SZIDQ v Minister for Immigration

[2007] FMCA 971

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIDQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 971

MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal was biased – where findings on credibility were made by Tribunal – whether Tribunal had to have evidence to come to the view that it could not accept the applicant’s credibility – whether Tribunal complied with s.424A – whether inconsistencies in applicant’s evidence constituted information for the purposes of s.424A.

Migration Act1958 (Cth), s.424A

Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Re Minister for Immigration:  Ex parte Durairajasingham (2000) 168 ALR 407 NARD v Minister for Immigration [2004] FCAFC 27
WABY v Minister for Immigration [2002] FCA 1091
WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276
SZBYR v Minister for Immigration [2007] HCA 26

Applicant: SZIDQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 178 of 2006

Judgment of: Raphael FM

Hearing date: 14 June 2007

Date of last submission: 14 June 2007

Delivered at: Sydney

Delivered on: 14 June 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 178 of 2006

SZIDQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China.  She arrived in Australia on 18 December 2003.  On 14 January 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 15 January 2004 a delegate of the Minister refused to grant a protection visa and on 14 May 2004 the Refugee Review Tribunal affirmed the delegate’s decision.  On 27 September 2005 the Federal Magistrates Court quashed the Tribunal’s decision and ordered it to review the decision of the delegate.  That review was carried out following a hearing that the applicant attended.  On 30 November 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 20 December 2005. 

2. The applicant’s claim to be a person to whom Australia owed protection obligations arose out of her association with the Chinese church commonly known as The Shouters.  The applicant maintained that as a member of this church she had been participating in its activities in November 2003, when local police arrested people at the gathering, although she managed to escape.  On 7 December 2003 the local police arrived at a gathering again, but the applicant was able to leave.  She claimed that local police were despatched to her house, that she lost her job and thereafter departed China seeking protection in Australia. 

3. At the first Tribunal hearing the Tribunal brought up the investigations that it had carried out into the applicant’s travel arrangements including the use by her of a passport that apparently belonged to someone else. Prior to the second Tribunal hearing a letter was sent to the applicant pursuant to s.424A of the Migration Act1958 (Cth). That letter is found at [CB72]. It asks for comments on two matters. The first related to the use of another person’s passport and the second related to a statement in her application for a protection visa which appeared to be inconsistent with a statement made to the previous Tribunal concerning a previous visit to Australia. The applicant responded to the letter in writing in a letter dated 7 November 2005 [CB78]. The applicant also provided to the Tribunal statements from persons at a church at which she worships. The Tribunal obtained some information from one of those witnesses, Rev Ku.

4. In its decision the Tribunal noted that the applicant had travelled to Australia on a photo-substituted passport and that in her original visa application she had stated that she had travelled to Australia legally, i.e. using her own passport.  The Tribunal found that the applicant’s written claims in the application for a protection visa about her travel to Australia on the passport were inconsistent with her later claims.  The Tribunal accepted that persons seeking asylum sometimes travel on false passports but in the case of this applicant [CB99]:

   “. . .the Tribunal does not accept that the applicant continued with the deception in Australia, because she feared for her safety.  The Tribunal can not accept this reasoning as Australia is the country to which she fled in order to receive protection thus trusting implicitly in its ability to protect her.  As to the other reason for continuing the deception when in Australia because she feared for the passport holder’s safety (response to the s.424A letter),  at the hearing the applicant stated that the rightful passport holder was not her friend.  She stated at the hearing that she actually feared for another person’s safety, the friend who provided the passport.  The Tribunal asked whether the applicant feared for the rightful passport holder’s safety or her friend’s safety.  The applicant then stated that her friend might know the passport holder, so she was concerned about both the friend’s safety and the rightful passport holder’s safety.  The Tribunal does not accept this explanation and finds it to be both internally inconsistent at the hearing and also inconsistent with the written answer to the s.424A response.”

5. The Tribunal goes on in its decision to consider other inconsistencies relating to the passport and the applicant’s travel to Australia, including the statement made to the original Tribunal evidenced in the passport that she had travelled to Australia prior to the arrival, following which she made the application for asylum [CB100]:

   “The Tribunal put the second s.424A issue to the applicant at hearing.  She stated that at the hearing before the firstly constituted Tribunal she was fearful of speaking out [about] the real matters about herself as she did not know Australia very well.  For the same reasons as above relating to having implicit trust in Australia’s power to protect her the Tribunal does not accept this … The Tribunal finds that the applicant’s answers as to questions about her travel to Australia prior to December 2003, have been inconsistent.  The above findings support the Tribunal’s previous finding that the applicant is not a credible witness.”

