SZLHL v Minister for Immigration - [2008] FMCA 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 361

MIGRATION – Review of RRT decision – where Tribunal found applicant was not a credible witness – whether breach of s.424A Migration Act 1958 – whether Tribunal required to make enquiries – whether decision of Tribunal illogical.

Migration Act 1958, s.91R(3)

SZATG v Ministerfor Immigration [2004] FCA 1595
VCAK of 2902 v Ministerfor Immigration [2004] FCA 459
Seyfarth v Minister for Immigration [2004] FCA 1713
SZDTZ v Minister for Immigration [2007] FCA 1824
NATC v Minister for Immigration [2004] FCAFC 52

Applicant:

SZLHL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2796 of 2007

Judgment of:

Raphael FM

Hearing date:

6 March 2008

Date of Last Submission:

6 March 2008

Delivered at:

Sydney

Delivered on:

6 March 2008

REPRESENTATION

Applicant in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2796 of 2007

SZLHL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 20 December 2004 and applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 30 January 2007. On 1 March 2007 a delegate of the Minister refused to grant a protection visa and the applicant applied for a review of that decision by the Refugee Review Tribunal on 20 April 2007.
The applicant attended a hearing before the Tribunal together with a witness on 7 June 2007. On 28 June 2007 the Tribunal wrote to the applicant a lengthy letter advising him of information that would, subject to any comments he might have to make, be the reason or part of the reason for deciding that he was not entitled to a protection visa [CB101-105]. The applicant responded to that letter by a document dated 20 July 2007 delivered on 23 July 2007. On 26 July 2007 the Tribunal determined to affirm the decision and it handed that decision down on 16 August 2007.
The decision of the Tribunal is found at [CB147-177]. It sets out in considerable detail the grounds upon which the applicant claimed that he was a person to whom Australia owned protection obligations. These grounds were first articulated by the applicant in a statutory declaration [CB25-30]. To put the matter shortly, the applicant claimed that he was a person the Chinese authorities considered a dissident from the early 1980s when he first travelled to Beijing to read the character posters. He founded an organisation called a “reading group” amongst his classmates which was later dispersed by the university authorities at the university in which he was studying.
In 1989 the applicant travelled to Beijing again. He remained there from May until 3 June 1989, the day before the events at Tiannamen Square, which have now become notorious. He returned to his home on 3 June 1989 when he was taken to the police station and stayed there for two or three hours. He was told not to leave the city and to report his activities once a month and not to say anything to other people. Nothing further happened, although he continued to report, until October 1989 when he was taken into custody again and, eventually, in December 1989 he was committed to prison for six years. His views about the government did not change during his time in prison where he claims he was badly treated and subject to persecution including a particular incident where another prisoner pressed his forehead on the sharpened side of a chopstick and he was beaten and rendered unconscious: [CB29]
“During the eight years since I left prison until I left China, I didn't have a stable job. Because of the threat of the police officers of the public security bureau, no employers dared hire me. I can only make a living through doing casual job and repairing automobiles for the others. Moreover, whenever it was the anniversary of “June fourth accident” I would be restricted to left home and prohibited to contact with my friends. Later when there were sessions of national peoples congress and Chinese peoples consultative committee or visits from Western country leaders, I was prohibited to do any activities. The police station also prohibited me to go to Beijing through public proclamation. Under this situation of unfreedom, my mind and body were doubly tortured. In 2004, I really can't endure this kind of life, so I decided to flee away from China.”
The applicant claimed that he left China through the aid of a travel agent who obtained a business visa for him. He had been given his passport in August 2004 but did not leave until December 2004. He did not apply for a protection visa immediately upon his arrival in Australia or immediately after the expiration of his short stay business visa and only made his application some two years after his arrival. In the meantime he became active in the Peoples Democracy movement in Australia where he claimed to have been elected to a senior office holder’s position. Written evidence confirming his association with the FDC (Australian Federation for a Democratic China) was provided. The applicant also provided evidence of his attendance at rallies outside the Chinese embassy.
In helpful written submissions Ms Buchanan provides at para.4 a paraphrasing of the Tribunal's reasons for its findings in relation to the applicant's credibility. The basis upon which the Tribunal refused to set aside the decision of the delegate was that it did not accept the evidence of the applicant in relation to what occurred in China and it was not satisfied that his pro-democracy activities in Australia were not undertaken for reasons other than enhancing his claim for refugee status in this country. It therefore felt bound to apply the provisions of s.91R(3) of the Migration Act 1958 (“the Act”).
