CBY15 v Minister for Immigration
[2019] FCCA 2115
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CBY15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2115 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether the Tribunal made adverse credibility findings based on unwarranted assumptions – whether the Tribunal failed to consider documents that purported to corroborate applicant’s claims – whether Tribunal properly considered explanation applicant gave in response to concerns expressed by the Tribunal about the applicant’s evidence – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 414 |
| Cases cited: BHM15 v Minister for Immigration and Border Protection [2018] FCA 917 |
| First Applicant: | CBY15 |
| Second Applicant: | CBZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3459 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 28 June 2018, 30 July 2018 |
| Date of Last Submission: | 30 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Poynder, by direct access |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3459 of 2016
| CBY15 |
First Applicant
| CBZ15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa) raises two broad questions. The first is whether the Tribunal’s finding that the applicant was a not a witness of credit was not made on a logical and probative basis. The second is whether the Tribunal failed to consider properly the explanations the first applicant (applicant) had given in response to concerns the Tribunal had with his evidence, and also whether the Tribunal failed to make findings relating to documents the applicant claimed corroborated the applicant’s claims for protection.[1]
[1] The second applicant is the applicant’s wife. She applied for a Protection visa as a member of the applicant’s family unit.
To be in a position to address these questions, it will be necessary to set out the applicant’s claims for protection and the documents the applicant submitted in support of those claims, and the reasons on which the Tribunal relied for finding the applicant was not a witness of credit.[2]
[2] The Tribunal’s decision is the second occasion on which it affirmed the delegate’s decision not to grant the applicant a Protection visa. The Tribunal first affirmed the delegate’s decision on 15 September 2015 (CB122), but on 2 May 2016 this Court, by consent, set aside that decision.
Claims for protection
The applicant’s claims are set out in a document titled “My Statement” that formed part of the application for a Protection visa (written statement).[3] The claims he there made may be summarised as follows:
[3] CB26-28
a)In 1998 a neighbour of the applicant’s mother suggested that she practice Falun Gong to overcome an illness. The applicant’s mother did so, and her condition improved.
b)In 1999 the government started to crack down on Falun Gong. The applicant’s parents practised Falun Gong at home in secret. In 2006, however, the applicant’s parents were reported. The police raided their home, and confiscated the applicant’s parents’ Falun Gong books and videos. The police also beat the applicant’s father, took him to the police station, and later released him on bail for 4,000 RMB.
c)The applicant’s wife (who is the second applicant) was fired from her position as a nurse at the hospital. She became upset, and quarrelled with the applicant. The applicant and his wife divorced.
d)In 2007 the applicant married a female friend who lived in Japan, and the applicant moved to Japan. The applicant, however, divorced his second wife, and in 2008 he returned to China. He and his wife remarried, but the applicant’s wife did so on the condition they would not live with the applicant’s parents or help the applicant’s parents with anything relating to Falun Gong.
e)In 2011 the applicant’s father’s health worsened. The applicant and his wife moved back with the applicant’s parents. The applicant’s parents sometimes practised Falun Gong. Some people reported the applicant’s parents. On 26 December 2012 the police again raided the applicant’s parents’ home, and confiscated the applicant’s parents’ books and videos relevant to Falun Gong.
f)The applicant’s father’s medical condition was aggravated, and he passed away in January 2013. The Chinese Communist Party’s unreasonable crackdown and brutal rule enforced by the police led to the applicant’s father’s death. The applicant “wanted to seek justice in relevant departments, but no[ne] of them dealt with our appeals”.
g)The applicant’s father’s death totally changed the applicant’s and his wife’s attitudes towards Falun Gong. The applicant and his wife deeply sympathised with Falun Gong practitioners who had similar experiences as his father.
h)The applicant began to help Falun Gong practitioners. He helped them by changing RMB notes with his company’s bank; the applicant gave his mother money to support Falun Gong; the applicant gave his company’s old printer to his mother’s fellow practitioners; and sometimes the applicant helped his mother’s fellow practitioners to deliver print paper and printed materials.
i)At the end of 2013 one of the applicant’s fellow practitioners was detained; and soon, in January 2014, the police illegally arrested and detained the applicant, claiming he had committed the crime of making public disorder by getting involved with the illegal activities of Falun Gong. They took the applicant to the local police station for questioning where he was mistreated. The applicant described in some detail the mistreatment he received:
The[y] chained me in a steel chair, abused me and commanded me to confess all my problems. They put a book on my chest and used a hammer covered with rubber to hit me on the book. And I was shook so hard that my viscera was in terrible pain which was unbearable for ordinary people. I was tortured to the extent I nearly lost my consciousness. Then they sent to me to the detention centre. When I entered the prison, the head of prisoner [sic] bullied and several prisoners forced me to take off all my clothes and to squat down with hands on my head. The head of prison bully asked the other prisoners to give me a shower. Then they used cold water to pour down my head. . . Mt whole body was in black and blue because of the cold water so that I nearly lost consciousness. They used slippers to slap my head if I had any reaction against them. Both my body and my spirit were severely harmed. And I was nearly tortured to death. The second day, those evil policemen took me for interrogation again. I was beaten hardly and commanded to confess how I helped Falun Gong. I was silent, and then they tried by every means to torture me. Eventually I was not clear in my mind and did not remember what I said to them.
j)The applicant’s wife secured the applicant’s release by putting up bail of 20,000 RMB.
k)After his release the police and their neighbours harassed the applicant and his wife. The applicant’s wife suggested they evade them, and the applicant and his wife spent money to apply for a visa in Australia.
l)After the applicant and his wife fled China, the police went to the applicant’s home in China several times to harass his mother, asking where the applicant and his wife were. They required the applicant’s mother to report to the police if she had any information on the applicant and his wife.
