SZRPG v Minister for Immigration and Border Protection

Federal Court of Australia|2013-11-22|Before: Nicholson J, Cowdroy J

REASONS FOR JUDGMENT 1 By notice of appeal filed on 22 August 2013, the first appellant appeals from a decision of a judge of the Federal Circuit Court of Australia delivered on 2 August 2013 dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') dated 30 May 2012: SZRPG v Minister for Immigration [2013] FCCA 994 ('the primary judgment'). 2 The second and third appellants are the first appellant's husband and son respectively.

BACKGROUND 3 The appellants are each citizens of the People's Republic of China ('China'). They arrived in Australia on 11 July 2011, each of them holding a visitor visa. On 25 August 2011, the first appellant applied for a protection visa ('the visa'). The second and third appellants were included in that application as member of the same family unit as the first appellant: see ss 5 and 36(2) of the Migration Act 1958 (Cth) ('the Act') and r 1.12 of the Migration Regulations 1994 (Cth). A delegate of the first respondent ('the Minister') made a decision to refuse their application on 28 October 2011. 4 The first appellant claimed that she practised the exercises of Falun Gong between 1998 and 1999 in China, in part due to health benefits. As a result, the first appellant claimed that she was arrested by the police, detained and hospitalised twice in 1999. Subsequently, the appellant claimed that she was regularly harassed and required to report to the police. 5 The appellant claimed to have fled to Australia to escape this treatment. Further, she claims that since arriving in Australia, the police have approached her family in China on two or three occasions. She claims to fear that she will be harmed by the police due to her Falun Gong beliefs should she return to China.

THE TRIBUNAL'S DECISION 6 The Tribunal accepted that the first appellant had practised Falun Gong exercises for health reasons until it was banned in China in 1999. However, the Tribunal found numerous inconsistencies in the evidence before it, particularly relating to the period of time the first appellant practised Falun Gong in China and events claimed to have occurred therein. The Tribunal did not accept the first appellant's explanations, considering them in part 'contrived', and it rejected a medical report and a summons submitted as 'disingenuous'. The Tribunal concluded that the appellant was not a credible witness and it disregarded her practice of Falun Going in Australia pursuant to s 91R(3) of the Act. Ultimately, the Tribunal was not satisfied that the appellant feared persecution for a convention reason or met the criteria for complementary protection and it affirmed the decision of the delegate to refuse the grant of a visa.

THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA 7 In an amended application filed on 27 August 2012, the appellant advanced the following grounds in the Federal Circuit Court of Australia: 1. The Refugee Review Tribunal has ignored relevant considerations in making the decision. 2. In paragraph 87 of the decision, the Tribunal found there is "considerable variation and confusion surrounding the evidence about the period of the applicant practiced Falun Gong in China". The Tribunal failed to consider the actual reason why the answers provided by my husband were different from mine. When RRT member asked my husband when I started to practice Falun Gong, my husband answered 1998. Later RRT member asked my husband how long I have been practicing Falun Gong. My husband said it's more than ten years, which is from 1998 until now. When interpreter translated this to RRT member, interpreter said it's around ten years. This misleading translation caused confusion. RRT member didn't accept my explanation of this inconsistency. Then, based on this inconsistency, RRT member reached the conclusion that things including my arrest, Chinese police's interrogation against me, my injury and the period I stayed in hospital are all false. 3. In paragraph 88 of the RRT decision record, the inconsistency of the answers between my husband and I was mentioned. RRT member didn't consider that my husband was in Europe for many years. We were separated during that period. After many years passed, my husband forgot about many things that happened to me in the past. I think this is human nature. I enclosed my husband's passport copy as evidence of his period of stay in Europe. 4. The Refugee Review Tribunal rejected the applicant's claimed involvement in Falun Gong in China without considering the all of information the applicant provided. 5. Paragraph 89 of the decision record, RRT member mentioned that I said I was sent to hospital by police. My husband said I left from the hospital gate. The reason my husband said that was because my mother told him so. My mother didn't want my husband to know I was tortured by police to a severe level. My mother didn't want my husband to worry about me too much. RRT member didn't ask about the reason why my mother made this up. I said my skin was burnt by cigarette. My husband said I was scalded by boiling water. RRT member didn't consider the photo I provided. The scar on the photo is definitely from a cigarette burn. RRT member didn't consider that my husband was in Europe for many years. We were separated during that period. After many years passed, my husband forgot about many things that happened to me in the past. RRT member mentioned that the doctor certificate I provided stated that my injury was caused by boiling water. But RRT member didn't consider that doctor's report was written under Police's order. The scar on my body is the truth. I have enclosed the photo of my scar. I can show you my scar if necessary. 6. The Tribunal made its decision relied on the information which is incorrect. The translation provided by my previous migration agent was wrong. This misleading information caused RRT member to have wrong judgement of me. In paragraph 90 of the decision record, RRT member pointed out that I was treated for 23 days in hospital according to medical report, which I was hospitalised on 11 November 1999 and released from hospital on 23 November 1999. I have the correct translation enclosed. 7. In paragraph 91 of the decision record, RRT member mentioned that I didn't provide the summons to immigration department. When I lodged application to immigration, I have provided the summons to my previous migration agent, but that migration agent didn't provide it to immigration department. 8. In paragraph 92, RRT mentioned "the Tribunal considers that it is implausible that the police would interrogate her harshly but take her to hospital because they were afraid of being held responsible". But no matter what Tribunal considers, that was the truth. 9. In paragraph 93 of the decision record, RRT member writes: "The Tribunal also considers that the applicant's claims regarding the requirement to report are highly inconsistent between the department and the Tribunal." In its decision record: "at the hearing the applicant claims that she was required to report to police every 3 days for 6 months after the incident in November 1999 and then as requested by at least once a month until she came to Australia in July 2011." But during the interview with immigration department officer, this matter was not mentioned by immigration officer. The duration of immigration's interview was much shorter than Refugee Review Tribunal's hearing and the questions asked were different. I am sure there are many questions asked by Immigration officer are not same as Tribunal member asked. 8 The primary judge overwhelmingly adopted the Minister's submissions: see [59] of the primary judgment. In response to grounds one and two, his Honour found that the Tribunal raised the inconsistencies relating to the period of time the first appellant practised Falun Gong in China directly with the first appellant, and no fault was suggested on the part of the interpreter. His Honour accepted that in response, the first appellant made claims of interpretational error. Such alleged errors however, did not relate to the period of time that the first appellant practised Falun Gong in China. Thus, his Honour agreed with the Minister that the Tribunal did not fail to consider a relevant consideration. 9 His Honour dismissed grounds three, four and five of the appellants' amended application, agreeing with the Minister that it was clear from the Tribunal's decision record that it considered: a) the first appellant's evidence that the second appellant was in Europe for a substantial period of time; b) the first appellant's explanations regarding the inconsistencies between her and the second appellant's evidence; and c) the relevant photos and medical reports relating to the alleged harm suffered by the first appellant in China. 10 In response to ground six, his Honour agreed with the Minister that the Tribunal cannot be held to have erred by reference to a document it did not have before it at the relevant time. His Honour also agreed with the Minister's submission in relation to ground seven, that being that the appellant never raised the issue of her migration agent failing to provide a summons to the Department of Immigration and Citizenship. His Honour found ground eight took issue with a finding of fact. Accordingly, grounds six, seven and eight were dismissed. 11 Finally, in relation to ground nine, his Honour found that in circumstances where the Tribunal raised particular inconsistencies with the appellant both at the hearing and in a letter to the first appellant after the Tribunal hearing, it was open for the Tribunal to find that the appellant had provided inconsistent evidence. 12 Independently of the appellants' pleaded grounds, his Honour agreed with the Minister's submissions that the Tribunal was not obliged to invite the appellants to a further hearing to foreshadow its factual findings in relation to a summons and medical documents, that the Tribunal was not obliged to raise the issue of the genuineness of documents where the issue flowed naturally from what was raised expressly with the appellant at the hearing, and that the Tribunal's adverse credibility findings is a matter par excellence for the Tribunal. 13 His Honour noted that whilst the appellant did not raise any of the complementary protection criteria in her claim, the Tribunal ultimately rejected her claims as not credible and in those circumstances found that the appellant did not satisfy the requirements for a protection visa. 14 Having rejected each ground of the appellants' amended application, and having found no other error with the Tribunal's decision, the primary judge dismissed the amended application.

