SZLNU v Minister for Immigration
[2008] FMCA 1200
•28 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1200 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal had regard to the applicant’s nervousness – whether the Refugee Review Tribunal had regard to all the applicant’s evidence – whether the Refugee Review Tribunal misstated the applicant’s daughter’s evidence – bias – whether the Refugee Review Tribunal was obliged to consider whether independent claims of the applicant’s daughter affected the applicant’s claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424A; 424B; 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 688 NABE v Minister for Immigration (2004) 144 FCR 1 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | SZLNU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3286 of 2007 |
| Judgment of: | Emmett FM |
| Hearing dates: | 21 April 2008; 2 May 2008; 3 July 2008; 25 July 2008; and, 25 August 2008 |
| Date of last submission: | 25 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Mr J. Pinder, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3286 of 2007
| SZLNU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 September 2007 and handed down on 25 September 2007.
The Applicant claims to be from the People’s Republic of China (“the PRC”) and previously employed as a farm labourer and construction labourer (“the Applicant”).
The Applicant arrived in Australia on 15 April 2007 having departed legally from Shanghai Pudong International Airport on a passport issued in his own name and a tourist (short stay) visa valid to 24 April 2007.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s protection visa application and Delegate’s decision
On 23 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant provided a statutory declaration in support of his visa application in which he stated he worked as a farmer’s labourer in the PRC. The Applicant stated that in October 2006 a fellow worker was seriously injured in an accident at the construction site. The Applicant stated that the construction company failed to give the worker any worker’s compensation for his injury and dismissed him immediately. The Applicant stated that he lead a group of farmer’s labourers to negotiate with the managers of the construction company on behalf of the injured worker seeking that the construction company pay the medical expenses of the injured worker and give him compensation. The Applicant stated that, as a result of his conduct, the Applicant was dismissed and his “labourer’s fee was completely deducted.”
The Applicant stated that on 6 November 2006 he joined other workers in a protest at the site office of the construction site shouting slogans such as “Respect Human Rights!”, “Respect Farmer’s Labour!” and “Give Compensation to [the injured worker]!”. The Applicant stated that he was one of about ten farmer’s labourers arrested by the police following this protest and detained by the Public Security Bureau (“the PSB”) for “anti-government movement” for 46 days, during which he was “physically and mentally mistreated and tortured not only by the police but also by the criminals at the detention centre”. The Applicant stated that his family had to pay a bribe for his release. The Applicant stated he had to confess his anti-government activities and promise not to protest again.
The Applicant stated that following his return to his home town it was impossible for him to “have any normal livings” and he was regularly in trouble with the local police as well as the local government. The Applicant stated that he was frequently questioned at his home and asked to report his activities to the local police station. He stated that he was refused work because his prospective employers were warned by the local authorities about his “bad record with the PSB.”
The Applicant stated that he had assistance in escaping from the PRC from a relative of the injured worker who worked for a travel agency.
On 11 May 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate found that the deprivation of the Applicant’s ability to earn a living had no Convention nexus and that there was no evidence that the harm the Applicant claimed to fear was “both sufficiently serious and has a different impact based on the applicant’s civil or political status.” The Tribunal found that the Applicant’s involvement in the protest was not “as political dissent against a political system” and that country information before it indicated the courts in the PRC handle complaints and appeals relating to economic grievances of citizens.
The Delegate also found the Applicant’s claims to be “unsubstantiated and lack in specific details.” The Delegate noted that the Applicant provided neither a detention certificate nor a receipt for the fine he claimed he had been made to pay. The Delegate found that there was a “lack of credible evidence to support the applicant’s description of events.” The Delegate had regard to the fact that the Applicant continued to reside at the same address until he left for Australia. The Delegate found the Applicant’s claims of continued monitoring by the local authorities since December 2006 were “vague and lacking in specific details”. The Delegate found that the Applicant’s claim of unemployment was not Convention-related.
The Delegate found that there was “no objective evidence to indicate that the applicant was a profile that would attract adverse attention from the authorities if he were to return to the PRC.” The Delegate found that illegally obtaining a passport in the Applicant’s own name through bribery “would be possible, but highly expensive.”
The Delegate found that the Applicant’s claims had been fabricated and, accordingly, found that the Applicant did not have a genuine fear of harm. The Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant was not a person to whom Australia had protection obligations.
