SZSHU v Minister for Immigration
[2013] FCCA 2258
•23 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSHU v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2258 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal ‑ whether Tribunal failed to consider an integer of a claim – whether Tribunal findings not made on probative material and logical grounds – whether Tribunal applied wrong standard of proof ‑ whether no evidence to support finding ‑ whether the Tribunal failed to inquire – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 476 |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 Minister for Immigration and Citizenship vSZRKT [2013] FCA 317 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164 MZSXA v Minister for Immigration and Citizenship [2010] FCAFC 123 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Re Minister for Immigration and Multicultural Affairs; Ex Parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 Minister for Immigration v QAAH of 2004 [2006] HCA 53 Abebe v The Commonwealth [1999] FCA; (1999) CRL 570 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 SZRLQ v Minister for Immigration and Citizenship [2013] FCAFC 566 Minister for Immigration v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 SZRTF & Anor v Minister for Immigration & Anor [2013] FCCA 91 Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 Minister for Immigration and Citizenship v MZYCE [2010] FCA 76 |
| Applicant: | SZSHU |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2802 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 15 October 2013 |
| Date of Last Submission: | 15 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Graycar |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application made on 30 November 2012, amended on 28 February 2013 and further amended on 15 October 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $8,000.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2802 of 2012
| SZSHU |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 30 November 2012 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 28 February 2013 and further amended on 15 October 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 2 November 2012, which affirmed the decision of the delegate of the first respondent Minister to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of the Peoples’ Republic of China (“China”) (Court Book – “CB” – CB 11). He arrived in Australia on 7 August 2011 on a visitor visa, which was granted on 4 July 2011, and ceased on 7 November 2011 (CB 12). He applied for a protection visa on 18 October 2011 (CB 1 to CB 27). He was represented in this application by a registered migration agent (CB 25).
Claims to Protection
The applicant set out his claims to protection in his protection visa application (CB 16 to CB 19). Essentially, the applicant claimed that he and his family were persecuted in China for their Christian religious beliefs and their associated activities with the Catholic Underground Church (“the Church”) (CB 16).
Specifically, the applicant claimed that police had detained, beaten and tortured the applicant’s father for his involvement in “illegal religious activities” (CB 17.5). As a result, the applicant claimed that he was subject to “serious discrimination” at school and was “often abused and humiliated by teachers or students” (CB 17.8). Despite changing school, the discrimination did not cease. The applicant’s mother sent the applicant and his twin brother overseas (CB 17.9). [His brother came to Australia in 2007. He went to Japan in 2009.]
While in Japan, the applicant claimed to have sent “Catholic promotion materials” “through [the] Internet”, over a period of approximately one year, to a member of the Church group (CB 18.8). When visiting his brother in Australia in August 2011, the applicant claimed that members of the Chinese National Security Bureau (“NSB”) “raided” his room in Japan, taking his computer and “Catholic materials” and, in a conversation with his roommate, accused the applicant of transferring “illegal religious materials to China” (CB 19.2).
The applicant claimed that on 3 October 2011, his mother and sister in China were subjected to investigation by the “Public Security Bureau” (“PSB”). This concerned the applicant’s action in sending “illegal religious materials to China”, and engaging in “anti-government” and “anti-communist activities” (CB 19.3). The applicant claimed that his activities had come to the attention of the authorities in China, and that he would suffer persecution if he returned (CB 19.7).
The Delegate
The applicant attended an interview with the Minister’s delegate on 31 January 2012. The delegate noted that she had “serious concerns about the veracity of the applicant’s claims given the numerous inconsistencies between the applicant’s written and oral testimonies” (CB 74.2).
The delegate also considered that the applicant had remained in China for a period of six years following his father’s claimed period of arrest and detention in 2003, and that the applicant had not sought protection in Japan (CB 74.3). The delegate found this “indicative that the applicant does not hold a fear of persecution and is not a person of interest” to the Chinese authorities (CB 74.5).
The delegate found a complete “lack of credibility” surrounding the applicant’s claim that his room was raided by the Chinese authorities and again noted that she had “serious concerns about the veracity of the applicant’s claim” (CB 75.4). The delegate was not satisfied that the applicant was a person to whom Australia had protection obligations and refused the grant of a protection visa on 6 February 2012. This was based on a “cumulative” view of the concerns raised and on country information (CB 77).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 23 February 2012 (CB 78 to CB 81). The applicant attended a hearing before the Tribunal on 2 May 2012 (CB 92). He, and three of his witnesses, gave evidence before the Tribunal. The Tribunal’s account of the hearing is set out in its decision record ([49] at CB 122 to [109] at CB 129).
The Tribunal considered the internal inconsistencies in the applicant’s evidence, and the inconsistencies between the applicant’s evidence and country information, and found that the applicant was not “a truthful witness” ([122] at CB 131). The inconsistencies can be summarised as follows:
1)The applicant claimed that “NSB” personnel came to his room in Japan. The Tribunal found that, in the letter from the roommate, the name of the organisation was the State Security Bureau (“SSB”). Further, that the “NSB” was an agency of Taiwan not the Peoples’ Republic of China ([127] – [128] at CB 132).
2)The applicant, initially, claimed that he could not return to Japan, however, at the hearing before the Tribunal he said he could return ([129] at CB 132).
3)In his application for the visa the applicant stated that his brother had “continuously” supported him while he was studying in Japan. At the hearing he gave evidence that after some initial financial support he supported himself by working ([130] at CB 132 to [131] at CB 133).
4)Inconsistencies in the applicant’s evidence and statements as to what he was studying in Japan (Japanese or economics) ([130] at CB 132 to [131] at CB 133).
5)
The Tribunal found that a photograph that the applicant claimed was of himself, standing in front of a statue of a praying angel, was “inconsistent with the secrecy the applicant claimed was necessary as a member of the underground church” ([134] at CB 132). Further, the Tribunal found that the photo of the applicant in his 2006 passport “does not resemble the person claimed to be the applicant in the 2004 photograph” ([135]
at CB 134). Ultimately, the Tribunal did not accept that the applicant’s evidence about the photograph was truthful.
6)The Tribunal considered the applicant’s claim that his apartment was raided by the “NSB” and found it inconsistent with country information, and inconsistent with the information in a letter the applicant received from his roommate and provided to the Tribunal ([137] at CB 134).
7)The Tribunal also took into account country information and pragmatic considerations, such as how quickly the alleged raid was organised, and found the applicant’s claims “implausible and unpersuasive” ([137] at CB 134 to [138] at CB 135).
As a result of these inconsistencies, the Tribunal did “not accept that the applicant was a truthful witness and therefore did not accept that his evidence is credible” ([140] at CB 135).
In light of this, the Tribunal did not accept much of the applicant’s factual account of past events. In particular, that the applicant’s family were adherents of the underground church ([141] at CB 135). Further, the Tribunal did not accept that the police raided the applicant’s family home in 2003, that the applicant’s family suffered persecution in China, or that the applicant sent religious material back to friends in China ([141] at CB 135 to [143] at CB 136).
The Tribunal also did not accept that the applicant’s room in Japan was raided by Chinese authorities while he was in Australia in 2011. In making this finding, the Tribunal gave “little weight” to the letter claimed to be from the applicant’s roommate because it was not an “official record”, it was not provided in support of the applicant’s claim until it was handed to the Tribunal, the translation did not indicate when it was written, and it was inconsistent with the applicant’s evidence about the name of the agency that conducted the raid ([145] at CB 136).
The Tribunal also noted that the applicant provided no “contemporaneous, reliable documentary evidence” to support his claims ([148] at CB 137).
Based on the finding that the applicant was not a truthful witness, the Tribunal found the applicant’s attendance at church in Australia to be undertaken “in order only to strengthen his claims for protection” ([150] at CB 137). Pursuant to s.91R(3) of the Act, it disregarded the applicant’s religious activities in Australia.
