SBZC v Minister for Immigration - [2006] FMCA 474

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBZC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 474

MIGRATION – Refugee Review Tribunal determination – credibility findings – no jurisdictional error.

Migration Act 1958 (Cth), ss.483A, 424A, 91R, 91S, 36(2)
Judiciary Act 1903 (Cth)
Refugees Convention 1951
Refugees Protocol 1967

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Kamal v Minister for Immigration and Multicultural Affairs (2002) FCA 818
Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407
“W148/00A” v Minister for Immigration and Multicultural Affairs (2001) FCA 679
Devries v Australian National Railways Commission (1993) 177 CLR 472

Applicant:

SBZC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ANOTHER

File Number:

ADG 322 of 2005

Judgment of:

Lindsay FM

Hearing date:

10 March 2006

Date of Last Submission:

10 March 2006

Delivered at:

Adelaide

Delivered on:

10 March 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr M. Roder

Solicitors for the Respondent:

N/A

ORDERS

That the application filed on 1 November 2005 do stand dismissed.
That the applicant do pay the first respondent's costs of and incidental to these proceedings fixed in the sum of FIVE THOUSAND DOLLARS ($5,000).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 322 of 2005

SBZC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ANOTHER

Respondent

REASONS FOR JUDGMENT

Before me this afternoon is an application filed by the applicant on 1 November 2005. The application is one that was made under certain provisions of the Migration Act 1958 (Cth), ( hereinafter “the Act”) as they stood at that time. It is an application under s.483A of the Act.
Under s.483A this Court has the same jurisdiction as the Federal Court in relation to a matter arising under this Act. That jurisdiction in relation to matters such as the present is the jurisdiction under s.39B of the Judiciary Act 1903, subject to limitations under Pt 8 of the Act, as interpreted in Plaintiff S157/2002 v Commonwealth of Australia, reported at (2002) 211 CLR 476.
Those limitations require this Court to identify jurisdictional error in the proceedings or reasons of the Refugee Review Tribunal (“the Tribunal”) before the Court has power to set aside the Tribunal decision and to remit the matter for rehearing.
The applicant has sought a protection visa. Section 36(2) of the Migration Act provides that protection visas are available to persons to whom the Minister is satisfied that Australia has protection obligations arising under the status of Refugees Convention 1951 and status of Refugees Protocol 1967.
A refugee is defined by article 1A(2) of the Refugees Convention as:
Any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act qualify in some respects that definition.
The Tribunal’s determination is dated 29 June 2005 and in that determination the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant entered Australia on 12 April 2005. He entered on a passport of the People's Republic of China issued in the name in which these proceedings are conducted. There appears to have been some suggestion at an early stage of the process of the departments dealing with him that he had another identity, but that is a matter that does not appear to have formed any part of the determinations of the Tribunal or the conduct of the hearing by the Tribunal thereafter.
The applicant was interviewed by officers of the department upon his arrival in Australia. At that time he maintained that he was travelling in Australia on a tourist visa and gave no indication of his intention to claim refugee status.
He was transferred to immigration detention on 12 April 2005 and on 14 April 2005 he lodged his protection visa application.
The Tribunal sets out in some detail his claim to refugee status and it is apparent that it is based upon his contention that he fears persecution on account of political activity in which he was thought to have been involved whilst in the People's Republic of China.
He claimed in his protection application that in June of 2004 two of the regular customers of his hairdressing business, who were from Tibet, stayed back at his shop one evening. He claims that the police raided his shop. He was accused of having conducted or having been involved in a Tibetan secessionist meeting. He claims that he was arrested. He claims that whilst he was arrested he was beaten in a way that gave rise to a back ailment. He claims that he was in detention for a period of approximately six months.
When he was released he was asked to pay a fine. He could not afford the fine. He ran away to a relative's home and eventually left China on a passport that was issued in February of 2005.
In his claim for a protection visa and in his evidence before the Tribunal, there are said to be discrepancies as to the manner in which his passport was issued. He claims to have paid moneys to the travel agency and claimed initially that the moneys were used to pay for his ticket and visa, but then claimed in his evidence before the tribunal that the money was used to pay for his passport.
The applicant says that that apparent discrepancy in his account of events relating to the issue of his passport arose on account of difficulties in relation to his use of the language. Whilst it is a matter the Tribunal appears to have taken into account, it is not a matter that appears to have been given any considerable significance.
In his application for a protection visa he did not give any indication of having encountered any difficulties in leaving China under the passport that he had been able to procure in February 2005.
The Tribunal, during the course of the conduct of the hearing, read to the applicant the contents of a letter that was later issued to him, pursuant to the provisions of s.424A of the Act. The letter set forth, as it was obliged to do, the concerns the tribunal had as to the account he had given in relation to the matters that were said to ground his entitlement to refugee status.
