SZHYH v Minister for Immigration

[2007] FMCA 1039

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1039

MIGRATION – Review of RRT decision – whether Tribunal complied with s.424A obligations – whether Tribunal took into account irrelevant considerations – where applicant provided corroborative evidence in response to s.424A letter – where Tribunal concluded applicant was not a credible witness – where Tribunal considered and gave no weight to corroborative evidence – whether Tribunal had adequately dealt with corroborative evidence.

Migration Act 1958, s.424A

P119/2002 v Minister for Immigration [2003] FCAFC 230
SZEMW v Minister for Immigration [2005] FMCA 1700
S20/2002 [2003] 198 ALR 59

Applicant: SZHYH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3807 of 2005

Judgment of: Raphael FM

Hearing date: 25 May 2007

Date of last submission: 29 May 2007

Delivered at: Sydney

Delivered on: 17 July 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr M Cleary

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Court declares the decision of the Refugee Review Tribunal given on 28 December 2005 and handed down on 17 November 2005 invalid and of no effect.

2. The application be remitted to the Refugee Review Tribunal differently constituted to be heard and determined according to law.

3. The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3807 of 2005

SZHYH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 3 May 2005.  On 17 May 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 4 August 2005 a delegate of the Minister refused to grant a protection visa and on 6 September 2005 the applicant applied for review of that decision.  On 27 September 2005 the Tribunal wrote to the applicant providing him with details of information that would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.  On the same day it advised the applicant it was unable to make a decision in his favour on the information provided and invited him to a hearing on 27 October 2005.  The applicant responded to the letter of 27 September 2005 advising the Tribunal that he would provide information on 25 October 2005.  On that date the applicant provided a letter [CB74] and a certificate [CB75].  On

   
   

   28 October 2005 the Tribunal determined to affirm the decision under review and handed that decision down on 17 November 2005. 

2. The grounds upon which the applicant claims he was a person to whom Australia owed protection obligations were set out at [CB87]-[88] of the Tribunal’s reasons:

   “In November 2004 the applicant stood for the position of deputy president of his home village.  Two candidates were chosen by the government to stand for election.  The villagers did not find this to be satisfactory and wanted someone who would strive for their basic human rights.  The applicant was recommended by some of the local people.  The local corrupt village officials did not accept this for some time.  However, he did stand and received a large vote in the election on 25 December 2004.  On 27 December he was told by a senior official in the local government that he should resign from his then current position (as senior manager) from the [name of second company] Computer Co Ltd, according to the relevant government policies.  In December 2004 he resigned.

   In January 2005 the local people wanted the applicant to request the PRC authorities to reduce heavy taxes and levies, and they also wished to have a ‘clean government, based on respect and protection of basic human rights’.  He told the villagers that he would have to wait for his letter of appointment.  However, in mid January, the applicant’s neighbour committed suicide as he could not cover the heavy taxes and levies that he and his ‘families’ owed to the local government. There was a large protest in the village in from of the administrative office, as a result of the suicide.  The applicant still had not been appointed, but he was moved to call key people in the village to a meeting in which he ‘required them to well organize their protest’.  He was elected as one of the three representatives to negotiate with the authorities to reduce taxes and levies, to respect and protect human rights, and to give reasonable compensation to his neighbour’s family.  The applicant drafted a petition and invited more than one hundred people to sign the petition.  He sent two representatives to visit authorities.  He suggested that people from his village conduct two sit-in protests.  He organized his people to act peacefully and reasonably during the protest.

   The applicant never officially became deputy president of his village as he was regarded as having strong ‘anti-government’ ideologies and dissident political opinions.  He was arrested on 8 February 2005 by the PSB for organizing an anti-government protest.  In the detention centre he was mistreated, including being tortured and beaten.  He was forced to ‘put a fingerprint’ on a pre-prepared confession.

   The applicant was released on 11 March 2005 (after 33 days in detention) after his wife bribed some police officers.  However, he was required to report once a week to the local police station.  Through contacts, he left the country in May 2005.”

3. The information which the Tribunal referred to the applicant for comment in the letter of 27 September 2005 was as follows:

   “In your visitor visa application you stated that you worked for a company named [name of first company] Co Ltd, as a vice general manager.

   This information is relevant because in your Protection Visa application you stated that you worked for [name of second company] Co Ltd.  It would appear that [you] have provided misinformation in one or both applications which may affect your credibility.”

4. The applicant responded by letter [CB74] in the following manner:

   “2.     I worked as a Vice General Manager at [name of first company] Co. from 2002 to August 2004.  Normally, I worked about 3 hours per day (15 hours per week) at the company.

