SZIQX v Minister for Immigration - [2007] FMCA 1077

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1077

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision is affected by jurisdictional error – whether the Refugee Review Tribunal had grounds for making adverse general credibility findings – whether the Refugee Review Tribunal’s general credibility concerns were substantiated by discernible reasons – whether Refugee Review Tribunal set out findings on material questions of fact – whether the Refugee Review Tribunal considered all relevant claims.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679
W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538
Thevendram vMinister for Immigration and Multicultural Affairs [2000] FCA 1910
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZIQX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG152 of 2007

Judgment of:

Emmett FM

Hearing date:

3 July 2007

Date of last submission:

3 July 2007

Delivered at:

Sydney

Delivered on:

11 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr I. G Archibald

Solicitors for the Applicant:

Ms M. Byers, Michaela Byers Solicitor

Counsel for the Respondent:

Mr M. Izzo

Solicitors for the Respondent:

Ms A. Nesbitt, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG152 of 2007

SZIQX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 November 2006 and handed down on

19 December 2006.
The applicant was born on 12 December 1962 and claims to be from the People’s Republic of China (“the PRC”) and of Han ethnicity (“the Applicant”).
On 29 September 2004, the Applicant arrived in Australia, having legally departed from Changsha Airport on a passport issued in his own name and a 470 visa issued on 10 September 2004.
On 9 September 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by PRC authorities for his claimed involvement in the Pro-Democracy Movement in 1989; leading students “on the streets for demonstrations in support of the students of Beijing City”; and, distributing leaflets and making public speeches “to advocate democracy, human rights and freedom”. The Applicant claimed he had been persecuted after the Tiananmen Square Massacre in 1989 and was incapable of finding gainful employment due to his adverse personal government file.
On 23 September 2005, a delegate of the First Respondent refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 20 October 2005, the Applicant lodged an application for review of the delegate’s decision by the Tribunal. On 23 March 2006, a differently constituted Refugee Review Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 15 August 2006, by consent, the application for review of the delegate’s decision was remitted to the Refugee Review Tribunal for determination according to law.
On 28 November 2006, the Tribunal affirmed the decision under review.
On 16 January 2007, the Applicant filed the application to this Court seeking judicial review of the Tribunal’s decision dated 28 November 2006.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 5 September 2006, the Tribunal invited the Applicant to come to a hearing on 11 October 2006. The Applicant provided further material to the Tribunal for the purposes of its review and on 11 October 2006, the Applicant appeared before the Tribunal and gave oral evidence at the hearing.
The claims made by the Applicant to the Tribunal and the Tribunal’s decision are accurately summarised in the written submissions of counsel for the First Respondent as follows:
“3.In a statement accompanying his application to the department, the applicant claimed to have led students during the 1989 Tiananmen Square massacre and to have suffered discrimination in employment thereafter. [CB 265.3-5]
4.The applicant also claimed to have come to Australia and studied at ANU from September 2004 to September 2005. He claimed that, while at ANU, he joined a Christian group. [CB 265.6; 266.5]
