FEDERAL COURT OF AUSTRALIA SZVJQ v Minister for Immigration and Border Protection [2016] FCA 139 Appeal from: Application for leave to appeal: SZVJQ v Minister for Immigration & Border Protection [2015] FCCA 2883 File number: NSD 1323 of 2015 Judge: FARRELL J Date of judgment: 24 February 2016 Catchwords: MIGRATION – application for leave to appeal an interlocutory judgment of the Federal Circuit Court of Australia – protection visa – consideration of ss 36(2) and 91R(3) (repealed) of the Migration Act 1958 (Cth) Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) s 36(2), s 91R(3) (repealed) Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655 SZVJQ v Minister for Immigration & Border Protection [2015] FCCA 2883 Date of hearing: 23 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the First Applicant: The first applicant appeared in person with the assistance of an interpreter Counsel for the Second Applicant: The second applicant did not appear Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS NSD 1323 of 2015 BETWEEN: SZVJQ First Applicant SZVJR Second Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 23 february 2016 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Application for leave to appeal 1 This is an application for leave to appeal a judgment of the Federal Circuit Court of Australia delivered on 27 October 2015: see SZVJQ v Minister for Immigration & Border Protection [2015] FCCA 2883 ("SZJQ"). Acting under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 2 October 2014 to affirm a decision of a delegate of the Minister to refuse the applicants Protection (Class XA) visas. 2 As the primary judge's decision is interlocutory in nature, the applicant requires leave to appeal to this Court: s 24(1A) Federal Court of Australia Act 1976 (Cth). Background 3 The applicants are citizens of the People's Republic of China. They are a husband and wife and I will refer to them that way when it is necessary to distinguish between them. They travelled to Australia on the husband's Student (TU 573) visa on 7 April 2013. On 24 September 2013, the wife lodged a protection visa application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection). The husband lodged an application as a member of his wife's family unit and did not advance any claims for protection of his own. 4 The wife filed a statement in English with her visa application. The Tribunal summarised the wife's claims in its Statement of Reasons and Decision Record dated 2 October 2014 ("Decision Record") at [10] (as written, name of town and police officer deleted): a. The applicant and her mother are both Falun Gong practitioners and they have suffered persecution in China. Her mother was introduced to Falun Gong in April 1997 by her younger sister. Her mother had suffered from 'serious heart diseases'. She decided to practice Falun Gong and, after two months, she found she was much better. After a year she was fully recovered. b. In September 2011 the applicant's son was born. After she gave birth she suffered puerperal melancholia. She went to see many doctors, but she did not recover. Therefore, she became a Falun Gong practitioner in October 2011. Her symptoms disappeared after she started to practise Falun Gong. c. Chinese authorities started to persecute Falun Gong practitioners on 20 July 1999. This brought nightmares to her family. Two days before Chinese New Year, the director of [name] Town Police, officer [name] came to her house together with four or five policemen. The officers kidnapped her mother and detained her in [name of town] detention center. d. At the detention centre her mother was subject to electric shocks and not allowed to sleep. Her mother was released after she had been detained for 96 days. Her family paid 12 000 RMB to secure her release. Her grandfather, who grew sick worrying about her mother, passed away before her mother was released. e. On 20 December 2011 the applicant was practising Falun Gong together with her mother at home. The director of [name] Town police office, [name], came to her house to arrest her mother. Her mother was arrested and sentenced to three years in the labour camp. Because she had just given birth, the police did not put her into the labor camp, however, the police required her to report to them on a monthly basis. f. Officers in labor camp severely beat her mother on the grounds that she refused to give up practising Falun Gong. Her mother had bone fractures and could not eat. Finally her father had to bail her out for medical treatment. Then she was sent to [name] Town hospital, and she had to stay in hospital for a month to recover. g. The applicant has said that she came to Australia together with her husband on his student visa. She claims that because she was persecuted in China because she suffered judgment and discrimination and did not have religious and personal freedom. She claims she was forced to report to the local police monthly and she could not have a normal life. She knew the police did not put her into a labour camp because her son was just born. h. When her son grows up the police will put her in a labor camp and she will suffer as her mother did. She is worried about their future and came up with the idea of leaving China. Her husband found an agent in China to help them get an Australian student visa and they paid a huge amount for the agent fee. i. In March 2013, her husband's student visa granted and she came to Australia with him. Because she suffered persecution in China, she had to leave her baby son who is less than two years old. She misses him very much. When she first came to Australia, she did not have jobs, income and friends. They had no idea about protection visa. Lately, a Falun Gong practitioner in Sydney told her that in her situation she could apply for protection visa. 5 The wife attended an interview with a delegate of the Minister on 30 January 2014. On 24 February 2014, the delegate refused to grant the wife a protection visa because he was not satisfied that she was a person to whom Australia has protection obligations under the Migration Act 1958 (Cth). The delegate therefore also refused to grant the husband a protection visa because his application relied on the success of the wife's application. 