SZNDI v Minister for Immigration
[2009] FMCA 674
•29 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 674 |
| MIGRATION – VISA – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision – citizen of China claiming fear of persecution as a Falun Gong practitioner – credibility issues – whether Tribunal made a claim based on claims that the applicant did not make – wrong finding of fact – corroborative evidence – inconsistency – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.91R(3) – whether Tribunal failed to comply with Migration Act 1958 s.424A(1) in failing to put inconsistencies to the applicant’s son – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 91R(3), 424A, 474, 476 |
| VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59; 77 ALJR 1165; [2003] HCA 30 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCA 74 SZIEW v Minister for Immigration and Citizenship (2008) 101 ALD 295; [2008] FCA 522 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 Minister for Immigration and Citizenship v Le (2007) 242 ALR 455 SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2005) 144 FCR 1; [2004] FCAFC 263 Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12 WAGU v Minister For Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 NACB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 235 VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAC 286 W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) FCR 547; [1998] FCA 1126 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 |
| Applicant: | SZNDI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 57 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 April 2009 |
| Date of Last Submission: | 30 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | No Solicitor on the record |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz (Ms Dinihan) |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $10,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 57 of 2009
| SZNDI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China who is seeking judicial review of a decision of the Refugee Review Tribunal affirming a decision not to grant her a protection visa. She asks the Court to make orders:
a)quashing the Tribunal decision; and
b)remitting her application to the Tribunal to be determined according to law.
The Applicant claims that the Tribunal fell into jurisdictional error by:
a)Failing to comply with s.91R(3) of the Migration Act 1958;
b)Failing to deal appropriately with corroborative evidence;
c)Making a finding that it was not satisfied that the Applicant had provided a credible account of the discovery of her Falun Gong activity and her employer’s reaction to it;
d)Incorrectly making a finding of inconsistency between the Applicant’s evidence and that of her son.
Background
The Applicant and her son arrived in Australia on 6th June 2008. They applied for Protection (Class XA) visas on 4th July 2008. The Applicant claimed a fear of persecution in China as a Falun Gong practitioner. Her son was a Part D Applicant who did not have his own claim to be a refugee. He claimed as a member of the Applicant’s family unit. They appointed a migration agent, Mr Lian Xue of Global Footprints Pty Ltd to represent them.
The Applicant was invited to attend an interview with an officer of the Department of Immigration and Citizenship on 28th August 2008. She did not attend the interview.
The delegate of the Minister refused the applications for visas on 30th August 2008. In the delegate’s Decision Record, the delegate referred to the Applicant’s “vague and unsubstantiated claims” and found:
There is no evidence before me to suggest that the applicant was engaged in any Falun Gong related activities which the Chinese authorities could consider to be subversive.[1]
[1] Court Book 95
The delegate also noted the Applicant’s claim to have been active in Falun Gong related activities in Australia and to have had her photos published on the Falun Gong Website, which would make her the target of persecution on her return to China. However, the delegate found that whilst the Applicant had provided some photos she had otherwise failed to elaborate on her claim.
The delegate referred to the fact that the Applicant was able to depart from China legally and without difficulty and expressed the view that if the Applicant had been of genuine interest to the Chinese authorities she would not have been able to do so.
Application to the Refugee Review Tribunal
The Applicant and her son applied to the Refugee Review Tribunal on 21st September 2008 for review of the delegate’s decision. They provided a number of documents and photographs to the Tribunal to accompany the application. The application did not nominate the migration agent as authorised recipient for correspondence.
The Tribunal wrote to the Applicant on 9th October 2008, inviting her and her son to attend a hearing to take place on 10th December 2008.[2] The Applicant completed a Response to Hearing Application form, indicating that she wished to attend the hearing and would need the services of a Mandarin interpreter.[3] She also asked the Tribunal to hear evidence from two witnesses, both of whom resided in Sydney.[4] She also provided a further statement in support of her claims.[5]
[2] Court Book 141
[3] Court Book 149
[4] Court Book 150
[5] Court Book 153-154
The Applicant attended the hearing on 10th December 2008, accompanied by her son and three other people. The Applicant gave evidence at the hearing with the assistance of the Mandarin interpreter. The Applicant’s son also gave evidence. Two other people, Ms Lu Peijun and Ms Wu Xiao Ying, gave evidence on the Applicant’s behalf.
