SZKFO v Minister for Immigration
[2007] FMCA 890
•29 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 890 |
| MIGRATION – Credibility is a finding of fact – not review unless inconsistent with facts incontrovertibly established by the evidence or trial judge has failed to use or palpably misused his advantage – Tribunal’s subjective appraisals not covered by s.424A. |
| Migration Act 1958 (Cth), ss.424A, 474, Pt 7 Div 4 |
| W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 |
| Applicant: | SZKFO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 516 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 29 May 2007 |
| Date of last submission: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms. Mitchelmore |
| Solicitor for the Respondents: | Ms. A. Nesbitt of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,600.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 516 of 2007
| SZKFO |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 15 February 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 December 2006 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 19 April 2007.
The applicant sought leave to file written submissions in Court, but as they were not translated into English, the Court refused to accept those submissions for filing. The applicant was invited to make oral submissions to the Court through his interpreter and read the submissions to the Court.
The applicant was born on 26 September 1966 and claims to be from and of Chinese ethnicity.
The applicant’s wife and two children remain in China.
The applicant arrived in Australia on 8 May 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs 8 June 2006. In this application he claimed that he was employed as an electric welder in the No.93 Hospital of the People’s Liberation Army. The applicant claimed that in September 2004 he was instructed “to build up to 20 cells” in an independent building near the hospital, but was not told why. In May 2005 the applicant’s brother-in-law informed him that the building was “a special medical experiment centre, in which the hospital used some of dissidents, such as Falun Gong practitioners or religious activists, to test new type of medicines.” The applicant claimed that in September 2005 he did some additional work inside the building and saw his neighbour in one of the cells (a Mr Y who was a Falun Gong practitioner). The applicant claimed that he wanted to tell Mr Y’s parents, but “was threatened many times by the authorities of the No.93 Hospital that I would be severely punished if I dared expose what I had seen.” However, the applicant believed that Mr Y “would eventually be persecuted to death if I did not tell the truth”, and in November 2005 the applicant told Mr Y’s parents “everything”. The applicant claimed that his news was like “a bomb” and in December 2005 a protest was held outside the Hospital by Mr Y’s family. The applicant claimed that the PSB discovered his connection with Mr Y and interrogated him “over 10 times”. The applicant claimed that his brother-in-law has since confessed to the PSB “and put everything on my shoulder in order to keep his position at the No.93 Hospital.” As a result, the applicant has become the target of the PSB (CB 31-34).
This application was refused by a delegate of the first respondent on 14 August 2006 (CB 41-50).
On 15 September 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 53). The applicant attended a hearing before the Tribunal on 16 November 2006 to present evidence and oral arguments.
On 18 December 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. After considering the applicants claims, the Tribunal found (CB 91-94) (highlighting added):
The Tribunal accepts that the applicant is a national of China. The applicant brought his passport to the hearing. It was issued in his name in December 2005.
Although the applicant could speak about the specific events contained in the statement accompanying his original application, the Tribunal found his discussion of other matters was inconsistent and unconvincing. For reasons that are outlined below, the applicant did not impress the Tribunal as a credible witness.
The applicant claimed to live at particular address in Neutral Bay Sydney although it became clear to the Tribunal he most unfamiliar with that particular address in Neutral Bay. When questioned further about his residency in Sydney, he claims to have lived at several different addresses but was unable to supply any details of street names or numbers. The Tribunal found him to be misleading and evasive about his residency.
The applicant may have been employed at the hospital in China in the maintenance department as he was able to give quite specific details about its buildings. Also, he brought photographs to the hearing of the outpatient building, inside the maintenance rooms, and some of the operating wards.
The hospital identification and the reference which the applicant brought to the hearing may be genuine, but possibly not as there is no letterhead on the reference, and no expiry or issue date shown on the identification card.
The Tribunal finds it implausible that the applicant built cells on the ground floor of a building for the purpose of medical testing of prisoners, when more than 10 medical staff, or scientists, continued to work on the floors above. When the Tribunal expressed this view to the applicant he said that they were soldiers. When the Tribunal asked for clarification, the applicant said that the scientists were soldiers. The Tribunal does not accept the applicant’s evidence.
The applicant said that he was in the forbidden zone fixing a pipe on level 1 of the independent building when he saw his neighbour in a cell. When the Tribunal said that in his statement he had said that he was building an extension when he saw his neighbour, the applicant said he was doing both. The applicant could not explain to the Tribunal why a welder would be building an extension by himself. The Tribunal found his answers about the extension and the location of the pipe that he said that he was fixing most unconvincing.