6 The applicants applied to the Tribunal for review of the delegate's decision on 15 March 2013. The wife attended a hearing before the Tribunal on 19 September 2014 to give evidence and present arguments. Tribunal's reasons 7 The Tribunal did not find the wife's account of her past experiences in China to be credible: Decision Record at [66]. 8 Based on country information available to the Tribunal concerning the harsh treatment of Falun Gong members by Chinese authorities, the Tribunal considered the wife's claim that she had avoided detention in a labour camp because she had a new born child and was instead required to report to local police once a month to be improbable: Decision Record at [37] and [67]. For similar reasons, the Tribunal expressed its concerns with the contention that her mother had been "sentenced" to three years in prison but had been released after six months for medical treatment. The wife explained that her mother's release was secured after six months by her father paying "a lot" of money which could not be accessed earlier. While the Tribunal found it plausible that the payment of money might secure a prisoner's release, it queried why the father would not have paid the money earlier and it was concerned that the wife was tailoring her evidence in response to the Tribunal's concerns: Decision Record at [68]. 9 The Tribunal doubted the truthfulness of the wife's evidence regarding her mother's detention because of what it perceived to be confused and sometimes contradictory evidence, even after taking into account that the wife said she was nervous. The Tribunal noted that she had initially said that her mother had been detained for the first time in 2010, however she later claimed that her mother was detained for the first time in 2001: Decision Record at [69] - [70]. 10 The Tribunal found it difficult to reconcile the wife's evidence that she was initially refused a passport because she was a relative of a Falun Gong practitioner yet she was ultimately able to leave China without difficulty. The Tribunal noted that country information indicated that Falun Gong practitioners often have their identification documents confiscated and are therefore unable to obtain a passport. The Tribunal did not accept that the wife had difficulty obtaining a passport or that she changed her ho-khan registration from her family's household to her husband's in order to obtain it. As the wife had been able to travel on a valid passport in her own name the Tribunal also did not accept that she was of adverse interest to Chinese authorities: Decision Record at [71]-[72]. Her evidence regarding when and why she decided to travel overseas had also been "vague and confused": Decision Record at [74]. 11 While the Tribunal accepted that the wife could identify the five Falun Gong exercises and displayed knowledge of Falun Gong principles and concepts, her knowledge was not particularly deep and it did not overcome the Tribunal's doubts that the wife and her mother were identified as Falun Gong practitioners in China. The Tribunal found that such knowledge could have been acquired in Australia: Decision Record at [73]. Although she provided the Tribunal with photos which were said to depict the wife and her mother practising Falun Gong in China, the Tribunal was unable to determine when or where the photographs had been taken or who was pictured in them. Similarly, the Tribunal had limited information about the authors of a number of letters and statements provided by the wife to the Tribunal which were said to be from Falun Gong practitioners in China. The Tribunal therefore accorded the photographs and letters little weight and they did not overcome the Tribunal's concerns as to the wife's credibility: Decision Record at [55], [56] and [77] 12 The Tribunal was also concerned by the five month delay in applying for protection visas after arriving in Australia: Decision Record at [75]. 13 In the result, the Tribunal did not accept the wife's claim that she was a Falun Gong practitioner in China, or that her mother was, or that they had been identified by Chinese authorities as Falun Gong practitioners or that her mother had been detained and beaten as a result: Decision Record at [76]. 