FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1121

Migration Act 1958 (Cth) s 476(1)(g), s 476(4)(b)

Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264 at [15]  followed

Curragh Queensland Mining v Daniel (1992) 34 FCR 212 at 220-221 followed

CHEN YOU FANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 550 of 2001

STONE J

15 AUGUST 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  the application be dismissed;

2.                  the applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

REASONS FOR JUDGMENT

1                     The applicant claims to be a citizen of China who arrived in Australia on a false Malaysian passport.  He applied for a protection visa on 12 April 1995. His application was refused by a delegate (“Delegate”) of the respondent on 3 January 1997 and the Refugee Review Tribunal (“Tribunal”) handed down a decision affirming the Delegate’s decision on 17 April 2001. On 7 May 2001, the applicant commenced proceedings in this Court seeking review of the Tribunal’s decision, apparently under Part 8 of the Migration Act 1958 (Cth) (“the Act”). An amended application, which was more fully particularised, was filed in Court on 13 August 2001.

criteria for grant of protection visa

2                     Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Geneva Convention Relating to the Status of Refugees, as “amended” by the 1967 New York Protocol Relating to the Status of Refugees (compendiously, “the Convention”). Article 1A(2) of the Convention provides that a refugee is any person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

the applicant’s claims

3                     In his written statements, the applicant had claimed that he had a well-founded fear of persecution because of his political activities. He claimed that both his parents had been persecuted because of their political opinions. His mother died as a result of that persecution when he was only two months old and his father, who had been classified as a ‘counter-revolutionary’, when he was aged four years. Since that time he was subject to close scrutiny by the authorities and subjected to “mental and physical mistreatment owing to my political activities”. He claimed that, during the pro-democratic movement of 1989, he gave at least three public speeches in which he called for the overthrow of the authorities and, as a result, he was imprisoned for six months. He said that in 1992 he set up a “Life Protection Committee” to protest against the government’s policy of forced sterilisation. He was sent to a reform farm for re-education in 1993 where he was forced to do “hard manual jobs”. After an unsuccessful attempt to escape in August 1994 (for which he was ‘seriously punished’), he escaped in October 1994. He claimed to fear imprisonment or even death if returned to China.

4                     On 21 September 1998, the applicant attended a hearing before the Tribunal. Because the Tribunal member who presided over that hearing left the Tribunal without making a decision, a further hearing was held on 13 March 2001 with a differently constituted Tribunal. In evidence given at the two hearings, the applicant claimed to have been conscripted into the Chinese Army when he was only sixteen years old because he was an orphan. He claimed that he and his wife had suffered because, having three children, they were in breach of China’s “one child” policy. After the birth of the second child he had been detained for four or five days and a fine had been imposed, although this fine was never paid. He claimed that, after the birth of his third child, the authorities came to Yunan and took his wife and children back to Guantau where she was forced to undergo sterilisation. He was again fined, and again he failed to pay.

the tribunal’s decision

5                     In making its decision, the Tribunal considered the applicant’s protection visa application, written submissions, a recording of the first hearing of the Tribunal and oral evidence given at the second hearing. The Tribunal also considered independent evidence concerning the political situation in China.

6                     The Tribunal accepted that the applicant was a citizen of China who had arrived in Australia on a false Malaysian passport issued in the name of “Ong Seng Hock”. It evaluated his claims on this basis.

7                     Overall, the Tribunal did not find the applicant “to be a credible or a truthful witness”. The relevant passage in the Tribunal’s reasoning is as follows:

“I do not find Mr Chen to be a credible or a truthful witness. There are a number of difference[s] between the evidence which he gave to the Department and at the two hearings, some of his claims are at odds with other information available to me and I found much of the evidence which he provided implausible or unconvincing. While some of the problems are relatively minor and considered in isolation would not have caused me to disbelieve the bulk of his evidence, others are more serious and, after considering all of the evidence, I find the overall pattern is such that I do not believe that he left China because he feared persecution for a Convention reason, nor that he is currently of interest to the Chinese authorities for a Convention reason.”