The Tribunal considered the applicant’s references, provided by the applicant’s witnesses, and the oral evidence at the hearing given by those witnesses, but such information was given “little weight”, given the Tribunal’s finding that the applicant was not a truthful witness ([150] at CB 137).
The Tribunal did not accept that the applicant was “a genuine follower of the Roman Catholic Church or the underground Church” and it did not accept that he would “practice Roman Catholicism… if he returns to China” ([151] at CB 137).
Therefore, the Tribunal did not accept that the applicant had a
“well-founded fear of persecution for a Refugee Convention reason now or in the reasonably foreseeable future if he returns to China” ([155] at CB 138), and that the applicant was therefore not a person in respect of whom Australia owes protection obligations.
For the reasons relating to his credibility outlined above, the Tribunal was also not satisfied that there were substantial grounds for believing that the applicant was a person to whom Australia owes complementary protection obligations ([162] at CB 139).
The Application to the Court
The grounds of the application, as further amended on 15 October 2013, are in the following terms:
“GROUND ONE
In deciding to affirm the decision of the first respondent, the second respondent committed an error of law amounting to a jurisdictional error by failing to consider a component integer of the applicant’s claim and denied the applicant procedural fairness by failing to respond to the case as put by the applicant;
Particulars
a) The second respondent did not accept that ‘the church activities [the applicant had attended] in Australia are underground church activities’; and was not satisfied that the ‘churches he attended in Australia were underground churches’ (see [150];[153];[159]). However, it was no part of the applicant’s case that the churches he attended in Australia were “underground” churches. By thus misdescribing the applicant’s case, and making findings on a matter not part of his case, the applicant was denied procedural fairness.
GROUND TWO
In deciding to affirm the decision of the first respondent, the second respondent committed a jurisdictional error because its finding that the applicant’s practice of Christianity in Australia was not genuine was not based upon probative material and logical grounds.
Particulars
a) The second respondent accepted that the applicant had attended places of worship and activities associated with the Roman Catholic church in Australia since August 2011, but did not accept that he was a genuine follower of the Catholic faith (paragraphs 150 and 151 second respondent’s decision record)..
b) The second respondent rejected independent corroborative evidence provided by witnesses about the applicant’s church attendance and commitment to Christianity without weighing up that evidence.
GROUND THREE
The Tribunal erred in applying an onerous standard of proof to the applicant, despite there being no ‘onus of proof’ in inquisitorial proceedings.
Particulars
The Tribunal rejected the applicant’s claims, inter alia, on the basis that he had ‘provided no contemporaneous reliable documentary evidence” to support his claims (at [148] and [149])
GROUND FOUR
The second respondent committed an error of law amounting to jurisdictional error by making findings about the applicant’s credibility that were based on either no evidence or for which there was no probative material or logical grounds.
Particulars
a) The second respondent erred in finding that the applicant gave inconsistent evidence about whether he could return to Japan in circumstances where there was no, or no probative evidence to support that finding of inconsistency;
b) The second respondent erred in finding that the applicant gave inconsistent evidence about the financial support he received from his brother when there was no or no probative evidence to support that finding of inconsistency;
c) The second respondent erred in rejecting the applicant’s evidence by reason of the fact he had not provided any “contemporaneous, reliable documentary evidence” to support his claims (at [148]; [149]).
d) The second respondent rejected independent evidence provided by witnesses solely on the basis that it did not accept the applicant as a truthful witness, without giving any proper consideration to those witnesses’ evidence;
GROUND FIVE
In conducting its review, the Tribunal failed to make ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’ and thus committed jurisdictional error.
Particulars
a) the Tribunal made adverse credibility findings about matter the subject of the applicant’s claim (see CB 131-132; [123]-[128] and CB 134 [138]) by finding that the claims were not supported by country information without having regard to RRT Country advice, China, CHN40255 – National Security Bureau – Falong Gong – Public Security Bureau, 30 April 2012 (Country Advice CHN 40255). In the circumstances that the information in that country advice was easily ascertainable and went to a critical fact, the Tribunal thus committed jurisdictional error.”
Before the Court
At the hearing Ms R Graycar of counsel appeared for the applicant. Mr T Reilly of counsel appeared for the first respondent. In evidence before the Court, was the Court Book, the affidavit of Yvonne Jennifer Kinslor, solicitor, made on 26 February 2013 annexing a transcript of the Tribunal hearing (“T”) (to which there was no objection) and the affidavit of Anna Kaiser Khan, paralegal, affirmed on 1 October 2013, annexing certain “country information” (to which there was no objection on the basis that it was put to demonstrate an inquiry that could have been made).
Ground One
Ground one asserts a failure by the Tribunal to consider an integer of the applicant’s claims which he says led to a denial of procedural fairness. The applicant’s argument is that at no time did he claim to have attended an underground church in Australia. Yet the Tribunal made findings on the basis that he had. That is, it did not accept that he had participated in underground church activities in Australia. The applicant’s complaint is that implicit in that finding was a rejection of a claim not made by the applicant.
The applicant relied on the following parts of the Tribunal’s analysis to base his ground:
1)At [150] at CB 137:
“The Tribunal has taken into account the applicant’s knowledge of the Roman Catholic Church, his claimed religious practice in Australia and the evidence of the witnesses supporting his claims and the references provided. The Tribunal finds that the applicant has attended Catholic Church services and activities at Flemington and Epping since he arrived in Australia and that his knowledge of Catholicism is consistent with that attendance. The Tribunal does not accept that the church activities he has attended in Australia are underground church activities...”
[Emphasis added.]
2)At [152] at CB 137:
“The Tribunal is not satisfied that the applicant will be persecuted if he returns to China because of his church attendance and activities in Australia. There is no evidence that Chinese authorities are aware of his attendance or participation in those activities. Further, the Tribunal finds that his participation and activities were not in the underground church and were not related to the underground church.”
[Emphasis added.]
3)At [153] at CB 138:
“… The Tribunal accepts that the applicant’s brother attended those churches and has participated in Catholic Church activities in the time he has been in Australia, however, the Tribunal does not accept that those activities related to the underground church…”
4)At [159] at CB 138 to CB 139:
“Based on the references and witnesses’ evidence about his claimed religious activities in Australia, the Tribunal accepts that he has participated in Roman Catholic related religious activities in Australia. He has some knowledge of that religion. However, as the Tribunal does not accept that the applicant is a truthful witness, it does not accept that he is a genuine follower of that religion, or that he will practise that religion at all if he returns to China, and in particular it does not accept that he will follow the underground church or assist members of that church if he returns to China…”
[Emphasis added.]
In short, the applicant’s complaint can be characterised as either that the Tribunal misunderstood the claims made, or that it dealt with a claim not made. The applicant’s submissions draw on, and apply, what the High Court relevantly said in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”), that the Tribunal misstated and failed to deal with the case presented before it (with general reference to Dranichnikov but presumably at [23] and [24]).
The applicant stressed that the importance of this in the current case is that the Tribunal found adversely to the applicant’s credibility, including that he was not to be believed in relation to a claim that he never made.
The applicant also relied on two Federal Court authorities. First, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 (“SZLGP”) per Logan J. In that case the Tribunal found adversely to the applicant’s credibility in relation to a particular document. At [37] of that case, the Court said:
“With all due respect to the Tribunal and in the sense they are used by Lee J, the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document...”
[Emphasis added.]
The applicant argued that the current Tribunal decision should be seen in the same light because it made an adverse credibility finding based on a “false factual premise”, therefore, revealing jurisdictional error.
Second, Minister for Immigration and Citizenship vSZRKT [2013] FCA 317 (“SZRKT”) at [78] (per Robertson J):
“It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.”