14 The Tribunal noted the wife's "vague evidence about her Falun Gong activity" in Australia, including the discrepancy between what she told the delegate in her interview and what she told the Tribunal as to when she started practising Falun Gong after arriving in Australia. While the Tribunal had regard to a letter from a "tutor in Falun Gong" practising in Australia who stated that the wife is a "pious Falun Gong practitioner", that letter was incapable of overcoming the Tribunal's concerns that the wife had exaggerated the extent of her activity in Australia. The other evidence provided by the wife about her Falun Gong activities in Australia also failed to persuade the Tribunal that those activities were a genuine expression of her religious or political beliefs. The Tribunal was not satisfied that she had engaged in these activities otherwise than for the sole purpose of strengthening her claims to be a refugee. In accordance with the former s 91R(3), when assessing the wife's claim to be a refugee under s 36(2)(a) of the Migration Act, the Tribunal was obliged to disregard this evidence: Decision record at [78] - [84]. 15 Although the Tribunal was not satisfied that the wife met the refugee criterion for protection under s 36(2)(a), it considered whether she met the complementary protection criterion under s 36(2)(aa) of the Migration Act. Despite its significant concerns about her credibility, the Tribunal accepted that the wife had engaged in Falun Gong practice and study sessions since around August or September 2013 and that she had attended Falun Gong activities in Australia, including activities in St Peters and the parade celebrating World Falun Gong Day on 15 May 2014. However the Tribunal found that those activities were "opportunistic" and "occurred over a relatively short period" and that there was no evidence that the wife assumed any special role in the Falun Gong community in Australia. The Tribunal put to the wife that there did not seem to be a real chance that the Chinese authorities would have any interest in her because of her activities in Australia or that they would even be aware of them and the wife did not dispute that. The Tribunal therefore found that her activities in Australia would not attract the adverse attention of the Chinese authorities. 16 Having found that the wife was not a genuine Falun Gong practitioner, that her only profile when she left China was that of an ordinary citizen and that if she returns to China she will not practise Falun Gong or have any involvement with those practitioners, the Tribunal concluded that the wife was also not entitled to protection under s 36(2)(aa) of the Migration Act: Decision Record at [86] - [91]. Federal Circuit Court decision 17 The proceedings in the Federal Circuit Court were commenced with a show cause application filed on 28 October 2014. The wife did not file an amended application or additional evidence despite the primary judge inviting her to do so: SZVJQ at [7]. A show cause hearing was held on 27 October 2015, after which His Honour delivered an ex tempore judgment. 18 The application raised four grounds of review, which are set out in SZVJQ at [7]. These were summarised by the primary judge as follows: 1. the documents submitted by the applicant to the Tribunal in support of her claim to be a Falun Gong practitioner were not considered by the Tribunal member; 2. the Tribunal member regularly interrupted the applicant, which confused the applicant's thought process as the Tribunal member was "unfriendly and aggressive"; 3. the Tribunal member did not believe that the applicant was not sentenced to labour camp because she was a new mother and asserted bias on the part of a Tribunal member; and 4. a general invitation for the Federal Court to consider the applicant's situation. 19 The wife did not file written submissions but made oral submissions at the hearing which traversed much of the ground addressed in her review application. 20 Before addressing each of the grounds in turn, the primary judge noted that it was clear from the Tribunal decision that nothing had been overlooked by the Tribunal and that the credibility findings made by the Tribunal were open to it on the material before it: SZVJQ at [10]-[11]. 21 The primary judge found that the first ground could not be made out factually. The primary judge noted that the wife had failed to provide the delegate with any documentary evidence in support of her claims. The Tribunal set out in detail at [17] of the Decision Record the photographs and statements from alleged Falun Gong practitioners which the wife had provided to the Tribunal. The Tribunal referred to the photographs at [54]-[55] and put to the wife that the statements lacked detail and would be given little weight in support of her claims. Ultimately, the Tribunal held at [56] that the photos and letters did not overcome its concerns about the credibility or plausibility of the applicant's claim: SZVJQ at [17] - [19]. The primary judge found that, properly understood, this ground of the application took issue with the factual findings of the Tribunal, and as such it was not arguable: SZVJQ at [19]. 22 The wife was unable to make good the assertion in her second ground of review that the Tribunal member had been "unfriendly and aggressive" as she had not complied with procedural orders which directed any party wishing to rely on the evidence of the Tribunal hearing to file a transcript of the hearing. In rejecting this ground of appeal, the primary judge noted that the Tribunal had considered the wife's evidence that she had been nervous but did not accept that this explained the discrepancies in her evidence. The primary judge also took into account the inquisitorial nature of the Tribunal's proceedings and the fact it is necessarily required to test the applicant's evidence. Further, although the applicant submitted that during the Tribunal hearing she had "felt like requesting an adjournment" there was no evidence of that request and the hearing record showed that the Tribunal had in fact adjourned for twenty minutes: SZVJQ at[20] - [23]. 