SZSNM v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 This is an appeal from a judgment of Judge Emmett of the Federal Circuit Court of Australia delivered on 25 June 2013: SZSNM v Minister for Immigration [2013] FCCA 621 (SZSNM). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 19 December 2012. The Tribunal's decision affirmed the decision of a delegate of the first respondent (Minister) to reject the appellant's application made on 6 March 2012 for a Protection (Class XA) visa (protection visa).

Background 2 The background to the appellant's application for a protection visa and the claims made in her supporting statement are set out at [19] - [26] of the Tribunal's decision record. The circumstances of the appellant's failure to attend an interview to which she was invited by the Minister's delegate are set out at [27] of the Tribunal's decision record. At [28] - [30], the Tribunal sets out the circumstances surrounding the cancellation of the appellant's student visa on 25 April 2012 and its reinstatement on 27 June 2012 effective to 1 September 2012. 3 The appellant arrived in Australia on a student's visa on 9 February 2009. She briefly left Australia later that year to renew the student visa and returned on 10 December 2009. She claims that her mother was a Falun Gong practitioner and persecuted as such in China. Her mother died in October 2006. The appellant claims that she had a difficult relationship with her father who has remarried and who, from late 2009, did not support the appellant financially. The appellant got a job to finance her studies. 4 On 30 November 2011, she and a friend were involved in a motor vehicle accident in which she received minor injuries. The appellant says that it was only when she was involved in the motor vehicle accident that she became aware that her friend was a member of Falun Gong and she started to practice. 5 The Tribunal considered that appellant gave inconsistent evidence about when she first became aware that her student visa may be in jeopardy because she had failed to attend classes frequently enough because she needed to work. She first said that she was not aware that her student visa was in jeopardy when she lodged her application for a protection visa on 6 March 2012. When asked if she had known she had a problem before she was contacted by the Department in May 2012, she said she first thought she might have a problem in February 2012 (when she received a letter from her school). Then she was asked if she had received emails in December 2011, and January and February 2012 from the school. She said she did but did not read them fully. After receiving a s 424A letter in which the Tribunal put concerns about this evidence to her, the appellant first said she did not get the 8 December email from her school, then that she did but did not read it for a long time because she was recovering from the motor vehicle accident and had to work and she did not appreciate its meaning because her English was not good. 6 The Tribunal also explored with the appellant the circumstances of her employment in Australia which had not been declared in her visa application. 7 The appellant said that the student visa issue was entirely separate from her protection claims and that she is a genuine and committed Falun Gong practitioner. 8 The Tribunal found her evidence on the matters referred to in [5] and [6] contradictory and that she was evasive and not truthful with the Tribunal about her reasons for not including the information about her work in her visa application and about when she received and read the 8 December 2011 email from her school. This caused the Tribunal to doubt her reliability as a witness. It contrasted with the straightforward way she provided evidence about other matters such as her relationship with her father and her need to work to support herself which the Tribunal accepted. 9 The Tribunal found that there was no independent evidence to support her claims that her mother had been a Falun Gong practitioner in China and persecuted for that reason. The Tribunal considered that had she wished to follow her mother's belief, there would not have been the gap between 2006 (when her mother died) and 2011 when she started to practice, especially when she had an opportunity to do it in a free and safe way in Australia from 2009. As the Tribunal doubted the truthfulness and reliability of the appellant as a witness, the Tribunal did not accept that she commenced practice to follow her mother's advice. 10 The Tribunal was satisfied that the appellant had practised Falun Gong and anti-Chinese Communist Party (anti-CCP) activities in Australia based on her evidence, her photographic evidence and statements of other practitioners which the appellant provided to the Tribunal. However, the Tribunal found that this was not as a genuine expression of her spiritual or political beliefs or for any other reason which was not associated with making an application for protection. It therefore rejected those claims under s 91R(3) of the Migration Act 1958 (Cth) (Migration Act). The appellant did not claim that she practised Falun Gong in China.