FEDERAL COURT OF AUSTRALIA

SZEKY v Minister for Immigration & Multicultural &

Indigenous Affairs [2005] FCA 1138

SZEKY v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

NSD 978 of 2005

LINDGREN J

15 AUGUST 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘the FMCA’) given on 31 May 2005 (SZEKY v Minister for Immigration [2005] FMCA 677).  The FMCA dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 29 July 2004.  The Tribunal affirmed a decision of a delegate of the respondent Minister (respectively ‘the Delegate’ and ‘the Minister’) made on not to grant a protection visa to the appellant. 

2                     The notice of appeal states only one ground (solecisms preserved):

‘The Tribunal ignores relevant materials and makes an erroneous findings and reaches a conclusion that effects the exercise or purported exercise of the Tribunal’s power.’

3                     The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 26 March 2004.  On 7 April 2004, he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) under the Migration Act 1958 (Cth) (‘the Act’).

4                     On 30 April 2004, the Delegate refused to grant the protection visa. On 7 June 2004, the appellant lodged his application with the Tribunal for a review of the Delegate’s decision.

5                     The application for the protection visa was accompanied by a statutory declaration setting out the claims initially made by the appellant.  The following is the summary made by the Federal Magistrate of the ‘Claims and Evidence’ section of the Tribunal’s reasons for decision, which I adopt:

‘    —    In China, the applicant was a police officer but due to his political opinions and activities, he had been the subject of an investigation.  In China, the police are merely a tool for the Communist regime.

·        In October 1989, he applied for transfer out of the criminal team to the traffic team as he could not ‘tolerate corruptive and autocratic system’.  However, he remained a member of the Public Security Bureau (PSB) and had unwillingly witnessed the persecution of Falun Gong practitioners.

·        One day in July 2003, a friend asked him to obtain a passport for a Falun Gong practitioner.  Despite the risk involved, he formed a close relationship with a corrupt senior police officer who agreed to assist in obtaining passports for six Falun Gong practitioners.  The officer wanted RMB 20,000 for each passport.

·        On 23 October 2003, the applicant obtained the passports from the senior officer.  He also got them visas for Thailand through a friend and ‘personally escorted them to go through the customer, and then assisted them arrive in Thailand early January 2004’.  However, in March 2004, the Falun Gong practitioners were sent back to China.

·        He faced danger in China because he had assisted the Falun Gong practitioners.  He spent a large amount of money and bribed a friend in order to get a visa.  He has been informed that the Falun Gong practitioners have been arrested.  The senior police officer is under investigation.

·        If he were to return to China, he would be severely punished.’

6                     In answer to question 38 on the form of application for the visa, the appellant stated that from 1981 to 2004, he had been employed by the Shenzhen PSB (Public Security Bureau) as a ‘truck driver’.  In the accompanying statutory declaration, however, he had stated that after he graduated from ‘the middle school’, he was, ‘formally recruited by the police troop’.  In the statutory declaration, he said that in October 1989, he applied to be transferred ‘from the criminal team to traffic police team’, and worked as a traffic police officer from then on, and was still a member of the Public Security Bureau and still witnessed many unfair activities of the police, including, from July 1999, persecution of Falun Gong practitioners.

7                     Thus, it appears that if the correct understanding of the appellant’s answer to question 38 is that he was simply working as a truck driver throughout the long period from September 1981 to February 2004, he was saying something vastly different in his contemporaneous accompanying statutory declaration.

8                     Prima facie, a question arose as to the correctness of the isolated reference to ‘truck driver’, a fortiori because the appellant answered question 18 in the form that his occupation or profession before he came to Australia was ‘Police’.

9                     The Delegate stated that he found the appellant’s claim of 23 years of police service contradicted by his answer to question 38 that he had been employed from September 1981 to February 2004 by the Shenzhen PSB as a ‘truck driver’. 

10                  On 6 June 2004, the appellant wrote a letter to the Tribunal including a statement that he wished to correct the ‘mistake’ in his answer to question 38 concerning his past employment, stating:

‘I was employed as police by Shenzhen PSB (please pay attention to my answer to the question 18 of part C of application form).’

11                  The Tribunal conducted a hearing on 28 July 2004, which the appellant attended.  It lasted for nearly two hours.  The Tribunal member did not believe the appellant and gave reasons for not believing him.  Again, I find it convenient to set out the learned Federal Magistrate’s summary of the Tribunal’s adverse credibility findings (‘CB’ stands for ‘Court Book’):

‘a)       On 23 June 2004, the Tribunal invited the applicant to attend a hearing to give oral evidence and present oral arguments in support of his claims (CB pp.49-50).  The applicant accepted that invitation and on 28 July 2004 he attended an oral hearing before the Tribunal that lasted for nearly two hours (CB pp.51-52).

b)         On 19 August 2004, the Tribunal handed down its decision affirming the decision of the Delegate to refuse to grant the applicant a protection visa (CB p.58).  The Tribunal made adverse findings of fact in respect to the claims made by the applicant, on the basis of its assessment of the applicant’s credibility. The Tribunal made its strong adverse credibility findings for the following reasons:

i)          the Tribunal found the applicant’s evidence that he was a police officer since 1983 was inconsistent with the information he gave in Question 38 of Form C of his application for a protection visa that he was a truck driver and it was not persuaded by his explanation for the inconsistency (CB pp.14, 65);

ii)         the Tribunal found it implausible that the applicant had no formal identification about his claimed employment as a police officer.  It did not consider that the four photographs provided by the applicant were unequivocal proof of his claimed employment (CB pp.53-55).  Although, the Tribunal recognised that the applicant was in uniform in the photographs, it was not satisfied that the photographs were genuine.  The Tribunal found that it was plausible that some creative photographic techniques were used and gave the photographs no weight (CB pp.65-66);

iii)        the Tribunal found that the applicant’s claim that he did not want to be transferred in October 1989 was inconsistent with his earlier evidence that he had applied for the transfer.  Accordingly, it found that the applicant’s claim that he had applied for a transfer because he could not “tolerate corruptive and autocratic system” was not true (CB p.66);

iv)        the Tribunal found that the applicant’s responses in regard to the functions of the criminal and traffic police teams were “incommensurate” with his claims.  In particular, it found his answers in relation to the criminal team were “vague and general” and lacking in knowledge (CB p.66);

v)         the Tribunal found that the applicant’s claims about bribing a senior police officer raised serious doubts about his claim that he was against corruption and it did not make sense that he was a party to police corruption if he was against it (CB p.66).

c)         Accordingly, the Tribunal did not accept the applicant’s claims of harm, namely that:

i)          it found on “the basis of the evidence as a whole” that the applicant was not a witness of truth (CB p.66);

ii)         it found that he was not a credible person because of inconsistencies in his evidence, his limited knowledge of police work and his claimed unwillingness to be involved in police corruption when he asserted that he was against it (CB p.66);

iii)        it was not satisfied that the applicant had been a police officer since 1983 or any time and had assisted six Falun Gong practitioners in unlawfully obtaining their passports through the applicant’s connection with a corrupt senior police officer (CB p.66);

iv)        it did not accept that the applicant had escorted the practitioners to Thailand and now faced danger in the People’s Republic of China because his assistance was revealed (CB p.67); and

v)         it did not accept that the applicant had any political views because those views were contingent upon the applicant’s claims that he assisted Falun Gong practitioners, which the Tribunal did not accept (CB p.67).’

12                  The application for review before the FMCA set out six grounds, all of which were dealt with by the Federal Magistrate. 

13                  Before me this afternoon, when asked if he wished to say anything in support of his appeal, the appellant said that the reference to ‘truck driver’ must have been typed into his original form of application by his migration agent.