The applicant also generally relied on VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (“VAAD”), SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164 (“SZQRW”) and MZSXA v Minister for Immigration and Citizenship [2010] FCAFC 123 (“MZSXA”). The essence of the applicant’s reliance here was to argue, that “overwhelmingly” a piece of evidence may not (on its own) necessarily lead to jurisdictional error, but that may change where that “overwhelming” evidence led to a critical adverse finding in relation to the applicant’s credibility. That is, for example, as in VAAD, it “reinforced” the Tribunal’s negative assessment of the applicant’s credibility.
Before the Court, the applicant stressed that this was a case where the Tribunal, on a number of occasions in its analysis, made reference to the matter of the underground church in Australia, in respect of which the applicant made no claims. Further, that the Tribunal’s references and findings in reference to that matter were central to its finding that he was not a “genuine Christian”, which in turn led to its rejection of much of the applicant’s factual claims of past events.
The Minister’s response was twofold. First, there was, on at least a fair reading of the Tribunal’s decision record, no misunderstanding of the applicant’s claims. Second, even if it could be said that there was some misunderstanding of the applicant’s claims then, any such misunderstanding is not jurisdictional error in circumstances where the claim as made was actually considered. The Minister said this was consistent with the conclusion in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [68] and reflects the law as expressed in MZXSA at [83]:
“A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.”
On balance, I agree with the Minister that on a fair reading the Tribunal did not misunderstand, or misconstrue, the applicant’s evidence or claims. This would have been so on a plain reading, but for the use by the Tribunal of the phrase “not accept” as it appears at [150] (at CB 137 and [153] (at CB 138) and [159] (at CB 138 to CB 139).
It is important to note that a fair reading, as explained in
Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”), does not excuse ambiguity, or allow reading into the Tribunal’s decision record what is not there (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9). It also requires a holistic reading. In setting out the applicant’s claims, the Tribunal understood that he was claiming that he feared harm if he was returned to China because of his and his family’s involvement in “the underground Church” in China (see, for example [26] at CB 115).
The character of this underground church was “Roman Catholic”. At [23] of its decision record, the Tribunal records this faithfully as taken from his visa application (see at CB 16.6):
“…Both of my parents were Catholics in Roman Catholic Underground Church (the underground church)…”
The Tribunal further understood his claim that he, his brother and his parents “were Catholics in the Roman Catholic Underground Church (the underground Church)” at [26] at CB 115).
This characterisation of the applicant’s claim was further stated by the Tribunal at [36] (at CB 116):
“…contacted the applicant and instructed him to send overseas Catholic promotion material in Chinese through the internet, which the applicant could easily obtain in Japan.”
This aspect, or integer, of the applicant’s claim can also be seen in what is reported as having been said by him to the Minister’s delegate ([46] at CB 119):
“ The applicant is attracted to Christianity and the Roman Catholic church because it has seven holy events and holy hierarchy and the influence of his family; they are all Catholics….The Roman Catholic religion is different from other Christian denominations because it is established by Jesus Christ himself…”
[Emphasis added.]
Further, at CB 121.6:
“…He placed his and his family’s lives at risk by sending material back to China because he is a Catholic, he must do this; God sent his only son to reopen the door to Heaven, there is nothing we cannot do because of this; God is the saviour of human beings, and ‘we’ must tell them about God; the Chinese Government has prevented people knowing about this.”
[Emphasis added.]
From the hearing before it, the Tribunal reported the following:
1)At [50] at CB 122:
“…He will be persecuted because he is a Roman Catholic, and he has sent material to [another person] who has been arrested…”
[Emphasis added.]
2)This is consistent with T8 lines 10 – 13:
“…Ms Kelly: Why will you be persecuted?...[Interpreter]: Because I’m a Roman Catholic, and I have sent some material to [another person] and he had been arrested.
[Emphasis added.]
3)Further:
i)At [55] at CB 123:
“The applicant said that the raid was related to him because he has sent the material to [another person] and the applicant is a member of the Roman Catholic underground church.”
[Emphasis added.]
(i)This is consistent with T12 at lines 42–43:
“[Interpreter]: Because I’m a member of Roman Catholic Underground Church…”
[Emphasis added.]
4)Further
i)At [67] at CB 124:
“…As long as policemen get orders from the Government, they can do anything. China does not have a good relationship with the Roman Catholic Church and wants to prevent Chinese people from becoming Roman Catholic because it requires Chinese people to attend the registered church only which is not a genuine religion.”
[Emphasis added.]
ii)This is consistent with T17 lines 23–25:
“…[Interpreter]: As long as the policeman get orders from the government, they can do anything, and China doesn’t have a good relationship with the Roman Catholic…”
[Emphasis added.]
In summary, therefore, the Tribunal represented the applicant’s relevant claims as being that in China there is an underground Roman Catholic church and an official Catholic church. He feared persecution because he was a member of the former, which was viewed negatively by Chinese officials, (see T12 line 42 to T13 line 24):
[Applicant]: Because I’m a member of Roman Catholic Underground Church, and the Roman Catholic Underground Church comes from East Timor, and the Chinese government has been attacking the Roman Catholic Underground Church, and prevent the establishment of relationship between China and East Timor, because the Chinese government fear that it will frighten political power because they fear that foreign religious power would frighten Chinese political power.
Ms Kelly: [Applicant], please, short - -
[Applicant]:Because the Chinese government fear that member of the Roman Catholic Underground Church will listen to East Timor’s news. So it’s like they fear that the Chinese citizen would follow the East Timor’s rules. So they fear it would frighten its political power.
Ms Kelly: Why East Timor, [applicant]?
[Applicant]: Because the Roman Catholic Underground Church established from East Timor.”
Ms Kelly: [to the Applicant], that is not my understanding, and my country information does not say that on my understanding. Would you like to comment? No, please Mr Huang, do not interrupt. Do not interrupt. Thank you.
[Applicant]: Because the Chinese government has been attacking Roman Catholic Underground Church, but he has been done very secretly. Other people couldn’t say it. It has been undergoing secretly…”
[It was subsequently established at the Tribunal hearing that the interpreter’s use of “East Timor” should be understood as “Vatican” – see [56] at CB 123.]
There is nothing in the transcript of the Tribunal hearing and, importantly, in the Tribunal’s setting out of the applicant’s claims, to suggest that the Tribunal misunderstood or misstated the applicant’s claims as to his religious persuasion and affiliation. That is, that the applicant was a member of the Roman Catholic Underground Church in China and that he feared persecution in China because of this.
The applicant’s attack before the Court derives from that part of the Tribunal’s analysis which refers, in part, to the applicant’s claimed church attendance and activities in Australia. Each of the impugned parts of the Tribunal’s analysis at [150] and [152] (at CB 137) and [153] and [159] ( at CB 138) (see [24] above) were all plainly directed to the applicant’s (and, in one instance, his brother’s) church participation in Australia.
It is the case that the use of the words “not accept” as they appear at [150] (at CB 137) and [153] (at CB 138), and the use of the words “not satisfied” at [159] (at CB 139), can be seen to give rise to the applicant’s argument that in saying that it did “not accept”, or was “not satisfied” that the applicant participated in underground church activities in Australia, the Tribunal was addressing a claim not specifically made by the applicant. That is, the applicant never claimed that the churches in Australia were underground churches thus necessitating the findings made by the Tribunal. A similar situation can be seen with the finding at [152] (at CB 137). Where, again, the applicant says that the implication of the finding is that the Tribunal misunderstood the applicant to be claiming that the church in Australia was an underground church, and it made findings on that basis.
However, on a fair reading (holistic, in context, and without an eye “keenly attuned to the perception of error” (Wu Shan Liang at [30])), I accept the Minister’s submission that there was no such misunderstanding.
