SZGSC v Minister for Immigration
[2007] FMCA 441
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 441 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – actual bias – prejudgment – perfunctory hearing – information given to earlier Tribunal hearing – application of s.424A – corroborative evidence not accepted – application dismissed. |
| Migration Act 1958, ss.91X, 424, 424A, 425 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 75 ALD 630 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZJBE v Minister for Immigration & Citizenship [2007] FCA 190 Abebe v The Commonwealth (1999) 197 CLR 510 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZGSC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3496 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 March 2007 |
| Date of Last Submission: | 5 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J.D. Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3496 of 2006
| SZGSC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 21 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated
17 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) on 2 February 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The decision the subject of these proceedings is the second decision of the Tribunal on the applicant’s claim, the first decision having been set aside by order of this Court. That first decision of the Tribunal described the applicant as follows:
… the Applicant claims to have been born in Fuqing, Fujian Province, in 1965. He claims to have lived at one address in Shenzhen from December 1994 to January 2004 and at another address in Fuqing City from February to November 2004. He claims to have received a total of 8 years of formal education in Fuqing, ending in 1982. He gives his occupation as labourer and claims to have been employed on construction sites in Shenzhen from 1992 to January 2004. He claims to have been detained from January to February 2004 and to have been unemployed from February to November 2004. He claims to have been divorced in 2003 and lists a daughter and son as still living in China, together with his parents a sister and three brothers. (Court Book (“CB”) page 79)
The applicant claims to fear future persecution in China because of his actual or imputed political opinion.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-12 of the Tribunal’s decision (CB 117-125). Relevantly, they are in summary:
a)on 1 March 2003, in order to avoid the attention of the Public Security Bureau (“PSB”), the applicant organised a party in his home. At the party, he declared to the participants (around 30 members) the establishment of the “Labourer’s Union” and he organised for those people to have an election for one chairman and two deputy chairpersons. According to the applicant, the sole purpose for establishing the organisation was to “protect the basic human rights of our labourers” by uniting together to strive for their “basic human rights”. The applicant was elected as the chairman that day;
b)in September 2003, the applicant contracted a job with a construction company to transport sand and stones to a construction site. He took around ten labourers to do the job. However, they did not get paid according to the contractual agreement with the construction company. On numerous occasions, the applicant took his labourers to ask for the payment, but they were refused again and again. He eventually told the construction company that he would, in the name of the “Labourer’s Union”, organise a large protest if they could not get their payment by the end of 2003;
c)on 5 January 2004, the applicant organised for at least two hundred labourers at the construction site to hold a demonstration, requesting an apology and immediate payment from the construction company. All work at the construction site was temporarily stopped due to the demonstration. The construction company quickly gave in and agreed to pay the workers within ten days and also to give them compensation;
d)
in late January 2004, the applicant was arrested on accusation of organising an illegal organisation and holding an illegal demonstration. The applicant was detained from 25 January to
25 February 2004. He claims to have been physically tortured by the police and forced to confess to his alleged crimes;
e)since the end of February 2004, the applicant has not been allowed to work in any construction site in Shenzhen city because he is regarded as a “troublemaker” with strong anti-government political opinions;
f)the applicant has been required to return to his home town where he must report to his local police station once a week and claims that it is impossible for him to find any jobs ‘because the police always warned those persons who intended to offer me the job that I was a “troublemaker’”; and
g)the applicant’s application for a passport was refused in April 2004 but after bribing an official he was able to obtain one in the middle of June 2004. He left China in November 2004 with the help of a friend of a friend who organised overseas travel for business groups.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons. The Tribunal:
a)accepted that the applicant and others organised a demonstration lasting some days in an effort to persuade a particular company to pay them for work done;
b)was not satisfied the applicant was a witness of truth in relation to material aspects of his claims;
c)did not accept that the applicant had established an illegal union for workers in China, finding it far-fetched that such a union could exist without subscriptions and membership records;
d)although accepting that the applicant and others were owed wages and that after demonstrating in relation to these amounts they were paid, was not satisfied that the demonstration was regarded by Chinese authorities as being illegal;
e)did not accept that the applicant was taken into custody for half an hour on the sixth day of the demonstration and then released and allowed to return to the same demonstration;
f)found it implausible that the police would allow the demonstration to carry on for so many days if it regarded it as an illegal gathering;
g)did not accept that the applicant was arrested, detained and tortured some time after the demonstration ended;
h)did not accept that after February 2004 the applicant was prevented from obtaining employment and that his passport application was refused in April 2004 because he was regarded as an anti-government person;
i)concluded that the applicant’s stated inability to obtain a passport in April 2004 was inconsistent with his ability to obtain one in his own name in June 2004;
j)did not accept that the applicant had bribed an official to obtain his passport;
k)noting that the applicant departed China unhindered by the authorities, observed that country information indicated that it would have been very difficult for the applicant to exit China using a passport in his own name if he had been of adverse interest to the authorities.
