SZKNF v Minister for Immigration & Citizenship

[2008] FCA 372

FEDERAL COURT OF AUSTRALIA

SZKNF v Minister for Immigration & Citizenship [2008] FCA 372

SZKNF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1784 OF 2007

DOWSETT J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1784 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the first respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1784 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant came to Australia from China on 2 July 2006.  On 16 August 2006 she applied for a protection visa upon the basis that she feared persecution for reason of her religious belief.  She claimed to be a Christian and to have been a member of an underground church in China.  The application was refused by a delegate of the first respondent (the “Minister”).  The appellant applied to the Refugee Review Tribunal (the “Tribunal”) for review of that decision.  That application was unsuccessful.  The appellant then applied to the Federal Magistrates Court for review of the Tribunal’s decision.  The Federal Magistrate declined to grant relief.  This is an appeal from that decision.

2. The appellant’s evidence concerning her alleged fear of persecution was in relatively narrow compass.  She said that she fell pregnant unexpectedly in 2004, having previously had a daughter.  I infer that she was concerned about the well known policy of the Chinese government in connection with family size.  In order to avoid adverse government attention she moved to the home of a relation of her mother, a Mrs Lin.   Mrs Lin was a Christian.  Whilst staying with her, the appellant participated in some church activities.  The detail of such participation is important.  I will return to it at a later stage.  After the birth of her child, another daughter, the appellant returned to her home town with her.  She was eventually fined for her breach of the one child policy. 

3. Subsequently, Mrs Lin visited her and suggested that she establish an underground church in her town.  The appellant agreed.  She claimed to have established a hardware business to conceal her church activities.  Such activities are of some relevance.  I will return to them at a later stage.  In 2006 the church allegedly attracted adverse police attention.  As a result, the appellant came to Australia.  She has established relations with a Christian church in Sydney.  The Tribunal rejected her claim to have a well‑founded fear of persecution for a conventional reason, based upon this broad outline of her version of events.

4. The appellant’s application to the Federal Magistrates Court and her grounds of appeal to this Court are in substantially similar form. It is alleged that the Tribunal failed to consider the appellant’s evidence and information, and that it failed to comply with ss 424A and 425 of the Migration Act 1958 (the “Act”). There is also an allegation of bias. The Tribunal clearly considered the appellant’s case but rejected her evidence. The allegations of breaches of ss 424A and 425 depended upon the appellant’s assertions that the Tribunal did not give her an opportunity to address its proposed reasons for rejecting her application. Neither section required the Tribunal to do so. The Federal Magistrate found no evidence of bias. I agree. The real basis of the appellant’s dissatisfaction is that the Tribunal did not accept her claims. That is not a basis for review, either in the Federal Magistrates Court or on appeal in this Court. The appeal must fail.

5. Having said that, I must observe that there are some unsatisfactory aspects to the Tribunal’s decision.  I have, in other proceedings, pointed out the need for a degree of care in assessing the truth or otherwise of a claim based upon apparent inconsistencies in the claimant’s versions of events.  Where one is dealing with persons from a culture with which one is unfamiliar, and/or with areas of human activity with which one is unfamiliar, the need for care is even greater.  One cannot assume, with confidence, that a person of Chinese background, for example, will necessarily respond to questions in the same way as would an Australian, or treat the same things as being important.  Where one is speaking about something as personal as religious belief, one must be sure that one does not, in judging another’s beliefs, rely too much upon one’s own beliefs or give effect to unjustified confidence in one’s own knowledge.

6. The appellant’s claim was rejected primarily because the Tribunal was not willing to act on her evidence. That unwillingness was based upon perceived inconsistencies between statements made in her original visa application and statements made in her interview in the Tribunal. A third version of events was derived from the appellant’s response to a s 424A letter. It is well known that a person’s recollections and recounting of previous events will vary from time to time for reasons which may be largely subliminal, and without dishonesty. For any number of reasons the person may emphasise different things at different times, or even overlook matters which, on other occasions, were treated as important. A tribunal of fact should not automatically treat any inconsistency as demonstrating dishonesty or unreliability. It must ask itself whether such inconsistency does so, or whether there may be other reasons for the inconsistency.

7. In the appellant’s initial application, she said:

   ‘Ms. Hong Ying Lin was a devote [sic] Christian.  She told me that every life was the gift of God, and we had to take care of it very much.  Assisted by Ms. Lin, I started studying the Bible and attending religious gatherings at Ms. Lin’s or other religious sisters or brothers’ home. 

