into hiding in 2004 because members of the Bureau of Public Security (BPS) and the 601 Office were searching from him, and was informed that the BPS was searching for him prior to his departure from China in 2006.

12    The delegate noted that the appellant stated, during the interview, that he had not, himself, practiced Falun Gong. The delegate also noted that the appellant was not able to provide specific information on the content of the leaflets he printed and distributed, and the appellant acknowledged he did not know much about Falun Gong. The delegate was not convinced that the appellant was involved in Falun Gong and engaged in activities to promote the organisation given his lack of knowledge and understanding about its beliefs and practices.

13    The delegate also noted that the appellant failed to mention he provided refuge to Falun Gong members or was involved in printing and distributing Falun Gong leaflets in his Previous Protection Visa Application. The delegate did not accept that the appellant undertook Falun Gong activities in China and found that he contrived this aspect of his claims.

14    The delegate further did not accept that the security authorities in China had any interest in the appellant or his family, and concluded that there was no evidence to suggest the appellant would be detained in the foreseeable future by the Chinese authorities due to his involvement in, or association with, the Falun Gong, perceived or otherwise.

15    The delegate said the appellant also claimed that police officers have been visiting his wife on a weekly basis in the last two to three years, asking about his location. The delegate considered the appellant’s propensity to provide false and misleading information to the Department, and found that he contrived this aspect of his claims.

16    In relation to the appellant’s claims that he attended a Falun Gong protest in Australia, the delegate noted that the Falun Dafu website reported the event as a parade and not a protest, and further found that the appellant was one of thousands of spectators who watched the event, rather than participated in it.

17    The delegate ultimately found that the appellant was not generally credible and had embellished and contrived critical elements of his claims.

18    The delegate considered there was no credible evidence to suggest that the appellant had a genuine, subjective fear of being persecuted in China, and found that the appellant did not have a well-founded fear for the purposes of the Refugees Convention.

19    For these reasons, the delegate was not satisfied that Australia had protection obligations to the appellant under the Refugees Convention and, therefore, found that the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act.

20    The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to China, there was a real risk he would suffer significant harm. Therefore, the delegate concluded that the appellant did not meet the criteria for a grant of a protection visa under s 36(2)(aa) of the Act.

21    Accordingly, the delegate refused to grant the appellant a protection (class XA) visa.

TRIBUNAL’S DECISION    

22    The appellant attended a Tribunal hearing by video-link on 11 September 2014 to give evidence and present arguments, and was assisted by a Mandarin interpreter.

23    As the Previous Protection Visa Application was assessed in relation to the appellant’s claims under s 36(2)(a) of the Act, the Tribunal confined its consideration of the Present Protection Visa Application to whether the appellant satisfied the requirements of s 36(2)(aa) and (c) of the Act.

24    In this respect, the Tribunal relied on the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, in which the Full Court found that s 48A(1) of the Act did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s 36(2)(a) from making a further application on the basis of the complementary protection criterion in s 36(2)(aa) whilst he or she remained in the migration zone. The Tribunal said that, as the appellant had not left Australia since the determination of the Previous Protection Visa Application, which preceded the complementary protection laws, the appellant was “SZGIZ-affected.”

25    The Tribunal proceeded to consider the appellant’s claims in relation to the complementary protection requirements of s 36(2)(aa).

26    The Tribunal expressed concern about the inconsistencies, changes and contradictions in the appellant’s written and oral evidence, his inability to provide convincing or credible explanations for aspects of his claims and the gaps in his claims. As a result, the Tribunal did not find the appellant to be a credible witness.

27    The Tribunal said the appellant told the Tribunal that he had never practised Falun Gong and any involvement with Falun Gong was limited to printing and distributing flyers.

28    The Tribunal then asked the appellant about his involvement in Falun Gong since he arrived in Australia and the appellant responded that he attended a Falun Gong activity in Fremantle in 2008, in which he “listened to the lesson and the theory was explained”. The Tribunal said the appellant stated that he had not mentioned this claim to the delegate as the delegate only asked about the evidence of his torture and abuse. The appellant also told the Tribunal that he walked down a street in the city holding slogans and attended a protest in 2011.

29    The Tribunal noted that the delegate found that the appellant attended a parade held in Perth and Fremantle in 2011 as a spectator. The Tribunal also noted that the appellant had admitted to not participating in any Falun Gong activities since his arrival in Australia. The Tribunal confirmed that the Falun Dafu website refers to a Christmas parade held in Perth and Fremantle in 2011 with similar activities as described by the appellant.

