SZOCS v Minister for Immigration
[2010] FMCA 294
•29 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 294 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no bias or apprehension of bias – Tribunal put the applicant on notice of determinative issues – no failure to consider claims – Tribunal made findings of fact as decision maker “par excellence” – applicant seeking impermissible merits review – findings open to Tribunal on what was before it – no obligation on Tribunal to conduct further inquiries – Tribunal entitled to reject applicant’s evidence – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 424AA, 476 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 VQAB v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SZJKU v Minister for Immigration and Citizenship [2008] FCA 308 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 300 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 |
| Applicant: | SZOCS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 139 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 April 2010 |
| Date of Last Submission: | 22 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2010 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | - |
| Appearing for the Respondents: | Mr J Pinder |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 25 January 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 139 of 2010
| SZOCS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 25 January 2010, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 December 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 10 April 2009. He applied for a protection visa on 20 April 2009. (See Court Book – “CB” – CB 1 to CB 34, including annexures.) The applicant was represented by a migration agent (Mr Harry Huang of Pricilla International – CB 26).
Claims to Protection
The applicant’s claims to protection are contained in his application for a protection visa and a statutory declaration of 20 May 2009 (CB 42 to CB 45).
The applicant claimed to fear persecution from the authorities in China, particularly the Public Security Bureau (“PSB”), because of his involvement in organising a protest against the Communist regime in China.
He claimed that in March 2005, “four drunk police” officers from the PSB caused a car accident involving his father and brother. His father died. His brother took legal action against the police. In October 2005, the PSB arrested his brother and sent him to a labour camp, where he was forced to accept reform through labour for three years.
In October 2007, his sister-in-law was seriously injured at work. His other brother took steps to obtain compensation for her. This prompted the PSB and corrupt police to “frame” him for inciting a workers’ strike and disturbing “normal social orders”. In 2008, this brother was also arrested and “forced to accept 3-year reform through labour.” He was still in prison.
Between April 2008 and January 2009 the applicant organised a group of relatives and friends to distribute pamphlets protesting against the corrupt Communist dictatorship. He left China after realising police were investigating the distribution of these pamphlets. He subsequently came to the attention of the authorities. Police searched his home and the PSB questioned his wife. He is now on a “wanted” list.
The Delegate
The applicant attended an interview with the delegate at which he provided a number of documents (See CB 130 to CB 131.) The delegate found him not to be a credible witness because of implausibilities in his claims, a lack of substantiation, inconsistencies between his documentary material and country information, and the rehearsed nature of some of his responses. Having made these findings, the delegate rejected the authenticity of the corroborative evidence. His application for a protection visa was refused (CB 68 to CB 81).
The Tribunal
The applicant applied for review to the Tribunal on 31 August 2009 (CB 83 to CB 86). The applicant appointed the same migration agent to assist him before the Tribunal.
The applicant was invited to attend a hearing scheduled for 13 November 2009 (CB 92 to CB 93). This was subsequently rescheduled to 3 December 2009 at the applicant’s request (CB 100 to CB 101). The applicant attended on that date. Mr Huang also attended (CB 111 to CB 112).
The Tribunal’s account of what occurred at the hearing is set out in its decision record ([42] at CB 135 to [90] at CB 146). At the hearing the Tribunal reports that it variously put its concerns to the applicant about the credibility and, in part, the plausibility of his claims and evidence. (See, for example, and in particular, [53], [55], [60], [62]-[64], [68]-[69], [74]-[75], [77].)
At the hearing the Tribunal specifically raised the following concerns with the applicant:
1)Discrepancies between his claims and documents he had produced, particularly in relation to his brothers’ detentions ([79]-[81]).
2)The authenticity of the documents he had produced in light of advice from the Australian Department of Foreign Affairs and Trade about the widespread availability of forged documents in China and the ease with which such documents could be bought ([82]).
3)Discrepancies between his evidence at the hearing and what he told the delegate about the distribution of the claimed anti-government pamphlets ([83]-[85]).
4)The applicant’s implausible evidence concerning the arrests on two separate occasions of friends under the same circumstances, and further, the inconsistency in his evidence as to the claimed length and nature of their detention ([86]-[87]).
