SZQQJ v Minister for Immigration
[2012] FMCA 617
•22 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQQJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 617 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 |
| Applicant: | SZQQJ |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2079 of 2011 |
| Judgment of: | Barnes FM |
| Hearing dates: | 12 June 2012 and 22 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2079 of 2011
| SZQQJ |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 18 August 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in November 2010 and applied for a protection visa in December 2010. In a statement accompanying his protection visa application he claimed that he had been persecuted by the Chinese Government because of his “participation in the secret activities of Christian church”.
He explained that from 2000 on he had taken part in the arrest and interrogation of church members as a member of a patrol team assisting police. However after contact with church members he began to take an interest in Christianity. On Christmas Eve 2005 he had witnessed the assault of a church leader. He wrote to a superior reporting his colleagues’ violence and was fired from his job and threatened by those he had reported.
The applicant claimed that he opened a plastics processing factory in 2006 and that, after exchanges with a Christian employee, during Easter 2007 he gradually joined the secret church to which the employee belonged.
The applicant claimed that “In the eve of charismas (sic) in 2009” the police raided a gathering in a home but that they were warned and set free as there was no evidence to arrest them. He claimed that they continued church activities in secret, but that in August 2010 during his baptism ceremony which was held in his factory, the police arrested the participants. The applicant claimed that he was sentenced to 15 days imprisonment and spent two weeks undergoing “brainwashing education”. He claimed his factory was subsequently closed down by the police as church activities had been held there, that he was left with no source of income and that he was unable to support his family. The applicant submitted a number of documents in support of his application including, relevantly, a document described as a Detention Certificate from the Public Security Bureau of FuQing City.
The delegate of the first respondent rejected the application and the applicant sought review by the Tribunal. The applicant submitted a number of other supporting documents, including a supporting letter from the local church in Sydney and a written submission. He attended a Tribunal hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s record of its reasons for decision which contains a relatively detailed description of what is said to be a “summary” of the oral evidence.
In its findings and reasons the Tribunal summarised the applicant’s claim, as ultimately presented, as a claim that he was a member of a Local Church or “shouter” underground Christian church in Fujian Province in China. He claimed he had experienced past persecution and that he fled China after he was detained because of his religious activities. He claimed to fear future persecution by Chinese authorities due to his religion, the fact that “certain local officials ha[d] a personal and long-standing grudge against him” and also the fact that he had spent time overseas or a combination of these factors.
The Tribunal found, for reasons which it gave, that the applicant was not a reliable, credible or truthful witness. It made that finding having had, as it put it, the opportunity to speak directly with the applicant for several hours at the hearing. The Tribunal had regard to inconsistencies and changes in the applicant’s evidence regarding claimed events and circumstances in China, the circumstances in which he left and his motivations for leaving China, as well as general inconsistencies in his evidence and other concerns.
The Tribunal set out in detail the inconsistent evidence given by the applicant regarding the date of his marriage and the dates of birth of claimed family members. The Tribunal accepted that explanation the applicant provided (to do with the Chinese lunar calendar) may have accounted for some of the differences in dates, but found, at the least, that the inconsistent evidence demonstrated that the applicant was “very careless in ensuring that information provided…was correct”. In light of his admission that in a previous visa application it had been represented that he was married to a different person, the Tribunal did not accept on the basis of the applicant’s inconsistent evidence that he was married and had two children as claimed.
The Tribunal also had regard to the applicant’s claim that he had not considered leaving China before he was detained in August 2010, although his passport had been issued in July 2010. The Tribunal did not find the applicant’s explanation that he thought he would go on a holiday convincing. It was concerned that the earlier issue of a passport to the applicant undermined his claim that he only decided to leave China after his claimed detention and also undermined his claim to have been detained.
