SZNAK v Minister for Immigration
[2009] FMCA 427
•7 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 427 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal made findings unsupported by evidence or material before it – whether the Refugee Review Tribunal had regard to corroborating documentary evidence – whether the Refugee Review Tribunal accorded the applicant procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424(1)(d); 474; pt.8 div.2 |
| SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21] W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 Applicant S303/2003 v Minister for Immigration and Citizenship [2008] FCA 1811 Applicant S303 of 2003 v Minister for Immigration and Citizenship [2008] FMCA 1001 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZGKX v Minister for Immigration and Citizenship [2007] FCA 461 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 |
| Applicant: | SZNAK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3199 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 April 2009 |
| Date of last submission: | 21 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Dr J. Azzi |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms K. Dunn. Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3199 of 2008
| SZNAK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 November 2008 and handed down on 11 November 2008.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and married to a woman he claimed practiced Falun Gong in China who had already fled China for Australia (“the Applicant”).
The Applicant arrived in Australia on 14 March 2008 having departed legally from Shanghai on a passport issued in his own name and a visitor visa.
On 24 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 11 July 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 1 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 10 November 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 December 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The claims made by the Applicant in his protection visa application are summarised by counsel for the Applicant, Dr Azzi, in his written submissions as follows:
“3.Attached to the protection visa application is a statement dated 24 March 2008 (CB 27-29) in which the applicant, inter alia, claimed:
a.he and his wife are Falun Gong practitioners (having first commenced practice after witnessing in July 1997 how “Falun Gong practice improved the physical health of [his] wife”, however he was compelled to stop the practice while looking after his elderly father who suffered “hemiplegia” and “resolutely opposed [his] Falun Gong practice”);
b.his wife “fled China to Australia on 22 November 2006 due to the persecution she suffered”;
c.three days after his wife fled, two policemen from the local police station questioned him about his wife’s whereabouts and warned he would “face the consequence” if his wife took part in Falun Gong activities overseas and “colluded with overseas Falun Gong organisation and anti-CCP force”;
d.his father and children were interrogated and fingerprinted by the police and transcripts recorded and questioned by the local neighbourhood about how his wife left the country and who organised it;
e.the leader from his workplace, where he had been working for “almost thirty years”, summoned him for “ideological education”,
f.on 6 November 2007 he was taken by three police officers to Hedong police station where he was detained for six hours, told his wife was involved in “anti-CCP protesting in Australia” and shown photos of his wife “with a protesting crowd in background” and asked to write down the organisation his wife joined in Australia and who were her fellow practitioners still in China;
g.two weeks later, despite his appeals to “higher level leaders”, Yan Zi Dian who was “party boss at city bureau”, he was laid off work and was receiving only “minimal living subsidy”;
h.on 22 November 2007 four police burst into his home and “started their searching inside” and two ultimately handcuffed him and took him to Hedong police station after he “became very angry with the police and told them to get of [his] home” after he saw his “children were frightened into crying”;
i.he was detained at Hedong police station for 15 days and was under “watch by the neighbourhood committee” after his release and his children “suffered discrimination at school and in neighbourhood” and he “had no place to make our complaint or to seek justice”;
j.he sold his house in December 2007 and “spent a lot” of the sale proceeds on getting a visa to Australia throught an agent, “Chaojie Overseas Travel Consultancy and its manager Cui Jing Xin”;
k.he “suffered brutal mistreatment in China due to [his] practice of Falun Gong”. And if returned there would “be arrested…and even killed”;
l.his children are still at school and are staying with their grandmother; and
m.after his arrival in Australia he “immediately contact (sic) Falun Gong organisation in Campsie”.
The Delegate’s decision
On 5 June 2008, the Delegate wrote to the Applicant inviting him to attend an interview with the Department on 24 June 2008 to discuss the Applicant’s claims and for him to provide any new information he wished to have considered. The Applicant attended that interview.
On 11 July 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate found the Applicant’s evidence to be “confused, contradictory, unconvincing and inconsistent with his written statement.” The Delegate found that the inconsistencies and confusion it found in the Applicant’s claims were an indication that the Applicant had fabricated his claim of practising Falun Gong in China and his claims of past persecution for that reason.
