SZNII v Minister for Immigration and Anor (No.2)
[2009] FMCA 515
•1 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNII v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 515 |
| MIGRATION – Review of Refugee Review Tribunal decision – merits review – no failure to consider applicant’s claims – no breach of section 425 – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R(3), 424A(1), 424A(3), 425 Federal Magistrates Court Rules 2001, r.13.03C(c) |
| SZNII v Minister for Immigration and Anor [2009] FMCA 274 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZJYM v Minister for Immigration & Anor [2008] FMCA 652 Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 812 Subramaniam v Minister for Immigration and Multicultural Affairs (unreported Federal Court of Australia, VG 310 of 1997, 10 March 1998) Makouei v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia VG 327 of 1997, Wilcox J, 6 February 1998 Selvadurai v Minister for Immigration and Ethnic Affairs and Another [1994] FCA 1105; (1994) 34 ALR 347 SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2008] FCA 435 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44] Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 |
| Applicant: | SZNII |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 609 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 25 May 2009 |
| Date of Last Submission: | 25 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | None |
| Appearance for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 13 March 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 609 of 2009
| SZNII |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 13 March 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on the 13 February 2009 which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The Court has before it a bundle of relevant documents (“the Court Book” – “CB”) filed by the respondent Minister.
The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 11 August 2007 having travelled to Australia as the guardian for her daughter who had been granted a visa to study in Australia. On 30 June 2008 she applied for a protection visa (see CB 1 to CB 29). Her daughter was not included as an applicant in this application.
Applicant’s Claims
The applicant’s claims were that she feared persecution from the Chinese authorities (the Public Security Bureau – “PSB”) because of her husband’s anti-government protest activities. The applicant’s claims in this regard arose out of the claimed ownership and management of a fish farm located close to the island of Taiwan which was the subject of substantial damage following a military exercise conducted in that area in 2006.
The applicant claimed that she and her husband received no compensation despite having been promised compensation in anticipation by the local government authority. As a result, the applicant claimed that her husband organised a public rally and other protests in January 2007, that he was arrested and detained and mistreated. After his release he organised for the applicant and their daughter to flee to Australia by obtaining a student and guardian visa respectively through a “snake head”.
In short the applicant fears harm if she were to return to China in that she would be arrested, and that she has been “blacklisted” for supporting her husband's activities (see in particular CB 17 to CB 20).
The applicant was assisted in the application before the Minister’s Department by a registered migration agent - Priscilla Yu of Priscilla International Co Pty Ltd (CB 27).
The applicant attended an interview with the Minister’s delegate on
12 August 2008(CB 33 and CB 48.7). The delegate was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The delegate found that the applicant had provided “inconsistent evidence” and that “this questions the reliability of her claim” (CB 55.5) (see CB 48 to CB 57 for the decision record as a whole).
The applicant applied for review on 9 October 2008 (CB 59 to CB 63). Again she was represented by the same migration agent (CB 61).
The Tribunal
The applicant appeared at a hearing before the Tribunal and gave evidence on 17 November 2008. Her daughter also gave evidence as a witness (CB 69).
The Tribunal’s account of what occurred at the hearing is set out in its decision record, (CB 117 to CB 134 and in particular for the account of the hearing CB 123.6 to CB 127.3). The applicant has not provided any transcript of the hearing to the Court.
Following the hearing, by letter dated 18 November 2008 (CB 84 to CB 86) the Tribunal wrote to the applicant (sent by facsimile communication on 18 November 2008 to the authorised recipient for that purpose) inviting the applicant to comment on certain information which the Tribunal said it would be the reason or a part of the reason for affirming the decision under review. The applicant responded by way of Statutory Declaration made by her, and sent by her migration agent to the Tribunal (CB 111 to CB 113).
The Tribunal understood the applicant’s claims to fear persecution to be said to arise from her husband’s protest activities following the PRC military's claim of destruction of their fish farm. That she specifically feared that if she were to return to China the PRC authorities would detain her because of her association with her husband. That she would be punished because of helping him to fund his anti-government activities and in order to use her to lure him out of hiding.
The Tribunal noted that these claims related to the Convention ground of imputed political opinion and “arguably membership of a particular social group consisting of the husband's family” (CB 128 at [60]).
The Tribunal formed the view that the applicant was “a witness of low credibility” (CB 128 at [61]). It placed little weight on the daughter’s evidence as independent corroboration of the applicant’s claims because “her knowledge was limited in scope and shallow” (CB 128 at [62]).
The Tribunal found that the “significant delay” of almost 11 months in the applicant lodging her protection visa application was “inconsistent with the conduct of a person who fears persecution” (CB 129.1 at [64]). It found the applicant’s explanation for the delay to be unconvincing and for reasons which it gave did not accept them
(CB 129.4 to CB 130.8).
The Tribunal considered that s.91R(3) of the Act did not apply in the present case, given that the applicant did not seek to rely on the delayed lodgement of a protection visa application to strengthen her refugee claim (CB 130.9).
Despite its “strong concerns about the circumstances of this application” (CB 130.10 at [72]) the Tribunal proceeded to examine the applicant’s refugee claims. It accepted that the applicant and her husband had had some association with a fish farm, based on the applicant’s oral and documentary evidence, including photographs of the fish farm and the daughter’s evidence. It nonetheless, despite this, found that the applicant’s evidence: “regarding critical aspects of her husband’s circumstances” to be vague and unconvincing, and did not “adequately” explain. It found her explanations to be: “expedient and unconvincing” in relation to her husband’s circumstances (CB 131.4 at [75]).
