SZMTK v Minister for Immigration
[2009] FMCA 310
•28 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMTK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 310 |
| MIGRATION – RRT decision – Chinese applicant claiming fear of persecution for assisting the Shouters – Tribunal disbelieved significant claims of involvement with Shouters – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), ss.422B(1), 424A, 424A(1), 424A(3)(ba) |
| Fox v Percy (2003) 214 CLR 118 MZXBQ v Minister for Immigration & Citizenship (2008) 166 FCR 483 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 SZICV v Minister for Immigration & Anor (No.3) [2009] FMCA 175 SZMCB v Minister for Immigration & Anor [2008] FMCA 951 |
| First Applicant: | SZMTK |
| Second Applicant: | SZMTL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2410 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 23 February 2009 |
| Last date for submissions: | 6 April 2009 |
| Date of last submission: | 14 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2009 |
REPRESENTATION
| Counsel for the Applicants: | First Applicant in person |
| Counsel for the First Respondent: | Mr P Silver |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants must pay the first respondent’s costs in the amount of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2410 of 2008
| SZMTK |
First Applicant
| SZMTL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are a husband and wife who arrived in Australia in December 2007 on visitor’s visas. On 30 January 2008, they applied for protection visas, assisted by a migration agent. Only the husband made claims to be a refugee, and I shall refer to him as “the applicant”.
In a statement attached to the application, the applicant said that he was not a Christian, but had been impressed by Mr Z who came from a Christian family, and who had saved the applicant’s son from drowning. Mr Z was later imprisoned for 8 years for his involvement in “an underground Christian church called as the Local Church (a.k.a. ‘the Shouters’)”. During that period, the applicant secretly assisted Mr Z’s elderly mother. After his release in 2005, the applicant persuaded his factory to offer a job to Mr Z as a part‑time driver to “remote places”. The applicant also permitted him to use his “old property” in another province “for setting up the Local Church’s underground printing factory”, and gave him money to do this. The applicant visited him several times during 2007, and arranged for another person to be employed at his factory as a long‑distance driver as cover for delivering “religious promotion materials”.
However, in September 2007 Ms W, an employee of the underground printing factory, was arrested by the PSB while delivering bibles. On Mr Z’s advice the applicant then made arrangements with his brother in Australia to organise his trip to Australia. Ms W was released on bail in October 2007, and at the request of Mr Z the applicant “tried my best to arrange Ms W to go to the overseas, because she was still in dangers”. This delayed his own departure after he received a visa. He departed in December 2007, when “unexpectedly, the printing factory was destroyed by the PSB” and Mr Z and most of the employees were arrested. After leaving China, the applicant was informed that the police in both provinces had visited his home and factory with arrest warrants, because “I have been alleged to be one of founders of the underground printing factory of the Local Church”.
The applicant provided no supporting documents to the Department of Immigration, but attended an interview by the delegate. An account of the interview is set out in the delegate’s reasons. It contains the following description of the applicant’s evidence concerning his delayed departure from China:
The applicant was asked about his friend in the local church, Ms W. I clarified if it was the local church which approached the authorities to secure her release. The applicant answered in the affirmative. When told that the local church leaders would have been on the wanted list and therefore would be wary about approaching the authorities, the applicant said Ms W was very sick. He was not able to address the issue of why the officials or members of the local church would approach the authorities when they themselves were supposed to be wanted for belonging to an underground church.
The applicant was also asked why he delayed his departure from China. He said that he wanted to help Ms W first to get out of the country. When asked what kind of help he could extend, he could not give an answer. He avoided the question by saying that Ms W was blacklisted. When asked why he delayed his departure when he knew that Ms W could not be helped for being blacklisted, the applicant stated that his son was helped by a member of the local church. In the end, the applicant was unable to explain what help he could offer. He was very vague in his response and his responses tended to indicate that he was not very familiar with the written statement which he submitted. He confused the days when he was in China with those when he was already in Australia. He would sometimes explain something by saying that he was already in Australia when that event was claimed to have happened when he was still in China.