First, there is nothing to suggest that the Tribunal had any such misunderstanding in considering the applicant’s claims and evidence as to his church attendance in Australia.
Before the delegate the applicant stated (at CB 120.3):
“In Australia he attends St Dominic’s in Flemington; when asked how he gets there, he said his brother took him; he goes by train…”
The Tribunal reported this evidence at the hearing as follows ([94] at CB 127):
“In Australia he attends churches in Flemington and Epping. When asked why two churches, the applicant said that the more churches you go to the more gifts you will get from God. He started going to the Flemington church when he arrived in Australia, once a week for Sunday mass at 11.30am and the Rosary from 11am. He still goes. He sometimes goes to Bible study group on Friday at 8.30pm which sometimes goes until 10pm, sometimes 9.30pm. His brother goes as well.”
[Emphasis added.]
The Tribunal reported the applicant’s witnesses’ evidence relevantly as follows:
1)At [103] at CB 128:
“Ms [C] gave the following evidence. She can prove the applicant is a very devoted Catholic and secondly she encouraged him to apply for a protection visa. She saw that he was very unhappy. He told her that he did not know what to do. He had a three month visitor visa. He was fearful that something had happened in his Japanese apartment.”
[Emphasis added.]
2)At [105] at CB 129:
“Ms [C] said that she told him to pray to God and that given his situation he can apply for a protection visa because of the threat. She told him in August or September 2011. When asked where she told him, she said in Church at Epping.”
[Emphasis added.]
3)At [107] at CB 129:
“Ms [Z] gave the following evidence at the hearing. She met the applicant in August 2011 at the home of her auntie, Ms [C], who drove them to church every week at Epping, on Saturday at 5pm. After mass they would pray. During prayer, she felt he was under some pressure. After mass finished, they attended Bible reading together until 9pm.”
[Emphasis added.]
4)[108] at CB 129:
“Mr [S] said that he is the person who leads Bible reading in church. He has known the applicant since August 2011. There is a Chinese Catholic Community at 199 Epping Road. It is a site for everyone to practise their religion. They do not have any denominations for Catholics. All are Roman Catholic. The applicant is a very devoted, well-mannered person. He never runs late for practice. After every mass, they read the Bible together. The applicant would volunteer to organise meeting areas, pamphlets and prepare materials. When reading, whenever he cannot understand a story, he asks about it and lets everyone else discuss it.”
[Emphasis added.]
In essence, the applicant said that he never claimed to have attended an underground church in Australia, but that the Tribunal’s consideration proceeded as if he had done so. An immediate difficulty for the applicant is that he was unable to point to any part of the Tribunal’s decision record where it set out of his claims where it “mistakenly” (or erroneously) said that he did.
Second, a fair reading of its analysis, that is, a holistic reading, in my view, reveals that the Tribunal’s reference, in its analysis to “underground church” in Australia, was directed to the basis of the applicant’s claim to fear harm because he was a member of an underground church in China.
At [150] (at CB 137), contrary to the applicant’s focus on one part of the Tribunal’s analysis (as set out above at [24]), the Tribunal plainly states that it:
“…finds that the applicant has attended Catholic Church services and activities at Flemington and Epping since he arrived in Australia…”
What immediately follows is the impugned statement at [150] (at CB 137). Although clumsily expressed, with the use of the words “not accept”, what can be fairly understood, given in particular that it follows the above quote, is that in effect this was not an “underground” church such as to invite an adverse reaction from the Chinese authorities.
This view is strengthened when regard is had to a part of the Tribunal’s analysis not now referred to by the applicant. At [151] of the Tribunal’s decision record it states (at CB 137):
“…His knowledge of Roman Catholicism is consistent with his attendance at Roman Catholic churches and participation in the activities of that church in Australia since about August 2011 after he arrived in Australia.
The Tribunal plainly understood that the applicant’s claimed church activities in Australia, which it accepted had occurred, were at Roman Catholic churches. There is nothing here to suggest it took the view that he had claimed these were underground churches.
The impugned part of [152] (at CB 137) is also illustrative of the view that I have taken of the Tribunal’s analysis. The Tribunal was plainly, and properly, focused on whether the applicant would be persecuted if he returned to China because of his church attendance and activities in Australia.
What follows are two reasons given by the Tribunal that went to answering that question in the negative. First, there was no evidence that the Chinese authorities were aware of his activities in Australia. Second, and “further”, the activities were not undertaken in an underground church. The clear implication being that the basis on which he claimed to fear harm (his involvement in an underground church) did not arise from, or exist in, his activities in Australia.
A similar fair, if not plain, reading is available at [153] (at CB 138). There the impugned part of the Tribunal’s analysis, in the same sentence, makes reference to the applicant’s claim that his brother (similar in this regard to the applicant) “participated in Catholic Church activities… in Australia…”, but, in essence, these were not underground church activities. Implicit in this context also is the additional element to be inferred from the applicant’s claims, which was also addressed by the Tribunal. That is, whether the attendance was such to generate the adverse interest of the Chinese authorities.
Another similar reading is available at [159] (at CB 138 to CB 139) with the express reference to “Roman Catholic” related religious activities in Australia. The point is clearly made there, and supports the view that I have taken, that his “Roman Catholic” activities in Australia would not mean that he would “follow the underground church… if he returns to China”.
The applicant’s ground also fails for another reason. A central plank of his argument before the Court, is one constructed, properly, to attempt to draw on the circumstances presented in the authorities that the applicant relies upon. This is that the impugned findings were critical to the Tribunal’s adverse finding as to the applicant’s credibility. That is, they were made in that context.
Here some care needs to be taken. If the applicant was seeking to argue that the impugned findings contributed to the adverse credibility finding, then that must be rejected. That conclusion was reached without reliance on any of the applicant’s claimed church activities in Australia (see [122] at CB 131 to [135] at CB 134 under the heading of “Credibility”).
That the Tribunal subsequently applied this “critical” adverse credibility finding to the consideration of the applicant’s claim does not mean that those impugned parts of its analysis led to the critical adverse credibility finding. Rather, it is the reverse. The “critical” adverse credibility finding (absent any reference to Australian church activities) fed into, amongst other things, the assessment of the subsequent claims to fear harm (see [141] at CB 135 to [162] at CB 139).
In answer to the applicant’s reliance on certain authorities, there is, in my respectful view, a qualitative difference between the central factual scenarios in those cases and the current case. In SZLGP the impugned part of the Tribunal’s decision arose from its making “a false factual premise concerning a critical document”. The Tribunal overlooked a critical piece of evidence at the foot of a letter (see SZLGP [27], [33] and [37]).
In the current case, the applicant does not rely upon evidence or a claim “overlooked” by the Tribunal. Rather the applicant argues that an inference can be drawn from the Tribunal’s subsequent analysis, that it considered and “dealt” with a claim that was not made by the applicant. This submission was made in circumstances where there was no complaint by the applicant before the Court that, in setting out his claims (at [20] at CB 114 to [109] at CB 129), the Tribunal “overlooked” part of his evidence or claims.
In SZRKT, the Tribunal’s adverse finding on credibility, which was central to the Court’s subsequent consideration, was in part derived from the Tribunal’s failure in that case to have regard to a piece of evidence sent to the Tribunal by the Secretary of the Minister’s department (see for example at [78], as relied on by the applicant now). This was evidence which was actually “overlooked” (see at [70]). Again, this is not the case here.
Similarly, in VAAD the error by the Tribunal was found to be that the Tribunal did not have timely regard to a particular document before it (see at [66] and [72]). Again, this is not the case here.