The Tribunal also found that the applicant gave “unreliable evidence regarding her husband’s employment business interests and finances” (CB 131.7 at [76]), and that the applicant had given “conflicting information” to the Tribunal about the family finances and her husband’s employment CB 131.8 at [77]. The Tribunal considered documents provided in support of the applicant’s claims but for reasons given, including the applicant’s “overall unsatisfactory evidence as to her family’s finances” the Tribunal found that the family “did not rely wholly or even substantially on any interest in an aquatic farm”
(CB 132 at [78]).
In all, the Tribunal found, based on the delayed lodgement of a protection visa application and her account of her family’s circumstances that the applicant was “not a witness of truth” (CB 132 at [80]). The Tribunal took note of various documents provided by the applicant but found that “even taken at face value” a notice from the relevant village committee did not assist the applicant (CB 132 at [81]).
The Tribunal, for reasons given, did not accept that the applicant’s husband was involved in any conflict with the village committee, the PRC military or anyone else that formed the basis for them to take an adverse view of him (CB 133 at [83]). As a consequence the Tribunal rejected all of the applicant’s claims of harm derived from this (CB 133 at [84]). Given this finding it found that it did not need to consider the application of s.91S in relation to any persecution said to have been fear by her husband for non-Convention related reasons (CB 133 at [85]).
In all therefore, the Tribunal said that the applicant’s claims and evidence considered both “individually and cumulatively” did not satisfy it that there was a real chance of her facing persecution in China. The applicant did not, therefore, have a well-founded fear of Convention related persecution and, therefore, affirmed the decision under review.
Application before the Court
In the application to the Court the applicant expresses one ground of review with eight particulars which may be taken as grounds in themselves. In any event the ground as expressed is:
“The Tribunal failed to consider all of my claims as a whole; instead, my claims have been taken out of context and my statement has been misstated and my evidence has been distorted; and the Tribunal failed to consider my claims properly and fairly; and the Tribunal's finding has included a reasonable apprehension of bias; and the Tribunal made its finding unreasonably, illogically and based on nothing but only its unwarranted assumption; and the Tribunal failed to comply with its obligations under s.425.”
The particulars make reference to various parts of the Tribunal’s decision record and seek to exemplify the complaints made in the ground.
Before the Court
When this matter came on for hearing before the Court on 1 April 2009 there was no appearance by the applicant and no explanation before the Court for the failure to appear at that time. The application was dismissed pursuant to r.13.03C(c) of the Federal Magistrates Court Rules 2001 (see SZNII v Minister for Immigration and Anor [2009] FMCA 274).
The applicant subsequently sought reinstatement of the application on 15 April 2009. I accepted the applicant’s explanation for the failure to appear on the earlier occasion. Orders dismissing the application were set aside, and the matter was set down for hearing on 25 May 2009.
At that hearing before the Court the applicant appeared in person.
She was assisted by an interpreter in the Mandarin language. Ms K. Whittemore appeared for the first respondent.
When given the opportunity to make submissions, the applicant started to read from a lengthy prepared statement which appeared to be in Chinese characters. The applicant commenced by stating that the Tribunal’s decision was unfair and biased and that it did not comply with s.425. However, her following explanation as to why this was the case did not appear to be relevant to any breach of s.425. The applicant had some difficulty in assisting the Court with what exactly was the perceived breach of s.425. Ultimately she explained that the “document” (being the application to the Court) had been drafted with the assistance of a “friend”.
Following an intervention from the applicant’s daughter who was seated at the back of the Court, I granted a short adjournment for the applicant to confer with her daughter. On resumption the applicant asked that her daughter be allowed to speak for her as she claimed she was too upset to do so herself. There was no objection from Ms Whittemore. The applicant’s daughter then proceeded to read from the prepared statement and to provide other commentary.
For the most part, this submission mirrored the matters raised in the application to the Court. These matters are dealt with below.
In addition, however, the applicant through her daughter also insisted that at the Tribunal hearing, the Tribunal indicated to the applicant that it accepted her claims and that it was, therefore, contradictory and unreasonable of the Tribunal to subsequently reject the applicant’s claims. This matter is also dealt with below.
Consideration
The ground as stated appears to be a summary of the matters set out in more detail in the list of particulars which follow. Given this structure of the application to the Court it is preferable to deal first with each particular as stated.
Particular 1
In particular one the applicant refers to paragraph [67] in the Tribunal’s decision record. The Tribunal’s finding in this paragraph was that in accounting for the delay in applying for a protection visa, the applicant claimed that the delay, in part, was because she planned to return to China once the compensation issue had been settled. The Tribunal found that the applicant’s claims that she and her family faced refugee related risk in China yet she planned to return there once the compensation issue was settled: “to lack credibility”.
The application states that the Tribunal “has in fact accepted my major claims in the protection application”, but takes issue with her explanation as to why she had the intention at that time of returning to China. The complaint is that the Tribunal failed to consider all of her claims as a whole, and that her claims had been taken out of context, and that her explanation had been “misstated and my evidence has been distorted”.
I saw this as relating directly to the first part of the ground as presented in the application to the Court.