The applicant supported his claims with a number of documents which he provided to the delegate after he lodged his application for a protection visa.
a)One is a document purportedly issued by the “Public Security Bureau” at a particular District, and headed “Administration Punishment Decision Notification” (Decision Notification).[4] This document states the applicant was arrested and transferred to the Public Security Bureau “when he was putting Falun Gong material in family’s member area”; that, after he was arrested, the applicant “honestly stated he had posted Falun Gong promotional material several times”, and that the facts were proved. The document then records that, according to Article 27-1 of the Administrative Punishment Law of the People’s Republic of China, the applicant was to be detained for ten days from 7 January 2014 to 17 January 2014. The Decision Notification states the applicant is entitled to apply for “Administrative Reconsideration in the Public Security Bureau . . . within 60 days of received this letter, or follow the legal procedure for Administrative Litigation in the People’s Court . . . within three months of received this letter”.
b)A second document, also purportedly issued by the Public Security Bureau, is headed “Family’s Notice of Administrative Detention”.[5] It states a decision has been made to detain the applicant on 7 January 2014 for “disrupting public order by utilizing heresy”, and that the duration of the detention is ten days starting on 7 January 2014.
c)A third document, again issued by the Public Security Bureau, is titled “Detention Notice”, and states that a decision was made on “17/01/2014” (sic) to detain the applicant at a stated detention centre because he “is suspected of being involved in disrupting public order by utilizing heresy”.[6] The applicant later provided a further translation of this document.[7] The newly translated document refers to the Public Security Bureau having made a “decision to impose Criminal Detention” on the applicant “for his suspected crime of utilizing evil cult to disrupt public order”, and that the “suspect is currently detained in” a detention centre.[8]
d)A fourth document the applicant submitted is a letter dated 14 October 2014 from a person who described himself as a Falun Dafa practitioner. The person stated that the applicant and his wife are Falun Dafa practitioners; that from the time he met them in May 2014 they participated in a number of events, including joining the “Celestial Band”; and that the applicant and his wife “are really cultivating themselves”.[9]
e)The other documents are photographs of the applicant.[10] One is a photograph of the applicant with another man in front of a Falun Gong poster, another is of the applicant holding a banner written in Mandarin, and the third is of the applicant sitting with other similarly attired persons.
[4] CB53
[5] CB54
[6] CB55
[7] CB181
[8] CB181
[9] CB51
[10] CB52
Tribunal’s reasons
The Tribunal did not find the applicant to be a witness of credit. The Tribunal relied on the following matters:
a)The applicant “made claims at the hearing that had never been made before, and he gave evidence inconsistent with evidence previously given”.[11] First, the applicant told the Tribunal that he had been taken to an underground cell where he was beaten and electrocuted but, in his written statement, the applicant did not say he had been electrocuted.[12] Second, the applicant told the Tribunal his father had been beaten to death, by which he said he meant that the applicant’s father had died following a beating by the police but, in his written statement, the applicant did not say his father had been beaten.[13] Third, the applicant told the Tribunal that when the applicant’s father was taken to the police station in 2006 he had to pay a fine of 4,000 RMB, but in his written statement the applicant said 4,000 RMB was paid to bail the applicant’s father.[14] As to this last inconsistency, however, the Tribunal referred to the applicant’s explanation for it and decided that it “will give the first applicant the benefit of the doubt on this issue”.[15]
b)The Tribunal did not accept the explanations the applicant gave for not having read the Decision Notification and, for that reason, he did not know he could appeal, that explanation being that he was beaten so severely that his only thought was to escape.[16]
c)The Tribunal did not accept the explanations the applicant gave for not being detained when he left China. Those explanations were that he was not on the system, and that he escaped while on probation.[17]
d)The Tribunal had concerns about the authenticity of the “four Chinese language documents provided to it”. It noted it “often saw false documents from China” and, in a footnote, the Tribunal referred to a report prepared on the People’s Republic of China by the Department of Foreign Affairs and Trade stating it was aware of fraudulent documents being used in support of visa applications.[18]
[11] CB224, [35]
[12] CB224, [36]
[13] CB224-225, [39]
[14] CB225, [40]
[15] CB225, [40]
[16] CB225, [41]
[17] CB225, [42]
[18] CB225-226, [43]
Given these findings, the Tribunal did not accept the applicant’s parents were Falun Gong practitioners, or that his parents’ apartment had been raided, or that the applicant was detained, placed in detention, tortured, bailed, and then departed China for these reasons. The Tribunal concluded, therefore, that the applicant did not meet the criteria for the grant of a Protection visa provided for by s.36(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).