5.The applicant also claimed that, following his graduation from ANU, he moved to Sydney and joined a Falungong Group in Parramatta. [CB 266.8] He claimed to have participated in protest activities and perform Falun Gong exercises. [CB 266.10; 271.2] He claimed that, as a Falungong practitioner, he would be persecuted in China. [CB 267.1, 267.4, 267.6]
6.The applicant also claimed that in April 2006 he was refused permission to renew his passport by the Chinese consulate because he told the officer that he had applied for a “Falungong refugee visa”. [CB 271.6]
7.The Tribunal concluded that the applicant would not be denied employment in China, or subjected to harm in any other form, because of his involvement in the 1989 protests. [CB 277.2] In this regard, it referred to the applicant’s evidence that he was ultimately able to build a highly successful career to which, if he had returned to China in July 2005 or soon thereafter, he could have returned. It also referred to evidence that the applicant had qualifications and experience sufficient to enable him to find an even better private sector job than the one he had left. [CB 276.6-8]
8.The Tribunal also found that the applicant did not have a well-founded fear of persecution in China for the reason of religion. It accepted he may have had some contact with a Christian group at ANU, but noted his evidence to the Tribunal was that this was largely out of a wish to learn English, and that his link with the group was fleeting. He did not become a Christian and had expressed no wish to convert to Christianity. Nor did he express a fear of harm in China as a result of his involvement with Christians at ANU. [CB 277.3-4]
9.As to the applicant’s claim to have become a Falungong practitioner since finishing his studies in Australia, the Tribunal accepted that the applicant had participated in protest activities and in Falungong practice sessions. However, it was not satisfied that he had engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee, within s 91R(3) of the Migration Act 1958. It concluded that it must disregard that conduct when considering whether the applicant was a refugee. [CB 277.5-6; 278.7]
10.The Tribunal noted that much of the applicant’s behaviour suggested that in September 2005, when he applied for a protection visa, he was looking for a means through which he could remain in Australia. The Tribunal noted that when he made his protection visa application the applicant had not yet taken up Falungong practice, notwithstanding that he had expressed an interest in it as early as January 2005. It noted that he did not commence Falungong practice and protest activities until November 2005, some two months after his application was refused by the delegate. [CB 277.7-278.2] The Tribunal did not accept the applicant’s various explanations for his long delay in taking up Falungong practice. [CB 278.4-6]
11.The Tribunal referred to an “SOS” letter from the applicant’s aunt in Sydney. The letter attested to the fact that after graduating from the ANU the applicant had often visited his aunt and told her that he was benefiting from Falungong practice. [CB 272.4-5] The Tribunal considered that the letter was not reliable as a source of evidence, since its contents were not consistent with the applicant’s claim that he did not take up Falungong practice until after he moved into his aunt’s house – in other words, he would not have been visiting her at the time. [CB 278.3]
12.Finally, the Tribunal noted the applicant’s claim to have told a consular officer that he had applied for a “Falungong protection visa”. It stated that in the light of its concerns about the applicant’s general credibility, it was not satisfied he did give this information to consular staff. [CB 278.9]
13.The Tribunal concluded that, as the applicant did not have a well-founded fear of persecution when he left China; as he did not have one now because of his brief involvement with a Christian group in Australia; and as it must disregard the applicant’s Falungong-related activities in Australia, the applicant did not have a well-founded fear of Convention-related persecution in China. [CB 278.10]”

