SZIVM v Minister for Immigration
[2007] FMCA 1328
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1328 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – claim by applicant that his second child was a “black child” made at the end of the Tribunal hearing – confusion and misunderstanding of the claim – decision independently supported by the adverse credibility finding on the claim of religious persecution – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| M164/2002 v Minister for Immigration [2006] FCAFC 16 Minister for Immigration v SGLB (2004) 207 ALR 12 Re Minister for Immigration, Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZBYR v Minister for Immigration [2007] HCA 26 SZJCL v Minister for Immigration [2007] FMCA 839 WAGJ v Minister for Immigration [2002] FCAFC 277 |
| Applicant: | SZIVM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1099 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 8 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with r. 44.15 and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1099 of 2007
| SZIVM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 16 January 2007 and was handed down on 27 February 2007. The Tribunal affirmed a decision of a delegate of the minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. The background to the applicant's claims and the Tribunal decision is set out in the minister's written submissions filed on 3 August 2007. I adopt as background for the purposes of this judgment, with necessary amendments, paras. 2 through to 14 of those written submissions:
The applicant is a 46 year old citizen of China.[1] He arrived in Australia on 26 August 2005.[2] He submitted an application for a protection visa on or about 6 October 2005.[3] He claimed to fear persecution on religious grounds on the basis of his affiliation with an underground Christian group in China known as Hu Han Pai.[4]
[1] court book (CB) at 13-14.
[2] CB at 15.
[3] CB at 1-31.
[4] CB at 27.
In the statement attached to his protection visa application the applicant claimed that he was introduced to Hu Han Pai in 1995. He said that he had joined study groups which met on weekends and sometimes joined other meetings. He claimed that after the group was reported in 1996 they had to stop their religious practice. He claimed for a long period after that they did not practice because the local government kept monitoring them. That monitoring was said to have strengthened in 1999 and 2000 after “the Falun Gong event”. The applicant said that in 2004 he reorganised a small group consisting of four people from his company. He claimed that the police found out about this group and came to his company and two of them were detained. He and another member were not in the office at that time and ran away after hearing the news.[5]
[5] CB at 27.
After the applicant’s application for protection visa was refused on 23 November 2005, on 23 December 2005 he sought review by the Tribunal.[6]
[6] CB at 48-52.
It seems that a hearing was scheduled to be held before the Tribunal as originally constituted on 15 February 2006.[7] On 13 February 2006 the Tribunal received a facsimile (erroneously dated 13 March 2006) in which the applicant stated that the passport which he held did not state his true name, and that his true name and date of birth were as stated in that facsimile.[8]
[7] CB at 55.
[8] CB at 58.
The Tribunal as originally constituted wrote a letter to the applicant on 21 February 2006 pursuant to s.424A.[9] The applicant responded by facsimile dated and sent on 17 March 2006.[10]
The Tribunal’s original decision signed on 17 March 2006 and handed down on 6 April 2006 was quashed by order of this Court made on 21 September 2006.[11]
Following the remittal of the matter to the Tribunal for reconsideration a further hearing was held on 22 December 2006.[12]
The Tribunal’s decision, handed down on 27 February 2007, affirmed the decision not to grant a protection visa.[13]
The Tribunal’s decision
The Tribunal did not accept that the applicant was a credible witness. It did not accept that the applicant’s true identity was in fact different to the identity disclosed in his passport. In the Tribunal’s view if the applicant’s identity was in fact different from that stated in his passport he would have mentioned it earlier, at least in his application for review to the Tribunal, which was made in the name in his passport. Based on the applicant’s oral evidence before the Tribunal, and his facsimile to the Tribunal received on 13 February 2006, the Tribunal found that the applicant first claimed that he had a different identity only two days before his prior Tribunal hearing.[14]
The Tribunal did not accept that the applicant was ever a member of the underground group Hu Han Pai, the Shouters group, either in Australia or in China, and did not accept that the authorities in China believed that he was involved with that group or was a leader of that group whilst in China. When the Tribunal asked him what he knew about that group he had told the Tribunal “not much”. He also did not go to meetings of the group in Australia.[15]
If followed from its earlier conclusions that the Tribunal did not accept that the authorities in China were looking for the applicant for the reasons that he had claimed, nor that he was hiding in China from authorities at any time for the reasons he had claimed.[16]
The Tribunal did not accept that the applicant was a candidate for an election as a village leader in 2000, and that the incumbent village leader had told authorities that the applicant was a Shouter leader when the applicant obtained more votes in the election. The Tribunal considered that that claim was a recent invention by the applicant to assist his claim for protection.[17]
The Tribunal noted at the end of the hearing that the applicant had told the Tribunal that he had a “second” daughter who could not be registered in China and could not get an education. To the extent that the applicant was claiming that he and his family were persecuted for that reason the Tribunal found that that claim was a recent invention, and if it had been genuine, he would have made it before the Tribunal hearing. There was no plausible evidence before the Tribunal that the applicant had a “second” daughter as he had claimed.[18]
[9] CB at 77-78.