Ground 1
The applicant relies on the first two grounds of the amended application.[19] The first ground is as follows:
The finding by the second respondent that the applicant was not a witness of credit was not made on a logical and probative basis.
Particulars
(a)The finding,, at [36]-[38] of the decision, that the applicant’s reference at the hearing to having been electrocuted while tortured by the police in January 2014 was inconsistent with his failure to previously refer to electrocution, was based on an unwarranted assumption that an applicant for a protection visa who has experienced prolonged detention and torture ought to be expected to recall every means by which he was tortured.
(b)The finding, at [39], that the applicant’s reference at the hearing to his father having been beaten to death by the police was inconsistent with his failure to previously refer to his father having been beaten to death by the police, was based on an unfair interpretation of the applicant’s evidence on this issue. In context, the applicant’s evidence on this issue at different times during the visa application process was not materially inconsistent and – as indicated to the applicant by the second respondent at the hearing – the reference his father being beaten to death was an understandable and acceptable case of exaggeration.
(c)The suggestion by the second respondent that the applicant had “inconsistently” referred to his father being subjected to a “fine” of 4,000 RMB and “bail” of 4,000 RMB was illogical, given that the second respondent had accepted at the hearing that the words were used interchangeably.
(d)There was no basis for the apparent finding by the second respondent, at [41], that the applicant’s failure to apply for an administrative reconsideration of his detention in 2014 was relevant to his credibility. There is no logical connection between a failure to pursue a right to seek administrative reconsideration of detention, in an authoritarian dictatorship such as China, and the likelihood that such detention actually occurred.
[19] The applicant does not press ground 3
Particular (a)
In his written submissions counsel for the applicant repeats the claim made in paragraph (a) of the particulars that the Tribunal relied on an assumption, namely, that an applicant who has experienced prolonged detention and torture ought to be expected to recall every means by which he was tortured, and that this assumption is not warranted. Counsel referred to the judgment of Lee and RD Nicholson in JJ in WAGO of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs as authority for the principle that an unwarranted assumption about matters relevant to the formation of a view on credibility may amount to jurisdictional error.[20] Counsel for the Minister, on the other hand, in his written submissions, submits the Tribunal did not proceed on an assumption to the effect the applicant submits the Tribunal relied.
[20] [2002] FCAFC 437, at [54]
I agree with the Minister’s submission. The Tribunal did not assess the significance of the applicant’s not having mentioned in his written statement, but having mentioned before the Tribunal, that he had been electrocuted on the basis of an implied assumption that a person who claims to have been the victim of prolonged detention and torture ought to recall every aspect of the torture the victim endured. To the extent the Tribunal relied on any assumptions, they were that where a person who on two or more different occasions gives an account of serious torture the person claims he or she has suffered, that person would, if the applicant’s account were true, give a substantially consistent account of the torture; and where no such substantially consistent account is given, and there is no reasonable explanation to account for the absence of such substantial consistency, it is open to the decision-maker to infer that the absence of substantial consistency is due to none of the applicant’s accounts being true. That these are the assumptions on which the Tribunal relied can be seen from the transcript of the hearing before the Tribunal.[21]
[21] The transcript is annexed to the affidavit of R Huang made on 29 May 2018.
First, the Tribunal member asked the applicant “what happened?” after the police had brought the applicant to the police station. The applicant said:[22]
[22] T16.40-17.10
THE INTERPRETER: The brought me to underground room, underground cell. On the door, it says Interrogation Room. And they beat me violently.
[TRIBUNAL MEMBER]: Yes.
THE INTERPRETER: They use electric rope to electrocute me on the chair.
[TRIBUNAL MEMBER]: Yes.
THE INTERPRETER: They use many ways.
[TRIBUNAL MEMBER]: Yes.
THE INTERPRETER: Slap my face.
[TRIBUNAL MEMBER]: How many were doing this?
THE INTERPRETER: Now, I cannot– I’m not so sure about it. Some were beating me and some were watching.
Later the Tribunal member informed the applicant there always are differences between what applicants put in their statements, and what they tell the Tribunal member at the hearing, noting that sometimes “these differences are not important”. The Tribunal member said, however, that sometimes “the differences can be significant”. And here the Tribunal member identified one of the differences between what the applicant claimed in his written statement and what he told the Tribunal, namely, the applicant was tortured by the use of “an electric rod to electrocute you on the chair”. The Tribunal informed the applicant that in his statement he talked “a lot of torture”, but the applicant did not “talk about this one”. The Tribunal member then listed the tortures the applicant described in his statement, after which the following occurred:[23]
[TRIBUNAL MEMBER]: . . . . But you don’t talk about electrocutions. So is there any reason for that?