On 8 April 2008, the delegate refused the visa applications. The delegate said that the applicant was not a reliable witness, and that his responses had been “vague, incoherent, confused and at times illogical… most of his statements were just fabrications”.The delegate concluded that “the delay in the applicant’s departure without a plausible explanation indicates to me that he was not concerned with his safety when he left China. His having left China legally without any problem indicates that he was not of interest to the authorities at the time of his departure”. His claims that the police had visited his house “lacked consistency and coherence”, and were rejected. The delegate was not satisfied that he would face persecution should he return to China.
On appeal, the applicant was further assisted by his agent, who forwarded two documents which were claimed to be arrest and search warrants. These were subsequently examined by the Department’s document examination section, which was unable to comment on the authenticity of the documents.
The applicant attended a hearing on 10 July 2008, accompanied by his wife and brother. Although he was given the recording of the hearing, he has not tendered a transcript, and I must rely upon the Tribunal’s description of the hearing. According to the Tribunal, the applicant’s “answers often appeared to be deliberately evasive”.
He was questioned about how he learned about the police visits, and his contacts with his family in China. He maintained his history of involvement with Mr Z, and gave the following evidence about his involvement with Ms W:
42.The applicant was asked how Ms W came to be released on bail after she had been arrested. He said that it was done through bribery and the help of a retired policeman. It was put to the applicant that he had referred in his statement to the effort put in by the Local Church members (“Shouters”) to secure her release. He said that it was done through bribery of the local police. When asked who bribed the police, the applicant said it was the Shouters.
43.It was put to the applicant that he had said in his statement that Mr Z had asked him to arrange for Ms W to go overseas. He said this was so. He was asked why Mr Z asked him to do this. He said that he asked him to do it through connections. He was asked at the hearing what connections he had. He was very vague, finally saying that he tried to find contacts to arrange Ms W’s departure. He was asked whom he talked to. He said that he tried to talk to the snakeheads. He was asked whether he knew any snakeheads. He said that he did not. He tried to do it indirectly. He was asked what happened as a result. He said nothing happened. It was very hard because Ms W was wanted by the police. He was asked what happened to Ms W after he left. He said that she was arrested by the police in [location]. He was asked who told him. He said “people at home”. He was asked who exactly this was. He said that Mr Q who had worked as a driver at the Plastics factory told him. He was asked when he told him. He said it was about 10 to 20 days after he came to Australia.
44.The applicant was asked where he was on 10 December 2007 when he claimed that the bible‑printing factory was destroyed. He said that he was at work, and he was told about it and advised to leave the country. When asked who told him this, he said it was Ms H.
45.It was put to the applicant that he had had a visa to travel to Australia since 13 November 2007, but that he did not leave, even though Ms W had been arrested in September 2007. He said that he wanted to help Ms W. It was put to the applicant that he had said that he had no success in helping Ms W, even though he claimed to have been trying to do so for months. He said that he was trying to help her. It was put to the applicant that even after the factory was seized by the PSB, he still did not leave for another week. He repeated that he was trying to help Ms W.
The applicant’s wife was also questioned, but was vague about her contacts with her family. She said that she did not know why she and her husband had left China, because “she did what her husband asked her”.
After the hearing, the Tribunal sent a written invitation for written comments on a number of matters. The body of the letter was:
You are invited to comment on or respond to information that the Tribunal considers would, subject to any comments or responses you make, be the reason, or a part of the reason, for affirming the decision that is under review.
The particulars of the information are:
·You said at your interview with the Department on 6 March 2008 that you had lost contact with your children; at the Tribunal hearing on 10 July 2008 you told the Tribunal where your children were, and said that you had spoken to them on the phone at least twice; you said you have spoken to your daughter on 1 January 2008;
·You said at your interview in March 2008 that your mother was living with your ([the applicant’s]) sister; you said at the Tribunal hearing in July 2008 that your mother was living with your ([the applicant’s]) brother;
·You said at your interview in March 2008 that the Local Church (the “Shouters”) members had approached the authorities to release Ms W after her arrest; you said at your Tribunal hearing in July 2008 that Ms W had been released through a former police officer and through bribery;
·You said at your interview in March 2008 that your children were not at home when the police came to the house with an arrest warrant for you; you said at your Tribunal hearing that your daughter was at home;
·You said at your interview in March 2008 that your sister told you about the police visit to your house with an arrest warrant; you said at the Tribunal hearing that your daughter told you about the police visit to your house, and that your sister told you about the police visit to your workplace;
·You said at your interview in March 2008 that the arrest warrant was given to your mother; you did not mention in either your statement attached to your Protection Visa application or at your interview that your daughter was issued with a summons; you said at your Tribunal hearing that you had spoken with your daughter on 1 January 2008 and that she had told you about the police visit to your house; you said that it was your daughter who sent the documents claimed to be an arrest warrant for you and a summons for her;
·Your wife at your interview in March 2008 appeared to know in detail about your experiences prior to your departure for Australia; at the Tribunal hearing in July 2008 your wife said that she did not know why you left China to come to Australia; she just did what you asked her.