The proceeding before this Court

The Applicant was represented before this Court by Mr Archibald, of counsel. By consent, leave was granted to the Applicant to file in Court and rely upon the following ground in a further amended application as follows:
“The Tribunal erred in its finding (“the finding”) that in the light of its concerns as to the applicant’s general credibility, it was not satisfied that the applicant did advise the PRC Consulate that he had applied for a Falun Gong Protection Visa or a Falun Gong Bridging Visa
PARTICULARS
a.The evidence as to the applicant advising the Chinese Consulate that he had applied for a Falun Gong Protection Visa or a Falun Gong Bridging Visa raised a case as to a sur place claim by the applicant for a well founded fear of persecution if the applicant were to be returned to his country of origin.
b.The Tribunal was required to consider and determine the substantive issues raised by this case which it failed to do.
c.Concerns as to general credibility cannot provide a basis for a failure to consider an integer of the applicant’s claim.
d. The finding is unreasonable.
e.Failure to set out findings on material questions of fact.”
Counsel for the Applicant confirmed that it was only the ground identified in the further amended application upon which the Applicant relied and all other grounds were abandoned or were otherwise encapsulated in the ground in the further amended application.
Counsel for the Applicant also referred the Court to SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 in support of his contention that the Tribunal had failed to deal with a sur place claim made by the Applicant, namely, that by reason of having sought a “Falun Gong Protection Visa or Falun Gong Bridging Visa” at the PRC Consulate in the ACT, the authorities in the PRC would become aware of his application and for that reason he was at risk of persecution by reason of an imputed political opinion were he to return to the PRC.
The Tribunal referred in the Findings and Reasons section of its decision to the Applicant’s claim of having approached Consular staff as follows:
“I note his claim that he recently told a staff member at the PRC Consulate that he had applied for a “Falungong protection visa” or “Falungong bridging visa”. In light of my concerns about his general credibility, I am not satisfied that he did give this information to Consular staff.” [emphasis added]
Counsel for the Applicant submitted that the Tribunal failed to consider this claim in that it was not open to the Tribunal simply to reject the claim on general credibility concerns without identifying what those credibility issues were.
Counsel for the Applicant submitted that merely mentioning the claim and then rejecting it on the grounds of “concerns about his general credibility” amounts to a failure on the part of the Tribunal to make a finding on a material question of fact. Counsel for the Applicant submits that the Tribunal’s rejection of that claim on the basis of general concerns about the Applicant’s credibility has no underlying factual premise.
Counsel for the Applicant referred the Court to W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 (“W148/00A”) particularly at [66] – [67] where the Full Court stated the following:
“66The determination as to credibility engaged in by the tribunal essentially involved an evaluation and conclusion as to whether one group of considerations outweighed another group. This is a question of fact and degree. …
67Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant’s account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.”
Counsel for the Applicant submitted that a finding that amounts to no more than an assertion that a claim is not credible may “cloak the failure of the decision maker to address and resolve a material question of fact and thereby fail to take into account a relevant consideration” (W148/00A at [37]).
Counsel for the Applicant also referred the Court to W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538 (“W168/00A”), as support for the proposition that adverse decisions on credibility by a Tribunal should be restricted to the most obvious cases if the risk of injustice to Applicants is to be avoided (at [12]). To do otherwise is to “allow for the risk that decision makers may be tempted to seek to insulate their decisions from judicial review by disposing of all issues by adverse findings on credibility” (W168/00A at [12]; Thevendram vMinister for Immigration and Multicultural Affairs [2000] FCA 1910 at [26]).
