SZGQF v Minister for Immigration
[2008] FMCA 1042
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGQF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1042 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no failure pursuant to s.424A of the Act – no failure to consider relevant information – adverse credibility finding – findings open to Tribunal – no evidence of bias – no apprehension of bias – no denial of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 441A, 424B, 425, 430, 65, 36(2) Migration Regulations 1994 (Cth), reg.4.35D |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2004] FACFC 123 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 204 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 Applicant S20 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30 |
| Applicant: | SZGQF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3449 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 May 2008 |
| Date of Last Submission: | 13 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms M Mafessanti |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 6 November 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3449 of 2007
| SZGQF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 6 November 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 18 September 2007, and handed down on 9 October 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The first respondent has put a bundle of relevant documents before the Court in this matter (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 8 August 2004. She made an application for a protection visa on 16 November 2004 (see CB 1 to CB 27 with annexures). In the application for protection (see especially CB 27) the claim to fear persecution was based on the assertion that she was a “Falun Gong follower” and practitioner since 1997. She avoided detection by the authorities, but claimed to fear harm from Chinese authorities on that basis.
The Minister’s delegate refused the application (CB 35 to CB 44). He found the claims to be “extremely vague” and not of sufficient gravity as to constitute Convention persecution (CB 41).
The Tribunal
The applicant sought review by the Tribunal (see CB 42 to CB 45 for the application). The applicant was invited to a hearing (CB 50), but did not attend. The Tribunal (as previously constituted) handed down a decision (see CB 53 to CB 55).
This decision was set aside by this Court (CB 56).
The applicant was again invited to a hearing before the Tribunal (as reconstituted), and she attended this hearing on 7 August 2007 (CB 62). The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 89.4 to CB 92.6).
At the hearing, the applicant told the Tribunal that the claims set out in the protection visa application were no longer her claims (“no they are no longer my claims”) (CB 89.5). The applicant explained that the application form had been filled out by her then migration agent. The applicant then gave the Tribunal three pages containing writing in Chinese characters and said that these were her “present claims”. The applicant told the Tribunal that she could not afford any translation of this document. The Tribunal told her that the “pages will need to be translated”. The Tribunal asked the applicant to state her claims orally and proceeded to take evidence from the applicant. It subsequently obtained a translation of the document (see CB 65 to CB 78 for relevant documents).
The applicant told the Tribunal, at the hearing, that she was never a Falun Gong practitioner. But that she came to fear persecution by reason of her having been associated with Falun Gong practitioners because she managed a factory in 2002 in China where Falun Gong was practised. The circumstances were that she promised her boyfriend’s father who was a Falun Gong practitioner and organiser to continue his work after his death. That in 2003 the local Public Security Bureau (“the PSB”) detained some Falun Gong practitioners who were practising at the factory. The applicant was detained after people had informed the PSB about her activities. She was ultimately released after 24 hours because the PSB had no evidence against her (12 February 2003).
On 10 March 2003 the PSB issued a detention notice. However she was warned about this by a Falun Gong practitioner and she and her boyfriend ran away. In June 2004 she returned to her home town because she was pregnant, and again allowed the Falun Gong practitioners to practice at the factory. The police found out about her activities, took her to the police station where she was beaten and tortured and suffered loss of blood. She was then taken to a hospital and her child was born “via caesarean section” (CB 90.5). The boyfriend took her child away.
She claimed to have been sent to Australia by the Falun Gong Association “through informal tunnels” (CB 90.6). In Australia she claimed she has had no contact with Falun Gong, but sometimes made calls to Falun Gong practitioners in China.
Subsequent to the hearing the Tribunal arranged for the applicant’s statement to be translated. On 14 August 2007 (CB 79 to CB 81) the Tribunal wrote to the applicant providing her with the opportunity to comment on a number of inconsistencies in her oral evidence and inconsistencies between her oral evidence and what was contained in the written statement, and inconsistencies between her evidence and the independent country information available to the Tribunal. The applicant was given until 6 September 2007 to respond. No response was received by the Tribunal (CB 96.3).
The Tribunal accepted the applicant’s oral evidence that she did not rely on the claims made in the protection visa application and that she was not a Falun Gong practitioner (CB 97.8). It understood that the claims presented were “new claims”.