The Tribunal plainly had s.424AA in mind when it explained the relevance to the review of the “information” it had just provided to the applicant, invited his comment or response, and gave him further time to respond in writing ([78] and [88]-[90]). The Tribunal made it clear that the relevance of what it had just said was that it might not accept that he was telling the truth in the factual claims he had made ([88] at CB 144).
In this way, the Tribunal addressed what turned out to be the determinative issue in the review. That is, the rejection of the truth of the applicant’s factual account of what he said had occurred in China. Even though it is clear that the credibility of his factual account was an issue arising from the delegate’s decision, and therefore did not need to be put to him (SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35]).
Following the hearing, the applicant submitted a statutory declaration in response to matters raised by the Tribunal at the hearing. (The statutory declaration appears at CB 117 to CB 120.)
The Tribunal rejected the applicant’s claims because it did not believe that he was a witness of truth. This was based on:
1)Inconsistencies and discrepancies between the documents he put to the Minister’s department, and his various claims and evidence at the hearing ([99]-[104]).
2)Inconsistencies between what he said at the hearing and what he had said at the interview with the delegate, particularly in relation to the claimed distribution of the pamphlets ([105]-[113]).
3)Implausibilities and further inconsistencies in various aspects of his claims, in particular, in relation to the arrest of his friends. The Tribunal found this was a fabricated “story” ([114]-[122]).
The Tribunal found the applicant not to be a witness of truth. In light of this, and in light of country information about document fraud in China, the Tribunal did not consider the documents he submitted in support of his claims to be genuine ([127] at CB 153).
Given its findings above, the Tribunal did not accept the applicant’s factual account as to relevant events in China and found that there was not a real chance that he would be persecuted for any Convention reason if he were to return. It therefore affirmed the delegate’s decision.
The Application to the Court
The application purports to raise five grounds before the Court. Much of what is presented appears to be by way of submission, argument, or explanation in purported answer to the Tribunal’s findings.
Before the Court
The applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Mr J Pinder appeared for the Minister. Written submissions had been filed on behalf of the Minister.
At the hearing the applicant repeated much of what he had already put before the Court in his application. He submitted that:
1)The Tribunal did not consider his claims “impartially and independently”. It “cavilled” at his application and intentionally found fault with his claims. The applicant pointed to the Tribunal having found differences between the terms “labour camp” and “prison”. He submitted that “ordinary Chinese people” would not see these as different terms. Therefore, he did give a “sufficient account” and the Tribunal was wrong to find otherwise.
2)The Tribunal found that the Prison ID Card he had submitted was a “fake”. He complained that it found that the card was for the purpose of his brother visiting others in prison. He submitted that there was “sticky tape” on the card which covered the relevant name on the card. He submitted that just because the Tribunal considered that there was widespread document fraud in China, did not mean that his document was fraudulent. It was pointless for him to provide further material because the Tribunal had already made up its mind. He would not have told the Tribunal that his brother was imprisoned if it were not the case.
3)The Tribunal did not believe that his father had been in a car accident.
4)The delegate’s finding that he only lodged his protection visa application to get a “work visa” was “insulting”. The delegate did not want to give him an opportunity to make his claims at the interview. This made him upset and angry.
5)The Tribunal asked him at the hearing why he had not provided certain details to the delegate at the interview. The applicant submitted that the reason for this was that the delegate “cut him off” and he was therefore unable to give his “evidence”.
The first two submissions above relate to grounds one and five respectively. They add nothing of substance to what is set out in the application to the Court. They are dealt with below.
The applicant could not point to any part of the Tribunal’s record which showed that the Tribunal did not believe his father had been in a car accident. Nor could I otherwise see that this was a part of the Tribunal’s reasoning in determining the review.
It may be that the applicant confused the Tribunal with the delegate. The delegate’s account of the interview that he conducted with the applicant makes reference to the claimed loss of the father’s death certificate, which may have provided information about the cause of the father’s death. The delegate found the applicant’s explanations for the loss to be adverse to the applicant’s credit. (See CB 80.4 to CB 80.7.)
If this is what the applicant referred to before the Court, then it clearly does not show error on the part of the Tribunal.
Similarly, the applicant’s complaint about the delegate’s finding that he only applied for a protection visa to obtain a “work visa”, does not reveal jurisdictional error on the part of the Tribunal. Noting, in addition, that the delegate’s decision in this case is a “primary decision” for the purposes of s.476 of the Act, and therefore not susceptible to review by this Court.
For this reason, the applicant’s complaint about what he says occurred at the interview with the delegate does not, on its face, assist his application to the Court.
It may be that the applicant is now seeking to explain any deficiencies in his claims as they emerged before the delegate.
At the hearing before the Tribunal the applicant was asked about details involving the claimed distribution of anti-government pamphlets ([57]-[59] at CB 138). The Tribunal indicated to the applicant that it was having difficulty in understanding what he was claiming had actually happened in relation to the distribution ([60] at CB 139).
In response to his explanation the Tribunal put to the applicant that the relevant details that he was seeking to put to the Tribunal were inconsistent with what he had told the delegate ([61] at CB 139 to [67] at CB 140).
Importantly, there is nothing in the Tribunal’s account of what relevantly occurred to show that the applicant made any complaint about not being given enough time at the interview with the delegate to provide details. In fact, the applicant stated that: “… he had forgotten to tell …” the delegate certain details and that “… He said that probably at the interview he had not made himself understood” ([62] at CB 139, and also [83] and [84] at CB 144). Further, that at the interview he “… might have made an error” ([84] at CB 144).
Ultimately, in his written comments after the hearing the applicant conceded that there were inconsistencies between what he told the delegate and the evidence he gave the Tribunal ([12] at CB 119.4).
But his explanation was not that he had not been given adequate time to provide details but that he had been under “huge pressure” and was “strongly impressed” that the delegate had prejudiced his case ([13]-[14] at CB 119). Further, that there were difficulties for him in that he could not communicate directly but had to use an interpreter.
The Tribunal understood the applicant’s explanations and submissions in this regard. (See [94] at CB 146.) The Tribunal considered the applicant’s submissions in this regard but rejected this as adequate explanations for the inconsistencies ([110]-[113] at CB 150).
In all, these findings were open to the Tribunal to make on what was before it. The Tribunal gave cogent reasons for this. This complaint does not reveal error on the part of the Tribunal.
Consideration
Ground One
Ground one asserts that the Tribunal failed to consider the applicant’s review “independently, impartially and properly”. The applicant emphasised this before the Court. If by this, the applicant means to assert that the Tribunal acted in bad faith , or that there was bias, or an apprehension of bias, it is the case that such claims need to be clearly made and supported by evidence, such that they can be distinctly proven (Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102 – “VFAB”, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
It is a rare circumstance that such matters can be made out with reference to the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs 2002] FCA 668 per von Doussa J at [38]). The applicant has not put any transcript of the Tribunal hearing before the Court. On what is before the Court, I can only agree with the Minister’s submission that the Tribunal approached its task with an open mind. On what is before the Court, there is no basis for such allegations to be made out.
I also note that allegations of an apprehension of bias must have regard to the standards of reasonableness, which are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32]). There is nothing on the material before the Court to support, let alone make out, such a complaint.
As Mr Pinder submitted, the Tribunal prepared a written statement of some depth and substance. The Tribunal plainly understood the applicant’s claims. He was clearly on notice as to the matters of concern and, importantly, as to the issue determinative of the review. That is, the credibility of his factual account of what he said had relevantly occurred in China.
That the Tribunal did not accept his explanations for the deficiencies, inconsistencies and implausibility of his evidence and claims, does not, of itself, and without anything else, form a basis for the applicant’s allegations now. At best, his complaint now, as presented, can only be seen as a request for impermissible merits review.
If the applicant also means to assert that the Tribunal failed to consider his claims more generally, I note that a failure to deal with an applicant’s claim, or an integer of an applicant’s claims, either expressly made or arising from the material, can lead to jurisdictional error. But the Tribunal is not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before the Tribunal (Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]).
I cannot see that the Tribunal failed to consider the applicant’s claims as put, nor arising from the material before it.
The applicant takes issue with the Tribunal having “deliberately picked or found fault” with his evidence and claims. The relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention. In such circumstances, a protection visa must be granted (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). In discharging its function as the “decision-maker par excellence” (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J. at [67]), the Tribunal is required to evaluate the applicant’s evidence and other information put before it, and to then reach (or not reach) the requisite level of satisfaction.
