WZAUY v Minister for Immigration and Border Protection

TRIBUNAL'S DECISION 22 The appellant attended a Tribunal hearing by video-link on 11 September 2014 to give evidence and present arguments, and was assisted by a Mandarin interpreter. 23 As the Previous Protection Visa Application was assessed in relation to the appellant's claims under s 36(2)(a) of the Act, the Tribunal confined its consideration of the Present Protection Visa Application to whether the appellant satisfied the requirements of s 36(2)(aa) and (c) of the Act. 24 In this respect, the Tribunal relied on the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, in which the Full Court found that s 48A(1) of the Act did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s 36(2)(a) from making a further application on the basis of the complementary protection criterion in s 36(2)(aa) whilst he or she remained in the migration zone. The Tribunal said that, as the appellant had not left Australia since the determination of the Previous Protection Visa Application, which preceded the complementary protection laws, the appellant was "SZGIZ-affected." 25 The Tribunal proceeded to consider the appellant's claims in relation to the complementary protection requirements of s 36(2)(aa). 26 The Tribunal expressed concern about the inconsistencies, changes and contradictions in the appellant's written and oral evidence, his inability to provide convincing or credible explanations for aspects of his claims and the gaps in his claims. As a result, the Tribunal did not find the appellant to be a credible witness. 27 The Tribunal said the appellant told the Tribunal that he had never practised Falun Gong and any involvement with Falun Gong was limited to printing and distributing flyers. 28 The Tribunal then asked the appellant about his involvement in Falun Gong since he arrived in Australia and the appellant responded that he attended a Falun Gong activity in Fremantle in 2008, in which he "listened to the lesson and the theory was explained". The Tribunal said the appellant stated that he had not mentioned this claim to the delegate as the delegate only asked about the evidence of his torture and abuse. The appellant also told the Tribunal that he walked down a street in the city holding slogans and attended a protest in 2011. 29 The Tribunal noted that the delegate found that the appellant attended a parade held in Perth and Fremantle in 2011 as a spectator. The Tribunal also noted that the appellant had admitted to not participating in any Falun Gong activities since his arrival in Australia. The Tribunal confirmed that the Falun Dafu website refers to a Christmas parade held in Perth and Fremantle in 2011 with similar activities as described by the appellant. 30 The Tribunal did not accept that the appellant did not mention his attendance at a Falun Gong activity in Fremantle in 2008 to the delegate because the delegate only asked him to provide evidence about his torture and abuse. The Tribunal further said that the appellant's description of his involvement in the activities in 2011 were vague and indicated he was more of an observer rather than a participant. The Tribunal did not accept that the appellant attended any meetings, or participated in any protests, or was involved in any other way with the Falun Gong in Australia. 31 The Tribunal did not accept that the appellant was a Falun Gong practitioner based on his own admission at the hearing that he was not a Falun Gong practitioner, and his inability to demonstrate any knowledge of the beliefs and practices. The Tribunal also did not accept that it was plausible that the appellant would have assisted in printing and distributing Falun Gong pamphlets on a daily basis and have no knowledge of the content of the pamphlets. 32 The Tribunal did not accept the appellant's claim to the delegate that he assisted in transporting and providing refuge to Falun Gong practitioners, and noted that the appellant did not expand on this claim any further. 33 The Tribunal noted that the appellant claimed, at the hearing, that he was detained for 14 days in China because he provided assistance to Falun Gong, but had told the delegate that he had never been detained, harmed or mistreated in China because the authorities never caught him. The Tribunal also noted from the delegate's decision that the appellant claimed to have been detained for two weeks in the Present Protection Visa Application and for two months in the Previous Protection Visa Application. 34 The Tribunal found that the evidence provided to the delegate and the Tribunal was inconsistent, and did not accept that the appellant was ever detained because he was a Falun Gong practitioner, perceived to be a Falun Gong practitioner or assisted Falun Gong practitioners. The Tribunal added that it did not accept that the appellant was a credible witness, nor did it accept that he was ever a Falun Gong practitioner, or perceived to be a Falun Gong practitioner, or associated with Falun Gong practitioners. 35 The Tribunal did not accept that the appellant was ever detained, interrogated, or otherwise mistreated, harmed or monitored because of his claimed involvement in Falun Gong activity and/ or his association with Falun Gong practitioners. 