The Tribunal was not satisfied that the “applicant is a witness of credit” (CB 98.3). The reason for this was that the Tribunal found that there were inconsistencies in the applicant’s evidence as given orally at the hearing, and inconsistencies between this oral evidence and what was contained in the applicant’s written statement. It also found that some of her evidence was implausible.
On this basis, the Tribunal did not accept that the applicant was ever involved in the running of the factory that sheltered Falun Gong practitioners or that she had organised Falun Gong practitioners, or that she would put herself and her family at risk only because she believed Falun Gong practitioners were good people or that she was ever a Falun Gong protector or would be imputed by the authorities to be associated with Falun Gong (see generally CB 98 to CB 99).
On this basis, the Tribunal rejected the applicant’s claims to have suffered any harm in the past or that there was a real chance of harm occurring if the applicant were return to China. It found that Australia did not owe protection obligations to her and therefore affirmed the decision under review.
Before the Court
The application before the Court contains the following grounds:
“1.The RRT breached the rules of procedural fairness by failing to give the applicant an opportunity to comment on information which the RRT relied on. Therefore the RRT failed to comply with section 424A of the Migration Act.
2.The RRT failed to take all relevant information into consideration when applying a real chance test in determining whether the applicant would be persecuted by the Chinese government of the local authority in his hometown if he returns to China.
3.The RRT rejection of my refugee claims is unreasonable and has been affected by pre-judgement. I involved in organising Falun Gong activities when I was in China. I have experienced persecution and mistreatment from the Chinese government. If I return to China it is likely to be persecuted again.”
Before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms M Mafessanti appeared for the first respondent.
The applicant:
1)Explained that she had been assisted by a migration agent (she was not sure if he was a lawyer) “in Chinatown”. [A reference was made to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. I note that in addition the applicant did access the Court’s Legal Advice Scheme and was given written and oral advice by Counsel on the panel of that scheme.]
2)She had given evidence to the Tribunal, and she met the requirements for refugee status.
3)Gave the Tribunal the “police warrants” and “a custody certificate”.
4)If it had not been for the threat of persecution she would not have closed down her plastics factory.
5)She was unable to provide “new” evidence (in support of her “refugee claims”). She had tried to obtain “new documents” (medical certificates from hospital). But did not provide them to the Tribunal (“all things happen long ago”).
6)She did not receive the Tribunal’s letter (the “s.424A letter”) of 14 August 2007. Although she did receive other letters and the letter inviting her to the handing down of the Tribunal’s decision.
7)The Tribunal had doubts that she took over the factory from her boyfriend’s father. She can supply evidence of this.
8)With obvious reference to the Tribunal’s noting of the inconsistency between her claim (in the statement) to have taken over the factory from her father, with her oral claim to have done so from her boyfriend’s father, that in China this is: “the same”.
9)At the hearing she told the Tribunal that she was not good at remembering dates. Also, it was her first experience of a hearing and she was “quite excited”
Consideration – s.424A of the Act
Ground one in the application asserts a failure to comply with s.424A of the Act. The applicant was unable to particularise this complaint.
The first respondent submits that s.424A of the Act was not enlivened because the Tribunal relied exclusively on two sources of information. That is, the written and oral information provided by the applicant during her hearing on 7 August 2007, and the independent thought processes with respect to inconsistencies in the applicant’s evidence. The first respondent submits that neither source of information falls within the “purview of s.424A(1)”. This is said to be because the information provided by the applicant in both written and oral form falls within the exceptions set out in s.424A(3)(b) and the Tribunal’s independent thought processes, in particular inconsistencies, in the applicant’s evidence are not “information” within the meaning of s.424A(1) of the Act. The first respondent relies on SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18] (“SZBYR”) at [18], which cites with approval VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2004] FACFC 123.
Given the applicant’s complaint that she did not receive the Tribunal’s “s.424A letter” I granted leave for both the first respondent, to file any further relevant material, and for the applicant to file any evidence or make submissions in reply.
The Court has before it the affidavit of Ms Miriam Mafessanti annexing the relevant “Australia Post – Registered Post and Insurance” receipt. Nothing further was received from the applicant.
The Tribunal’s obligation pursuant to s.424A(1) of the Act is to give to the applicant for comment “information” that it considers “would be the reason, or part of the reason, for affirming the decision under review”.