30    The Tribunal did not accept that the appellant did not mention his attendance at a Falun Gong activity in Fremantle in 2008 to the delegate because the delegate only asked him to provide evidence about his torture and abuse. The Tribunal further said that the appellant’s description of his involvement in the activities in 2011 were vague and indicated he was more of an observer rather than a participant. The Tribunal did not accept that the appellant attended any meetings, or participated in any protests, or was involved in any other way with the Falun Gong in Australia.

31    The Tribunal did not accept that the appellant was a Falun Gong practitioner based on his own admission at the hearing that he was not a Falun Gong practitioner, and his inability to demonstrate any knowledge of the beliefs and practices. The Tribunal also did not accept that it was plausible that the appellant would have assisted in printing and distributing Falun Gong pamphlets on a daily basis and have no knowledge of the content of the pamphlets.

32    The Tribunal did not accept the appellant’s claim to the delegate that he assisted in transporting and providing refuge to Falun Gong practitioners, and noted that the appellant did not expand on this claim any further.

33    The Tribunal noted that the appellant claimed, at the hearing, that he was detained for 14 days in China because he provided assistance to Falun Gong, but had told the delegate that he had never been detained, harmed or mistreated in China because the authorities never caught him. The Tribunal also noted from the delegate’s decision that the appellant claimed to have been detained for two weeks in the Present Protection Visa Application and for two months in the Previous Protection Visa Application.

34    The Tribunal found that the evidence provided to the delegate and the Tribunal was inconsistent, and did not accept that the appellant was ever detained because he was a Falun Gong practitioner, perceived to be a Falun Gong practitioner or assisted Falun Gong practitioners. The Tribunal added that it did not accept that the appellant was a credible witness, nor did it accept that he was ever a Falun Gong practitioner, or perceived to be a Falun Gong practitioner, or associated with Falun Gong practitioners.

35    The Tribunal did not accept that the appellant was ever detained, interrogated, or otherwise mistreated, harmed or monitored because of his claimed involvement in Falun Gong activity and/ or his association with Falun Gong practitioners.

36    The Tribunal then considered the appellant’s claims that he obtained a passport and was able to depart the country. The Tribunal, having regard to the independent country information, did not accept that the appellant was able to depart China on travel documents in his own name and pass through security checks if he were of adverse interest to 601 officers and the Chinese authorities, as he claimed.

37    Finally, the Tribunal said that it did not accept the appellant’s claims that the authorities and 601 officers regularly visited his wife and family asking about him, or that the appellant was of adverse interest to the Chinese authorities.

38    The Tribunal did not accept that he left China because he feared harm and found that he fabricated his protection claims in their entirety. In light of the Tribunal’s findings that the appellant was not a genuine Falun Gong practitioner, the Tribunal did not accept that the appellant would practice Falun Gong, assist any Falun Gong practitioners, or be in any way associated with Falun Gong if he returned to China.

39    Having regard to the claims and evidence, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s removal from Australia to China, there was a real risk that he would suffer significant harm.

40    For these reasons, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa). Consequently, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection (class XA) visa.

JUDICIAL REVIEW IN THE FEDERAL COURT

41    In his amended application for review of the Tribunal’s decision filed 3 March 2015, the appellant raised the following grounds:

1.    The Second Respondent owns me nature justices in reaching the decision.

Particulars

On Paragraph 30 of the decision record, the second respondent state: ‘the applicant’s description of his involvement in the activities in 2011 was vague and sounded more like an observer rather than a participant.’

It further stated: ‘while the applicant stated he held a banner, it was more an afterthought rather than an accurate recall of his participation.

The Second Respondent clearly demonstrated it does not believe I have attended the FaLun Gong’s Grand Christmas Parade in 2011.

I have provided the details of my involvement in that particular, however, the second respondent with out if finding of fact concluded that my evidence as to my activities in Australia was vague.

2.    The Tribunal erred by failing as it denied me procedural fairness by take irrelevant consideration in its decision.

Particulars

By reading the Second Respondent’s decision, I relied in the decision record, the second respondent has given a lot of weight to the decision of the first respondent.

For instance, in paragraph 41, it stated: ‘According to the delegate’s decision…’.

I had a Legitimate Expectation, that Tribunal will have a fresh hearing for my case without taken any weight about the first respondent’s finding.

The Tribunal denial me ‘Natural Justice’ during my hearing.

42    The appellant filed an affidavit in support of the amended judicial review application on 13 March 2015 and written submissions on 13 April 2015. The primary judge stated that paras 8–19 of the appellant’s affidavit contained submissions on fact and law and should therefore be struck out. His Honour noted that the appellant would not be disadvantaged by the striking out of those paragraphs, and, in any event, the appellant’s written submissions addressed the issues which are the subject of those paragraphs.