THE INTERPRETER: They torture – because of the time limit, I could not elaborate all the tortures they did to me, because I could not write it one by one.
[TRIBUNAL MEMBER]: Well, I would have thought your agent would want to get as much detail as possible if it’s going to help your case.
THE INTERPRETER: The first agent was very irresponsible. He delay for a long time before lodging the application.
[23] T31.40-32.15
Towards the end of the hearing the Tribunal member asked the applicant whether he wanted to say anything further about why he did not include in his statement the claim that he was electrocuted. The following was said:[24]
THE INTERPRETER: Because I was beaten for five hours. I could not list one after another what those things happening to me.
[TRIBUNAL MEMBER]: Look, I understand that, but . . . as I said, your statement is detailed. Your statement does not say, “I can’t remember, because I was beaten.” Your statement says, “I was tied to the chair. I was beaten with a rubber thing. They poured water over me. They took my clothes off,” and so on and so forth. It’s a very detailed statement.
[24] T39.5
After the hearing the applicant provided a submission dated 10 August 2016 (post-hearing submission) in which he attempted to address the Tribunal’s concerns. The applicant said:[25]
When I wrote my personal statement in 2014, I just put down what came to my mind then. All these horrible things happened during my detention. Understandably it was just not realistic for me to be able to write each and every example and detail of how I got treated on a few pages of statement.
[25] CB213
It is apparent the Tribunal member accepted that an applicant who claims to have been tortured might not be able to give a detailed account of each torture the applicant claims he or she endured; and it is also apparent the Tribunal did not expect the applicant would be able to give such a detailed account. What impressed the Tribunal member, however, is that in his written statement the applicant had given a detailed account of the tortures he claimed to have suffered, without stating that he had any difficulty remembering what occurred to him, but he failed to include in the written statement what the Tribunal member considered to be a serious form of torture, namely, electrocution. That led the Tribunal to ask the applicant whether he could offer any explanation for this. And here the applicant gave two explanations. His initial explanation was not that he had forgotten, but that he had limited time to include that particular form of torture in his written statement, blaming his agent’s irresponsibility for the omission. The second explanation is that it was not realistic to write each and every example and detail of how he got treated on a few pages. This, however, was not responsive to the concerns the Tribunal member expressed to the applicant. The Tribunal member did not say to the applicant that it expected him to write down each and every detail of how he got treated; the Tribunal member asked the applicant why he did not include in his statement what the Tribunal indicated to the applicant it considered to be a significant matter, namely, torture by electrocution.
In my opinion, the Tribunal did not assess this part of the applicant’s claim on the assumption that the applicant was expected to disclose all details of the torture he claimed to have suffered. The Tribunal proceeded on the assumption that, in the absence of any reasonable explanation, the applicant was expected to give a substantially consistent account of the torture he claimed he suffered. In those circumstances:
a)it was reasonably open to the Tribunal to find that, by the applicant claiming before the Tribunal, but not in his written statement, that he had been electrocuted, the applicant had not given a substantially consistent account of the torture he claimed to have suffered;
b)in the absence of a reasonable explanation of the applicant’s failure to provide a substantially consistent account of the torture he claimed to have suffered, it was reasonably open to the Tribunal to rely on that matter as a ground for not giving credit to the applicant’s claims that he was tortured; and
c)it was reasonably open to the Tribunal to find that the explanations the applicant had given for not giving a substantially consistent account of the torture he said he suffered were inadequate.
The claim made in paragraph (a) of the particulars to ground 1, therefore, fails.
Particular (b)
The applicant submits the Tribunal mischaracterised the evidence the applicant gave at the hearing about what happened to the applicant’s father. In particular, the applicant submits it was not reasonably open to the Tribunal to have interpreted the applicant as having claimed before the Tribunal that the applicant’s father had been beaten during the police raid of 26 December 2012. The applicant further submits the Tribunal ought to have interpreted what the applicant said to the Tribunal as being an exaggeration and, for that reason, as being consistent with what the application in his written statement said occurred to his father during the 26 December 2012 raid.
The determination of this part of the applicant’s claims turns in large part on what the applicant said at the hearing. The starting point is the Tribunal’s asking the applicant whether the police had asked the applicant to confess anything. The applicant said they wanted him to confess interfering in the social order by making use of a radical religion, namely, Falun Gong; and although he was not involved in Falun Gong, his parents were Falun Gong practitioners. At that stage the applicant said his “father was beaten to death violently, without any reason”.[26] A little later the applicant was asked what occurred in the raid of 26 December 2012. After stating he was not present during the raid, the applicant said “[t]hey pushed my father and took away all the materials”, and when the applicant went home his father had fallen to the ground. The applicant rang the ambulance to take him to the hospital. The applicant’s father passed away on 17 January 2013. The applicant then gave the following evidence:[27]
[26] T19.5
[27] T22.20
[TRIBUNAL MEMBER]: Okay. So you got an ambulance and you got him taken to the hospital and that’s where he stayed.
THE INTERPRETER: Yes.