The Tribunal did just that by its letter of 14 August 2007 (CB 79 to CB 81). The Tribunal put to the applicant for comment certain points of her evidence given at the hearing before it, and those parts of her written statement that were inconsistent. It also referred to the documents provided by the applicant to the Tribunal at the hearing (the “Notice of Detention, Notice of Arrest and Summons” which were said to be issued by the PSB), and also put to her information obtained from the “Department of Foreign Affairs and Trade” (“DFAT”) that noted widespread forgery of such official documents in China and that therefore “little evidentiary weight can be placed on any official Chinese document” (CB 80.6).
The Tribunal’s letter told the applicant that the relevance of this “information” was that the inconsistencies may lead the Tribunal to question the credibility of her evidence which may lead it to question the authenticity of her claims. Further, that the fact that she gave evidence that she voluntarily returned to her home town (in 2004) may indicate her fear of persecution was not genuine. Even further, that the information about the availability of forged documents may lead the Tribunal to reject her claim that she was at risk of arrest if she were to return to China (CB 80).
Even if this material were said to be “information” for the purposes of s.424A(1) of the Act, then the Tribunal complied with its obligations by virtue of its letter of 14 August 2007.
It should also be noted that in any event, to the extent that the Tribunal made reference to the evidence given by the applicant, orally and in writing at the hearing, then such “information” falls within the exception contained in s.424A(3)(b) of the Act from the obligation in s.424A(1), given that this was information provided by the applicant to the Tribunal for the purposes of the review.
Nor was the Tribunal obliged to put the independent country information obtained from DFAT about the availability of forged official documents to her for comment pursuant to s.424A(1) of the Act. Such information being of a non-in personam nature clearly comes within the exception contained in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264).
Nor was the Tribunal required, pursuant to s.424A(1) of the Act, to put to the applicant its view of the inconsistencies in her evidence and statement (see SZBYR at [18]).
Although I take the view that the statement (in Chinese characters) provided by the applicant to the Tribunal at the hearing was information provided by the applicant to the Tribunal for the purposes of the review, even if it was to be argued that that information would be the reason, or part of the reason, for affirming the decision under review, and that the translated version of this statement was other than the actual Chinese version provided by the applicant, then the applicant would still not succeed in this complaint, given that the Tribunal in any event did write to the applicant in this regard.
The argument could be that the Tribunal, it would appear, could not read Mandarin, but relied on a translated version of the applicant’s statement provided by a third party, namely the NAATI-accredited interpreter who translated the document (CB 98.2). Nonetheless the “information” in this document, and the inconsistencies which the Tribunal perceived from this statement, and other evidence provided by the applicant, were provided to the applicant for comment pursuant to s.424A(1) in any event, thus discharging its “s.424A(1)” obligation. This argument therefore would not assist the applicant in these circumstances.
In SZBYR (at [17]) the High Court said in relation to the words used in s.424A(1) and the Tribunal’s obligation that:
“The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.”
In any event putting to one side the fact that the “information” was, for the reasons stated above, either not “information” for the purposes of s.424A(1), or fell within the exceptions in s.424A(3)(a) or (b), if it was, it was not wrong of the Tribunal to have put such “information” to the applicant. The section provides a “minimum” level of obligation to be met by the Tribunal. It does not proscribe any action by the Tribunal to further engage with the applicant.
At the time of the sending of its letter, the Tribunal plainly considered that such “information” “would be the reason, or a part of the reason,” for affirming the decision under review. The fact also that the Tribunal ultimately did not rely on some of this information (for example, the advice from DFAT) also does not reveal error on its part.
At the hearing before the Court the applicant complained that she did not receive the Tribunal’s “s.424A letter”.
First, for the reasons set out above, I cannot see that the Tribunal’s s.424A(1) obligation was enlivened in this case such that even if the applicant did not receive the letter (even if the Tribunal did send the letter) then there is no jurisdictional error pursuant to any alleged failure by the Tribunal in relation to s.424A of the Act.
But in any event, the evidence before the Court reveals that the Tribunal sent the letter by registered post to the applicant on 14 August 2007 (see CB 79, and the annexure to the affidavit of Ms Mafessanti). It was sent to the applicant (no authorised recipient had been nominated by her – CB 43) to the address for service as nominated by her (CB 44).