The Tribunal is not satisfied about what the applicant said about seeing his neighbour being forced to take medication. He first said that he only saw his neighbour in the cells once. Later, he said that he saw his neighbour many times. On further questioning he said that he saw his neighbour four times. He said that he didn’t know what medicine his neighbour was given because “he did not want to look close”.
The Tribunal found it inconsistent that the applicant said he did not visit his neighbour in jail during the five years that the neighbour was held locally because “he did not want to get involved.” Yet, he claims to have told the neighbour’s parents in December 2005 that their son was in a cell in the hospital because he was being persecuted. The applicant had told the Tribunal that the neighbour had not been released and he did not know his whereabouts. Then he said that he did not know whether or not the neighbour had been released. He could provide no information about the fate of his neighbour or what attempts he had made to find out about his welfare. The applicant said that he had not joined the demonstrations outside the hospital.
The applicant claimed that his neighbour did not recognise him because he was in uniform. When the Tribunal expressed the view that the neighbour would be in uniform too, the applicant agreed that he was. The Tribunal suggested to the applicant that the neighbour may have changed more than himself as the neighbour had spent the last five and a half years in jail. The applicant agreed, and said that the neighbour was thinner. The Tribunal found the applicant’s evidence unconvincing.
The applicant said that he was afraid but he told the parents anyway. When the Tribunal asked whether he could have left an anonymous note for the parents about their son’s whereabouts, so as not to disclose his own identity, he said that “it was hard to say,” and that anyway he was making arrangements to leave the country. The Tribunal asked the applicant about whether it was dangerous for the relatives and friends to protest outside the hospital he said that he “did not know.” The Tribunal considered the applicant’s evidence on these areas unconvincing.
The Tribunal does not accept the evidence that the applicant claims never to discuss the cells and what he had seen in them with his brother-in-law and yet claims that it was on his brother-in-law’s advice that he resigned from the hospital in January 2006.
The applicant said that he was interrogated by the police more than 10 times from February to April 2006. When pressed for more details he said that it could have been almost 15 times. Then he said that he was questioned every second or third day over that 90 day period. The Tribunal considers that a person would know with some exactitude how many times that they had been interrogated by the PSB. The applicant also gave inconsistent and unconvincing evidence about the ill-treatment that he received from the PSB. He said that it was “only one or two times or two or three times” that he was hung by his arms. Then he said it was “four or five times,” and later “five or six times”. He said that the police had also gone to his home after he left China, but he said that he did not know how many times they had attended as he did not ask his wife. The Tribunal finds it implausible that he would be in contact with his wife and yet not inquire into this matter, and it does not accept this evidence.
The Tribunal does not accept the applicant’s evidence that a friend arranged and paid for his travel to Australia and that the applicant did not discuss the arrangements including payment, and the reason why the friend was helping the applicant.
The applicant gave inconsistent evidence about how often he spoke with his wife since coming to Australia. First he said he spoke with her about every 10 days. Later, he said that he spoke to her once or twice a month. He told the Tribunal that he last spoke to his wife on 8 November 2006. Then he said he last spoke to her on 13 September 2006.
Although the Tribunal accepts that the applicant may have worked in the hospital, it is not satisfied that any of his other claims including building the cells or seeing his neighbour being forced to take medication in the cells is true. It is not satisfied that the claims that he was interrogated by the PSB, or that his wife was also questioned by the PSB are true.
The Tribunal does not accept the applicant’s response in regard to its invitation to comment on adverse information. During the interview on 1 August 2006, the applicant told the delegate that his brother-in-law was still in jail in China. At the hearing the applicant said that in order to keep working at the hospital, his brother-in-law had blamed him for revealing the information about medicine testing of the neighbour. The Tribunal does not accept that this inconsistency was caused because the applicant was confused and emotional at the time of the interview, as was suggested in his response dated 6 December 2006.
The Tribunal is not satisfied that the applicant has a subjective fear of Convention-related persecution in China, or that he faces a real chance of such persecution. The Tribunal is therefore not satisfied that he has a well-founded fear of being persecuted in the relevant sense. Accordingly it is not satisfied that he is a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. Therefore the applicant does not satisfy the criterion set out in s. 36(2) of the Act for a protection visa.
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
In his application, the applicant set out two grounds as follows:
(1)There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
(2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
(1)The Tribunal failed to comply with its obligations under s.424A of the Act.