The answer to this complaint is that the Tribunal is not obliged to uncritically accept the applicant’s evidence and claims arising from her factual account (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265).
Nor does vigorous questioning or testing of an applicant’s evidence at a hearing, on its own, reveal bias on the part of the Tribunal, or give rise to an apprehension of bias (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [31]). Nor is there any evidence of any imprudent or intemperate comments or observations by the Tribunal (SZJKU v Minister for Immigration andCitizenship [2008] FCA 308 per Emmett J at [36]).
Ground one is not made out.
Ground Two
In ground two the applicant seeks to explain inconsistencies between what was claimed in his protection visa application, his statutory declaration of 20 May 2009 (CB 42 to CB 45), documents he produced at the interview with the delegate, and at the hearing with the Tribunal.
The applicant specifically seeks to explain the inconsistencies in his claims and evidence regarding the exact nature of his brothers’ claimed detention. The question was whether each brother was sent to a “prison” or to “a labour camp”. The applicant now seeks to provide an explanation that in the eyes of “ordinary people”, prison and labour camps are the same. Even though he also concedes that the concepts of “being imprisoned for 3 years at the prison” and “accepting 3-year reform through labour in the labour camp” are different.
The applicant also concedes in his pleading that “accurately speaking” he made a mistake both in his application and his statutory declaration. The applicant also asserts that the relevant documents he produced show that his eldest brother was imprisoned, and the contrary assertion in his statutory declaration must have been a “slip of the typing”.
The difficulty for the applicant now is that these discrepancies and inconsistencies were specifically raised by the Tribunal at the hearing in relation to both his brothers. Specific reference was made to the relevant documents produced by the applicant. (See, in particular, [46]-[55].)
Further, at the hearing the Tribunal clearly put this matter to the applicant (see [79]-[81]) and gave the applicant the opportunity to comment ([89]-[90]). An opportunity which the applicant subsequently took up in his statutory declaration of 24 December 2009. (See CB 117 and CB 118.)
The explanation that the applicant now seeks to put before the Court is the same explanation that he gave the Tribunal as to the inconsistencies. The Tribunal specifically took the applicant’s explanation into account ([101]-[102]).
The applicant also concedes in his pleading that the discrepancies existed and were due to some typing mistake in both the application and his first statutory declaration. No error as to inadequate interpretation or mistranslation is asserted.
If this is a complaint that the Tribunal should have found that there were no substantial differences between “prisons” and “labour camps”, this cannot assist the applicant. Findings of fact are for the Tribunal to make as the decision maker “par excellence”. Simply, the Tribunal did not accept the applicant’s explanation for the discrepancies. These findings were open to the Tribunal to make on what was before it.
In all the circumstances the applicant was put on notice at the hearing as to the inconsistencies in his claims and evidence in this regard. Its relevance to the outcome of the review was explained to him. He was given the opportunity to explain. The Tribunal rejected his explanation. No jurisdictional error is revealed where these findings were open to the Tribunal to make on what was before it and the Tribunal complied with its procedural fairness obligations. As the Minister submits, this ground does not rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
This ground does not reveal jurisdictional error.
Ground Three
In ground three the applicant seeks to explain inconsistencies in what he said at the interview with the delegate and evidence he gave at the hearing regarding the distribution of his anti-corruption pamphlets. The applicant complains that he was under “great pressure” at the interview such that he “felt nothing” in his “brain”. Second, that the delegate was biased (“… had already reached decision before interview”). Third, that there was some difficulty in his giving evidence at the interview because it was difficult to communicate through an interpreter.
The applicant now submits that it was for this reason that he made mistakes in what he said about the distribution of pamphlets.
To the extent that the applicant is alleging error on the part of the delegate, I note, as set out above, that the delegate’s decision is a “primary decision” as defined in s.476 of the Act. That decision is reviewable, and in fact was reviewed under Part 7 of the Act. As such, this Court lacks jurisdiction in relation to the delegate’s decision (s.476(2)(a)).
The difficulty for the applicant now in showing error on the part of the Tribunal is that, as already referred to above and as with the matter immediately above, the claim regarding his distribution of pamphlets was raised, and extensively discussed, at the hearing with the Tribunal. The applicant was put on notice that the inconsistencies and deficiencies in his evidence as they arose in part from what he told the delegate were of concern to the Tribunal. (See [83]-[85] at CB 144.)
