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[2013] FCA 1209
Federal Court of Australia
2013-11-13
Farrell J
Original judgment source is linked above.
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.
First ground of appeal 11 The first ground of the appeal is (errors in the original): I am a common Falun Gong member. The Tribunal thinks that Chinese authorities only take an interest in a leader of Falun Gong in Australia . His view is wrong. The Chinese authorities are persecuting common Falun Gong member. As long as they find Falun Gong members practicing , the police will arrest them and persecuted them. 12 This is a ground which was not raised before the Federal Circuit Court and no leave has been sought to raise it in these proceedings. The appellant is self-represented and she appears with an interpreter. 13 It is common in migration cases where the appellant is self-represented for grounds which have not previously been agitated to be raised on appeal. I accept that the proper approach to the exercise of the Court's discretion to allow grounds to be argued on appeal for the first time is set out in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1346 at [6] and that the relevant consideration is whether it is expedient in the interests of justice that the ground should be argued and decided upon. Relevant to the decision to grant leave is whether there is an adequate explanation for the failure to raise the ground before the Federal Circuit Court, whether there is real prejudice to the respondent in permitting the ground to be agitated and most importantly whether the ground has merit: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. 14 At the hearing of the appeal, the appellant explained that the issue addressed in this ground was raised by the Minister's representative during the proceedings in the Federal Circuit Court. The Minister's representative at the hearing in this Court did not appear before the primary judge but argued that whether or not the appellant is right about the events in the Federal Circuit Court, the more important issue is whether the ground has merit, which he argues that it does not. The Minister's representative did not argue that the Minister suffered any prejudice from the ground being agitated for the first time in this appeal. 15 This ground calls into question whether the Tribunal considered the appellant's claims under the complementary protection criterion in s 36(2)(aa) of the Migration Act adequately. The Tribunal considered "country" information in relation to treatment of Falun Gong and anti-CCP activists in China at [53]-[67] of the decision record and considered the complementary protection criterion at [91]-[95] of the decision record. 16 The Tribunal noted reports that practice of Falun Gong in private at home is "dangerous" when brought to the attention of the police or Communist Party officials. The Tribunal quotes reports in April and May 2011 that Chinese authorities focus not just on Falun Gong leaders but also on "common" Falun Gong practitioners concluding: [62] … [w]hile precise information on cases is difficult to obtain, we assess that the authorities now place greater emphasis on how readily Falun Gong [Dafa] practitioners confess their crime and denounce their practice rather than their role in Falon Gong. 17 The Tribunal found that in light of its findings that she is not a genuine and committed adherent or practitioner of Falun Gong, and that she would not, and would not wish to, practice Falun Gong on return to China or engage in anti-CCP activities in China, it did not consider there were grounds to believe that there is a real risk that she will suffer significant harm on that basis. 18 The Tribunal recognised that it must consider the impact of the appellant's activities in Australia and that s 36(2)(aa) contains no "good faith" element, as does s 91R(3): in light of the findings at [17] above, the issue in determination was whether there is a real risk that the appellant's engagement in activities in Australia would bring her to the adverse attention of authorities if she was to return to China. 19 The Tribunal relied on "independent" sourced information as noted in [15] above. That information indicates that Chinese authorities monitor activities of Falun Gong practitioners overseas, including Australia and are able to ascertain if practitioners have played a 'active role' in Falun Gong [Dafa] organisations while overseas. The situation such people might face on return to China would depend on their profile and willingness to renounce their beliefs. A failed asylum seeker who was a member of such a group might be interviewed, detained for a short period and kept under surveillance; the fact of their practice might be recorded in their dossier which could impede employment prospects. If the person was a high profile Falun Gong leader or known for publicly criticising the Chinese leadership they would be treated more severely. 20 The Tribunal noted the appellant's concern that she had been told that the Chinese government has spies in Australia and she fears that they will have taken her photograph. The Tribunal found that the appellant's involvement in Falun Dafa and anti-CCP activities in Australia was low level and there is no evidence that she had an active role in a Falun Dafa organisation or that she was a "known" member of Falun Gong or anti-CCP activist (despite being involved in one protest at Auburn train station) nor that she had been mentioned or had her image in Australian media. The Tribunal concluded that there was not a real risk that she would suffer harm if returned to China. 21 I consider that the Tribunal's findings were open to it and therefore I accept the Minister's argument that this claim is essentially an invitation to the Court to engage in impermissible merits review. It is therefore without merit and I do not grant leave to raise this ground.
Ground 2 22 The second ground of appeal is (errors in the original): I have been a Falun Gong member and have evidence, but the Tribunal member failed to take all my claims and into account according to S91R of the migration Act 1958. Because of the Tribunal bias against me. Federal Magistrate Court failed to find the above-mentioned jurisdictional error. 23 This reflects the third ground of appeal to the court below that the Tribunal Member failed to take all the appellant's claims and evidence into account according to s 91R of the Act because of Tribunal bias. 24 At SZSNM [45]-[52] the primary judge noted that the Tribunal had specifically considered statements from fellow Falun Gong practitioners, 10 photographs supplied by the appellant and a ticket to a Shen Yun performance in Sydney, and asked the appellant questions concerning them. The primary judge also considered the relevant authorities related to both apprehended and actual bias and I find no error in her Honour's reasoning or statement of the law in this area. 25 This ground is not made out. 26 Accordingly, I dismiss this appeal and order that the appellant pay the first respondents' costs as agreed or assessed. I also order that the title of the first respondent be amended to "Minister for Immigration and Border Protection". I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell .
SZSNM
Minister for Immigration and Border Protection