8                     As can be seen from the above passage, the Tribunal reached its conclusion based on internal inconsistencies in the applicant’s story, conflicts between it and the independent evidence and the inherent implausibility of some claims. It is not necessary to set out all such instances but some examples are:

·               the applicant’s claim to have been conscripted into the army was contrary to information from the Australian Defence Intelligence Organisation (advice dated 12 May 1992, CX908) that while Chinese law provides for conscription, until the 1980s the number of volunteers was sufficient for the needs of the military and the army was an entirely voluntary force;

·               the accounts of the democracy movement in 1989 with which the Tribunal member was familiar did not suggest that the one child policy was an issue raised by demonstrators. Further, the demonstrations in Fuzhou were very limited and mainly restricted to students. It was inherently implausible that the applicant was imprisoned for six months for making speeches about the one child policy when he had no prior political involvement;

·               Mr Chen’s description of where he had been at different points in time was confused and internally inconsistent;

·               Mr Chen’s account of the activities of the Life Protection Committee was vague and internally inconsistent. At the first hearing, he stated, despite the first Tribunal member’s expressed doubt, that he had publicised the group’s policies by talking to people. At the second hearing, he told the Tribunal that he and his friends had produced several thousand leaflets by hand and distributed them secretly at night.

9                     The only element of Mr Chen’s story that the Tribunal was prepared to accept was that the applicant was imprisoned for a short period and fined following breach of China’s family planning regulations. The Tribunal noted, however, that China’s family planning regulations are laws of general application and that being fined pursuant to such laws does not constitute persecution for a Convention reason.

Grounds of review

10                  An amended application was filed in Court at the hearing. That application lists only one ground of review, being that there was no evidence or other material to justify the making of the decision. The particulars of this claim as set out in the amended application are:

a.                  The Tribunal based the decision on a fact, being that there was an inconsistency in the applicant’s evidence in his referring to working odd jobs and doing carpentry jobs and that fact did not exist, as the odd (sic) were carpentry work.

b.                  The Tribunal based the decision on a fact, being that the applicant gave evidence that the joined the army at 16 and left the army in 1976 and that fact did not exist as he gave evidence that he was in the army from 1976 to 1980.

c.                  The Tribunal based the decision on a fact, being that the “Great leap forward” occurred before the applicant was born and that fact did not exist.

d.                  The Tribunal based the decision on a fact, being that there was an inconsistency in the applicant’s evidence he was calling for the overthrow of the Chinese Government and he campaigned against the one child policy and this fact did not exist.

e.                  The Tribunal based the decision on a fact, being that there was an inconsistency in the applicant’s evidence in that he did not pay two 30,000-Yuan fines and this fact did not exist.

f.                   The Tribunal based the decision on a fact, being that there was an inconsistency in the applicant’s evidence regarding his arrest in either 1992 or 1993 and this fact did not exist.

11                  The first point to notice about these particulars is that in the section of the Tribunal’s reasons headed, “Findings and Reasons for Decision”, there is no mention of the matters referred to in (a), (b) or (c) of the amended application. These matters are mentioned only under in the section headed, “Claims and Evidence”, where the Tribunal describes the claims made by the applicant and gives some details of the exchanges that took place between the applicant and the Tribunal at the hearing. Those exchanges indicate that, where the Tribunal did not find the applicant’s evidence convincing or where there were inconsistencies in the evidence (as for example between claims made at the first and second hearings), the Tribunal gave the applicant an opportunity to address its concerns.

12                  Although the possibility that the Tribunal may make findings in a section dealing with claims and evidence cannot be discounted, it should not be inferred in the absence of any indication that it has done so. As the Full Federal Court commented in Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 at [15], “[o]bservations or comments by the Tribunal about perceived inconsistencies in the evidence are not ‘particular facts’ within par 476(4)(b)”. On my reading of the Tribunal’s reasons, it made no findings of fact concerning the issues mentioned in (a) and (b) above . One example is sufficient to illustrate the point. In discussing the applicant’s work history the Tribunal noted the following:

·        that in his initial application, the applicant stated that he had worked at odd jobs since he completed four years primary schooling;

·        that at the first hearing, the applicant said that he had begun to learn carpentry at the age of twelve and had later worked either as a carpenter or as a farm worker;

·        that at the end of the first hearing, he added that he had served in the army for four years;

·        that the applicant indicated that he worked as a carpenter after leaving the army; .

·        that at the second hearing, the applicant said that he worked as a carpenter in the village where he established the Life Protection Committee.