First, it should be noted that the applicant’s assertion that the Tribunal accepted her “major claims” is not factually correct. While the Tribunal accepted that her family may have had some interest in the fish farming activity, the Tribunal comprehensively rejected the applicant’s claims to fear harm as it was said to arise from this fish farm having been destroyed and the applicant’s husband coming to the attention of the authorities due to his subsequent actions.
The Tribunal found that the applicant was not a witness of truth (CB 132 at [80]) and specifically rejected the claims that the applicant’s husband was involved in any conflict with the Chinese authorities ([83]). These findings including the finding as to credibility were plainly open to the Tribunal on the material before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (“Kopalapillai”). Findings on credibility are of course for the Tribunal to make as the decision-maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 (“Durairajasingham”).
To the extent that the applicant appears to argue at particular one that the Tribunal should not have made the adverse finding in relation to the delay in applying for a protection visa without having regard to all of the claims as a whole then such a complaint does not succeed.
Any plain reading of the Tribunal’s decision record reveals that the Tribunal did consider all of the applicant’s claims “as a whole”.
I cannot see error arising from the Tribunal logically presenting its analysis, issue by issue, which appears to be the applicant’s complaint in focusing on paragraph [67]. It was plainly open to the Tribunal to deal with the issue of delay which it considered to be significant and relevant to the applicant’s claims to fear harm on return to China, as a subset of the applicant’s circumstances.
It is difficult to see the applicant’s complaint in this particular as being other than a complaint that the Tribunal did not accept her explanation for the delay. I cannot see that the claims were taken out of context or that the Tribunal distorted the evidence. Noting of course that the applicant has chosen not to put before the Court any transcript of the hearing that the Tribunal conducted with her. The Tribunal’s account of what occurred at the hearing remains unchallenged. It is not for the Court to make assumptions about what occurred at the Tribunal hearing without evidence on which to base any such consideration (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 (“NAOA”)).
The Tribunal’s rejection of the applicant’s explanation as to the delay was open to it. The applicant’s challenge now does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (“Wu Shan Liang”)).
Nor was the Tribunal in error in presenting its analysis with headings under “applicant’s delayed visa application” and subsequently “applicant’s refugee claims” (see CB 128.10 and CB 130.9). It is clear that the Tribunal considered all of the applicant’s claims (CB 130.9 and what follows). It is also clear that the delayed lodgement of her protection visa application was a factor in the Tribunal rejecting the proposition that the applicant’s claims amounted to a well-founded fear of persecution (at [80]). That the Tribunal relied on the delay, in part, to form the view that the applicant was not a witness of truth does not reveal that it did not look at her claims as a whole. On a plain reading of its decision record it did. This complaint therefore does not succeed.
Particular 2
In particular two the applicant refers to paragraph [68] of the Tribunal’s analysis which contained the second reason for the Tribunal rejecting the applicant’s explanation as to the delay in applying for a protection visa.
The Tribunal sets out as part of its reasons for rejecting the applicant’s explanation that it was not until May 2008 (that is, the time on or about the making of the application for a protection visa) that she realised that it was unsafe for her to return to China. The Tribunal’s concerns with the applicant’s explanation arose from what it described as “her sparse account of her husband’s activities”, and that it found her “unforthcoming” with relevant details.
The applicant’s complaint is that the Tribunal’s assessment, and finding, in this regard was “based on nothing but only its unwarranted assumption.” The applicant points to some of the words used by the Tribunal (“imagine” and “expects”) to support this claim. She further complains that the Tribunal: “failed to give any independent evidences,” and that its finding “was made unreasonably and illogically”.
First, I should note what the High Court said in relation to the applicant’s focus on some of the words used by the Tribunal. In Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ said that the Tribunal’s decision should not be scrutinised with an eye finely attuned to error (see at 287: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”).
The word “imagine” appears in the sentence beginning at the fifth line at [68 CB129]:
“It is difficult to imagine how, if her husband had been detained previously and was subject to official harassment, he managed to pursue these activities, even secretly, given the very specific focus of his complaints and his continued residence in the village.”
The word “expects” appears at CB 130.1 in the same paragraph:
“The Tribunal expects that, if the applicant’s husband had experienced any of these incidents was now in contact with her from a secret location in Guangdong, he would have had ample opportunity to tell about what actually happened".
In relation to the use of the word “imagine” far from making a unwarranted assumption, the Tribunal was plainly saying that it had difficulty in seeing, or accepting, the applicant’s explanation that if the husband had been detained previously and was subject to official harassment, how he managed to pursue anti-government activities even secretly, given that the claim was that he had become a specific focus of the authorities because of his complaints, and his continued open residence in his village.
In relation to the use of the word “expects”, similarly this is hardly an unwarranted assumption. Again the Tribunal was, in context, expressing a considered view which it was entitled to do. That is a view that it took of the applicant’s evidence that notwithstanding the husband being in a secret location he would have still had ample opportunity to convey to her what actually happened, in spite of her claim to the contrary now.
Further, it is difficult to understand the applicant’s complaint that the Tribunal “failed to give any independent evidences” in relation to what is set out in paragraph [68]. The Tribunal was properly dealing with her own evidence given in explanation for her failure to apply for refugee status in a more timely manner. An application made in a timely manner, being in the Tribunal,s view more consistent with someone who genuinely claims to fear harm and persecution if she was to return to China. There is no obligation on the Tribunal to search for other evidence to counter the applicant’s own evidence in this regard.
Again, the applicant’s complaint does not appear to rise above a challenge to the Tribunal’s rejection of her explanation for the delay in making her protection visa application. A finding of fact open to the Tribunal to make in the circumstances.
To the extent that this complaint also asserts that the Tribunal’s finding in this regard was unreasonable, I understood this, as did the first respondent, to be a reference to Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”). That the decision was so unreasonable that no reasonable person could have come to it. I cannot see that the applicant’s reliance on what the Tribunal said at paragraph [68] amounts to reasonableness in the Wednesbury sense, nor for that matter that the Tribunal’s reasoning was illogical (with reference to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] per Gleeson CJ (“S20/2002”)). I cannot see that this complaint can be made out as asserted.
Particular 3
The third particular makes a similar complaint as it is said to arise with reference to paragraph [69] of the Tribunal’s analysis. In this paragraph the Tribunal set out its third reason for rejecting the applicant’s explanation for the delay in applying for a protection visa.
It specifically addressed the applicant’s explanation that her failure to seek protection earlier was as a result of the concern that her daughter would not be eligible for a student visa extension in Australia. Further, that the Chinese authorities would learn about her protection visa and that: “her husband might have been in troubles again.” The Tribunal made findings on these explanations as they were presented, given that it found that the applicant “gave few details beyond these assertions”.
Again, in relation to the complaint of unreasonableness in the Wednesbury sense, the applicant repeats before the Court her evidence that she had provided to the Tribunal. That the Tribunal rejected the applicant’s explanation as unsatisfactorily explaining the period of delay does not of itself mean that it was unreasonable of it to do so, such that no reasonable person could have come to the conclusion.
The explanation to which the applicant now refers was her evidence that a friend of her husband’s organised the daughter’s (and her) visa to come to Australia. That documents showing that the applicant’s husband worked for a shipping company were prepared by her “husband’s friend”. The applicant complains that it was unreasonable of the Tribunal to reject this as an explanation, and to find that she “side stepped” the Tribunal’s efforts to enquire further in relation to the daughter’s visa.
The applicant’s complaint now as presented is plainly misconceived.
In her application to the Court the applicant refers to an explanation as to how her daughter’s visa was obtained in China. In this part of its decision record complained of, however, the Tribunal was focusing on the applicant’s explanation, in part, given for the delay in making the application for a protection visa in Australia. That is that her daughter would not be eligible for a student visa extension in Australia.
This part of the Tribunal’s analysis (paragraph [69]) plainly records the Tribunal’s findings arising from the applicant’s own evidence.
The applicant has put no evidence before the Court (for example a transcript of the Tribunal hearing) to challenge the basis for the Tribunal’s findings that the applicant relevantly gave “few details”, “side-stepped the Tribunal’s efforts to enquire further” or otherwise “gave no details”.
In the absence of evidence to the contrary this Court can only proceed on the one account of the hearing put before it. That is the Tribunal’s own account. On this account, its observations and subsequent findings were open to it to make.
Further, to the extent that the applicant complains about a lack of “common sense” on the part of the Tribunal as it is said to arise from her explanation that her fear of the Chinese authorities learning of her protection visa application contributed to the delay, similarly this is misconceived.
The applicant’s complaint now is that it is “common sense” that the husband would be subjected to severe punishment by the Chinese authorities if they found out that his wife sought protection on the basis that he had actively organised anti-government activities in China. Plainly, the Tribunal had difficulties with the applicant’s own evidence in this regard. When the evidence was taken as a whole the Tribunal specifically referred to the difficulty in reconciling her stated fear of getting her husband into trouble “again if she sought asylum with her other explanations.” The Tribunal gave an example of this (see [69.b] at CB 130.5).
The applicant’s complaint in this regard does not succeed. As the Minister in my view correctly submits her complaint does not rise above a request for this Court to engage in merits review of her claims, and in particular her explanations, without evidence now for deficiencies in the presentation of those claims.
It must be noted that the applicant’s complaint now: “I have never ever expected that the Tribunal’s member would not know such a basic common sense” rings hollow as it is based on misunderstandings of what the Tribunal has done. It plainly does not succeed in explaining deficiencies in her own evidence, and her inability to satisfy the Tribunal as to the credibility of her claims. The assessment, of course, of her claims, and their credibility was a task for the Tribunal, acting within its jurisdiction to make. No jurisdictional error is revealed by this complaint.
Particular 4
Particular four derives its stated complaint from paragraph [70] of the Tribunal’s decision record. In this paragraph the Tribunal summarised its findings in relation to the delay in the applicant making her application for a protection visa.
The applicant now complains that she gave three reasons instead of two reasons as to why she delayed making the application and that her claims were taken out of context, and that her evidence has been distorted and misstated by the Tribunal.
Again it must be noted that the applicant has provided no transcript of the hearing before the Tribunal to the Court. In these circumstances the Court can only proceed on the Tribunal’s account of what occurred at the hearing and in this regard also, the applicant’s response to the Tribunal’s letter inviting her comment (see CB 111 to CB 113).
In any event on the material before the Court the Tribunal dealt with each of the applicant’s explanations as put by the applicant, to the extent that the delay was motivated by “family concerns”. The Tribunal extensively dealt with this, and also rejected her other explanations that she had planned to return to China if compensation had been obtained, and that there was a turn of events in “May 2008 that rendered this impossible”.
In relation to the explanations offered now by the applicant as having been reasons causing her not to submit her protection visa application at an earlier time:
1)Her fears for the extension of the daughter’s student visa were dealt with specifically by the Tribunal (see [69] at CB 130).
2)That her husband did not go into hiding until 2 May 2008, and up until that time she was worried for her husband’s safety if it was discovered by the Chinese authorities that she had made a refugee application in Australia, again the Tribunal specifically dealt with this at [69].
3)In relation to her explanation that since 2 May 2008 her husband has been wanted by the Chinese authorities and has had to go into hiding in a small town, and that she has been put on a “wanted list” this was, again, specifically dealt with by the Tribunal (see [68]).
As to the claim to fear harm on her own account, as arising from her husband’s circumstances, because she made a refugee application in Australia, this does not appear (with reference to what is said to have occurred at the hearing on the only record before the Court now) to have been raised as an explanation for the delay in applying. Rather it was raised as a distinct claim and was put in the context of her having been put on a “wanted list”, and being personally targeted by the Chinese authorities because she was perceived to be the main support to her husband’s anti-government activities.
The Tribunal squarely dealt with this issue, and found that it did: “not accept they will impute her with any adverse political opinion for any association with her husband …” (CB [86] at CB 133).
The Tribunal also dealt with the issue of whether the PRC authorities would otherwise target her if she were to return to China after seeking Australia’s protection and found there was “nothing to suggest that the fact that the applicant’s protection visa application will become known to the PRC authorities, nor that they would draw any adverse inferences from the applicant’s stay in Australia” ([87] at CB 133).
I cannot see that the applicant’s complaint that the Tribunal has misstated her evidence or distorted her evidence can be made out and again this complaint does not succeed also for similar reasons as set out above in relation to the other particulars.
Particulars 1 to 4
To the extent that particulars one to four take issue with the Tribunal’s finding in relation to the time taken to make the application for a protection visa and the adverse credibility finding derived by the Tribunal from this, then no error is revealed in the Tribunal’s analysis in finding that the applicant’s delay contributed to its finding of adverse credibility.
In this regard I note the respondent’s reliance on what was said in SZJYM v Minister for Immigration & Anor [2008] FMCA 652 per FM Barnes (“SZJYM”). One of the issues for consideration before her Honour was whether the Tribunal in that case erred in considering delay in making an application for a protection visa. After making reference to various relevant authorities (Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 812 (“Thuraisamy”); Subramaniam v Minister for Immigration and Multicultural Affairs (unreported Federal Court of Australia, VG 310 of 1997, 10 March 1998) (“Subramaniam”) and Makouei v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia VG 327 of 1997, Wilcox J, 6 February 1998) (“Makouei”); Selvadurai v Minister for Immigration and Ethnic Affairs and Another [1994] FCA 1105; (1994) 34 ALR 347 (“Selvadurai”)) her Honour concluded:
“61 Hence, it is legitimate to take delay into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution. The view has been expressed that it is also a legitimate matter to take into account in deciding whether to believe an applicant. However, in Makouei Wilcox J made it clear that if the Tribunal had treated delay as determinative in relation to whether an applicant genuinely had a fear of persecution that would be a clear error of law. Similarly if a Tribunal treated delay in making a protection visa application as concluding the question of whether to believe an applicant, rather than as being a relevant factor to be taken into account, that would also be an error of law and not consistent with the approach taken in any of these cases.”
I respectfully agree with her Honour’s consideration of these authorities and understood her Honour’s reference to the word “determinative” above to be used in the sense that it was the ultimate or the only issue used by the Tribunal in rejecting the applicant’s claims (see also [70] to [72] of her Honour’s consideration and the reference to SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2008] FCA 435 at [60] to [64] per Rares J (“SZGGT”)).
In the current case the Tribunal plainly took into account the delay in applying for a protection visa in assessing the applicant’s claims, including her credibility. Importantly, however, the Tribunal did not simply rely on the delay in making the adverse finding as to the applicant’s credibility, nor indeed did it treat the delay in making the application for the protection visa as being solely determinative in relation to whether the applicant genuinely had a fear of persecution.
The Tribunal’s adverse view as to the applicant’s credibility, that is, that she was “not a witness of truth” was also arrived at with reference to her account of her family’s circumstances which was said to be at the heart of her claims to fear persecution. Nor was it the only reason given by the Tribunal to ultimately reject the applicant’s claims to fear persecution.
Ultimately, it is plain that the Tribunal found the delay and the applicant’s explanations for the delay as being relevant to the issue as to whether the applicant had a well-founded fear of persecution for a Convention reason. But it did not reject the applicant’s claims simply because of the delay. What it found to be the applicant’s unsatisfactory evidence at the hearing, and the unsatisfactory nature of her explanations in relation to certain aspects of her claims, were not found to be satisfactory nor were they rejected because of the delay, but were considered and rejected and assessed to be adverse to the applicant in their own right and for reasons other than the delay.
I note in particular the Tribunal’s reference at paragraph [72]: “the Tribunal finds the applicant’s delayed lodgement of the protection visa application is compelling though not conclusive evidence that she does not have a genuine fear of persecution.” This must also be seen in context of the Tribunal subsequently and separately finding the applicant’s evidence in particular in relation to her husband’s and family circumstances as being vague and unconvincing ([72] – [75]) and the family’s financial situation ([76] to [79]). In all, therefore, the delay in lodging the protection visa application cannot be said on its own to have “concluded” the question in the Tribunal’s mind in relation to the applicant’s credibility, nor in relation to the answer to the question as to whether she had a well founded fear of persecution.
These particulars do not assist the applicant.
Particular 5
In particular five the applicant makes reference to paragraph [75] in the Tribunal’s reasons for decision, where the Tribunal made findings that the applicant’s evidence, in critical aspects, of her husband’s circumstances was vague and unconvincing and that the applicant’s responses at the hearing did not adequately explain the applicant’s husband’s ability to pursue the activities that the applicant claimed he had engaged in, and for a lengthy period. The Tribunal further found her explanations relating to her husband’s circumstances to be “expedient and unconvincing”.
In the applicant’s “statement” in the application to the Court and her oral submissions to the Court, the applicant asserts that the Tribunal has made findings which are contradictory, in that it accepted: “my major claims in the protection application but on the other hand it has rejected my major claims.” The applicant asserts that the Tribunal’s findings at paragraph [75] therefore, “include a reasonable apprehension of bias”.
The applicant also asserts a breach of s.425. The applicant made reference to the Tribunal’s obligation to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The complaint appears to be that the Tribunal failed to “clearly indicate” the issues that were determinative of the review during the Tribunal hearing.
Particular five also asserts that the Tribunal lacked a “basic knowledge about the actual situation in China” and this is said with reference to the applicant’s need to flee China and the “difficulty in leaving her home town.”
First, I should note as the Minister submits that an allegation of bias, and an apprehension of bias are serious charges to make against any decision maker. They must be clearly made and distinctly proved (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 (“Jia”); SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 (“SBBS”); [2002] FCAFC 361 at [43]-[44]; Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 (“SBAN”); VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 (“VFAB”); Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 (“Ex parte H”)).
It is the case that it is a rare circumstance that bias can be made out simply with reference to the Tribunal’s decision record (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J (“SCAA”)).
Further, and in any event, in the current case the basis for what is said to reveal bias or the apprehension of bias on the Tribunal’s part is factually incorrect. The applicant complains that the Tribunal on the one hand accepted her “major claims in the protection application”, but then on the other hand rejected her claims. I can see no evidence before the Court to support such an assertion before the Court today.
The applicant’s daughter submitted on her behalf that during the course of the hearing the Tribunal told the applicant that it was clear about her claims, in the sense that it accepted her claims, but then in its findings and reasons did not accept the applicant’s claims.
It must be noted that the applicant despite the opportunity afforded to her in orders made by the Court on 15 April 2009 has not put before the Court any transcript of the Tribunal hearing. The Court, therefore, can only look to the Tribunal’s own account of what occurred at the hearing and cannot assume matters not put in evidence before it (NAOA).
The Tribunal’s account of what occurred at the hearing reveals that at no time did the Tribunal say that it accepted the applicant’s claims. Quite the contrary, the Tribunal’s account reveals that the Tribunal properly put to the applicant the difficulty that it had with her claims (with reference to the relevant paragraphs):
1)At paragraph [38], the Tribunal put to the applicant that her evidence that she and her daughter planned to leave China in December 2006, a time at which the Tribunal noted the applicant had “no income”, and that her husband had not experienced any adverse attention was suggestive of a planned departure.
2)At paragraph [39], the Tribunal put to the applicant its concerns that her explanation for leaving China because of what had happened to her husband that the applicant appeared to have “opted for an expensive and time-consuming means of leaving China.” It further “wondered”: “why her husband who already had a passport had not left the country earlier particularly after his alleged attention in January 2007”.
3)At paragraph [40] the Tribunal “queried how he managed to do this” in relation to the applicant’s claims that her husband resumed his political activities after being released from detention.
4)At paragraph [41] the Tribunal noted that it had tried “without success to obtain further details of what had triggered such actions so long after her husband’s protest activity had started.” That is why the applicant had gone into hiding at the time that he did.
5)At paragraph [42] the Tribunal squarely “alerted the applicant that it found her evidence on this matter unforthcoming”.
6)At paragraph [47] the Tribunal, in relation to the applicant’s claim that she and her husband had lost a large sum of money following the August 2006 military exercises, yet had been able to raise a larger sum to arrange for her travel and her daughter’s travel to Australia: “this could cast doubt on the claims regarding her husband's employment and the financial situation”.
7)Ultimately at the conclusion of the hearing the Tribunal reported:
“[53] The Tribunal advised the applicant that it had serious concerns about application. It said that these arose from the following in particular:
(a) The delay …
(b)The significant number of documents provided for her at her daughter's visas, showing that the husband was a shipping manager and that she had substantial assets, contradicting her refugee claims that the military exercises had ruined her family's business;
(c)The difficulty had in believing her claim that her husband remained in Pingtan from January 2007 to May 2008, with no evidence of serious harm; and
(d)The family's choice for her and her daughter to go to Australia, via an expensive option, if her husband was in fact at risk of persecution. It put to her that this information could lead it to doubt that she had a well-founded fear of persecution.”
The only account of what occurred at the hearing before the Court now reveals that the applicant’s allegation of bias or the apprehension of bias, is not made out. There is no bias, nor would a well informed lay observer reasonably apprehend bias simply because the Tribunal for cogent reasons, rejected the applicant’s claims.
Further, nor is there any breach of s.425. In SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 (“SZBEL”) the High Court set out the Tribunal’s procedural fairness obligations in relation to s.425. To the extent that the applicant’s credibility can be said to be a determinative issue dispositive of the review, it is clear that this issue arose following the delegate’s decision (see CB 55): “the applicant has provided inconsistent evidence as stated above ([91] of this judgment). This questions the reliability of her claim”. In any event, as outlined above the Tribunal more than “sufficiently indicated” to the applicant at the hearing it conducted with her, the difficulties with her evidence and its concerns in accepting her as a witness of truth and in accepting her claim to be a person fearing persecution in China (with reference to SZBEL at [47]).
There is nothing in the Tribunal’s account to show that it accepted the applicant’s claims at the hearing. Contrary to the applicant’s assertion now, there is nothing in the account of what occurred at the hearing to reveal bias or the apprehension of bias on the part of the Tribunal.
Nor can I see in light of the Tribunal’s account of what occurred at the hearing that it breached any procedural fairness obligations pursuant to s.425.
I should just note in this regard, that is, in relation to the claim that the Tribunal was biased and failed to properly consider the applicant’s claims because it failed to give her a reasonable opportunity to comment, the Tribunal wrote to the applicant after the hearing and put its concerns in writing. As the Tribunal said at [55]:
“The Tribunal considered it fair and reasonable in the circumstances to put particulars of the information to the applicant in writing. The Tribunal formed this view, taking into account that the applicant appeared upset while giving oral evidence, particularly when talking about her husband or in responding the Tribunal's concerns about aspects of her evidence.”
In all, therefore, I cannot see that the Tribunal was in error as asserted in particular five.
Particular 6
At particular six the applicant again makes extensive reference to the Tribunal’s stated reasons (paragraphs [76] to [79]) and asserts that the Tribunal took her claims out of context, distorted her evidence, and was selective in how it assessed her evidence. The main thrust of her complaint appears to be, and as was confirmed in the applicant’s and her daughter’s presentation before the Court, that the “illegal” error on the part of the Tribunal in this regard was that the Tribunal based its decision on information from the applicant’s daughter’s student visa application. That it concluded that the information in that application as it related to the famiy’s financial situation was true. It rejected the applicant’s explanation to it that that application had been prepared by a friend of her husband’s, and could not be relied upon. That it was unfair of the Tribunal and revealed bias on the part of the Tribunal that it found that all the information in the student visa application was true, and everything in the protection visa application was false.
I should just note that during the course of the hearing before the Court the applicant’s daughter submitted that the Tribunal’s finding was also in error, in part, because it is a “common practice” in China for documents to be false, and for false details to be provided. Therefore, in light of this, it was not open to the Tribunal to rely on what had been put in the student visa application. This was said to reveal that the Tribunal was unaware of what occurred in China and it was, therefore, unfair of it to have proceeded in the way that it did. [The applicant and her daughter appeared to complain from the Bar Table that they had no knowledge of what had been put in the applications for the student and guardian visas, but fully expected that false statements, and documents, would have been made and submitted.]
The applicant’s complaint in this regard, even putting to one side what must be described as the extraordinary statement made by the applicant’s daughter when reading from the applicant’s prepared statement, is not made out.
The Tribunal questioned the applicant at the hearing about the circumstances in obtaining the guardian and student visas (see [39] and in particular [45] and [46] and [47] of the decision record). It squarely put to the applicant its concerns, amongst other things, about the “significant number of documents provided for her and her daughter’s visas” at paragraph [53].
This issue was the subject of the written request for comment made to the applicant after the hearing on 18 November 2008 (see in particular at CB 85):
“ ▪Your daughter’s student visa application and your guardian visa application contain extensive supporting documentation, accompanied in many cases by your signature. Relevantly these include the following.
This information is relevant because it indicates that applications were prepared with your knowledge and cooperation contrary to your evidence at the hearing …
Furthermore, you have confirmed the accuracy of much of this documentation, such as your family composition and you're having a Bank of China account in Longtain.
…Significantly, it may also conclude that your husband was not motivated by any financial problems to challenge the authorities for compensation or to criticise them for any other reason.
All the above information is also relevant because it casts doubt on the credibility of your refugee claims and evidence.
You are invited to give comments or respond to the above information in writing".
The applicant did respond. Although before the Court today the applicant appeared to have some difficulty in remembering that in fact she had done so nonetheless her Statutory Declaration appears at
CB 112 to CB 113 and addresses this and other issues raised by the Tribunal’s letter. In particular at:
“[6] The application in relation of my daughter’s student visa as well as my own guardians visa had been organised by my husband's friend …”
The applicant’s Statutory Declaration made in accordance with the Oaths Act1900 states that information supplied to the Minister’s department to obtain such a visa was at least in one particular false:
“Particularly, it is quite common that someone, like my husband’s friend, always found a suitable “employer” for the people, like us, who intended to send their children to the overseas, in order to meet financial requirements for the student’s visa, but as a matter of fact, my husband has never ever worked at such a shipping company” (CB 113).
I should just note that the Tribunal’s letter of 18 November 2005
(CB 84 to CB 86) fulfils the Tribunal’s obligation pursuant to s.424A(1) to put to the applicant information that would be the reason or part of the reason for affirming the decision under review. The information in the guardian and student visa applications do not fall within the exceptions set out in s.424A(3). The Tribunal was correct therefore to send this letter.
In relation to the complaint made by the applicant now I cannot see that the Tribunal took the applicant’s claims out of context and misstated or distorted her evidence nor that the Tribunal’s findings were contradictory. The Tribunal clearly considered the applicant’s explanation as to the “conflicting information about the family’s finances and her husband’s employment” (see [77] at CB 131).
The Tribunal was not in error to rely on some matters asserted in these applications particularly as they related to the applicant’s assets, given that as it said at [78]:
“The applicant indicated at the hearing that she knew nothing about the documentation provided to support these applications, as a snakehead had arranged them. She did not expressly disown the financial statements in her name, but suggested that they, too, were unreliable …”
It was not unreasonable, or illogical, or contradictory, or biased, for the Tribunal to form the impression that notwithstanding her explanation that the family had access to substantial savings (at CB 132.2). Nor is it contradictory for the Tribunal to consider that it was both “plausible” that the applicant may have provided some false documentation in support of her visa application, but that also her evidence to have set in place travel plans in late 2006 and the transfer to Australia funds for her daughter’s studying was at a time well before the claimed time when her husband was said to have come to the attention of the authorities.
It was open, therefore, for the Tribunal to find that this “strongly suggests that these particular documents are genuine” in those circumstances, including other related circumstances provided by the applicant herself in her evidence to the Tribunal as to the family’s finances and access to finance. It was open to the Tribunal in these circumstances to find that the family “did not rely wholly or even substantially on any interest in an aquatic farm” ([79] at CB 132.5).
Further, and in particular, in relation to the issue of whether the husband was a manager for a shipping company as set out in the documentation applying for the guardian and student visas,
the Tribunal considered it “a real possibility” that the applicant’s explanation that “snake heads” falsified “employment papers”. In these circumstances the Tribunal found that it was “unable to make a finding that he worked for a shipping company or indeed to make any finding about his actual employment.”
Importantly the Tribunal also went on to say: “it accepts furthermore that it would be illogical to draw adverse inferences when assessing the applicant refugee claims from her assertion that she relied on false documents to secure visas to leave China” ([79] at CB 132.5).
It was not illogical or unreasonable for the Tribunal, however, to accept that some of the supporting documentation, that is “her bank statements” were not false. The Tribunal’s reasoning in this regard was cogent and reasonable in the circumstances. The applicant’s submissions appear to fail to understand the subtle distinction that the Tribunal was seeking to draw in accepting that some false documentation may have been submitted by the “snake head”, but that nonetheless, documentation such as bank statements were not necessarily false.
In any event the Tribunal’s finding in this regard was based on other evidence provided by the applicant:
“However taking into account its assessment of the applicant’s and her family's financial situation at her husband's continued stay in China the Tribunal concludes that he was not wholly dependent on any fish farm for his income and consequently did not lose his livelihood.”
The applicant’s complaint in this regard is therefore not made out.
Particular 7
At particular seven the applicant takes issue with what the Tribunal said at paragrapha [81] CB 132.6 in its reasons for decision. She again complains that the Tribunal on the one hand rejected her claims regarding false documents in relation to the application for the student and guardian visas, while on the other hand made a finding rejecting her documentary evidence in support of her claims for a protection visa.
At paragraph [81] the Tribunal dealt with a notice said to be from the local village committee which the applicant handed to the Tribunal at the hearing (see CB 79). This stated that the committee notified the applicant’s husband of forthcoming military exercises, the need for the villages to cooperate and makes the offer of full compensation in the event of any losses. The Tribunal considered this document to be of “dubious worth” (CB132.7). But it then said, and gave reasons for this:
“However, the Tribunal considers that, even taken at face value, the village committee notice does not assist the applicant. It does no more than to inform the villages of the planned military manoeuvre. The Tribunal accepts that the PLA conducts such manoeuvres in Pingtan Island, and that it did so during late July and early August 2006. It also accepts the declaration of a restricted zone around the applicant’s village inconvenienced her and her family. However, it does not accept that this inconvenience amounts to persecution. The notice does not of itself demonstrate whether or not the exercises resulted in any damage” (CB 132).
I cannot see that the Tribunal’s reasoning reveals error on its part.
The fact that the Tribunal, had difficulty in accepting the applicant’s explanation as to the provenance of the documents submitted in support of the daughter’s student visa (and guardian visa) application, does not bind the Tribunal not to subsequently consider any other document “at face value”. Nor was it illogical or unreasonable of the Tribunal to separately find that the document from the village committee` even taken “at face value” did not assist the applicant. The Tribunal’s findings in this regard were plainly open to it given what is stated on the face of the document. In short even if the document was genuine, it would still not assist the applicant. This complaint also does not succeed.
Particular 8
At particular eight the applicant restates the complaints in summary form made and it reflects what is stated in the stated ground of the application.
Conclusion
None of the particulars are made out. As the ground as stated was merely a heading or a summary of the complaints made in the particulars, the ground before the Court is not made out.
For the applicant to succeed before the Court, the Court would need to discern jurisdictional error on the part of the Tribunal’s decision.
I cannot see such error as it is said to arise from the applicant’s complaints put before this Court, nor otherwise. The application therefore is dismissed.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S. Polley
Date: 1 June 2009
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