SZNSP v Minister for Immigration

[2009] FMCA 1143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSP v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1143

MIGRATION – Review of decision of RRT – whether Tribunal can give no weight to corroborative material where it has not, objectively, concluded that the applicant’s evidence was ‘poisoned beyond redemption’.

NADH of 2001 v Minister for Immigration (2004) 214 ALR 264
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs 2003 198 ALR 59
SZDGC v Minister for Immigration [2008] FCA 1638
SZGYT v Minister for Immigration [2009] FCA 705
SZMSB v Minister for Immigration [2009] FCA 373
SZMYI v Minister for Immigration [2009] FMCA 770

Applicant: SZNSP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1589 of 2009

Judgment of: Raphael FM

Hearing date: 11 November 2009

Date of Last Submission: 11 November 2009

Delivered at: Sydney

Delivered on: 11 November 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 12 June 2009.

2. A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.

3. No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1589 of 2009

SZNSP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 29 November 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 16 December 2008.  On 24 February 2009 a delegate of the Minister refused to grant the protection visa and on 6 March 2009 the applicant applied for review of that decision from the Refugee Review Tribunal.  The Tribunal held a hearing which the applicant attended.  On 12 June 2009 the Tribunal determined to affirm the decision not to grant the protection visa and handed that decision down on the same day.

2. The grounds upon which the applicant claimed that she was a person to whom Australia owed protection obligations arose out of her position as a government officer in her hometown.  She said that on 4 September 2008 a visiting delegation of leaders came or was due to come to her department and she was told that she had to “exercise control over Falun Gong activists LMY and ZWB.”  This was a couple who apparently had been known as active Falun Gong practitioners and were always the subject of observation when important events occurred.  The applicant claimed that on this occasion she felt sympathy for this couple and warned them of the impending visit and suggested that they went into hiding in order to avoid being taken into police custody.  The applicant said that her actions were discovered by those in charge of her office and she was told that she would be dismissed from her employment and that she had to go and find the couple and bring them back.  The applicant claimed that she was threatened with detention and that she had been told that the only way to avoid problems was for her to leave China, which she arranged to do reasonably soon afterwards.

3. The Tribunal questioned the applicant about her story and asked her whether she had any documents in support of her claim that she had been dismissed from her employment.  The applicant told that she did not because all her important documents and her jewellery had been left at home with her daughter and her daughter had told her after she arrived in Australia that those belongings had been stolen.  The Tribunal questioned the applicant about the assistance that she gave to LMY and during the course of these discussions confusion arose as to whether the applicant had told that she had assisted LMY alone or LMY and her husband.  The applicant told the Tribunal that she intended to explain to it that she had helped both LMY and her husband but the Tribunal noted that she had not used the plural until the inconsistency had been raised.  The Tribunal questioned the applicant upon her ability to depart China without difficulty and the applicant confirmed that she had departed on her own passport. 

4. The applicant produced by way of corroborative evidence a statement from LMY written in the Chinese script and translated.  The translation is found at [CB 87-88] and the original at [CB 89-90].  The document states relevantly:

   “On a certain day in September 2008, a higher level of authority again would come down for inspection.  As the authority was worried that I would again stand in their way to give them trouble, I was watched.  It was further planned that the local police would detain us later.  On this occasion, the head of local neighbourhood committee  [the applicant] secretly revealed this information to me.  In the evening of the 2^nd I quietly left home under the cover of night and went into hiding for several days.  So I escaped the harassment during the inspection and the police detention as well.  I also had avoided a disaster.

   However when I returned home a couple of days later, I heard that [the applicant] was dismissed from her position because of me.  I was very sad of this news.  I was seized by the strong sense of guilt.  She lost her job because of her help to me.  It is not that easy to find a job in China.

   Now I cannot help her in any other way except writing her this witness statement to prove the truth.  She is a very kind and honest local neighbourhood committee head.  She had helped me family and me.  What I have stated above is true.  I would  be held responsible for any false information made.  It is a well-known in our local area that [applicant] went to Australia because she was dismissed from her work.”

5. In its findings and reasons the Tribunal reviewed the evidence given by the applicant.  It felt that it would be difficult for it to accept that a person in the applicant’s position and with political affiliations (membership of the Communist Party, which the Tribunal accepted) she would want to risk her employment and ill-treatment for someone who was not a close friend or relative or family member.  The Tribunal noted that when it asked her whether she could recall some dates when she went to the house of LMY the applicant had stated that there were “too many.”  The Tribunal felt that this evidence was general and lacked important details. 

6. The Tribunal came to the same conclusion about certain other evidence concerning the previous actions by the local committee with regard to LMY, including her surveillance and her detention.  The applicant responded but the Tribunal came to the view that those responses were general and lacked important details raising doubts about the veracity of her claims.  The Tribunal made the point about the applicant’s confusion between assisting LMY and LMY and her husband and the fact that she had not used the plural until that inconsistency had been raised and the failure to provide any corroborating evidence of her dismissal.  The Tribunal also concluded that the fact that the applicant was able to leave China without difficulty, suggested that she was not of adverse interest to the Chinese authority.  But it seems to me from my reading of [58] of [CB 112] that the Tribunal used this finding not to indicate that the applicant did not have a well-founded fear of persecution but that she could not be believed in her other claims.  At [59] of [CB 112] the Tribunal says:

   “[59] Considered individually and in isolation, the above noted concerns may appear to be minor but when they are considered cumulatively, the Tribunal is satisfied that they are legitimate considerations in reaching an adverse credibility finding.  For the stated reasons, the Tribunal is satisfied that the applicant has fabricated her claims. 

   [60] In support of her claims, the applicant has provided a document purported to be witness statement from LMY.  Given the adverse credibility finding, the Tribunal does not give weight to the document.”

7. On 8 September 2009 the applicant filed an amended application in this court.  In that application she argues that the Tribunal’s decision was affected by apprehended bias and the particulars that are given are:

   “The Tribunal’s findings in regard to the applicant’s credibility were based on minor discrepancies such as the applicant sometimes referring to a person whom she had helped to escape from persecution in the singular, and sometimes in the plural to include the person’s husband.

   The Tribunal refused to give any weight to a corroborating statement because it had already made up its mind that the applicant was not telling the truth.

   A reasonable person could infer from the above that the Tribunal was not prepared to consider the evidence on its merits but approached  the case with a closed mind.  

8. In her helpful written submissions Ms Weston, on behalf of the respondent, deals at some length with that claim.  I agree with her that the applicant has failed to establish that a fair-minded and informed person could reasonably apprehend that the Tribunal may not have brought an impartial mind to bear on this decision; NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 14. I do not believe that apprehended bias can be established merely by the Tribunal’s actions in respect of the corroborative evidence.

9. However, I am not so sanguine about the way in which the Tribunal did treat that document.  This is a matter addressed by Ms Weston in her submissions at [15]:

   “The First Respondent further submits that no other jurisdictional error arises from the fact that the RRT gave no weight to the document on the basis of its finding that the applicant was not a credible witness.  In support of this assertion the First Respondent refers the Court to Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] where the High Court found that the rejection of documents based on the adverse view taken of an applicant’s credit did not involve an error of law.”

   What the High Court said in S20; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs was:

   “In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”

10. It will be noted that the statement made by the High Court, which has frequently been used to justify the type of activity that has occurred here, makes reference to the word “lies.”  It does not give support to a suggestion that corroborative evidence can be ignored when a Tribunal comes prior to consideration of the corroborative material, to a conclusion that the applicant’s evidence cannot satisfy it that the person is one to whom Australia has protection obligations. 

11. In SZDGC v Minister for Immigration [2008] FCA 1638 cited positively in SZGYT v Minister for Immigration [2009] FCA 705 and SZMSB v Minister for Immigration [2009] FCA 373 Finkelstein J said of the passage from S20 that I have extracted:

    [23] …That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.

    [24] For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 74; (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said at [27]:

    Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied ... it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; at [82]- [85] per McHugh, Gummow and Hayne JJ.”

    And at [27] Finkelstein J said:

    “… It is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category.”

12. In the instant case the Tribunal did not find that the applicant had lied.  It found it difficult to believe a number of assertions that she had made but it did believe others.  For example, it believed her important assertion that she was a member of the Communist Party and that she held some government position of the type described by her.  It came to the view that her evidence had been fabricated only after a consideration of the cumulative effect of ‘minor’ concerns.  It should have weighted the corroborative evidence against those concerns because it went to the heart of her claims and confirmed some aspects of the applicant’s story that the Tribunal also accepted, such as her employment by the local government.

13. To my mind reliance on the dicta in S20 has strained that decision almost to the point of breaking.  I think that the views expressed by Finkelstein J provide a timely warning of the concerns that are beginning to arise.  I said as much in SZMYI v Minister for Immigration [2009] FMCA 770 in which I ordered that the constitutional writs issue. Whilst I would not hold up one of my own cases as authority for anything, I do note that the Minister did not appeal my decision.

14. To my mind the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case by its failure to give consideration to the corroborative evidence produced by the applicant prior to its conclusion as to her credibility.  I am satisfied that the respondent had an opportunity to consider this aspect of the matter and did so in its written submissions.  I did not feel there was any necessity to provide the applicant with pro bono legal assistance.  She appears to have had the help of a solicitor who, I suspect, drew the amended application.  I am satisfied that the amended application indicates the nature of the jurisdictional error that I have found even if it was not expressed in quite that manner; and, as I asked Ms Weston specifically whether she had anything further to say regarding paragraph 15 and gave her an opportunity to address me on that subject, I believe that I provided all parties with procedural fairness prior to coming to this conclusion.

15. I order a writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 12 June 2009.  A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.  No order as to costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  19 November 2009