The Tribunal described the applicant’s evidence as exhibiting a “fundamental lack of credibility” (CB 127).
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal failed to consider the applicant’s claims properly and fairly, was in breach of s.425 of the Act and denied the applicant a real hearing because:
i)the Tribunal’s hearing was just perfunctory and a hearing was never intended to provide the applicant a fair chance to present his evidence and arguments;
ii)the Tribunal ignored the evidence and arguments advanced by the applicant;
iii)the Tribunal had already made its decision before the hearing;
b)the Tribunal failed to comply with s.424 of the Act in that “if it has concerned [sic] or shared the same opinions with the previously constituted Tribunal, it should give me chance to comment on it”;
c)the Tribunal breached s.424A of the Act because it did not lead the applicant to understand that it would use information from the previously constituted Tribunal to reach its decision.
At the hearing in this Court, the applicant raised the following additional matters:
a)the Tribunal did not consider whether the applicant could obtain a passport by paying a bribe;
b)the Tribunal ignored the applicant’s evidence at the Tribunal hearing and the evidence of the applicant’s corroborating witness;
c)the Tribunal had no regard for important claims made by the applicant;
d)the Tribunal acted on incorrect information; and
e)the Tribunal ignored relevant information.
Dealing with each of these grounds in turn:
The Tribunal failed to consider the applicant’s claims properly and fairly, was in breach of s.425 of the Act and denied the applicant a real hearing
The hearing was just perfunctory
The only evidence as to the conduct in the hearing is what appears in the Court Book. In this regard, the applicant was invited to the hearing by the Tribunal’s letter dated 21 August 2006 (CB 95) and he attended the hearing where, according to the “RRT hearing record” reproduced at CB 106-107 he was assisted by a Mandarin interpreter. No complaint has been made by the applicant as to the quality of translation or interpreter service provided to him at the hearing.
As to the hearing itself, the Tribunal’s decision sets out at CB 122-124 the questions posed to the applicant by the Tribunal and the applicant’s responses to those questions. It is significant that the Tribunal’s questioning covered the demonstration outside the Shenzhen construction site, the applicant’s detention by the police, the resolution of the dispute with the construction company, the applicant’s stated inability to obtain work as a result of Public Security Bureau intimidation and why he was arrested after the demonstration was over. The Tribunal also put to the applicant that it had difficulty accepting that the police had an interest in him given that, at the time of demonstration he was only detained for half an hour and then released and that his ability to depart China using a passport in his name might suggest that he was not of adverse interest to the Chinese authorities.
Significantly, the applicant was asked, after the Tribunal’s questioning, whether he wished to add anything to which he responded by handing up a statutory declaration of a corroborative witness and gave further evidence concerning the police’s continuing interest in him.
This, when coupled with the information supplied with the applicant’s application for review and his evidence to the Tribunal as originally constituted reproduced at CB 119-121, demonstrates that the applicant had the opportunity to present whatever information he considered appropriate and desirable, and that the hearing dealt with the claim in some detail and was not perfunctory.
The Tribunal ignored the applicant’s evidence and arguments
As set out in paragraph 6 above, the Tribunal’s decision was based on a range of facts presented to it by the applicant, together with country information, and reveals that the Tribunal turned its mind to the substance of the applicant’s claims and the evidence that was advanced in support of them. However, the Tribunal is not required, in providing its reasons for a decision, to discuss every piece of evidence which was before it. As the Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 75 ALD 630 at 641 [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
But in any event, the decision of the Tribunal was based upon its finding concerning the applicant’s credibility. The Tribunal found that aspects of the applicant’s account were far-fetched and others were implausible. As McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 at 423 [67]:
In addition, the prosecutor alleges that the Tribunal breached s 430 by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". 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 sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
A consideration of the Tribunal’s decision indicates that although it did consider the evidence and arguments advanced by the applicant it found that evidence to be lacking credibility.
The Tribunal had pre-judged the matter
This is, in reality, an allegation of actual bias.
In this connection, North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
His Honour went on to refer to the Canadian case of Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 as demonstrating that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. His Honour observed that it is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. (Sun’s case at 563)
The Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
· An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
· The allegation is not to be lightly made and must be clearly alleged and proved.
· The presence or absence of honesty will often be crucial.