In all, the Tribunal in the current case considered all of the applicant’s claims to fear harm, did not, on balance and on a fair reading, misunderstand those claims, and thereby, did not fail to deal with the claims as put. On this basis, as the Minister, in my view correctly, submitted, in the current case it is not, therefore, necessary to consider whether there was “an error of fact based on a misunderstanding of the evidence” (SZQRW at [42]) and whether or not this amounts to jurisdictional error (see also MZXSA). Plainly, this is because the applicant has not shown that such a misunderstanding occurred. The applicant’s complaint about the relevance of this “misunderstanding” to the adverse credibility finding therefore falls away. Ground one is not made out.
Ground Two
Ground two asserts that the Tribunal’s finding that the applicant’s practice of Christianity in Australia was not genuine was not based on probative material and logical grounds. The applicant directs attention to [150] – [151] (at CB 137) of the Tribunal’s decision record to submit that the Tribunal, although it found that the applicant had knowledge of Roman Catholicism and that this was consistent with attendance at Roman Catholic churches in Australia, nonetheless, it was not satisfied that he was a genuine follower of the Roman Catholic church, or the underground church.
The applicant submits that the Tribunal did not test the applicant’s knowledge about Christianity. It simply concluded, because of its adverse credibility finding, that the applicant was not genuine in his beliefs. This finding was said to lack an evident and intelligible justification (with reference to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225).
I understood that the applicant was not seeking to challenge the Tribunal’s credibility finding. He submitted that it might be considered an “orthodoxy” that credibility findings cannot be challenged (probably with reference to such cases as Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)).
In any event, the thrust of the applicant’s complaint is that the impugned finding had no logical or probative underpinning. In
that sense it “went beyond” the situation contemplated in Durairajasingham.
There appear to be two elements in the focus of the applicant’s attack. The first is to say that the Tribunal made an adverse credibility finding about the applicant, and that this “coloured” the Tribunal’s analysis of the genuineness of his religious conviction in circumstances where that credibility finding was not of the type referred to in Re Minister for Immigration and Multicultural Affairs; Ex Parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49].
Second, that the Tribunal rejected the corroborative material supplied through the evidence of the applicant’s witnesses simply because of a negative credibility finding of the applicant. The applicant says that this course was not open to the Tribunal given WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 (“WAIJ”) (per Lee and Moore JJ).
While the applicant claimed that the attack was not on the Tribunal’s credibility finding, per se, it is of assistance to note that the Tribunal relied on a number of matters (as set out above at [11]) to arrive at the conclusion that the applicant was not a truthful witness, and that his evidence was not credible. It is also of relevance to note that the findings leading to these conclusions were all reasonably open to the Tribunal on what was before it.
Further, as the Minister submits, Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 JJ (“SZNSP”) at [33] – [39] per North and Lander, is of direct assistance here and further, on the question of illogicality, assistance is provided by Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) per Crennan and Bell JJ.
First, the Tribunal’s finding that the applicant was not a genuine Catholic in spite of the knowledge he presented, contrary to the applicant’s claim now, was “grounded upon probative material and logical grounds” (WAIJ at [22]).
That “probative material” was the applicant’s own evidence about a number of matters, which the Tribunal found to be variously inconsistent, implausible and unpersuasive such as to ground its finding that he was not truthful and his evidence was not credible.
Second, while these various matters could not properly be said to be “minor”, given their centrality to the applicant’s account of past events, even if they could be so characterised, I note what was said in SZNSP at [49] per Katzmann J:
“Thirdly, there is no logical reason why a tribunal of fact cannot conclude that a witness has lied after taking into account a number of matters each of which on their own might be considered ‘minor’.”
Third, in the current case, as the Minister submitted, there is no error in the Tribunal, having heard the applicant at the hearing, reaching a conclusion that his claims were “fabricated”. In the current case the Tribunal’s finding (at [140] at CB 135), while not having used that word, is in effect of the same character.
Further, it is the case that “the decision maker is entitled…” to reject evidence which, if accepted, would have corroborated the applicant’s account (SZNSP at [36]).
In the current case there are a number of aspects of the evidence of the witnesses that are relevant. First, contrary to the implication in the applicant’s attack, the Tribunal did have regard to the witnesses’ evidence (see at [150] at CB 137 and [159] at CB 139). It did not ignore this evidence or refuse to consider it simply because of its adverse credibility finding of the applicant or otherwise (SZNSP at [38]).
However, in one instance (at [150] at CB 137), the Tribunal reasoned that it preferred its own assessment of whether the applicant was sincere in his religious beliefs over the opinions of the witnesses. This was done after the hearing with the applicant. This reasoning is neither lacking a probative basis, nor can it be said to be illogical (SZMDS at [78] and [130] – [131] and see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 (“SZOOR”) at [15] per Rares J and [85] per McKerracher J).
In the second instance (at [159] at CB 138 to CB 139) the Tribunal accepted the witnesses’ evidence about the applicant’s religious participation in Australia. It can hardly be said, therefore, that it ignored probative material or gave it “little weight”.
I should also note, to the extent that the applicant complains that the Tribunal did not question him about his religious faith at the hearing, the Tribunal accepted that the applicant had some knowledge about the Roman Catholic religion (at [159] at CB 138 to CB 139).
What the applicant is really aggrieved about is that the Tribunal then reasoned that it could not be satisfied that, in light of the adverse view of the applicant’s credibility, this knowledge was a genuine reflection of the applicant’s religious conviction. This finding was made notwithstanding this evidence and the Tribunal’s acceptance that the applicant’s religious activity, or conduct, in Australia had occurred. Again, no illogically, nor lack of probative basis is evident.
In all, ground two is not made out.
Ground Three
In ground three, the applicant asserted that the Tribunal applied an “erroneous standard of proof” to the applicant’s case by rejecting the applicant’s claims on the basis that he had not provided “contemporaneous reliable documentary evidence” to support his claims (see [148] – [149] at CB 137).
It is the case that in inquisitorial proceedings, such as those before the Tribunal, there is no applicable notion of legal onus of proof (see Minister for Immigration v QAAH of 2004 [2006] HCA 53 at [40]).
But I cannot see that that is what the Tribunal was seeking to do at [148] ‑ [149] (at CB 137) (or elsewhere, see further below). As the Minister submitted, it is still the case that it is for the Tribunal to be satisfied that the claims are made out (Abebe v The Commonwealth [1999] FCA; (1999) CRL 570 at [187] and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [195]).
What the Tribunal was saying, plainly, at [148] – [149] (at CB 137) was that it did not accept the applicant’s claim that he could not go back to China. This was because of its adverse finding as to his credibility. The Tribunal’s decision record, when read plainly, additionally noted that there was no corroborative evidence in relation to the claim above or in support of the evidence relating to his brother.
In context, this was a comment about the “paucity” of the applicant’s case, in terms of the applicant’s ability to satisfy the Tribunal that his claims were made out.
In oral submissions, the applicant also drew attention to [145] (at CB 136). There the Tribunal said it gave “little weight” to a letter concerning the claimed raid, provided by the applicant, who claimed that the letter was from his roommate in Japan.
In its reasons for this, the Tribunal noted, amongst other things, that the letter was “…not an official record of the raid…” (at [145] at CB 136). Before the Court, the applicant submitted that implicit in this finding was that the Tribunal would not believe the evidence unless there was an official record of the raid. That is, that there was an expectation that there should have been such a record, and that it should have been provided to the Tribunal.
There are at least two answers to this. First, as with the other matters above, the Tribunal was entitled to note the lack of other corroborating evidence. This is not the type of difficulty exposed in such cases as Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041, where the Tribunal made the provision of corroborative evidence a precondition for its acceptance of the applicant’s claim.
Second, the Tribunal’s comment was part of the assessment of the character and nature of the letter in the context of considering the assistance that it would offer to the Tribunal. That the Tribunal found that the letter could only be given little weight because, amongst other things, it was from a “non official” source is plainly a matter for the Tribunal in assessing the evidence before it. In all, ground three is not made out.