The Tribunal decision
On 8 June 2007, the Applicant lodged an application for review of the Delegate’s decision. The Applicant did not provide any further information in support of his review application.
On 7 August 2007, the Applicant appeared before the Tribunal and gave oral evidence. The Tribunal also heard evidence from the Applicant’s daughter who gave evidence in support of her father’s application.
The Tribunal accurately summarised the Applicant’s claims as provided in the Applicant’s statutory declaration dated 23 April 2007 in support of his protection visa application. The Tribunal’s decision record discloses exploration by the Tribunal with the Applicant of the Applicant’s claims relating to his work as a farmer’s labourer; his employment history with the company whom he claimed dismissed him as a result of his alleged protests; the circumstances of the alleged accident in October 2006; the Applicant’s allegations of abuse of him by the construction company; his involvement in a protest; his alleged detention from November 2006; his alleged treatment during detention; the circumstances of his departure from the PRC; the obtaining of a passport in his own name; and, information in the Departmental file that indicated that the Applicant had claimed he was a board chairman of a company and that his daughter was the finance manager of the company.
The Tribunal noted that the Applicant informed the Tribunal that the information about being a board chairman and that his daughter was the finance manager was false and had been provided in order to enable him to leave the PRC and obtain a visa. The Tribunal noted that the Applicant said that “the company was all fiction; he said he was never a Board Chairman of the alleged Company.” The Tribunal noted the Applicant’s explanation as acting on the advice of a friend in order to escape from the PRC. The Tribunal noted that it told the Applicant that there could be many reasons for him providing incorrect information and it did not necessarily mean he did so to avoid persecution or because he feared persecution.
The Tribunal record discloses that the Tribunal then asked the Applicant about his daughter’s knowledge of his claims of persecution and his detention and noted the Applicant’s response that the daughter did not know very much because she lived at different locations.
The Tribunal record discloses that the Applicant’s daughter gave evidence that she was aware that an incident on the construction site had taken place where someone was injured and that her father had been taken away by police, although she did not know when. The Tribunal noted that it asked the Applicant’s daughter if she had ever been the finance manager of the company identified by the Applicant as the one in respect of which he claimed to have been board chairman. The Tribunal noted that she stated that she had been the finance manager for about six to seven years. The Tribunal noted that it asked the Applicant’s daughter if the company was still in existence in 2006 and noted her answer that it was. The Tribunal then asked the daughter if her father was involved in the company and noted her response that her father was not involved in the company and that he had not ever been chairman. The Tribunal noted that it indicated to the daughter that the Tribunal had information suggesting that her father had alleged that he was the board chairman of the company and noted her response that the story was “all cooked up by the travel agent.” The Tribunal noted that the Applicant’s daughter said “I’m so sorry I lied to you.”
Following the hearing the Tribunal sent the Applicant a letter pursuant to s.424A of the Act dated 13 August 2007 in respect of information that may be part of the reason for affirming the decision under review. The Tribunal noted the Applicant’s response dated 27 August 2007 in the form of a statutory declaration and summarised its contents in detail.
The Tribunal noted that the Applicant claimed to have been nervous at the time of the hearing, however, was satisfied that the evidentiary concerns of the Tribunal were unrelated to any “claimed nervousness or pressure, or any other factor.”
The Tribunal found the Applicant’s evidence to be confused, internally inconsistent and unconvincing. The Tribunal gave particular examples of inconsistencies in the Applicant’s evidence and noted the Applicant’s explanations which it found to be “unpersuasive”. Ultimately, the Tribunal found the Applicant’s claims to have been fabricated. The Tribunal found that whilst it accepted “as plausible that there is corruption in China, in consideration of the evidence as a whole, the Tribunal is satisfied that the fact that the Applicant left China without any difficulty suggests that he is of no adverse interest to the Chinese authorities”.
The Tribunal accepted as plausible that the Applicant may have worked as some stage as a farmer’s labourer, however rejected his claims of having suffered any harm. Otherwise, the Tribunal comprehensively rejected all the Applicant’s claims.
The Tribunal found that his admitted lies gave rise to serious doubts about his evidence and credibility.
The Tribunal found there was not a real chance that the Applicant would suffer serious harm for any Convention-related reason in the reasonably foreseeable future if he were to return to the PRC and work as a farmer’s labourer.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant filed an application for judicial review of the Tribunal’s decision on 23 October 2007.
The Applicant was unrepresented at the hearing before this Court, although had the assistance of a Mandarin interpreter. The Applicant confirmed he relied upon the grounds in his application. Those grounds are as follows:
“There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
1. The Tribunal’s decision is mainly based on its assessment against my credibility; and the assessment was greatly relied on those “inconsistent” or “confused” evidences given at the Tribunal’s hearing.
2. I am really not sure whether or not the Tribunal might “carefully” observe me “in the course of the hearing”; but it is the fact that I was really nervous at the hearing before the Tribunal and under huge pressure at that time. It was indeed a major reason why some of my evidences seemed to be “inconsistent” or “Confused”. The Tribunal has, in fact, refused to accept this fact or failed to consider it properly solely owing to its bias.
3. On the other hand, the Tribunal made its finding was greatly depended on its assumption without fairly bringing an independent mind to look at all of my claims or evidences.
4. Regarding my further evidences or explanations or comments on the issues arising from the Tribunal’s s.424A letter, the Tribunal, on many occasions, rejected them without given any reasons apart from simply using the words such as “The Tribunal is not persuaded”.
5. Also, my daughter’s evidence has, apparently, misstated by the Tribunal. She has never given the evidence such as that she “had lied to the Tribunal”.
6. In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.”
Each of the grounds and particulars was interpreted for the assistance of the Applicant and he was invited by the Court to say whatever he wished in support of the grounds and in support of his application generally. The Applicant declined to make any submission in support of his application.
The hearing was adjourned. On the next occasion, the Applicant informed the Court that he had not asked his daughter to be a witness in his application because she did not know anything about his case. He said he asked his daughter only to accompany him to the hearing. The Applicant said that when the Tribunal asked his daughter to be a witness it did not seek the Applicant’s permission and that it was unfair of the Tribunal to ask his daughter to be a witness without his consent.
The matter was again stood over and a transcript of the hearing before the Tribunal was filed by the First Respondent. The hearing commenced with the following exchange between the Tribunal member and the Applicant:
“MS YOUNES: Good morning and welcome to the tribunal. Could the interpreter be sworn please?
<INTERPRETER, AFFIRMED
MS YOUNES: Please sit down, thank you, madam interpreter. If the applicant could be sworn please?
<[APPLICANT], AFFIRMED
MS YOUNES: Please sit down, thank you. I understand that you daughter is here, is that right?
THE INTERPRETER: Yes.
MS YOUNES: Is she going to give evidence?
THE INTERPRETER: Yes.
MS YOUNES: Then she will have to be sworn please. Please come forward.” [Emphasis added].
Further, during the daughter’s evidence to the Tribunal, the Tribunal said the following:
“MS YOUNES: Mr [Applicant], I’m going to remind you again not to answer. If you continue to do that I have to reconsider my position very carefully; in particular whether there is any point in taking evidence from your daughter if you’re going to answer on her behalf. You have asked me to take evidence from you daughter. I didn’t ask for that. If you want me to take evidence from her you cannot answer on her behalf, you cannot tell her the answers either Mr [Applicant].” [Emphasis added].
Following the conclusion of the daughter’s evidence the Tribunal asked the Applicant if there was anything that he wished the Tribunal to ask his daughter and the Applicant answered “No”.
A fair reading of the transcript of the hearing makes clear that the Tribunal asked the Applicant whether his daughter was going to give evidence and the Applicant responded “Yes”. The Tribunal also put to the Applicant that he had asked the Tribunal to take evidence from his daughter and that the Tribunal did not ask for that evidence. The Tribunal put to the Applicant that it was the Applicant’s decision for the Tribunal to take evidence from his daughter and it was not the Tribunal’s decision. The Applicant responded “I think I had better go back to the back seat”. The transcript makes clear that at no time did the Applicant complain about the Tribunal taking evidence from his daughter and that the Tribunal took evidence from the daughter at the request of and with the consent of the Applicant.
In the circumstances, the daughter’s evidence was given to the Tribunal by the Applicant for the purpose of his review application. In the circumstances, there was no information provided by the daughter that enlivened the obligations of s.424A of the Act. Further, the information given by the daughter was not given pursuant to an invitation by the Tribunal to provide that information. In the circumstances, s.424 and s.424B of the Act have no application.
Consideration of particulars of grounds
The particulars provided in support of the grounds of the application in support of the contention that there was a procedural error in the Tribunal’s decision constituting an absence of natural justice and an error of law constituting jurisdictional error are dealt with below.
Particular 1 – “The Tribunal’s decision is mainly based on its assessment against my credibility; and the assessment was greatly relied on those “inconsistent” or “confused” evidences given at the Tribunal’s hearing”
A fair reading of the Tribunal’s decision makes clear that at the heart of the Tribunal’s affirming the decision under review was its adverse credibility finding and its comprehensive rejection of the Applicant’s claims, other than its acceptance “as plausible that the Applicant may have worked at some stage as a farmer’s labourer”. A fair reading of the Tribunal’s decision makes clear that the Tribunal explored the Applicant’s claims with him at the hearing and put to him concerns it had about inconsistencies in his evidence and his written claims and noted the Applicant’s responses. Further, the Tribunal reiterated its concerns in writing to the Applicant, following the hearing in a letter, dated 13 August 2007. The Tribunal noted the Applicant’s written response, dated 27 August 2007, however, was not persuaded by the various explanations given in that letter.
The Tribunal’s findings in respect of the Applicant’s credibility were based on its evaluation and assessment of the evidence and material before it and were open to it for the reasons it gave. Credibility findings are a matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]).
Otherwise, the Applicant’s complaints are no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Particular 2 – “I am really not sure whether or not the Tribunal might “carefully” observe me “in the course of the hearing”; but it is the fact that I was really nervous at the hearing before the Tribunal and under huge pressure at that time. It was indeed a major reason why some of my evidences seemed to be “inconsistent” or “Confused”. The Tribunal has, in fact, refused to accept this fact or failed to consider it properly solely owing to its bias”
and
Particular 3 - “On the other hand, the Tribunal made its finding was greatly depended on its assumption without fairly bringing an independent mind to look at all of my claims or evidences”
Again, the Applicant’s complaints as reflected in these particulars are more in the nature of a disagreement with the Tribunal’s decision and adverse credibility findings.
In the Tribunal’s decision record, the Tribunal noted that the Applicant said that he was under “huge pressure” and was “really nervous” in the course of the hearing. The Tribunal noted that it appreciated that “nervousness can adversely impact on one’s ability to give clear evidence and to recollect information”. However, the Tribunal stated as follows:
“The Tribunal carefully observed the applicant in the course of the hearing and the Tribunal is satisfied that the applicant did not appear to give any impression of being “really nervous” or that he was under any pressure (or any other factor)”.
The Tribunal was satisfied that the Applicant did not suffer from “any condition, including but not limited to, extreme nervousness or ‘huge pressure’ or health problems that had impacted adversely on his ability to give evidence”.
Accordingly, the Tribunal found that the concerns it had about the Applicant’s credibility in the giving of his evidence were “unrelated to any claimed nervousness or pressure or any other factor”.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered the Applicant’s claims of being nervous and under pressure at the hearing, however, found that there was no evidence before it to support those allegations and that they were unrelated to the reasons why the Tribunal made its adverse credibility findings.
As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Further, I accept the submissions of the First Respondent as follows:
“26. Further, insofar as the Applicant's claims amount to an allegation that he was so nervous and 'under pressure' at the hearing that he was denied a 'real and meaningful' hearing, pursuant to s 425 of the Migration Act, that allegation must fail. As French J observed in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [43]:
it is undoubtedly the case that many people, perhaps most people, who appear before the Tribunal are under emotional stress. This does not require an inquiry by the Tribunal in every case where an applicant is evidently under stress, into the question of the applicant’s fitness to appear.
27. Moreover, the Tribunal's decision record makes it clear that the Tribunal did turn its mind to the Applicant's capacity to participate meaningfully at the hearing, and assessed him as capable of participating.”
Particulars 2 and 3 also appeared to allege bias in that the Tribunal failed to consider the Applicant’s nervousness and pressure “properly solely owing to its bias” and did not bring an independent mind to bear on the Applicant’s claims.
However, a fair reading of the Tribunal’s decision record and the transcript of the Tribunal hearing does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision record and the transcript does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 (“Ex parte H”) at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
A fair reading of the transcript makes clear that the Tribunal asked the Applicant straight forward questions and the Applicant gave meaningful responses, the Tribunal explored and tested those aspects of the Applicant’s evidence that it found to be confusing or inconsistent, as it was entitled to do (Ex parte H at [30]).
The Tribunal regularly invited the Applicant to expand on his answers. The Tribunal gave the Applicant a break during the hearing and around noon and on return asked the Applicant whether he had eaten anything. The Tribunal’s language appeared appropriate and un-aggressive. Further, the Tribunal put to the Applicant in writing the concerns it had expressed about his evidence at the hearing and provided the Applicant with a further opportunity to respond. The Tribunal then had regard to the Applicant’s further responses and explanations, although, ultimately it remained unpersuasive.
Simply because the Tribunal makes a finding that is adverse to the Applicant does not lead to the conclusion that the Tribunal had not been open to persuasion. As von Doussa J stated in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 688 at [38]:
“The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.”
Accordingly, the allegation of bias or apprehended bias is rejected.
Particular 4 – “Regarding my further evidences or explanations or comments on the issues arising from the Tribunal’s s.424A letter, the Tribunal, on many occasions, rejected them without given any reasons apart from simply using the words such as ‘The Tribunal is not persuaded’”
A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to the Applicant’s explanations about matters of concern put to him by the Tribunal both at the hearing and again in writing. The Applicant did not identify any explanation rejected without reasons and none is apparent on a fair reading of the Tribunal’s decision record.
Otherwise, particular 4 appears to be no more than a disagreement with the adverse findings and conclusions of the Tribunal and, in particular, its failure to be persuaded by the Applicant’s explanations for concerns raised by the Tribunal in its letter dated 13 August 2007.
As stated above in these Reasons, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave. Particular 4 otherwise seeks merits review which, as stated above, this Court cannot undertake.
Further, I accept the written submissions of the First Respondent as follows:
“46. As to those reasons, the Tribunal rejected the Applicant’s claims on the basis of an adverse conclusion about his credibility – a matter for the primary decision-maker ‘par excellence’ (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 [67]). A conclusion that the Tribunal had (for example) given too much weight to an adverse inference, or perceived inconsistency where none existed, would establish no more than a mistake of fact. It would not establish jurisdictional error. Similarly, a want of logic in fact-finding would not in itself amount to jurisdictional error (See eg NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1, 16-17 [52]-[54]). It cannot be said that there was no rational basis for the Tribunal to conclude that the Applicant lacked credibility; and, absent a finding of that kind, there is no failure by the Tribunal to perform its statutory task (Cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 67 [36]).”
Particular 5 – “Also, my daughter’s evidence has, apparently, misstated by the Tribunal. She has never given the evidence such as that she “had lied to the Tribunal”
The Applicant’s daughter gave evidence that she did not know much about her father’s case “as she was busy”. She said that her mother had told her that her father had been detained by authorities for more than a month, however, she did not know when.
The transcript of the hearing makes clear that the Applicant’s daughter told the Tribunal that she had been the finance manager of a company for about six or seven years. Later in her evidence, the transcript reveals that the Applicant’s daughter gave the following evidence:
“MS YOUNES: I have information that indicates that you told – well either you or your dad, I’m not sure who, that the travel agency was told that he was a chairman – he was the board chairman.
THE INTERPRETER: Okay, I – I can tell you now that all cooked up by the travel agent when we were departing from here. I wasn’t the financial manager for that company ever, I’m so sorry I lied to you just now.
MS YOUNES: So a few seconds ago you’re admitting to have told me a lie?
THE INTERPRETER: Right, sorry. Because the travel agent asked us to say like that.
MS YOUNES: Like what, asked you to lie?
THE INTERPRETER: Yes. Because if there is no – if there wasn’t a business to sponsor us we wouldn’t be able to get out.
MS YOUNES: You swore earlier that you would tell me the truth.
THE INTERPRETER: Yes, that’s why I apologised; I will tell you the truth now.” [Emphasis added].
The above exchange makes clear that the Applicant’s daughter admitted to the Tribunal that she had lied when she told the Tribunal earlier in her evidence that she was the financial manager of the company.
In the circumstances, the Tribunal did not misstate the Applicant’s daughter’s evidence when it found that she “had lied to the Tribunal”.
The Tribunal’s consideration of the daughter’s claims
The Tribunal stated that it needed to consider whether there was a real chance of harm occurring to the Applicant “based on claims made by his daughter”. The Tribunal stated the following:
“The facts of the case mean that the Tribunal needs to consider if there is a real chance of harm occurring to the applicant based on claims made by his daughter. The Tribunal has also determined the daughter’s application for a protection visa and for reasons outlined in that Decision, the Tribunal has not accepted that she has a well-founded fear of persecution. In consideration of the evidence as a whole, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm as contemplated by the Act, or persecution as contemplated by the Convention in the reasonably foreseeable future if he were to return to China on the basis or any claims made by his daughter.”
The Court has considered whether or not the Tribunal was obliged to consider whether there was a real chance of harm occurring to the Applicant “based on claims made by his daughter”. There is no evidence before this Court as to the exact nature of the claims made by the Applicant’s daughter. The transcript of the hearing makes clear that the Tribunal had seen the daughter’s claims in a separate application by her. However the Tribunal did not otherwise refer to information in the daughter’s claims, other than to say they were similar to her father. The Tribunal also made clear to the daughter at the commencement of her evidence that it was not asking her about her own claims.
The only evidence given by the daughter in support of the Applicant’s claims was consistent with the Applicant’s admission of having been untruthful about his involvement as board chairman in a company and his daughter’s role as financial manager. Otherwise, the daughter’s evidence to the Tribunal was unspecific and, on her own admission, not based on any first-hand knowledge. In the circumstances, it is difficult to see why the Tribunal was of the view that it needed to consider “if there is a real chance of harm occurring to the applicant based on claims made by his daughter.”
Importantly, the Applicant’s own claims did not refer to claims made by his daughter. The First Respondent referred the Court to NABE v Minister for Immigration (2004) 144 FCR 1 where the Full Court of the Federal Court of Australia stated at [62] as follows:
“Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]-[32]. Gleeson CJ generalised from this, albeit in dissent, in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1];
Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.” [Emphasis added].
A fair reading of the Applicant’s written and oral claims and the transcript of the hearing makes clear that there were no claims involving his daughter upon which the Applicant’s application for protection was based, other than the Applicant’s assertion that his daughter was finance manager of a company of which he was chairman of the board. However, both the Applicant and his daughter told the Tribunal that these claims were untrue and the Tribunal found those claims to be untrue. In the circumstances, the Tribunal was not obliged to consider whether there was a real chance of harm occurring to the Applicant “based on claims made by his daughter”.
However, the fact that the Tribunal may have had regard to an issue that it was not required to consider, and even if there was error in the manner in which it considered the issue, it is not a matter that has any bearing on the Applicant’s claim of a well-founded fear of persecution by authorities in the PRC by reason of his alleged involvement in a protest over working conditions and his alleged detention and mistreatment.
In the circumstances, the consideration by the Tribunal of this issue was independent of its consideration of the claims of persecution made by the Applicant. Accordingly, any error in the Tribunal’s consideration of this issue does not affect the validity of the Tribunal’s conclusion that the Applicant does not have a well-founded fear of persecution for a Convention-related reason (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]; SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [233]).
Particular 6 – “In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully”
Particular 6 is a general assertion that the Tribunal failed to assess the Applicant’s claims “fairly and carefully”. By itself, such an assertion does not disclose an error capable of review by this Court.
A fair reading of the Tribunal’s decision and the transcript of the hearing makes clear that the Tribunal understood the Applicant’s claims; explored the Applicant’s claims at a hearing; asked open ended questions about what happened to the Applicant in the PRC; put to the Applicant, both at the hearing and in writing, various concerns it had about inconsistencies and confusion in the Applicant’s evidence; had regard to the Applicant’s explanations; made findings that were open to it on the evidence and material before it and for which it provided reasons; and, applied the correct law to the findings it had made in reaching its conclusion that there was not a real chance that the Applicant would be persecuted for a Convention-related reason in the reasonably foreseeable future if he were to return to China.
In the circumstances, the Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review. A fair reading of the transcript of the Tribunal hearing and the Tribunal’s decision record does not support the Applicant’s unparticularised contention that the Tribunal did not assist the Applicant’s claims fairly and carefully. No other evidence was provided to this Court by the Applicant in support.
Accordingly, the grounds of the application are not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 28 August 2008
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