GROUNDS OF APPEAL 15 By notice of appeal filed 22 August 2013 the appellants raise four grounds of appeal. They are, without alteration: 1. The Refugee Review Tribunal has ignored relevant considerations in making the decision. 2. In paragraph 87 of the [Tribunal's] decision, the Tribunal found there is "considerable variation and confusion surrounding the evidence about the period of the applicant practiced Falun Gong in China." The Tribunal failed to consider the actual reason why the answers provided by my husband were different from mine. When RRT [i.e. the Refugee Review Tribunal] member asked my husband when I started to practice Falun Gong, my husband answered 1998. Later RRT member asked my husband how long I have been practicing Falun Gong. My husband said it's more than ten year, which is from 1998 until now. When interpreter translated this to RRT member, interpreter said it's around ten years. This misleading translation caused confusion. RRT member didn't accept my explanation of this inconsistency. Then, based on this inconsistency, RRT member reached the conclusion that things including my arrest, Chinese police's interrogation against me, my injury and the period I stayed in hospital are all false. 3. In paragraph 88 of RRT decision record, the inconsistency of the answers between my husband and I was mentioned. RRT member didn't consider that my husband was in Europe for many years. We were separated during that period. After many years passed, my husband forgot about many things that happened to me in the past. I think this is human nature. I enclosed my husband's passport copy as evidence of his period of stay in Europe. 4. The Refugee Review Tribunal rejected the applicant's claimed involvement in Falun Gong in China without considering the all of information the applicant provided.