The Tribunal’s review and decision
On 1 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 August 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 14 October 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 14 October 2008, the Applicant gave evidence at the hearing before the Tribunal.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found that the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent, Mr Cleary, in his written submissions as follows:
“Tribunal decision dated 10 November 2008
10. The Tribunal affirmed the delegate’s decision not to grant a protection visa to the Applicant.
11. In coming to its decision firstly, the Tribunal reviewed the applicable law in unobjectionable terms. It then set out the claims and evidence provided by the Applicant. Finally, it set out its findings and reasons.
12. The Tribunal did not accept the Applicant had left China or suffered persecution in China for the reasons he claimed.
13. Further, the Tribunal found the Applicant was not a witness of truth. The Tribunal found the Applicant’s evidence that he left China without difficulty to be inconsistent. The Tribunal found that the Applicant’s evidence concerning his employment by a Chinese government body was not consistent with his claim of persecution.
14. The Tribunal did not accept the Applicant’s children were under surveillance, and that this claim was not plausible.
15. On the basis of its adverse credibility finding the Tribunal did not accept the Applicant practised Falun Gong in China, nor did it accept the witness statements provided to support this claim.
16. The Tribunal rejected his claim that he left China for the reasons claimed, including that his wife was involved in Falun Gong activities. The Tribunal was not satisfied the Applicant’s evidence about his conduct in Australia was otherwise than for the purpose of strengthening his refugee claim, and accordingly the Tribunal disregarded that conduct pursuant to s.91R(3) of the Act.
17. The Tribunal found the Applicant did not have a well-founded fear of Convention-based persecution. The Tribunal found the Applicant was not a person to whom Australia owed protection under the Act.”
The proceeding before this Court
The Applicant was represented by Dr Azzi, of counsel, before this Court.
At the commencement of the hearing before this Court, the Applicant was given leave, by consent, to file in Court and rely upon an amended application.
The grounds of the amended application are as follows:
“1.The Tribunal committed jurisdictional error in not acting judicially when making an irrational determination that the applicant is not a witness of truth and therefore his claim to fear persecution in China by reason of his Falun Gong activities cannot be accepted.
Particulars:
(a)Without expounding what would be a satisfactory explanation, the Tribunal said the applicant “did not satisfactorily explain how he managed to get a passport in his name in January 2007 and leave his country without trouble from authorities given the level of attention he claims the PSB were giving him in China” in circumstances where the applicant’s explanation that “he paid money and his agent who had connections with security authorities arranged his passport and visa and arranged for him to leave his country without difficulties” (CB 156 [51]) was perfectly plausible.
(b)The Tribunal said that it was inconsistent with a claim of persecution by authorities in China (because of the applicant’s “association with Falun Gong, including his wife’s practice of Falun Gong”) that his “employment continued” because in the “Tribunal’s view” “his employment would not have continued” (CB 156 [52]), without any evidence regarding Chinese labour laws and practices pertaining to persons of interest to the PSB authorities and circumstances warranting termination of employment.
(c)The Tribunal found as “implausible” that the applicant’s children would write a letter dated 22 September 2008 to the applicant at a time when they were claimed to be “under surveillance or under control of the PSB in China” (CB 156 [53]) without any consideration of evidence indicating whether it was plausible or not that a person can be under surveillance by the PSB and still write a letter.
(d)The Tribunal did not accept the applicant “is credible” and rejected without regard witness statements corroborating his claimed fear of persecution in China as unreliable yet accepted the applicant as credible in respect of his claimed Falun Gong activities in Australia without consideration of or need for any corroborating evidence.
2.The Tribunal constructively failed to exercise jurisdiction by disregarding evidence corroborating the applicant’s claims of persecution in China given its adverse determination of the applicant’s credibility.
Particulars:
(a)The applicant repeats and relies on particulars in Ground 1
(b)The Tribunal accepted other aspects of the applicant’s claims (viz., his practice of Falun Gong in Australia and his knowledge of five main Falun Gong exercises and the symbol) such that the well was not poisoned beyond redemption.
