SZKJQ v Minister for Immigration
[2007] FMCA 1572
•15 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1572 |
| MIGRATION – Credibility – matter for the Tribunal – finding of fact – Court will not set aside – non-refoulment not applicable as applicant is not a refugee – bias not established. |
| Migration Act 1958 (Cth), ss.36(2), 424A, 474 |
| W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Chen Xin He v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, R.D Nicholson J, 23 November 1995) Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | SZKJQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 924 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 15 August 2007 |
| Date of last submission: | 15 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr L. Leerdam of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 924 of 2007
| SZKJQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 19 March 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”) signed on 30 January 2007 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 was born on 15 September 1946 and claims to be from China of Han ethnicity (“the applicant”).
The applicant arrived in Australia on 19 May 2006 on a subclass 456 visa issued in Phnom Jiashu, Cambodia.
On 15 June 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that he had been discriminated against “by those officers of local government” since his childhood. The applicant claimed that he was dissatisfied with the local authorities and “always “condemn[ed] and criticize[d]” their policies and their corruption, which lead to the applicant’s oppression. The applicant claimed that he was eventually forced to leave his hometown; he travelled to Cambodia to work and has not been back since for fear of persecution (Court Book “CB” 28).
This application was refused by a delegate of the first respondent on 21 August 2006 (CB 35-43).
On 11 September 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 46). Attached to the application for review was a statement by the applicant in which he claimed to be a Falun Gong sympathiser (CB 52-4). The applicant claimed that local officers of the Communist Party threatened to send him to prison, which was the reason why the applicant went to Cambodia. The applicant attended a hearing before the Tribunal on 23 October 2006 to given evidence and present oral arguments (CB 62).
By decision signed on 30 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 97-99) (highlighting added):
The applicant claims to be a national of China and stated he left China using a passport issued in his own name and that he travelled to Australia using a passport issued in his own name. The Tribunal accepts that the applicant is a Chinese national and has assessed his claims against China as his country of nationality.
The applicant has given differing and inconsistent accounts of his circumstances prior to his departure from China and his reasons for leaving China. As a result of the significance of the differences and inconsistencies, the Tribunal does not accept that the applicant has given a truthful account of his past experiences in China, his fear of harm or the reasons for it should he return.
In the statement attached to his protection visa application, the applicant claimed he was discriminated against by officers of the local government from his childhood due to his origin and that he always criticized the policies of local authorities and the corruption of local officers and had different political opinions. However, in evidence to the Tribunal, the applicant claimed that he was persecuted by local officers of the Communist Party for being a Falun Gong sympathiser. The explanation the applicant has given for his differing claims is that he was afraid. The Tribunal does not accept this explanation and is of the view that the applicant was not persecuted due to his origin or any political opinions he expressed or for any connection with Falun Gong.
In the statement attached to his protection visa application, the applicant did not claim he was removed from his employment, rather that he left his hometown to work in the Cambodia International Hospital when he was being pushed aside for condemning the illegal conduct of local government officers when his family had been forcibly removed from their state-owned property. The applicant stated he had not returned to the place of his household registration since 1998. However, in evidence to the Tribunal the applicant claimed he was dismissed from his employment because he was considered to be a Falun Gong sympathiser, that his family moved to Guangdong Province in 2000 after he left for Cambodia in January or February 1999 and that in March 1999 his family were forced out of their home by Government order. The explanation the applicant has given for the differing claims is that he was afraid and in comments to the Tribunal he has provided a further account of his family moving from their family home. He stated that although he and his family were compelled by the local Government to move out of their home in November/December 1998, his wife was sick in hospital and her brother negotiated to extend the date of their move. He stated that in March 1999, Chinese local government officers forced them out of their home and his family moved in with a relative until 2000 when his first born child graduated from university and they moved to Guangdong. The Tribunal does not accept the applicant’s explanation for the differences and is of the view that the applicant’s latest comments just provide another inconsistent account, which leads the Tribunal to further doubt the applicant’s credibility.
In the statement attached to his protection visa application, the applicant claimed he left his hometown to work in the Cambodia International Hospital when he was being pushed aside for condemning the illegal conduct of local government officers when his family had been forcibly removed from their state-owned property. He stated relatives often phone him and tell him that the record of his case is still in the police station and that if he goes back, they will investigate him and send him to prison. However, the applicant told the Tribunal he was considered to be a Falun Gong sympathiser for speaking out in favour of Falun Gong and for treating Falun Gong practitioners. He stated that in February 1999, a friend told him that the PSB wanted to take him to prison, so he escaped to Cambodia. In comments to the Tribunal, the applicant has now stated that due to the Spring Festival and because the matters were not very important, they were not reported to a “higher government” and so there was no arrest warrant issued but has given no explanation as to why he stated in evidence to the Tribunal that he was wanted by the PSB prior to his departure from China. He also stated that he wasn’t wanted by the police because the degree of his involvement in Falun Gong hadn’t reached a serious level, so to avoid being persecuted he left for Cambodia on 3 February 1999. He also stated he hid. The Tribunal is of the view that the applicant has not explained the differences and inconsistencies in his evidence; rather his further comments to the Tribunal provide yet another inconsistent version, which leads the Tribunal to further doubt the applicant’s credibility.