I have read the Tribunal decision and I accept the precis put forward by Ms Buchanan which I set out below:
“ 4.1    Inconsistencies between the applicant's statutory declaration submitted with his protection visa application and his oral evidence to the Tribunal [CB 168 -170], regarding the reading party.
4.2     Inconsistencies between the applicant's statutory declaration submitted with his protection visa application and his oral evidence to the Tribunal regarding the events of 1989 regarding whether he had written the petition given to the People’s Congress [CB 172-173.] details of what occurred when he was arrested in October 1989 [CB 173] and what occurred on or after 4 June 1989 [CB 173-174].
4.3       It did not find credible that the applicant was not dismissed from the university for more than a year after the banning of the reading group nor that he would start reform from labour more than two years afterwards. [CB 170]
4.4 - Changing statements regarding his father's position in the Communist party led the Tribunal to find that the statement in his protection visa application was to advance his claim for protection [CB 170-171].
4.5 - The applicant's explanation for the delay of over two years in applying for a protection visa after his arrival in Australia was not credible [CB 171,175-176].
4.6 - The applicant's delay in leaving China, eight years after his release from detention and a further delay of four and a half months after obtaining his passport [CB 171-172,175].
4.7 -   It did not accept the applicant's explanation for why he only mentioned for the first time at hearing that he had been beaten by fellow inmates while detained in October and December 1989. [CB 174]”
The Tribunal concluded, for the reasons given above that the applicant was not a witness of truth and, therefore, it did not accept that he had a well-founded fear of persecution for reason of his political opinion, nor that if he returned to China he would be the subject of persecution for the same reason.
The applicant filed an application in this court on 12 September 2007. In the grounds of the application he states, firstly, that he is a citizen of China and that he will be at risk of persecution should he return there. This of course is not a ground for review. He then states that the Tribunal failed to understand his claims and failed to consider relevant matters, “further particulars to be provided”. Regrettably, no further particulars have surfaced. He then states that the Tribunal failed to comply with its obligations under s.424A of the Act:
“Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in our protection, which information was not provided to the applicants in accordance with s.424A”.
The applicant has not assisted the court or the respondent by providing details of the information that he refers to, although it is to be remembered that a very lengthy s.424A letter was actually sent to the applicant.
The applicant continues his grounds by stating that the Tribunal “refused to grant my protection visa without any proper grounds and proper investigation”. From my reading of the Court Book I can see there were two areas in which the applicant was concerned that the Tribunal did not make proper investigations. The first related to the Tribunal's concerns that although he had got his passport in August 2004, he had not left the country until December. The answer given by the applicant was that it took between August and September for the travel agent (to use a neutral term) to make the necessary arrangements. Those arrangements included obtaining what was clearly a false visa to get into Australia.
The duty to enquire has been the subject of considerable judicial authority. In SZATG v Minister for Immigration [2004] FCA 1595 Hely J at [22] said:
“Section 427(1)(d) of the Act empowers the RRT to require the Secretary to arrange for any investigation that the RRT thinks necessary with respect to the review, and to give the RRT a report of that investigation. However, s 427 confers a power on the RRT, but does not impose any duty or obligation on the RRT to exercise that power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[2004] HCA 32; (2004) 78 ALJR 992 at [43] (Gummow and Hayne JJ).”
These views were echoed by Crennan J in VCAK of 2902 v Ministerfor Immigration [2004] FCA 459. In Seyfarth v Minister for Immigration [2004] FCA 1713 Hely J also said at [95]:
“There is no general duty on a decision-maker ‘to prompt and stimulate an elaboration which the applicant chooses not to embark upon’: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 (Gummow and Heydon JJ). There is no general obligation on the Minister to make his own enquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister: Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 435 at [45], [51] (Hill J). A failure to make enquiries may sometimes be a breach of the rules of natural justice or render a decision unreasonable (Re Minister for Immigration & Multicultural Affairs ; Ex parte Cassim[2000] HCA 50; (2000) 175 ALR 209 at [12] – [14] (McHugh J)), but there is no warrant for a finding to that effect in the circumstances of the present case.”
Whilst I have no doubt that it would not have been very difficult for the Tribunal to have made some enquiries about the time taken to obtain the business visa for this applicant, I am unable to say that the Tribunal fell into jurisdictional error by not doing so. The Tribunal had made it quite clear to the applicant that it had concerns about this matter and, consistent with the applicant's obligations to satisfy the Tribunal of his claims, the duty to alleviate the Tribunal's concerns fell to the applicant himself.
In his application the applicant continues with a sincere hope that the government will provide him with protection because he would be gaoled if he returned to China. This appeal is not an indicator of jurisdictional error in the tribunal.
Finally, the applicant says that the decision made by the Tribunal is illogical. Greenwood J considered the question of illogicality in these matters in SZDTZ v Minister for Immigration [2007] FCA 1824. At [32] his Honour said:
“A determination of the tribunal as to a state of satisfaction or otherwise of the relevant criteria or criterion in question that is based upon the finding of fact, or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference or if there be some evidence, although inadequate, of reliance by the tribunal upon that inadequate evidence gives rise to an inference that the tribunal has misconceived the test, or is not, in reality, satisfied of the requisite matters as a result of which there has only been a purported rather than a real exercise of the power conferred on the tribunal.”
In NATC v Minister for Immigration [2004] FCAFC 52, the Full Bench noted at [26]:
“The primary judge found:
"The factual findings might, perhaps, not have been made by everybody, but that of itself is of no significance."
It then proceeded to say at [27]:
“Opinions can vary upon what is inherently improbable or unacceptable as evidence of a fact or of what evidence “makes sense”, that is whether evidence is probative in relation to a particular fact. In the absence of perversity or some manifest error sufficient to give rise to some jurisdictional error, the Court cannot intervene.”
In this particular case the findings made by the Tribunal about the applicant's credibility based upon stated inconsistencies between his evidence given orally and evidence provided to the Tribunal in the form of statutory declarations was open to the Tribunal, even though one might have sympathy with the applicant's complaint before this court, that he was being asked questions about events that occurred some 20 years ago and could not be expected to remember it all and be completely consistent.
Another Tribunal may have had more sympathy for the applicant when he stated in response to a query from the Tribunal as to why he had not previously described a beating up that he obtained during detention, that such beatings were common and he could not repeat everything that he encountered. This is not to say that the Tribunal whose decision the court is considering did not have a rational basis for making a finding that an inconsistency had taken place or that the failure to provide the information indicated a lack of truthfulness.
Before me today the applicant stated that the Tribunal had focussed on details of what happened 20 years ago and failed to consider the consequences that would occur to him should he return to China. I have already dealt with the complaint that the Tribunal was wrong to attribute so much importance to evidence about events long past. In regard to the consequences, should the applicant return to China, they were considered by the Tribunal which found there would be no consequences because it did not believe that the events he complained of had taken place.
The applicant complained that he had wanted to show the Tribunal a scar resulting from the injury which he suffered whilst in prison. He told me that the Tribunal had refused to look at it. In the absence of a transcript and no reference to this fact in the Tribunal's decision record I am unable to assist the applicant in this regard. In all probability the Tribunal would say that as it did not believe he went to prison it would not believe that the scar was caused by an incident that took place there.
The applicant told me that the Tribunal had discarded his activities in Australia. He told me that he had presented candlelight petitions in front of the Opera House. The reason why the Tribunal "discarded" his pro-democracy activities whilst in this country were those explained by the Tribunal at [CB 176] and, in particular, the provisions of s.91R(3) of the Act. I do not believe the Tribunal fell into jurisdictional error in this way.
The applicant then gave me some reasons why he had waited two years to apply for his protection visa. This is additional evidence which was not before the Tribunal and I am unable to take it into account when considering whether the Tribunal made an error in a decision which did not include that evidence.
Having considered the decision in detail and having heard the applicant's submissions I am still unable to find any ground upon which I believe the Tribunal erred in a manner that would allow me to provide the review requested. I dismiss the application. I order the applicant pay the respondent's costs which are assessed in the sum of $3,100.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 20 March 2008