In my view, the Tribunal complied with its obligation in giving its s.424A letter to the applicant by one of the methods specified in s.441A of the Act (s.424A(2)(a) of the Act). That is, by despatch by pre-paid post, within three working days of the date of the letter (actually the same day – see the annexure to the affidavit of Ms Mafessanti) to the last address for service provided by the applicant (see CB 44) (s.441A(4)(i) of the Act).
The applicant is therefore taken to have received the documents within seven working days of the date of the letter (s.441C(4)(a) of the Act). The letter complied with the obligations in s.424B(1) of the Act, and s.424B(2) of the Act, and the prescribed period in reg.4.35D Migration Regulations 1994 (Cth) (“the Regulations”) (14 days) (14 August 2007, plus seven working days, plus 14 days, is within the date given as the time by which the documents were to be received – 6 September 2007 (CB 81)).
In contrast, the applicant has provided no evidence to support her allegation (noting that she has had the benefit of some legal advice). Further, the applicant provided no explanation to the Court as to why she received all other correspondence from the Tribunal, but not this letter. In all, this complaint is not made out, nor does it in any event assist the applicant.
Consideration – Failure to take into account relevant information
Ground two in the application asserts a failure by the Tribunal to take into account all relevant information in applying the real chance test in determining whether the applicant would be persecuted by either the Chinese government or local authorities in her hometown if she returned to China. (I note that the reference to the applicant in the stated ground is stated as “he”.)
Again, no particulars are provided, and the applicant was unable to assist the Court at the hearing as to what “relevant information” the Tribunal failed to take into account.
The “information” or material that was relevant to consideration of the applicant’s claims, given that she presented “new” claims at the hearing, was the information provided by her at the hearing, and that which was contained in her written statement. I cannot see that there was any other “information” relevant to her claims (other than background information contained in the applicant’s protection visa application relating to the applicant’s nationality, which the Tribunal accepted).
I agree with the first respondent that any fair (even plain) reading of the Tribunal’s decision record reveals that the Tribunal did have regard to the applicant’s evidence and statement, and indeed did undertake a detailed examination of her “new” claims and evidence.
Simply, the Tribunal did not find the applicant to be credible. This adverse finding was open to the Tribunal to make on the material before it, and it gave reasons (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (“Durairajasingham”) at [67], per McHugh J, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (“Kopalapillai”) at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ). It was on this basis that the Tribunal rejected the applicant’s claims to have suffered any harm in the past or that there was a real chance of persecutory harm occurring to the applicant if she were to return to China. This was consequent on the Tribunal’s central finding of a lack of credibility on the part of the applicant. This ground does not succeed.
Consideration – Tribunal’s rejection of the claims were “unreasonable”
In ground three the applicant complains, in part, that the Tribunal’s rejection of her claims was “unreasonable”.
I can only agree with the first respondent’s submissions that the adverse credibility finding was based on rational grounds. The Tribunal considered matters that were probative of the issue of credibility (Kopalapillai at 558-9, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 204 at [15]).
To the extent that the reference to “pre-judgement” may imply an allegation of bias, or apprehension of bias, then it is well-established that such complaints should be plainly stated and be supported by evidence (see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507).
The applicant has not brought any other evidence before the Court to show bias, and merely relies on the Tribunal’s decision record in this regard. As was set out in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16], it will be a rare circumstance where bias (or a lack of good faith) can be made out merely from the Tribunal’s written reasons. Nor is there anything before the Court to show that the well-informed lay observer would reasonably apprehend that the Tribunal was biased in its consideration of the applicant’s claims. Such a claim of apprehended bias is not made out merely because the Tribunal arrived at a conclusion adverse to the applicant. Nor can such apprehension be made out on what is before the Court now (see in particular SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [68], per von Doussa J). This ground also does not succeed.
Other Complaints
Nor could I otherwise discern jurisdictional error on the part of the Tribunal. In terms of the procedures the Tribunal adopted, as already referred to above, the Tribunal wrote to the applicant pursuant to s.424A(1) of the Act and gave her the opportunity to comment on inconsistencies in her evidence.
At the hearing before the Court reference was made to “SZBEL”. The applicant did not say why this authority was of assistance to her.