(a)After the hearing before the Tribunal, the Tribunal indeed invited me to comment some pieces of information regarding my brother-in-law. However, the Tribunal failed to give me most of information, that the Tribunal has considered as the reason, or part of the reason, for affirming the decision that is under review; such as:
- The information about my living addresses in Sydney is inconsistent with the information that I did not familiar with living environment;
- The information from my documentary evidence, which there is no letterhead on the reference, and no expiry or issued date shown on the identification care, is inconsistent with the one that available to the Tribunal;
- There are inconsistencies in my evidence regarding my neighbour’s imprisonment;
- Inconsistent evidence about my speaking with my wife since coming to Australia.
(b)Furthermore, the Tribunal failed to ensure me to understand that the information would be directly in relation to my review application; and the Tribunal should give me a genuine chance to comment them.
(c)It is apparently that the Tribunal failed to comply its obligations under s.424A(1) of the Act.
(2)The Tribunal failed to consider my claims properly and fairly. Tribunal made its finding actually based on unwarranted assumption; the Tribunal ignored or failed to consider a claim I made to it; the Tribunal ignored other relevant materials which was before it; and the Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact.
The applicant filed an amended application on 19 April 2007 setting out the following grounds and particulars:
[The applicant repeats the two grounds in the original application]
Particulars:
(1)The Tribunal failed to comply with its obligations under s.424A of the Act.
(a)Firstly, the information, which I have given to the Tribunal, has been misstated or misunderstood; or the Tribunal has failed to consider my information properly and fairly.
For example, I have never given the information that “the scientists were soldiers”; instead, my information is that the hospital, where I was employed as an electric welder, was the No.93 Hospital of the People’s Liberation Army (aka Fuzhou General Hospital of Nanjing Military Region). The medical staffs, including doctors or nurses, are belonged to the army.
Another example, I have never given the information that “a welder would be building an extension by himself”; instead, my information is that in September 2005, I was instructed to join the project of constructing an extension building tightly attached to that independent building; and my brother-in-law was also involved in the project. In the meantime, I was also asked to fix a pipe on level one of the building. While I saw my neighbour Mr Xia Qiang Yu being forced to take medicine, I was working in a cell by myself.
Also, the information that I have given to the Tribunal is that I only saw once while my neighbour was forced to take the medicine but I did saw him in that building for about four times. However, this information has been misstated or misunderstood by the Tribunal as “He first said that he only saw his neighbour in the cells once. Later, he said that he saw his neighbour many times…he said that he saw his neighbour four times.”
Further example, it was definitely wrong that “the applicant said he did not visit his neighbour in jail during the five years that the neighbour was held locally because ‘he did not want to get involved’ ”. It is definitely NOT the information that I have given to the Tribunal. Firstly, according to relevant Chinese laws or regulations, I would not be eligible to visit my neighbour because I am neither his families nor his relatives; and secondly, the actual situation was that my neighbour was a Falun Gong practitioner; and he was arrested by the Public Security Bureau (PSB) around 2000. His trial was not in the public; so I did not know exactly how many years he had been sentenced to be imprisoned; but his mother once told me that it might be about 7 or 8 years. Originally, his parents were allowed to visit him regularly, but from June 2005, the could not see Mr. Yu anymore. They were told that their son had been transferred to a labour camp in Jiangxi Province, but actually he was still in Fujian, being used as a tool to test new medicines.
And, the information that I have given to the Tribunal is that I spoke with my wife about every 10 days at the early period after I arrived in Australia; but later on, I spoke to her once or twice a month. But, the information has completely been misstated or misunderstood by the Tribunal as “the applicant gave inconsistent evidence about how often he spoke to his wife since coming to Australia. First he said he spoke with her about every 10 days. Later, he said that he spoke to her once or twice a month…”
(b)Secondly, according to the Act, I have found that:
[The applicant inserts the provisions of s.424A of the Migration Act]
(c)Thirdly, based on my claims in above paragraphs, the information, which the Tribunal has considered as the reason or part of the reason in its decision, is not one that I have given to the Tribunal but the one which has been misstated or misunderstood by it. Therefore, the s.424A(3) of the Act does not apply to my case; and the Tribunal must be obligated to:
[The applicant inserts the provisions of s.424A(1) of the Migration Act]
(d)Unfortunately, the Tribunal failed to give me the information, which it has considered as the reason or part of the reason for making its decision; and the Tribunal failed to ensure me to understand that the information would be directly in relation to my review application; and the Tribunal failed to give me a genuine chance to comment them.