14                  I do not have before me the transcript of the hearing before the Tribunal or the FMCA.  The Tribunal recounted the appellant’s testimony in relation to his answer to question 38 as follows:

‘The Tribunal asked the applicant about the information he had provided at Question 38 of Form  C, namely, that between 1981 and 2004, he was employed as a truck driver.  The applicant said police officers drive trucks as well.  He said he is a genuine police officer but maybe he did not initially tell the truth because he “feared telling the truth”.  The Tribunal noted that in the application for review, the applicant had sought to amend the details he had provided at Question 38.  The Tribunal put to the applicant that it appears that he had done so because this was an issue that had been identified by the Delegate at page 5 of the Decision.  The applicant did not agree.’

15                  The question of the credibility of an applicant before the Tribunal is, generally speaking, a matter entirely for the Tribunal.  The Tribunal has devoted much more time than I have to a consideration of the detail of the evidence that was before it.  The Tribunal gave reasons in addition to the one relating to question 38 for not believing the appellant.  I do not think that any jurisdictional error appears on the face of the reasons of the Tribunal.

16                  Mr Reilly, counsel for the respondent Minister, has drawn the Court’s attention to two aspects of the Tribunal’s reasons.  Both of them concern s 424A of the Act.  The aspects of s 424A, which they concern, are subss (1) and (3)(b), which provide:

‘(1)      Subject to subsection (3), the Tribunal must:

(a)       give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.

(2)       ...

(3)       This section does not apply to information:

(a)        ...

            (b)        that the applicant gave for the purpose of the application; ...’

17                  The first aspect concerns the inconsistency between the appellant’s claim in his answer to question 38 in his original application, that he was a truck driver with the Shenzhen PSB from 1981 to 2004, and his claim in his accompanying statutory declaration that he had been a police officer from his graduation from middle school to March 2004.  In addition, the appellant told the Tribunal member that he had been a police officer since 1983 (and, for what it matters, he said this afternoon that he had been a police officer since the age of 22 years, that is, since 1984). 

18                  It suffices to say in relation to s 424A that when the appellant wrote to the Tribunal on 6 June 2004, referring to the ‘mistake’ in the answer to question 38 in his visa application, he gave that answer and his correction of it to the Tribunal for the purpose of his application to the Tribunal.  Accordingly, s 424A(3)(b) applied.

19                  The second aspect concerns the claim made in the appellant’s statutory declaration that in October 1989, the appellant applied to be transferred from the criminal team to the traffic team, and worked as a traffic police officer from then on, although still a member of the PSB.  The Tribunal member stated that the appellant gave evidence that in fact he did not seek to be transferred, and was transferred because another officer from the traffic team had paid a large sum of money to be transferred out of it.  The Tribunal member concluded, therefore, that a central claim which the appellant had made, namely, that he applied for transfer because he could not ‘tolerate corruptive and autocratic system’, was simply not true. 

20                  The question is whether, by reason of its reliance on the inconsistency, there was ‘information’ which constituted the reason or part of the reason for the Tribunal's affirming the decision under review, for the purposes of s 424A. 

21                  In WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276, a Full Court of this Court stated that:

‘A conclusion by the Tribunal that there was an inconsistency between two pieces of information was not itself “information” for the purposes of s 424(1).’

The Full Court thought that the word, ‘information’, in s 424A(1) was used in the same sense as it is used in s 424(1).

22                  With respect, I do not think those views are plainly wrong.

23                  The present case is not one in which the Tribunal relied upon the information stated in the visa application in the sense of accepting it.  Far from accepting that, as the appellant there alleged, he requested a transfer to escape an environment repugnant to his conscience, the Tribunal member either accepted the evidence given by the appellant on the hearing or, at least, noted the inconsistency between the two accounts without preferring one or the other.

24                  The information contained in the statutory declaration which accompanied the visa application was not the reason or part of the reason for the Tribunal’s affirmation of the Delegate’s decision.

25                  For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:              22 August 2005