3.The Tribunal committed jurisdictional error by failing to give the applicant notice in accordance with s 425(1) of the Migration Act thereby not giving the applicant procedural fairness by failing to indicate to the applicant that aspects of his account the Tribunal considers may be important to the decision and to ask the applicant why his account should be accepted.
Particulars:
(a)The applicant repeats and relies on particulars (b) and (c) in Ground 1.”
Ground 1(a) - Passport
At the heart of the submission by counsel for the Applicant in support of Ground 1(a), was a submission that there was no evidence or factual basis for the Tribunal to make the finding that the Applicant had not satisfactorily explained how he managed to get a passport in his name in January 2007 and leave China without any difficulties from authorities, if he was a person of interest in China.
The relevant findings made by the Tribunal in respect of the Applicant’s obtaining of a passport in China are as follows:
“In the Tribunal’s view it is not consistent with the applicant’s claims that he was persecuted in China as he claims for the reasons that he claims, that he left his country without difficulty using a passport in his name obtained in January 2007 in the area of Tianjin where he had always lived; he told the Tribunal that he bought a property in Tianjin in 2002 and lived there until he sold it in December 2007 just before he came to Australia. Independent country information available to the Tribunal and discussed generally with the applicant at the hearing suggests it would be difficult for a person to leave China using a passport obtained in his name if he was of interest to authorities in China; (CX 2393 Country Information Report No. 12/03: Passport and Exit Procedures, 15 January 2003; CX 164795, China; Passport and Exit Arrangements, DFAT, 06/65, 8 November 2006; CX 130538; DFAT, Chinese passports for Falun Gong practitioners, CIR No 05/43, 9 August 2005; UK Home Office Country Report for China, 2006, released April 2006). The applicant told the Tribunal that he paid money and his agent who had connections with security authorities arranged his passport and visa and arranged for him to leave his country without difficulties. In the Tribunal’s view the applicant did not satisfactorily explain how he managed to get a passport in his name in January 2007 and leave his country without trouble from authorities given the level of attention he claims the PSB were giving him in China after his wife left in November 2006 and after he was detained in November 2007.”
In support of his submissions, counsel for the Applicant referred the Court to various extracts from a transcript of the Tribunal hearing. Those extracts are as follows:
“M: … Did you have any trouble exiting your country when you left?
A: No.
M: Country information about China that I’ve looked at, and I think also the Delegate looked at indicates that if you’re of interest to authorities in China, you would have difficulties leaving with a passport in your name. Do you have anything to say about that? Country information about China that’s available on the internet and reports from, objective reports about China indicates that you would have trouble exiting your country with a passport in your name if you’re of interest to authorities.
A: All this actually had been arranged by the manager of this – Consulting Proprietary Limited, Mr ---. This Mr --- had some connection, some of his family members had connections with the third division of the – Municipal Bureau of Public Security. So he has been able to manage that.
M: What about, you got a passport and a Visa in your name in January, and your Visa was issued to you to come to Australia. How did you manage that?
A: All this had been arranged by this person.
…
M: Well how did you manage to leave, to get out of the country, go out, catch a plane, get a passport and leave the country, if they were watching you all the time? That’s not consistent with what you’re saying.
A: In China, whatever you do, wherever you go, you need money. That’s first priority, and don’t even mention about going overseas, which really requires approval, checking and approval procedures without connection, without money, this is something you can’t achieve.
…
M: The difficulties I’m having with your claims, and I’ve got to think some more about, but the difficulties I’m having here is; you worked up until you left in a Government Agency. You left your country, as did your wife, travelling on a passport in your name; even though you say both she and you were under some sort of surveillance, or some sort of considerable interest to the authorities. That’s the difficulties, the main difficulties I’m having with your application, as we’ve talked about before.
Did you want to say any more about that? That you haven’t already said?
A: I suffered from persecution and so did my wife, who escaped from the country.