Counsel for the First Respondent, Mr Izzo, submitted that when the decision of the Tribunal is read fairly as a whole it is clear that the Tribunal considered and rejected the Applicant’s oral evidence of having told an officer at the passport office of the Consult General to the PRC in the Australian Capital Territory that he was seeking a “Falun Gong Protection Visa or Falun Gong Bridging Visa”. That evidence was critical to the Applicant’s sur place claim.
In support of that contention counsel for the First Respondent referred the Court to the following passages in the Tribunal’s decision:
“I noted that he had claimed that in April 2006 he was refused permission to renew his passport by the Chinese Consulate because he told the officer that he had applied for a “Falungong Refugee Visa”. I told him that the name of the visa was “protection visa” so it was difficult to believe that he would have unnecessarily volunteered the information that he had made an application based on his Falungong activities. He responded that it was because he had not known how to say it. He thought if he lied and they found out he would be in trouble. I put to him that saying “protection visa” would have been the truth. He responded that he had not thought much. He had thought that they were just verifying him. I put to him that he was an intelligent person and that it was difficult to believe he would not have thought of the risk entailed in revealing that he had applied for a visa based on Falungong practice. He responded that he had handed out the Nine Commentaries about the Communist Party many times so they must have known him, so he decided to just say it.
He went on to say that they had not given him a letter confirming their refusal to renew his passport. He said that he had filled in a form that they gave back to him. At this point he submitted a form issued by the PRC Consulate showing that he had ticked a box next to the words bridging visa. He said that it was at this point that they had asked him what visa he was holding and he had said it was a Falungong bridging visa. I put to him that it was only a bridging visa that he held so there was no need to reveal fresh information. He responded that he had thought that they were just verifying that he was a Falungong practitioner. He did not want to show that he was scared. I asked him what, therefore, the officer had said to him at that point. [The Applicant] claimed that the officer had said “we don’t renew passports with bridging visas”. [The Applicant] had asked him why they would not renew the passport and they had just stopped looking at him and had said nothing. There was no further discussion.
I told him that I assumed that the PRC authorities were well aware that some people were planning to be Falungong practitioners in order to be recognised as refugees in Australia and that among them there was some who were not in fact interested in Falungong at all and just wanted the visa. I inferred therefore that the Consulate would have to know something more about him than this. He responded that he did not know how other Falungong practitioners had answered under those circumstances. He had made no enquiries about this. It was difficult for them to guess what they were thinking. I asked if they had written anything down. He said he was not sure maybe they had made some notes. They had looked in a drawer for the file and on their computer. While checking his passport they had keyed in something on the computer but he was not sure what. [The Applicant] showed the Tribunal his passport, which showed that it had not been renewed.”
Counsel for the First Respondent contended that the following matters referred to by the Tribunal in those passages made clear the Tribunal’s concern about the Applicant’s credibility in making those claims:
i)When the Tribunal put to the Applicant that the name of the visa was “protection visa” and it was difficult to believe that the Applicant would have unnecessarily volunteered to the passport officer that his application was based on his Falun Gong activities;
ii)When the Tribunal put to the Applicant that he was an intelligent person and that it was difficult to believe that he would not have thought of the risk entailed in revealing he had applied for a visa based on Falun Gong practices;
iii)When the Tribunal put to the Applicant that it assumed that the PRC authorities were well aware that some people were planning to be Falun Gong practitioners in order to be recognised as refugees in Australia and that among them there were some who were not in fact interested in Falun Gong at all and just wanted the visa. The tribunal noted that it inferred that the Consulate would need to know something more about the Applicant other than the mere fact that he had made an application for him to be at risk.