36 The Tribunal then considered the appellant's claims that he obtained a passport and was able to depart the country. The Tribunal, having regard to the independent country information, did not accept that the appellant was able to depart China on travel documents in his own name and pass through security checks if he were of adverse interest to 601 officers and the Chinese authorities, as he claimed. 37 Finally, the Tribunal said that it did not accept the appellant's claims that the authorities and 601 officers regularly visited his wife and family asking about him, or that the appellant was of adverse interest to the Chinese authorities. 38 The Tribunal did not accept that he left China because he feared harm and found that he fabricated his protection claims in their entirety. In light of the Tribunal's findings that the appellant was not a genuine Falun Gong practitioner, the Tribunal did not accept that the appellant would practice Falun Gong, assist any Falun Gong practitioners, or be in any way associated with Falun Gong if he returned to China. 39 Having regard to the claims and evidence, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant's removal from Australia to China, there was a real risk that he would suffer significant harm. 40 For these reasons, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa). Consequently, the Tribunal affirmed the delegate's decision not to grant the appellant a protection (class XA) visa.

APPEAL TO THIS COURT 51 A notice of appeal was filed by the appellant on 6 September 2016. The specific grounds of appeal are as follows: 1. The Federal Circuit Court judge erred, by failing to properly consider whether the Tribunal fell into jurisdictional error by finding that s. 36 applied to the Applicant without considering the risk to the Applicant back to China. 2. Further to grounds, or in the alternative, the Federal Circuit Court judge erred by failing to consider whether the Tribunal fell into jurisdictional error in its failure to take into account the review grounds during the hearing. 52 The Minister filed a notice of objection to the competency of the appeal on 19 September 2016. The Minister objected to the Court's jurisdiction to hear this appeal on the following grounds: 1. The judgment of Judge Lucev dated 16 August 2016 is interlocutory and the appellant has not been granted leave to appeal against this judgment pursuant to section 24(1A) of the Federal Court of Australia Act 1976. 2. The appellant did not file an application for leave to appeal from the orders within the time period prescribed by rule 35.13 of the Federal Court Rules 2011 and the appellant has not been granted an extension of time to file an application for leave to appeal. 53 The Minister filed an outline of submissions on 23 February 2017. In it, the Minister noted that the primary judge dismissed the appellant's application following a show cause hearing on 30 April 2015. The Minister made the following submissions in relation to the competency of the appeal: 2 The reasons for judgment and order of Judge Lucev made on 16 August 2016 make no reference to the fact that the matter was listed for a show cause hearing. 3 If it is accepted that the appellant's application before the Federal Circuit Court was dismissed pursuant to r.44.12(1)(a) of the FCCR on the basis that the application to show cause did not raise an arguable case for the relief claimed, r.44.12(2) of the FCCR provides that to 'avoid doubt, a dismissal under paragraph 1(a) is interlocutory.' 4 Pursuant to r.35.13(a) of the Federal Court Rules 2011 (Cth) (Rules), an appeal from an interlocutory decision of the Federal Circuit Court must be brought within 14 days of the date on which the judgment appealed from was pronounced or the order made. Accordingly, the last day on which the appellant could have brought an appeal in this honourable Court was 30 August 2016. The present application, filed on 6 September 2016, is seven days out of time. 5 The relevant matters to be considered in determining whether time should be extended to the appellant include the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent, and the merits of the proposed appeal (Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344; Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18]; SZNYE v Minister for immigration and Citizenship [2010] FCA 500 at [16]). 6 The first respondent concedes that there is no prejudice in time being extended to the appellant and that the length of the delay is relatively modest. 7 Turning to the merits of the proposed appeal, if the Court were to extend time to the appellant, he would then require the leave of the Court to appeal from the interlocutory judgment of the Federal Circuit Court. The relevant considerations as to whether leave should be granted to the appellant to appeal the decision of the Federal Circuit Court are: 7.1 whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36 at 38 Ryan, Stone and Jagot JJ); and 7.2 whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). 8 The onus lies on the party seeking leave to appeal (Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] per Foster J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [26] per Cowdrey J; SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7] to [8] per Flick J). 