The Tribunal also had regard to inconsistencies, contradictions and confusion in numerous respects in the applicant’s evidence about claimed events in China, including the fact that his written statement did not mention the Local Church or a Shouter gathering, yet at the Tribunal hearing he had so characterised his church in China. It also had regard to the fact that in his written statement he referred to Easter and Christmas Eve but that the Local Church or Shouter church did not celebrate Easter or Christmas. Nor did the Local Church have a pastor, contrary to the applicant’s evidence about a pastor conducting the baptism ceremonies. The Tribunal had regard to the applicant’s explanation for why he would link significant events to Christian festivals his church did not celebrate. While it accepted that these festivals were widely known, it did not accept that the applicant would link important events to such festivals if they were not celebrated in his church when he claimed he had never been to a different kind of church. The Tribunal expressed concern on the basis of these internal inconsistencies “that the applicant’s claim that [the] gathering in China was a ‘shouter’ or ‘Local Church’ gathering was a recent invention”.
The Tribunal also found the applicant’s “shifting and inconsistent evidence” about when in 2009 the church gathering was interrupted by police to be of concern. It found that his evidence about his church gatherings in China, in particular the size of such gatherings, was inconsistent and suggested “a willingness on the part of the applicant to tailor or change his evidence in an attempt to explain issues raised”.
The Tribunal was of the view that the applicant’s evidence in relation to claimed harassment by previous colleagues at the Public Security Bureau and the men he had reported had changed in response to questioning. Similarly, it found that his evidence about his preparation for the baptism ceremony he claimed to be about to undertake when detained had also shifted. It was of the view that the shift in the applicant’s evidence and lack of consistent detail about his preparation for such baptism “reflect[ed] poorly on his general credibility”.
The Tribunal also had regard to the brevity and vagueness of the applicant’s responses to questions about his religious beliefs. While the Tribunal acknowledged the stress and difficulty of giving evidence and that there were differences in knowledge and understanding of religion, it considered the “total lack of any detail” in the applicant’s responses undermined his claim to be a committed Christian of any denomination who had regularly attended Christian church gatherings for about two years, including risking his personal safety by continuing to do so after a gathering was raided around Christmas 2009.
The Tribunal concluded that on a cumulative basis those concerns, many of which related to central elements of the applicant’s claims, led it to conclude that the applicant had not been truthful in relation to his experiences in China and his reasons for leaving. The Tribunal rejected the applicant’s claims that he had attended or was associated with the Local Church or Shouter Christian group in China. It found, in light of the absence of reference to this group in his initial written statement and the significant references to Christmas, Easter and a pastor (which were not features of the Local Church in China) and its other credibility concerns, that such claim was not true and was contrived for the purpose of the protection visa application after the preparation of the applicant’s initial written statement.
The Tribunal considered whether the applicant may have been involved in a different type of Christian church in China. In light of the applicant’s insistence that it was a Local or Shouter church, the Tribunal’s firm view that this claim was contrived and its general concerns about the applicant’s credibility, the Tribunal did not accept that the applicant had attended or was associated with any Christian church in China as claimed.
The Tribunal stated that as well as the applicant’s written and oral evidence about events in China it had taken into account evidence that he had attended Local Church gatherings in Sydney and the knowledge he displayed of Local Church practices. It accepted on the basis of a letter from the Local Church in Sydney that the applicant had attended Local Church gatherings in Sydney since early 2011 and found that he displayed some knowledge about Local Church beliefs and practices, but was of the firm view that this did not provide convincing evidence of his commitment to the Local Church or to any other type of Christian church. Rather, it found that such knowledge had been “consciously gained” and such conduct consciously undertaken solely to enhance his claims for protection. It disregarded such conduct under s.91R(3) of the Migration Act 1958 (Cth).
Because the Tribunal rejected the applicant’s underlying claims about his involvement in a Christian church in China, it also rejected the applicant’s associated claims about interruption of a church gathering by police and that he was detained in August 2010, that his business was closed down, that he had faced serious harm or that he feared serious harm on the basis of a commitment to or association with religious beliefs.