6. The Tribunal then considered the applicant’s claimed belief in Christianity and her association with the Shouters movement. 

   
   

   It considered the questions which it had asked her about these matters and concluded that it was not convinced of her association with the Shouters movement [CB101]:

   “Having regard to the applicant’s lack of knowledge on the Shouter church and the previous finding that the applicant is not a credible witness, the Tribunal finds that the applicant was not a member of the Shouters Church in the PRC.”

   Because the Tribunal found that the applicant was not a member of the Shouters Church it followed that the claims of arrest and persecution could not be accepted.  The Tribunal considered the evidence of the witnesses brought by the applicant but was satisfied that they were unable to provide evidence to support her claims regarding the PRC other than merely reporting what she had told them.  The Tribunal considered the applicant’s attendance at the Padstow Church but found that this was done for the sole purpose of creating a sur place claim.  The Tribunal did not accept the applicant’s statement that her religion was her life.

7. In her application to this Court the applicant argued that there was a breach of s.424A in relation to the Tribunal’s conduct of the review. Today, she gave three grounds for seeking a constitutional writ from this Court. The first was that the Tribunal was biased. I accept the submission made orally by Mr Smith that there is no material to suggest that the Tribunal had made up its mind and could or would not change its mind regardless of any evidence given by the applicant. The Tribunal did consider all the evidence including that given at the former hearing. The fact that a Tribunal does not believe an applicant does not establish any prejudgment or reasonable apprehension thereof. The applicant provided no particulars whatsoever of the alleged bias other than the Tribunal’s failure to accept her story. I am unable to provide her with review on this basis.

8. The second matter raised by the applicant was that there was no evidence on which the Tribunal could come to the findings which it did.  It is not necessary for a Tribunal to have evidence to come to the view that it does not accept the credibility of the story put by an applicant.  This is something that rarely comes out of evidence but comes about instead as a result of the responses to questions put by the Tribunal to the applicant and an assessment of those responses, and the applicant’s statements, against known facts provided by independent country information or found in the applicant’s statements.

9. What the Tribunal has to do in relation to credibility is provide a rational basis for not accepting the applicant’s claims: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 552 and 559. Provided that is done, findings on credibility are the function of the primary decision-maker par excellence: Re Minister for Immigration:  Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J. Where findings that a Tribunal makes with respect to the appellant’s credibility are open to it on the basis of inconsistencies that it noted in the appellant’s evidence and independent country information, no error is demonstrated: NARD v Minister for Immigration [2004] FCAFC 27 at [9]. Insofar as the applicant was indicating that the Tribunal did not give her an opportunity to make further submissions following it giving an indication of its reasonings, this has been dealt with by Tamberlin J in WABY v Minister for Immigration [2002] FCA 1091 where his Honour said at [17]:

   “It is well established that in reasoning to its conclusion there is no obligation on the RRT to accept submissions as credible and it does not have to set out or provide to an applicant prior to the making of its decision its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions in relation to a proposed line of reasoning.”

   approved by the Full Court in WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276.

10. The third complaint made by the applicant was that the Tribunal failed to comply with s.424A. I am not entirely sure what information the applicant was referring to when she made this submission. I believe that she was referring to the claims of inconsistencies and I suspect that what she was really seeking was the type of provision of reasoning processes discussed by Tamberlin J in the case extracted above. To the extent that she was suggesting that the inconsistencies constituted information it would seem that this might no longer be so strong a ground for granting a constitutional writ as had previously been thought. In SZBYR v Minister for Immigration [2007] HCA 26 the High Court says:

    “[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein it is difficult to see how such belief could be characterised as constituting “information” within the meaning of para (a) in s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information.” Finn and Stone JJ correctly observed in VAF v Minister for Immigration that the word “information”:

    “does not encompass a Tribunal’s subjective appraisals, thought processes or determinations …  nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”

11. In response to the arguments put by Mr Smith the applicant complained that the Tribunal had made a finding that she was not a Christian because of inconsistencies in her evidence.  That is the task of the Tribunal.  For this Court to interfere in those findings would be asking the Court to indulge in impermissible merits review. 

12. I am satisfied that the second Tribunal did not fall into jurisdictional error in the way in which it came to its decision.  The application must therefore fail.  I dismiss it.  I order that the applicant pay the respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  14 June 2007