· The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
· Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
· Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
No evidence has been adduced by the applicant in support of this allegation of pre-judgment. By contrast, a consideration of the Tribunal’s decision indicates that it analysed the evidence proffered by the applicant and, having done so, found that it was not credible. The discussion by the Tribunal under the heading “Findings and Reasons” does not suggest that it was rationalising a conclusion at which it had arrived prior to the hearing. Indeed, the Tribunal’s questioning of the applicant, recorded at CB 122-124 indicates that the Tribunal sought elucidation on matters of concern to it that, presumably, were the basis for the s.425 invitation to attend a hearing.
In the absence of evidence in support of the allegation and given the consideration given to the applicant’s claim demonstrated in the Tribunal’s decision, I find that the allegation of bias, ie. that the Tribunal had already made its decision before a hearing, is not made out.
The Tribunal failed to comply with s.424 of the Act in that “if it has concerned [sic] or shared the same opinions with the previously constituted Tribunal, it should give me chance to comment on it”
Section 424 of the Act provides that the Tribunal may seek additional information and, if it does so, it must have regard to that when making its decision on review. The applicant made no reference to s.424 in his oral submissions and this ground appears to intend to be a reference to s.424A. However, that section does not apply to the thought processes of the Tribunal or its subjective appraisals: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 [24]. Nor does the common law require it: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
The Tribunal breached s.424A of the Act because it did not lead the applicant to understand that it would use information from the previously constituted Tribunal to reach its decision
Section 424A provides:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
In this matter, the applicant submitted that the Tribunal should have made him aware that it was going to rely on information provided by the applicant to the Tribunal as previously constituted and should have taken the steps set out in s.424A(1). However, the information to which the applicant refers is information which he, himself, provided to the Tribunal as originally constituted. This is the information set out under the heading “summary of applicant’s evidence before Tribunal on 11 May 2005” and reproduced at CB 119-122. The decision of the Tribunal as originally constituted is a nullity as a result of the orders of this Court entered on 16 March 2006 which quash it (CB 91-92). However, information provided by the applicant to the Tribunal at an earlier stage of the application process remains just that, information provided by the applicant to the Tribunal and thus information which falls within the exception contained in s.424A(3)(b).
In SZJBE v Minister for Immigration & Citizenship [2007] FCA 190 one of the issues before the Court was whether there may have been a contravention of s.424A because the Tribunal took into account matters arising out of evidence given to the Tribunal, otherwise constituted, at an earlier hearing. The decision arrived at by the Tribunal as it was originally constituted had been set aside by an order of the Federal Court and the matter remitted to the Tribunal for reconsideration. In SZJBE’s case, Emmett J said at 17:
An invalid decision by the Tribunal is no decision at all. However, it does not follow that steps and procedures taken in arriving at that decision are themselves invalid, or of no effect. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. Specifically, under s422(2), where the Tribunal is reconstituted, that Tribunal may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. In the present case, it may be said that the Tribunal had regard to the statements made by the applicant to the Tribunal as previously constituted. I do not consider that s 424A could be said to have been breached by an assessment on the part of the Tribunal of the credibility of the applicant based upon what he said at an earlier hearing of the Tribunal. Even if that ground were raised in the application to the Federal Magistrates Court, it had no substance.
Consequently, the Tribunal is not in breach of s.424A by not giving back to the applicant pursuant to s.424A(1) the information which he had previously given it.
The Tribunal did not consider whether the applicant could obtain a passport by paying a bribe
This ground mistakes the Tribunal’s decision. The Tribunal recounted the applicant’s allegation that he had obtained his passport by means of a bribe (CB 118, 120, 122 and 124-126) and expressed its conclusion in relation to this allegation as follows:
The Applicant’s claim to be unsuccessful in obtaining a passport in April 2004 because of his profile as an anti-government person is not consistent with the Applicant’s ability to obtain a passport in his own name in June 2004, two months after his first application was refused. The Tribunal does not accept that the Applicant obtained a passport by bribing an official.
The Tribunal did consider the applicant’s allegation that he obtained his passport by bribery but did not need to make a finding on whether or not this was possible because it found that this had not, in fact, happened. Having found that the passport was not obtained by bribery, the Tribunal did not err by not stating in its reasons whether the applicant could have obtained a passport by paying a bribe.