[TRIBUNAL MEMBER]: .Okay. And that’s why you said to me earlier you said your father was beaten to death; that’s what you’re referring to. He died as a result of the police attacking him on 26 December.
THE INTERPRETER: Yes. Because – yes, since he’s quite old and all the pushing or grabbing of the materials, I – yes. He couldn’t stand their pushing.
Later the Tribunal member put to the applicant that he did not in his written statement say that the applicant’s father was beaten badly. The Tribunal member read out that part of the statement which stated that the applicant’s father “was frightened and angry by their behaviour”, and that his “medical condition was aggravated by it, and he was totally confined to his bed”. The applicant said that it was his mother, not his father, that the applicant intended to say in his statement was confined to bed.[28] The Tribunal also put to the applicant that he did not say in his written statement that he had taken his father to the hospital.
[28] T32.45
Towards the end of the hearing, the following occurred:[29]
[29] T39.15
[TRIBUNAL MEMBER]: . . . . Another concern is, as I explained, was about your father. Your statement just simply does not say what you told me today and I don’t understand the explanation for that. It may simply be that you were exaggerating slightly. A lot of people do. That’s not necessarily, you know, the end of the application though.
THE INTERPRETER: No, I don’t – I’m not exaggerating.
[TRIBUNAL MEMBER]: Well, we allow people to exaggerate a little bit, but that’s okay.
The applicant addressed the Tribunal member’s concerns in the post-hearing submission. The applicant said:[30]
I guess whatever culture we are in if you put yourself in my shoes to think just for a few minutes: if somebody out of the blue, police suddenly came to your home brutally pushed, beaten and abused your aged parent, just imagine what kind of physical and mental harm and fear it would caused [sic] to them and what sort of feeling you would have!
[30] CB212
It was reasonably open to the Tribunal to find that the account the applicant gave at the hearing before the Tribunal about what occurred to his father during the raid of 26 December 2012 included claims the applicant did not make in his written statement. The first was that the applicant’s father had been beaten; and the second is that the applicant had taken his father to the hospital. Further, the applicant stated to the Tribunal that he did not exaggerate what had occurred to his father; and in the post-hearing submission the applicant aid his father was “brutally pushed, beaten and abused”. In those circumstances the Tribunal could not be said to have made any jurisdictional error by not considering whether, or not finding that, the evidence the applicant gave before the Tribunal about what occurred to his father during the 26 December 2012 raid was only an exaggeration of what the applicant said in his written statement.
The claim made in paragraph (b) of the particulars to ground 1, therefore, fails.
Particular (c)
This particular is directed to the Tribunal’s noting that there is an inconsistency between the word “bail” the applicant used in his written statement, and the applicant’s using the word “fine” when giving evidence before the Tribunal. It is said the Tribunal acted illogically because it accepted the applicant’s explanation that he used the two expressions interchangeably, yet the Tribunal relied on the applicant’s having used “bail” and “fine”.
There is no illogicality. The Tribunal expressed doubt that the applicant did in fact use the expressions interchangeably but, notwithstanding its doubts, it accepted the applicant’s evidence. Given the Tribunal decided to give the applicant the benefit of the doubt, the Tribunal did not rely on the applicant’s using “bail” in his written statement and “fine” in the evidence he gave to the Tribunal in finding the applicant was not a witness of credit.
The claim made in paragraph (c) of the particulars to ground 1, therefore, fails.
Paragraph (d) of the particulars
This paragraph is directed to paragraph 41 of the Tribunal’s reasons. Paragraph 41 contains the fourth matter on which the Tribunal relied for not finding the applicant to be a witness of credit. The applicant submits that although paragraph 41 is difficult to follow, it appears the Tribunal considered that the applicant’s failure to apply for an administrative reconsideration of his detention in 2014 impacted on his credibility. The applicant submits, however, there is no logical connection between a failure to pursue a right to seek administrative reconsideration of a detention order, “particularly in an authoritarian dictatorship such as China”, and the likelihood that such detention actually occurred.[31]
[31] Applicant’s Outline Submissions, [33]
The Minister, on the other hand, submits that the Tribunal “could be concerned as to why the Applicant did not exercise his right to an “administrative review” of his detention or to apply to the People’s Court (those rights being identified on a document provided to the Tribunal by the Applicant”.[32] The basis of this submission is that the applicant claimed that he was “illegally arrested and detained”, and that he was the subject of “unfounded charges” and detained “without legitimate ground”.[33] The Minister further submits that the applicant did not say he did not pursue the rights of review of the detention decision the document he provided to the Tribunal stated he had because China was an “authoritarian dictatorship”; the applicant said he did not read the document.
[32] First Respondent’s Outline of Submissions, [25] (Emphasis in original)
[33] First Respondent’s Outline of Submissions, [25]
The Minister appears to accept the applicant’s submission that the effect of what the Tribunal said in paragraph 41 is that the applicant’s not exercising rights of review was relevant to assessing the applicant’s claims that he had been arrested, tortured, and detained. Whether that is so, however, depends on the proper construction of the text of paragraph 41 of the Tribunal’s reasons read in the immediate context in which it appears.
