ABD15 v Minister for Immigration and Border Protection

1. The Applicant's application for an extension of time and leave to appeal be dismissed.
2. The Applicant pay the First Respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The applicant has made an application for time to be extended for her to file a notice of appeal. The applicant seeks to appeal the judgment of a judge of the Federal Circuit Court of Australia (the primary judge), whose reasons for judgment are published as ABD15 v Minister for Immigration and Border Protection [2015] FCCA 2899. The primary judge dismissed the applicant's application for judicial review of the decision of the second respondent (the Tribunal), to affirm a decision refusing the applicant a Protection (Class XA) visa. 2 The application before the primary judge was dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). The order made dismissing the application was interlocutory as provided by r 44.12(2) of the FCC Rules. Should the extension of time be granted, the applicant also requires leave to file an appeal from an interlocutory order of the Federal Circuit Court by reason of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant has also applied for that leave. 3 The relevant background and a summary of the decision of the Tribunal is helpfully set out in the outline of submissions of the first respondent (the Minister) at [6]-[7]. As to the applicant's claims: 6.1 The applicant's husband was abusive, an alcoholic and a gambler. In 2008, he forced her to pay the difference in price between their home which was forcibly sold by the Chinese government and their new property. The applicant would have nowhere to live if she returned to China. Following her father's death, she was dismissed from her job resulting in a life of humiliation, hardship and discrimination. 6.2 The applicant was a practitioner of Falun Gong while in China. Her father was also a practitioner, who died while detained by the Chinese authorities. The applicant petitioned the authorities to seek justice for her father's death. The applicant was caught by the police when practising Falun Gong with her mother in 2012, which led to her being interrogated, as well as a number of subsequent incidents involving the police. As to the Tribunal's decision (references omitted): 7.1 The Tribunal found, on the basis of numerous inconsistencies in the applicant's evidence over time, that she was not a "credible, truthful and reliable witness" and was of the view that the applicant had "fabricated claims and concocted evidence to achieve an immigration outcome". In reaching its adverse credibility findings, the Tribunal had regard to the applicant's claimed medical and memory difficulties, noting that "no independent evidence" had been provided to support such a claim and concluding that the applicant's claimed health issues had not had any effect on her ability to present consistent evidence. 7.2 On the basis of the inconsistencies set out at [64]-[78] of its decision, the Tribunal did not accept the applicant's claim to be a Falun Gong practitioner or to have ever practised Falun Gong in China, rejecting the remainder of the applicant's claims in relation to her Falun Gong practice. 7.3 While the Tribunal accepted that the applicant experienced past difficulties with her husband, it did not accept that these continued following their separation, that he had threatened her recently or that she feared to return to China for any reason connected to him. Further, the Tribunal did not accept that the applicant's husband had sold their home and that she had nowhere to live upon her return home to China, nor did the Tribunal accept any of her claims in relation to the forced sale of her earlier home in 2008 or that she would be of adverse interest to the authorities on this basis. 7.4 The Tribunal did not accept the applicant's claim to have lost her job because of her father's involvement in Falun Gong or her conduct following his detention. Further, The Tribunal did not accept the applicant's claim that she did not want to return to China because she would be unable to obtain employment. Further, the Tribunal did not accept that at the time the applicant departed China in March 2013 she held any concerns for her safety or feared harm for any of the reasons claimed. 7.5 The Tribunal accepted that the applicant took part in Falun Gong demonstrations and lectures in Australia, but was not satisfied that the reason for undertaking these activities had been otherwise than to strengthen her claims and disregarded this conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (the Act). The Tribunal found that the applicant did not face a real chance of persecution for any of the reasons claimed in relation to her or her family practising Falun Gong. 7.6 Having considered her claims individually and cumulatively, the Tribunal was not satisfied on the evidence that the applicant had a well-founded fear of Convention-based persecution. On the basis of its anterior findings of fact, the Tribunal did not accept that the applicant faced a real risk of significant harm. 7.7 In regard to the applicant's Falun Gong activities following her arrival in Australia, the Tribunal was satisfied that, because of the limited nature and extent of the applicant's involvement in Falun Gong activities and events and her likely behaviour on return to China, and on the basis of country information before it, she would not be of adverse interest to the authorities. Accordingly, the Tribunal found there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm for these activities.