The Tribunal ignored the applicant’s evidence at the Tribunal hearing and the evidence of the applicant’s corroborating witness
At CB 122-124 the Tribunal sets out the evidence given by the applicant at the Tribunal hearing. Other than the decision, there is no evidence before the Court which records what the evidence was. Although the applicant submitted that his evidence at the second hearing of the Tribunal was ignored, I understand this to be an attack on the Tribunal’s reasoning process, not a challenge to the accuracy of the Tribunal’s recitation of the evidence found at CB 122-125. There being no such challenge to the accuracy of the Tribunal’s account of that evidence and in the absence of other evidence, such as a transcript, which might suggest the account at CB 122-124 is not accurate, I will accept the Tribunal’s decision as an accurate record of the proceedings of the Tribunal hearing. I also note that in his submissions to this Court, the applicant did not identify any evidence which may have been given to the Tribunal which was not recorded at CB 122-124 as having been provided.
The applicant submitted to the Court that the evidence which he had given to the Tribunal, including the evidence of his corroborating witness, established persecution and that to have ignored it was unfair. In reality, this is a ground based on the applicant’s disagreement with the facts found by the Tribunal. It is not open to this Court to review those findings: Abebe v The Commonwealth (1999) 197 CLR 510. Even if the Tribunal had made an incorrect finding of fact, unless that fact is a jurisdictional fact, the Court cannot interfere. As the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 53:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen
(2001) 177 ALR 473 at 481 [35] per
McHugh J.
As to the evidence of the applicant’s corroborating witness, the Tribunal refers to the statutory declaration prepared by the applicant’s friend and quotes it at CB 124. However, the Tribunal concluded that no weight was to be given to it “given the degree of credibility problems with the evidence of the Applicant” (CB 127). The Tribunal expressed its conclusion in the following paragraph:
In light of the fundamental lack of credibility within the applicant’s evidence I am not satisfied that the statements relating to the Applicant’s material claims in these documents are true. (CB 127)
The fact that the applicant has been unsuccessful notwithstanding that there was evidence before the Tribunal corroborating his version of events does not invalidate the Tribunal’s findings. As Gleeson CJ said in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 63 [12] and [13]:
It was contended that this passage shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, 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 the reasons given for disbelieving the principal witness.
In the same appeal, McHugh and Gummow JJ said at 70 [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 s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
Consequently, not only did the Tribunal not ignore the evidence of the applicant’s corroborative witness, the fact that it chose to give that evidence no weight does not amount to reviewable error on its part.
The Tribunal had no regard for important claims made by the applicant
The claim made by the applicant in his application for a protection visa (CB 1-29) is that he fears persecution were he to return to China because of his involvement in the “Labourer’s Union” and the demonstration in January 2004. As the applicant said in paragraph 20 of his statutory declaration attached to his protection visa application form:
I have already been regarded as a person with strong political opinions against the PRC authorities, and I have gotten “black” records in the PSB to organise anti-government organisations and demonstrations. Therefore, I must be subjected to persecution on my return. (CB 29)
This passage was quoted in the applicant’s statement submitted with his application for review filed with the Tribunal (CB 58). In its decision, the Tribunal quoted this passage at CB 118-119. The Tribunal described the applicant’s claim as follows:
Essentially the Applicant claims he has suffered persecution at the hands of the Chinese authorities because of his involvement in a worker’s union. He fears harm upon his return to China by reason of his actual or imputed political opinion. In assessing the Applicant’s Convention claims, I am required to determine whether he has a well founded fear, and if so, whether what he fears amounts to persecution for a Convention reason.
Those are the applicant’s claims and the Tribunal had regard to them. To the extent that the applicant referred to evidence which was before the Tribunal but not referred to in its decision, as has already been observed, the Tribunal had no obligation to refer to facts which did not form the basis of its decision.
No jurisdictional error is demonstrated in respect of this alleged ground of review.
The Tribunal acted on incorrect information
It is for the Tribunal to make an assessment of the value and accuracy of the evidence before it. The assessment of the evidence is part of the Tribunal’s fact-finding function and it is not for the Court to review the Tribunal’s conclusions on such issues except in the narrow circumstances described in NABE’s case quoted above. This is not one of those circumstances and no jurisdictional error is demonstrated in respect of this asserted ground of review.
In any event, the applicant did not identify which information was said to be incorrect or the basis on which such information was said to be incorrect. In the absence of such information the Court is not in a position to draw any independent conclusion on the issue, even were it an appropriate task for the Court to undertake: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at 11.
The Tribunal ignored relevant information
This submission was made in this Court in the context of the additional evidence provided to the Tribunal at the hearing of 14 September 2006. It is, in essence, no more than a reiteration of the ground that the Tribunal ignored the applicant’s evidence at the Tribunal hearing and the evidence of his corroborating witness. Consequently, this ground is not made out for the reasons expressed above in relation to that earlier asserted ground of review.
Conclusion
In this matter, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Parisra Thongsiri
Date: 5 April 2007
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