(e)It is apparently (sic) that the Tribunal failed to comply its obligations under s.424A(1) of the Act.
(2)[The applicant repeats particular 2 of the original application]
The reason for the Tribunal’s decision is that it did not accept the applicant’s evidence. A finding as to credibility is a finding of fact: W148/00A (post). It is not the function of judicial review by a court to review the findings of fact by the Refugee Review Tribunal, 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”. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated 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”.
The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
Findings as to the grounds in the application
The particulars in the application relate to both grounds. Particular 1 alleges a failure to comply with s.424A. Particular 1(a) alleges that the Tribunal breached 424A because it did not put to the applicant in writing the inconsistency in his evidence about his residential address. The Court finds that the conclusion as to inconsistency is a subjective appraisal by the Tribunal which is not “information” covered by s.424A: Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].
The second allegation in Particular 1(a) is that the Tribunal did not put to the applicant “information from my documentary evidence”. The matter referred to is the appraisal by the Tribunal of the material submitted by the applicant. Subjective appraisals by the Tribunal are excluded from s.424A as stated above.
The applicant then complains that the Tribunal did not put to him inconsistencies the Tribunal found in his evidence regarding his neighbour’s imprisonment, and about him speaking to his wife since coming to Australia. Both those matters were subjective appraisals by the Tribunal and are not subject to s.424A.
Particular 1(b) complains that the Tribunal did not ensure that the applicant understood the relevance of the above information, and that the Tribunal had to give him a genuine chance to comment. As the appraisals were not covered by s.424A, there was no obligation to ensure that the applicant understood why the appraisals were relevant, or to invite him to comment on them. The Court finds that Part 7 Division 4 of the Migration Act applies. No breach of that Part has been established. The Court finds no error of law.
Particular 1(c) alleges a breach of s.424A(1). For the reasons stated above, the Court finds no breach of s.424A.
Particular 2 alleges that the Tribunal failed to consider the applicant’s claims properly, made its findings on unwarranted assumptions; ignored a claim made by him, ignored relevant material; misunderstood a claim, and made a mistake in relation to an important finding of fact. This is a catch-all claim without any details or evidence to support it. A transcript of the Tribunal hearing has not been tendered to the Court. The Court finds that none of the allegations in it have been made out. The Court rejects ground one of the application.
Ground two alleges a denial of natural justice. As stated above, Division 4 of Part 7 of the Act applies to this application. No breach of that Division has been established. The applicant was invited to attend the hearing (CB 56) and a s.424A letter was sent to his representative (CB 71). The Court finds no denial of natural justice.
Findings as to the grounds in the amended application
The grounds in the amended application commence by repeating the two grounds in the application. Particular 1(a) alleges a failure to comply with s.424A as follows:
(a)…the Tribunal…misstated or misunderstood, or failed to consider my information…
The applicant claims that he did not give evidence that workers at the hospital were soldiers, just that they belonged to the army. This ground seeks to challenge a finding of fact that was properly open to the Tribunal on the material before it. It is not subject to review.
The applicant claims that the Tribunal was wrong to conclude that the applicant was building an extension to the hospital. The Tribunal did not find that the applicant was building an extension, rather it found that his “answers about the extension and the location of the pipe that he said that he was fixing most unconvincing” (CB 92.6). That was a finding of fact properly open to the Tribunal and is not subject to review.
The applicant then seeks to challenge statements by the Tribunal as to the applicant’s evidence about how many times he observed his neighbour in a cell. A transcript of the hearing by the Tribunal has not been put before the Court. Again, this seeks to review findings of fact by the Tribunal that are not subject to review without meeting the tests set out in W148/00A and Devries (ante). Those tests have not been met; those allegations are rejected.
The applicant seeks to dispute the evidence that the Tribunal records the applicant to have given. An applicant must prove their case: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567. Further, the applicant seeks to put new factual material before the Court which is inadmissible. A transcript of the Tribunal hearing has not been provided to the Court to establish these allegations; they are rejected.
The applicant alleges a breach of s.424A alleging the Tribunal “misunderstood or misinterpreted his claims”. The Court finds this has not been established, but even if it was, those findings are findings of fact that have not been demonstrated to be reviewable.
The applicant complains that the Tribunal failed to give him information and ensure that he understood its relevance and give him a genuine chance to comment. This ground has been dealt with above; The Court repeats its reasons for rejecting it.
The applicant then repeats Particular 2 of his original application, which has been rejected by the Court.
The Court rejects all grounds and particulars in the application and amended application.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application and amended application are dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 6 June 2007
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