NAJF v Minister for Immigration - [2004] FMCA 47

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJF v MINISTER FOR IMMIGRATION

[2004] FMCA 47

MIGRATION – Review of RRT decision – where the inconsistencies between the applicant’s oral evidence and her application affected her credibility – whether the finding of credibility was reasonably open to the Tribunal on the evidence presented – where applicant essentially seeking merits review.

Re MIMA; Ex parte Durairajasingham (2000) (168) ALR 407
Kopalapillai v MIMA (1998) 86 FCR 547
SDDS v MIMIA [2002] FCAFC 361
MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant:

NAJF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 554 of 2003

Delivered on:

28 January 2004

Delivered at:

Sydney

Hearing date:

28 January 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 554 of 2003

NAJF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a national of the Republic of China whose home was in Taiwan. She arrived in Australia on 5 February 2001. She departed for Taiwan again on 10 February 2001 and returned to Australia on 15 June 2002. On 23 July 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.
On 9 August 2001 a delegate of the Minister refused to grant her a protection visa and on 5 September 2001 she sought review of that decision from the Refugee Review Tribunal. The Tribunal arranged a hearing into the claims made by the applicant, which took place on 15 January 2003. On that day the Tribunal came to its decision to affirm the original decision of the delegate.
The applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion. She told the delegate and the Tribunal that she was a member of the Communist Party, or if she was not a member of the Communist Party, she supported the Communist Party of China and regarded Taiwan as a province of the Peoples Republic of China.
The applicant informed the Tribunal that in or about March 2001 she was arrested in the village from which she came because she had been accused of putting up posters advocating reunification of Taiwan with the PRC. This information was noted by the Tribunal to be inconsistent with her original application in which she had not made any claims of putting up posters but alleged that she had made a speech.
The applicant told the Tribunal that after her arrest she was kept in custody for approximately three days. She told the Tribunal that no charges had been laid against her as a result of her activities and indeed because of her silence they were unable to prove that she had acted in the manner alleged.
The applicant claimed that she was placed under surveillance by the Taiwanese police and she decided to return to Australia because she was in fear of what might occur to her. The applicant informed the Tribunal that since her return to Australia she had not taken part in any political activity.
The Tribunal in a short decision noted the inconsistencies between the applicant's earlier evidence and what was said at the Tribunal hearing. The Tribunal made a number of comments about the applicant's testimony which it appears to have considered to be somewhat incredible.
In its findings and reasons the Tribunal stated:
“The Tribunal does not accept that the applicant is a credible witness in the present matter. The Tribunal does not accept on her inconsistent and poorly argued evidence that the applicant was ever arrested, let alone for either of the activities she claimed to have been arrested for, or that her description of events after her claimed arrest is in any credible or consistent.”
The Tribunal did not accept that the applicant was a known dissident who had been kept under surveillance. It was not satisfied that the applicant faced a real chance of Convention related persecution in Taiwan and therefore she did not come within the definition of a refugee.
In her original application filed in the Federal Court of Australia the applicant asked for her visa to be reassessed. She said that she worried about her safety on her return to Taiwan. She said she believed she met the criterion. She also said that the decision of the RRT was induced by actual bias of the officer and that there was no evidence or other material to justify the making of the decision. Although ordered by Branson J to provide particulars and an amended application, she did not do so.
When she came before me today the applicant told me that she had told the truth but the Tribunal thought that what she had said was incredible. She said that she wanted to know why it was that the Tribunal thought that what she said was incredible. She told me that she had told the truth and she had not come to Australia because she wanted to get a job in this country. She said that she went back to Taiwan and was arrested. She both put up the poster and made a public speech. She said that the Tribunal should not have doubted whatever she had said during the hearing.
As Mr Riley says in his helpful written submissions, it is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular, its strong findings that the applicant was not a credible witness.
It is well established that such findings are matters of fact for the Tribunal par excellence: re MIMA; Ex parte Durairajasingham (2000) (168) ALR 407 at [67] per McHugh J. So long as the Tribunal's credibility findings were open to it, no error is demonstrated in such conclusions; Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559.
I am satisfied that the Tribunal's views as to the applicant's credibility were reasonably open to it on the information that was before it, and that the reasons given by the Tribunal do not indicate any failure to provide her with procedural fairness nor do they exhibit any evidence of bias, which the Full Bench in SDDS v MIMIA [2002] FCAFC 361 made clear was a serious matter involving personal fault on the part of the decision maker.
It is clear that what the applicant sought before me today was a merits review. She wanted me to accept the credibility of her evidence which the Tribunal had declined to do. But the court cannot review the merits of the Tribunal's decision; MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law let alone a jurisdictional error in the Tribunal making a wrong finding of fact; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137].
In all the circumstances, I am unable to find any ground upon which review can be given of this Tribunal's decision. I must dismiss this application and order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: