SZDGC v Minister for Immigration
[2008] FMCA 553
•8 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDGC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 553 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZDGC”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A |
| Applicant A169/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 NAVZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 13 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 NZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 NZXFN v Minister for Immigration & Citizenship [2007] FCA 362 SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 962 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 SZALU v Minister for Immigration [2004] FMCA 264 SZGQZ v Minister for Immigration & Citizenship [2007] FCA 1091 SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 SZKHD v Minister for Immigration & Citizenship [2008] FCA 11 SZKSY & Anor v Minister for Immigration & Citizenship& Anor [2007] FMCA 150 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 |
| Applicant: | SZDGC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3550 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 11 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Archibald |
| Solicitors for the Applicant: | Michaela Byers Solicitor |
| Counsel for the Respondents: | Mr S Sivaloganathan |
| Solicitors for the Respondents: | Ms A Crittenden of Clayton Utz |
ORDERS
The application filed on 14 November 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3550 of 2007
| SZDGC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a married woman from the Shandong province, the People’s Republic of China. She states that she is of Han ethnicity and was born in 1960.
The applicant arrived in Australia on 6 January 2003 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 20 January 2003. The visa application was rejected by a delegate of the Minister on 14 May 2003 and the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision on 11 March 2004 and the applicant sought review of the Tribunal decision by the Federal Magistrates Court, which upheld the decision. An appeal to the Federal Court was subsequently determined by the Full Federal Court. On 26 February 2007, the Full Federal Court set aside the Tribunal decision and remitted the matter to the Tribunal to be determined according to law. The second Tribunal constituted by M Cooke (reference 071219259) affirmed the delegate’s decision and it is that Tribunal decision which is the subject of review in these proceedings.
The applicant’s original claim set out in a statutory declaration attached to her protection visa application states that in January 2000, she was elected the Standing Member of Women at the Worker’s Union of Qingdao Elevator Factory, one of the largest State-owned enterprises in Qingdao city, Shandong Province. She was not the candidate initially selected by the authorities, but she was widely supported by ordinary workers in particular the female staff. Although it was difficult to change government policy, she stood for fundamental human rights for the ordinary worker and in particular women.
The applicant claims that in March 2000 an experienced and hardworking technician at the factory was involved in a serious accident requiring one month in hospital. The factory paid her RMB5,000 as compensation and then dismissed her. The applicant sought more compensation on her behalf, including medical expenses and a family allowance for the future. This was rejected by the factory and the applicant was advised not to get involved in the matter. The applicant persisted by again writing to the factory and higher authorities. Eventually, she was granted a meeting with the factory’s president but he warned the applicant not to go further or she would find herself in trouble.
The applicant also became involved in birth control issues on behalf of the female employees. This again involved unsuccessful appeals to senior management and representatives of the Qingdao government. This action brought her to the attention of the Public Security Bureau (PSB) and she was interrogated at least five times, detained and required to sign a statement that she would persuade the workers not to protest.
On 11 July 2001, the applicant and other staff members were dismissed by the factory. After her dismissal, she became involved in a group for the establishment of an independent union. This organisation was formed in January 2002 and secretly developed in Qingdao city. One of its main activities was distributing leaflets calling for the establishment of an independent worker’s union in Qingdao city. The distribution of this material extended to other cities. In early December 2002 the PSB arrested a number of its members in order to destroy the organisation. The applicant claims that with the assistance of members of the Qingdao Tourist Bureau, she was able to arrange her exit from China. The applicant claims that the PSB were aware of his involvement because of confessions made by the arrested members.
The applicant became involved in Falun Gong and wider Falun Gong protests in Australia against the Chinese government. The Tribunal noted that her account of how she became involved in Falun Gong is typical of accounts given by Falun Gong practitioners. The applicant did demonstrate a commitment to Falun Gong’s history and philosophy, being knowledge she had obtained through practice and study over a period of time.
A Court Book (“CB”) prepared and filed by the first respondent is marked Exhibit “A”. An affidavit of Michaela Byers affirmed on 19 December 2007 attaches a copy of the transcript of the Tribunal hearing held on 16 August 2007 is marked Exhibit “B”. Both documents were read into evidence.
Counsel for the applicant, Mr Archibald, sought leave to file an amended application at the commencement of the hearing. As the first respondent did not object, leave was granted.
Consideration
Ground one
The Tribunal fell into jurisdictional error by reason of a constructive failure to exercise jurisdiction.
Particulars
(a) misunderstanding the applicant’s case
(b) failing to address the applicant’s case
(c) identify wrong issues
(d) asking itself wrong questions
(e) make erroneous findings
(f) At all material times the material features of the case of the applicant for the purposes of this ground of review were that:
(i) the nature of the applicant’s detention in April – May 2001 following the applicant’s industrial activities as a worker’s representative was administrative detention arising from industrial rather than criminal.
(ii) when the applicant was released from detention on 10 May 2001 she had signed an Undertaking to the PSB that she would persuade the unemployed workers with whom she was concerned not to protest in the future
(iii) accordingly the PSB did not then have cause to consider that the applicant was continuing with her industrial activities
(iv) from July to December 2001 the applicant secretly worked with three other persons to form a small group to establish an independent trade union or similar organisation
(v) on 8 January 2002 together with her associates the applicant formed a Preparation Committee for Independent Union in Qingdao City.
(vi) the group had 38 formal members and over 100 informal members
(viii) the leader of another sub-group was arrested on 12 December 2002
(ix) the applicant was warned by a friend of hers who worked at the Police Station that the leader of the sub-group who had been arrested might “confess her” and went into hiding and thereafter fearing her own arrest made arrangements to leave the PRC.
(g) The Tribunal however determined the applicant’s claim on the basis that:
(i) the applicant would have had national significance in the Peoples Republic of China sufficient to invoke the operation of the Exit and Entry Law of that country under which persons who have been involved in activities that are endangering the safety, the honour and the interest of the Country might have their passports cancelled or refused and be prohibited from leaving.
(h) The Tribunal’s misunderstanding of the applicant’s claim was the critical basis for its Decision. The misunderstanding permitted the Tribunal to rely on the alleged impossibility of the applicant being permitted to depart the country to make an adverse credibility finding against the applicant and to find that the applicant’s claims were fabricated and/or concocted.
In support of ground one, Mr Archibald relied on Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [95] per Hayne J:
I agree that, for the reasons given by Gummow and Callinan JJ, the Refugee Review Tribunal failed to exercise each jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection.
Further, in Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802, Allsop J (with whom Spender J agreed) said at [42]:
The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claim of the applicant. To make a decision without considering all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatory relevant by the Act for consideration in a sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1.
Mr Archibald submits that this requirement was not followed by the Tribunal in the matter before this Court.
Mr Archibald also referred to SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 where Madgwick and Conti JJ (with Gyles J dissenting), allowed the appeal from SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 962 on the ground of jurisdictional error. Justices Madgwick and Conti stated at [21], [23] and [24]:
21. Further, and despite the unfeigned respect for his Honour’s views that we have indicated is appropriate in relation to this matter, the appellant was entitled to have certain inferences drawn in his favour, as to the implications of what he and his wife were saying.
23. In our view the matter was clearly and sufficiently raised.
24. In our opinion the material was, as the RACS submission adumbrated, vital to the appellant’s case as ultimately presented to the Tribunal. The Tribunal’s summation of Father Monaghan’s letter was plainly inadequate. The omission by the Tribunal of any reference to Mr Wilkin’s and Sister Higgin’s letter is striking, as is the failure to consider the potential effects on children of being treated in effect as untouchables. While these instances are not legally significant in themselves, in the circumstances they are pointers to the conclusion, which we feel obliged to draw, that the Tribunal Member must have simply overlooked this aspect of the claim.
Mr Archibald submits that the applicant was entitled to have the inference drawn that her passport application had been substantially processed by the time she was detained for her industrial activities. Also that after she was released from detention, she did not publicly participate in an activist activities which would have drawn attention to her. Her activities after her release were not “endangering the safety, the honour and the interests of the country”. It was submitted that the Tribunal’s summation of her claim was plainly inadequate.
In support of this contention, Mr Archibald relies on the following material and information:
a)The applicant obtained an earlier Chinese passport in 1996 (CB 88). In March 2001, she discovered her first passport had expired and applied for a new one (CB 147.7). It was while this passport application was being processed, that she was detained pursuant to an “Order of Public Security Administrative Penalty” issued by the local police station (CB 68). Her husband paid the first detention centre RMB 800 in relation to this detention.
b)The second passport issued on 14 May 2001 (CB 12).
c)The applicant helped organise an illegal public demonstration in July 2001 but did not attend (CB 145.4).
d)After the arrrest of the leading member of the committee, Mr Xu, the applicant was told by a friend who worked at the police station that Mr Xu “might confess her” (CB 90).
e)On 5 January 2003 the applicant used her passport to leave China.
f)On 6 January 2003 the local police visited the applicant’s home and issued a summons to her husband to “accept interrogation” on 7 January 2003 (CB 62). The summons was issued again on 9 January 2003 (CB 64) and 13 January 2003 (CB 66).
g)On 20 January 2003, the applicant, arrived in Australia and filed her protection visa application.
Mr Archibald also relied on NAVZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 13 at [45] per Madgwick J:
[45] Since these matters were not dealt with, then it is to be inferred that the Tribunal Member did not consider them to be material. But, as I have endeavoured to explain, they were. Thus, there has been ‘a failure to have regard to relevant material which is so fundamental that it goes to jurisdiction’, a phrase used by the Full Court in WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21]. See also Yusuf, per McHugh, Gummow and Hayne JJ at [82].
Mr Sivaloganathan, for the first respondent, submits in response to ground one that a critical aspect of the applicant’s submissions was that her activist activities were not public and would not have attracted the attention of the authorities. He submits that inconsistencies in the applicant’s own case contradict this argument and identified four examples in support.
First, the applicant’s assertion that the Chinese authorities went to her house three times shortly after her departure is not consistent with her assertion that she did not engage in any activities after her release from detention which brought public attention to her:
The Tribunal does not accept as convincing that she was able to leave China (PRC) unhindered with a valid passport when two days after she left she claims the PSB came around to her house looking for her and harassed her spouse. The Tribunal finds unpersuasive her claim that the reason the PSB has shown adverse interests in her (after departure) was the possibility of her union activist friend having divulged her activities to the PSB but that she later claimed she was (actually) able to leave unhindered because her friend did not divulge her name to the PSB (“they had no interest in her”). The Tribunal regards her comment as indicative that she is an unreliable witness and her claims are a fabrication. (CB 159.4)
Secondly, the applicant’s assertion that a member of her underground “anti-government” group (Mr Xu) was arrested in December 2002, is not consistent with the same assertion that she had did not engage in activities after release which brought her to public attention.
Thirdly, Mr Sivaloganathan submits that the applicant had in fact already come to public notice because of her claimed original detention.
Fourthly, he submits that the applicant provided an inconsistent explanation for her ability to leave China on a valid passport without attracting the attention of the authorities. The Tribunal made the following finding with respect to the applicant’s credibility:
The Tribunal finds a discrepancy in her explanation describing why she was not subject to surveillance prior to her departure. She initially claims that her husband had informed her that her union friend had implicated to her to the PSB. She later suggested in oral evidence that a friend told her (the applicant). The Tribunal finds unpersuasive her later suggestion in oral evidence that maybe the accomplice had not implicated her but that mysteriously the PSB could not find her because she was in hiding. This is despite the fact that she was not the subject of monitoring and left the country unhindered shortly thereafter. (CB 158)
Mr Sivaloganathan submits that the Tribunal was perfectly entitled to conclude as it did:
The more likely explanation for the inconsistencies is that the applicant’s explanations have been made “on the run”. (CB 158)
Mr Sivaloganathan further submits that the applicant described her activities after being released from detention as: “anti-government activities” involving an “underground political organisation” whose activities included “distributing propaganda material” (CB 90 at [11]) and whose political position included ending “the single party dictatorship, to establish multi party systems, and especially allow the establishment of independent union” (CB 28 at [15]). It is submitted that it was entirely open to the Tribunal to infer that the nature of the applicant’s activities after her release would have been construed by the authorities as “endangering the safety, the honour and the interest of the country”.
Mr Sivaloganathan submits that there is no evidentiary basis for the applicant’s assertion she was “entitled to have an inference drawn that her passport application had been substantially processed by the time she was detained for her industrial activities”: see [13] above. Other inconsistencies in her evidence, together with the unsatisfactory answers she gave to the first Tribunal, raised questions about the plausibility of her entire account.
I note the detailed submissions and authorities referred to by both counsel on the range of issues raised in ground one. I am satisfied on a fair reading of the Tribunal decision that reference was made to each of these. However the Tribunal ultimately regarded the applicant as an unreliable witness who fabricated her claims. The Tribunal clearly stated that it took issue with her credibility on a number of points. In Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67], McHugh J states:
…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 is 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.
In this matter the Tribunal set out in detail the relevant law in China at the relevant time. It also identified the problem it saw with the applicant’s claimed position and activities and the circumstances under which the authorities exercised the regulations. A number of these claims are encapsulated in the “Findings and Reasons”:
The independent country information indicates that the exit control system at Beijing Airport is computerised and all names are checked through the computer system. Exiting China lawfully indicates that the applicant was not of adverse interest to the authority. This is especially so, when information regarding being issued a passport is also taken into account. In view of the above independent country information, it is difficult to accept that the applicant would not be considered harmful to the State security or of adverse interest to the authorities. Her claim that she signed off her unsigned passport (that had been organised by her travel friend) in front of a border guard is simply untenable in face of the exit and entry law prohibitions and reinforces the Tribunal’s finding that she is not a witness of truth. (CB 161.3)
Although the above passage does not identify each issue listed in ground one of the applicant’s claim, the ultimate conclusion is clear. The Tribunal did not accept the claim in respect of obtaining the passport and leaving China. I am satisfied that all of the issues raised in ground one were dealt with by the Tribunal which found that the applicant was not a witness of truth. This ground cannot be sustained.
Ground two
2. The Tribunal fell into jurisdictional error by reason of it reaching a factual conclusion unsupported by any evidence, failing to consider other relevant evidence that was before it and / or its conclusion on the evidence was ‘Wednesbury unreasonable’.
Particulars
(a) The Tribunal made findings on jurisdictional facts that:
(i) the operation of the Exit and Entry Law of the Peoples Republic of Chian would have prevented her departure from that country.
(ii) the Tribunal did not accept that the applicant’s original refugee claims are truthful in the light of this law, and
(iii) on this basis the Tribunal rejected the applicant’s sur place claim.
(“the Findings”)
(b) The Findings were unsupported by any evidence,
(c) The Findings involved a failure to consider other relevant evidence,
(d) The Findings on the evidence was ‘Wednesbury unreasonable’.
(e) Any information and facts upon which the Tribunal made the Findings were not provided to the applicant pursuant to s 424A of the Act or at all.
Mr Archibald submits that the Tribunal’s position can fairly be summarised by the following question which it asked at the hearing:
TM: What I’m saying to you is you could not be issued a passport under clause 3 of Article 22 of the law on entry and exit of the PRC because you would be a person “involved in activities that are endangering the safety, the honour and the interest of the country because you have spent the three previous weeks before the issue of your passport in detention you claimed. How is this possible? (Transcript, p.13)
Mr Archibald relied on SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [18]-[30] per Mansfield, Selway and Bennett JJ:
The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonable’. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
[19] This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–357
[20] On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
[22] In this case the Tribunal member identified the information upon which she relied. Insofar as the issues arising in this appeal are concerned, the member did not purport to rely upon any information that is not specifically referred to in the Tribunal’s reasons.
[23] The general conclusions reached by the Tribunal relating to the position of the Taliban generally in Afghanistan were supported by the material to which the Tribunal referred. It is clear enough that the Taliban have been removed from government in Afghanistan. An interim government was established. But the appellant’s case did not depend upon the general situation in Afghanistan.
[24] As to that claim as put before the Tribunal, the Tribunal found:
(a) as a general statement the Taliban had been defeated in Afghanistan. An interim government had been established. Previous circumstances of religious and political persecution were being addressed;
(b) the area where the appellant lived was under the de facto or de jure control of Karim Khalili, a Hazari leader from the adjoining province of Bamian;
(c) although there were reports of Taliban / al Qaeda in Oruzgan, those reports refer to areas that are not close to or accessible to the part of the province where the appellant lives;
(d) in any event in recent reports the US Defence Secretary has reiterated a commitment to ‘go after’ the elements of the Taliban that remain.
[25] The difficulty with all this is that there is no material that either party could point to that would support the factual conclusions (b) and (c). On the other hand, there is information that is clearly to the contrary.
[27] Given that the Tribunal had already accepted that the appellant had a well founded fear of persecution for a Convention reason from the Taliban at the time that he left Afghanistan and given that all of the evidence before the Tribunal seemed to point to at least a possibility that ‘pockets’ of the Taliban remained effective in the area from which he had come the Tribunal should have considered the question of whether the government or governments in Afghanistan were capable of and willing to protect the appellant: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 and see Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 678 , 681. Alternatively, the question whether the appellant could safely return to some other area in Afghanistan could have been considered. The Tribunal did not address those issues. It did not do so because it had reached a critical factual conclusion:
‘I accept the independent information set out above that the Taliban is no longer a force in Afghanistan… There is no evidence before me to support the applicant’s claim that elements of the Taliban remain viable in Afghanistan, and especially not that any such elements are in positions of power or influence, or that they still function but in other forms.’
Mr Archibald submits that the principles outlined in SFGB apply in this case. He submits that the Tribunal’s finding in relation to the applicant being caught by Chinese Exit and Entry Law was a general conclusion which did not actually address the claim. It was unsupported by the evidence in case and failed to consider the other relevant evidence put forward by the applicant. In relation to the Tribunal’s failure to disclose facts supporting the adverse conclusion, Mr Archibald relied on SZALU v Minister for Immigration [2004] FMCA 264 per Driver FM. While it is not clear whether the Tribunal had other information which enabled it to find that the applicant would have been prevented from leaving because of Chinese Exit and Entry Law, that information would come within the exception in s.424A(3)(a) which relies on s.424A and the Tribunal’s failure to comply with its terms.
Mr Sivaloganathan argues that SFGB is distinguishable from the circumstances of this matter. He submits that SFGB was in relation to a region after military invasion and civil war. Mr Sivaloganathan contends that contrary to Mr Archibald’s submissions, the Tribunal in this matter relied on different sources for Entry and Exit Laws in China which included:
a)Article 13 of the Law of the People’s Republic of China on the Control of Exit and Entry of Citizens (CB 159)
b)Department of Foreign Affairs & Trade “Country Information Report” CX27863 (CB 160)
c)The Canadian Immigration & Refugee Board (CHN 36091.E) (CB 161)
The Tribunal also relied on other sources with respect to procedures for obtaining a passport in China which were:
a)CIS document CX 19980 (CB 160)
b)CIS document CX 72393 (CB 160)
c)US Immigration Service 19 August 2002 (CB 161)
d)DIMIA CIS filed at CX 86204 (CB 161)
Mr Sivaloganathan submits that the applicant was confronted by the Tribunal with facts it had about Entry and Exit Laws and procedures pertaining to the acquisition of a Chinese passport (Transcript, pp.7-9, 11, 13.4, 20.10). Similar matters were put at the first Tribunal hearing (CB 146). It is submitted that there is no basis for the applicant’s assertion that the Tribunal’s finding about the operation of Exit and Entry Laws was a “general conclusion…unsupported by evidence in the case”. Nor that there was a failure to comply with s.424A of the Act.
I accept the submissions by Mr Sivaloganathan set out above which lists the Tribunal’s sources of Entry and Exit laws in China together with the references setting out the procedure for obtaining a passport in China. These circumstances are substantially different from those described in SFGB, which addresses the administration in Afghanistan immediately after a civil and the intervention by foreign powers. I am satisfied that the claim that the Tribunal decision was made in the absence of evidence, or that other relevant evidence was not considered, cannot be sustained. The claim that this material should have been provided to the applicant in compliance with s.424A is not sustainable because the material is not specifically about the applicant but applies to all Chinese citizens who seek passports. There are a large number of authorities which support this approach to the operation of the section. Consequently, ground two should be dismissed.
Ground three
The Tribunal fell into jurisdictional error by failing to consider the corroborative evidence provided by the applicant before making the adverse credibility finding in relation to her claim as to a well founded fear of persecution based on her past activites and experiences in the country of origina.
Particulars of the corroborative evidence
(a) Summons No. 0015 issued to Wei Ren LIU by Public Security Bureau of Pingan Road, Sifang, Qingdao City, China, on 6 January 2003 (CB 61-62);
(b) Summons No. 0027 issued to Wei Ren LIU by Public Security Bureau of Pingan Road, Sifang, Qingdao City, China, on 9 January 2003 (CB 63-64);
(c) Summons No. 0036 issued to Wei Ren LIU by Public Security Bureau of Pingan Road, Sifang, Qingdao City, China on 13 January 2003 (CB 65-66);
(d) Order of Administrative Penalty No. 001397 issued to Qing Xin WANG for 20-day detention by Public Security Bureau of Pingan road, Sifang, Qingdao City, China, dated 19 April 2001; and
(e) Receipt No. 003336 issued by Wei ren LIU for 800.00 yuan to Qingxin WANG by the First Detention Centre of Qingdao City on 19 April 2001.
Mr Archibald relies on WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 per Lee and Moore JJ (RD Nicholson J dissenting), which found that that Tribunal discarded documents which it was otherwise bound to consider because it surmised that the documents could have been fabricated. Their Honours held that this was not a course open to a Tribunal. The majority of the Court held that there was a denial of fair process in disregarding documents from consideration without grounds, when that material supported the applicant’s substantive case. It was held that the Tribunal in WAIJ did not accord the applicant practical fairness and justice in the way it conducted its review. Mr Archibald submits that similar principles apply to the matter before this Court.
Mr Sivaloganathan submits that WAIJ can be distinguished from this case on the basis that the documents in WAIJ were never discussed at that Tribunal hearing or referred to in that decision. Furthermore, this was not “a case in which the credibility of the applicant had been destroyed by stark findings of untruthfulness”: WAIJ at [28]. It is submitted that in this matter the Tribunal gave the applicant an opportunity to address its concerns about the documents at the hearing:
TM: Okay. You don’t think it might be that those documents that you presented which you hadn’t presented at the time of application were fabricated to give the impression that the PSB was interested in you?
Applicant: No, all the evidence provided is true (Transcript, p.14)
The Tribunal records in its decision that at the previous Tribunal hearing held in 2004 the following evidence was given:
The Tribunal turned to the documents that the applicant had submitted earlier in the day to the RRT hearing. The Tribunal drew the applicant’s attention to the fact that the PSB evidently took no action against her between 12 December 2002 and 5 January 2003 after which time she was in Australia. According to the documents submitted, the PSB summoned her husband to the police station on numerous occasions. The first of these was 7 January 2003 – 2 days after she left the PRC. The second was 10 January 2003 and the third was 14 January 2003. (CB 148)
The Tribunal then referred to the documents under “Findings and Reasons”:
The applicant has claimed in her most recent submissions that:
The documentary evidence that I have previously submitted is true and important evidence in support of my claims.
The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic. (CB 164.5)
In the matter before this Court, the Tribunal did make an adverse credibility finding based on stark findings of untruthfulness.
Mr Sivaloganathan relies on Minister for Immigration & Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 where it was held that the Tribunal was entitled to place no weight on evidence which purported to corroborate an applicant’s case. Chief Justice Gleeson CJ said at [12]:
It is not necessarily irrational, or illogical, for a finder of facts, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from reasons for disbelieving the witness.
This view was also expressed by McHugh and Gummow JJ at [49]:
[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
Mr Sivaloganathan submits that the fact that the Tribunal did not give weight to the five documents because of the applicant’s lack of credibility does not constitute jurisdictional error: SZGQZ v Minister for Immigration & Citizenship [2007] FCA 1091 at [26]; NZXFN v Minister for Immigration & Citizenship [2007] FCA 362.
The claim that the Tribunal failed to consider the corroborative evidence, being the three summons issued to the applicant’s husband, the administrative penalty notice and the receipt issued by the detention centre, cannot be sustained. Mr Sivaloganathan identifies the relevant passages in the Tribunal’s “Findings and Reasons” where these documents were discussed with the applicant and the reason why they were given no weight. I acknowledge that the individual documents are not set out in the Tribunal decision. However, they can be easily traced from the previous Tribunal’s decision and the circumstances under which they were identified and discussed with the applicant in the Tribunal’s decision. The fact that the Tribunal did not give any weight to the five documents because their authenticity was in question does not give rise to jurisdictional error. I am satisfied that this ground should be dismissed.
Ground four
The Tribunal fell into jurisdictional error in relation to the claim based on the applicant’s practice of Falun Gong and associated political activity in Australia.
Particulars
(a) The Tribunal rejected the claim on the basis of:
(i) that the applicant was not a witness of truth in relation to her past activities and experiences in China.
(ii) a finding that the applicant’s attachment to Falun Gong is not sincere or genuine, and,
(iii) a finding that in relation to the witnesses who gave evidence as to the applicant’s genuine practice of Falun Gong that whilst the Tribunal found that it accepted the honesty of the witnesses the applicant has falsely persuaded them of her belief in Falun Gong.
(b) If the finding that the applicant was not a witness of truth in relation to her past activities and experiences in China was subject to jurisdictional error than the first basis for the rejection of the sur place claim falls way,
(c) the facts upon which the Tribunal relied to find that the applicant has falsely persuaded her supporting witnesses of her beliefs in Falun Gong were not given to the applicant and she was denied a hearing in relation to these facts.
(d) there was no probative evidence before the Tribunal upon which it based its findings that the applicant’s attachment to Falun Gong is not sincere or genuine and that she had falsely persuaded the witnesses who gave evidence in her favour as her belief in Falun Gong.
(e) The Tribunal did not give reasons for its finding that the applicant has falsely persuaded her supporting witnesses of her belief in Falun Gong.
Mr Archibald asserts that the Tribunal failed to recognise the applicant’s claim based on her practice of Falun Gong and associated political activities in Australia. He asserts that the Tribunal found that the applicant had falsely persuaded her witnesses of her belief in Falun Gong but she was not given the opportunity to deny this at the hearing. The applicant brought three witnesses to the Tribunal hearing on 16 August 2007. Mr Shao Chen Zheng, Mr Zhang Tao and Ms Fan Li Juan gave oral evidence with the assistance of an Mandarin interpreter. Mr Shao indicated that he was a Falun Gong practitioner and friend of the applicant and that they sang in the Falun Gong choir. He gave the following evidence:
TM: So as far as you’re concerned she is a genuine practitioner, she is a genuine person who practices your belief, is that right?
Mr Shao: Yes although she didn’t practice it she hasn’t practiced it for a long time. She is making great progress.
TM: Maybe I’ve lost you in the translation, you mean she was a practitioner and stopped being a practitioner, or she never was a practitioner so it’s taken some time to learn how to be a practitioner?
Mr Shao: She never practiced it before.
TM: But now she is a strong practitioner. Is that right?
Mr Shao: Yes she is an active practitioner now and also Falun Gong is different from other regimes, it needs a long time to get high degree and it is very profound and it can go to very high degrees.
TM: So how long have you known her practicing this?
Mr Shao: Since last year. In the beginning she just supported Falun Gong and agreed with Falun Gong and gradually in the interest, by the inference of Fan, Ms Fan, she started to practice it. (Transcript, p.17)
Mr Zhang gave evidence about the applicant’s personality and devotion to Falun Gong. The Tribunal member asked him:
TM: I just want to ask you another question please. Do you, were you aware of [SZDGC’s] other political activities in China, distant activities?
Mr Zhang: Yes I know something about that. I’ve heard from her.
TM: What was that?
Mr Zhang: Her questions about the Chinese government and also her opinion about what the Chinese government did to the Union because she is of the Union but in China the Union has no power at all. And the name sounds very good, union, it is an organisation that should find for the interests of the workers. In China the name are always sound very good and justice –
TM: And just?
Mr Zhang: And just, and as a matter of fact a lot of working class they can’t even have enough food. For example, her worker was redundant just he was only given 100 Yuen per month but he needs to support the whole family which contains a few people you know and how can they survive, but the government just ignored this. (Transcript, pp.18-19)
Ms Fan confirmed that she was a Falun Gong practitioner and friend of the applicant’s who introduced her to Falun Gong. She indicated that she had no official role in the Falun Gong organisation but she did assist with her district group and was one of the principle organisers of demonstrations and pamphlet distribution in Chinatown:
TM: So what would you like to say as a personal testimonial about your friend?
Ms Fan: I hope your member could allow her to stay in Australia and as a matter of fact the Chinese government really persecutes Falun Gong practitioners badly and when I distribute the pamphlets in China Town there will be more people supporting us and you know what happens in our families and what happens on our families and on the practitioners friends are really tragedies, tragic. (Transcript, p.19)
After the witnesses had left the hearing room, the member discussed the following with the applicant:
TM: …Since the first decision was made you’ve become a Falun Gong practitioner. OK? Now, I’ve heard what your friends have said about you and they have insisted that you are a true Falun Gong practitioner, but it is not unknown for applicants for protection visas who have been refused to adopt beliefs such as Falun Gong as a way of improving their chances of claiming that they are refugees, and I think I should warn you that the courts have said that adopting, after the event adopting belief for the purposes of improving the case may mean that those claims are not towards improving that you are in fact a refugee and meet the definition.
Applicant: Can I say something?
TM: Yes
Applicant: Actually I practice Falun Gong. I have no intention to get refugee status from that. I just found that I had no hope anymore, I had nowhere to go. Actually at that time even the Federal Court refused my application, refused my appeal so I found maybe only Falun Gong would save me. (Transcript, p. 20, emphasis added)
Mr Sivaloganathan submits that s.91R(3) of the Act places an onus on the applicant to establish that her activities in Australia were engaged in for reasons other than strengthening her refugee claims: NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [89]; SZKHD v Minister for Immigration & Citizenship [2008] FCA 11 at [31]. Findings by the Tribunal as to whether the applicant had engaged in activities for the purpose contemplated by s.91R are findings of fact: SZKHD at [31].
Mr Sivaloganathan submits that the Tribunal enquired into the applicant’s knowledge of Falun Gong (Transcript, pp.14-16, 20) and outlined its concerns to her. He submits that it is clear from the answer that she understood the implications of the question. The Tribunal then reiterated its concern about her overall credibility before giving her a final chance to comment (Transcript, pp.20-22). There were two issues explicitly and implicitly raised by the Tribunal in the context of assessing the genuineness of her Falun Gong belief:
a)The timing of her association with Falun Gong being shortly after her visa application was first refused
b)That there were many aspects of her evidence which were simply not reliable or credible
Mr Sivaloganathan submits that the Tribunal carefully considered the applicability of SZKSY & Anor v Minister for Immigration & Citizenship& Anor [2007] FMCA 150 and remarked:
The FMC recently insisted that a person may commence a course of conduct in Australia for the purpose of enhancing their Protection Visa claim but nevertheless carry out that conduct for some other reason. At first the Tribunal thought that the applicant’s statement of belief may have been a heart felt statement of belief and a product of some perceived spiritual void that Falun Gong practice could alleviate or fill. The Tribunal thought initially that the statement might indicate her new found Falun Gong claim might fall under the rubric of SZKSY. The Tribunal had, however, rejected this conclusion because the statement of belief must be juxtaposed with the Tribunal’s findings regarding the applicant’s earlier claims. When the full gamut of her unsatisfactory claim to be a former dissonant and democracy advocate are subject to intense scrutiny. The applicant’s claim cannot be accepted by the Tribunal and, furthermore, the applicant is not regarded by the Tribunal as a witness of truth. (CB 163.7)
The Tribunal concluded that:
The Tribunal is not satisfied that the conduct (her adherence to and practice of Falun Gong) was engaged in otherwise than for the purposes of assisting her protection visa application and conduct of this Court by s.91(3) of the Act. (CB 164.4)
Mr Sivaloganathan submits that the Tribunal found that the applicant was not a witness of truth. It was unable to accept the genuineness in her asserted present belief in Falun Gong.
Mr Sivaloganathan submits that there is no evidence that the Tribunal misapplied the test in SZKSY. There was no requirement for the Tribunal to put to the applicant at the hearing every fact underpinning its finding regarding her Falun Gong practice: SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486. The Tribunal’s rejected the Falun Gong claims on the adverse credibility finding it made about the applicant’s political opinion. In finding that it did not accept the applicant’s assertion that she fled China because of her political opinion, actual or imputed, or membership of a particular social group, the Tribunal assessed her claim of fear of persecution: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47].
Mr Sivaloganathan submits that even if there were some aspects of the applicant’s evidence that the Tribunal did not specifically refer to in its “Findings and Reasons”, the detailed and all encompassing nature of the findings subsumed all such matters within it. Even if the Tribunal did err in making a factual finding, that is not, in and of itself, sufficient to constitute jurisdictional error: NZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]; Applicant A169/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31]; NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37].
I note the detailed submissions by both counsel in respect of ground four. The acceptance or rejection by the Tribunal of the applicant’s claim to be a Falun Gong practitioner is a question of fact to be decided by the Tribunal. The applicant appeared at a Tribunal hearing on 16 August 2007. The Tribunal raised with the applicant specific questions about Falun Gong while acknowledging her knowledge and understanding of the philosophy behind the practice. It was not convinced about the genuineness of the asserted belief. This led to specific questions on this issue (see [44] above). Despite the applicant’s responses and the evidence of her three witnesses, the Tribunal found her not to be a witness of truth was unable to accept the claim. I am satisfied that this ground should be dismissed.
Conclusion
I am satisfied that none of the grounds of review can be sustained and that the application should be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 8 May 2008
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