   3.       I also worked as the Senior Manager for [name of second company] Co Ltd from August 1998 to December 2004.  I normally worked about 5 hours per day (20 hours per week) at the company.”

   The Tribunal had written a further letter to the applicant on

   
   

   27 September 2005 requesting certain additional information from him.  The information requested was at [CB65]:

   “1. Please provide evidence that you were elected as President of your village, in or around December 2004.

   2.   Please provide evidence that the election occurred on or about 25 December 2004.

   3.   Over what period of time did you work for [name of first company]?

   4.   How many hours a week did you work there?

   5.   Over what period of time did you work for [name of second company]?

   6.   How many hours a week did you work there?”

   The applicant responded to that request in the letter of 24 October [CB74] as follows:

   “1. A copy of relevant documentary evidence that I was successfully elected as the Director of the Administrative Committee of Beichen Village at the election on
   25 December 2004.  According to relevant policies, a candidate must be first elected as the Director of the Administrative Committee, and then appointed by the government as the President or Deputy President.  But, I was not genuinely appointed as the President or Deputy President for the reason that I mentioned in my application.”

   The certificate he referred to is the certificate which appears at [CB75].  This certificate states it was issued on 25 December 2004 and confirms that the applicant was elected to be Director of the Villagers Committee.

5. In its findings and reasons at [CB89], the Tribunal expressed concern about the applicant’s response to the s.424A letter and his evidence about his employment:

   “In the applicant’s written response received on 25 October 2005 the applicant stated that he worked at Color Printing from 2002 to August 2004 for 3 hours a day.  He also stated that he worked at Computer Co. from August 1998 to December 2004 for 5 hours a day.  At the Tribunal hearing, the applicant stated that he had part-time jobs with Color Printing and Computer Co.  The Tribunal finds this to be inconsistent with the information in his protection visa application and his visitor visa application, where he simply stated that he worked for one or the other company.  The Tribunal also finds that the information in the applicant’s protection visa application and his visa application are inconsistent with each other.”

6. The Tribunal then noted that the applicant stated at the hearing that he had resigned from the Computer Co. in December 2004 because he wanted to become the village president and he could not hold both jobs:

   “The Tribunal then asked whether he resigned from Color Printing.  He stated that he did, in August 2004.  In answer to the Tribunal’s question he stated that it was because he could not hold the position of village president if he held this job.  The Tribunal indicated that this was odd as he had stood for election after the date he had resigned from Color Printing.  The applicant stated again that he quit both jobs in December.” 

   The Tribunal stated that was inconsistent with the letter in response to the s.424A letter and his own oral testimony in the hearing where he stated that he had resigned in August 2004 from Color Printing.

   “The applicant stated again that he quit both jobs in December.  He then stated that he worked at Computer Co. from August 1998 to December 2004 and at Color Printing from February 2002 to August 2004.  The Tribunal agreed with the applicant.  The applicant then stated that his real resignation date was December, but on the document it was August.  The Tribunal finds that the applicant’s answers regarding when he resigned from Color Printing were internally inconsistent at the hearing where he stated that he resigned in August and then changed his answer to December when pressed as to why he would resign before the election.  He then stated it was August again and then finally December.  Further, the Tribunal finds that the applicant’s final response regarding when he resigned from Color Printing given at the hearing, that is December 2004, was inconsistent with his response to the s.424A request when he indicated that he worked until August 2004.”

7. The Tribunal then went on to refer to inconsistencies in the dates he claimed to have resigned from Color Printing and the date from which the election was held:

   “As a result of the above inconsistencies the Tribunal finds that the applicant’s evidence is unreliable and that he is not a credible witness.

   Although applicants for refugee status may yield to the temptation to embroider their accounts, the Tribunal finds that the applicant on this occasion has consistently changed his story, showing scant regard to the truth, in order to obtain a favourable migration outcome.  As a result, it leads the Tribunal to conclude that none of his claims can be accepted as true.

   The Tribunal has considered the ‘Certificate of the Villagers Committee Member’ submitted by the applicant, and places no weight on it.”

8. The applicant, who was not represented at hearing, had filed an amended grounds of application in which he raised a number of matters. The first was that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act 1958 (Cth). This submission is particularised:

   “a.     The Tribunal’s decision has mainly relied on the information regarding to my employment in China, in particularly, some inconsistencies arising from the Tribunal’s hearing which was mainly in relation to my employment history both in [name of first company] Color Printing Co. Ltd and [name of second company] Computer Co. Ltd.

   b. The Tribunal failed to provide me the particulars of the information that it has used as main reason to affirm the decision of the Immigration Department; and particularly the Tribunal failed to ensure me to understand it would be key issues in my review application.  As a result, I have been denied to right to make my common against the information.” [sic]

9. As pleaded, this complaint cannot be sustained. The Tribunal did in fact issue the applicant with a s.424A letter which dealt with the inconsistencies relating to his employment and explained why they were important. At the hearing the Tribunal took up with the applicant the information that he had provided in his response to the s.424A letter and the discussions between the applicant and the Tribunal revealed further inconsistencies. Those inconsistencies were not required to be the subject of a s.424A letter as there was no new information other than information that had emanated from the applicant himself. It was the inconsistency, not the information, that led to the Tribunal coming to the view that it did about the applicant’s credibility.

10. The second matter raised by the applicant was a complaint that the Tribunal failed to comply with its obligations under s.424A under the Act. This was particularised as a complaint against the interpreter. The applicant has not provided any evidence to support this claim or to establish that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving the evidence or that errors made by the interpreter were material to the Tribunal and adverse to the applicant: P119/2002 v Minister for Immigration [2003] FCAFC 230; SZEMW v Minister for Immigration [2005] FMCA 1700. In the absence of such evidence I am unable to provide review on this ground.

11. The third matter raised by the applicant was:

    “3.     The Tribunal took account of irrelevant considerations.

    a. My claims have mainly based on the event after I was elected as vice-president of the village; but the Tribunal’s decision was mainly based on my claims before that.” 

    The Tribunal did not consider the applicant’s claims of persecution after his election because it did not believe that he was ever elected.  It based that conclusion on the inconsistencies of the evidence about the elections and about the applicant’s work history.  Provided that the Tribunal comes to a credibility conclusion without falling into jurisdictional error it is not required to assess claims which it does not believe are genuine.

12. The fourth matter is expressed as follows:

    “4. Similarly, the Tribunal ignored important issues in my claims –

    a. I have been subjected to persecution by the PRC authorities, since I organised local villagers to have protects against the Chinese government, asking for respect and protection of their basic human rights.

    b. I have had to depart from my home country mainly for the reasons to escape from persecution.”

    This is really another way of putting the matter raised in the third ground as discussed above and for the reasons there given I cannot provide review.

13. Finally, the applicant argues:

    “5. Furthermore, based on my claims above, the Tribunal failed to properly determine my fear of being persecuted on my return to China; and the Tribunal has incorrectly assess [sic] my credulity.”

    The Tribunal assessed the applicant’s fear of being persecuted on his return to China on the basis of its previous credibility finding.  It came to the conclusion that he would have no such fear because it had concluded that he had not suffered any persecution from the Chinese authorities for a Convention reason.  If the Tribunal’s findings of lack of credibility are not subject to review then the consequences of that finding are also not subject to review.

14. The applicant was not represented at the hearing.  During the course of the hearing I expressed some concern to counsel for the Minister about the Tribunal’s treatment of the certificate which on one reading could be said to provide solid corroborative support to the applicant’s story that he had been elected village representative.  It was because the Tribunal did not believe that he had been elected as such that it dismissed any suggestion that he had been persecuted.  It is to be remembered that in regard to that certificate all the Tribunal said was:

    “The Tribunal has considered the Certificate of the Villages Committee Member submitted by the applicant and places no weight on it.”

    I asked the respondent to provide me with written submissions in relation to this aspect of the matter, after counsel conceded that this was not one of those cases where the Tribunal ignored documents on the basis that the applicant’s evidence had been discredited by comprehensive findings of dishonesty which negates allegedly corroborative materials: S20/2002 [2003] 198 ALR 59 where McHugh and Gummow JJ said at [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.”

    In those circumstances does the Tribunal’s statement that it has ‘considered’ and ‘given no weight’ to the document suffice?

15. The Respondent submits that the Tribunal placed no weight on the certificate because it considered:

    “the applicant’s written evidence including the Certificate and assessed that evidence against the oral evidence of the applicant, concluded that both are inconsistent and, as a result, in the next paragraph concludes that ‘the applicant’s evidence is unreliable and that he is not a credible witness’ …

    Then, after concluding that none of the applicant’s claims are true, makes the following finding:

    The Tribunal has considered the ‘Certificate of the Villagers Committee Member’ submitted by the applicant, and places no weight on it.”

16. In Minister for Immigration v Yusuf (2001) 206 CLR 323 at [76] McHugh, Gummow and Hayne JJ said:

    “If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).”

    This is not a duty of the Tribunal to make findings, but a duty to record the findings that have been made: Minister for Immigration v Yusuf (2001) 206 CLR 323 at 332 per Gleeson CJ; [77] per McHugh, Gummow and Hayne JJ. As Gleeson CJ indicated in S20/2002 v Minister for Immgiration [2003] HCA 30 at [9]: “If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact”. The weight to be accorded by the Tribunal to evidence before it is a matter for the Tribunal: Applicant V324 of 2004 v Minister for Immigration [2004] FCAFC 259 at 40; Vu v Minister for Immigration [2005] FCA 1836 at [52] per Siopsis J. In addition, the Tribunal’s decisions must not be “construed minutely and finely with an eye keenly attuned to the perception of error”: SZCOQ v Minister for Immigration [2007] FCAFC 9 at [14] per Moore J, citing Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-2.

17. In WAIJ v Minister for Immigration [2004] FCAFC 74 Lee and Moore JJ considered the situation where the Tribunal placed no weight on a letter the applicant had provided as corroborative material on the basis that it ‘would have been an easy letter to manufacture’. Their Honours said (at [27]):

    “ … if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred.  Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).”

    And at [32]:

    “[32] It was, of course, a matter for the Tribunal to decide if the failure of the appellant to state at the ‘entry’ interview that she feared persecution if returned to Iran, undermined the credibility of such a claim made subsequently.  However, in the absence of material which impeached the appellant’s claims directly, the Tribunal could not make that determination without duly considering the weight to be given to material which tended to confirm the truth of her claims. In other words, if there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims, it may be unsafe to regard the failure of the appellant to disclose the claims at the ‘entry’ interview as sufficient to establish that the claims were invented and it would follow that material corroborating the claims would have to be considered.’

In MZXMH v Minister for Immigration [2007] FMCA 365 Riley FM made the following comments about WAIJ and its application:

“[34] The Court in WAIJ did not purport to state exhaustively all of the circumstances in which a Tribunal might properly reject purportedly corroborative material.  Obviously, the Tribunal may reject purportedly corroborative material where it does not accord with the applicant’s own evidence or where all of the material, including the corroborative material, considered as a whole and considered judicially, does not persuade the Tribunal of the truth of the applicant’s claims.  Indeed, WAIJ was concerned with a variation of a failure to consider the material as a whole.  The court in WAIJ said at [27] that the Tribunal was ‘bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility’.  The Tribunal did exactly that in the present case … The purportedly corroborative material was factored in to the Tribunal’s consideration of the applicant’s claim”.

1. In this instance, the Tribunal found that the evidence the applicant gave at the hearing in relation to the date of the election was inconsistent with “the evidence provided by the applicant in his response to the s.424 letter” [CB90].  This appears to refer to the letter of the applicant at [CB74] which was provided to the Tribunal with the certificate, and states that the certificate was “evidence that I was successfully elected …. at the election on 25 December 2004.”  The certificate, at [CB75], was issued on 25 December 2004 but does not state the date on which the applicant was elected.  It does not appear to be the case that the certificate itself was found “on probative grounds, to be worthless”, as their Honours indicated in WAIJ.  Instead, the decision to accord no weight to the certificate appears to have been based on the Tribunal’s conclusion that the applicant was not a credible witness and that “none of his claims can be accepted as true”, because of the inconsistencies in the applicant’s evidence about the date of the election.  This is a circular argument.  If, on behalf of the Tribunal, the “poisoned well” scenario is expressly excluded then it is not enough to reject a document that on its face has corroborative value on the basis that it is inconsistent with oral evidence.  The corroboration provided by this document was on the fact of the result of the election.  The date that election took place was not a matter of particular concern, because by all accounts it occurred in December.  It is one thing to ‘place no weight’ on a document that comes from a country where document procurement is rampant and the applicant is made aware of such a concern.  It is quite another to do so where there is no attack on the document per se, merely upon the way in which the applicant has given evidence relating to something which the document does not address; in this case the date of the election.

2. The Tribunal appears to have concluded that the election did not happen at all on the basis of these inconsistencies.  The Tribunal gave no other reasons for its rejection of the certificate. But as this is not a case where the credibility of the applicant had been destroyed such that a piece of corroborating evidence could be disregarded: see WAIJ v Minister for Immigration per Lee and Moore JJ at [27]; S20/2002 per McHugh and Gummow JJ at [49], I would find that the Tribunal fell into jurisdictional error by according no weight to the certificate.

3. The application must succeed.  The letter is fundamental to the applicant’s claim.  The Court will issue the constitutional writs if requested.  As the applicant was self-represented there will be no order as to costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  17 July 2007