The applicant sought to explain these inconsistencies in his response to the Tribunal’s opportunity to comment (CB 119). The explanations given now were the same as those put before the Tribunal. The Tribunal considered these explanations ([111]-[113]). It ultimately found that it did not accept that the applicant was “inhibited” before the delegate. The Tribunal’s finding was open to it on what was before it. It gave reasons.
In all, therefore, I agree with the Minister that this complaint does not rise above a request for impermissible merits review.
Ground Four
Ground four can only be seen as, at best, a submission clarifying certain claims before the Tribunal relating to the arrest of his two friends, and the distinction with the arrest of his relative.
These matters, again, were discussed at the hearing. The Tribunal’s concerns about his evidence and claims were squarely put to him ([86]-[87]). Again, the relevance to the Tribunal’s decision was explained.
As with the other matters, the applicant put these in his response and explanation in writing. (See CB 119 and CB 120.) The Tribunal did not ignore the applicant’s explanation and response. Rather, it formed the view that the applicant’s evidence was difficult to believe. His explanations were found not to be credible ([114]-[122]). Again, these findings were open to the Tribunal on what was before it. No error is revealed.
Ground Five
The complaint in ground five encompasses the matter of false documentation generally, and specifically seeks to explain his evidence and challenges the Tribunal’s finding in relation to a prison visitor “ID” card. This complaint was also the subject of oral submissions before the Court.
The Tribunal had generally put its concerns about the documents presented by the applicant in support of his claims to him at the hearing. One of these documents was a “Prison Visitor ID Card” (CB 57), which the applicant had provided in support of his claim that at least one of his brothers had been imprisoned. This factor was part of the broader matter of the claimed arrest and detention of his two brothers and whether they had been sentenced to imprisonment or forced labour through re-education.
This was discussed at the hearing ([52] to [55]). The deficiencies with the card were put to the applicant for comment at the hearing ([81]), as was the general country information about document fraud in China ([82]).
Again, the applicant provided an explanation directed to the Tribunal’s concerns. (See CB 118.) Again, it is the same explanation that the applicant now puts before this Court. To that extent it is an attempt, again, at impermissible merits review.
The applicant also complains that the “Prison Visitor ID Card” that he produced to the Minister’s Department to corroborate his claims had a sticker over part of the text on the card, and that it was therefore not “translated by the translator, properly and accurately”.
The Tribunal specifically considered the ID card in its analysis, ultimately rejecting the authenticity of the document because of the DFAT information as to documents fraud in China, and its finding that the applicant was not a witness of truth ([127]).
In relation to the complaint about the translation, the Tribunal found that the translation had been done by a “NAATI” accredited interpreter. Further, the applicant himself (with the assistance of an agent) had provided the translation to the Tribunal.
If this is also a complaint that the Tribunal should have conducted some other sort of inquiry to otherwise verify the accuracy of the card, it is not for the Tribunal to make out an applicant’s case (VCAK of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 459 and NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 300). Nor can I see that the circumstances are such that required the Tribunal to undertake obvious enquiries (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123).
In this ground the applicant also acknowledges that false documents “may easily be manufactured or obtained according to independent country information”. However, he states that the documents he gave to the Tribunal are “definitely genuine”. This again invites merits review by the Court. As to the question of weight or the authenticity of documents, this is a matter for the Tribunal. I can see no error in how the Tribunal approached this question.
In the circumstances it was certainly open to the Tribunal, for the reasons that it gave, to reject the proposition that the documents were genuine. Given its implicit rejection of the applicant’s credit, it was open to the Tribunal to find that any documentary corroboration produced in support was also not genuine. This was strengthened in light of the DFAT advice.
As to the remainder of ground five, the applicant’s insistence now that he is telling the truth about his brother’s imprisonment can, in the circumstances, again, only be seen as a challenge to the Tribunal’s relevant findings which were open to it.
Conclusion
For the applicant to succeed, the Court would need to see jurisdiction error (at least) in the Tribunal’s decision. I cannot see such error. Therefore, the application is to be dismissed.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 29 April 2010
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