The Tribunal then stated that in rejecting the applicant’s claim that he was detained in August 2012 it had considered the document entitled “Detention Certificate” which the applicant claimed recorded his detention. However having regard to the fact that, as was said to have been discussed with the applicant, independent information indicated that fraudulent documents were easily obtained in China and to its concerns about the applicant’s credibility, the Tribunal placed little weight on the Detention Certificate in assessing the applicant’s claim to have been detained. The Tribunal found that the other documents provided may corroborate some aspects of the applicant’s claimed work history, but that they offered no substantial corroborative evidence of any of his claims regarding past or future feared persecution.
The Tribunal also considered the claims of the applicant that could be said to arise from a personal grudge that local officials and former colleagues may bear, given his complaint in 2005 and his claimed knowledge about their corrupt practices. The Tribunal considered that the applicant’s claim that these individuals continued to bear a grudge against him five years later when they had had no ill-effects from his claimed report was implausible. It found his evidence about claimed harassment at the hands of these individuals had changed over time. Having regard to these matters, the interweaving of these claims with the religious claims and the adverse credibility findings, the Tribunal did not accept that the applicant faced serious harm for reason of any personal grudge and/or reason of religion.
The Tribunal also considered, but rejected, the applicant’s claim to fear serious harm as a result of having spent time outside China on the basis of independent information and the absence of credible evidence to support such claim. It had regard to the fact that it had disregarded his attendance at a Local Church and conduct of acquiring religious knowledge in Australia.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reason of his real or imputed association with the practice of Christianity or for any other Convention reason if he returned to China. It affirmed the decision of the delegate.
The applicant sought review by application filed on 15 September 2011. He did not file written submissions, but was given the opportunity to address the grounds in his application in oral submissions. It emerged that he wished to raise an additional contention that the Tribunal was under and had failed to observe a duty to make inquiries, in particular in relation to the Detention Certificate which he had submitted. In order to enable the solicitor for the Minister to address the relevant authorities and the applicant to respond, the hearing was adjourned part-heard until today.
It is convenient to consider first the grounds of review in the application as elaborated on by the applicant in oral submissions. The first contention is that the Tribunal “doubted the evidence [the applicant] provided, which based on country information (sic). It is preconceptive”. It appears that this is intended to amount to a contention of either actual or apprehended bias. The applicant also raised the issue of bias in oral submissions, albeit he related it specifically to the Tribunal’s conclusion that the Detention Certificate was a fabrication “without technical analysis”.
An allegation of actual bias is a serious allegation. It is a rare and exceptional case in which actual bias will be established on the face of the decision record alone. It is not an allegation that should be made lightly.
The Tribunal’s failure to accept the applicant’s claims and the fact that it did not make any further inquiries, an issue to which I will return, is not such as to establish actual bias in the sense of prejudgment. Nor are those circumstances such as to establish apprehended bias from the perspective of the appropriately informed and fair minded reasonable observer. See Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28.
Insofar as this ground amounts to a disagreement with the Tribunal’s factual findings, it seeks impermissible merits review. While fact finding can, in exceptional cases, be conducted in a manner which can give rise to a reasonable apprehension of bias (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328), neither actual nor apprehended bias is indicated merely by the Tribunal’s adverse findings in this case. It is apparent from the Tribunal reasons for decision that during what appears to have been a relatively lengthy hearing the Tribunal raised a considerable number of issues of concern and the effect of independent country information with the applicant and gave him the opportunity to comment. The Tribunal also raised with him its concern about inconsistencies and other inadequacies in his evidence. It considered his explanations in relevant respects in its detailed findings and reasons. Neither actual nor apprehended bias is made out.
The fact that the Tribunal, on its own account, properly raised with the applicant matters of concern gave him the requisite opportunity to comment in accordance with s.425 of the Migration Act.
Insofar as this ground takes issue specifically with the Tribunal’s reliance on country information, the choice of and weight to be given to items of independent country information is a matter for the Tribunal and no jurisdictional error in this respect is established on the material before the court. It is also a matter for the Tribunal to make findings in relation to credibility. The Tribunal’s findings in that respect were open to it on the material before it for the reasons which it gave.
