Tao v Minister for Immigration and Multicultural Affairs

[2000] FCA 986

FEDERAL COURT OF AUSTRALIA

Tao v Minister for Immigration & Multicultural Affairs [2000] FCA 986

MIGRATION – Migration Act 1958 (Cth) – error of law – application rejected on the basis of credibility – significance of Tribunal stating alternative basis for decision

Migration Act 1958 (Cth) s 476(1)(e)

Selvarajah v Minister for Immigration and Multicultural Affairs (FC) [1999] FCA 724

QING TAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 218 of 2000

BRANSON J
SYDNEY
13 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 218 of 2000

BETWEEN:	QING TAO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	13 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal be affirmed.

2.        The applicant pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 218 of 2000

BETWEEN:	QING TAO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
DATE:	13 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has applied for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 February 2000 by which the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.  The decision of the Court is that the decision of the Refugee Review Tribunal should be affirmed.  The following are my reasons for this decision.

2. The applicant was represented before me today by Mr Simpson of counsel.  Mr Simpson abandoned reliance on all of the grounds of review set out in the application other than the ground that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision (s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”)).

3. The applicant is a citizen of the People’s Republic of China (“the PRC”).  She arrived in Australia on 25 April 1999 using her own passport.  Her passport had been issued by the PRC on 28 December 1998.  On 8 June 1999 she lodged an application for a protection visa.  The application for a visa was refused by a delegate of the Minister and on review by the Tribunal.

4. The applicant had the assistance of a migration agent in completing her original application for a protection visa.  In a statement annexed to the application she asserted that she left China because of political reasons.  She said that she became actively involved in the ‘6.4’ pro-democracy movement when “it happened”.  She said that as a student who had just graduated from High School she:

   “distributed leaflets, collected food, collected donations, gave speeches and ‘stirred up workers’.”

5. She claimed that because of her activities with the pro-democracy movement she was subsequently discriminated against in her work unit.  She did not receive promotion although she did a good job.  The statement went on to assert that:

   “This year is the 10^th anniversary of the ‘6.4’ Pro-democracy Movement.  I joined an organisation.  We planned to hold a demonstration for the Anniversary.  But unfortunately the plan was broken by the police.  Some members of the organisation were arrested.  They were searching me.  I knew sooner or later they would find me and arrest me.  I would be put into prison and tortured by them.”

6. The applicant’s original application shows that she lived at the one address in Shanghai from May 1969 to April 1999.  The application also shows that from 1989 to 1993 she was employed by a leather company as a businesswoman and from 1993 to 1998 she was employed by a business house as a saleswoman.

7. The written reasons of the Tribunal record that, at the hearing before the Tribunal, the applicant asserted that she had obtained her passport through connections and by paying a bribe.  She also asserted that from 1989 to 1993 she did not work “because each June 4th they came and investigated me” and that “[f]rom 1989 to 1993 generally speaking I did not work.  I was only put to a cleaning position.  Since 1993 I had to change and get a job.”

8. Before the Tribunal, when asked about the organisation that her application indicated that she joined in 1999, she said, in effect, that although the freedom and democracy movement had been in existence in 1989, in 1999 “they had the plan to re-raise the issue of fighting for democracy and against corruption.”

9. The Tribunal found that the applicant was not a credible witness and that some of the key aspects of her testimony and her claims were simply not plausible.  It found that a number of contradictions in her claims had not been explained to its satisfaction.  There is no direct challenge today to the Tribunal’s finding as to the applicant’s credibility.  However, it is contended that the Tribunal, in effect, appreciated that it may have erred in its assessment of the applicant’s credibility and thus came under an obligation to review her claims on the basis that each aspect of them was true.

10. This contention does not seem to me to reflect an appropriate reading of the Tribunal’s reasons.  The Tribunal’s reasons deal with some care with matters affecting the applicant’s credibility.  As I read the Tribunal’s reasons, it was simply seeking to say that, even if it had believed the applicant, it would not have been satisfied that she was entitled to a protection visa.  This is an approach commonly adopted by Tribunals and by courts.  As I read the written reasons of the Tribunal, it had no real doubt that its findings concerning the applicant’s credibility were correct.  It said on more than one occasion that aspects of her claim were implausible. On this basis alone it seems to me that the decision of the Tribunal must be affirmed (Selvarajah v Minister for Immigration and Multicultural Affairs (FC) [1999] FCA 724. However, it is, I consider, appropriate to record that even if the Tribunal did entertain, contrary to my understanding, a doubt in respect of its own credibility findings, I do not think that any reviewable error in its reasons for decision can be identified.

11. Mr Simpson has referred me to pp 5-7 of the Tribunal’s reasons for decision.  At p 5 the Tribunal refers to the written statement of the applicant which was attached to her original application for a protection visa.  In that statement she said, as I have mentioned above:

    “They were searching me.  I knew sooner or later they would find me and arrest me.  I would be put into prison and tortured by them.”

12. At p 6 of its written reasons, the Tribunal referred to difficulties which the applicant told the Tribunal that she had experienced in her employment between 1989-1993 (see para 7 above).  It noted a contradiction between the information contained in her application for a protection visa, which showed that she worked between 1989-1993 as a businesswoman, and her oral evidence to the Tribunal.  Mr Simpson suggested the Tribunal may have misunderstood the evidence given by the applicant in this passage and that she may not have regarded a cleaning position as a proper job.  That was, I think, a matter for the Tribunal to decide, but even if the Tribunal was wrong in this regard, I do not think that the error could possibly have affected the Tribunal’s decision.  The applicant did not give evidence that she had experienced problems in her employment since 1993.

13. Mr Simpson also drew my attention to the passage in the applicant’s evidence to the Tribunal where she said:

    “After the crackdown of 1989 there was only a small movement.  Ever since there was no movement at all, but every year they came to investigate me.  The PSB came to warn me before June 4^th, ‘don’t say anything wrong’.  Before then some of the main people in the movement were being watched and in 1999, the 10 years anniversary, we were thinking of some sacrifice.  So some connections of us in the PSB warned us ‘try not to be in trouble’ because our activities were being watched. ‘You should try to be away, or on the eve of June 4th you will probably have no more freedom’.”  (see p 7 of the Tribunal’s reasons).

14. A critical issue before the Tribunal was whether the applicant had a well-founded fear of persecution should she return to China.  The passages from her evidence to which Mr Simpson has drawn my attention identify the nature of the persecution that she claims to fear.  The Tribunal concluded, on a basis plainly open to it that, as the applicant has only a low level political profile in China, the Chinese authorities have no intention “to do any serious harm to the applicant”.  By “to do any serious harm” to her, I understand the Tribunal to mean to harm the applicant in a way which is sufficiently severe to amount to persecution.  There was no suggestion before the Tribunal that the applicant’s profile in China has altered since she left the country.  Plainly the Tribunal did not accept that there was a real chance that the applicant would be arrested and tortured if she returned to China, or that she would be significantly prejudiced in employment or lose her freedom.  The fear that the applicant expressed concerning a possible crackdown by the authorities (see para 13 above) is a fear relating to events which she believed would occur at the time of the tenth anniversary of the pro-democracy movement.  This time will be well past should the applicant return to China.

15. There is, in my view, no basis under s 476(1)(e) on which the Tribunal’s conclusion that the applicant “does not have an objectively well founded fear of persecution for a Convention reason” can be reviewed.  The decision of the Tribunal must be affirmed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson J.

Associate:

Dated:   25 July 2000

Counsel for the Applicant:	Mr Simpson
Solicitor for the Applicant:	Coelho & Coelho
Counsel for the Respondent:	Ms McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 July 2000
Date of Judgment:	13 July 2000