At the hearing, the Tribunal discussed with the Applicant whether she wished to submit any further material to the Tribunal. The Applicant said that she would be able to submit some further documents by 15th December 2008. On that date the Applicant provided a copy of an English translation of an article downloaded from a website containing a photograph of the Applicant and also a document in Chinese with an English translation.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 16th December 2008. A copy of the decision was posted to the Applicant that same day. The Tribunal affirmed the decisions not to grant the Applicant and her son Protection (Class XA) visas.
The Tribunal was satisfied that the Applicant was a citizen of the People’s Republic of China, based on her Chinese passport.
However, the Tribunal was not satisfied as to the credibility of the Applicant’s claims to have been a Falun Gong practitioner in China. The Tribunal noted a number of “inconsistencies and improbabilities” in the information before it.
In particular, the Tribunal was not satisfied about the Applicant’s evidence about the way her employers reacted to the news that she was an active Falun Gong practitioner who was involved in a campaign to persuade people to quit the Communist Party. The Tribunal found:
Taking together all the applicant’s claims about this issue I am not satisfied that she has provided a credible account of the discovery of her allegedly illegal Falun Gong activity and the reaction to it by her employer. I am not satisfied her circumstances reflect the situation of a person who had been detected in illegal activities against the Chinese government. I find that this casts strong doubt over her claims in this area and about the credibility of her evidence in general.[6]
[6] Court Book 183 at [88]
The Tribunal was also not satisfied about the Applicant’s evidence about delivering Falun Gong pamphlets. The Tribunal found the Applicant’s evidence to be inconsistent with that given by her son. The Tribunal had sought an explanation of this inconsistency from the Applicant and stated:
Given the stark differences on this issue in the evidence of two people who are said to have been directly involved, I cannot be satisfied that the Applicant’s claims about it are credible. I find that this raises further doubt as to the overall credibility of the Applicant’s claims.[7]
[7] Ibid at [90]
The Tribunal found that the inconsistencies in the Applicant’s evidence were not “marginal or insignificant” but lay “at the heart of her claim to have been a Falun Gong practitioner and activist and to have been harmed by her company for this reason”.[8] The Tribunal went on to find that it was not satisfied that the Applicant was ever a Falun Gong practitioner in China or that she had any involvement with the Falun Gong movement in that country.
[8] Court Book 183 at [91]
The Tribunal referred to the evidence of the Applicant’s witnesses but found that, given the Tribunal’s concerns about the Applicant’s claims, their evidence did not outweigh the finding that the Applicant’s claims lacked credibility.
The Tribunal went on to consider the Applicant’s claims to have practised Falun Gong and been involved in Falun Gong demonstrations in Australia. The Tribunal conceded that the Applicant had had some involvement with the Falun Gong movement in Australia, but made this finding:
However, as I do not accept that she ever practised Falun Gong in China, and given my concerns about the credibility of her evidence in general, I am not satisfied that the dominant purpose for her commencing and carrying on this involvement was other than to strengthen her claims to be a refugee and, consistent with s.91R(3) I have disregarded this conduct in assessing her claims.[9]
[9] Court Book 184 at [94]
The Tribunal then considered the Applicant’s claim that she would be harmed by the Chinese authorities because she had applied for protection in Australia. The Tribunal noted that the Applicant claimed that the authorities only learned of this because of her telephone calls to her company from Australia, which was conduct that the Tribunal had disregarded under s.91R(3).
The Tribunal also considered whether the Applicant’s claims relating to Falun Gong could give rise to an imputation of a political opinion but noted that the Applicant did not make any specific claims to fear harm for that reason which had not already been dealt with.
Further, the Tribunal considered the Applicant’s claim that she would suffer financial hardship if she were to return to China because she had lost her job. The Tribunal noted, however, that the Applicant’s husband was self-employed and found that she would not suffer significant financial hardship. The Tribunal was also not satisfied that the harm suffered by the Applicant in losing her job had a Convention nexus.
The Tribunal was not satisfied that there was a real chance that the Applicant would suffer serious harm amounting persecution because of her alleged Falun Gong involvement or for any other Convention reason. As the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution it was not satisfied that she was a person to whom Australia has protection obligations under the Refugees Convention. Accordingly, she did not satisfy the criterion for a protection visa set out in s.36(2)(a) for a protection visa.
The Tribunal affirmed the delegate’s decision not to grant the Applicant and her son Protection (Class XA) visas.
