SZIOG v Minister for Immigration & Anor - [2006] FMCA 1450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1450

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – disbelieved by Tribunal – whether principle of caution when assessing credibility – no jurisdictional error found.

Migration Act 1958 (Cth), ss.36, 91R(3), 474(1), 476, 476(1)

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185, (2002) 191 ALR 663
SCAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182

Applicant:

SZIOG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG897 of 2006

Judgment of:

Smith FM

Hearing date:

19 September 2006

Delivered at:

Sydney

Delivered on:

19 September 2006

REPRESENTATION

Counsel for the Applicant:

Ms S Thode

Counsel for the First Respondent:

Ms E Palmer

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG897 of 2006

SZIOG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 27 March 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 January 2006 and handed down on 23 February 2006. The Tribunal affirmed a decision of a delegate made on 11 November 2005, refusing to grant a protection visa to the applicant.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claim should be believed, nor whether she qualifies for a protection visa.
The applicant arrived in Australia in July 2005, and a protection visa was filed by her on 4 August 2005 without any recorded involvement of a migration agent. In a typed statement attached to the application, the applicant said that she had become a Falun Gong member in 1997 after suffering depression. She referred to a Chinese government crackdown “since 1999” and said:
Members of Falun Gong have been regarded to be connected with overseas Falun Gong organisation which has been threatening the safety of China. I am a member because it can do well to my health; I was actually not connected with anyone of Falungong members overseas. As a result, I was found out to practice Falungong in China, and was a members of “Falun Gong” and was taken to police for investigation for 10 days in September 2003. I admitted I was a Falungong member, they then penalized me severely, and I lost freedom from then on. They supervised me and severely interfered with my normal life. I suffered persecution from the Chinese government. I left China for my safety; I can no longer stay in China. I can not enjoy basic human rights and normal life there.
No details of these events were provided, and no corroboration was given either to the Department or the Tribunal. The applicant did send to the Tribunal photographs showing her attendance at Falun Gong demonstrations in Australia, and two statements from witnesses who had met the applicant practising Falun Gong in Australia.
The applicant also attended a hearing, and was questioned by the Tribunal about her claims. A transcript of the hearing is not in evidence before me, and I have no reason not to accept the description given by the Tribunal in its statement of reasons.
Arising from its questioning, the Tribunal made a finding that: “the Tribunal found a number of aspects of the applicant’s oral evidence problematic”. The problems referred to by the Tribunal included the following:
·There was an inconsistency between the applicant’s claim to become a Falun Gong practitioner in 1997 “yet her oral evidence indicates a lack of basic knowledge about Falun Gong and significant events relating to Falun Gong which occurred in China”. The Tribunal referred to the applicant’s identification of only “the cultivation of what is called xinxing”, and not the performance of five sets of exercises when asked what it meant to be a Falun Gong practitioner. She also referred to the cultivation of xinxing involving loss, without also referring to “gain”. The Tribunal did not accept explanations given by the applicant when the Tribunal put these inadequacies in her responses to her.
·The Tribunal thought that the applicant’s claim that the crackdown in China only affected her province in September 1999 was inconsistent with independent evidence which “indicates that the Chinese government saw Falun Gong as a national problem and introduced nationwide measures against Falun Gong from July 1999”. The Tribunal did not identify the source of the information which it relied upon. The Tribunal also said that the applicant “could not recall a significant event occurring” in October 1999, when there were further proclamations by the Chinese government.
·The applicant had gave the Tribunal inconsistent statements as to when she practised Falun Gong in China in relation to the days of the week, and the Tribunal said that it would have expected that she could have accurately recalled the days of the week on which she practised.
·The Tribunal said that “on several occasions during the hearing the applicant seemed to avoid answering the Tribunal’s questions and gave evidence that was vague or confusing”. It referred to examples where it had to repeat questions, where tentative answers were given, and where there were inconsistencies. The Tribunal concluded:
It did not seem to the Tribunal that the applicant did not understand the straightforward questions she was asked. Rather she left the Tribunal with the strong impression that she was being either intentionally evasive or vague or was confused because she was not speaking spontaneously about actual personal experiences.
The Tribunal’s conclusion in relation to the applicant’s credibility was:
The above matters individually would not have led the Tribunal to make an adverse finding about the applicant’s credibility. However, cumulatively, they have led the Tribunal to conclude that the applicant was not a credible witness and that she invented the claim that she was a Falun Gong practitioner in China. Thus, the Tribunal does not accept that the applicant was a Falun Gong practitioner in China or that she experienced any of the problems in China that she claimed.
The Tribunal then addressed the evidence given as to the applicant’s practise of Falun Gong in Australia. It accepted that she had “practised Falun Gong to some extent and engaged in Falun Gong activities in Australia”. It said:
However, given her lack of credibility it is not satisfied that she has engaged in those activities other than for the sole purpose of strengthening her refugee claim. Thus, in accordance with s.91R(3) of the Act, it has disregarded that conduct in assessing her claims.
The Tribunal’s invocation of s.91R(3) is not a matter which has been challenged on behalf of the applicant, and I can see no error affecting it.
The applicant has been assisted by Mr Zipser of counsel, who has prepared an amended application and written submission, and by Ms Thode of counsel, who appeared today on her behalf.
The grounds set out in an amended application were:
1.The Tribunal found “that the applicant was not a credible witness and that she invented the claim that she was a Falun Gong practitioner in China”. Further, The Tribunal found that, given the applicant’s lack of credibility, s 91R(3) applied in relation to the applicant’s conduct in Australia. The Tribunal made a number of preliminary findings on which it based its ultimate adverse credibility finding of the applicant. There are errors in these preliminary findings as follows:
a)One reason the Tribunal made an adverse credibility finding against the applicant was because in response to the question “what it meant to be a Falun Gong practitioner’ (CB 90.1), the applicant did not mention that the practice of Falun Gong involves the performance of five sets of exercises (CB 95.9). The Tribunal has made an adverse credibility finding against the applicant because she did not give a specific answer to an ambiguous question. At minimum, such an approach is harsh. In combination with other matters in this amended application, there was jurisdictional error.
b)The Tribunal asked the applicant about the cultivation of xinxing. The applicant replied that “you had to give up things, luxuries” (CB 90.7). According to the country information, the cultivation of xinxing involves gains and losses (CB 96.3). The applicant’s answer, which only referred to losses, was not incorrect. However, because the applicant’s answer was not complete, the Tribunal found that “the applicant lacked a basic understanding of xinxing” (CB 96.2) and then made an adverse credibility finding against the applicant on this basis. Such a critical approach by the Tribunal is harsh. In combination with other matters in this amended application, there was jurisdictional error.
c)The Tribunal stated: “The applicant asserted that the crackdown and ban occurred in Beijing in July 1999 and only affected her province in September 1999. The independent evidence does not support this assertion but indicates that the Chinese government saw Falun Gong as a national problem and introduced nationwide measures against Falun Gong from July 1999.” The Tribunal made an adverse credibility finding against the applicant on this basis. However, first, there was no independent evidence summarised by the Tribunal (see CB 94‑95) which refers to “nationwide measures against Falun Gong” in July 1999. Second, China is a very large country. Unless there is clear country information on the point, common sense suggests that it would be difficult for the Chinese government to implement and enforce “nationwide measures” with effect in all provinces in July 1999. As an example, document CX 64757 (DFAT cable dated 20 May 2002) states: “Treatment of Falun Gong practitioners is likely to differ from province to province.” In the circumstances, there was jurisdictional error.
d)The Tribunal made an adverse credibility finding against the applicant because she made a mistake in relation to the two days of the week on which she practised Falun Gong 7 to 9 years earlier (see CB 96.9 to 97.2). At minimum, this is a harsh finding. Combined with the other matters in this amended application, it involves jurisdictional error.
e)The Tribunal made an adverse credibility finding against the applicant based on her demeanour. Combined with the other matters in this amended application, there was jurisdictional error on this point: see MIMIA v SGLB (2004) 207 ALR 12 at [73].
As is apparent, the criticism of some particular findings explaining an adverse credibility finding as being “harsh” is sought to be presented as jurisdictional error.
The reference to [73] of Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) is to the dissenting judgment of Kirby J, where his Honour made “a number of points” concerning the determination of refugee status. Many of his Honour’s comments might appear to be opinions as to good practice by decision‑makers rather than principles of law. They include the following in relation to the determination of credibility, which I take to be the part of Kirby J’s judgment which is invoked by the amended application:
[73]…
(7)Remembering the purpose of credibility: Credibility is often seen as the crucial issue in tribunal determinations of refugee status. The references in the Refugees Convention to the existence of “fear”, and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, “[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility”. There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The tribunal must be firmly told – if necessary by this court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so. (citations omitted)
In the written submission of Mr Zipser of counsel, further content is sought to be given to the criticisms of the Tribunal’s reasoning in relation to credibility by reference to the Full Court judgment in SAAK v Minister for Immigration & Multicultural Affairs(2002) 191 ALR 663 and (2002) 121 FCR 185 (“SAAK”).
In that case the Full Court was presented with a contention on behalf of a visa applicant that error could be found within the statutory grounds of judicial review jurisdiction previously conferred by s.476(1)(b), (c) or (e) of the Migration Act: “If the Tribunal fails to give itself the requisite direction as to the caution required in relation to evidence of this kind then it mistakes its tasks”. Their Honours said at [20]:
The argument raises two issues – first, did the Tribunal fail to exercise sufficient caution in assessing the credit of the appellant by, in particular, relying upon the inconsistency between the first interview and the later evidence of the appellant, and secondly, if so, did such a failure to provide a ground of review under s 476(1)(b),(c) or (e) of the Act?
Their Honours referred to recognition in “the authorities and by text writers” of “a need for the Tribunal to exercise care in relying on an inconsistency” when assessing credit. They referred to such passages without, in my opinion, identifying “a need to exercise care” as a jurisdictional requirement. It is clear that their Honours avoided making this identification, since at pages 192‑193 their Honours explained an evaluation of the decision which was before them: “the decision itself evidences the exercise of the requisite caution”. They said: “there is no basis for an inference that the Tribunal failed to approach the task on the wrong basis”.
I note that doubts about whether the contention which was presented by the appellant in SAAK raised any error of law or jurisdiction, were also suggested in a subsequent Full Court case in SCAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182 at [24].
SAAK does not, therefore, provide any authority for the contention of Mr Zipser:
There is a principle that decision makers assessing claims by applicants for refugee status must exercise caution in assessing the credit of the applicant. In the present case the Tribunal breached this principle. On this basis the Tribunal fell into jurisdictional error.
For myself, I have difficulty accepting that there is any additional and jurisdictional requirement on a decision‑maker to be satisfied in relation to refugee status under s.36 of the Migration Act according to a standard of care or caution which differs from the normal standards of fact‑finding in relation to credibility facing any other administrative decision‑maker.
It is possible that jurisdictional error might be established by faulty fact‑finding on credibility, if, for example, the Court could answer negatively the question identified in SGLB by Gummow and Hayne JJ at [38]: “whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”. However, the present grounds of review do not attempt such characterisation. Their criticism of the Tribunal’s reasoning on credibility as “harsh”, in my opinion, falls far short of this.
In any event, I have considered the Tribunal’s reasoning in the present decision, and am not satisfied that this Tribunal failed to appreciate the matters referred to by Kirby J, or by the authors quoted in SAAK.
It was its task to attempt to assess the credibility of the applicant’s history in circumstances where she presented minimal corroboration. The Tribunal’s finding is not a bald finding of credibility without reasons provided, and its reference to impressions formed from the manner and content of the applicant’s answers was, in my opinion, open to the Tribunal. There was not, in this case, any irrationality in its reasoning such as would show that it failed to exercise its jurisdiction according to law. Other decision‑makers might have arrived at a different conclusion, but that would not show jurisdictional error.
The applicant’s detailed factual criticisms of each of the elements in the Tribunal’s reasoning about credibility can be found in Mr Zipser’s written submission, and I do not think it necessary for me to set them out in this judgment. They all conclude with a claim that each element showed that the Tribunal “failed to exercise the necessary caution in assessing the applicant’s credibility”. However, I do not accept that submission in relation to any of the individual findings, nor in relation to the Tribunal’s ultimate finding based on its cumulative conclusions and impressions. I am not satisfied that the Tribunal’s adverse conclusion was not open to it on the evidence.
For the above reasons, I am not satisfied that this decision was affected by jurisdictional error. The Tribunal’s decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 October 2006