I begin with the first word that appears in paragraph 41, “Fourth”. That indicates it is the fourth of a number of matters relating to a particular subject. The relevant subject is the Tribunal’s finding recorded in paragraph 35 of its reasons, where, in the first sentence, the Tribunal says: “However, for the following reasons, the tribunal does not find the first applicant to be a witness of credit”. Paragraph 41, therefore, is the fourth of the six reasons the Tribunal identifies for concluding the Tribunal did not find the applicant to be a witness of credit.
The next step is to identify what in paragraph 41 of its reasons the Tribunal considered was relevant to its not finding the applicant to be a witness of truth. Although the Tribunal refers to having asked the applicant whether he understood that he was entitled to apply for administrative reconsideration of the detention decision, and the applicant’s responses to that question, the Tribunal did not say or suggest that the applicant ought to have exercised such rights. Nor did the Tribunal say the applicant was not a witness of credit because he did not exercise his rights. Rather, paragraph 41 is directed to the credibility of the evidence the applicant gave in response to the Tribunal’s question about his understanding whether the applicant had review rights, and the Tribunal’s explaining to the applicant what those review rights were as described in the Decision Notification. The applicant’s evidence was to the effect that he did not read the Decision Notification, and, therefore, he did not know he could appeal, and that he was beaten severely, with his only thought being to escape. The Tribunal did not accept “any of these explanations as reasonable to believe as true”. Thus, the matter in paragraph 41 of its reasons on which the Tribunal relied in support of its not finding the applicant to be a witness of truth was not the fact the applicant did not avail himself of the review rights stated in the Decision Notification; the Tribunal relied on its not accepting as true the applicant’s evidence about whether he had read the Decision Notification, and the explanations he had given for not having read that document.
I do not accept, therefore, that the Tribunal relied on the applicant’s not exercising the rights of review stated in the Decision Notification as a reason for finding it did not accept the applicant to be a credible witness. In those circumstances, whether or not there is a logical connection between the credibility of the applicant’s account of his arrest, torture, and detention, and his not having exercised or attempted to exercise a review right is not a question that arises. The claim made in paragraph (d) of the particulars to ground 1, therefore, also fails.
Ground 2
Ground 2 of the amended application is as follows:
The second respondent failed to carry out its task of reviewing the decision of the first respondent, as required by s.414 of the Act.
Particulars
(a)The second respondent rejected the applicant’s explanations regarding concerns that it had with the applicant’s evidence without any proper consideration or reasoning: see decision at [39], [41], [42] and [43].
(b)The second respondent failed to make findings in relation to the corroborating documents provided by the applicant: see decision at [43].
It would be convenient to treat the claim made in paragraph (b) of the particulars with paragraph (a) to the extent paragraph (a) concerns paragraphs 41 and 43 of the Tribunal’s reasons.
Rejecting explanations recorded in paragraphs 39 and 42 without proper consideration
The explanation the Tribunal in paragraph 39 of its reasons did not accept related to the applicant’s not including in his written statement the claim he made at the hearing that he had had taken his father to the hospital after the 26 December 2012 raid. The applicant gave two explanations. One is the applicant did not wish to relive what happened, and the other is that his time for recording his claims was limited. The Tribunal did not accept these explanations because it found they were not persuasive. The applicant does not explain why this manifests a failure by the Tribunal to properly consider the applicant’s explanation. Presumably the applicant relies on the Tribunal not articulating any additional reasons. That the Tribunal did not articulate any additional reasons, however, does not indicate it did not properly consider the explanations by relying on reasons it did not articulate.
The explanations the applicant gave were not explanations that a reasonable person in the position of the Tribunal was bound to accept; and there are matters on the basis of which it would have been reasonably open to the Tribunal not to accept them. As to the explanation that he did not want to relive what occurred to his father, the applicant had already set out in his statement the circumstances surrounding the death of his father, and it was open to the Tribunal to find that unwillingness to relive those events was not a reason for the applicant’s not also having disclosed in his written statement the claim that he had taken his father to the hospital. As to the applicant’s explanation that he did not have time to include that claim, it was reasonably open to the Tribunal not to find that persuasive, given the detail the applicant included in his written statement, and given also there was no apparent reason why the applicant had completed his written statement in circumstances where he had limited time to include all the claims he wished to include in his application for protection.
The explanations the Tribunal in paragraph 42 of its reasons did not accept related to why the applicant had not been detained when he left China. The applicant’s explanations were that he was on bail; he was travelling on a valid passport; the applicant was “not on the system”, and the applicant escaped “while on probation”. The applicant submits the Tribunal “completely failed to engage with the applicant’s explanation”.[34] The applicant, however, does not say in what way the Tribunal failed to engage with these explanations. Presumably, the applicant relies on the Tribunal providing no reasons why it found the explanation unpersuasive. As I have already observed, however, the absence of reasons does not mean the Tribunal did not properly consider the explanations by relying on reasons it chose not to articulate. The explanations the applicant gave were not explanations that a reasonable person in the position of the Tribunal was bound to accept; and there are matters on the basis of which it was reasonably open to the Tribunal not to accept the applicant’s explanation. These include the lack of details concerning “the system” on which the applicant’s details were not recorded, the circumstances in which a person’s name comes to be recorded or removed from such system; and the inherent improbability of the applicant’s being on bail not being recorded on some system to minimise the risk of flight.