Application for Judicial Review
In her amended application the Applicant relies on four grounds of review:
i)The Tribunal found that “consistent with s.91R(3) [of the Migration Act] I have disregarded [the Applicant’s conduct in Australia] in assessing her claims”. The Tribunal fell into jurisdictional error in relation to this finding.
ii)The Applicant provided corroborative evidence and witnesses in support of her claims. The Tribunal fell into jurisdictional error in dealing with the corroborative evidence.
iii)The Tribunal found that it was “not satisfied that [the Applicant] has provided a credible account of the discovery of her allegedly illegal Falun Gong activity and the reaction to it by her employer”. The Tribunal fell into jurisdictional error in making this finding.
iv)One reason the Tribunal rejected the Applicant’s claims was because of an alleged inconsistency between evidence given by the Applicant and her son. The Tribunal fell into jurisdictional error in relation to the findings of inconsistency.
Applicant’s Submissions
As to the Applicant’s third ground, her counsel, Mr Zipser, took issue with the Tribunal’s findings about the way her company responded to the discovery that she was engaging in illegal activity. He has described it as “The Employer Reaction Issue”.
Mr Zipser submitted that there is a distinction between:
a)Conduct by the Applicant in encouraging people to quit the Chinese Communist Party;
b)Conduct by the Applicant in practising Falun Gong; and
c)Conduct by the Applicant in distributing Falun Gong literature.
Mr Zipser submitted that the Applicant appeared to have claimed that her employer’s knowledge only concerned her conduct in encouraging people to quit the Communist Party, “although the evidence is not entirely clear”. The Applicant did not claim to the Tribunal at the hearing that she told her company she was a Falun Gong practitioner. Thus, he submits, the Tribunal:
a)Made a finding based on claims the Applicant did not make, which involves jurisdictional error; or
b)Made a wrong finding of fact which, in the circumstances of the case, involves jurisdictional error (see VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[10] at [25] NAD [77]).
[10] [2005] FCAFC 117
Again, Mr Zipser submitted that the Tribunal’s findings were premised on the assumptions that in China trying to persuade another person to quit the Communist Party and passing on Falun Gong materials to another person both constitute serious criminal acts. There is no evidence that provides a basis for either of those assumptions.
Thus, he submitted, the Tribunal fell into jurisdictional error in making findings on the basis of alleged country information when there was no evidence to support that finding (see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs[11] at [28] and [29]; SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs[12] at [45]-[64]).
[11] (2003) 77ALD 402; [2003] FCAFC 231
[12] [2005] FCA 995
The Applicant’s second ground, claiming that the Tribunal fell into error in dealing with the corroborative evidence provided by the Applicant, has been dubbed by the Applicant’s counsel “The Corroborative Evidence Issue”.
Mr Zipser referred to the evidence of Lu Peijun, which, he submitted, if true, was of significant probative value to the Applicant’s claims for two reasons:
a)It was corroborative of the Applicant’s claims; and
b)Ms Lu first gave her evidence in a statement accompanying her own protection visa application in August 2007; the fact that she made prior consistent statements well before the Applicant left China significantly reduces the likelihood that Ms Lu was not telling the truth.
Ms Lu’s evidence was not challenged by the Tribunal. The Tribunal accepted that she had been granted protection in Australia as a Falun Gong practitioner but said:
However, given my strong concerns about the applicant’s claims, as noted above, I am not satisfied that this evidence outweighs my finding that these claims lack credibility.[13]
[13] Court Book 184
Mr Zipser submitted that the Tribunal fell into jurisdictional error in two ways. First, by failing to be satisfied that the Applicant was ever a Falun Gong practitioner in China, the Tribunal failed to have regard to Ms Lu’s evidence (see Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002[14] at [13]). The Tribunal had expressly stated that it had made up its mind about the Applicant’s evidence before taking the witness’s evidence into account. Counsel for the Applicant also referred to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs[15] at [27] and SZIEW v Minister for Immigration and Citizenship[16] at [14]-[21].
[14] (2003) 198 ALR 59; 77 ALJR 1165; [2003] HCA 30
[15] (2004) 80 ALD 568; [2004] FCAFC 74
[16] (2008) 101 ALD 295; [2008] FCA 522
Counsel for the Applicant also submitted that the Tribunal did not reject that part of Ms Lu’s evidence where she said she had applied for a protection visa and had mentioned the Applicant in her statement accompanying her application. This was a prior consistent statement to which the Tribunal failed to have regard or proper regard, there by giving rise to jurisdictional error (NAJT v Minister for Immigration and Multicultural and Indigenous Affairs[17] at [212]; see also SZCOQ v Minister for Immigration and Multicultural Affairs[18] at [55][19]).