Ground Four
Ground four was described before the Court as a “variant” of ground two. The ground again asserts that the Tribunal made certain findings for which there was no probative material or logical grounds for doing so. The particulars all relate to the Tribunal’s adverse credibility findings.
The first particular asserts that the Tribunal erred when it found that the applicant gave inconsistent evidence about whether he could return to Japan. The applicant referred to the Tribunal’s record at [129] (at CB 132) and [136] (at CB 134), and, in particular, the Tribunal’s note that at the hearing the applicant said “…he can go back to Japan and can continue to study economics and work there…” ([129] at CB 132).
The applicant said that a reading of the relevant parts of the transcript at T37 to T38 reveals that his statement was taken out of context and that the applicant did not intend the meaning ascribed to his words.
The Tribunal’s relevant finding was that the applicant had given inconsistent evidence as between what he said in his application for a protection visa, and then before the Tribunal at the hearing, about whether he could go back to Japan.
The applicant stated in his application that he had intended to return to Japan, but “decided” to remain in Australia because of the incident related to him by his roommate (CB 19.2). There is no complaint now that the Tribunal misunderstood or was mistaken in noting this in its decision record ([37] at CB 117).
The applicant’s relevant evidence at the hearing before the Tribunal was (T38 lines 5 – 8):
“[The applicant] (INTERPRETER): Why would I make up my story, because I can go back to Japan. I have three jobs there and I can continue my economics study. After I finish my study I can work there. Then why should I make up my story here, because I can only speak basic English?”
The applicant now says that his evidence at the hearing before the Tribunal needs to be understood in the following way. He was “worried” about what had occurred in Japan and that he would otherwise have gone back to Japan but for what had occurred there in his absence.
It is important to note the context in which the applicant’s statement was made. By the time of the hearing before the Tribunal, the applicant had given an extensive factual account supporting his claims to protection prior the statement set out at [100] above. The applicant’s statement was then in response to the Tribunal’s request (T37 line 45 to T38 line 4):
“[Tribunal]: I’ll just put this possibility to you, [the applicant]. You’ve told me a story about seeking protection, another possibility might be that you and your brother have got together and created stories for each other to support your applications for protection visas. Would you like to comment on that?”
What the applicant said at T38 (see [100] above) was not the applicant responding to the specific incident in Japan. One view of what he was saying here was that there was no need for him to create a “story” with his brother to remain in Australia in circumstances where he could only speak “basic English”, and further, in circumstances where he could go back to Japan where he already had work and study opportunities. In this sense, and in context, at that part of the hearing the applicant was directing his evidence in response to the suggestion that he had concocted his entire factual account as to the claims of persecution in China.
Notwithstanding that context, the applicant now says that the Tribunal misunderstood the nuance implicit in what he said. That is, that in spite of saying “…I can go back to Japan…”, what he really meant, in context of his claims, was that he would have liked to go back to Japan because of his previous advantageous circumstances there. But in light of subsequent events, he could not do so.
The only relevant evidence before the Court is the transcript of the hearing put before the Court by the applicant. It reports the words set out above at [100] and [102]. There is no evidence before the Court that there was any relevant error in interpretation at the Tribunal hearing or that the level of interpretation was not adequate.
The applicant was represented before the Tribunal by a registered migration agent. His representative was present at the hearing. If there was some nuance to be drawn from the applicant’s words or some explanation to be made of what he (literally) said, then despite opportunity, nothing was put to the Tribunal in this regard (see for example T46 lines 38 – 41 where such an opportunity was given to the applicant).
It may be that the “nuanced” reading of what the applicant said at T38 is what he meant. But what he actually said provides the probative basis for the Tribunal’s finding of inconsistency.
The second particular states that there was no probative basis for the Tribunal’s finding that he gave inconsistent evidence about the financial support he received from his brother. The applicant directed to the Court’s attention here to [130] (at CB 132) to [133] (at CB 133) of the Tribunal’s decision record.
The Tribunal stated that, in his protection visa application, the applicant said that his brother, who was in Australia in 2008 and 2009, terminated his studies so that he could support the applicant’s studies overseas. The applicant stated that his brother “supported [the applicant] financially …thus [he] could study in Japan…” (CB 18.5 and see also [130] at CB 132). No complaint is made about this particular part of the Tribunal’s decision record.
At [131] the Tribunal stated (at CB 133):
“During the hearing, the applicant said that he had financial support from his brother while doing the language course from April 2009 to April 2011, but supported himself when studying economics in Japanese which he began in 2011. He said that the financial information he had provided in support of his visitor visa to come to Australia in 2011 was correct; the bank statement from Japan was correct. The source of the funds was his work at a noodle shop. He had saved 600,000 Yen (approximately $7,000) before coming to Australia. He had been working in Japan for more than one year. He also worked as a dishwasher. He had three jobs at one time just before he came to Australia. He had a job from 6 am to 11 am five days a week making noodles. His second job was washing dishes at night, two or three days a week from 6pm to 10pm. His third job was only at weekends. He stir fried noodles eight hours per day at a stall in a supermarket. He was working seven days a week. He only went to school Monday to Friday from 1 pm to 4.30 pm. That was the only way he could afford his tuition fees and living costs. He was studying economics in Japanese before coming to Australia. He had completed half a semester because had just graduated from language school after two years’ study, from April 2009 to April 2011.”
The applicant says that if regard is had to the transcript of the hearing, particularly at T25 to T27, his evidence was that while his brother had been supporting him financially, he increased his working hours (“overtime”) and started to earn more money. Before that point he was unable to earn enough to pay his fees and other expenses himself. That is, the applicant explained, before the Court, there was a period of transition. Therefore, there was no inconsistency. The applicant said this was another example of the “kind of nuance” relied on by the Tribunal to make adverse credibility findings.
The difficulty now for the applicant is that he made no mention in his application for the protection visa of working in Japan and financially supporting himself in a transition period, or otherwise. The clear meaning of what was in his protection visa application was that his brother “continuously supported” him “financially” so that the applicant could study in Japan. His brother did so until the applicant came to Australia (CB 18.5).
The meaning that the applicant now urges as to what he said is the same explanation that he gave to the Tribunal when it pointed out the inconsistency to him (see T27 lines 11 – 30 and [132] at CB 133).
In all, there was a probative basis for the Tribunal’s finding. That the Tribunal did not accept his explanation in the circumstances, does not provide a basis for arguing such legal error on the part of the Tribunal.
Particulars three and four have been dealt with above. The Tribunal’s findings here were made on probative material before it. No illogicality is revealed (see further above).
I note further, and in any event, as the Minister submitted, to make out illogicality in light of SZMDS and SZOOR such complaints must be directed to the Tribunal’s decision as a whole. Here, in this ground, the applicant complains only about some of the antecedent findings made by the Tribunal leading to its adverse conclusion as to the applicant’s credibility. I agree with the Minister that these matters complained of in this ground are insufficient, given the number of other separate and independent matters raised by the Tribunal adverse to the applicant’s credit, to render the decision (as a whole) illogical, or for that matter irrational (see Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 at [83] – [84] (per Barker J), SZOOR at [85], SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [111] – [113] and SZRLQ v Minister for Immigration and Citizenship [2013] FCAFC 566 at [66]). In all, ground four is not made out.
Ground Five
In ground five, the applicant complains that the Tribunal failed to make “an obvious inquiry about a critical fact, the existence of which is easily ascertained”. The reference here is obviously to the High Court’s consideration in Minister for Immigration v SZIAI (2009) 83 ALJR 1123 (“SZIAI”).