   The Christian church, that Ms. Hong Ying Lin belonged, was called a Chinese Christian Family Church, which was an unofficial church and which was not recognised by the PRC authorities.  Therefore, in order to avoid attention of the local government, such as the Public Security Bureau (“PSB”), Ms. Lin. and other leaders of the church had to organise all religious activities with cares, including frequently changing gathering places and rarely had large gatherings. 

   On 28 August 2004, which was a Sunday, I was baptised, and became a genuine Christian.

   On 18 January 2005, with love of God and cares of many religious sisters and brothers, like Ms. Hong Ying Lin, my second daughter was born smoothly.

   In March 2005, I returned to my home town with my new born daughter, and I had some hesitation at the beginning. but I prayed and believed that I would be protected and cared by God.  Finally, I escaped from serious punishment, excepting being fined RMB 10,000 yuan.’

8. The Tribunal summarized the appellant’s later evidence as follows:

   ‘The [appellant] stated Ms Lin was a housewife but she belonged to the underground Church and spread the Gospel.  The [appellant] stated if she goes back she will be killed and broken into 100 pieces.  She stated her friends in the Church had all been arrested. 

   The [appellant] stated she began to have contact with the church when she went home.  Ms Lin who took care of her came to look for her in May in order to expand the underground Church.  She stated she was living with Ms Lin for 9 or 10 months from May.  She stated Ms Lin said her baby was a gift from God.  She stated Ms Lin did not dare take her to the Church to take part in the worship because the underground church was secret.  So after a month or two,  Ms Lin learned about the [appellant’s] character.  The [appellant] stated that initially she had some reservations, but then she heard Ms Lin continuously praying for her and the [appellant] started to accept Jesus. 

   When asked what sort of activities the [appellant] did in Ms Lin’s house, she stated because she was pregnant and in hiding, if there was a gathering in her home, it was only then that she took part.  She did not leave the house to take part in outside activities.  When asked what kind of things she did at the gatherings, she stated singing hymns, and worshipping God.  She did not do anything else.  When asked what she did to pursue religion when she was living with Ms Lin, she stated she could not do anything, she had just given birth.  She then stated she was baptised.  When asked if she did anything else, she stated she dare not go out.  She stated at the gatherings that were in the house, she did not do anything, they sang hymns, worshipped God and later, they arranged to go out and spread the gospel.  They also prayed for the poor.’

9. The Tribunal identified inconsistencies between these two versions. One such inconsistency was the absence of any reference in the account given to the Tribunal of the appellant’s studying the Bible with the assistance of Mrs Lin. Another was her assertion in the Tribunal that she did not leave Mrs Lin’s house to attend religious activities. In her original application, she had said that she went to activities at other houses. In response to a s 424A notice the appellant sought to resolve the latter inconsistency by saying that before she gave birth, she remained at Mrs Lin’s house but that afterwards, she went to gatherings at other places.

10. Whilst there were inconsistencies in emphasis and terminology between these versions, some care needed to be taken in drawing any adverse inference from those inconsistencies.

11. A further area of concern was the appellant’s versions of her activities in her home town after Mrs Lin’s visit.  In her application, she said of such activities:

    In August 2005, my hardware shop was formally opened.  It was not a big shop; and Ms. Bao Zhu Chen and I were only staffs in the shop.  From then on, Ms. Chen and I secretly organised a Bible study group, distributed religious propaganda materials, and spread the Gospel to the local people.  My shop was a secret liaison station which, on one hand, kept in touch with Ms. Hong Ying Lin and other Christians of Chinese Christian Family Church in order to continually get support from them; and on the other hand, was a leading centre to maintain normal operation of the Bible study group.  However, in order to avoid attention of the PRC authorities, we rarely had gatherings at the shop; instead, they were held at different religious sisters or brothers’ homes.  The Bible study group was developed to about 30 members in the end.

    One of major tasks for my Bible study group was distributing religious propaganda materials to my hometown and nearby areas, which were mainly supplied by Ms. Hong Ying Lin and other Christians of Chinese Christian Family Church, concentrating on spreading genuine Christianity and seeking genuine religious freedom.  Those propaganda materials greatly came to the particular attention of the PRC authorities;  … .’