[10] CB at 81.
[11] CB at 84 and 89.
[12] CB at 111-113.
[13] CB at 121-122.
[14] CB at 130.5-130.9.
[15] CB at 130.10-131.2.
[16] CB at 131.3.
[17] CB at 131.5.
[18] CB at 131.8.
These proceedings began with a show cause application filed on 3 April 2007. The applicant asserts actual notification of the Tribunal decision on 15 March 2007. On that basis, I find that the application was filed within time.
There are two grounds in the application which are reproduced in paragraph 15 of the Minister's submissions. I adopt with necessary amendments that paragraph for convenience in this judgment:
The applicant commenced these proceedings by way of application filed on 3 April 2007. That application contains two grounds of review with particulars in the following terms:
1. The RRT acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
Particulars:
The current Tribunal repeated the error that the previous Tribunal made. The current Tribunal made an incorrect conclusion about the applicant’s identity. The applicant claimed to be … and but entered Australia using a fraudulent passport showing the name of …. The Tribunal failed to accept the various documents the applicant has provided to support his true identity. The Tribunal failed to undertake further examination to verify the applicant’s true identity despite the applicant has asked the Tribunal to do so.
2. The RRT failed to afford the applicant procedural fairness. The current Tribunal failed to give the applicant information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and the Tribunal failed to invite the applicant to comment on it. By failing to do so the Tribunal breached the Section 424A(1) of the Migration Act 1958.
Particulars:
The current Tribunal rejected the applicant’s claims about his “second” daughter who could not be registered in China. The Tribunal rejected this claims [sic] because the Tribunal thought it was a recent invention by the applicant to assist his application. The Tribunal failed to invite the application to comment why he had not made such claims earlier.
I conducted a show cause hearing in this matter on 8 June 2007 and I made the order reproduced in para.16 of the Minister's submissions:
Pursuant to Rule 44.12(1)(b) of the Federal Magistrates Court Rules, the Minister is ordered to show cause why relief should not be granted in relation to ground 1 of the application and in relation to the particular to ground 2 of the application by reference to the Tribunal’s statement at page 131 of the Court Book that the applicant had implausibly claimed that the had a second daughter at the end of the second hearing. The Court notes that the Minister has undertaken to prepare a transcript of the second Tribunal hearing.
In accordance with my order, the Minister produced a transcript of the Tribunal hearing, which is annexed to the affidavit of Stephanie Marie Bragg made on 2 August 2007 and filed the following day. I received that affidavit and the transcript. I also received as evidence the court book filed on 16 May 2007. I received as a submission the applicant's affidavit filed on 3 April 2007.
There is no substance to the grounds of review as stated in the application. The Tribunal decision was not capricious or arbitrary: it was a reasoned one. The Tribunal rejected the applicant's claim of having a different identity to that previously relied upon before the Tribunal hearing because of the lateness of that claim. The Tribunal's adverse credibility finding was open to it on material before it. Further, I agree with and adopt for the purposes of this judgment paras.18 through to 25 of the Minister's written submissions:
The applicant alleges that the Tribunal acted capriciously, arbitrarily and formed its assessment or satisfaction based on illogical reasoning. Particulars of this ground allege that the Tribunal made an incorrect conclusion about the applicant’s identity, and failed to accept various documents that the applicant had provided to support his claimed true identity. The Tribunal failed to undertake further examination to verify the applicant’s true identity despite the applicant asking the Tribunal to do so.
There was nothing capricious, arbitrary or illogical about the way in which the Tribunal reached its conclusion about the applicant’s identity.