Ms Mafessanti submitted that no issues of the type raised in SZBEL arise in this case given that the applicant “made new claims before RRT which were different to those considered by the delegate”. In any event the Tribunal discussed each element of the determinative issue at the hearing with the applicant.
First, I should note that despite opportunity (and the benefit of some legal advice) the applicant has not put any evidence before the Court to challenge, or contradict, the Tribunal’s account of what occurred at the hearing.
Given that the applicant resiled from claims put before the delegate, and made “new claims” to the Tribunal it is clear that the applicant could not rely on the issues identified by the original decision maker as being determinative against her, and as continuing to be determinative before, the Tribunal. Unlike the circumstances in SZBEL (at [35]) the current case appears to be one which falls outside of what was said by the High Court: “that is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision”.
I note also what was relevantly set out in SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 (“SZHBX”) per Edmonds J at [13]-[14], and SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 per Bennet J at [16] (“where the Tribunal made it clear that it was ‘starting afresh’ the appellant could not have assumed that the reasons given by the delegate would identify for her the issues that arose in relation to that decision because she was not aware of the content of that decision”.)
Nonetheless SZBEL does require that, pursuant to s.425 of the Act, the Tribunal disclose to an applicant: “additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue” (see SZHBX at [14]).
In the current case, clearly, the determinative issue was the Tribunal’s view that the applicant was not a “witness of credit” in giving her account of what she said had occurred in the past in China in relation to her (new) claim to have been a Falun Gong supporter and facilitator (but not adherent) and to have come to the adverse attention of the authorities for that reason.
In my view, the Tribunal did give the applicant sufficient opportunity to give evidence and make submissions about what turned out to be “the determinative issue arising in relation to the decision under review” (see SZBEL at [44]). The Tribunal’s unchallenged account of what occurred at the hearing reveals that the Tribunal questioned the applicant about her account of relevant events in China and plainly asked her to expand and clarify her evidence.
I note what was said in SZBEL (at [48]):
“Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
What is required is that (SZBEL at [47]):
“the tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
See also Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11].
In the current case the Tribunal did give the applicant the opportunity to address the basis, the substratum of facts in support, of her claims. It did give her the opportunity to expand on those parts of her claims which were open to doubt.
Further, it sufficiently indicated its concerns about her evidence and the opportunity to explain the substratum of facts that constituted her claims during the course of the hearing.
In particular, and for example:
1)At CB 90.8:
“The Tribunal asked why the applicant’s boyfriend would not run his father’s factory. The applicant’s evidence is that the factory was closed by the government.”
2)At CB 91.2:
“The Tribunal asked, what was the applicant’s motivation in assisting Falun Gong in China. The applicant’s evidence is that she found them to be good people.”
3)At CB 91.8:
“The Tribunal told the applicant there have been three different dates given for the events and asked the applicant to clarify.”
4)At CB 92.1:
“The Tribunal asked why the applicant felt the need to assist Falun Gong and put herself and her child at risk, particularly as she has said she was not a Falun Gong practitioner.”
5)At CB 92.3:
“The Tribunal asked if the applicant was concerned about signing an official government document … The Tribunal asked whether she would have concerns about signing official government documents in China.”
The reliance on (reference to) SZBEL does not assist the applicant.
At the hearing before the Court, the applicant also submitted that she did meet the “requirements” of a refugee, and had given the Tribunal documents to support her claims. I took this to be a reference to the documents reproduced at CB 65 to CB 67, and given to the Tribunal at the hearing.
In the absence of anything further I cannot see that the complaint that she meets the definition of “refugee” is anything more, in the circumstances, than a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
As to the documents, they appear to be the documents to which the Tribunal referred in its “s.424A letter”:
See CB 80.5
“9)You provided documents to the Tribunal which purport to be a Notice of Detention, Notice of Arrest and Summons all issued with your name on the documents by the PSB.”
Advice from the Department of Foreign Affairs and Trade is;
● ‘an official document can be either bought or forged in China. Irregular or improper issue of documentation is widespread. Thus, we would suggest that little evidentiary weight can be placed on any official Chinese document.’”
See also CB 80.8:
“9)Comment on the above is important as the above information may lead the Tribunal to reject your claim that you are at risk of arrest if you return to China.”
The Tribunal’s analysis, as expressed in its decision record, makes no reference to these documents. While not expressly raised by the applicant I did consider whether any error could be discerned in relation to this matter.