This information is relevant to the review because it could indicate to the Tribunal that your evidence is not reliable, and that you may have fabricated claims to support your refugee application. If the Tribunal does not accept your account as credible, it may find that you do not have a well‑founded fear of persecution in China and may refuse you a Protection Visa.
In addition, the Tribunal invites comment on the following adverse information, the particulars of which are:
·You were invited by the Department to submit the arrest warrant which you say was issued by the PSB after you left China; you were unable to submit the document to the Department, but submitted documents to the Tribunal on 10 July 2008.
This information is relevant to the review because it could indicate to the Tribunal that the documents you have submitted to the Tribunal are not genuine, and have been fraudulently obtained to support your claims to a Protection Visa. If the Tribunal does not accept these documents as authentic, it may find that you were of no interest to the authorities in China, and that you therefore do not have a well‑founded fear of persecution in China. The Tribunal may then refuse you a Protection Visa. As advised at the Tribunal hearing, the Tribunal will submit the documents to the Document Examination Unit for comment, and will advise you in the event of an adverse opinion by the Unit.
You are invited to give comments or respond to the above information in writing.
The applicant’s agent forwarded a response on 24 July 2008. This consisted of a statement by the applicant, which attempted to reconcile the inconsistencies which had been put to him. For example, in relation to the second to fifth matter put to the applicant by the Tribunal, he responded:
3.My mother did not have a fixed living place, because she was old and she needed others to look after her. Normally, we took care of her in turn. At the time while I was interview with the Department, my mother was living with my sister; because it was the turn that my sister should look after my mother. But, at the time while I attended the Tribunal’s hearing, my brother was in turn to take care of my mother and thus my mother lived with my brother.
4.It must be a mistake made by the Departmental officer or by the interpreter at the Departmental interview. What I said at the Departmental interview is that the Local Church’s members found contacts with the authorities to get Ms W released after her arrest. Actually, they did so through a former police officer and through bribery.
5.I was really unable to recall what I had said exactly at the Departmental interview about whether my children were at home when the police came to the house with an arrest warrant for me. However, it was the fact that my son had not been at home but my daughter had at that time. So, I should say at the Departmental interview that my son was not at home when the police came to the house with an arrest warrant.
6.Likewise, I was really unable to recall what I had said exactly at the Departmental interview about who had informed me exactly about the police coming. As a matter of fact, my daughter told me about the police visit to my house and my sister told me about the police visit to my workplace.
The Tribunal handed down its decision on 19 August 2008, and affirmed the delegate’s decision. Although the Tribunal said that it had “serious concerns about the applicant’s credibility”, it accepted parts of his claimed history. It accepted that he had “befriended a Christian of the Shouter sect who saved his child”, and that he owned a property in another province which he allowed Mr Z to use for printing religious materials. It also gave the applicant “the benefit of the doubt” in accepting that Ms W was arrested and detained in September 2007.
However, it rejected all the subsequent history, which it said “was unable to be supported credibly by oral evidence after the arrest of Ms W”. The Tribunal made particular criticisms of the applicant’s evidence about being implicated in the downfall of the Shouters’ printing venture. It suggested that the claimed circumstances of Ms W’s release were implausible, as was the possibility that the applicant would become responsible for arranging her escape from China. It therefore rejected his explanation for delaying his departure on his visit to Australia. The Tribunal also doubted the applicant’s evidence that he came to know of the arrest of Mr Z and the destruction of the printing factory. It found to be inconsistent and implausible, the applicant’s evidence about how he came to know that the police had visited his home and the factory with an arrest warrant. It also said that it drew “adverse conclusions about the applicant wife’s inability to support the applicant’s claims in oral evidence before the Tribunal”.
