SZMIB v Minister for Immigration & Anor

[2008] FMCA 1433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIB v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1433

MIGRATION – Review of RRT decision – corroborative evidence – where Tribunal placed no weight on evidence given its quality – where applicant provided photocopy to Tribunal while he had purported original – where Tribunal made adverse credibility finding after making a series of findings of fact – whether findings made in the absence of evidence – whether findings open to Tribunal – whether conclusions drawn by Tribunal were speculative.

Migration Act 1958 (Cth), ss.48B, 430

NABE v Minister for Immigration (No 2) [2004] FCAFC 263
Minister for Immigration v Eshetu [1999] HCA 21
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
SZDFZ v Minister for Immigration & Anor [2008] FCA 390
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
VWBF v Minister for Immigration [2006] FCA 851
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
VXDC v Minister for Immigration (2005) 146 FCR 562
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZDTZ v Minister for Immigration & Anor [2007] FCA 1824
Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 69 WAIJ v Minister for Immigration [2004] FCAFC 74
QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918
Minister for Immigration v Epeabaka [1999] FCA 1
Minister for Immigration v SGLB [2004] HCA 32

Applicant: SZMIB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1336 of 2008

Judgment of: Raphael FM

Hearing date: 29 September 2008

Date of last submission: 29 September 2008

Delivered at: Sydney

Delivered on: 20 October 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: Clayton Utz

ORDERS

1. A writ of certiorari issue bringing the Tribunal’s decision into this Court to be quashed.

2. A writ of prohibition issue to restrain the First Respondent, his servants and agents, from acting upon the Second Respondent’s decision.

3. A writ of mandamus issue remitting the matter to the Second Respondent and directing the Second Respondent to reconsider and redetermine the Applicant’s application for a protection visa according to law.

4. No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1336 of 2008

SZMIB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 9 November 2007.  On 7 December 2007 he applied for a protection (class XA) visa from the Department of Immigration and Citizenship.  On 14 January 2008 a delegate of the Minister refused to grant him a protection visa.  On February 2008 the applicant applied for review of the delegate’s decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal on 26 March 2008.  After the Tribunal hearing the applicant provided the Tribunal with certain further documentation through his agent.  The documentation included a detention notification issued by the Heifei Municipality Public Security Bureau in Anhui and a medical document issued by the Nanjing Military Division Fuzhou General Army Hospital on 22 November 2006.  The documents were accompanied by a statutory declaration sworn by the applicant.  On 17 April 2008 the Tribunal determined to affirm the decision not to grant the applicant a protection visa and handed that decision down on 28 April 2008. 

2. The applicant’s claim to be a person to whom Australia owed protection obligations arose out of his political action on behalf of himself and other former members of the PLA.  The applicant came from Anhui, an inland province in south-east China.  His parents were farmers.  He was educated up to middle school, which he left in 1997.  He was unable to find a proper job and there was not sufficient farmland to give him a living.  In December 1998 he joined the PLA where he served for seven years.  His motive for joining the PLA was his belief that the government would find him work after completion of his military service.  During his army service he had married his wife who came from the Fujian province.  The applicant had hoped to be allowed to settle in Fujian and to be assisted in finding a position by the army.  This did not happen.  He was required to return to Anhui and was registered as a farmer.  He contacted friends who had served in the army with him and who had found themselves in similar situations.  He organised them to contact other demobilised soldiers, encouraging them to send petitions to the Chinese President and government bodies.  Petitions were sent anonymously. 

3. The applicant claimed that in July 2007 he and a number of other demobilised soldiers from Anhui province were required to attend a two week political study class which he claimed had been conducted full-time on a military site and resembled detention in one sense.  The participants had to pay for their upkeep.  The army gave a presentation about the difficulties it had had with arranging jobs for former soldiers, but later a copy of the petition which the applicant had organised in May 2007 was produced and the participants were asked to reveal who had written it.

4. The applicant had told the Tribunal the names of a number of friends of his with whom he had been association in relation to the petition.  One of those was “MLL” and another was “WL”.

5. The petitions had issued in May 2007 and in that month the applicant obtained a passport.  The claimed army camp was held in July 2007.  On 1 August 2007 the police arrested a participant in the applicant’s group (MLL) while he was distributing copies of the petition on army day in Heifei City, the capital of Anhui.  MLL’s wife contacted the applicant, who went to Heifei and tried to visit MLL and to find him legal assistance.  He was unable to do either.  On 20 August 2007 the applicant organised a group of some 20-30 demobilised soldiers to protest outside the Heifei City PSB, calling for the release of MLL.  At the protest the applicant wrote a further petition calling for the rights of ordinary people to express their political opinion.  The applicant stated that the protest was broken up and that he was arrested.  The applicant claimed that he was detained from 20 August 2007 to 21 September 2007.  He was required to confess his anti-government activities and he saw MLL in the detention centre.  He believed he saw that MLL had been tortured.  The applicant obtained his own release by paying a RMB10,000 fine and promising to stop anti-government activities.  Following his release the applicant sought to leave the country and departed in November 2007 after obtaining a visa to travel to Australia on 30 October 2007.  In mid-October 2007 another friend WL, who was part of the applicant’s group, was arrested.

6. At the Tribunal hearing the applicant added an additional claim.  He told that his wife was pregnant with their second child and that he believed they would be subject to persecution as a result of the breach of China’s one child policy.  The Tribunal considered whether or not the applicant’s political stance may cause the authorities to apply this law in a selective and discriminating manner, amounting to Convention-related persecution. 

7. The Tribunal made a number of findings accepting statements and claims made by the Tribunal:

   “[65]  The Tribunal accepts, on the basis of extensive and uncontroversial country information, the following:

   a)   corruption is a major problem in China 

   b) many Chinese who complain about alleged cases of corruption use traditional methods of petitioning at various levels of government, and protest; and

   c) the consequences of such action vary widely, but may include the risk of retaliation, sometimes involving persecutory harm.

   The applicant’s claims appear broadly consistent with this.  The issue for the Tribunal is to assess whether the applicant has given a truthful account of his personal experiences, and, if so, whether they establish a real chance that he will face Convention-related persecution in his particular circumstances.

   [66] The Tribunal accepts that the applicant comes from Anhui province, where his family have a modest farming background; that he served in the People’s Liberation Army from 1998 to 2006; that he married in Fujian (where he was stationed) in 2006; and that he has one child.  The Tribunal also accepts that the applicant was demobilised in 2006.” [CB131]

   [72] The Tribunal accepts, on the basis that they are plausible, the following: (a) the applicant received a demobilisation payment (his evidence varied as to whether it was RMB 18,000, as stated at hearing, or RMB 30,000, as stated in the post-hearing letter), less than he had expected; (b) local officials failed to find him work or provide training; and (c) the applicant would have preferred to stay in Fujian rather than have to return to Anhui to access his post-mobilisation benefits. The Tribunal is not satisfied that such detriment amounts to persecution within the meaning of the Convention and the Act, and it therefore finds that he has not suffered persecution for reason of any putative particular social group (such as demobilised soldiers with a farming background, or any variant of this).

   [73] The Tribunal accepts that the applicant wanted a better deal as a demobilised soldier.  As such, it accepts that he disapproves of the performance of Anhui officials and the treatment of demobilised soldiers generally.  It also accepts that he shares more widely held concerns about official corruption and the treatment of the rural population.”  [CB134]-[135]

8. But the Tribunal did not accept the applicant’s claim to persecution and in particular that he was required to go to the camp in July 2007 or that he was arrested and detained at Heifei on 20 August 2007.  In his application to this court the applicant expresses some concern about the conclusions to which the Tribunal had come in a manner which appeared to be taking issue with the Tribunal’s findings of fact.  The court is sensible that an applicant cannot seek judicial review on the basis of a difference of opinion concerning the Tribunal’s fact-finding exercise unless there is jurisdictional error found within it.  Essentially the Tribunal’s conclusion was that the applicant’s story lacked credibility, but it came to that conclusion after making findings as to certain facts about the story told by the applicant.  Whilst it is not sufficient for the applicant to argue that the Tribunal should have believed the version of events put by him and the explanation that he put forward in response to queries raised by the Tribunal, there might be grounds for arguing that some of the conclusions reached by the Tribunal about those explanations were not based upon any evidence.  The court raised these matters with counsel for the Minister.  The discussion proceeded on the basis of the documentation contained in the court book.  There was no transcript of what occurred before the Tribunal.  I will deal with each of the “no evidence” points in turn but before I do so it is appropriate to discuss one matter raised by the applicant at the hearing which also causes concern, although I accept that it is not a matter that would be considered a jurisdictional error.

9. I mentioned that the applicant provided the Tribunal with certain additional documents after the hearing.  The Tribunal comments on the document relating to the detention at [CB 132]:

   c) The Tribunal also does not accept that the Tribunal protested MLL’s detention and called for freedom of expression on 20 August 2007, prompting the Heifei City authorities to then detain him for one month on charges of anti-government activities.

   The Tribunal has had regard to the purported Heifei PSB detention notice submitted post-hearing, recording that the applicant was detained on 20 August 2007.  This is a poor quality photocopy of a pro forma detention notice, with a single stamp.  The left hand margin of the page reveals part of another document bearing a similar stamp.  The Tribunal alerted the applicant that it would assess the provenance and reliability of any submitted documents.  The applicant wrote that he contacted his wife (in Zhejiang) after the hearing, asking that she obtain documents for him.  She sent them via her sister in Fujian.  The applicant did not explain how he managed to contact his wife after the hearing (this was on Wednesday 16 March 2007, and he said that their only contact is when he makes calls to a public telephone in Zhejiang at pre-arranged times on the weekend), and for her to have enough time to gather the documents (such as a household registration book in Anhui) and send them to Fujian, from where the envelope was sent on Saturday 29 March 2008.  Given the poor quality of the purported detention notice and its dubious provenance, the Tribunal places no weight on it as evidence that the applicant was detained in August 2007.” [emphasis added]

10. At the hearing today the applicant indicated that the document which the Tribunal examined was indeed a photocopy but that he had the original, which he showed the court.  The original has clearly placed upon it two red stamps.  The document is of considerable importance.  If the Tribunal were to conclude that it was genuine, then much of the applicant’s claim has been corroborated.  It is understandable that the Tribunal may have declined to find that the document was genuine or not given it any weight on the basis of it only seeing a photocopy.  As it was the applicant himself who provided the Tribunal with the photocopy the Tribunal could not be said to be in jurisdictional error in making the conclusion which it did.  But we now know that there is a purported original.  I will refer again to this paragraph at the conclusion of my reasons.

11. Turning to the “no evidence” points, the principal finding of the Tribunal was that it did not accept that the applicant was involved in any petition or protest activity that came to the attention of the authorities, or that he suffered any consequential harm.  The Tribunal came to this finding “because [the applicant’s] account of the events from May 2007 to November 2007 lacks coherence and credibility.” [CB 131]

    Specific findings in relation to the applicant’s account were then made by the Tribunal as follows [CB 131]-[132]:

    “a) The Tribunal does not accept the applicant’s claim that local PSB and military authorities, angered at the anonymous petition that identified their shortcomings, forced him and others to attend a political study class from 2 to 13 July 2007.  The applicant claimed that the local authorities, PSB as well as military, targeted some 40 to 50 demobilised soldiers.  They selected those who had a longer record of PLA service and therefore had an axe to grind about demobilisation payments.  The real purpose of the political study class had been to identify those responsible for the petitions.  The Tribunal does not accept that the local PSB or military authorities would invest so much time and effort into holding former PLA soldiers, without also checking these persons’ security records or searching their homes and other relevant places for incriminating evidence.  The applicant gave detailed evidence about the conduct of the political study class, consistent with political and other training courses that he would have experienced during his PLA service.  This does not persuade the Tribunal, however, that he was required to attend what was in essence a prolonged investigation in Anhui in July 2007.

    b) The applicant relies on the alleged arrest of MLL in early August 2007 as a critical part of his claim, although its direct impact on the applicant was delayed.  The applicant claimed to have been in Fujian at the time, returning to Anhui promptly to accompany and help MLL’s wife.  He tried in vain to get access to MLL and secure a lawyer.  The Tribunal finds that this level of support (even allowing for the applicant’s claims that the authorities did not know that he had been in Fujian) would have prompted the PSB to focus on him as a potential accomplice of MLL’s.  This is particularly so if, as claimed, the authorities viewed MLL’s offence (distributing the petition) so grave as to detain and mistreat him, as claimed.  The applicant gave no persuasive explanation as to why the authorities did not pursue him at this point.

    c) The Tribunal also does not accept that the applicant protested MLL’s detention and called for freedom of expression on 20 August 2007, prompting the Hefei City authorities to then detain him for one month on charges of anti-government activities.

    …

    The applicant described his own mistreatment at the hands of the PSB, and his witnessing MLL’s severe physical abuse.  The applicant claimed that – alongside his confession, promise not to undertake further political activities, and the bribe – the authorities released him because they had not yet made the link between him and the May 2007 petition.  He attributed this to MLL’s courage, in refusing to divulge his name.  The Tribunal finds that, had the detention occurred, the authorities would have investigated more thoroughly any link between the applicant and MLL’s activities; they would have placed him under more severe constraints after his release; and they would have seized his passport.” [emphasis added]

12. Of course, findings of fact are the domain of the Tribunal: NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [53]. Merely a description of the Tribunal’s reasoning as “illogical” or “irrational” may be nothing more than an emphatic way of expressing disagreement with those reasons: Minister for Immigration v Eshetu [1999] HCA 21 at [40] (“Eshetu”); see also NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29]; SZDFZ v Minister for Immigration & Anor [2008] FCA 390 at [40] per Flick J and the authorities cited therein.

13. However, a finding of the Tribunal that is a “critical step in its ultimate conclusion” for which there is no evidence in support can constitute jurisdictional error: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19]. The fact of which there is said to be “no evidence” must be a jurisdictional fact; i.e. ““an essential preliminary to the decision-making process” as distinct from “a fact to be adjudicated upon in the course of the inquiry””: see VWBF v Minister for Immigration [2006] FCA 851 per Heerey J at [19] citing Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-442, VXDC v Minister for Immigration (2005) 146 FCR 562 at [13]. Otherwise a finding on credibility could not be disturbed: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

14. In SZDTZ v Minister for Immigration & Anor [2007] FCA 1824 Greenwood J conducted a detailed review of the authorities, including the judgments of Gleeson CJ, and McHugh and Gummow JJ, in Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 69 (“S20/2002”), stating at [14]:

    “… what is required is some precision in identifying the legal consequence of irrational or illogical reasoning and the legal principle to be invoked that attracts that consequence (S20/2002 per Gleason [sic] CJ [5]). That task requires identifying and characterising the suggested error and relating it to ‘the legal rubric under which a decision is challenged’ (S20/2002 per Gleason [sic] CJ [9]).” [emphasis in original]

15. Greenwood J at [22]-[29] noted in particular the statements of the High Court in S20/2002 at [34]-[37] per McHugh and Gummow JJ that inadequacy of the material is not in itself a ground for prohibition and the observations in Eshetu that a “strict” view of the “no evidence” ground is required (see also his Honour’s comments at [25] that “[i]f there is some evidence (perhaps slight) to support a finding, a Court exercising judicial review ought not to interfere with the decision-maker’s assessment of the material” [internal citations omitted]).  His Honour concluded at [32]:

    “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 a 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, 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 been only a purported, rather a real, exercise of the power conferred upon by the Tribunal.”

1. Similarly, in WAIJ v Minister for Immigration [2004] FCAFC 74 (“WAIJ”) at [22] Lee and Moore JJ said, in considering the role of the Tribunal:

   “The Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded in probative material and logical grounds. A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision.  Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to review.” [internal citations omitted; emphasis in original]

   In that case Lee and Moore JJ found that the Tribunal had engaged in speculation as to what it thought would have been a more likely course of events, but had no basis on which it could say that the events described by the appellant (and corroborated in documents which the Tribunal did not have regard to) in regard to several examples of the appellant’s account which the Tribunal found implausible (at [40]).  For example, in relation to the appellant’s claim that the appellant had assisted a prisoner to escape from a hospital, the Tribunal found it was implausible that the hospital would allow a nurse to be alone with a person it regarded as “dangerous”.  This description of the patient as “dangerous” was introduced by the Tribunal and did not reflect the applicant’s account (at [34]).  There were other examples of evidence given by the appellant found “implausible”.  Lee and Moore JJ said at [39]:

   “As noted above matters the Tribunal described as implausible were not claims disproved by proved facts nor events so contradicted by commonsense as to be able to be dismissed as possible occurrences.  The Tribunal engaged in speculation as to what it thought would have been a more likely course of events but it had no basis on which it could say that the events described by the appellant, and corroborated in the documents, could not have occurred.  The Tribunal may not have been persuaded that the events had occurred but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place.”

2. In QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918 (“QAAA of 2004”) the Tribunal accepted that the US was the “sworn enemy” of Iran, that it was likely that the applicant would be questioned upon return to Iran, but then found that the appellant would not be persecuted by Iranian authorities because the applicant held the lowly rank of “airman” in the US Navy. There was no evidence before the Tribunal regarding the reaction of the Iranian authorities to the appellant’s navy service (at [26]). The Tribunal did have regard to a report that stated that there was “no evidence of any pattern of action by the regime today against Iranians simply because at one time they were middle-level or low ranking functionaries of the Shah’s bureaucracy” (at [24]). Collier J held that this was the only obviously relevant evidence that the Tribunal had used to reach its conclusion. Her Honour concluded that the finding was not open on the evidence and was a jurisdictional error as outlined by the Full Court in Minister for Immigration v Epeabaka [1999] FCA 1.

3. QAAA of 2004 and WAIJ bear substantial similarities to the case before me. In this instance the Tribunal, after having accepted that corruption was a major problem in China and that the consequences of petitioning may include the risk of retaliation, found the applicant’s account was not credible. However, the findings that the Tribunal made in coming to this conclusion were not open on the evidence before it. Part of the Tribunal’s obligation under s.430 of the Migration Act 1958 (Cth) (“the Act”) to set out its reasons entails it to resolve competing facts where there are conflicting accounts (Minister for Immigration v SGLB [2004] HCA 32 at [44], citing S20/2002 at [14]), but here there are no conflicting accounts. The Tribunal’s finding that it did not accept“that the local PSB or military authorities would invest so much time and effort into holding former PLA soldiers, without also checking these persons’ security records or searching their homes and other relevant places for incriminating evidence” was speculative and was made in the absence of any evidence about what the local PSB might have done in such a situation, and in the absence of evidence proffered by the applicant.

4. Regarding to the Tribunal’s finding that “this level of support [in relation to the applicant’s attempt to get access to MLL] … would have prompted the PSB to focus on him as a potential accomplice of MLL’s”, this was again speculative. The Tribunal may not have found the applicant’s explanation (at [CB 126]) that the PSB did not know that the applicant had been in Fujian and that his presence with MLL’s wife would not have aroused suspicion as he was simply helping her persuasive, but it drew its conclusion on the basis of what it thought would have been a more likely course of events.

5. Similarly, the finding in relation to the applicant’s claim of detention that “had the detention occurred, the authorities would have investigated more thoroughly an link between the applicant and MLL’s activities” was made in the absence of any evidence as to what the authorities might have done in such a situation. 

6. The Tribunal also found, in relation to the applicant’s passport [CB 133]:

   f) Throughout the period from May to November 2007, the applicant held a valid PRC passport, yet delayed using it for some 6 months.

   According to his evidence, the authorities did not once ask about the passport or check their records to see whether he had recently been granted a security clearance.  The Tribunal does not accept that they would fail to check this, particularly if they were detaining a person for one month for anti-government activity.

   It was only after his release from detention in September 2007 that the applicant started making firm plans to leave China.  Even then, he put his departure on hold while he fixed family matters and coordinated with other soldiers as to their continued political activism in his absence.  The Tribunal finds no constraint on the applicant having left China earlier.  If any of the incidents listed above were truthful, he would have had a strong incentive to leave quickly.

   The Tribunal finds that the applicant’s evident lack of urgency in leaving China at this time reinforces its doubts about his detention in August/September 2007, and is inconsistent with the conduct of a person who genuinely fears persecution.

   …

   g)  The applicant’s delayed departure from China and his ability to leave on a passport in his own name reinforce the Tribunal’s view that he is of no adverse interest to the PRC authorities.”

7. During the course of the hearing I expressed a concern that these findings were made in the absence of the Tribunal exploring with the applicant whether he had applied for the visa in October, or earlier, but given paragraphs [43] and [51] of the Tribunal’s decision I am satisfied that the Tribunal sufficiently put this to the applicant and that the conclusions which it came to are consistent with the evidence.

8. Although I am satisfied that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions about the probable actions of the PSB and hence in its finding of a lack of credibility on the part of the applicant, I should say that the failure to put the original summons document to the Tribunal casts a pall over the decision which the Minister might seek to assuage by exercising his powers under s.48B of the Act should my decision be determined to be wrong.

9. I will make orders granting the constitutional writs sought.  The applicant was not represented.  There will be no order for costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  20 October 2008