First, I note that s.430 of the Act requires the Tribunal to prepare a written statement that sets out a number of matters:
1)Its decision.
2)Its reasons for decision.
3)Its findings on any material facts.
4)A reference to the evidence on which the findings of fact were based.
There is no doubt that these documents were evidence provided by the applicant in support of her claims. They were not integers of her claims such that any failure by the Tribunal to deal with them in its consideration could be regarded as jurisdictional error (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”) at [46]-[47]).
Plainly, the Tribunal did not ignore these pieces of evidence. It made clear reference to them in its “s.424A letter”.
Any plain reading of the Tribunal’s reasoning reveals that it found the applicant not be a witness of credit. It gave reasons for this. In its decision record its findings relevant to this conclusion were set out and there was reference to the evidence on which the findings were based. That is, the applicant’s oral evidence and her written statement. That the applicant was found not to be a witness of truth led the Tribunal to reject the factual basis of her claims. All this was set out in the Tribunal’s decision record in accordance with s.430 of the Act. (Noting of course that any failure in this regard is not in any event jurisdictional error – Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 at [17], Durairajasingham at [70], per McHugh J.)
The Tribunal did not refer to the applicant’s documentary evidence in its decision record because it did not need to do so (see WAEE at [46]). Further, the applicant’s credit was so found to be wanting based on what the applicant herself had said that no amount of documentary evidence could alter this finding (Applicant S20 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30).
At the hearing before the Court the applicant also complained that she had been unable to provide further or “new” evidence to the Tribunal in support of her claims. Unfortunately for the applicant the Tribunal is not required to make its decision on what the applicant may have been otherwise able to put before it. The applicant had ample opportunity during the course of the review to put whatever she wanted, or could put to the Tribunal.
In considering her claims the Tribunal is required on what is before it, to either reach the requisite level of satisfaction that the applicant meets, in effect, the definition of “refugee” such that a protection visa must be granted, or if it cannot be so satisfied, then to affirm the decision under review (ss.65 and 36(2) of the Act).
The Tribunal did give the applicant reasonable opportunity to provide documents in support of her claims. I note that the application for review was made on 14 March 2005. The applicant had until 7 August 2007 (the date of the hearing before the Tribunal) to submit any further documentation. She was given a further opportunity by the Tribunal at the conclusion of the hearing (see CB 92.5). The applicant had well over two years to obtain and provide any documents. Ultimately, the Tribunal could only proceed on what was before it. I cannot see error in this regard.
The applicant’s complaint about the Tribunal’s view of her claim that she took over the factory from her boyfriend’s father does not rise above a challenge to the Tribunal’s finding of fact, and does not assist her before the Court in the circumstances.
Nor, similarly, does her statement to this Court that she should not have closed down her plastics factory if it had not been for the threat of persecution seek to do any more than re-agitate the merits of her refugee claims. A course of action which now before this Court cannot assist the applicant.
Nor does her complaint that her reference in her statement to her boyfriend’s father as her “father” was “the same”. The Tribunal was entitled to take the view that the applicant’s evidence in this regard was inconsistent particularly as it specifically asked her, at the hearing, “why she should have inherited her boyfriend’s father’s factory” (CB 98.7).
Her complaint that she told the Tribunal at the hearing that she was not good at remembering dates and she was “excited” at the hearing are unsupported by any evidence before this Court.
First, there is nothing before the Court to show that the applicant was prevented by any “excitement” from giving her evidence before the Tribunal. Nor did she make any complaint in this regard to the Tribunal.
Second, the applicant indeed did tell the Tribunal at one point in the hearing that: “she was not good with dates” (see CB 91.9). This was in answer to the Tribunal telling: “the applicant there had been three different dates given for the events and asked the applicant to clarify” (CB 91.9). Plainly, the Tribunal was unconvinced by the applicant’s explanation. (“The Tribunal notes its concerns” – CB 91.9.) This was open to the Tribunal on what was before it, and no error is revealed.
Conclusion
I cannot discern jurisdictional error as it is said to arise from the stated grounds, nor otherwise. For the applicant to succeed before the Court such error would need to be found. The application is therefore dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 31 July 2008
CORRECTIONS
Order (2) – delete “$6,950” insert “$3,800”.
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