12. The appellant then addressed the circumstances in which such material had come to the attention of the police and the consequences.  In the Tribunal the appellant said that she had previously been in business and, after Mrs Lin’s visit, she had opened a metal workshop, presumably another way of describing a hardware store.  The Tribunal summarised her subsequent evidence as follows:

    ‘… In this shop she arranged for a list of underground church members.  She stated Ms Lin sent a Christian called Chen Bao Zhu to help her.  She stated she targeted people from families who suffered from violence, old people suffering from illness and pregnant women who were oppressed for her gospel.  When asked what the list of underground members was, she stated it was the members list, the people who go out to spread the gospel who were arranged by her.  When asked how she knew who they were, she stated because of God’s grace.  She stated she would talk to the people when they came to her shop, she would ask them to believe in God.  When asked what other religious activities she did, she stated she distributed pamphlets.  She stated she got the pamphlets from other places, from Ms Lin and other underground Churches and she and Chen Bao Chen when to all parts of the village and put them in letter boxes.  She also stated sometimes she would go out to the people’s places to visit the ill.

    When asked how she would spend her time with other believers, she stated she worked until late at night and had her daughter, she stated she prayed to God.  When it was put to her she stated in Ms Lin’s house she sung hymns and worshipped, she stated she did that in Songtang at the group gatherings.  When asked did she do anything else, she stated she spread the gospel. 

    The [appellant] stated the propaganda material was from the underground Church and there was a book from Zhong Xin, they were from abroad, and small copies of the Bible.’

13. Again the Tribunal considered that there were inconsistencies between these versions. In particular, it pointed to the reference in the original application to a Bible study group which was not expressly mentioned in the oral evidence. In her response to the s 424A notice, the appellant said that her shop was a cover for her Bible study group, and that she developed the group by recruiting new members.

14. The Tribunal found the appellant’s explanation of the perceived inconsistencies to be unsatisfactory.  It concluded that the appellant was not a credible witness, that she had not organized a Bible study group, and that she had not distributed religious propaganda material or spread the Gospel in China.  The Tribunal also concluded that she had not established a “liaison station”, and that she had not attracted the attention of the police.  It concluded that she had not been assisted by Mrs Lin in studying the Bible and had not attended religious gatherings at Mrs Lin’s home or at the homes of others.  My remarks concerning perceived inconsistencies in connection with the appellant’s activities while she was living with Mrs Lin apply also to perceived inconsistencies in connection with her accounts of her evangelical activities at the shop. 

15. Neither this Court nor the Federal Magistrates Court may substitute its view of the facts for that formed by the Tribunal.  The Tribunal has the primary function of fact-finding.  It is usually in a better position to determine questions of credibility and to draw inferences from facts than will be either the Federal Magistrates Court or this Court.  To the limited extent of my contact with matters of this kind, I have found that the Tribunal generally performs these functions appropriately and conscientiously.  I do not mean to reflect adversely upon the particular Tribunal member who gave the present decision.  However I must say that this case falls very close to the line between a cogent explanation of an adverse finding of credibility and an attempt at an explanation which is no explanation at all.

16. It is, of course, appropriate for a tribunal of fact to identify perceived inconsistencies and to consider their effect upon the reliability of the evidence of the relevant witness.  However giving evidence is a human activity, and any assessment of such evidence must take that into account.  Many factors may influence the version given on a particular occasion.  The Tribunal may be unaware of such factors when it seeks to assess the witness’s evidence.  No tribunal of fact, court or otherwise, should assume its own omniscience.  From time to time it is appropriate that the Court draw to the attention of decision-makers, such as the Tribunal, the need to scrutinise evidence with care, and similarly to scrutinize their own reasons for accepting or rejecting evidence.

17. I have reflected upon the extent of my dissatisfaction with the reasons offered in this case by the Tribunal for its unfavourable assessment of the appellant’s evidence.  In the end, I have concluded that this is not a case in which I should intervene.  The appellant’s case was fairly fully addressed, and the inconsistencies were not completely insubstantial.  I make these remarks in the hope that they may be of some assistance to Tribunal members in the difficult function which they perform and may remind them of the seriousness of their task.

18. One other matter requires comment.  As I have mentioned, the appellant claimed to be an active member of a Christian church in Sydney.  There was evidence supporting her involvement.  It is always possible that a visa applicant may engage in such activity for the purpose of bolstering his or her claim.  However the Tribunal should keep in mind the possibility that if a person has apparently been accepted as a church member by other members, such acceptance may suggest sincere adherence by the person to the relevant faith. 

19. In the circumstances, there is no demonstrated basis for upsetting the Federal Magistrate’s decision.  The appeal must be dismissed.  I order that the appellant pay the first respondent’s costs of the appeal.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       19 March 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr M Cleary
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	20 February 2008
Date of Judgment:	20 February 2008