SZMJD v Minister for Immigration
[2008] FMCA 1297
•17 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1297 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.91R(3) of the Migration Act 1958 – whether Tribunal erred in acting as prosecutor, finding an inconsistency when none existed, acting contrary to the evidence, failing to clarify an inconsistency or to make inquiries or in taking a statement out of context such as to constitute jurisdictional error. |
| Migration Act 1958 ss.91R(3), 424AA, 424A, 425 |
| Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 | ||
| Applicant: | SZMJD | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1444 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 14 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1444 of 2008
| SZMJD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal handed down on 9 May 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in January 2006. He applied for a protection visa on 13 February 2008. He claimed to fear persecution in China as a practitioner of Falun Gong. He claimed that in July 2002 he had been persuaded by a client to take up Falun Gong for health reasons and that after he started practising Falun Gong his health started to improve. He claimed that he practised in the morning “inside my own house enclosed by high walls” but that on 5 June 2003 he was taken by police and security personnel to the police station, interrogated and asked to confess that he was practising Falun Gong and whether he was linked with any other members of the organisation. He claimed that when he failed to confess, the police pushed him down, put a thick book on his lower back and started hitting it with a hammer causing him to start bleeding from his mouth and pass out and that the next day, after further interrogation he was again pushed to the floor and a book was put on his right knee and it was hit with a hammer, breaking the bones in his knee.
He claimed that his family were notified that he had broken his leg while trying to escape. His wife took him to hospital for treatment.
The applicant claimed that while recovering from his back and knee injuries he sent a “tip-off” letter about the police mistreatment to the local provincial government, but he did not receive a reply. He was not able to return to work until September 2004. On two occasions thereafter he was told by co-workers that they had noticed that he was followed by people who looked suspicious.
The applicant claimed that in October 2005, during a meeting with South Korean clients, three police suddenly came in and took him out for questioning regarding the people he was meeting. In November 2005 the company he was working for was invited by an Australian client to go to Australia for a business visit. His boss (who was said to be aware of the problems he was having with the police and of his concerns) offered him the opportunity to go to Australia.
The applicant claimed that he intended to apply for refugee status in Australia but did not know what to do. He stated that when a named Chinese diplomat sought refuge status and said that there were more than one thousand spies in Australia, he was very scared and thought that by applying for refugee status he might bring attention to himself.
The applicant claimed that he thought that he would not be able to apply for a protection visa if he did not have a valid passport. He went to the Chinese Consulate on 28 January 2008 to renew his passport. He was detained on that day and placed in immigration detention. He claimed to fear he would be detained and physically harmed by the police if he returned to China.
The applicant attended an interview with the Departmental delegate. His application was refused and the applicant sought review by the Tribunal.
In a written submission to the Tribunal his adviser addressed matters in the delegate’s decision such as whether the applicant would be willing to abstain from Falun Gong practice despite the risk and submitted that the applicant’s practice of Falun Gong in Australia should not be disregarded under s.91R(3) of the Migration Act 1958 (Cth). The adviser addressed the applicant’s delay in applying for a protection visa, contending that he did not know how to apply for protection until after he was detained in Australia. The applicant also provided the Tribunal with independent country information in relation to the situation in China.
The applicant attended a Tribunal hearing on 4 April 2008 at which he provided the Tribunal with a statement from his friend and first landlord in Australia claiming that the applicant had lived with him from 20 January 2006 to 27 September 2006 and had practised Falun Gong in the back yard. The applicant also gave the Tribunal a copy of a document in Chinese which was said to be a hospital record.
After the Tribunal hearing the applicant provided a further submission about his ability to leave China and the fact that his medical records did not state the cause of his injuries. The applicant indicated through his adviser that he did not have the resources to have those records translated into English. The Tribunal made arrangements to have the records translated. Included in the Court Book is a translation of a document headed “Medical Record for Outpatients” dated 6 June 2003 in the name of the applicant stating that he was “hit by someone with an iron bar on the left rib” and felt pain on his “right spleen”. It described observations of his injuries and the fact that he was admitted to hospital for treatment.
The Tribunal invited the applicant to a further hearing. It requested that his former landlord give oral evidence. The applicant and the witness attended a further hearing on 28 April 2008.
The Tribunal wrote to the applicant by letter dated 29 April 2008 pursuant to s.424A of the Migration Act 1958 (Cth), inviting him to comment on inconsistencies in his evidence and inconsistencies between his evidence and that of his former landlord which the Tribunal indicated may lead it to conclude that both he and the landlord were not witnesses of truth and which may also lead the Tribunal to conclude that the applicant was not a Falun Gong practitioner. Through his adviser the applicant provided a response. He submitted (for reasons which he gave) that the answers given were not in fact inconsistencies. To address one of the issues raised by the Tribunal he provided a written statement from the wife of his landlord about his visits to their home after he moved out.
Tribunal decision
In its reasons for decision the Tribunal outlined the applicant's claims, the evidence given at the Tribunal hearings and issues raised with the applicant during the hearings. The Tribunal found that the applicant's material claims lacked credibility and could not be accepted. It outlined concerns about particular aspects of his evidence and that of his landlord
The Tribunal concluded on the evidence as a whole that there were a number of inconsistencies and contradictions between the applicant's written and oral evidence and also internal inconsistencies and contradictions in his oral evidence at the two Tribunal hearings. It detailed these inconsistencies, the applicant’s explanations and its evaluation of such explanations. It also found a number of inconsistencies between the applicant's evidence and the evidence of his landlord, as well as internal inconsistencies in the landlord's evidence.
The Tribunal found it highly implausible that the applicant (who had given evidence that when he started practising Falun Gong in China he was aware it was illegal to do so and was aware of the consequences if he was caught practicing Falun Gong) would have practised Falun Gong exercises at work in China until June 2003, given the risk he would be observed and reported to the police.
The Tribunal found a number of inconsistencies and contradictions in the applicant’s evidence as to where he was practising Falun Gong on the day he claimed he was detained by the police (5 June 2003), in particular as to whether he was in a public place or his own front yard and whether anyone could see him when he was practising Falun Gong. It found that these contradictions raised serious concerns in relation to his credibility.
The Tribunal also found inconsistencies between the applicant’s claims about injuries suffered as a result of the police hitting him with a book and hammer and the hospital records which indicated that he was hit with an iron bar. The Tribunal considered but did not accept the applicant’s explanation for this perceived inconsistency. It also had regard to the fact that the records made no mention of blood on the front of the applicant’s body which the applicant claimed he had coughed up. It did not accept that if the applicant had blood on the front of his body the doctor would not have noticed and recorded this fact.
The Tribunal had regard to the fact that while the applicant claimed his wife took him to the hospital emergency department on the morning of 6 June 2003 the hospital records indicated “6 June 2003 6pm”. The applicant claimed that he was given immediate treatment for his external injuries when he arrived at the hospital but that the hospital would not give him other treatment (such as knee surgery) until he paid some money and became an inpatient. However the Tribunal found inconsistencies between the applicant’s evidence and his hospital records raised serious concerns in relation to his credibility.
The Tribunal also had regard to inconsistencies in his evidence as to whether he was at home recovering from an illness or from injuries suffered as a result of the incident with the police after 5 June 2003 and about the nature and timing of the invitation to visit a company in Australia.
The Tribunal had regard to the fact that the applicant had not sought protection in New Zealand (which he visited before coming to Australia). It found his explanation that there were a lot of mines and mineral resources in Australia and that it was very suitable for him to get a job here indicated that his focus was on getting employment overseas and not on obtaining protection.
The Tribunal also had regard to the fact that the applicant arrived in Australia in January 2006 but did not apply for a protection visa until February 2008 after he was detained in January 2008. The applicant claimed that he had intended to apply for protection but did not know what to do. The Tribunal had regard to the fact that he had lived with a landlord from China who had lived in Australia for several years and who spoke Mandarin and English, yet he had made no attempt to find out from his landlord where he could get advice in relation to applying for refugee status. Further, while the applicant gave evidence that a friend told him about protection visas in February 2007, the Tribunal observed that he had made no attempt to obtain advice or to lodge an application at that time and while he claimed he met Falun Gong practitioners by September 2007 he had made no attempt to obtain information from them as to where he could obtain advice on a protection visa application. The Tribunal found that this raised serious doubts about whether the applicant in fact met other Falun Gong practitioners, was involved in Falun Gong activities and had any intention of seeking protection.
The Tribunal considered the applicant’s claim that he did not apply for protection because he had read a newspaper article written by a Chinese diplomat stating that China had sent more than one thousand spies to Australia. The Tribunal referred to the fact that the events involving the Chinese diplomat who sought asylum had occurred in May 2005 and that the story and claims were reported in the media at that time. The Tribunal found it highly implausible that the applicant, who did not arrive in Australia until January 2006, would have read a newspaper article written by the Chinese diplomat in question after his arrival in Australia.
The Tribunal referred to the applicant’s oral evidence that he left the group of colleagues he came to Australia with in Melbourne because he heard there were mineral sites in Sydney and came to Sydney to look for a job and that his intention when he came to Australia was to obtain a suitable job so he could have a place to stay. It was of the view his responses indicated that his focus was on obtaining employment in Australia and not on seeking protection.
The Tribunal also found inconsistencies between the evidence given by the applicant and his landlord and within the landlord’s evidence which raised concerns in relation to the reliability of the landlord’s evidence, on which it placed little weight. It stated that it had considered the responses to the s.424A letter which put such inconsistencies to the applicant. It referred to the fact that when the landlord was asked how he was able to identify the exercises the applicant practised, he initially stated that he saw Falun Gong practitioners practising similar exercises outside the Chinese Embassy and subsequently stated that he asked the applicant whether he was practising Falun Gong exercises.
The Tribunal found that the inconsistencies and contradictions raised concerns in relation to both the applicant's credibility and that of his landlord, and that the applicant was not a witness of truth and was prepared to fabricate his claims to give himself the profile of a refugee. It did not accept that the applicant became a Falun Gong practitioner in July 2002, that he practised exercises in China until June 2003, that on 5 June 2003 while he was practising Falun Gong he was arrested and taken to the police station where he was detained overnight and subject to questioning and torture, that he was released on the morning of 6 June 2003, taken to the hospital for treatment as a result of injuries suffered at the police station, or that while recovering he wrote a letter of complaint to the local government petition office, but did not receive a reply. Nor did the Tribunal accept his claims of what occurred thereafter in relation to being followed and police questioning him during a meeting with clients.
The Tribunal continued:
The Tribunal does not accept that the applicant practised the Falun Gong exercises in Australia prior to being detained at the Villawood Detention Centre, that after September 2007 the applicant associated with Falun Gong practitioners and was involved in Falun Gong activities. The Tribunal also does not accept that the applicant did not lodge an Application for a Protection Visa because he read an article in a Chinese newspaper written by a Chinese Consulate staff member and because he was afraid of Chinese spies in Australia.
The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner. It accepted that the applicant came to Australia with the intention of obtaining a job in the mining industry.
The Tribunal did accept that the applicant had been studying Falun Gong and practising the exercises in the detention centre. It referred to s.91R(3) of the Act which required it to disregard any conduct engaged in by the applicant in Australia unless satisfied that he did so otherwise than for the purpose of strengthening his claim to be a refugee. It concluded that it was not satisfied that the applicant’s “practice of Falun Gong in Australia” was otherwise than for the purpose of strengthening his claim to be a refugee and therefore it was required to disregard this conduct in its assessment of the well-foundedness of his fear of persecution.
The Tribunal concluded:
In view of the above findings the Tribunal finds that there is no real basis for the applicant's claims to fear persecution. The Tribunal is satisfied that if the applicant returns to China there is no real chance that he will want to practice Falun Gong and that he will have to be discreet in his practice of Falun Gong. The Tribunal is also satisfied that there is no real chance that he will be at risk of being perceived to be a Falun Gong practitioner. The Tribunal is therefore satisfied that there is no real chance that the applicant will be at risk of persecution should he return to China and does not accept the applicant's representative's submission in this regard.
The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future and that there was no real chance he would be at risk of persecution if he returned to China now or in the reasonably foreseeable future. The Tribunal affirmed the decision not to grant him a protection visa.
This application
The applicant sought review by application filed in this Court on 3 June 2008. At the start of the hearing he sought leave to file in Court an amended application which was prepared by the lawyer who provided advice under the Court’s panel advice scheme. Leave to file the amended application in Court was granted, notwithstanding that the first respondent opposed leave being granted on the basis that the amended application was said to be manifestly hopeless.
The applicant indicated that he also wished to rely on the grounds in his original application. He had nothing to say by way of submission in relation to any of the grounds on which he relied.
It is convenient to consider first the grounds in the application of 3 June 2008.
Tribunal acting as a prosecutor
The first ground in the original application is that the Tribunal member:
failed to fulfil its Inquisitorial obligation to balance evidence of the claims as well as evidence refuting the claims of the Applicant. Instead the RRT acted as a prosecutor finding credibility problems against the applicant where it was open to the Tribunal to find in the applicant's favour based on the logic and balance of probability of particular claims. In particular, it was open to the Tribunal to find the details and evidence of the applicant's interrogation and torture by the police and his hospitalisation to be credible.
In its findings and reasons the Tribunal set out the evidence of the applicant in relation to injuries he claimed he had suffered as a result of his treatment at the police station on 6 June 2003. He told the Tribunal that he suffered injuries to his lower back and right knee (consistent with what he claimed in his protection visa application). He said that this occurred as a result of police and security officers hitting him through a book with a hammer and that he also experienced some cuts on his face when he fainted and was dragged along the ground. He claimed that his wife took him to the hospital on the morning of 6 June 2003 where he was treated and that he told a doctor at the hospital that he was injured by the police.
The Tribunal had regard to what were said to be inconsistencies between these claims and the hospital records. While the applicant claimed that he had told the doctor he had been assaulted by the police, that fact was not included on the hospital records, which stated that he was “hit by someone with an iron bar on the left rib”. In the hearing the Tribunal had discussed with the applicant that this report was not consistent with his claim that he was hit with a book and a hammer. His explanation was that he was hit with an iron hammer and that he had told the doctor of this and perhaps the doctor had made a mistake, ignored that fact or that the Chinese character for the word hammer was too difficult to write down. He claimed he had told the doctor that he was assaulted by the police but that in communist China a doctor would not write this on a record sheet. The Tribunal did not accept these explanations.
The Tribunal had regard to the fact that the applicant had claimed that he had coughed up blood which had spread down the front of his body, but hospital records made no mention of this. The Tribunal did not accept his explanation that the hospital records related only to visible injuries, as it did not accept that if the applicant had blood on the front of his body the doctor would not have noticed it and made a record of it.
The Tribunal also had regard to the fact that while the applicant had given evidence that he had gone to the hospital on the morning of 6 June 2003 where he was treated in the emergency department, the hospital records indicated “6 June 2003 6 pm”. The applicant claimed that he had not had to wait all day for treatment. He had been treated for external injuries on arrival but not for his other injuries until he paid some money and became an inpatient and thereafter he received surgery on his knee. The Tribunal found that the inconsistencies between the applicant's evidence and his hospital records raised serious concern in relation to his credibility.
It appears to be contended by the applicant that the perceived inconsistencies should not have been given the significance the Tribunal gave them or that they were not in fact inconsistencies, so that the Tribunal's conclusion in relation to this part of the evidence could be seen to be an error or as not supportive of the adverse credibility finding. However this does not establish jurisdictional error.
While the Tribunal is bound to exercise care in considering credibility and inconsistencies in an applicant's account (see SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 at [21]) it is not for the Court to form a view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or on that basis alone to conclude that the Tribunal's assessment of the applicant's claims should not have been made. As Mansfield J stated in Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467 at [36] “[t]hose evaluative processes are for the Tribunal”.
Insofar as the applicant takes issue in this and in other grounds with the Tribunal's credibility findings, as McHugh J stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]:
a finding on credibility ... is the function of the ... decision-maker par excellence. If the ... decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
The matters to which the Tribunal had regard were matters which logically it might have considered. It was for the Tribunal to determine whether the inconsistencies it identified were significant or whether they had been satisfactorily explained. The findings the Tribunal made were open to it on the material before it for the reasons that it gave, notwithstanding that there were alternative explanations provided by the applicant for what the Tribunal perceived as inconsistencies. The Tribunal considered but did not accept such explanations. The fact that the Tribunal did not accept the applicant's claims or his explanations for perceived inconsistencies does not establish jurisdictional error.
Insofar as this ground involves a contention that the Tribunal's reasoning was illogical or irrational or perhaps based on unwarranted assumptions, such a contention is not made out (see the discussion in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [17]-[30] per Greenwood J). As Heerey, Sundberg and Crennan JJ observed in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 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.
While a different decision-maker might have reached a different decision in relation to certain of the perceived inconsistencies (for example the difference between an iron bar and an iron hammer) nonetheless, as indicated, the Tribunal's findings in that respect were open to it on the material before it and are not such as to establish jurisdictional error. Moreover, the inconsistencies were not the only basis for the Tribunal decision, so that it cannot be said that the adverse credibility finding was based on minor or trivial inconsistencies in the manner considered in SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 at [24] –[26] per Gordon J. The Tribunal also had regard to matters such as the applicant’s delay in seeking protection and his evidence about a focus on getting employment as well as a number of other inconsistencies and contradictions in the evidence. Insofar as this ground seeks merits review, merits review is not available in this Court. This ground is not made out.
The applicant also contended that the Tribunal acted as "prosecutor". If this is intended to be an allegation that the Tribunal did not act impartially and was biased, it is not made out. There is nothing on the face of the decision to indicate that the Tribunal had a mind "incapable of alteration" (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532). Nor is the fact that the Tribunal did not accept the applicant's claims and explanations such as to establish apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, from the perspective of the appropriately informed lay observer. The evidence before the Court reveals that the applicant was invited to and attended two Tribunal hearings and that the Tribunal also gave an opportunity to his landlord in Australia to give oral evidence. It put to the applicant concerns in relation to inconsistencies in his evidence in the course of the hearings and thereafter in a s.424A letter and addressed these matters in its reasons for decision. This ground is not made out.
Misunderstanding evidence
The second ground in the application takes issue with the fact that the Tribunal found an inconsistency between the applicant's statements about whether he practised Falun Gong in a public park in front of his house. The ground states that “the applicant never stated that he practiced in a public park. He stated that he practiced in his front yard surrounded by a high fence”.
In his protection visa application the applicant claimed that he practised in the morning inside his own house enclosed by high walls. The only evidence of what occurred in the Tribunal hearings is the Tribunal reasons for decision. The Tribunal recorded that at the first hearing the applicant initially claimed that on the morning of 5 June 2003 while he was practising Falun Gong in front of his house in a public park, five policemen and three security guards came to his house with an arrest warrant. The Tribunal recorded that later in the hearing, when the applicant was asked why he was practising Falun Gong in a public place when he knew it was banned and the consequences of getting caught practising, he had stated that there was a very high fence in front of his house. When asked whether he was inside his property when practising Falun Gong, he stated that outside his front yard there was a public space in which he practised. He was also recorded as telling the Tribunal that the conditions were poor and that all the families put up high fences. When asked what was to stop someone seeing him from above, he stated that nobody could see him. Subsequently, at the request of his representative, he was given an opportunity to clarify where he was practising Falun Gong when arrested. He was then recorded as stating that he was practising inside his own front yard and not in a public place.
The Tribunal put to the applicant that he had earlier stated that he was practising in a public place, but he replied that it was in front of his house and not in a public place. There followed a discussion as to whether there were tall buildings around his house and the fact that the applicant did not know whether people in such tall buildings could have watched him practising. He later conceded that that was the case, but claimed that no one could see him from the ground because of the high fence or wall.
In its findings and reasons the Tribunal described these claims as contradictions in the applicant's evidence which raised serious concerns in relation to his credibility.
On the material before the Court the factual basis for the applicant's claim that he never stated that he practised Falun Gong in a "public park" is not made out. Nor has it been established that it was not open to the Tribunal to find his evidence on this issue was inconsistent and that such contradictions raised credibility concerns. This ground is not made out.
Failure to accept explanations
The third ground in the application takes issue with the fact that the Tribunal was said to have “focused on the inconsistency that the applicant stated he was hit with an iron hammer while the doctor wrote he was hit with an iron bar”. Reference was made to the fact that the applicant provided an explanation “that maybe the doctor made a mistake because he was busy or the doctor ignored the facts or the Chinese character for the word ‘hammer’ was too difficult for the doctor to write down” and that it was hard for the applicant to “read the mind of the doctor”.
It was contended that it was open to the Tribunal to accept the applicant's account, since he was present and the doctor was not. It was submitted that the main issue was the physical damage and injuries of the applicant, irrespective of the instrument used.
As set out above in relation to ground one, while a different decision-maker might have taken a different approach to some of the perceived inconsistencies between the applicant's claims about his injuries and the hospital records including this aspect, the Tribunal findings were open to it. It considered but did not accept the applicant's explanation. It was open to the Tribunal to reject the applicant's explanation and insofar as the applicant seeks merits review, merits review is not available in this Court. This ground is not made out.
Sections 424A and 424AA
Ground four refers to the fact that the Tribunal did not accept that if the applicant had blood on the front of his body the doctor would not have noticed it and made a record of it, notwithstanding that the applicant stated that what was recorded was only what was on the outside of his body and what could be observed. It was contended that the Tribunal needed to “untangle the mismatch between question and answer either at the hearing or by issuing a Section 424AA letter [sic] before determining there was a credibility problem”.
While expressed in terms of s.424AA this ground refers to a letter being sent. I have considered the application of both s.424AA and also s.424A.
Insofar as this is a contention that the Tribunal failed to comply with s.424A of the Act by failing to write to the applicant and inform him that it considered the hospital records to be inconsistent with his account of his injuries, in particular his claim that he had coughed up blood onto his body from internal injuries, the short answer is that the obligation in s.424A(1) does not apply to the hospital records or the oral evidence of the applicant as each of these items constituted evidence given by the applicant for the purposes of the review (see s.424A(3)(b)).
I note in any event that consistent with the approach taken by the High Court in relation to the meaning of information in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 particularly at [17] – [18], inconsistencies in the sense raised in this ground are not such as to constitute "information" within s.424A(1). This is not a case in which the Tribunal relied on omissions from the claims made in the protection visa application.
Insofar as this ground is intended to raise a contention that there was a failure to comply with s.424AA of the Act, the scope of the concept of information considered in SZBYR would be equally applicable to the very similar language of s.424AA(a). On that basis the inconsistencies in issue did not have to be put to the applicant pursuant to s.424AA. I note that under both s.424A and s.424AA there is no obligation on the Tribunal to put its reasoning process to the applicant and that the Tribunal's disbelief of the applicant's evidence arising from inconsistencies therein cannot be characterised as constituting information.
In SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated at [18]:
Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information".
does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
As pointed out in SZBYR at [21] the effect of s.424A is not to create a backdoor route to a merits review in the Federal Court on credibility findings made by the Tribunal.
In any event, and insofar as this issue might be said to be a dispositive issue in s.425 (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152), the Tribunal recorded that at the second hearing it confirmed the applicant's evidence that he had blood on his clothes, but pointed out to him that there was no mention of blood anywhere in the hospital records. It recorded his explanation that what was written down was just his visible injuries and indicated to him that it had difficulty accepting that if he had arrived at the hospital with blood all over him that the hospital would not have recorded that he was bleeding and where he was bleeding from. It recorded his claim that what was recorded was only what could be observed on the outside of his body. It cannot be said that the Tribunal did not give the applicant the opportunity to address its concerns in this respect. It is apparent from the Tribunal's findings and reasons that it understood the contentions of the applicant in this respect but was not persuaded by them. No jurisdictional error is established in relation to the issues complained of in ground four.
Misunderstanding the sequence of events
Ground five of the application is that the Tribunal failed to re-examine the sequence of events on 6 June 2003 in the findings and reasons part of its decision. It is contended that the Tribunal raised credibility concerns because of the alleged inconsistency between the applicant's oral evidence regarding the time of his treatment in hospital after his release from detention (the morning of 6 June 2003) and the time the diagnosis report was drafted (6 pm, 6 June 2003). Reference is made to the fact that the applicant explained at the hearing that he received basic treatment only on his arrival and that further treatment was not available until the hospital received a deposit payment, which did not occur until the afternoon of 6 June 2003.
Again, the applicant takes issue with a particular aspect of the Tribunal's failure to accept his explanation for what it perceived as an inconsistency, in this case between the hospital records and his account of what occurred and when. It was open to the Tribunal to find an inconsistency between the applicant’s evidence that he was taken straight to hospital on the morning of 6 June 2003 and treated in the emergency department and the fact that the hospital records indicated 6 June 2003, 6 pm. There is no suggestion that the hospital records are anything other than the initial assessment of the applicant's injuries. The initial entry on the records entitled “Medical Records for Outpatients”, described the applicant's symptoms and observed injuries and stated that it was advised that the patient should stay in hospital for treatment. That is followed by another entry dated 6 June 2003 recording that the applicant had been admitted into hospital. Clearly this part of the medical records does not relate to the treatment the applicant later received once he became an inpatient.
Notwithstanding that another decision-maker may have taken a different view, it was open to the Tribunal to reject the applicant's explanation for what could be perceived as inconsistencies between his evidence and his hospital records. No jurisdictional error is established on this basis. It has not been established that the Tribunal misunderstood the sequence of events. Even if it had done so, that of itself would not be such as to constitute a jurisdictional error, having regard to the distinction between a failure to attend to evidence, even probative evidence, constituting a factual error and a failure to consider an integer of an applicant's claim. (See Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J).
Failure to investigate
The sixth ground in the application refers to the fact that the Tribunal did not accept that the applicant did not lodge an application for a protection visa because he read an article in a Chinese newspaper suggesting that China had sent more than one thousand spies to Australia and because he was afraid of Chinese spies in Australia.
In its reasons for decision the Tribunal had regard to the fact that this claim had been made by a member of the Chinese Consulate staff who sought asylum in May 2005 and was reported in the media at that time. The ground refers to an “Epoch Times” article dated 6 June 2005 and takes issue with the fact that the Tribunal did not check whether an article mentioning Chinese spies was published in the “Australian Chinese Daily” in early 2006. This appears to relate to the Tribunal’s conclusion that the applicant did not arrive in Australia until January 2006 and that it was highly implausible that he would have read a newspaper article written by the Chinese diplomat after his arrival in Australia.
This is not a case in which the Tribunal was under a duty to investigate in the manner that seems to be contended (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992) or to make out the applicant's case for him (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [83] per Wilcox J). The material before the Tribunal was not such that the need for further inquiry was obvious, such that it could be said that the failure of the Tribunal to exercise its power to make inquiries denied the applicant a fair proceeding. Nor is this a case in which the Tribunal drew an adverse inference from material on grounds which could be described as slight in the manner considered in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. It cannot be said that the Tribunal failed to obtain important information on a critical issue which it knew or ought to have known was readily available, such that it could be said that its conduct was unreasonable in the sense that no reasonable decision-maker would have proceeded to make the decisions without making such an inquiry (see Prasad and Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at [63] per Kenny J).
Indeed it would appear that the Tribunal did make some inquiries or conduct some investigation in order to locate the “Epoch Times” article published in June 2005 which described events which occurred and concerns raised by a Chinese diplomat in May 2005. It was open to the Tribunal in light of the timing of the events in question, the fact that the story and claims were reported in the media in May 2005 and the fact that the applicant did not arrive in Australia until 12 January 2006 to find it highly implausible that he would have read a newspaper article written by the Chinese diplomat after his arrival in Australia. The applicant's claim was that he read an article written by a Chinese Consulate staff member (not that he read an article about such events written after the time of the events in question but mentioning Chinese spies). This ground is not made out.
Misquoting evidence and taking it out of context
The final ground in the application is that the Tribunal statement that it “accepts that the applicant came to Australia with the intention of obtaining a job in the mining industry” was taken out of context and was inaccurate.
In the statement accompanying his protection visa application the applicant referred to the fact that the company he worked for in China was invited to visit Australia on business and that his boss, who was said to be aware of his situation, wanted to give him the opportunity to go to Australia, said that he had a good knowledge of the mining business and that Australia was probably in need of people like the applicant. The applicant went on to refer to the fact that he intended to apply for refugee status in Australia, but did not know what to do.
The Tribunal recorded that at the first hearing the applicant gave evidence that he travelled to Australia on a business visa because an Australian mining company invited his company to Australia and that his company paid the fees. He first went to New Zealand to investigate the mines and then travelled to Australia. In response to questioning he told the Tribunal that he had not applied for a protection visa in New Zealand because there are a lot of mines and mineral resources in Australia and that it was very suitable for him to get a job here. He left the group in Melbourne, travelling to Sydney by himself because he heard there were mineral sites in Sydney and “came here to look for a job. He did not know anyone in Sydney”.
He subsequently claimed that he left China because he suffered persecution from the Chinese government. The Tribunal recorded that he told it that:
His intention when he came to Australia was to obtain a suitable job so he could have a place to stay. When asked how long he wished to stay in Australia he stated that he just wanted to stay here. He heard there are Chinese spies in Australia so he did not dare apply as a refugee. He just wanted a place to stay and a job from a mineral company.
Reading the whole of the Tribunal decision fairly and as a whole it is apparent that the Tribunal considered the applicant's evidence in relation to his intention to obtain a job in the context of addressing his claims about what occurred in China and his state of mind on departure and after arrival in Australia. It was in that context that the Tribunal accepted that the applicant came to Australia with the intention of obtaining a job in the mining industry, as distinct from coming to Australia because he was a Falun Gong practitioner who had experienced the events complained of in China. It has not been established that the Tribunal took a statement out of context or made a statement that was inaccurate, let alone that it did so in a manner constituting jurisdictional error. Rather, while the Tribunal did not accept the applicant's claims of past persecution, it did accept his evidence as to the work he wanted to obtain in Australia. It went on to find that this was in fact his primary focus in coming to Australia. Such a finding was open to the Tribunal on the material before it for the reasons that it gave. The applicant's contention that the Tribunal's finding was inaccurate seeks merits review which is not available in this Court. No jurisdictional error is established on this or any of the bases contended for in the application of 3 June 2008.
Section 91R(3) of the Migration Act
In addition, the applicant sought to rely on the ground in the amended application filed in Court on 14 August 2008. The only ground in that amended application is that the Tribunal committed jurisdictional error by failing to comply with the mandatory provisions of s.91R(3) of the Migration Act 1958 (Cth). The particulars to that ground are as follows:
(a)In considering the Applicant’s claim for a protection visa, the Second Respondent considered the Applicant’s conduct in Australia, including his claimed practice of Falun Gong following his arrival in Australia.
(b)The Second Respondent was not satisfied that the applicant’s practice of Falun Gong in Australia was otherwise than for the purpose of strengthening his claim to be a refugee [CB 265.6].
(c)Following that finding the Second Respondent was required to disregard that conduct for all purposes.
(d)However, the Second Respondent did in fact consider that conduct in determining the Applicant’s credibility and the balance of his claims to be a refugee, as follows:
(i) At paragraph 139 of the decision [CB 264] the Second Respondent stated; “When considering the evidence as a whole the Tribunal finds that there are a number of inconsistencies and contradictions between the applicant’s written evidence and his oral evidence …… This raises serious concerns in relation to the applicant’s credibility and Mr Chen’s credibility”.
(ii)At paragraph 146 of the decision [CB 265] the Second Respondent stated; “Having consider the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
(e)The reference to the applicant’s evidence “as a whole” must include evidence given by the applicant concerning his practice of Falun Gong in Australia.
(f) The use of this evidence in this manner offends the mandatory provisions of s.91R(3) of the Act.
The amended application noted but did not otherwise address the decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451.
The Court did not have the benefit of any submissions from the applicant in relation to this or any of the other grounds relied on. Nonetheless, as the applicant is self-represented I have considered the ground as particularised in the amended application and the application of s.91R(3) to the conduct engaged in by the applicant in Australia.
Section 91R(3) of the Migration Act 1958 (Cth) is as follows:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
In SZJGV Spender, Edmonds and Tracey JJ considered the construction of 91R(3) of the Act, observing (at [10]) that it was “common ground” that the subsection suffered from a lack of clarity. Their Honours held that s.91R(3) was not confined to conduct which may give rise to a sur place claim, but rather that it required a decision-maker (subject to the proviso in para.(b)) to disregard “any” conduct in Australia by an applicant in determining “whether” an applicant had a well-founded fear of persecution for a Convention reason. Their Honours observed that inaction could constitute conduct within the meaning of s.91R(3) (at [22]). Their Honours stated at [24]:
The conduct may suggest that such fear is or is not well-founded. In either case it must be disregarded. If the Tribunal brings the conduct into account it will contravene s 91R(3).
The Full Court also accepted that s.91R(3) could only be applied once primary findings of fact had been made. On this basis the Court stated at [22]:
If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not (b) may have application. If it has occurred then consideration must be given to the requirements of s 91R(3).
The Full Court explained that this did not mean that conduct could not be taken into account “at all” in deciding the application, as initially primary facts had to be found. If they included conduct engaged in by the applicant in Australia that meant that s.91R(3) could be engaged. Once engaged s.91R(3) precluded the decision-maker from having regard to “any conduct” engaged in by the applicant in Australia, unless the decision-maker was satisfied it was engaged in otherwise than for the purpose of strengthening the applicant's claim to be a refugee.
Three decisions of the Federal Magistrates Court were before the Full Court of the Federal Court in SZJGV. The Court found that in each case the relevant Tribunal had received evidence and made findings about the respective appellant’s activity or lack of activity in Australia. In each case the evidence that led to the findings in question had been called by the appellant (at [23]) and in each case the Tribunal had appreciated that s.91R(3) applied and that the conduct must be disregarded under that section. However their Honours found that in each case the Tribunal had had regard to the appellant's conduct by relying on that conduct in part as a reason for concluding that the appellant was not a refugee.
In discussing the particulars of each case their Honours pointed out that a Tribunal may fall into error by having regard to conduct in Australia for a number of purposes, including for the “limited purpose of assessing the credibility” of a claim to have engaged in particular conduct in the applicant's home country and to have suffered persecution for having done so (at [27]) or for the purpose of determining whether there was reason to believe that an applicant would be persecuted by reason of his or her activities should he or she return to his or her home country.
The Court stated (at [25] – [26]) that there were particular issues that it was not necessary to resolve and which should await a case in which such questions needed to be resolved. First, it was pointed out that a distinction might be drawn between an applicant's conduct and the reason or reasons for which that conduct had occurred (as suggested by Driver FM in SZIBK v Minister for Immigration & Multicultural Affairs [2006] FMCA 1167 and SZGDA v Minister for Immigration & Citizenship [2007] FMCA 1152) and that a Tribunal may be able to rely on the motivation for conduct for the purpose of bolstering or undermining the applicant's credibility. It was not necessary in SZJGV to decide whether or not such a distinction could be drawn, as in none of the cases before the Court had the Tribunal sought to do so.
The Court also found (at [26]) that it did not need to resolve whether s.91R(3):
is enlivened only when an applicant seeks to rely on his or her conduct in Australia to support a claim to be a refugee. There may be cases in which the decision maker becomes aware of relevant conduct from other sources. The evidence may be prejudicial to an applicant who will not seek to rely on it. Even so, it is arguable that s 91R(3) will be engaged and will require the decision maker to disregard the evidence.
In light of these principles it is necessary to consider what conduct in Australia the Tribunal had regard to in this case and whether it breached s.91R(3). The Tribunal considered the applicant’s claim that he practised Falun Gong exercises and studied Falun Gong at the Villawood Detention Centre. The Tribunal accepted that the applicant had been studying Falun Gong and practising the exercises in the detention centre, but referred to s.91R(3) and found for the reasons that it had given (and this is clearly a reference to the Tribunal's reasons for the finding that the applicant was not a witness of truth and was prepared to fabricate his claims to give himself a profile of a refugee) that it was not satisfied that his “practice of Falun Gong in Australia” was otherwise than for the purpose of strengthening his claim to be a refugee and therefore that it was required to disregard this conduct in its assessment of the applicant's well-founded fear of persecution.
The Tribunal did not refer to any aspect of the evidence in relation to the applicant's study or practice of Falun Gong at the Villawood detention centre in determining whether or not the applicant had a well-founded fear of persecution for a Convention reason.
While in the penultimate paragraph of the reasons for decision, the Tribunal stated “Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention (emphasis added)”, contrary to the contentions in the amended application, this reference to the evidence “as a whole” is not such as to establish that the Tribunal had regard to the applicant's practice of Falun Gong in Australia in determining whether or not he had a well-founded fear of persecution for a Convention reason.
The reference to the applicant's evidence “as a whole” when read as part of the Tribunal's decision is not such as to lead to the inference that the Tribunal took into account this evidence which it had just stated that it disregarded pursuant to s.91R(3). There is nothing in the Tribunal's reasons for decision to indicate that it did not simply disregard that conduct as it stated.
Similarly, while the Tribunal referred to the evidence as a whole in finding inconsistencies and contradictions which were said to raise serious concerns in relation to his credibility, there is nothing in the Tribunal reasons for decision to indicate that the Tribunal considered that there were or had regard to any inconsistencies or contradictions in relation to the applicant's claims to have been studying Falun Gong and practising the exercises in Australia while in detention. When explaining its reasons for rejecting the applicant's claim to have been a Falun Gong practitioner in China and in determining whether there was reason to believe he would be persecuted by reason of Falun Gong activities should he return to China, the Tribunal did not have regard to the applicant's conduct in practising Falun Gong in Australia or indeed the applicant's motivation in studying and practising Falun Gong in Australia in detention, insofar as it accepted that his had occurred. There is, for example, no finding as to recent invention (cf SZJGV at [27] addressing a decision in which the Tribunal had relied on what it described as an applicant's recent attempts to construct a profile of a Falun Gong practitioner for himself as undermining the credibility of his claim to have practised Falun Gong in Australia). No failure to comply with s.91R(3) is established in relation to the Tribunal's consideration of the applicant's conduct while in the Villawood detention centre.
The Tribunal had regard to a number of other aspects of the applicant’s conduct in Australia. It found that credibility concerns were raised by the fact that the applicant had lived with a Mandarin and English speaking landlord of Chinese background for eight to nine months after arriving in Australia but that he made no attempt to find out from his landlord where he could obtain advice in relation to applying for refugee status. The Tribunal also considered the applicant’s claim that he practised Falun Gong exercises every morning by himself in the backyard while living at the landlord's house in Australia. The Tribunal expressed concern relevant to the applicant's credibility, given the oral evidence of the landlord that he had observed the applicant doing exercises in the backyard from time to time or frequently (not every morning as the applicant claimed).
The applicant gave evidence that a friend had told him about protection visas in February 2007, but he made no attempt to obtain any legal advice or to lodge an application for a protection visa at that time. The Tribunal had regard to this inaction in considering more generally the applicant’s delay in applying for a protection visa.
The applicant also claimed to have met Falun Gong practitioners by September 2007, to have associated with them and to have been involved in Falun Gong activities. The Tribunal had regard to the fact that he made no attempt to obtain any information from them as to where he could obtain legal advice in relation to lodging an application for a protection visa.
The Tribunal did not accept that the applicant practised Falun Gong exercises in Australia prior to being detained or that he associated with Falun Gong practitioners or was involved in Falun Gong in activities after September 2007.
First, as the Full Court of the Federal Court stated in SZJGV at [22], where an applicant claims to have engaged in conduct in Australia which causes him to fear persecution the Tribunal must decide whether or not that conduct has occurred: “If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) [s.91R(3)] may have application.” Hence, as the Tribunal did not accept that the applicant practised Falun Gong exercises in Australia prior to being detained at the Villawood detention centre, that after September 2007 he associated with Falun Gong practitioners or that he was involved in Falun Gong activities, there is no scope for the operation of s.91R(3) in relation to such matters. It was not necessary for the Tribunal to address s.91R(3) in relation to conduct that it found did not occur. In assessing the applicant's credibility it was not prohibited by s.91R(3) from having regard to issues in relation to these claims or associated claims, for example inconsistencies and contradictions in the applicant's claims in those respects (see SZJGV at [22] and SZIBK v Minister for Immigration & Multicultural Affairs [2006] FMCA 1167 per Driver FM (at [9]) cited in SZJGV at [15]).
The applicant's claims that he lived with a Chinese landlord for eight to nine months and the Tribunal’s view of the fact that he acknowledged that he made no attempt to obtain advice about applying for refugee status either through his landlord or when his friend told him in February 2007 about protection visas, was not evidence that the applicant put forward in support of his claims in the sense of relying on it to support his claim to be a refugee. In SZJGV the Full Court of the Federal Court did not have to decide and hence left open the possibility that s.91R(3) was not limited to a situation where an applicant sought to rely on his or her conduct in Australia to support a claim to be a refugee, but might apply where evidence, whether or not it came from the applicant, may be prejudicial to an applicant who would not seek to rely on it. This conduct is of that nature.
However this issue was addressed in an earlier decision of Jacobson J sitting as the Full Court of the Federal Court, by which I am bound. In SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FCA 648 his Honour concluded at [30] that s.91R(3) “is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution. In my opinion this is plainly the effect of section 91R(3).” Jacobson J found that there was no error in the Tribunal having regard to conduct where the applicant did not rely on this conduct in Australia to support his claim for refugee status. (Also see SZGDA v Minister for Immigration & Citizenship [2007] FMCA 1152 at [19] – [20] per Driver FM.)
In SZHFE what was in issue was an applicant's failure over a period of time to make any claim for refugee status. This is analogous to the situation in this case in relation to particular aspects of the applicant's inaction and more generally his delay in applying for a protection visa.
On this basis the Tribunal in this case did not err in having regard to the inaction of the applicant as set out above or to his delay in applying for a protection visa in reaching its conclusions. The approach taken by Jacobson J makes it unnecessary to consider whether it should be inferred from the Tribunal's decision that it accepted that such inaction or other aspects relevant to the applicant’s delay in applying for protection was not engaged in for the purpose of strengthening his claims, on the basis that a failure to make a claim could not be understood as an attempt to enhance a claim to be a refugee, albeit such an inference might be readily drawn (as Driver FM considered at first instance in SZHFE v Minister for Immigration & Anor [2005] FMCA 1857).
This ground is not made out.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 17 September 2008
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