23 The third ground of review disputed the Tribunal's finding, based on country information, that it was unlikely that the applicant had been able to avoid labour camp because she had a young child. The primary judge noted that the applicant had been invited by the Tribunal to comment on the country information and that the applicant had provided no evidence to the contrary: SZVJQ at [25]. Although, at the show cause hearing, the wife had sought to rely on Chinese legislation as evidence of the immunity afforded to nursing mothers from the application of Chinese law, this evidence had not been before the Tribunal. In such circumstances, the Tribunal's finding were open to it, such that there could be no arguable case of error in the Tribunal's approach: SZVJQ at [13]-[14] 24 As part of the third ground of review, the wife also made an allegation of bias against the Tribunal member, however this was not particularised or supported by the transcript of the hearing: SZVJQ at [26]. 25 The primary judge understood the fourth ground as merely asking the court to consider the applicant's situation and therefore did not assert any jurisdictional error for consideration: SZVJQ at [27]. 26 In the result, the primary judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) because the applicant had failed to demonstrate an arguable case of jurisdictional error by the Tribunal: SZVJQ at [28]-[29]. Appeal to this Court 27 The applicant filed an application for leave to appeal the decision of the Federal Circuit Court on 3 November 2015. 28 The applicant lists four grounds in her application (as written): 1. The federal circuit court dismissed my appeal on the court. 2. The tribunal officer did not believe that I was sentenced because I was a Falun Gong practitioner in China. It was breastfeeding during that period of time, so I was not sent to prison. There is corresponding laws in China to support my arguments. 3. AAT did not believe that I was a Falun Gong practitioner in China and did not give me any reasons for that. 4. The process at present is out of my expectation, which had ran out of my financial ability. I hope the Federal Court can judge fairly. 29 The applicants did not file any written submissions in support of their appeal. The wife appeared with the assistance of an interpreter and made oral submissions. 30 The Minister filed written submissions and appeared by his representative at the hearing. Consideration 31 The first ground is a statement of fact. The wife provided no particulars in respect of this ground. It reveals no error by the primary judge. 32 The second ground cavils with the merits of the Tribunal's decision. As in the Federal Circuit Court, the wife offered no proof as to the Chinese laws which she asserted supported her evidence that a breast-feeding mother could not be detained. The wife was given an opportunity to comment on country information which suggested that it was improbable that she would have avoided detention because she had a young child (Decision Record at [37]) but, as the primary judge noted in SZVJQ at [14] and [25], she could not point to any information which contradicted the Tribunal's country information. The Chinese Law which the wife referred to in the proceedings before the Federal Circuit Court had not been referred to before the Tribunal. At the Tribunal hearing, the wife simply said that her detention was "impossible" because it would impact upon her child. The primary judge did not err in his finding that the Tribunal's findings were open to it on the material before it. 33 The third ground also cavils with the merits of the Tribunal's decision. In relation to the contention that the Tribunal did not give reasons for not believing her, the wife explained that her complaint was that the Tribunal did not accept the photographs and statements which she provided to it. This explanation reflects the first ground considered by the primary judge in SZVJQ at [17] - [19]: see [21] above. The primary judge did not err in rejecting this ground for the reasons which he gave. 34 As to the fourth ground, the wife explained that she could not afford a lawyer to assist her. There is no doubt that a self-represented person would benefit from the assistance of a lawyer, however, the fact that the wife is self-represented reveals no error by the primary judge. 35 I note that in the course of the hearing it became apparent that there was some variation in the form of the Decision Record annexed to the affidavit of Ada Oi-Yee Wong dated 18 November 2015 and the form of the Decision Record set out in the Court Book considered by the primary judge. Ms Wong provided evidence that the same form of the Decision Record that was annexed to her affidavit was filed by the wife in support of her application to the Federal Circuit Court. I am satisfied that the variations are small; while they are unexplained they do not appear to be material. Conclusion 36 To justify a grant of leave to appeal, the applicant must show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong that substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655. The Minister submits that the wife is unable to establish this justification. I accept that submission. Accordingly I will dismiss the application with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 24 February 2016