The Tribunal concluded:
79.The applicant does not claim to have been persecuted in China. He has stated that he now fears arrest and harm in China if he returns in the foreseeable future for reason of his imputed religious beliefs and political opinion by reason of his association with the Shouters religious sect. The Tribunal has considered whether there is a real chance that the applicant will be persecuted in a Convention sense if he returns to China in the foreseeable future.
80.While the applicant claims, and the Tribunal accepts, that he has assisted the Shouters, a banned religious group in China, it does not accept that he was ever sought by the Chinese authorities either while he was in China, or after he departed. It has rejected the applicant’s claims that he was ever issued with an arrest warrant or that he was ever sought for by the police. The applicant does not claim to have ever been involved in the practice of the Shouter religion, or to believe in that religion. The country information indicates that leaders and adherents of banned sects including the Shouters have suffered serious harm in China (see pages 13‑14), but there is no indication that people who have assisted them have been harmed. Since the applicant and his wife have never been Shouters, there is not, in the Tribunal’s view, a real chance that they would be imputed with the beliefs of the Shouters. Nor is there a real chance, in the Tribunal’s view, that the applicant would take up the religious practice of the Shouters if he returned to China, since he has given no indication that he would do so.
81.While it may be the case that the authorities have been aware in the past that the applicant has provided assistance to a banned sect, there is no satisfactory evidence before the Tribunal that the applicant has been sought by the police for that reason. There is no evidence before the Tribunal that the applicant would either practise a banned religion or provide further assistance to such practitioners if he returned to China. The Tribunal is therefore not satisfied that there is a real chance, as distinct from a remote possibility, that the applicant will be persecuted for a Convention reason if he returns to China in the foreseeable future. It is not satisfied that the applicant has a well‑founded fear of Convention‑based persecution in China.
The applicants now ask the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicants’ claims should be believed, nor whether they qualify for protection visas or any other permission to stay in Australia.
The applicants have not filed an amended application nor written submissions, but rely upon grounds which are argued in the original application. They were unrepresented at the hearing, and the applicant husband, who represented his wife, was able only to repeat the complaints formulated in his application.
In the course of exchanges with counsel for the Minister I isolated a possible contention by the applicants that the Tribunal’s statement of reasons revealed a breach of s.424A(1) of the Migration Act 1958 (Cth), and both parties were given an opportunity to make supplementary written submissions on this point.
The s.424A(1) point which I raised, was whether the Tribunal relied upon information gleaned from the applicant’s evidence when he was interviewed by the delegate, and which was not properly put to the applicant in the Tribunal’s letter. As I have indicated, the delegate made reference to what the applicant said, and about what the delegate concluded from his evidence, in the delegate’s statement of reasons. It is possible that the Tribunal listened to a recording of the interview, but this is unclear on the evidence before me and I would not make a positive finding about this. It appears to me likely that a source of the Tribunal’s information about the delegate’s interview was the delegate’s statement of reasons.
Although amendments to s.424A made in 2007 now exclude from obligations under s.424A(1) information “that the applicant gave during the process that led to the decision that is under review”, this exclusion does not apply to “such information that was provided orally by the applicant to the Department” (see s.424A(3)(ba)).
Not everything which an applicant is noted as having said in a delegate’s interview must be put back to an applicant for written comment before it can be relied upon by the Tribunal. On the construction accepted by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, inconsistent or other statements made by an applicant to a delegate are not ‘information’ coming within s.424A(1), if they are regarded merely as diminishing his credibility as a witness, and do not in themselves provide positive evidence which “in [its] terms [is] a rejection, denial or undermining of the [applicants’] claims to be persons to whom Australia owed protection obligations” (see SZBYR at [17], [18] and [21], as explained by Heerey J in MZXBQ v Minister for Immigration & Citizenship (2008) 166 FCR 483 at [29]).
However, if ‘positive’ information is gleaned from an applicant’s oral evidence to a delegate, even through a process of inference from silence or omission, and if this is identified as negating a refugee claim and not merely as reflecting upon the credibility of the applicant as a witness, then s.424A may be engaged (see my recent references to the effect of SZBYR on previous authorities in SZICV v Minister for Immigration & Anor (No.3) [2009] FMCA 175 at [32]‑[33]). It is possible that this might include information about the manner or demeanour in which an applicant gave evidence to the delegate, if this was taken in itself by the Tribunal as information negating his refugee claims (compare SZMCB v Minister for Immigration & Anor [2008] FMCA 951, where, however, the Minister conceded that the Tribunal’s observations of demeanour at the delegate’s interview were ‘information’).