There are a number of concerns that are raised as to the credibility of the applicant's account as to various matters. Some of the matters in respect of which that credibility comment is made are significant; some are less significant. For example, it is contended that he gave conflicting evidence to the officers of the department in relation to his profession, as to whether he was a hairdresser or a real estate agent. In particular, it is noted that he made some concessions, during the course of his interview by members of the department, as to his having given false facts in relation to those background matters.
Significantly, though, one of the matters that clearly, from a very early state in the hearing, was of significance to the Tribunal was the fact that having been advised at the airport, on 12 April, of the intention of the department to cancel his visa, he did not at that time raise any of the matters that were subsequently raised in support of his contention that he was entitled to refugee status.
The 424A letter also raises the alleged discrepancies in relation to the account as to whether the travel agent was given money that resulted in the issue of the passport. It raises the Tribunal's concerns in relation to his being able to obtain a passport against the background of the involvement or the breach of the criminal law of China, in which the applicant contends he had been involved.
The Tribunal also had concerns about what it said were the discrepancies in the applicant's account of whether he left the People's Republic of China secretly.
In any event, both before the Tribunal and in his documentation filed in support of the application, the applicant had contended that he was able to leave the country on his passport without any significant difficulties because the relevant authorities chose to take only what was described as some sort of unofficial interest in his activities. That ultimately was a matter of some significance to the tribunal. That is, the Tribunal drew to the applicant's attention that his account of the attitude of the Chinese authorities to his departure from the country, given the account he had given of his breach of the Chinese laws, was said to be inconsistent with the country information, which the Tribunal relied upon and details of which were provided to the applicant.
The Tribunal's decision - and I am looking now at pages 152 and 153 of the court book - sets out in some detail the country information which went to ground the proposition that there would have been significant difficulties associated with a person of the applicant's contended criminal antecedents in China leaving the country on a passport in the circumstances he contended he had.
All of these matters were matters that the applicant was given the opportunity to respond to during the course of the Tribunal hearing and indeed subsequently.
It is, I think, an accurate summary of the Tribunal's attitude to his responses that it found none of them to have addressed in any way the concerns the Tribunal had formed at that point as to the credibility of the applicant's account of his experiences in China and his account of the matters said to ground his entitlement to refugee status and his account of the circumstances in which he left the country.
It was on account of the aggregate of those concerns in relation to his credibility as to these matters that the Tribunal ultimately made its key finding: that it was not satisfied that the applicant faces a real chance of convention-related persecution in the People's Republic of China. It found that his claimed fear of such persecution was not well founded. It found that he was not a refugee, and the corollary of that was that the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the convention.
That being the case the tribunal found that he did not satisfy the criterion provided for in s.36(2) of the Act for the issue of a protection visa.
In his application filed on 1 November 2005 and in the written arguments he has relied upon today, which are the same written arguments submitted to the tribunal, and in the oral submissions he has made with the assistance of an interpreter today, the applicant disputes - and disputes strongly - most of the findings the tribunal made in relation to his credibility.
The nature of these proceeding, however - the proceedings before me - involving as they do the need to identify some error that goes as to jurisdiction, the way in which the tribunal dealt with his application, means that the circumstances in which a matter where credibility findings form such a critical part - and in this case the entirety, the Tribunal's reasons for rejecting the applicant's claim for refugee status will result in jurisdictional error, must be very rare.
It has been observed, in many decisions of the Federal Court and the High Court, that in order to identify jurisdictional error in proceedings of this nature much more needs to be done than to invite this court to take a different view as to those credibility findings than did the Tribunal.
Mansfield J in the case of Kamal v Minister for Immigration and Multicultural Affairs, reported at (2002) FCA 818 at 36, expressed it this way:
“It is not for the court, on reviewing a decision of the tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the tribunal, or, upon any such view, to conclude that the tribunal's assessment of the applicant's claim should not have been made. Those evaluative processes are for the tribunal.”
To the same effect are the observations of McHugh J in the case of Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407 at [67]:
“However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision‑maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.”
If further authority is needed for the proposition, that it is not the function of this Court in proceedings of this nature to substitute its own views as to credibility findings for those of the Tribunal, it is to be found in the decision of the Full Court of the Federal Court, “W148/00A” v Minister for Immigration and Multicultural Affairs (2001) FCA 679, firstly at [64]:
“A finding as to credibility is a finding of fact, and as the authorities indicate a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against or even strongly against the finding.”
Also at paragraph 67:

“Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be implausible or highly unusual does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.”

It is important to bear those strictures in mind when evaluating the way in which the Tribunal used its aggregated concerns in relation to the credibility of the applicant on a number of issues to refuse his application.
Quite apart from matters arising from the need to identify jurisdictional error, ordinary principles relating to the way in which appellate courts deal with matters relating to the credibility of witnesses must also be borne in mind.
In the case of Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, the majority of the High Court put it this way:
“A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against, even strongly against, that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.”
In this particular case the key credibility findings of the Tribunal are, firstly, those associated with what it considered to be the discrepancy between the applicant's account of his activities in China measured against the ease, or relative ease - depending on which account of the applicant we are to rely on - with which he left the country. In other words, the applicant's account of the way in which he obtained and then utilised his passport to leave the People's Republic of China was at odds, and significantly at odds, with the country information on which the Tribunal relied.
That was the first matter of significance. Also, though, plainly and perhaps of equal significance to the Tribunal, as I read their reasons, was the fact that the officers of the department, having put the applicant on notice, at the airport, of their intention to cancel his tourist visa, he did not at that stage raise or even allude to the matters which were said to ground his entitlement to refugee status.
True it is that the way in which the Tribunal expressed itself when raising concerns it had about the fact that the claim for refugee status was only made after the applicant had the opportunity to mix with other persons at the Villawood Detention Centre, who had or who may have been considering making protection visa applications themselves, might have been more felicitously expressed, but nevertheless the fundamental concern the Tribunal had in relation to this aspect of the matter - that is, that it was not raised when one would have expected it to have been raised, at the point of the applicant's difficulties at the airport - is a matter, it seems to me, the Tribunal was entitled to take into account as a significant matter which undercut the credibility of the applicant's contentions.
The third credibility matter the Tribunal seems to have given weight to is really an aggregate of miscellaneous credibility concerns; admitted lies about matters which of themselves may have not been of significance, but the cumulative effect of which was to put the Tribunal in a position where it was unwilling to accept the applicant's account of various matters which were critical to the acceptance of his application.
Bearing in mind all of the matters that arise in respect of the decisions from which I have cited passages this afternoon, there is nothing in the way in which the Tribunal dealt with those concerns as to credibility which is in any way, it seems to me, inappropriate or irrational or unfair, and certainly no matters which go any way towards advancing a contention that the Tribunal's findings were vitiated by a jurisdictional error.
That being the case, it seems to me inevitable that the application for review of the Tribunal's decision must fail.
The application for costs is made. There seems to me no reason why, in the circumstances of this case, the costs should not follow the event.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: K. Clarke

Date: