SZHZO v Minister for Immigration - [2007] FMCA 857

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 857

MIGRATION – Credibility – probabilities not against adverse finding – failure to produce material in support is not a ground for review – conclusions and observations of Tribunal not “information” within s.424A.

Migration Act 1958 (Cth), ss.476, 424A, 474

W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Devries v Australian National Railways Commission (1993) 177 CLR 472
Abalos v Australian Postal Commission (1990) 171 CLR 167
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265
WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276
Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZHZO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 544 of 2007

Judgment of:

Turner FM

Hearing date:

28 May 2007

Date of Last Submission:

28 May 2007

Delivered at:

Sydney

Delivered on:

18 June 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr Hamish PT Bevan

Solicitor for the Respondents:

Ms Andrea Nesbitt of Sparke Helmore

ORDERS

The application and amended application are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 544 of 2007

SZHZO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed on 15 February 2007 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 14 May 2007.
The applicant was born on 7 March 1964 and is a citizen of China and is of Falun Gong faith (“the Applicant”).
The applicant is married with one daughter. The husband and daughter were named as members of the family unit to be included in the application for a protection visa (CB 2).
The applicant arrived in Australia on 30 April 2005 on a visitor’s visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 24 May 2005. In this application she claimed that she would suffer persecution in China because she was a practitioner of Falun Gong. The applicant provided general information about the suffering of Falun Gong practitioners in China, but made no specific claims of harm in regard to herself (CB 14-17).
This application was refused by a delegate of the first respondent on 13 July 2005 (CB 29).
On 10 August 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 37).
On 7 October 2005 the Tribunal wrote to the applicant inviting her to appear before the Tribunal to give evidence and present oral arguments at a hearing to be held on 4 November 2005. The applicant was advised that if she did not appear at the hearing, a decision could be made on her case without further notice (CB 41). No reply was received to the letter (CB 43) and the applicant did not attend the scheduled hearing (CB 44).
On 26 October 2006 the Tribunal wrote to the applicant advising that her case had been remitted by the Federal Magistrates Court of Australia for reconsideration (CB 45). On 30 October 2006 the Tribunal wrote to the applicant inviting her to appear before the Tribunal to give evidence and present oral arguments at a hearing to be held on 14 December 2006 (CB 47).
On 28 December 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 77-79) (highlighting added):
On the basis of the available information, the Tribunal is satisfied that the applicant is a citizen of China and that she is outside that country.
In consideration of the evidence as a whole and for reasons outlined below, the Tribunal finds that the applicant does not have a well-founded fear of persecution. In reaching its conclusions and findings of fact, the Tribunal has given regard to the following matters:
·    The applicant gave evidence that she distributed Falun Gong literature, attended meetings and attended study courses. The Tribunal asked the applicant what kind of Falun Gong literature she had distributed and she stated that she distributed Falun Gong discs, books and brochures. Asked about which books she had distributed, she stated that she distributed books which had been printed in Tianjin. Asked for specific details, she said that the books were about the benefits of Falun Gong and the “procedures of the exercises”. Asked about the names of the books, she stated “Falun Dafa”. Asked about the brochures she claimed to have distributed, she stated that they were about the benefits of Falun Gong, telling people how to improve one’s health. The Tribunal is of the opinion that the applicant’s responses in relation to questions relating to specific details about the books and the brochures, were vague and general, raising doubts about the veracity of the claims and the applicant’s credibility generally.
·    In the course of the hearing, the applicant claimed that after the banning of Falun Gong she handed out pamphlets secretly. She claimed that she placed pamphlets in supermarkets between food and other products. She said that when the customers came they were able to see the pamphlets. The Tribunal notes that in the applicant’s statement provided to the Tribunal, dated 28 November 2006, there is no mention of those claims. When this was put to her, the applicant stated that she did not know what to write. Similarly, the applicant claimed that her father had committed suicide when he was jailed during the Cultural Revolution, a claim that she ahs (sic) not made in the statement that she has provided to the Tribunal. When this was put to her, the applicant stated that she did not know what to write. The Tribunal is nor persuaded by her explanation. The Tribunal is of the opinion that those claims are significant and their lack of mention in a relatively comprehensive statement, suggests that the applicant was making claims up in the course of the hearing to bolster her refugee claims, raising doubts about the veracity of the claims and the applicant’s credibility generally.
·    Whilst the applicant knew about some factual matters relating to Falun Gong, she did not know the specific date of its banning; she did not know when Li Hongzhi founded Falun Gong; she did not know when Li Hongzhi stopped teaching Falun Gong; she did not know that Zhuan Falun is the main text of Falun Gong; she did not know when the Chinese authorities banned Zhuan Falun and other Falun Gong publications; she did not know when the Tianjian and the Beijing protests took place; she did not know the Falun Gong slogan. Despite not knowing the name of the main text, the applicant claimed to have read Zhuan Falun but when she was asked if she knew what Li Hongzhi explained in the beginning of the first chapter of Zhuan Falun, the applicant stated that she could not remember very well and that she just read the book for a few months and then did exercises at home. The Tribunal has considered the applicant’s explanations regarding her lack of knowledge about certain facts relating to Falun Gong, such as memory problems, that in her place the local organisation taught Falun Gong every day and that the books were still available when she practised in 1999. The Tribunal is of the opinion that overall the applicant’s knowledge of matters relating to Falun Gong raises serious doubts about the veracity of the claims and the applicant’s credibility generally.
·    The applicant has provided to the Tribunal a translated letter from her sister in China dated 9 October 2006. When asked if she knew exactly when the police visited her mother’s home as claimed in that letter, she gave a vague answer, namely that her sister told her that not long after her arrival in Australia the police visited her home in China; she did not know exactly when the police did so. The Tribunal is of the opinion that the lack of specific details raises doubts about the veracity of the claims and the applicant’s credibility generally. In consideration of the evidence as a whole and given those concerns, the Tribunal rejects that the letter from the sister contains truthful and or accurate information. Consequently, the Tribunal does not place weight on the letter.
·    The applicant has provided to the Tribunal a translated letter form (sic from) Xue Mei Yan dated 29 November 2006. The applicant confirmed that Xue Mei Yan is not a Falun Gong practitioner. She confirmed that she had told Xue Mei Yan about her practice of Falun Gong in China. The applicant confirmed that Xue Mei Yan had never seen the applicant practise Falun Gong in China. The applicant confirmed that the reason why Xue Mei Yan knows that the police in Tianjin know of the applicant’s practice of Falun Gong, is because the applicant had told her. On the applicant’s own evidence what Xue Mei Yan knows about the applicant alleged practice of Falun Gong is essentially what the applicant has told her. Given the credibility concerns about the applicant and in consideration of the evidence as a whole, the Tribunal rejects that the letter form Xue Mei Yan contains truthful and or accurate information. Consequently, the Tribunal does not place weight on the letter.
·    The Tribunal notes that the applicant was invited by the previous Member to attend a hearing and that the applicant did not respond to the hearing invitation or attend the hearing. In the course of the hearing on 14 December 2006, the Tribunal asked the applicant to explain why she did not attend that hearing and she stated because she was sick. The applicant did not provide any medical certificates, nor did she inform the previous Member of her alleged illness. The Tribunal is not persuaded by the applicant’s explanations. The Tribunal is of the view that the lack of response and/or attendance at the previous Tribunal hearing suggests a lack of commitment to pursuing her application, raising doubts about the veracity of the claims and the applicant’s credibility generally.
Whilst the Tribunal appreciates that some of the above matters may be perceived as being minor, when considered cumulatively, they are legitimate matters to be taken into consideration in raising serious doubts about the veracity of the applicant’s claims and her credibility generally. In light of those comments and in consideration of the evidence as a whole, the Tribunal reaches an adverse credibility finding. The Tribunal notes the witness’ comments that the applicant is an honest person. The Tribunal gives regard and appreciates those comments, however, the assessment of credibility is a matter for the Tribunal to determine and the Tribunal is satisfied that as discussed, there are legitimate concerns about the applicant’s credibility.
Given the adverse finding and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant has ever been a Falun Gong practitioner in China, or that she was involved in any Falun Gong activities in China, including but not limited to practising, studying Falun Gong, attending meetings and course, distributing pamphlets/literature, or that her workplace discovered her practice after her arrival in Australia, or that she was forced to leave China, or that she was able to leave China because the authorities were not aware of her involvement of Falun Gong, or that her father had committed suicide during the Cultural Revolution, or that the Chinese authorities would want her to bear her father’s crime, or that the police had been visiting her mother’s home in China, questioning the mother about the applicant, or that the police know about the applicant’s practice of Falun Gong, or that the family’s telephone lines in China are tapped, or that she would be persecuted by the Chinese authorities. In essence and for the stated reasons, the Tribunal rejects that the applicant has suffered any of the claimed harm or that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
There is evidence before the Tribunal that the applicant has been involved in various Falun Gong activities in Australia. The Tribunal is satisfied that the applicant has been involved in Falun Gong activities in Australia, which explains her knowledge (albeit limited) of some facts relating to Falun Gong. Given the adverse credibility finding and in consideration of the evidence as a whole, the Tribunal finds that the applicant has engaged in Falun Gong activities in Australia for the purpose of enhancing her application for a protection visa. Pursuant to s.91R(3)(b), the Tribunal disregards those activities.
In sum, the Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).

The application and amended application

In her application, the applicant set out two grounds as follows:
1)I attended the RRT hearing on 14 December 2006 to give evidence and present arguments. The Tribunal also received oral evidence from the witness. But I did not bring and show them when the Tribunal asked me about Falun Gong’s witness and evidence of China.
2)I am a Falun Gong practitioner and I practice Falun Gong every day, in order to improve my health. But the Tribunal did not ask me to practice Falun Gong at the RRT hearing. Then the Tribunal said “she does not accept that the applicant has ever been a Falun Gong practitioner or that the applicant was involved in any Falun Gong activities”. So I think the Tribunal’s decision is unfair.
In the amended application the applicant set out one ground as follows:
1)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that it failed to comply with s.424A of the Migration Act by failing to give to the Applicant particulars of certain information that the RRT considered would be the reason, or a part of the reason, for affirming the decision under review.
Particulars
Decision Record (CB 73.9-74.01,78.7)
S. 424A Migration Act
The RRT failed to provide the following information to the Applicant under s424A of the Migration Act, relating to the Applicant’s non-attendance at the first RRT hearing, and failed to invite the Applicant to comment on such information. At CB 78.7, in the RRT’s Finding and Reasons, it was stated:
“The Tribunal notes that the applicant was invited by the previous Member to attend a hearing and that the applicant did not respond to the hearing invitation or attend the hearing. In the course of the hearing on 14 December 2006, the Tribunal asked the applicant to explain why she did not attend that hearing and she stated because she was sick. The applicant did not provide any medical certificates, nor did she inform the previous Member of her alleged illness. The Tribunal is not persuaded by the applicant’s explanations. The Tribunal is of the view that the lack of response and/or attendance at the previous Tribunal hearing suggests a lack of commitment to pursuing her application, raising doubts about the veracity of the claims and the applicant’s credibility generally.”

Findings as to the grounds in the application

The decision of the Tribunal to affirm the decision of the delegate turned on the Tribunal making an adverse credibility finding about the applicant (CB 79.1). The Tribunal reached that finding after an extensive examination of the case put by the applicant (CB 77.4-79.2). The Court quotes from and adopts the following passages in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 per Tamberlin and RD Nicholson JJ at [64]:
The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “`has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court does not think that the probabilities are against the adverse finding on credibility or that the Tribunal failed to use or palpably misused its advantage, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.
The adverse credibility finding of fact was open to the Tribunal on the material before it and the Court will not interfere.
Ground 1 of the application is that the applicant “did not bring and show the Tribunal when it asked her about Falun Gong witnesses and evidence of China”. The Court adopts the following passage from a previous decision of the Tribunal:
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The claim that the applicant did not “bring and show” material in support of her claim is not a valid ground for review. Ground 1 is rejected.

Ground 2 complains that the Tribunal did not ask the applicant to practice Falun Gong at the hearing and decided that “she does not accept that the applicant has ever been a Falun Gong practitioner or that the applicant was involved in Falun Gong activities.” That is not what the Tribunal decided. It decided at CB 79.2 that:
the Tribunal does not accept that the applicant has ever been a Falun Gong practitioner in China, or that she was involved in any Falun Gong activities in China.
The Tribunal then found at CB 79.5 that:
There is evidence before the Tribunal that the applicant has been involved in various Falun Gong activities in Australia. The Tribunal is satisfied that the applicant has been involved in Falun Gong activities in Australia, which explains her knowledge (albeit limited) of some facts relating to Falun Gong. Given the adverse credibility finding and in consideration of the evidence as a whole, the Tribunal finds that the applicant has engaged in Falun Gong activities in Australia for the purpose of enhancing her application for a protection visa. Pursuant to s.91R(3)(b), the Tribunal disregards those activities.
Having made that finding it was not necessary for the Tribunal to observe the applicant practising Falun Gong. Ground 2 is rejected.

Findings as to the grounds in the amended application

This ground alleges a failure to comply with s.424A by not providing information to the applicant relating to her non-attendance before a previous Tribunal. The applicant complains about the following statement by the Tribunal (CB 78.8):
The Tribunal notes that the applicant was invited by the previous Member to attend a hearing and that the applicant did not respond to the hearing invitation or attend the hearing. In the course of the hearing on 14 December 2006, the Tribunal asked the applicant to explain why she did not attend that hearing and she stated because she was sick. The applicant did not provide any medical certificates, nor did she inform the previous Member of her alleged illness. The Tribunal is not persuaded by the applicant’s explanations. The Tribunal is of the view that the lack of response and/or attendance at the previous Tribunal hearing suggests a lack of commitment to pursuing her application, raising doubts about the veracity of the claims and the applicant’s credibility generally.
What that paragraphs sets out is:
·First sentence: An observation by the Tribunal that the applicant did not appear before the earlier Tribunal;
·Second sentence: An observation about her response to an invitation to explain why she did not attend the earlier hearing;
·Sentences three and four: The Tribunal’s conclusion that it was not persuaded by the explanation for her non-attendance. The Tribunal observed that “she did not provide any medical certificates, nor did she inform the previous member of her alleged illness.”
·Last sentence: The Tribunal’s conclusion that the non-attendance raised doubts about her commitment and credibility.
The conclusions and observations of the Tribunal in the passage quoted are not “information” for the purposes of s.424A: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29] at 54; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 at [54]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24(iii)].
The Court finds no breach of s.424A. This ground is rejected.
The first respondent raises a matter that was not pleaded by the applicant. The matter relates to how the Tribunal dealt with the explanation given by the applicant for why she had not mentioned in her earlier statement, two further complaints made at the hearing. The applicant said she did not mention the claims in the statement because “she did not know what to write” (CB 73.2). The first respondent submits that the conclusion as to fabrication resulting from the late addition of these claims is part of the reasoning of the Tribunal leading to its adverse finding as to credibility, and is therefore not subject to s.424A (WAGP (ante)). The Court accepts that submission and finds that the conclusion was not subject to s.424A.

Conclusion

The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Sarah James

Date: 4 June 2007