Counsel for the First Respondent referred the Court to the principle that when one has regard to the Tribunal’s decision as a whole, one has regard to the fact that the reasons of an administrative decision maker are meant to inform and not be “scrutinised by over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 (“Wu Shan Liang”) at 272).
Counsel for the First Respondent also referred the Court to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] where McHugh J stated that a finding on credibility is a function of the primary decision maker par excellence. The relevant passage is as follows:
“In addition, the prosecutor alleges that the tribunal breached s 430(1) 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.”
In finding that the Applicant took up Falun Gong to enhance his protection visa application which had been refused by the Delegate on other grounds, the Tribunal referred again to exchanges it had with the Applicant about concerns the Tribunal raised at the hearing relating to the Applicant’s long delay in taking up Falun Gong group practice.
Further, the Tribunal noted the Applicant’s response when it asked why he had chosen to take up Falun Gong practice a week before the first Refugee Review Tribunal hearing. The Tribunal noted that the Applicant responded “merely that after graduating he had had time to take it up but it had taken him time to get used to life in Sydney.”
Counsel for the Applicant submitted that the Tribunal accepted that the Applicant had participated in Falun Gong activities and accepted the evidence of witnesses on his behalf about their belief of his sincerity as a Falun Gong practitioner.
However, the Tribunal noted that the Applicant delayed becoming involved in Falun Gong practice and in protest activities until November 2005, being some two months after his application was refused by the Delegate. The Tribunal also noted inconsistencies in the evidence of the Applicant’s aunt that he visited her in Sydney and told her that he was benefiting from Falun Gong practice. In contrast, the Tribunal noted that the Applicant stated that he did not take up Falun Gong practice until after he moved into the aunt’s house in Sydney.
The Tribunal then considered the Applicant’s claims based on his sur place claim of his conspicuous participation in Falun Gong activities and protests in which he sat outside the Consulate and therefore would have been known to members of the Consular staff.
The Tribunal was prepared to accept that the Applicant participated in Falun Gong practice sessions and in various protest activities designed to publicise the ill-treatment of Falun Gong practitioners in the PRC. However, it was not satisfied that the Applicant engaged in this conduct otherwise for the purpose of strengthening his claim to be a refugee. The Tribunal therefore concluded that it must disregard the Applicant’s conduct in relation to the sur place claim in considering whether he was a refugee.
A fair reading of the decision, and having regard to the conclusions of the Tribunal, makes it clear that the Tribunal was aware that the Applicant was claiming that, by reason of having told the staff member at the PRC Consulate that he had applied for a “Falun Gong Protection Visa or Falun Gong Bridging Visa” in the context of his protest outside the PRC Consulate, he had a well-founded fear of persecution by reason of an imputed political opinion by the PRC authorities, were he to return to the PRC. However, the Tribunal rejected the Applicant’s claim that he gave that information to Consular staff.
Counsel for the First Respondent submits that when one reads the Tribunal’s record in the Claims and Evidence section of its decision, where it records its exploration with the Applicant of his claim regarding his alleged assertions to Consular staff; the concerns it raised with the Applicant; and, the responses made by the Applicant (see paragraphs 27 and 28 above in these Reasons) and then reads the Tribunal’s findings in relation to that claim, as recorded in the Tribunal’s Findings and Reasons section of its decision, the reasons for the Tribunal’s concerns about the Applicant’s general credibility are clear.
A fair reading of the Tribunal’s decision makes it clear that its decision is peppered with concerns about the Applicant’s evidence given at the hearing. Whether these concerns are characterised as being about “general credibility”, implausibility or lack of satisfaction matters not so long as it is clear that the Tribunal has understood the claims made by the Applicant, considered those claims and made findings on material questions of fact. The Tribunal did so.
The Tribunal’s lack of satisfaction about this claim made by the Applicant is because of its concerns about his general credibility. A fair reading of the Tribunal’s decision makes clear what those concerns about the Applicant’s general credibility are. Furthermore, those concerns are borne out in the Tribunal’s ultimate finding that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
Accordingly the conclusion made by the Tribunal that it was not satisfied that the Applicant gave that information to the Consulate staff was a finding that was open to the Tribunal on the evidence and material before it and for which it gave reasons.
For the reasons referred to above in these Reasons I am not persuaded of the Applicant’s submission that the adverse finding made by the Tribunal about the Applicant’s credibility, upon which it rejected the Applicant’s claim, is so opaque as not to allow a reader of the decision to know what the claims and facts made were that led the Tribunal to reject the Applicant’s claim of having provided the information to the Consular staff.
Counsel for the Applicant submitted that a finding of “to concerns about general credibility” was more in the nature of perceived implausibility, and perceived implausibility is not a basis for a rejection of credibility.
However, as stated above in these Reasons, the reasons for the Tribunal’s lack of satisfaction are apparent from a fair reading of the decision. A fair reading of the decision makes it clear that in using the phrase, “concerns about his general credibility”, the Tribunal was referring to those matters that it has mentioned in its decision that caused it concern and which are readily discernible from its decision. The finding by the Tribunal that those matters caused it concern is a finding of fact that was open to the Tribunal on the evidence and material before it.
A fair reading of the decision makes it clear that the Tribunal simply was unable to reach the level of satisfaction required to satisfy it that the Applicant met the statutory criteria required for being a refugee. The Tribunal appears to have done no more than summarise those concerns as reflecting on the Applicant’s credibility. The Tribunal has perhaps used a looseness of language in characterising its concerns in that way. However, a looseness of language and an inadequacy in the way in which reasons may have been expressed is not sufficient in the reasons of an administrative decision maker to demonstrate that the Tribunal’s decision is affected by an error going to its jurisdiction (Wu Shan Liang).

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed 16 January 2007, is dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 10 July 2007