In the present case, the issue which I raised with the Minister’s counsel, was whether the Tribunal’s reasoning shows that it drew ‘information’ from the delegate’s interview, other than the seven inconsistencies between the applicant’s statements to the delegate and to the Tribunal which it put to the applicant in its letter of 10 July 2008. I invited submissions, in particular on three references to the delegate’s interview, which appear in the following three paragraphs of the Tribunal’s reasons:
69.The Tribunal had serious concerns about the applicant’s credibility. While the applicant responded to the Tribunal’s letter setting out discrepancies in oral and written evidence given to the Department and to the Tribunal, most of the Tribunal’s concerns remain. At both his Departmental interview and at his Tribunal hearing, the applicant appeared very confused and uncertain, and sometimes evasive, about a number of key incidents, particularly in relation to the arrest warrant for him allegedly served on his daughter after he left China. While the Document Examination Unit was unable to comment on the document’s authenticity, there is significant country information, put to the applicant at the hearing and set out above at page 13, that fraudulent documents are easy to obtain in China. Given the applicant’s equivocation about this document and the alleged summons to his daughter in his evidence to the Department and the Tribunal, and their late submission to the Tribunal for which the applicant was unable to provide a satisfactory explanation in the Tribunal’s view, the Tribunal has given the documents no weight. The Tribunal finds that the applicant is not a reliable witness.
…
73.The applicant was unable to respond convincingly at the Departmental interview about the circumstances of Ms W’s release from detention. The Tribunal does not accept the applicant’s written explanation that a mistake was made by the interpreter or by the Departmental officer at his interview when the applicant explained the circumstances of Ms W’s release as resulting from an approach by the Local Church members to the authorities. It was put to the applicant at the interview for confirmation of his written statement that Local Church leaders approached the authorities to release Ms W, and the applicant agreed that this was so. He was unable to respond at the interview when it was put to him that the Local Church leaders would hardly have approached the authorities when they themselves were under suspicion.
…
75.The applicant was unable to explain why he delayed his departure from China for a substantial period after the arrest of Ms W, other than that he spent the time trying to arrange her escape. The Tribunal has rejected this explanation. It rejects the applicant’s claims of the subsequent arrests of Mr Z and his employees, the destruction of the printing operation, and of the police’s attempts to arrest him after he left China, the police having visited his home and his workplace looking for him. The applicant has submitted no evidence to support his assertion of the arrest of Mr Z and others and the destruction of the printing operation. The applicant at interview and at the Tribunal hearing was vague and equivocal about how he came to know of the arrest of Mr Z and the destruction of the printing factory. The applicant wife said that she had no knowledge of these or any other relevant matters at the Tribunal hearing, even though she had appeared to be well informed of the written claims in the applicant’s initial statement when she was questioned at the Departmental interview. The Tribunal does not find it credible that the applicant wife would have been ignorant of the arrest of a man whom the applicant had befriended over some years, and to whom he had given every assistance in recompense for the saving of their son.
(emphasis added)
The Tribunal’s references to the applicant’s evidence to the delegate require analysis to understand exactly what it drew from that evidence. However, I accept the submissions of the Minister that none of these references shows reliance upon evidence amounting to ‘information’ within s.424A(1) as a ‘reason’ for affirming the delegate’s decision. Thus:
i)I am not persuaded that the Tribunal’s general reference in [69] to the applicant having “appeared very confused and uncertain, and sometimes evasive, about a number of key incidents” at the Department’s interview played any part in its reasoning except as introductory to the particular defects in his claims which it subsequently identified. This is because it appears in an opening general conclusion which is explained by subsequent particulars and explanations. The Tribunal’s subsequent reasoning did not draw upon the applicant’s evidence to the delegate about these incidents to do more than explain why the totality of his evidence, including the purportedly corroborative documents, was found to be unpersuasive. Its general observation about the applicant’s evidence to the delegate was therefore, at most, part of the Tribunal’s mental assessment of the generally unpersuasive nature of parts of that evidence. To such extent – which is unclear – that the Tribunal ultimately relied upon this general assessment as a separate consideration, it was not ‘information’ within the statutory concept explained in SZBYR. The particular evidence which it assessed did not, in itself, provide ‘the reason’ for affirming the delegate’s decision. This analysis applies both to the inconsistencies which were put to the applicant in the Tribunal’s letter, and to any other aspects of his evidence to the delegate which were not specified in that letter.