Should the situation not be so serious, I wouldn’t have left our children behind and escaped from the country. But our children have no nobody who can care for them. They are just like orphans.” [Emphasis added]
Counsel for the Applicant submitted that the answers from the Applicant to the Tribunal’s questions make clear that the Applicant was providing the explanation that corruption exists in China and that he was able to bribe his way to obtain a passport in his own name and to leave the country.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the exchange it had with the Applicant, referred to above, about the fact that he did not have any difficulties leaving China and how he managed to obtain a passport in his own name and leave China if he was a person of interest to authorities in China. The Tribunal’s summary is as follows:
“The applicant said that he did not have any difficulties exiting his country when he left China. The Tribunal asked him how he managed to get a passport in his name and leave his country with that passport if he was of interest to authorities in China. It told the applicant that country information it had consulted indicates that if a person is of interest to authorities they would have trouble exiting their country. The applicant said that everything was arranged by his agent whom he named. The applicant said that the agent had connections with a division of the public sector and he arranged his departure and also arranged his passport and visa.”
The Tribunal’s summary makes clear that the Tribunal understood the explanation being offered by the Applicant in answer to concerns it plainly raised and discussed with the Applicant at the hearing.
Counsel for the Applicant submitted that the Tribunal should have considered whether government officials in China were capable of being bribed. In support of that submission, counsel for the Applicant referred the Court to SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 (“SZDGC”) at [42] where Finkelstein J referred to the passage of Allsop J (with whom Spender J agreed), in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42], as follows:
“The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act… make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.” [Emphasis added]
In SZDGC Finkelstein J also referred to the Full Court of the Federal Court of Australia (French, Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44]-[45], where their Honours said as follows:
“It is central to the exercise of the dispositive powers conferred by s 415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Act… The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty… to conduct a review of the decision.” [Emphasis added]
Counsel for the Applicant further submitted that the Tribunal was obliged to investigate the issue raised by the Applicant of corruption in China and the ability to bribe people with money in China to achieve ones ends. However, a fair reading of the transcript and the Tribunal’s decision record makes clear that there was no “probative material” provided by the Applicant in support of his assertion that another person had arranged for his passport and that whatever one does in China one needs money.
Moreover, there is no positive duty to investigate claims imposed upon the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate the applicants claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so (for example, see s.427(1)(d) of the Act; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21] and [24]-[25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]).
In NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18] to [21] per Jacobson J (upheld on appeal) stated:
“There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ).
The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances.
In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 [(“Prasad”)] at 169 — 170, Wilcox J pointed out that the circumstances under which a decision will be invalid for failure to make independent inquiries are strictly limited. His Honour observed that it is no part of the duty of the decision-maker to make the applicant’s case for him. His Honour said that it is not enough that the Court may find that the sounder course would have been to make more inquiries. The exception is, as his Honour said, in a case where it is obvious that material is readily available and is centrally relevant to the decision to be made. In those circumstances, it would be an unreasonable exercise of the decision making power for the decision maker to proceed without making an attempt to obtain that information.” [Emphasis added]
There was nothing in the instant case to suggest that there was material readily available and centrally relevant to the decision such that it was unreasonable for the Tribunal not to have attempted to obtain that information. Counsel for the Applicant was unable to identify any evidence beyond the Applicant’s bare assertion that one needs money in China.
In the circumstances, the Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further.
The Tribunal was obliged to evaluate the Applicant’s evidence and make findings in respect of his evidence. A fair reading of the Tribunal’s decision record makes clear that the Tribunal analysed and evaluated the Applicant’s evidence that he was able to leave China on his own passport in his own name even though he claimed to have a fear of persecution by authorities in China by reason of being a Falun Gong practitioner.
In concluding that the Applicant did not satisfactorily explain his ability to obtain such a passport, whilst at the same time being a person of interest to authorities, the Tribunal considered the Applicant’s explanation as to how he came to be able to depart China with a passport in his own name, namely that he paid a person in China to assist him. However, the Tribunal rejected that explanation, as it was entitled to do, and preferred the independent country information before it that it was difficult in China for a person of interest to leave China with a passport in his own name. It was open to the Tribunal on the evidence and material before it for it not to be satisfied about the Applicant’s explanation that one needs money in China to do things (the inference being for bribery).
I accept the submission of counsel for the First Respondent that Ground 1(a) is a challenge to the merits of the Tribunal’s decision. This Court has no jurisdiction to entertain a review of the merits of the Applicant’s application for a protection visa (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
In the circumstances, the Tribunal’s finding was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 1(a) is not made out.
Ground 1(b)
Counsel for the Applicant makes a similar complaint in respect of the Tribunal’s finding that, if the Applicant was of interest to authorities in China because of his association with Falun Gong, his employment would not have continued until it was terminated by notice in April 2008 because he did not turn up for work.
Counsel for the Applicant again submitted that there was no factual basis to allow the Tribunal to make such a finding. Counsel for the Applicant submitted that the evidence before the Tribunal was that, whilst the Applicant’s job was not terminated, he was no longer being paid the full amount of his salary and was being paid only for his living expenses.
Counsel for the Applicant referred to the following extracts of the transcript of the Tribunal hearing:
“M: If you were of such interest to the authorities, how did you manage to work in this Government company, or this Government organisation, right up until you left your country earning a living. That doesn’t sound consistent with your claim.
A: Actually I have been working in this Sanitary Environment Bureau, I’ve been driving, I’ve been dealing with garbage. This is what I have been doing.
By 22 November 2007, I was detained.
M: Well I asked you earlier… no I withdraw that. So, you were working, earning a living, supporting your family right up until you left to come to Australia, you said earlier, in a Government position. Why would you be employed by the Government if they were interested in you, and had detained you, for virtually being a dissident, why would they employ you, and pay you, right up until you left to come to Australia?
A: This job that I’ve been doing was a driver job, and by nature this organisation that I have been working for is a not-for-profit organisation, which receives financial allocation from the State budget. And after my practice of Falun Gong started my employer laid me off, but I still continued with my work. By saying that I mean they were no longer paying me for a full amount of salary, rather they were paying me only for my living expenses. Towards the end of the year, I was detained and after my release, upon my release, I sold my house. By that time they were still paying me for my living expenses, but after I left the country, they stopped.
M: Where were you working before you worked for the Bureau of Health, as you described it before?
A: Since I graduated from high school, I then applied for a course studying in a vocational college. And after I graduated from this program, I was allocated to work in this driver team of this Bureau. So I’ve been working on this position until I escaped from the country.
M: So you’ve always worked in the same job in China?
A: Correct.
M: When did you start getting less salary?
A: It was in 2007, for which month I sometimes forget, but since then I was only getting paid for my living expenses.” [Emphasis added]
Counsel for the Applicant also submitted that the only evidence before the Tribunal on this issue was contained in country information which stated, relevantly, as follows:
“Public Falun Gong activity in the country remained negligible, and practitioners based abroad reported that the government’s crackdown against the group continued. Since the government banned Falun Gong in 1999, the mere belief in the discipline (even without any public manifestation of its tenets) has been sufficient grounds for practitioners to receive punishments ranging from loss of employment to imprisonment.” [Emphasis added]
In support of his submission, counsel for the Applicant referred the Court to SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 (“SFGB”) where the Full Court of the Federal Court (Mansfield, Selway and Bennett JJ) stated at [19] the following:
“If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error” [Emphasis added]
However, in the case before this Court, it is incorrect to say that there was no evidence or material to support the Tribunal’s finding that the Applicant’s employment would not have continued if he had been of interest to authorities in China.
Further, the extract referred to above from the transcript makes clear that the Tribunal had concerns, which it clearly put to the Applicant, about the Applicant’s evidence that he had continued to have a government job yet claimed to be a person of interest to the authorities in China. The Applicant himself told the Tribunal that he had a government position in the automobile team of the Bureau of Environment and Health of the district where he lived right up until he left China to come to Australia. The Tribunal also had country information, referred to above, that since 1999 those with a mere belief in Falun Gong may receive punishments “ranging from loss of employment to imprisonment”. The Tribunal was not obliged to accept the Applicant’s bare assertion or explanations. As referred to above, the Tribunal was required to evaluate the Applicant’s evidence and any other evidence and material before it and make findings accordingly. This the Tribunal did.
In the circumstances, the Tribunal’s finding that, if the Applicant was of interest to authorities in China because of his association with Falun Gong, his employment would not have continued until it was terminated by notice in April 2008 because he did not turn up for work, open to it on the evidence and material before it and for the reasons it gave.
Again, Ground 1(b) seeks merits review which this Court cannot undertake.
Accordingly, Ground 1(b) is not made out.