It is true that the Tribunal did not accept the documents the applicant had provided in support of his claim to have a different identity to that disclosed in his passport. The Tribunal did not accept the applicant was the person named in the ID card which he had provided to the previous Tribunal, or the photographs he had provided, or the two documents sent to the Tribunal on 17 March 2006. The Tribunal held that given that it did not consider that the applicant was a truthful witness, it found that those documents were not reliable evidence of the facts portrayed in them.[19]
[19] CB at 130.9.
It involved no legal error for the Tribunal to reason in this fashion. As Gleeson CJ said in Re Minister for Immigration, Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12]:
It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
The applicant also alleges that the Tribunal failed to undertake further “examination” to verify the applicant’s true identity despite the applicant asking the Tribunal to do so.
The transcript of the hearing reveals at page 6 the following exchange:
Applicant:I wasn’t there to say that before when I first came but one month before the hearing I told I received something about this hearing and two days before I thought if I didn’t tell then I would still be cheating the Australian government so I want to say when the passport was handed in for visa application in China the photo on it was not mine and you can check that out on the web.
Member:I am not going to check that out on the web. So how did the photo of you get in this passport?
This is the only part of the hearing in which any request was made by the applicant for any investigation to be undertaken by the Tribunal. The investigation suggested by the applicant was that the Tribunal member could, somehow, by searching the internet, determine whether or not when the visa application in China was handed in, the photograph in the applicant’s passport was that of the applicant. It is far from self evident this was an enquiry that it was open to the Tribunal to make. Even if it were, the Tribunal member made it abundantly plain that he was going to undertake no such enquiry. There was no legal error in the Tribunal refusing to do so. The difficulty in making the enquiries suggested distinguishes this case from M164/2002 v Minister for Immigration [2006] FCAFC 16 at [65]. In any event that decision is inconsistent with the decision of the High Court in Minister for Immigrationv SGLB (2004) 207 ALR 12 at [43]. It also does not refer to the earlier decision in WAGJ vMinister for Immigration [2002] FCAFC 277 at [21]. It has been accepted in this Court that the decision in M164/2002 was given per incuriam and that this Court is bound to apply the decision in SGLB. See: SZJCL vMinister for Immigration [2007] FMCA 839 at [29]-]34].
There was no obligation on the part of the Tribunal to make enquiries in the circumstances of this case, and there is no jurisdictional error.
Neither is there any issue of a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The relevant information relied upon by the Tribunal came from the applicant for the purposes of the review. The Tribunal's reasoning in respect of that information was not disclosable information pursuant to s.424A. I agree with and adopt for the purposes of this judgment paras.27 and 28 of the Minister's written submissions:
The applicant alleges that the Tribunal breached s.424A(1). The complaint is that the Tribunal rejected the applicant’s claims about his second daughter who could not be registered in China. The applicant asserts the Tribunal rejected this claim because it thought it was a recent invention, but the Tribunal failed to invite the applicant to comment on why he had not made such claims earlier.
It is abundantly plain that no breach of s.424A occurred in making this finding. There was no information to which s.424A applied, which formed the reason or part of the reason for making the Tribunal’s decision which was required to be disclosed, see: SZBYR v Minister for Immigration [2007] HCA 26. The Tribunal’s conclusion that the applicant had not mentioned this earlier was part of the Tribunal’s reasoning process and was not information. The evidence relied upon to make this finding was that provided by the applicant at the second Tribunal hearing.
The only issue of any legal significance in this matter is the issue I raised at the show cause hearing. I incorporate in this judgment the Minister's submissions in relation to that matter from paras.30 through to 34:
At the show cause hearing the Court raised an issue as to whether or not the Tribunal member had misunderstood the applicant’s claims. The Tribunal found that there was no plausible evidence that the applicant had “a second daughter”.[20] The Court observed that the applicant had told the Court at the show cause hearing that he had clearly told the Tribunal that he had only two children, the first being a son and the second being a daughter. By referring to the claim to have a second daughter, the Court was concerned that that may have been as a result of a misunderstanding by the Tribunal that the applicant had claimed to have had a third child.
It is plain when viewing both the transcript and the Tribunal’s decision in its totality that the Tribunal did not labour under any such misapprehension.
The unfortunate reference by the Tribunal to the applicant’s “second daughter” was a product of a statement that the applicant made to the Tribunal. At page 16 of the transcript the applicant is recorded as having said to the Tribunal:
My second daughter she’s nearly four and even now the Chinese authorities have her registered. So she can’t enjoy formal education in China.