CONSIDERATION 16 No particulars have been provided in respect of any of the grounds of appeal, although some information has been incorporated into the second and third grounds as reflected immediately above. No written submissions were received from the appellants, and only limited oral submissions were made by the first appellant. Further, the grounds of appeal are essentially identical to grounds of the appellants' application before the primary judge. This is not a criticism of the appellants given that they are self-represented and not fluent in English. They are matters that are important to note however, as it is not the role of this Court on judicial review to make the case of an appellant. 17 As to the first ground of appeal, it is not clear which relevant considerations the Tribunal is said to have ignored. In oral submissions, the first appellant argued that the evidence that the appellants relied on before the Tribunal was true. She also referred in an abstract manner to an obligation on Australia to protect refugees. Such arguments as they were framed do not disclose a failure on the part of the Tribunal to take into account relevant considerations. 18 Rather, it appears that the first appellant seeks to have the Court review the information that was before the Tribunal, but come to a different conclusion. Such a review of the merits of the appellants' case, including the Tribunal's findings of the credibility of the first appellant's evidence, is not permissible on this appeal: Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]. In any event, the Tribunal's reasons, which appear to thoroughly consider the evidence and claims of the appellants, do not suggest that it failed to take any relevant consideration into account. 19 The second ground of appeal refers to an alleged error in translation of the second appellant's evidence as to the first appellant's practice of Falun Gong in China. To fully understand this submission, it is necessary to provide some further explanation as to the evidence provided to the Tribunal. 20 Shortly after the Tribunal hearing, a Tribunal officer sent a letter dated 11 May 2012 addressed to the appellants to the appellants' migration agent ('the Tribunal's Letter'). Such letter, in accordance with s 424A of the Act, outlined particulars of information that, subject to any response from the appellants, would be at least part of the reason for affirming the delegate of the Minister's decision to refuse the first appellant a protection visa. The information in part related to a number of perceived inconsistencies in the first and second appellant's evidence, including in relation to the first appellant's alleged injuries inflicted by Chinese police, comments made by the first appellant's mother, and the first appellant's practice of Falun Gong in Australia. Of particular note however is the Tribunal officer's reference to the evidence of the first appellant's practice of Falun Gong in China. The letter, without alteration, states: In the hearing you [the first appellant] gave evidence that you had practiced Falun Gong in China for 1 ½ - 2 years, By contrast, [the second appellant] said you practiced Falun Gong in China for 10 years… 21 The first appellant responded to the Tribunal's Letter in a statement made on 19 May 2012. The first appellant alleged that a number of the inconsistencies were due to incorrect translations of the second appellant's evidence by the interpreter, such as in relation to her injuries and statements by her mother. In response to the Tribunal's query as to the evidence of her practice of Falun Gong excerpted immediately above, the first appellant stated as follows, without alteration: It had been over 10 years since I first practiced Falun Gong in China, but during this period I actually practiced 1.5-2 years. My husband meant the total period of time from the beginning of my practice to the time we departed China, while I meant the actual period of time of practice. 22 The first appellant did not suggest in her response that the second appellant's evidence had been incorrectly translated. The Tribunal's careful consideration of the first appellant's response is directly reflected in its reasons, which state at [87]: The Tribunal notes that there is considerable variation and confusion surrounding the evidence about the period the applicant practiced Falun Gong in China. At the hearing the applicant gave evidence that she practiced [sic] Falun Gong for 1 ½ - 2 years, starting in 1998 and finishing in 1999 when she found it was illegal. The applicant told the departmental officer that she was able to continue practising Falun Gong in the mornings when she and her husband were running a minibus business between 1999 and 2004, whereas her husband gave evidence that said she practiced Falun Gong in China for 10 years. The Tribunal does not accept the explanation for this inconsistency as being because her husband was referring to the period she started practicing Falun Gong until when they departed China firstly [sic] because this would have been 13 years and secondly because it seems a very contrived explanation to respond in such a way to question asked [sic]. (Emphasis added) 23 As can be seen, the Tribunal provided the first appellant with an opportunity to respond to the inconsistency between her evidence as to the length of her practice of Falun Gong in China and the evidence of the second appellant on the same issue. In responding, the first appellant did not in any way suggest that such inconsistency was due to an error in translation by the interpreter. The Tribunal cannot fail to consider an argument that was not put to it. As such, the second ground of appeal must fail. 24 The Court also notes for completeness the submission made at the end of the appellants' second ground of appeal, namely that the Tribunal's finding that the evidence as to the first appellant's practice of Falun Gong in China was inconsistent ('the main inconsistency finding') led the Tribunal to make erroneous findings of fact as to the first appellant's arrest, her interrogation by Chinese police, her injuries and her stays in hospital. This argument must be rejected. Even if the Tribunal's main inconsistency finding constituted an error of law, it did not form the basis for the Tribunal's findings as to the first appellant's arrest, her interrogation by Chinese police, her injuries and her stays in hospital. 25 As to the third ground of appeal, it is not evident why the second appellant's residence in Europe for a number of years constituted a relevant consideration that the Tribunal was required to take into account. In any event, the Tribunal noted that the second appellant resided in Italy from April 2004 until 2011, during which time he worked as a supervisor in a factory in Milan. Clearly cognisant of the fact that the second appellant had spent a significant number of years in Europe, the Tribunal was not required to again refer to that factor when considering discrepancies in the first and second appellant's evidence at [88] of its reasons. Furthermore, although numerous such discrepancies were noted in the Tribunal's Letter, the first appellant in her response did not refer to the second appellant's time in Europe as an explanation for the inconsistent evidence. 26 With respect to the fourth ground of appeal, the first appellant referred briefly during oral submissions to scarring on her body. The Court assumes that the first appellant alleges such scarring was due to the harm alleged to be inflicted upon her by the Chinese police. The reasons of the Tribunal clearly show that it considered the medical reports tendered by the first appellant. More broadly, the Tribunal considered the first appellant's claims to have practised Falun Gong and rejected the claims that she suffered any harm in China by reason of her actual or imputed Falun Gong practice. Similarly to the first ground of appeal, it appears that the first appellant seeks a form of impermissible merits review. 27 For the reasons above, each of the appellants' grounds of appeal must be rejected. It follows that the appeal must be dismissed with costs.

ADDITIONAL MATTER 28 The Court notes one further matter that is important, albeit not strictly relevant to this appeal. In SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582, Flick J extensively considered the requirement of adequate reasons in migration decisions, particularly those of the Federal Magistrates Court (as it was then known). His Honour noted at [26] that: … the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that court proceeded and the reasons why the application to review the decision of the tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant - or this court - is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision 29 The primary judge in the present proceeding, as referred to above at [8], overwhelmingly adopted the Minister's submissions in his reasons by stating at [59] of the primary judgment: In respect of the pleaded grounds in the Amended Application, I am satisfied that the written submissions prepared and relied upon by [the legal representative of the Minister] adequately and competently respond to these claims and need no further consideration. 30 In other circumstances, such reliance on the submissions of the Minister without more fulsome reasons as to why those submissions have been adopted may be inadequate. This is particularly so where an appellant is not legally represented. In the present proceeding, the primary judge sufficiently explained the Minister's arguments and clearly adopted them. This, in combination with the summary of the decisions of the delegate of the Minister and the Tribunal, has meant that his Honour's reasons for decision are adequately expressed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Migration Act 1958(Cth)ss 5, 36, 91R, 424A

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