43    In relation to ground 1 of the appellant’s amended judicial review application, the primary judge considered that the appellant’s written submissions referred to judgments which are of no or limited assistance to the Court, as the procedural fairness requirements for judicial review of migration proceedings, as set out in Division 4 of Part 7 of the Act, are, by virtue of s 422B of the Act, an exhaustive statement of the requirements of the natural justice hearing rule: See Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.

44    The primary judge noted that the appellant was invited to, and attended, the Tribunal hearing, gave evidence and was assisted by an interpreter at the hearing, and had an opportunity to respond to matters which concerned the Tribunal, including the critical issue of the his credibility. Therefore, the primary judge found the appellant was afforded procedural fairness: s 425(1) of the Act; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.

45    The primary judge referred to Re The Minister for Immigration & Ethnic Affairs; Ex parte Durairajasingham [2000] HCA 1 and said that findings as to credit are findings of fact, which are for the Tribunal to make. His Honour also said that the weight to be given to the appellant’s claims was a matter for the Tribunal and it is not permissible to request that the Court review the Tribunal’s factual findings concerning the appellant’s claims and evidence: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. The primary judge also added that the Tribunal was not obliged to put to the appellant the basis for its findings that it was not satisfied that his claims were genuine.

46    For these reasons, the primary judge found that ground 1 was not made out.

47    With respect to ground 2, the primary judge stated that it was clear that the Tribunal, in assessing the appellant’s claims, had considered the appellant’s evidence to the delegate, the information provided to the Tribunal and the relevant country information, and drew conclusions based upon all the information before it.

48    The primary judge was of the view that the Tribunal considered the material before it afresh, including the appellant’s evidence to the delegate and the findings of the delegate, and gave proper consideration to each of the appellant’s claims and intelligible reasons as to why those claims were not made out. Having done so, the primary judge said, the Tribunal arrived at a decision made in the proper exercise of the Tribunal’s discretion to consider the matter anew.

49    In those circumstances, the primary judge found that ground 2 was not made out.

50    The primary judge concluded that neither of the appellant’s ground of review was made out and no jurisdictional error had been established. Consequently, the primary judge ordered that the application for judicial review be dismissed.

APPEAL TO THIS COURT    

51    A notice of appeal was filed by the appellant on 6 September 2016. The specific grounds of appeal are as follows:

1.    The Federal Circuit Court judge erred, by failing to properly consider whether the Tribunal fell into jurisdictional error by finding that s. 36 applied to the Applicant without considering the risk to the Applicant back to China.

2.    Further to grounds, or in the alternative, the Federal Circuit Court judge erred by failing to consider whether the Tribunal fell into jurisdictional error in its failure to take into account the review grounds during the hearing.

52    The Minister filed a notice of objection to the competency of the appeal on 19 September 2016. The Minister objected to the Court’s jurisdiction to hear this appeal on the following grounds:

1.    The judgment of Judge Lucev dated 16 August 2016 is interlocutory and the appellant has not been granted leave to appeal against this judgment pursuant to section 24(1A) of the Federal Court of Australia Act 1976.

2.    The appellant did not file an application for leave to appeal from the orders within the time period prescribed by rule 35.13 of the Federal Court Rules 2011 and the appellant has not been granted an extension of time to file an application for leave to appeal.

53    The Minister filed an outline of submissions on 23 February 2017. In it, the Minister noted that the primary judge dismissed the appellant’s application following a show cause hearing on 30 April 2015. The Minister made the following submissions in relation to the competency of the appeal:

2    The reasons for judgment and order of Judge Lucev made on 16 August 2016 make no reference to the fact that the matter was listed for a show cause hearing.

3    If it is accepted that the appellant’s application before the Federal Circuit Court was dismissed pursuant to r.44.12(1)(a) of the FCCR on the basis that the application to show cause did not raise an arguable case for the relief claimed, r.44.12(2) of the FCCR provides that to ‘avoid doubt, a dismissal under paragraph 1(a) is interlocutory.’

4    Pursuant to r.35.13(a) of the Federal Court Rules 2011 (Cth) (Rules), an appeal from an interlocutory decision of the Federal Circuit Court must be brought within 14 days of the date on which the judgment appealed from was pronounced or the order made. Accordingly, the last day on which the appellant could have brought an appeal in this honourable Court was 30 August 2016. The present application, filed on 6 September 2016, is seven days out of time.

5    The relevant matters to be considered in determining whether time should be extended to the appellant include the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent, and the merits of the proposed appeal (Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344; Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18]; SZNYE v Minister for immigration and Citizenship [2010] FCA 500 at [16]).

6    The first respondent concedes that there is no prejudice in time being extended to the appellant and that the length of the delay is relatively modest.