9 For the reasons discussed below addressing the grounds of the notice of appeal, the first respondent submits that the decision of Judge Lucev is not attended by doubt, nor would the appellant suffer substantial injustice if leave to appeal were refused. 54 The Minister submits that the decision of the primary judge is not attended by doubt, nor would the appellant suffer substantial injustice if leave to appeal were refused. 55 In reaching this conclusion, the Minister submits as follows: 26 The task of the Federal Circuit Court was to determine whether the Tribunal's decision was affected by jurisdictional error: section 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 27 Although an appeal to the Federal Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. As the Full Court has explained, 'an appeal by way of rehearing ... does not mean it is an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge': Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524, 529 [28] (Cowdrey, Katzmann and Farrell JJ); cited in BZAHB v Minister for Immigration and Border Protection [2015] FCA 1205 at [33] (Edelman J). 28 None of the issues raised in the appeal were before the primary Judge and, insofar as the appellant seeks to agitate the issue the appellant requires the leave of the Court: see lyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. 29 To the extent that the appellant contends that the Tribunal failed to consider any risk to the appellant upon return such a ground cannot succeed. It is apparent that the Tribunal was cognisant of the appellant's claims (AB 95[15] and 96-97[22]-[26]). The Tribunal then proceeded to consider the appellant's claims and evidence and made findings that were open to it. 30 To the extent that the appellant's second ground contends that the Tribunal failed to take into account any further claims made during the course of the hearing the ground must fail. The appellant has failed to particularise what further claim was allegedly made and not considered and no evidence has been provided to support this contention. 31 The grounds of appeal sought to be relied upon by the appellant do not identify any appealable error in the judgment of the Federal Circuit Court nor do they demonstrate any jurisdictional error in the Tribunal's decision. Further, to the extent that the appellant seeks to re-agitate the arguments advanced before the primary Judge, the appellant has not identified any error in the primary Judge's clear findings on the evidence. 56 For these reasons, the Minister submits that, in the event that the Court does not dismiss the notice of appeal as incompetent, the application should be dismissed. 57 The appellant, or applicant, did not file any written submissions in support of the appeal/application for leave to appeal. 58 He did, however, attend the hearing and made submissions to the following effect. He pointed out that he was without legal representation and relied on the Court to provide justice. He said that if he were to return to China he would go to jail. He also referred to some documents he held and suggested that information had been provided to his home country that would result that outcome. Because these documents appeared not to have been before either the Tribunal or the primary judge and were not otherwise related to matters raised on the grounds of appeal, the Court declined to peruse them. 59 Having considered those submissions, whether or not the decision of the primary judge was an interlocutory decision, the appeal or the application for leave to appeal, should it be necessary to construe it as such, should be dismissed because the merits of the grounds upon which the appeal is made or would be made do not raise an arguable case for jurisdictional error. Having regard to the decision and reasons of the primary judge, there is nothing to show that his Honour thereby failed properly to consider whether the Tribunal fell into jurisdictional error by finding that s 36 applied to the applicant without considering the risk to the applicant back in China. As the Minister submits, careful consideration was given by the Tribunal and the primary judge to that question. It should also be noted that this ground appears not to have been raised before the primary judge and that is another reason for considering that the matter raised lacks merit. 60 To the extent, therefore, that leave to raise the first ground of appeal, because it was not raised before the primary judge is required, leave should be refused. 61 Similarly, in relation to the second ground of appeal, which is both additional or in the alternative, there is nothing to show that the primary judge erred by failing to consider whether the Tribunal fell into jurisdictional error by reason of a failure to take into account the "review grounds" during the hearing. Again, as the Minister submits, the decision of the primary judge shows that both the Tribunal and his Honour had regard to the review grounds at material times. 62 In all of these circumstances, the appeal, or should it have been necessary to describe it as such, the application for leave to appeal from an interlocutory decision, should be dismissed with costs.

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