[34] Applicant’s Outline Submissions, [34]
Failure to make findings in relation to the documents
Paragraph (b) of the particulars to ground 2 claims the Tribunal made no findings in relation to the documents (being the “four Chinese language documents provided to it”) to which the Tribunal referred in paragraph 43 of its reasons. In his written submissions the applicant submits that “the four Chinese language documents provided to it” were “corroborative” of the applicant’s claims and, for that reason, the Tribunal was required “to consider and to make findings with regard to the corroborative documents”; but it failed to do so.[35] Counsel for the applicant particularly relied on the judgment of Markovic J in BHM15 v Minister for Immigration and Border Protection.[36] In that case the Tribunal gave no weight to documents that corroborated one of the appellant’s claims. Markovic J found that when deciding to give the documents no weight the Tribunal did not in truth consider them. Her Honour also found that the Tribunal did not make a comprehensive adverse credibility finding against the relevant appellant sufficient to relieve the Tribunal of the necessity of having to consider whether the documents could overcome such adverse credibility finding.
[35] Applicant’s Outline Submissions, [37]
[36] [2018] FCA 917
The Minister, on the other hand, submits the Tribunal in the case before me did consider “the four Chinese language documents provided to it”. The Minister submits the Tribunal identified the “the four Chinese language documents provided to it”, and discussed their contents in its reasons. The Minister also submits the Tribunal raised concerns about the applicant’s credibility based on one of the documents, and also raised the question of their authenticity. The Minister submits this is not a case where the Tribunal simply put “the four Chinese language documents provided to it” to one side or disregarded them when assessing the applicant’s credibility.[37] The Minister submits that the Tribunal, particularly at paragraph 43 of these reasons, considered the applicant’s documents when assessing the applicant’s credibility, but that did not lead it to take a different view about his credibility.[38]
[37] Cf. WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74, at [2i7]
[38] First Respondent’s Outline of Submissions, [28]
It will be seen that this part of the applicant’s claim assumes that the “the four Chinese language documents provided to it” were authentic and, for that reason, were capable of corroborating the applicant’s claims. More particularly, the applicant assumes that the Tribunal did not make any finding to the effect that the purported corroborating documents were not authentic or did not otherwise make “any finding on probative grounds that the” purported corroborating documents “were worthless so as to exclude them from consideration of the credibility of the” applicant’s claims.[39] Whether these assumptions are correct depends on the proper construction of paragraph 43 of the Tribunal’s reasons considered in the relevant context.
[39] The quoted words are taken from BHM15 v Minister for Immigration and Border Protection [2018] FCA 917, at [59]
Paragraph 43 of the Tribunal’s reasons largely consists of a summary of what was said at the hearing about the authenticity of “the four Chinese language documents provided to it”. The Tribunal noted it explained to the applicant “at the conclusion of the hearing” that “it had concerns about the authenticity of the four Chinese language documents provided to it”; it indicated to the applicant that he could address that issue in further submissions; the applicant chose to address the issue at the hearing; and the applicant did so by stating that, given his living standards, and his abundant income in China, with his high earning, he had no need to obtain false documents. This part of paragraph 43 of the Tribunal’s reasons is a summary the following part of the hearing:[40]
[40] T39.40
[TRIBUNAL MEMBER]: . . . . Now, the next thing is that if I don’t believe your story, that means that those four documents, three of which are not certified, may be fakes; and I’m concerned about that. Because unfortunately we get a lot of false documents from China. And I’m happy for you to address all these things – matters in some further submissions. And – sorry.
THE INTERPRETER: Can I explain it now?
[TRIBUNAL MEMBER]: Yes, if you want to ….
THE INTERPRETER: In a simple way?
[TRIBUNAL MEMBER]: Yes, sure.
THE INTERPRETER: With regard to the false document with my condition, with my living standard, I don’t need to come – provide you – to make false documents and provide you with that when I come to Australia.
[TRIBUNAL MEMBER]: All right.
THE INTERPRETER: Because my income in China was abundant. Really, I could earn one to two million yuan per year. Because, Member, as you are ….. and you – it’s easy for you to identify those that are false documents. So there’s no necessary [sic] for me to fabricate those documents.
[TRIBUNAL MEMBER]: All right.
The Tribunal concluded paragraph 43 of its reasons as follows:
The Tribunal finds this answer to be unresponsive to its concern [and] to be unpersuasive.