Ground 1(c)
Counsel for the Applicant submitted that there was no factual basis before the Tribunal to support its finding that it was not plausible that the Applicant’s children, would or could send a letter to the Applicant from China in support of the Applicant’s claims if, as alleged, the Applicant’s children were under such close scrutiny by Chinese authorities.
Counsel for the Applicant submitted that it was not open to the Tribunal to find as implausible that the Applicant’s children would write a letter to the Applicant at a time when they claimed to be under surveillance. Counsel for the Applicant submitted that the Tribunal’s finding was not based on any consideration of the evidence as to whether or not it was plausible that a person could be under surveillance and still write a letter. If this submission was intended to suggest that the Tribunal was obliged to investigate such claimed possibility, I refer to my reasons above in Ground 1(a).
A fair reading of the transcript of the Tribunal’s hearing makes clear that the Tribunal raised with the Applicant his concerns about the ability of the children to write such letters having regard to the level of scrutiny that the Applicant claimed the children were under. Counsel for the Applicant referred to the following extracts of the transcript:
“M: When did your children start being watched by the PSB?
A: It started by the time my wife left.
M: Yet they were able to write you this letter, you say they sent in September, hang on a minute. When did you get this latest letter from then? Looks like its 22 September 2008? The date on this letter you’ve given me. They were able to write and send you that letter? Even though the PSB’s watching them and so severely?
A: Regarding this letter. They were living with their grandmother, so they get out of the grandmother’s place, and go to somewhere else and post it directly into a letterbox. They wouldn’t be able to post it straight away from their living area, because they were under surveillance.” [Emphasis added]
Later in the transcript the Tribunal had the further conversation with the Applicant about the ability of the children even to get out of the Applicant’s house. That exchange is as follows:
“M: I find it difficult to accept that you managed to get out, and you were the ones that the authorities were mainly interested in, according to what you’re saying, and yet you’re saying they can’t even get out of their house. I find that difficult to accept.
A: Because they have the security people who are trying to find out about me, but they couldn’t find me, so they focus on the children. So through various channels, they’ve been watching over the children, trying to grab a clue about me. So they’ve been watching over the children and didn’t allow freedom.
…
M: Well I have to decide whether I accept the things you’re saying about that, whether they’re true or not. Given that you left, your wife left, your both of great interest to the authorities according to what you’re saying, and you managed to walk out with the passport in your name. It’s hard to accept that your children are being followed, to the extent you say they are.
A: All this actually had been done by the agent, in the country if you have money, if you have connection, or say people, this is feasible, this is really about the policy of the communist party of China.” [Emphasis added]
The Applicant’s evidence about the level of scrutiny which the Applicant claimed the children were under, is capable of sustaining the Tribunal’s finding that it was implausible in those circumstances that the children would be able to get out of the house to send such letters. As stated above, a fair reading of the Tribunal’s decision record and transcript make clear that the Tribunal squarely raised its concerns about the Applicant’s evidence in respect of this matter. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s explanations and was not persuaded by them.
I reject the Applicant’s submission that because there was no country information to suggest that those under scrutiny were not permitted or able to write letters of support for the Applicant, it was not open to the Tribunal to make the finding of implausibility about the children’s ability to post such letters.
I also reject the submission by counsel for the Applicant that, because it may be that the Tribunal could have contemplated a situation where the Applicant’s children may have been able to smuggle letters out, it was obliged to do so. Again, there was no cogent evidence or material before the Tribunal to support the Applicant’s mere speculation that the children may have left the grandmother’s house and posted the letters directly “into a letter box”.
It was open to the Tribunal not to be satisfied about the Applicant’s speculation as to how the children may have been able to send letters in circumstances where the Applicant was asserting that, at the same time, the children were under surveillance and scrutiny from authorities. That did not allow the children freedom.
In the circumstances, the Tribunal’s finding, that there was no factual basis before the Tribunal to support its finding that it was not plausible that the Applicant’s children, would or could send a letter to the Applicant from China in support of the Applicant’s claims if, as alleged, the Applicant’s children were under such close scrutiny by Chinese authorities, was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 1(c) is not made out.