The applicant contended that the Tribunal’s failure to obtain a “technical analysis” or to make further inquiries about the document described as a Detention Certificate was indicative of bias. As discussed further below the Tribunal was under no general duty to inquire and did not undertake to do so. Neither actual nor apprehended bias is made out in this respect.
Ground two is that the Tribunal “thought that [the applicant] fabricated the statement that [he] was persecuted by the Chinese Government without considering”. This is presumably intended to be a reference to a finding made without proper consideration.
Credibility findings are a matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). The Tribunal gave cogent reasons for its findings in that respect based, in particular, on contradictions and changes in the applicant’s evidence and other concerns which it set out in considerable detail. Insofar as this ground is intended to suggest that the Tribunal did not carry out its review, contrary to any such suggestion it is apparent from the Tribunal reasons for decision that it considered all the claims made by the applicant but rejected such claims, in essence, because it did not accept his credibility for the reasons which it gave. Ground two is not made out.
Ground three is a claim by the applicant that he would be put in jail if he went back to China. This does not, as expressed, establish a ground for review. Rather it seeks impermissible merits review.
The applicant raised a number of other issues. The first of these was a general contention that the Tribunal did not give him a “fair” decision. Again, insofar as this seeks merits review, merits review is not available in this court. If the applicant intended more generally to assert a lack of procedural fairness, no lack of procedural fairness or failure to comply with the provisions of the Migration Act has been established. I note in particular that there is nothing to indicate that the Tribunal failed to comply with s.425 of the Act in relation to the hearing. Rather, it is apparent that the Tribunal raised with the applicant determinative issues such that he had the requisite opportunity to give evidence and present arguments relating to the issues arising on review as required under s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63).
Nor does there appear to be any information triggering the obligation in s. 424A(1) of the Act. Insofar as the Tribunal relied on information provided by the applicant at the hearing, written statements provided at an earlier time and general country information not relating to the applicant specifically, such matters are within the s.424A(3) exceptions. Furthermore, the Tribunal is not obliged to put to an applicant for comment its thought processes, reasoning or subjective appraisals of the evidence or lack of detail in his evidence (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26). In fact it appears from the Tribunal’s account of the hearing that it did raise with the applicant its concerns about defects, inconsistencies and gaps in his evidence. It also put to him in some respects the effect of country information. This is not indicative of jurisdictional error.
The applicant also took issue with the fact that, as he put it, without any “concrete evidence” the Tribunal was of the view that the Detention Certificate he provided was a fabrication. As indicated he suggested that the Tribunal should have undertaken or obtained a technical analysis of the document. It is well-established that it is for an applicant to make his or her case before the Tribunal (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14). It is not for the Tribunal to find rebutting evidence before it is able not to be satisfied of the credibility of the applicant’s claims or that he does not meet the criteria in the Refugees Convention.
Insofar as the applicant contended that the Tribunal should have made inquiries about the legitimacy of the Detention Certificate, carried out a technical analysis or in some other undefined way made inquiries, it is well-established that there is no general obligation on the Tribunal to make inquiries, albeit that it has the power to do so (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). While in very limited circumstances the Tribunal may have an obligation to inquire, it has not been established that this is such a case. In particular, it has not been established that this is a case in which the Tribunal failed to make an obvious inquiry in relation to a critical fact the existence of which was easily ascertained such as to indicate that it failed to carry out its duty to review in the sense considered in SZIAI at [25] – [27].
The Tribunal recorded that at the Tribunal hearing the Tribunal noted that the applicant had provided documents in support of his application and that it had to decide how much weight to give them. It specifically referred to the Detention Certificate document and to independent information suggesting that it was very easy to obtain fraudulent documents in China. It is not in dispute that the Tribunal put to the applicant that this would affect the weight the Tribunal placed on the document as evidence or that in response the applicant asserted that the document was genuine. The Tribunal indicated that its concern applied to all the documents he had submitted. The applicant is recorded as having said that “the Tribunal could have its own opinion and its own doubt” and that it “could do further investigation”. The Tribunal recorded that it told the applicant that it was not possible to “verify those types of documents” and went on to address general concerns about the credibility of the applicant’s story.