It is plain from paragraph 11 of the transcript that the applicant told the Tribunal that he had only two children, the first a boy and the second a girl. It is plain that the Tribunal understood this because it recorded in its decision that the applicant had “two children”.[21]
The Tribunal did not misunderstand the applicant’s claims, and correctly understood the applicant had only two children. The reference to the applicant’s “second daughter” was merely a product of the applicant’s statement at the hearing which has been referred to above.
[20] CB at 131-8.
[21] CB at 128.4.
I disagree in part with those submissions. I accept the applicant's submissions that at all times he claimed to have only two children. That was his consistent claim, both in writing and orally. The transcript discloses that he maintained that claim at the Tribunal hearing (see the transcript, page 11). The problem arose at the end of the Tribunal hearing where the presiding member said, and I quote from page 15 of the transcript:
Anything else you want to tell me?
The applicant replied:
My second daughter she's nearly 4 and even now the Chinese authorities have her registered. So she can't enjoy formal education in China.
The presiding member responded:
You told anyone else about that before today in connection with your application?
The applicant responded:
No.
In its reasons, the Tribunal recited this exchange at page 129 of the court book. The Tribunal concluded on the basis of that information on page 131 of the court book:
The applicant also said at the end of the hearing before the present Tribunal that he has a second daughter who cannot be registered in China and cannot get an education. He told this Tribunal that he has told no one else this before. To the extent that the applicant is claiming that he/his family is/was persecuted in China for this reason the Tribunal finds that this claim is recent invention to assist his application for protection. In the Tribunal's view if this claim were genuine he would have made it before this Tribunal hearing and his oral evidence to the Tribunal is that he did not. There is no plausible evidence before the Tribunal that the applicant has a second daughter as he claims.
It is apparent from that statement that the Tribunal believed that the applicant was making a late claim of having a third child. The Tribunal rejected that claim both because of its lateness and because there was no evidence to support the claim of a third child. However, the truth was lost in translation. When the applicant said that he had a second daughter, he was not asserting that he had a third child. He was simply referring to his second child, his daughter.
The misunderstanding appears to be a result of cultural expression in Chinese that translates imperfectly into English. This was verified in the hearing before me where the applicant referred several times to his “second” daughter. In the course of argument, when I discussed with the applicant the proposition that the Tribunal thought that he was claiming to have a third child, he expressed surprise and said that he was not claiming to have had a “third daughter”. The fact that the same apparent confusion arose in the hearing before me with a different interpreter to the one who assisted the Tribunal at the hearing before it suggests that the problem is not one of the quality of interpretation. It is, rather, reflective of the difficulty of literal translation of phrases from one language to another.
I find that, because of the misunderstanding that arose, the Tribunal formed the mistaken belief that the applicant was claiming to have a third child. That was obviously inconsistent with the applicant's claims to that point, and not believable. The Tribunal also disbelieved the claim because of its lateness. The lateness of the claim was conceded by the applicant both before the Tribunal and before me. It may have made no difference if the Tribunal had not misunderstood what the applicant was saying. The Tribunal had disbelieved the critical claim of the applicant of his true identity because of its lateness. The Tribunal's approach to the claim in relation to the “second daughter” followed consistent reasoning. On the other hand, if the Tribunal had understood what the applicant was saying, it might have made a difference. The general facts relating the Chinese one‑child policy are well known. The Tribunal might have been moved to give further consideration to the detriment that the applicant's family might suffer in China if his daughter could not be registered and receive the normal benefits of Chinese citizenship.
On balance, I am of the view that the mistake made by the Tribunal, although not its fault and not the fault of the interpreter, was a significant one. The mistake erodes the basis for the adverse credibility finding. If the finding were the sole or a non‑severable part of the Tribunal's reasoning it would have jurisdictional significance. However, this part of the Tribunal's reasoning is severable. The applicant had based his claim on his religion. That was dealt with in emphatic terms, and the Tribunal's findings independently and completely support its decision. The applicant's claim concerning his daughter raised at the end of the hearing, almost as an afterthought, has, in the context of this decision when viewed as a whole, no jurisdictional significance.
Accordingly, and while the contrary is clearly arguable, I find that the Tribunal decision is free from jurisdictional error. The application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,000. The applicant expressed an intention to exercise his right of appeal, but did not make any submissions on costs.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 August 2007
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