On a fair reading of paragraph 43 of its reasons, the Tribunal did not accept that “the four Chinese language documents provided to it” were authentic. The Tribunal recorded that it raised with the applicant the question whether those documents were authentic, it provided the applicant an opportunity to make submissions about that concern, and that the applicant made a submission the Tribunal found to be unresponsive and unpersuasive. The Tribunal did not reason in the manner the Tribunal in BHM15 reasoned. The Tribunal in the case before me did not purport to give the documents no weight because it had made a comprehensive credibility finding adverse to the applicant; nor, contrary to the Minister’s submission, did the Tribunal make an adverse credibility finding after weighing “the four Chinese language documents provided to it”. It made a comprehensive credibility finding adverse to the applicant on the basis that it did not accept the authenticity of “the four Chinese language documents provided to it”.
What I say in the preceding paragraph is supported by the structure of this part of the Tribunal’s reasons. The first word in paragraph 43 of the Tribunal’s reasons is “Sixthly”. That represents the last of the six matters on which the Tribunal relied for not finding the applicant to be a credible witness. The matter the Tribunal identifies in paragraph 43 of its reasons is its concerns about the authenticity of “the four Chinese language documents provided to it”. The authenticity or lack of authenticity of those documents was relevant to the Tribunal’s assessment of the credibility of the applicant’s claims. If the Tribunal were satisfied the documents were authentic, they would have been capable of corroborating the applicant’s claims, and the Tribunal would have had to weigh those documents with all other relevant evidence when assessing the credibility of the applicant’s claims. If, on the other hand, the Tribunal were not satisfied the documents were authentic, they would not be available as evidence to be weighed with all other evidence when assessing the credibility of the applicant’s claims. As I have found, the Tribunal was not satisfied “the four Chinese language documents provided to it” were authentic, and, for that reason, the Tribunal was not required to weigh those documents with other evidence when it assessed the credibility of the applicant’s claims.
In his written submissions the applicant submits the Tribunal made no finding that any of “the four Chinese language documents provided to it” were false.[41] That may be accepted. But that does not logically imply the Tribunal found the documents were authentic, or that it was bound to find they were authentic. It was open to the Tribunal not to be satisfied that “the four Chinese language documents provided to it” were authentic without being positively satisfied those documents were not authentic. That is a matter of common sense; but if any authority is required, it may be found in the analogous circumstances of a tribunal of fact not accepting a person’s evidence, where the following has been said:[42]
There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. . . . [A]s a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
[41] Applicant’s Outline Submissions, [36]
[42] Smith v New South Wales Bar Association (1992) 176 CLR 256, at page [37]
The logical corollary of what is said in this passage is that testimony may not be accepted for reasons that do not include a finding that it is the product of the lie. The same principle applies to documents whose authenticity is in question. A fact finder may not accept the authenticity of a document without making a finding that the document is fraudulent.
There is one final matter to consider. In paragraph 41 of its reasons the Tribunal did not accept the applicant’s evidence that he did not read the Decision Notification, and the explanations he gave for not having read that document. That might suggest the Tribunal considered the Decision Notification to be authentic. In my opinion that would not be a fair reading. The Tribunal’s not accepting the applicant’s evidence about not reading the Decision Notification does not logically imply that it considered the Decision Notification to be authentic. In any event, what the Tribunal said in this part of its reasons must be viewed in the context of its reasons as a whole and, in particular, what it said in paragraph 43 of its reasons.
The applicant’s claims fail to the extent he claims the Tribunal did not consider the documents it identified in paragraph 43 of its reasons, or that it made no finding that the documents were false.
Failure to properly consider explanations recorded in paragraph 43 of Tribunal’s reasons?
The applicant claims in paragraph (a) of the particulars to ground 2 that the Tribunal rejected the applicant’s explanation regarding the concerns the Tribunal had about the authenticity of “the four Chinese language documents provided to it” without any proper consideration or reasoning. I do not accept this claim. It was reasonably open to the Tribunal to find the applicant’s response to the Tribunal’s concerns about the authenticity the “the four Chinese language documents provided to it” to be unresponsive and unpersuasive. A responsive answer would have been directed to the provenance of the documents. The applicant, however, did not direct his answers to that subject. He did not, for example, state how and when he obtained the documents, or the circumstances in which he obtained them. Instead, the applicant made self-serving statements that, given his situation, he would have had no reason to obtain or rely on any fraudulent documents.
Failure to properly consider explanations recorded in paragraph 41 of Tribunal’s reasons?
The applicant claims in paragraph (a) of the particulars to ground 2 that the Tribunal rejected the explanations the Tribunal records in paragraph 41 of its reasons the applicant gave for not having read the Decision Notification. As I have already observed, the absence of reasons does not necessarily mean the Tribunal did not properly consider the applicant’s explanations by relying on reasons it chose not to articulate. The explanations the applicant gave were not explanations that a reasonable person in the position of the Tribunal was bound to accept; and it was reasonably open to the Tribunal not to accept the applicant’s explanations. It is inherently implausible that a person who has been given a document purporting to record a decision that the person be detained, which the person arranges to have translated for the purpose of submission to the Tribunal, and who submits the translated document to the Tribunal, would not have read it.
This part of ground 2, therefore, also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 6 August 2019
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