SZOAK v Minister for Immigration - [2010] FMCA 104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAK v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 104

MIGRATION – Review of RRT decision – applicant a citizen of China – where claim based on adherence to Falun Gong including practice in Australia – where witness claimed to have met applicant “around” April or May 2009 but misquoted by the Tribunal in its decision as “in” April or May – whether mistake relevant to ultimate decision – where witness unable to recall when she had met applicant despite it not being more than 3 months prior – whether Tribunal entitled to dismiss witness’ evidence as unreliable on that basis – whether Tribunal did dismiss the evidence or simply failed to reach required state of satisfaction in all the circumstances.

Migration Act 1958 (Cth), s.91R(3)

Applicant WAEE v Minister for Immigration [2003] FCAFC 184
SZDFZ v Minister for Immigration [2008] FCA 390
SFGB v Minister for Immigration [2003] FCAFC 231
QAAA of 2004 v Minister for Immigration [2007] FCA 1918
NASA v Minister for Immigration [2005] FCA 653
WAIJ v Minister for Immigration (2004) ALD 568
Fox v Percy (2003) 214 CLR 118
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant:

SZOAK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2760 of 2009

Judgment of:

Raphael FM

Hearing date:

17 February 2010

Date of Last Submission:

17 February 2010

Delivered at:

Sydney

Delivered on:

23 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2760 of 2009

SZOAK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. On 21 April 2009 he jumped ship and on 22 May 2009 he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa having been placed in immigration detention. On 3 July 2009 a delegate of the Minister determined to refuse the applicant a protection visa and on 5 August 2009 he applied to the Refugee Review Tribunal for review of that decision. The applicant attended a hearing of the Tribunal at which he produced two witnesses. On 15 October 2009 the Tribunal determined to affirm the decision under review and advised the applicant on 16 October 2009.
The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was that of religion/membership of a particular social group arising out of his membership of and adherence to Falun Gong. In his PVA [CB 31] he told that he had been practising Falun Gong in China since December 2005. He started to practice because he had received a lumbar injury at work and his aunt suggested that practising Falun Gong would assist in the alleviation of his pain. He practised at first with his aunt and later at home. Although his aunt had had problems in China, having been arrested and detained for six months in 1999, the applicant did not have any problems until 2008 when he accidently told members of the crew of his ship that he was an adherent. He claims that his confession was reported to the captain. He was friendly with this particular captain who held him in high regard as a cook and the applicant says that apart from warning him off the organisation and suggesting that he cease to practise the captain did nothing. The applicant claimed that towards the end of 2008 or the beginning of 2009 officers of the PSB came to his home to warn him to stop practising Falun Gong. He also claimed that when he joined a ship docked in Japan he found that the crew was the same as that on the previous ship save for the captain. At the beginning of February 2009 members of the crew reported him as a Falun Gong practitioner and he was taken aside by the captain and the political committee member who on several occasions tried to dissuade him from the practise of Falun Gong. He claimed that they offered him membership of the Communist Party should he do so and threatened him with the cancellation of his seamen’s certificate if he did not. He says that he was locked up in solitary confinement for 10 days and was not given food or water for two or three days at a time. Because of this treatment he jumped ship in Australia on 21 April. He was arrested shortly after and placed in immigration detention. In May 2009 the applicant claims his home was again visited by the PSB who were looking for him.
The applicant produced two witnesses at the hearing. Their evidence is dealt with by the Tribunal at [52-56] [CB 109]. It is set out in full because it is this evidence and the Tribunal’s reaction to it that forms the basis of the applicant’s claim that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.
“Oral evidence of witness Ms Zhivi Sheng:
The witness said that she had come to know [the applicant] while she was distributing the New Epoch newspaper, but also while they were in protests together. They had first met around April or May 2009 in Chinatown. She said that when she was distributing the above newspaper early one morning, the applicant came along and immediately began helping distribute it.
Of his involvement in protests, she said that he had taken part in every activity. She referred to two in particular, one in a park near Central Station and the other near Chinatown. The protests were about the persecution by the Chinese Communist Party of Falungong practitioners. He was also involved in a parade from Town Hall to Chinatown, whose purpose was to persuade people to quit the CCP. There were also a few occasions when he was practising and distributing newsletters all day in Martin Place. She had seen him there doing Falungong exercises from 6:30 p.m. to 10 p.m. in a Burwood church, which they rented for the purpose. The applicant had done all these types of activities from April 2009 until the present. He also distributed the Epoch Times from 7 a.m. to 10 a.m. every second Friday, and every second Tuesday, at Central Station and at Town Hall. She stated that the newspaper was independent and disclosed facts about the persecution by the CCP of dissident groups including Falungong.
Oral evidence of witness Ms Mei Fen Wang
The witness said that she had first met [the applicant] when he was distributing newspapers, when he first came here. She said she was unsure when she had met him but it was at some point in 2009 and she thought was less than eight months ago. She told the Tribunal that she had seen [the applicant] engaged in all Falungong-related activities, being distributing newspapers, doing the exercises, taking lessons in Falungong practice and taking part in major Falungong protest events. As to how familiar he had appeared to be with Falungong practice when she first saw him taking lessons, she said she did not know and could not tell.”
The Tribunal set out the evidence given by the applicant at the hearing and the concerns which the Tribunal raised with him. Those concerns are not the subject matter of these proceedings but the Tribunal came to the conclusion that for the reasons given in relation to his evidence it could not be satisfied that he was, or had been in China, a genuine Falun Gong practitioner. The Tribunal’s findings and reasons commence at [107] [CB 118] and continue to [121] [CB 120]. The Tribunal was unconvinced by his claims concerning visits from the PSB and his ability to avoid serious punishment once it became known that he was an adherent. At [115] the Tribunal says of the events on board ship that:
“His account relies on a series of unlikely events and coincidences. These are
·    That he would have been detained on board ship for 10 days, given that detaining him would have been seemingly pointless and indeed detrimental to the operations of the ship: he could not have escaped from a ship at sea and his ability to perform his role as the sole chef on board would thus have outweighed the importance of detaining him;
·    That he was allowed to leave a locked cabin to collect his pay from the captain’s office, where he happened to see a document reporting his Falun Gong link to individuals in China; and
·    That he was able to get the assistance of crew members and escape from the locked cabin as soon as the ship docked in Australia.”
At [109] [CB 118] the Tribunal discussed its views upon the evidence given by the two witnesses.
“I have also had regard to his evidence to the Tribunal that he was detained the day after his arrival in Australia on 21 April 2009 and was released from the IDC on 23 June 2009. Therefore I do not consider reliable the evidence of his witness Ms Zhiyi Sheng that she met him in Chinatown in April or May 2009 and that he was involved in Falungong related activities, including protest activities, at that time. He himself told the Tribunal that he was unsure whether his account or hers was correct with regard to the month in which they met. The other witness, Ms Mei Fen Wang, was so vague as to when she first met him that I also consider her evidence to be unreliable when she claims to have seen him participating in numerous Falungong related activities in Australia. He has submitted two photographs of himself standing among what appear to be Falungong practitioners. However these show no more than that he was present, and do not illustrate any particular level of involvement. Apart from the oral evidence of these two witnesses, and the two photographs, there is not evidence that [the applicant] has been actively involved in any Falungong-related protest activities in Australia. I am not satisfied that he has been.”
And in summary the Tribunal said at [116] [CB 119]:
“Having regard to all of the concerns I have set out above, I am not satisfied that [the applicant] was a Falungong practitioner in China, nor that he was identified as a Falungong practitioner while on board ship in early 2009. I have not accepted that he was genuinely or actively involved in any protest activities in Australia against the Chinese government. If he has participated in any Falungong related conduct since his arrival in Australia I am not satisfied that he has done so for any reason other than to strengthen his application for a protection visa. I have therefore disregarded that conduct in considering whether he has a well founded fear of Convention-related persecution in China.”