In its findings and reasons the Tribunal rejected the applicant’s claims about past events in China (in particular that he attended or was associated with any Christian church in China). The Tribunal rejected the applicant’s claim to have been detained on the basis of rejecting his claims about the circumstances in which that detention occurred. It went on to state that in considering the applicant’s claim that he was detained, it had considered the Detention Certificate. In light of independent country information about the ease of obtaining fraudulent documents in China and its concerns about the applicant’s credibility the Tribunal placed little weight on the Detention Certificate in assessing the applicant’s claim to have been detained.
A number of things can be said about this process. In one sense this appears to be a situation in which the Tribunal, having comprehensively rejected the credibility of the applicant’s claims, then rejected the supporting documentation relevant to the rejected claims. As McHugh and Gummow JJ stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49]:
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 in 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 to proceed on the footing that no corroboration can undo the consequence for a case put by a party of a conclusion that that case comprises lies by that party. It is not irrational for a tribunal to decide that an applicant has lied without at an earlier stage weighing the alleged corroborative evidence by the witness in question.
However, in this instance the Tribunal, having rejected the detention claim, then stated it had considered the Detention Certificate in making this finding. Even if the circumstances in this case do not go so far as to constitute circumstances in which “the well has been poisoned beyond redemption”, it has not been established that the rare and exceptional circumstances in which the Tribunal should make inquiries arose. Notwithstanding that the applicant appears to have generally suggested that the Tribunal could do further investigation, there was no undertaking by the Tribunal to do so and no identification of any relevant inquiries. This is not a case in which the author of a document was a particular person such that inquiries could be made of such specific entity (compare the discussion of documents such as letters from named sources in SZLGP and Another v Minister for Immigration and Citizenship and Another (2009) 181 FCR 113; [2009] FCA 1470 and SZOFC v Minister for Immigration and Citizenship [2010] FCA 1269).
There is no general obligation on the Tribunal to investigate the authenticity of documents (such as a Detention Certificate) put before it by an applicant (VCAK OF 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2004] FCA 1595). The duty imposed on the Tribunal is a duty to review, not a duty to inquire. In this case the Tribunal clearly put to the applicant its concerns regarding the Detention Certificate. It cannot be said that the Tribunal’s failure to make some general undefined inquiries or indeed a failure to undertake some technical analysis of its own volition in relation to this document was so unreasonable that no reasonable decision-maker could have made such decision, or that the Tribunal’s failure to make the inquiries suggested by the applicant in general terms either at the Tribunal hearing or in these proceedings constituted a failure to complete the review or was indicative of actual or apprehended bias.
Insofar as the applicant’s contention is that the Tribunal had no basis for finding that the Detention Certificate was a fabrication, the Tribunal had regard to its extensively expressed and far-reaching credibility concerns about the applicant’s underlying claims about his association with a Christian church in China and also to independent country information in giving the Detention Certificate little weight. Such an approach was open to the Tribunal. No jurisdictional error has been established on that basis.
The applicant also took issue in oral submissions with the Tribunal’s reasoning in relation to the dates of his wedding anniversary and birthdays of family members. He endeavoured to give a further explanation for the dates that he had provided. As I attempted to explain to him, merits review is not available in this court. The Tribunal’s findings in relation to the inconsistencies in the applicant’s evidence in that respect were open to it on the material before it. Insofar as the applicant contended that these were irrelevancies, the Tribunal had regard to these matters as relevant to his general credibility. It was open to the Tribunal to take that approach.
In the hearing today the applicant also raised with the court a claim that he now had further evidence testifying to his involvement in a Christian church in China. He confirmed, however, that such evidence was not before the Tribunal. As these proceedings are not a rehearing, such information does not assist the court to determine whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.
No jurisdictional error is established on any of the bases contended for by the applicant. Accordingly the application must be dismissed. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances to warrant a departure from the general principle that an unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM.
Associate:
Date: 16 July 2012
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