Ground 1(d)
Counsel for the Applicant submitted that the Tribunal did not have regard to the written statements corroborating the Applicant’s claims of a fear of persecution in China and found such statements to be unreliable because of the Tribunal’s adverse credibility findings in respect of the Applicant’s evidence. Counsel for the Applicant submitted that such an approach was not open to the Tribunal in circumstances where the Tribunal was prepared to accept the Applicant’s evidence about his Falun Gong activities in Australia without the need for corroborating evidence.
Counsel for the Applicant also submitted that the Tribunal’s finding that the statements in the letters provided by the children were not reliable evidence of the facts asserted in those documents, was not open to it. Counsel for the Applicant submitted that, as the evidence of the Applicant had not been poisoned beyond redemption, the Tribunal was obliged to place weight on the contents of those otherwise corroborative letters. Counsel for the Applicant referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Applicant S20/2002”). Counsel for the Applicant submitted that the sort of situation that arose in Applicant S20/2002 was rare and in the case before this Court, where the Tribunal accepted the Applicant’s evidence of having engaged in conduct in Australia, the Applicant’s credibility had not been poisoned beyond redemption such that the Tribunal was entitled to disregard corroborative evidence.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal did not disregard the Applicant’s corroborative evidence as provided in the children’s letters. It found that the statements in those letters were not reliable evidence of the facts asserted, having regard to the Tribunal’s finding that the Applicant was not a witness of truth. In making that finding, the Tribunal referred to WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 (“WAGU”) at [36] where French J stated as follows:
“Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party’s credibility.” [Emphasis added]
Counsel for the Applicant also submitted that the Tribunal had made a positive finding that the contents of the children’s letters were unreliable and therefore such a finding was analogous to a finding of fraud or forgery or lack of authenticity such that the Tribunal was obliged to put those concerns squarely to the Applicant.
However, a fair reading of the transcript made clear that the Tribunal told the Applicant that it would need to consider whether or not the children’s letters were reliable evidence of the facts contained in them. To that end, the Tribunal said “I have to decide whether these documents which you have given me, these documents here [referring to the children’s letters], are reliable evidence of the facts that are in them. So that’s something I have to consider.”
Counsel for the First Respondent referred the Court to the decision of Applicant S303/2003 v Minister for Immigration and Citizenship [2008] FCA 1811 (“Applicant S303/2003”), where the tribunal had found that, because it had not considered the applicant a witness of truth, it did not accept that various documents produced by the applicant in support of the applicant’s claims were reliable evidence of the facts asserted in those documents. That approach by the tribunal was found to be without error by Nicholls FM at [52] (Applicant S303 of 2003 v Minister for Immigration and Citizenship [2008] FMCA 1001) as follows:
“The weight to be accorded to documentary evidence provided by an applicant is a matter for the Tribunal. Further, in this case, the Tribunal reasoned that as the applicant was not considered to be a witness of truth (for cogent reasons, which the Tribunal gave and which were open to it on what was before it) it did not accept that the various documents produced by him assisted in supporting his claims. This was a view plainly open to the Tribunal, given its very clear finding as to the applicant’s lack of credibility.” [Emphasis added]
That analysis by Nicholls FM was cited with approval by Middleton J on appeal in Applicant S303/2003 where the approach of Nicholls FM was found to be correct and the appeal dismissed.
Counsel for the Applicant submitted that the critical finding of Nicholls FM was that the Applicant was not a witness of truth for cogent reasons. Counsel for the Applicant submitted that in the case before this Court, there were no cogent reasons for the Tribunal’s finding that the Applicant was not a witness of truth.
However, this Court having found that Grounds 1(a), 1(b) and 1(c) are not made out, then it stands to reason that it is the decision of this Court that there were cogent reasons for the Tribunal’s finding that the Applicant was not a witness of truth.
Further, the Tribunal’s finding that the statements in the children’s letters were not reliable must also be seen in the context of its findings that it had not accepted as true the Applicant’s claim that his children were under surveillance and control by the PSB in China; that the Applicant, despite being a person of interest, was able to continue in his employment up until the time he left for Australia; and, that the Applicant, despite being a person of interest, was able to obtain a passport in his own name and leave China without difficulties.