ii)The point made by the Tribunal in [73] arises by inference from what it said. The Tribunal made the point that “he was unable to respond at the interview” to a query raised by the delegate, so as to provide plausibility for a claim about Ms W’s release. Its reference to this aspect of the interview was, in effect, an oblique explanation of its own assessment of a weakness in the ‘apparent logic’ of this element in the applicant’s claims (cf. Fox v Percy (2003) 214 CLR 118 at [31]). The reasoning therefore presented ‘thought process’ referrable to a topic which was discussed by the delegate, rather than ‘information’ identified by the Tribunal as a reason for rejecting this claim.
iii)The Tribunal’s observation at [75] that the applicant “at interview … was vague and equivocal about how he came to know of the arrest of Mr Z”, has the same character as its other references to the delegate’s interview. That is, they reveal only thought processes as to the unpersuasive character of the totality of the applicant’s evidence on this claim, rather than the identification of information taken from the applicant’s oral evidence to the delegate which itself disproved the claim.
I therefore am not persuaded that any breach of s.424A(1) is shown by the Tribunal’s references to the applicant’s evidence given to the delegate at interview.
Turning to the four grounds set out in the application, the first ground refers to the Tribunal’s adverse assessment of the applicant’s evidence to the delegate. It is suggested that the assessment might have been the result of poor interpretation, misunderstanding or psychological pressure during the interview. It is not contended that, in fact, any of these defects actually occurred at the delegate’s interview, and there was no evidence of this before the Tribunal or before me. However, it is contended:
The Tribunal therefore should at least give me fair chance to figure out the exact reasons why I “…appeared very confused and uncertain, and sometimes evasive, about a number of key incidents, particularly in relation to the arrest warrant…” at the Departmental interview. For this purpose, the Tribunal must provide me a copy of recording tape or CD or transcript in relation to the Departmental interview.
The short answer to this contention is that no procedural obligation under the Migration Act required the Tribunal to provide more particulars of the applicant’s evidence given to the delegate, whether by provision of a recording or otherwise, once it is found that no obligations arose under s.424A(1), and once it is appreciated that s.422B(1) excluded other requirements of natural justice in relation to inviting comment on adverse material.
Moreover, I do not accept the complaint that the Tribunal unfairly made assessments of the applicant’s evidence given to the delegate. It must have been apparent from the delegate’s own reasons that these aspects of his evidence would be further assessed in the course of the review by the Tribunal, and no issues arise under principles considered in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. The applicant had a full opportunity before the Tribunal to dispel the concerns about the applicant’s evidence which were identified in the delegate’s reasons, and which ultimately also explained the Tribunal’s findings. If the applicant in fact believed that there were flaws in the delegate’s interview, he and his agent had ample opportunity to request access to any recordings and to display the flaws to the Tribunal. No such request was ever made, and I do not consider that any obligation arose on the Tribunal as is now contended.
The second ground of the application recites the contents of the applicant’s response to the Tribunal’s post‑hearing invitation for comments. It is contended that this provided “important evidences” which were ignored by the Tribunal. However, there is no substance to this, since plainly the Tribunal took into account the contents of the response, and it discussed the applicant’s various explanations for the inconsistencies in his evidence.
The ground also contends:
The Tribunal later on informed me that they would not contact my son or my daughter because the member is able to make a decision, which made me believe that my claims had been well accepted by the Tribunal; and I needed not to make any further submissions or evidences. It is obviously unfair for me.