At the hearing on 17 February 2010 the applicant filed in Court an amended application under the Migration Act 1958 (Cth) (the “Act”). The grounds of the application are:
“1. The Tribunal fell into jurisdictional error in rejecting the corroborative evidence of two witnesses who gave evidence for the applicant, being Shiyi Sheng and Mei Fen Wang.
Specifically:
a) Shiyi Sheng gave evidence at the hearing on 30 September 2009 that she first met the applicant “around April or May 2009”: see [53]. While it is undisputed that Shiyi Sheng could not have met the applicant until he “was released from the IDC on 23 June 2009” (see[109]), the Tribunal first asserted that Ms Sheng said that she first met the applicant “in April or May 2009” (see [109]) (which is an error by the Tribunal because Ms Sheg said that she first met the applicant around April or May 2009) and then reasoned (see [109]) that because of the asserted minor inconsistency in Ms Sheng’s recollection on this point her entire evidence was “not… reliable”. Such reasoning is irrational, illogical or not based upon findings or inferences of fact supported by logical grounds.
b) Mei Fen Wang gave evidence at the hearing on 30 September 2009 that “she was unsure when she [first met the applicant] but it was at some point in 2009 and… less than eight months ago”: see [53]. The Tribunal reasoned that Ms Wang “was so vague as to when she first met him that I also consider her evidence to be unreliable”: see [109]. Such reasoning is also irrational, illogical or not based upon findings or inferences of fact supported by logical grounds.”
The applicant argues that when the Tribunal said at [109] “that she met him in Chinatown in April or May 2009 and that he was involved in Falun Gong related activities including protest activities at that time” it made an incorrect finding which had no basis in evidence. That is because the witness’ evidence was that she had met him about April or May 2009. There is incontrovertible evidence that she could not have met him in either of those months because at that time the applicant was in immigration detention and he was not released from Villawood until 23 June 2009. The hearing before the Tribunal took place on 30 September 2009, only three months after the applicant was released. I do not have the benefit of a transcript so I do not know whether the witness was questioned about the dates upon which she says that she first met the applicant. But I am unable to say that there really is a distinction between a finding that the witness met the applicant in April or May and the witness met the applicant around April or May. It is to be remembered that Tribunals are required to provide their grounds of decision within a short time period following a hearing. They have several hearings a week and are obliged to type their own decisions. There is probably little time to review these decisions and it would take a Tribunal Member with an eye attuned to error to spot the difference between the two findings.
“The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.”
Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46].
The cases where a Tribunal is found to have fallen into jurisdictional error because it made its decision based upon factual findings not supported by evidence such as: SZDFZ v Minister for Immigration [2008] FCA 390; SFGB v Minister for Immigration [2003] FCAFC 231; QAAA of 2004 v Minister for Immigration [2007] FCA 1918; NASA v Minister for Immigration [2005] FCA 653 are all cases where the finding was significant on its face and did not require considering distinctions in phraseology. For example, in SZDFZ the Tribunal made credibility findings based on the inability of the applicant to specify when the national conference of the Awami League was to be held, beyond saying “2006”. In fact, the applicant was never asked about when the conference was to be held and never said that it was to be held in 2006. In SFGB the relevant misapprehension of the facts related to whether or not the Taliban were still viable in the area of Afghanistan from which the applicant came. In QAAA of 2004 it was whether the Iranian authorities would have little or no interest in the applicant because he “only reached the relatively low rank of airman” during his service in the United States Navy. In NASA the Tribunal made a series of misrepresentations of the evidence which were critical to the Tribunal’s view of the applicant’s involvement with his church and therefore the likelihood of his becoming a religious activist if returned to China. In each case, the erroneous findings of fact were clearly critical to the ultimate decision.
But the applicant has an additional point. He says it is inappropriate for a decision maker to dismiss the evidence of a witness merely because the witness’ evidence on one matter turns out not to be correct. The applicant argues that the decision maker should consider each matter upon which the witness has given evidence and, in relation to each, decide whether or not to accept the evidence. But if it decides that a witness’ evidence as a whole is not reliable, it should provide cogent material to support such a conclusion; WAIJ v Minister for Immigration (2004) ALD 568 at [27]. The applicant argues that there is a lack of cogent material in relation to Ms Sheng’s evidence as the Tribunal’s views of her as a witness were based upon its misapprehension of her evidence. I do not think the Tribunal did misapprehend her evidence. It provided a cogent reason why it did not believe her evidence; she was not reliable and that was because she really could not be sure when she had met the applicant.
But to my mind there is a more important issue at play. That is that the consideration of the witness’ evidence went to the Tribunal’s findings in relation to s.91R(3). Section 91R(3) requires an assessment by the Tribunal as to whether the actions of an applicant within Australia were taken otherwise than for the purpose of strengthening the person’s claim to be a refugee. The Tribunal’s conclusion in relation to the evidence of the two witnesses was that it did not satisfy him that the applicant had been “actively involved in any Falun Gong related protest activities in Australia” [109] [CB 118] or “that he was genuinely or actively involved in any protest activities in Australia against the Chinese government” [116] [CB 119-120]. The Tribunal does not find that the applicant did not attend the protests, only that the witnesses’ evidence when weighed against the unsatisfactory evidence of the applicant himself did not allow it to come to the requisite state of satisfaction required by s.91R(3). In regard to the second witness’ evidence, she could not recall when she had met the applicant, saying only that it was at some point in 2009, “less that eight months ago”. Again, given that she was giving evidence only three months after the first date on which she could possibly have met the applicant, it was open to the Tribunal to make a finding that her evidence was vague. Vagueness is an attribute not only of the words spoken but the manner in which the evidence was delivered. The Tribunal, as any judicial or quasi-judicial office holder is entitled to do, can take into account the demeanour of the witness; Fox v Percy (2003) 214 CLR 118. But even if it is just the words as reported alone without any views as to the witness’ demeanour that caused the Tribunal to conclude that she was being vague, I could not say that it constituted a bare statement by a decision maker that the claimed circumstance is not credible or implausible, cloaking the failure of the decision maker to address and resolve a material question of fact; W148/00A v Minister for Immigration (2001) 185 ALR 703 at [37] per Lee J.
I am satisfied that the Tribunal was aware of the task that it had to undertake. At [116] [CB 120] it says:
“If he has participated in any Falun Gong related activities since his arrival in Australia, I am not satisfied that he has done so for any reason other that to strengthen his application for a protection visa. I therefore disregarded that conduct in considering whether he has a well-founded fear of Convention related persecution in China.”
For these reasons, I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it came to its decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,800.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 23 February 2010