The case before this Court is not the same as Applicant S20/2002 where the tribunal failed to consider the documents provided by the applicant in support of the applicant’s claims because the applicant’s credibility had been poisoned beyond redemption. Plainly in the case before this Court, the Tribunal was aware of and considered the documents in reaching its finding that it did not find the contents reliable of the facts asserted. Moreover, the Tribunal squarely raised with the Applicant its concerns about the reliability about the contents of the document.
I accept the submission of counsel for the First Respondent that the finding made by the Tribunal in this case was sufficiently similar to the finding made by the tribunal in Applicant S303/2003 such that this Court should follow the analysis adopted by Nicholls FM and approved by Middleton J.
In the circumstances, the Tribunal correctly referred to the passage by French J in WAGU at [36] referred to above and was entitled to place no weight on the statements in the corroborative letters of the children as reliable evidence of the facts asserted therein.
In the circumstances, I reject the submission by counsel for the Applicant that the Tribunal did not consider the information in the children’s letters or raise its concerns with the Applicant. The Tribunal’s finding that the contents of the letters were unreliable, having regard to the Tribunal’s adverse credibility findings in respect of the Applicant, was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 1(d) is not made out.
Ground 2
Ground 2 is supported by the same particulars as Ground 1 and appears to be no more than a different formulation of an error if any of the particulars in Ground 1(a), (b), (c) or (d) had been made out.
Ground 2 appears to suggest that it was not open to the Tribunal to reject the Applicant’s claims of practice of Falun Gong in China and his other claims and accept only those claims of Falun Gong practice in Australia. Again, it is a matter for the Tribunal the weight it attributes to the evidence of the Applicant. As stated above in these reasons, the Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 (“Durairajasingham”) at [67] per McHugh J).
In relation to the principles referred to in Durairajasingham, counsel for the Applicant referred to SZGKX v Minister for Immigration and Citizenship [2007] FCA 461 (“SZGKX”) where Conti J stated at [23]:
“As I would read the thrust of the foregoing dictum of McHugh J in Durairajasingham, his Honour’s emphasis appears to be on the need for the tribunal to make clear the nature and extent of its reasons for rejection of evidence placed before it going to material issues in proceedings, which, if accepted would be susceptible to producing an ultimate outcome different to that which was reached” [Emphasis added]
Counsel for the Applicant also referred to paras.[22]-[27] in SZGKX.
However, as referred to above, the transcript and the Tribunal’s decision record make clear that the Tribunal told the Applicant at the hearing that it must consider whether the documents he had produced in support of his claims were reliable evidence of the facts in them. That statement by the Tribunal followed a detailed discussion, also referred to above, about the concerns the Tribunal had in relation to the Applicant’s documents.
Accordingly, Ground 2 is not made out.
Ground 3
Counsel for the Applicant submitted that in accordance with the principles espoused by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”), the Tribunal was obliged to raise with the Applicant the issues of concern that it had arising out of the fact that the Applicant was able to continue in employment until he came to Australia and the fact that the Applicant’s children were able to send him letters despite the claimed scrutiny under which they were kept by Chinese authorities.
The relevant passages of SZBEL are to be found at [47]-[48] as follows:
“First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
The particulars in support of Ground 3 are the Tribunal’s concerns about the Applicant’s continued employment by the government when the Applicant claimed to be a person of interest; and the Applicant’s claim that his children wrote him letters whilst under surveillance and scrutiny by the authorities in the PRC because the Applicant was a person of interest.
To the extent those concerns raised the issue of the Applicant’s credibility, the issue of the Applicant’s credibility was made abundantly clear by the Delegate in its reasons for refusing the Applicant a protection visa.
In any event, I accept the submission of counsel for the First Respondent that in the passages referred to in Ground 3, the Tribunal was doing no more than revealing its thought processes in weighing up the evidence of the Applicant on the issues that it discussed with the Applicant at the hearing in respect of those issues. Thought processes are not issues that give rise to the obligations referred to in SZBEL at [48]; SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18].
Otherwise, both issues were squarely raised with the Applicant by the Tribunal at the hearing and the Applicant’s responses noted and considered in the Tribunal’s decision record.
Accordingly, Ground 3 is rejected.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 7 May 2009
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