The applicant’s differing accounts of his circumstances prior to his departure from China and his reasons for leaving China together with the discrepancies in his evidence leads the Tribunal to conclude that he is not a witness of truth. It follows that the Tribunal does not accept that the applicant came to the attention of the Chinese authorities as claimed, that he was removed from his employment or that he and his family were removed from their home because of the opinions the applicant expressed either about the Government or about Falun Gong or because he was considered to be a Falun Gong sympathiser. The Tribunal also notes that the external information indicates that the Chinese Government’s crackdown of Falun Gong did not begin until July 1999, although there is some evidence that Falun Gong was declared to be an evil cult in July 1998. However, the Tribunal was unable to find any reports of government employees being dismissed because of a Falun Gong connection prior to 1999.
In his protection visa application the applicant stated he left China legally and that he did not have any difficulties obtaining a travel document in his home country. The copy of the applicant’s current passport on the Department’s file is issued in the applicant’s name and he has indicated he left China legally using a passport issued in his own name. The applicant has stated that he was able to do so because there was no arrest warrant and because the local authorities had not reported him to higher authorities prior to his departure, which is inconsistent with the applicant’s evidence to the Tribunal at hearing in which he stated that he was wanted by the PSB prior to his departure from China. In his latest comments, the applicant has stated that he didn’t mean to say that he had no difficulties; rather that he obtained his passport with the assistance of a friend. The Tribunal is of the view that the applicant was able to leave China legally and had no difficulty in obtaining his travel document because he had not come to the attention of the Chinese authorities as claimed.
The Tribunal does not accept that the applicant has had or is perceived to have had any association with Falun Gong, or has suffered serious harm in China as a result of any association with Falun Gong, or for expressing any political opinions about Falun Gong or the Chinese authorities. Nor does the Tribunal accept that if the applicant returns to China now or in the reasonably foreseeable future, that there is a real chance that the applicant will be perceived to have any association with Falun Gong or that he will be persecuted for reasons of any real or imputed religious beliefs or political opinions or membership of any particular social group for the purposes of the Convention on the basis of his claimed association with Falun Gong or for expressing or imputed political opinions. As the applicant has not claimed any other reason for fearing to return to China, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason if he returns to China.
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 Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) 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 Act”).
The application
In his application, the applicant set out four grounds as follows:
(1)The Tribunal and the primary decision maker erred in failing to recognise the principle of non-refoulement contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).
(2)The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lake of bona fides.
(3)The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.
(4)The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8.
Decision
The Tribunal rejected the applicant’s claims because it found that the applicant is not a witness of truth (CB 98.3). The Tribunal set out extensive reasons for making that finding. The Court refers to the following passages 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”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court does not find that the probabilities of the case here are against the adverse finding of credibility. The Tribunal did not act on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. It is for the Tribunal to determine what evidence it finds credible. “This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”: Chen Xin He v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, R.D Nicholson J, 23 November 1995).
The Court agrees with the following submission in another matter:
The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The Tribunal gave extensive reasons for finding the applicant not to be truthful. That conclusion was properly open to the Tribunal and this Court will not interfere.
Findings of the Court in relation to the grounds in the application
Each ground challenges the decision of the delegate and the Tribunal. The decision of the delegate is not subject to review in this matter. Those claims are rejected.
Ground one alleges that the Tribunal failed “to recognise the principle of non-refoulement contained in Article 33 of the 1951 Convention Relating to the Status of Refugees”. Article 33 provides, as far as is relevant:
Prohibition of expulsion or return (“refoulement”)
(1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (CB 99). The applicant did not establish that he is a refugee. The Tribunal found at CB 98 (highlighting added):
The Tribunal does not accept that the applicant has had or is perceived to have had any association with Falun Gong, or has suffered serious harm in China as a result of any association with Falun Gong, or for expressing any political opinions about Falun Gong or the Chinese authorities. Nor does the Tribunal accept that if the applicant returns to China now or in the reasonably foreseeable future, that there is a real chance that the applicant will be perceived to have any association with Falun Gong or that he will be persecuted for reasons of any real or imputed religious beliefs or political opinions or membership of any particular social group for the purposes of the Convention on the basis of his claimed association with Falun Gong or for expressing or imputed political opinions. As the applicant has not claimed any other reason for fearing to return to China, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason if he returns to China.
Article 33 therefore does not apply to the applicant. Ground one is rejected.
Ground two alleges bias and that the Tribunal did not consider all the evidence before it. The decision of the Tribunal shows that it considered the material and evidence before it and rejected much of it. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
The Court refers to the following passage in Chen Xin He v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, R.D Nicholson J, 23 November 1995) at [24]:
It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.
Ground two alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established. Ground two is rejected.
Ground three seeks a review of the findings on credit. As stated above, the findings were properly open to the Tribunal and this Court will not interfere. Ground three is rejected.
Ground four alleges an error in construction of Part 8 of the “Migration Regulations 1958”. The Court understands that to be intended as a reference to Part 8 of the Migration Act. No particulars have been given. Ground four is not established and is rejected.
A breach of Division 7 of Part 4 of the Act has not been alleged but will be considered. The Tribunal sent two s.424A letters to the applicant (CB 64, 74). The letters set out extensive detail of the information that the Tribunal considered would be the reason, or part of the reason, for deciding that the applicant is not entitled to a protection visa. The country information relied on is subject to the exception in s.424A(3)(a). The Court finds no breach of s.424A.
Section 425 was complied with by letter dated 18 September 2006 (CB 59). The applicant appeared before the Tribunal on 23 October 2006 (CB 62). The Court finds no breach of Division 4 of Part 7 of the Act.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that 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.
Accordingly, the application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 17 September 2007
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