[17] (2005) 147 FCR 51; [2005] FCAFC 134
[18] [2007] FCAFC 9
[19] Although Buchanan J was in the minority
Further, counsel for the Applicant submitted that the Tribunal could easily have obtained a copy of Ms Lu’s application for a protection visa to verify her claim and its failure to make this simple inquiry was Wednesbury unreasonable, giving rise to jurisdictional error (Minister for Immigration and Citizenship v Le[20] at [63]; SZIAI v Minister for Immigration and Citizenship[21]).
[20] (2007) 242 ALR 455
[21] [2008] FCA 1372
Again, Mr Zipser submitted that, in circumstances where the Tribunal had some concerns about the Applicant’s evidence but “the well was not poisoned beyond redemption”, the Tribunal should have tested Ms Lu’s evidence and the failure to do so involved jurisdictional error. Similarly, he submitted that the Tribunal’s failure to “grapple with” Ms Lu’s evidence constituted jurisdictional error in the circumstances.
The Applicant’s third ground claims that the Tribunal fell into jurisdictional error when it rejected the Applicant’s claims because of an alleged inconsistency between her evidence at the hearing and that of her son. Her counsel has dubbed this the “Inconsistent evidence issue”. He submitted that, whilst the Tribunal put the son’s evidence to the Applicant for her comments, it did not put the Applicant’s evidence to the son for her his comments. He was also an applicant (although he was a Part D Applicant, relying on his membership of his mother’s family unit).
Mr Zipser submitted that, in relation to the inconsistency issue:
i)There was no inconsistency between the Applicant’s evidence and that of her son;
ii)The Tribunal wrongly made findings of inconsistency on the basis of a misunderstanding of the evidence; and
iii)The Tribunal selectively misquoted the Applicant in its findings and reasons.
Thus, he submitted the Tribunal intentionally disregarded the Applicant’s evidence or there was no evidence to support the Tribunal’s finding (SFGB v Minister for Immigration and Multicultural and Indigenous Affairs[22] at [19]).
[22] (2003) 77 ALD 402; [2003] FCAFC 231
The Tribunal’s reasoning that because the Applicant claimed on one occasion that she could not recall a detail of events in China meant that she was not telling the truth resulted in a determination that was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (Minister for Immigration and Multicultural Affairs v SGLB[23] at [38]; NADH v Minister for Immigration and Multicultural and Indigenous Affairs[24] at [129]-[136])
[23] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32
[24] (2004) ALR 264
Mr Zipser submitted that the fact that the Tribunal did not put the evidence of the Applicant to the applicant’s son (who was also an applicant) was a contravention of s.424A and thereby a jurisdictional error.
The first ground in the amended application claims that the Tribunal fell into jurisdictional error in disregarding the Applicant’s conduct consistent with s.91R(3) of the Migration Act. Mr Zipser calls this “the
Section 91R(3) issue”. He submitted that there is a distinction in s.91R(3) between “conduct” and “consequences of conduct”. Thus, while s.91R(3) may require the Tribunal to disregard the fact that the Applicant telephoned her employer in China from Australia, this does not mean that the Tribunal may disregard the consequences of that conduct, which is that the company is now aware that the Applicant has applied for protection as a refugee in Australia.
Alternatively, there may be a real chance that the authorities would become aware of this matter in another way on the Applicant’s return to China. A claim to this effect arose squarely on the materials before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[25] at [55]-[63].) The Tribunal, being required to look to the future, was required to consider the matter (Minister for Immigration and Multicultural Affairs v W64/01A[26] at [37]).
[25] (2005) 144 FCR 1; [2004] FCAFC 263
[26] [2003] FCAFC 12
The Applicant submits that the Tribunal fell into jurisdictional error by not assessing the question of whether there was a real chance that she may suffer persecution as a result of her application for refugee status.
The First Respondent’s Submissions
Mr Cleary, who appeared for the First Respondent, the Minister for Immigration and Citizenship, submitted that the ground entitled “The Employer Reaction Issue” is a challenge to the factual findings made by the Tribunal in paragraphs [85] to [87] of the Decision Record.[27] He submitted that the Tribunal Decision Record showed that the Applicant had told the Tribunal that virtually the entire management team at her place of employment knew about her Falun Gong activities.[28] Thus, there was a basis for the Tribunal’s findings and conclusions that it was not plausible for the Applicant’s company to have kept silent about her activities.[29]
[27] Court Book 182
[28] Court Book 175 at [47]
[29] Court Book 183 at [87]
Similarly, there was evidence to support the Tribunal’s assumption that the Applicant’s claimed activities were “criminal” or “illegal”. That evidence came from the Applicant in her protection visa application.
Mr Cleary then referred to the Applicant’s second ground, entitled “The Corroborative Evidence Issue” and submitted that the Applicant’s submissions misrepresented how the Tribunal had considered the evidence, including the corroborative evidence. He submitted that a fair reading of the Tribunal’s reasons at paragraph [92][30] in finding that the Applicant was not a witness of truth showed that did have regard to the corroborated evidence before deciding whether or not to believe the Applicant’s evidence about her Falun Gong activities.
[30] Court Book 184
There was nothing erroneous in the Tribunal adopting this reasoning process (WAGU v Minister for Immigration and Multicultural and Indigenous Affairs[31]; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs[32]; Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002[33]).
[31] [2003] FCA 912
[32] supra
[33] supra
Again, Mr Cleary submitted that the Applicant’s argument that the Tribunal did not have “regard” or “proper regard” for part of Ms Lu’s statement must be rejected because the Tribunal had accepted that part of Ms Lu’s evidence. However, it had ultimately found that it was not satisfied that the Applicant had engaged in conduct in Australia otherwise than for the purpose of strengthening her refugee claim, which was a finding open to it.
Further, Mr Cleary submitted that the Tribunal was not under any duty to inquire (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[34] at [43]).
[34] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32
Finally, it was submitted that the Tribunal had no obligation to “test” or “grapple with” Ms Lu’s evidence. Findings as to the weight to be given to evidence are solely for the Tribunal (Lee v Minister for Immigration and Multicultural and Indigenous Affairs[35] at [27]).
[35] [2005] FCA 464
As to the Applicant’s Ground 4, relating to the Tribunal’s finding that the Applicant’s evidence and that of her son were inconsistent (which the applicant’s counsel entitled “The Inconsistent Evidence Issue”), Mr Cleary submitted that the Applicant was challenging a finding of evidential inconsistency, or a thought process or determination of the Tribunal as to the Tribunal’s doubts about the Applicant’s evidence.
The submission is that there was a clear and reasonable basis for the Tribunal’s finding that there was an inconsistency in the Applicant’s evidence.
Again, counsel for the Minister submitted that the Tribunal had not “selectively misquoted” either the Applicant or her son. It was open to find that the Applicant’s evidence was “vague” and the decision in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs[36] does not apply, because in the case under review there was a clear basis for finding that the Applicant was not a witness of truth.
[36] supra
Again, Mr Cleary submitted that it was not illogical for the Tribunal to reject the Applicant’s explanation for the inconsistency referred to in paragraph [90][37]. In any event, illogic by itself is not a recognised ground of jurisdictional error (NACB v Minister for Immigration and Multicultural Affairs[38]; VWST v Minister for Immigration and Multicultural and Indigenous Affairs[39]; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[40]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs[41]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs[42]; and WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs[43]).
[37] Court Book 183
[38] [2003] FCAFC 235
[39] [2004] FCAFC 286
[40] [2003] FCAFC 255
[41] [2004] FCAFC 52
[42] [2004] FCAFC 330
[43] [2005] FCAFC 79
Mr Cleary submitted that what was critical to the Tribunal’s decision was its finding regarding the credibility of the Applicant. It was immaterial that the Tribunal did not make any adverse credibility findings against the Applicant’s son. The finding that the Applicant was not a witness of truth was reasonably open to the Tribunal on the evidence (see Kopalapillai v Minister for Immigration and Multicultural Affairs[44]).
[44] (1998) 86 FCR 547; [1998] FCA 1126
Again, it was submitted that there was no contravention of s.424A of the Migration Act in failing to put the Applicant’s inconsistent evidence to the son, the Second Applicant for a protection visa. Inconsistencies in evidence do not constitute “information” within the meaning of s.424A(1) (SZBYR v Minister for Immigration and Citizenship[45] at [18]).
[45] [2007] HCA 26
As to the Applicant’s first ground, the claim that the Tribunal fell into jurisdictional error by disregarding the Applicant’s conduct in Australia consistent with s.91R(3) of the Act, which the Applicant’s counsel described as the “Section 91R(3) issue”, Mr Cleary submitted that the Tribunal did not misapply s.91R(3). Whilst in SZJGV v Minister for Immigration and Citizenship[46] at [25] the Full Court of the Federal Court recognised that there might be a distinction in some cases between conduct and the reasons or motivation for that conduct, this is not relevant to the decision under review.
[46] [2008] FCAFC 105
Once engaged, s.91R(3) precludes the Tribunal from having regard to “any conduct” which would include the consequences of that conduct unless the Tribunal is satisfied that the conduct was engaged in other than for the purpose of strengthening the Applicant’s refugee claim.
Mr Cleary submitted that the Tribunal did not fail to consider a claim made by the Applicant. It did consider the claim based on conduct engaged in by the Applicant in Australia but found that it was not satisfied that the conduct was engaged in for purposes other than strengthening the Applicant’s refugee claim. It was statutorily required to disregard that conduct. It is submitted that there was no jurisdictional error in the way the Tribunal applied or interpreted s.91R(3).
Conclusions
The Applicant’s first ground claims that the Tribunal fell into jurisdictional error in its finding that it should disregard the Applicant’s conduct in Australia in assessing her claims under s.91R(3). The claim made by the Applicant is that she feared that she would be harmed by the authorities on her return to China because they have learned that she has applied for protection as a refugee in Australia. The reason that the Applicant gave is that she herself telephoned her company from China in furtherance of her Falun Gong activities.[47]
[47] Court Book 184 at [94]-[95]
The Applicant has submitted that there is a distinction between her conduct in Australia, which has to be disregarded, and the consequences of her conduct, which is that the authorities have learned of her refugee application. In my view that does not accord with the requirements of s.91R(3) as explained by the Full Court in SZJGV.
Here, the Tribunal accepted that the Applicant had had some involvement with Falun Gong in Australia but was not satisfied that “the dominant purpose for her commencing and carrying on this involvement was other than to strengthen her claims to be a refugee”.[48] As the Tribunal was not satisfied under s.91R(3)(b), it was obliged to disregard the Applicant’s conduct in “telephoning her superiors in her company to announce that she had applied for protection in Australia and encouraged them to join the ‘quit the Chinese Communist Party’ campaign.”[49]
[48] Ibid at [94]
[49] Ibid at [93]
The Tribunal noted the Applicant’s claim to fear harm from the Chinese authorities as a result of her actions, but in my view the Tribunal was correct to disregard this conduct under s.91R(3). This is a not a case where the Applicant claims that the Chinese authorities learned of her application for protection in Australia from a third party, which would be a relevant matter to be brought into account (see SZJGV at [22]). This is a case where the Applicant has engaged in conduct in Australia and then seeks to claim a fear of harm arising from those actions.
The conduct in Australia was properly disregarded by the Tribunal. Thus, it was appropriate for the Tribunal to note the Applicant’s claim but disregard the conduct under s.91R(3). The consequences flowing directly from the Applicant’s conduct cannot be divorced from the conduct itself.
There was no breach of s.91R(3) and the Applicant’s first ground of review fails.
The Applicant’s second ground of review claims that the Tribunal fell into jurisdictional error in dealing wit the corroborative evidence provided by the Applicant. In essence, the Applicant’s claim is that the Tribunal made up its mind that the Applicant was not a credible witness without having regard to the corroborative evidence of Peijun Lu. If the Tribunal had concerns about Ms Lu’s evidence, it could and should have inquired further into her evidence and tested or “grappled with” it.
In my view, the flaw in the Applicant’s argument is that the Tribunal did consider the corroborative evidence. The Tribunal decision record at paragraph [92] makes this clear:
In reaching these conclusions I have had regard to the evidence, written and oral, provided by two of the applicant’s friends who are said to have known her as a fellow Falun Gong practitioner in China. This is the only substantiation for the Applicant’s claims to have practised Falun Gong in China. I accept that one of these persons, Lu Peijun, has been granted protection in Australia on the basis of her claimed fear of persecution as a Falun Gong practitioner in China. However, given my strong concerns about the Applicant’s claims, as noted above, I am not satisfied that this evidence outweighs my finding that these claims lack credibility.[50]
[50] Court Book 184
I am of the view that a fair reading of this paragraph indicates that the Tribunal did indeed consider all the evidence, including the corroborative evidence of Peijun Lu, but was not satisfied that the corroborative evidence outweighed the Tribunal’s adverse view of the credibility of the Applicant’s evidence. As the Full Court (Emmett, Kenny and Jacobson JJ) recently held in Minister for Immigration and Citizenship v SZMOK[51] at [59]:
Further, it is not an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an appellant’s credit (see WACO’s case[52] at [41]).
[51] [2009] FCAFC 83
[52] WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171
Again, the Tribunal’s reasons in paragraph [92] of the decision show that it did have proper regard for the evidence of Ms Lu. It is well established that the weight that the Tribunal gives to a particular piece of evidence is a matter for the Tribunal itself (Lee v Minister for Immigration and Multicultural and Indigenous Affairs[53] at [27]). The Applicant’s claim that the Tribunal did not have proper regard to Ms Lu’s evidence verges on cavilling with the Tribunal’s factual findings.
[53] supra
The Tribunal had no obligation to test the evidence of Ms Lu. It accepted it. It was not under any duty to make its own inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[54] at [43]).
[54] Supra
Again, the Tribunal had no obligation to test or “grapple with” Ms Lu’s evidence. It had regard to it and did not state that it disbelieved her evidence. The Tribunal accepted that Ms Lu had been granted protection in Australia on the basis of her claimed fear of persecution as a Falun Gong practitioner in China. It did not reject her evidence; it merely found that her evidence did not outweigh the adverse view it had formed about the credibility of the Applicant’s evidence.[55]
[55] Court Book 184 at [92]
There is no jurisdictional error and the Applicant’s second ground of review has not been made out.
The third ground in the amended application claims that the Tribunal fell into jurisdictional error when it found itself not satisfied about the credibility of the Applicant’s account of the discovery of her allegedly illegal Falun Gong activity and her employer’s reaction to it. Her counsel has described this as the “Employer reaction issue”.
Mr Zipser has submitted that the Applicant appeared to have claimed that her employer knew about her conduct in encouraging people to quite the Chinese Communist Party but did not know about her conduct in practising Falun Gong and distributing Falun Gong literature. Thus, he submitted that the Tribunal made an error when it said:
At the hearing the Applicant made it clear that, by the time she left China many people in her company, including the management structure and her own colleagues, were fully aware of her alleged involvement in Falun Gong and in the campaign to encourage people to quite the CCP and its associated bodies.[56]
[56] Court Book 182 at [85]
Mr Zipser submitted that the Tribunal made a finding based on claims that the Applicant did not make, which involves jurisdictional error, or, that it made a wrong finding of fact which, in the circumstances of the case, constitutes jurisdictional error.
This contention cannot be accepted because there is evidence that the Applicant did not make such a claim, both in her initial application for a protection visa and at the Tribunal hearing.
In the statement accompanying her application for a protection visa, the Applicant stated:
The public security department of my employer has already sent me a final warning. If I am caught again in involving Falun Gong activities, I would be reported to “6-10 Office” (an office created by CCP to persecute Falun Gong members) and be sent to jail, where being tortured is inevitable.[57]
[57] Court Book 18
Again, the Applicant claimed in her statement:
My employer at that stage almost reported me to “6-10 Office”, but finally didn’t due to the interest of my employer to keep its “Best Entreprise[58] Awards”. But I received a final warning: once I am found involved in Falun Gong again, I will be certainly sent to jail. The public security staff in my company started to keep me under strict surveillance.”[59]
[58] sic
[59] Court Book 19
The Tribunal described this exchange with the Applicant at the hearing:
I asked the Applicant who in her company knew about her Falun Gong activities after they were reported. She said this was known to the General Manager and the Deputy General Manager, her section chief and members of her section, and to the Party Committee and security department. I put to her that it seemed to have been known by virtually the entire management team and (she) agreed this was so.[60]
[60] Court Book 175 at [47]
There is evidence that the Applicant claimed that the management at her company knew about her Falun Gong activities and not just her involvement in the campaign to persuade people to quit the Communist Party.
Again, counsel for the Applicant claims that there is no evidence to support the Tribunal’s assumption that conduct by a person in trying to persuade another person to quit the Communist Party or in passing on Falun Gong materials is a criminal act.
However, the Applicant’s own claims in her statement in support of her application for a protection visa contend that these activities are illegal:
The second reason is that I am a Falun Gong practitioner and Fa Lun Gong has been banned in China since 20 July 1999. Chinese Government controlled by the Chinese Communist Party (CCP) states it is illegal to practice Falun Gong in China…
Also due to CCP’s cruel treatment to Falun Gong Practitioners, I have devoted myself in encouraging people to “San Tui” (withdraw from the CCP). This is regarded by the Chinese government as anti-CCP and anti-government illegal activity.[61]
[61] Court Book 18
Again, the Applicant claimed in her statement:
This level of persecution applies to those who actively participate in Falun Gong activities such as “San Tui”, encouraging the public to withdraw themselves from Chinese Communist Party and distribute materials such as “Nice Commentaries on Chinese Communist Party” in an organised manner.[62]
[62] Court Book 19
I am satisfied that the Applicant’s own claims in support of her application for a protection visa provided a basis for the Tribunal’s findings that the activities in which she had been involved were regarded as illegal. Clearly, this is a different factual situation from that set out in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs[63]. No jurisdictional error is shown in this regard and the Applicant’s third ground of review has not been made out.
[63] supra
The Applicant’s fourth and final ground claims that the Tribunal fell into jurisdictional error in relation to the findings that it made about an alleged inconsistency between the evidence of the Applicant and that of her son. The Applicant’s counsel describes this as the “Inconsistent evidence issue”.
Mr Zipser submitted that:
a)There was no inconsistency between the evidence of the Applicant and her son.
b)The Tribunal found that there was inconsistency in the Applicant’s evidence because it misunderstood the Applicant’s evidence.
c)The Tribunal selectively misquoted the Applicant’s evidence.
d)The Tribunal’s reasoning that the Applicant was not telling the truth because she only claimed on one occasion that she could not recall a detail of events in China led to a determination that was “irrational, illogical and not based on findings or inferences of act supported by logical grounds”.
e)The Tribunal failed to have regard to the fact that the events occurred three years earlier.
f)The Tribunal did not make an adverse credibility finding against the Applicant’s son.
g)The Tribunal did not put the inconsistent evidence of the Applicant to the son for comment and thereby contravened s.424A of the Act.
In respect of these claims, I am satisfied from the Tribunal Decision Record that there was an inconsistency between the evidence of the Applicant and that of her son. She is recorded as having told the Tribunal that nobody helped her distribute documents by way of a letter box drop[64]. The Tribunal recorded the evidence of the Applicant’s son as:
Asked if he had helped his mother in any of her Falun Gong activities the witness said the government had cracked down on Falun Gong and he accompanied her very late in the evening when they posted things in letterboxes. Asked what time of day this was he said it was from midnight to 1AM. Asked how often he did this he said it was once or twice.[65]
[64] Court Book 174 at [44]
[65] Court Book 177 at [61]
There was a basis for the Tribunal to find that there was an inconsistency between the evidence of the Applicant and her son. I am not satisfied that the Tribunal selectively misquoted the Applicant.
The Tribunal’s finding that the Applicant’s claim to have defective memory on one occasion but did not make that claim at any other point in the hearing is not illogical, even if illogic is a jurisdictional error. The finding was open to the Tribunal.
The claim that the Tribunal did not have regard to the fact that the events referred to occurred some three years previously does not amount to jurisdictional error. The weight to be given to a piece of evidence is a matter for the Tribunal.
Again, it is a matter of no significance that the Tribunal did not make an adverse credibility finding against the Applicant’s son. It was not required to do so and it was entirely a matter for the Tribunal whether or not it makes a finding about the credibility of a witness or not. This does not amount to jurisdictional error.
The Applicant also claims that the Tribunal failed to put to the Applicant’s son, who was an applicant before the Tribunal, the evidence of the Applicant (his mother) which it considered to be inconsistent with his. This is claimed to be a jurisdictional error as a breach of s.424A of the Act. It is not.
It is well established that inconsistency does not constitute “information” for the purpose of s.424A. As the majority of the High Court said in SZBYR v Minister for Immigration and Citizenship[66] at [18]:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
[66] supra
The Applicant’s fourth ground, with its eight sub-grounds, has not been made out.
As all of the Applicant’s grounds have not been made out, I am satisfied that the Tribunal decision is a privative clause decision, as defined by s.474 of the Migration Act. Privative clause decisions are final and conclusive. They are not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)).
It follows that the application will be dismissed.
There remains for consideration the question of costs, which usually follow the event.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Ms V. Lee
Date: 28 July 2009
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