7    Turning to the merits of the proposed appeal, if the Court were to extend time to the appellant, he would then require the leave of the Court to appeal from the interlocutory judgment of the Federal Circuit Court. The relevant considerations as to whether leave should be granted to the appellant to appeal the decision of the Federal Circuit Court are:

7.1    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36 at 38 Ryan, Stone and Jagot JJ); and

7.2    whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).

8    The onus lies on the party seeking leave to appeal (Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] per Foster J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [26] per Cowdrey J; SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7] to [8] per Flick J).

9    For the reasons discussed below addressing the grounds of the notice of appeal, the first respondent submits that the decision of Judge Lucev is not attended by doubt, nor would the appellant suffer substantial injustice if leave to appeal were refused.

54    The Minister submits that the decision of the primary judge is not attended by doubt, nor would the appellant suffer substantial injustice if leave to appeal were refused.

55    In reaching this conclusion, the Minister submits as follows:

26    The task of the Federal Circuit Court was to determine whether the Tribunal’s decision was affected by jurisdictional error: section 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

27    Although an appeal to the Federal Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. As the Full Court has explained, ‘an appeal by way of rehearing ... does not mean it is an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge’: Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524, 529 [28] (Cowdrey, Katzmann and Farrell JJ); cited in BZAHB v Minister for Immigration and Border Protection [2015] FCA 1205 at [33] (Edelman J).

28    None of the issues raised in the appeal were before the primary Judge and, insofar as the appellant seeks to agitate the issue the appellant requires the leave of the Court: see lyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24].

29    To the extent that the appellant contends that the Tribunal failed to consider any risk to the appellant upon return such a ground cannot succeed. It is apparent that the Tribunal was cognisant of the appellant’s claims (AB 95[15] and 96-97[22]-[26]). The Tribunal then proceeded to consider the appellant’s claims and evidence and made findings that were open to it.

30    To the extent that the appellant’s second ground contends that the Tribunal failed to take into account any further claims made during the course of the hearing the ground must fail. The appellant has failed to particularise what further claim was allegedly made and not considered and no evidence has been provided to support this contention.

31    The grounds of appeal sought to be relied upon by the appellant do not identify any appealable error in the judgment of the Federal Circuit Court nor do they demonstrate any jurisdictional error in the Tribunal’s decision. Further, to the extent that the appellant seeks to re-agitate the arguments advanced before the primary Judge, the appellant has not identified any error in the primary Judge’s clear findings on the evidence.

56    For these reasons, the Minister submits that, in the event that the Court does not dismiss the notice of appeal as incompetent, the application should be dismissed.

57    The appellant, or applicant, did not file any written submissions in support of the appeal/application for leave to appeal.

58    He did, however, attend the hearing and made submissions to the following effect. He pointed out that he was without legal representation and relied on the Court to provide justice. He said that if he were to return to China he would go to jail. He also referred to some documents he held and suggested that information had been provided to his home country that would result that outcome. Because these documents appeared not to have been before either the Tribunal or the primary judge and were not otherwise related to matters raised on the grounds of appeal, the Court declined to peruse them.

59    Having considered those submissions, whether or not the decision of the primary judge was an interlocutory decision, the appeal or the application for leave to appeal, should it be necessary to construe it as such, should be dismissed because the merits of the grounds upon which the appeal is made or would be made do not raise an arguable case for jurisdictional error. Having regard to the decision and reasons of the primary judge, there is nothing to show that his Honour thereby failed properly to consider whether the Tribunal fell into jurisdictional error by finding that s 36 applied to the applicant without considering the risk to the applicant back in China. As the Minister submits, careful consideration was given by the Tribunal and the primary judge to that question. It should also be noted that this ground appears not to have been raised before the primary judge and that is another reason for considering that the matter raised lacks merit.

60    To the extent, therefore, that leave to raise the first ground of appeal, because it was not raised before the primary judge is required, leave should be refused.

61    Similarly, in relation to the second ground of appeal, which is both additional or in the alternative, there is nothing to show that the primary judge erred by failing to consider whether the Tribunal fell into jurisdictional error by reason of a failure to take into account the “review grounds” during the hearing. Again, as the Minister submits, the decision of the primary judge shows that both the Tribunal and his Honour had regard to the review grounds at material times.

62    In all of these circumstances, the appeal, or should it have been necessary to describe it as such, the application for leave to appeal from an interlocutory decision, should be dismissed with costs.

Order

63    The appropriate in the circumstances is:

(1)    The appeal be dismissed.

(2)    The appellant to pay the costs of the first respondent to be taxed, if not agreed.

Associate:

Dated:    2 March 2017