However, I accept the submissions of the Minister’s counsel concerning this:
14.There is no objective material that supports the Applicant having been misled by the RRT. The facts surrounding the request for the telephone number of the Applicant’s children are to the contrary, namely:
(a)the Applicant was asked when he had last spoken to his children, and he gave the evidence recorded at paragraph 39 of the Decision Record (“DR”);
(b)the date on which he spoke to his daughter was queried in relation to the chronology of his narrative: DR 47;
(c)the Applicant’s wife was asked when she spoke to her children and she gave the evidence at DR 51;
(d)on 10 July 2008, the RRT wrote to the Applicants requesting the telephone numbers of their son and daughter: CB 112‑113; also on 10 July the RRT sent a letter to the Applicants pursuant to section 424A of the Migration Act setting out information that the RRT considered could be the reason, or part of the reason for affirming the decision that was under review, which included evidence that had been given in relation to communications with the Applicant’s children: CB 115‑117;
(e)the Applicant provided the telephone numbers to the RRT: CB 140;
(f)on 28 July 2008 the RRT informed the Applicant that it had decided not to contact the Applicant’s children because a statutory declaration submitted by the Applicant addressed in sufficient detail the Applicant’s contact with his children: letter from RRT at CB 40.
15.The letter of 28 July 2008 made it clear that the RRT required no further information about the communications and made it clear that it would not be telephoning the children.
16.In his response by way of statutory declaration to the matters raised in the s424A letter the Applicant gave evidence in response to the RRT’s concerns in regard to the Applicant’s communications with his children.
17.There is nothing on the face of the decision record, nor is there any evidence from which it can be inferred, that the Applicant would have given further evidence had he known that telephone calls to his children were not going to be made.
18.A further difficulty for the Applicant is that it is not possible to articulate what information the further telephone calls might have elicited, if any. It is therefore not possible for the Applicant to say he would have given this evidence himself had he known the telephone calls would not have been made, or that any prejudice has arisen.
19.In any event, the letter of 10 July 2008 cannot be reasonably or properly construed as a representation to the Applicant that he need not provide all relevant material to the RRT.
20.Finally, it is the duty of the Applicant to lead evidence to satisfy the RRT of his claims. There is no general duty on the RRT to make its own enquiries.
The third ground of the application refers to the Tribunal’s reasoning which gave no weight to the documents submitted by the applicant. It is contended:
However, even if “…there is significant country information that fraudulent documents are easy to obtain in China…”, it must be unfair to decide my documentary evidences not to be genuine ones. Particularly, the Tribunal failed to consider, properly and fairly, my further claims which I provided in my response to its s424 letter after the Tribunal’s hearing (see above). On the contrary, with a reasonable apprehension of bias, the Tribunal made a finding that “…the applicant was unable to provide a satisfactory explanation in the Tribunal’s view…”.
I do not accept these arguments, which invite a finding that the Tribunal failed to assess the applicant’s evidence with an open mind.
I can find no evidence of this, merely because ultimately the Tribunal was not persuaded by the documents. I consider that it was open to the Tribunal to arrive at its findings, and that it did so on rational grounds. In my opinion, the fact that it concluded that the documents could not be given weight to overcome the difficulties with the applicant’s own evidence, shows that it performed its duty to assess the evidence, and provides no evidence supporting an apprehension of bias under the principle identified in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]‑[32].
The fourth ground of the application is that the Tribunal failed to consider the applicant’s claim that “I have a real chance of being persecution on my return”, because:
The Tribunal accepted that I have “…assisted the Shouters, a banned religious group in China…”. But, the Tribunal failed to consider, properly and fairly, that it has already been sufficient enough for me to have a real chance of being persecuted on my return to China; and that my fear of persecution on return must be well‑founded.
In effect, this contends that it was not open to the Tribunal to have arrived at a conclusion excluding a real chance of persecution based on such parts of the applicant’s claims as were accepted by it.
I am not persuaded by this argument. The Tribunal in its final paragraphs addressed whether there was a real chance that a person who had assisted the Shouters in the manner of the applicant would face a real chance of persecution. It concluded that there was not a real chance that such of his actions as it accepted would give rise to his persecution for a Convention reason.
I consider that the Tribunal did address the claim which was before it, including by considering the implications of its acceptance of part of the applicant’s history. It pointed to rational reasons for concluding that the applicant had not been sought by the Chinese authorities in the past. Other minds might have arrived at an assessment of the chance of persecution in the future as being more than “a remote possibility”. However, this issue was centrally within the fact‑finding functions of the Tribunal, and I am not persuaded that it did not address the issue according to law.
For all the above reasons, I am not persuaded that the Tribunal’s decision is affected by any jurisdictional error. It was therefore a privative clause decision, and I must refuse the application.
I certify that the preceding thirty‑seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 28 April 2009
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