The applicant particularised his ground by saying that the Tribunal made adverse findings at [123] (at CB 131) to [128] (at CB 132) and [138] (at CB 134 to CB 135) about the applicant’s credibility without having regard to certain country information (“RRT Country Advice, China, CHN 40255 – National Security Bureau – Falun Gong – Public Security Bureau, 30 April 2012 (“the country advice”) attached to the affidavit Ms Khan).
The Tribunal, in part, rejected the applicant’s claim that his room in Japan had been raided by Chinese officials because the applicant insisted the organisation that had conducted the raid was the “NSB”. The Tribunal relied on country information that the Chinese organisation responsible for “external” intelligence gathering was the “MSS”. Further, that, based on country information, the “NSB” was a Taiwanese, not Peoples’ Republic of China, agency.
In SZIAI, the High Court said at [25]:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”
The applicant, by way of Ms Khan’s affidavit, pointed to the country advice referred at [118] above, which is advice contained in the Tribunal’s own database (see [2] of the affidavit of Ms Khan and “Annexure A” to that affidavit).
The applicant drew attention to that part of the country advice which states (“Annexure A” page 5 of the affidavit of Ms Khan):
“Although no information was located that referred specifically to MSS activities in Japan, it is widely accepted that Chinese authorities monitor and interfere with pro-democracy adherents and other grounds perceived as dissident in many countries outside of China, including Australia. In 2009, former MSS officer Li Fengzhi told the US Congress that China was running a vast intelligence operation domestically and internationally to suppress dissent. Li claimed the PRC government uses ‘lies and violence to suppress people seeking basic human rights’, and ‘uses huge expenditure of funds to suppress ordinary citizens and even extend their dark hands overseas’.
Before the Court, the applicant well understood that there is no general duty on the Tribunal to “inquire”. (See also Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [22] (per French CJ and Kiefel J). That is, that SZIAI did not stand for any such proposition. The thrust of the applicant’s attack, however, was that the Tribunal made a “negative” credibility finding based on its understanding of country information. In these circumstances, the applicant submitted it may have been appropriate, given what he said was the “limited duty” posited in SZIAI, that the Tribunal should have consulted country information stored in its own database.
I pause here to note what must be the precise nature of the applicant’s ground. Clearly, in light of SZIAI, it cannot be an assertion of a failure of its duty to inquire (SZIAI at [25]). To seek to understand the applicant’s ground in that way would, as the High Court said, “direct attention away” from the relevant question.
The question posed here, therefore, is whether, by failing to examine its own database, the Tribunal fell into jurisdictional error because it failed in its duty to review the delegate’s decision. That is, a failure, as the High Court said, may be to not make an “obvious” inquiry, about a “critical” fact, the “existence” of which is “easily ascertained”.
Before the Court, the Minister described the Tribunal’s failure to refer to the particular country advice referred to in the affidavit of Ms Khan as “curious”. This was because the country advice was in the Tribunal’s own database, and the relative “ease” with which the applicant’s solicitors were able to access the database and locate this country information.
I did not hear argument from the Minister that the elements derived from SZIAI of “existence” or “easily ascertained” did not exist, or that the notion of “obvious” inquiry was not engaged. The dispute between the parties came to whether it was about a critical fact in issue.
Before that consideration, I should note the Minister’s comment that the level of “curiosity” is expanded by asking the question as to why the applicant who was represented by what was described as “an experienced migration agent” (see CB 79.7), did not put this information to the Tribunal himself.
While this may be a “curious” feature, it is at least initially, the Tribunal’s duty to review which is at issue before the Court. The applicant said this was an obvious inquiry about a critical fact which should have been made because the matter of the applicant’s description of the name of the organisation that “raided” his room in Japan was “critical” in the Tribunal’s rejection of his credibility.
It is important to note what the country information relevantly says about this matter, as compared with the Tribunal’s relevant findings. Relevant from the Tribunal’s reasoning and findings are the following elements:
1)The applicant claimed, and insisted, that the raid was conducted by the “NSB” (at [123] at CB 131 and [127] at CB 132).
2)The Tribunal had country information that:
i)The “NSB” was a Taiwanese agency, not from the People’s Republic of China (at [123] at CB 131).
ii)The Peoples’ Republic of China body responsible for external intelligence gathering was the “MSS” (at [123] at CB 131).
3)The letter from the applicant’s roommate stated that the raid was conducted by the “SSB” (at [125] at CB 132).
4)The Tribunal could find no country information that “MSS” agents conducted “such raids” in Japan or elsewhere outside China (at [137] at CB 134).
5)The Tribunal found that the applicant’s evidence about the “NSB raid” was inconsistent with what was stated in the roommate’s letter (“SSB raid” at [127] at CB 132).
The Tribunal’s last finding above was plainly open to it on what was before it. The applicant focused, however, on the Tribunal’s findings at [128] (at CB 132):
“The Tribunal finds that the applicant’s evidence about the name of the agency which he claimed conducted the raid in Japan was inconsistent with the country information, which it accepts is correct, and also with the name in the letter. The Tribunal also finds that agents of such a secret body stating the name of the agency during the raid is inconsistent with the claimed secrecy of that agency. For those reasons, the Tribunal finds that the applicant’s evidence was not credible on this issue.”
The country information now accessed by the applicant’s solicitors traverses the following:
1)The “NSB” is “most commonly associated” with Taiwan (page 4 of the affidavit of Ms Khan).
2)Further, from page 4 of the affidavit of Ms Khan:
“There are conflicting reports concerning the existence of a NSB in the People’s Republic of China (PRC). Examination of the Chinese language versions of several media reports that refer to a NSB in China, show that they use a variety of Chinese characters for NSB, but the most common are: [Chinese characters]. These characters can be translated as ‘State Security’ and are used for the Ministry of State Security [Chinese characters]. It is noted that the same character [Chinese characters] are used by both the Taiwanese National Security Bureau and the PRC Ministry of State Security. It is concluded that the term National Security Bureau could be an alternative translation of State Security organs or officials (responsible for international operations as previously discussed) or in some cases of Public Security bodies, such as the police or the 6-10 Office, who are responsible for domestic security. See the next section for further discussion.
Reports by open source global intelligence providers and government agencies on the PRC’s various intelligence agencies omit any reference to the existence of a NSB. Rather, these reports maintain that the Ministry of State Security (MSS) has responsibility for carrying out foreign intelligence operations, including reporting on Chinese students abroad who were Falun Gong practitioners or who engaged in pro-democracy activities.
An assessment of Chinese intelligence agencies by the military news provider, GlobalSecurity.org, describes the MSS as the Chinese government's intelligence arm, responsible for foreign intelligence and counterintelligence operations, including taking action against the Falun Gong…”
3)The applicant’s submissions also referred to the excerpt above at [120] of this judgment.
The applicant’s argument was that this document raised the following matters:
1)Whether there is an “NSB” in China? [The Tribunal said that it was only in Taiwan and that the applicant’s evidence was inconsistent with country information.]
2)The document makes reference to the “MSS” (the Chinese government’s intelligence arm) carrying out foreign intelligence operations including “reporting” on some Chinese students abroad. The Tribunal found adversely to the applicant here because it said it could find no country information that the “MSS” conducts raids overseas (that is, outside China).
The applicant argued that these two items above would at least have caused the Tribunal not to have been so explicit or positive in its relevant findings, which in turn led to the adverse view of the applicant’s credibility. Before the Court, the applicant described the finding that the “NSB” was Taiwanese and not Peoples’ Republic of China as “absolutely foundational to the credibility finding”.
The applicant pointed to SZRTF & Anor v Minister for Immigration & Anor [2013] FCCA 91 at [64] (per Judge Driver) and SZLGP
at [48] – [49] (per Logan J) as recent examples of jurisdictional error being found in circumstances where the Tribunal “failed to investigate”: For reasons explained below, I did not see either of these authorities of being assistance to the applicant in the circumstances of this case. [I note, in any event, since the hearing before this Court, the Minister has been successful in his appeal in Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377].The Minister’s position, against the applicant’s ground, was that the inquiry although easily made, cannot be said to be about a critical fact. He gave two reasons for this.