13                  The Tribunal did not refer to these claims as being inconsistent but merely described the claims as being made by the applicant. In setting out the reasons for its decision the Tribunal made no comment on this issue. In my opinion it made no finding on the issue of the applicant’s work history. Even if I am wrong on that point, there is nothing in the Tribunal’s reasons to support the claim that any such fact was critical to the making of the decision and therefore a particular fact on which the decision was based within the meaning of s 476(4)(b); Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221.  A similar analysis applies to the claims made in (b) above.

14                  The ground of review in (c) suffers from a similar defect to the ground of review in (a), however, in relation to the Great Leap Forward, the Tribunal did make an adverse comment in the section headed “Claims and Evidence”. The comment is

“The Member pointed out [to the applicant] that the Great Leap Forward had occurred before Mr Chen was born. Mr Chen said that he had been very young when his parents died and that his father had committed suicide because of the problems he faced.”

The issue is not mentioned again in the Tribunal’s reasons, in particular, it is not mentioned as a reason why the Tribunal rejected any particular part of the applicant’s evidence. The Tribunal’s comments (set out at [7] above) indicate that it was the overall pattern of inconsistency and implausibility rather than any particular ‘relatively minor’ problem in the evidence that formed the basis for its findings on credibility. In light of this, I am unable to find that the Tribunal’s finding that the Great Leap Forward had occurred before Mr Chen was born, if in error, was critical to the making of the decision and therefore a particular fact on which the decision was based within the meaning of s 476(4)(b). Accordingly, I must reject the ground of review in (c); Curragh Queensland Mining v Daniel (above) at 220-221.

15                  The alleged ground of review in (d) above relates to the applicant’s claim to have been imprisoned in 1989 for six months because of his involvement in the 1989 pro-democracy movement; see [3] above. The Tribunal’s comments on this point are summarised in [8] above. After considering independent evidence concerning that movement, the Tribunal rejected the applicant’s claim not only because it was inconsistent with independent evidence but also because it was “vague and unconvincing” as well as internally inconsistent. It is clear that the Tribunal was not expecting perfect recall. It commented:

“While confusion about the timing of events in the past is not uncommon, it is not plausible that such confusion would have caused Mr Chen to say that he and his family had wandered like refugees and that he had lived in several different places after leaving Yunan if they had lived in only one place during this time. Furthermore, his inability to give a reasonably accurate account of when these events occurred even after I pointed out these discrepancies at the hearing suggests that he was not being completely frank in the evidence which he provided.”

16                  In my opinion the Tribunal’s findings on this issue were open to it on the evidence.

17                  The applicant claimed that fines were imposed upon him after the births of his second and third children but that these fines were never paid. In describing this claim the Tribunal made the following comment:

“Later in the hearing when I commented that the authorities had not seemed greatly concerned about enforcing the family planning regulations after the birth of his second child as he had not had any problems despite the fact that he never paid the fine which he claimed had been imposed, he said that the authorities came and asked him about the fine a number of times, but he always said that he could not pay and would pay when he could.”

18                  I can find nothing in the Tribunal’s reasons to support the claim, made in (e) above, that the Tribunal found any inconsistency in the applicant’s evidence concerning non-payment of these fines. The Tribunal accepted this evidence but, for reasons set out in [9] above, felt it was not persecution for a Convention reason.

19                  In relation to the claim made in (f) above, there is also nothing to indicate that the Tribunal found any inconsistency in the applicant’s inability to be more precise about the year of his alleged arrest than to say it was 1992 or 1993. It did not make any issue about the imprecision and, as the comment quoted in [14] above indicates, appeared to accept that some imprecision or confusion was not surprising in the circumstances. At the hearing, counsel for the applicant accepted this analysis and conceded that the ground of review in (f) could not be made out.

20                  In my opinion, it was open to the Tribunal to make the findings it did based on the fact that the applicant’s evidence contained inconsistencies and was, in the Tribunal’s view, inherently implausible. To consider whether I would conclude that the applicant’s claims were implausible and inconsistent or whether I would make the same findings would be to review the Tribunal’s decision on its merits. The grounds of review put forward by the applicant cannot be supported and the application must be dismissed with costs. 

Associate:

Dated:              15 August 2001