First, that the character of the information itself was equivocal and in any event not inconsistent with what the Tribunal has stated.
The Minister notes, for example, that the material, in part, relates to pro-democracy dissidents, which was not an element of the applicant’s claims.
In my respectful view, the relevant position, as explained by the High Court in SZIAI, is not necessarily whether the information itself is critical, but whether there should be an inquiry “about a critical fact in issue”. This, in my respectful view, puts the focus on determining whether the fact in issue is a critical fact in issue in the review, and then to determine whether the inquiry is about that critical fact in issue. In that sense, I comprehend that the character of the subject of the inquiry (in this case the country information) is to be “about” the critical fact in issue. Further, having regard to what was said at [25] in SZIAI, the circumstances in which the duty explained there may arise are “rare and exceptional”. (See Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] (per Kenny J)).
It is the case that some of the information is equivocal (for example: “there are conflicting reports concerning the existence of the NSB in … the… [People’s Republic of China]” page 4.4 of the affidavit of Ms Khan). It is also the case that the information, in part, was directed to “pro-democracy adherents” (page 5.7 of the affidavit of Ms Khan).
However, as set out above, the question is whether the inquiry was about a critical fact in issue. The critical facts relevant here were the name of the Peoples’ Republic of China external intelligence gathering bureau, whether the “MSS” conducted raids in Japan and overseas, and whether there was “no country information” to that effect.
I accept that parts of the country information were not relevant to a fact in issue. However, other parts plainly were. Further, that some parts of the information were expressed in equivocal terms does not mean that the information, which would have been the subject of the inquiry, was not “about” a fact or facts in the review.
As the applicant submitted before the Court, the Tribunal’s relevant findings here were not attendant with any doubt about what the country information which it did consult, said about the above mentioned facts in issue. The Tribunal was highly confident in its assertion of the relevant county information which it did consult. That there was other country information, in its own database, which could have been the subject of an obvious inquiry and easily ascertained and that could have shone some different, albeit equivocal, light on its understanding of the country information situation stands against this particular part of the Minister’s submissions.
In my view the Minister was on stronger ground with his second reason for rebutting the applicant’s argument. The Minister’s position was that the matters (facts in issue) relevant to the proposed inquiry of the country information attached to Ms Khan’s affidavit were only a few of many “difficulties” that the Tribunal had with the account of the claimed raid on the applicant’s room in Japan and whether it was conducted by the “NSB” or anyone else. The Minister said that was a matter of comparative “minor importance”.
In my view what makes a fact a “critical” fact in issue is, at least, its relevance to, and the degree of reliance on or importance to, the conclusion of the review. I respectfully note what was relevantly said in SZIAI at [25], and as noted in Minister for Immigration and Citizenship v MZYCE [2010] FCA 767 (the case relied on by the Minister now), that a failure to make an obvious inquiry about a critical fact “could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” the delegate’s decision (emphasis added).
In the circumstances of the current case, therefore, does such a “sufficient link” between the failure to make the inquiry of the Tribunal’s database exist to the outcome such as to say that jurisdictional error has been demonstrated? Noting of course, that the circumstances generally, where this may be so, are limited.
The Tribunal’s adverse credibility finding (that is, the conclusion reached at [140] at CB 135) was plainly critical to the outcome of the review. The Tribunal rejected the large proportion of the applicant’s factual claims to fear harm because of this conclusion. Even those parts that it did accept (primarily his conduct in Australia in attending religious activities) were not of assistance to the applicant, because the Tribunal found, given its adverse credibility finding, that the applicant only engaged in these activities to enhance his protection claims. This was done in circumstances, also, where the Tribunal otherwise accepted that his level of knowledge of Roman Catholicism was consistent with such attendance.
The question, therefore, is, were the matters of the name of the organisation (“NSB” or “MSS”), and whether the “NSB” was a Peoples’ Republic of China or Taiwanese organisation, “critical” to the adverse credibility finding.
On balance, in my view, and on a fair reading of the Tribunal’s decision record, the answer is in the negative. There were a number of elements that the Tribunal relied upon to reach the adverse credibility conclusion that are not related to the country information.
In this regard, the Tribunal found that the applicant’s own evidence that the “NSB belongs to the MSS” had no basis, and “that he was seeking to reinforce his claim by making up something that was impossible to disprove” ([124] at CB 132). In context, that there was no basis put forward by the applicant to explain this claim.
Similarly, the Tribunal’s found that it could not accept that agents of such a “secret agency” (the “NSB” – as the applicant claimed) “would have announced the name of such a secret agency” when they conducted the raid, as the applicant and his roommate asserted ([125] at CB 132 and see also [128] at CB 132).
Further, the Tribunal found that the name of the agency given in the roommate’s letter was inconsistent with the name of the agency as claimed by the applicant. That finding of inconsistency was not dependent on what the actual name of the agency was and whether it conducted raids, but simply that the fact of the inconsistency arose from the process of evidence provided to the Tribunal by the applicant himself.
The Tribunal also found as unpersuasive and implausible the applicant’s claim that local police in China raided his (religious) “friends” and then four or five days later raided his room in Japan and this was consequentially conducted by Chinese security agents. It gave reasons for this which did not involve country information ([137] at CB 134).
While some of the reasons for the Tribunal’s finding at [137] (at CB 134) to [139] at (CB 135) were reliant on country information, the other reasons were not. For example, the Tribunal did not accept that the applicant’s claimed activities were of such seriousness as to have warranted raids overseas, particularly in relation to material that was readily available in China. The Tribunal did not view it as inherently “important” or confidential information, nor did the Tribunal accept that the raid, in the circumstances could have been organised so quickly. The Tribunal also did not perceive that there was any “urgent threat” to China’s national security to have warranted such action. Further, the Tribunal gave little weight to the letter from the applicant’s roommate in Japan, given the Tribunal’s concerns about its contents, but in particular the coincidence of its timing of being sent to the applicant at the time he was in Australia.
Finally, the Tribunal found it implausible that the applicant and his brother would have friends in China in “distinct provinces”, to whom they had, independently, sent religious material, who were arrested variously in September 2011, and who then disclosed their activities to Chinese authorities at a time which was coincidental with the applicant’s visit to Australia (August 2011). None of these findings would have been modified by the country information. Relevantly, however, these findings assist in putting the findings involving the country information into perspective.
Of even further assistance to the Minister’s position in this regard is that there were a number of other matters on which the Tribunal’s conclusion on credibility relied, which had nothing to do with the claimed raid in Japan.
These included, the applicant’s own evidence on other matters, which was found to be inconsistent, his brother’s claimed financial support, the applicant’s circumstances in Japan and returning to Japan, his explanations for these inconsistencies, which in some aspects were also found to be inconsistent, and the matter of the photograph including the large statue of a praying angel with, allegedly, the applicant and his brother standing before it ([134] at CB 133 to [135] at CB 134). None of these related to the claimed raid or the facts which the applicant now says should have been the subject of further inquiry.
In this light, I agree with the Minister that the findings about the “MSS”, while part of the assessment of the applicant’s credibility, were not in themselves such as to elevate the relevant findings to be about “critical” facts in issue in the review and, therefore, require the inquiry the applicant now urges. In that sense it cannot be said that the Tribunal fell into jurisdictional error by failing to make an obvious inquiry, about a critical fact, the existence of which is easily ascertained. That is, a jurisdictional error in the conduct of the review. Ground five is not made out.
Conclusion
None of the applicant’s grounds of review in the further amended application reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 23 December 2013
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