FEDERAL COURT OF AUSTRALIA

SZILS v Minister for Immigration and Citizenship [2007] FCA 1356

SZILS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD640 OF 2007

SPENDER J

13 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent, fixed in the sum of $2,800.00.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Raphael FM on 21 March 2007, who dismissed an application for review of a decision by the Refugee Review Tribunal (the Tribunal) to grant her a Protection Visa. 

2                     The appellant is a citizen of the People’s Republic of China who arrived in Australia on 21 August 2005.  On 27 September 2005, she lodged an application for a Protection Visa.  A delegate of the first respondent refused the application for a Protection Visa on 14 November 2005. 

3                     In the reasons for decision of 14 November 2005, the delegate of the Minister, after referring to country information, said:

The above information confirms that forced abortion and sterilisation are illegal in China and any identified breaches are investigated and the perpetrators punished.

4                     The delegate then continued:

I accept that the applicant may well have incurred a fine and been subject to administrative measures (such as re-education sessions) after bearing a second child, in breach of China’s “one child” policy.  However, if her account of undergoing a forced sterilisation is true, she would have had recourse to legal action.  I am not satisfied that she was unaware of such procedures as forced abortion and sterilisation being illegal. I therefore have serious doubts about her credibility.

On 12 December 2005, the appellant applied to the Tribunal for a review of that decision. Unfortunately the appellant did not provide any evidence other than her own testimony in respect of her claim that she had been forced to undergo sterilisation in China. 

5                     According to her original claim she claims that when she returned to her home village in April 2004 the China Public Security Bureau attended her home and took her to the temporary clinic of the Birth Control Office and she was there forcibly sterilised.  Medical evidence corroborating her claim of sterilisation would have gone a long way to supporting the acceptance of her claim.

6                     No such evidence was produced to the Tribunal, nor has any such evidence been since produced.  The Tribunal rejected all her claims, the Tribunal finding that she was not a witness of truth.  The Tribunal made very strong findings, and the reasons for those very strong findings seem, at least to me, to be a very shaky basis for those findings. 

7                     It was not a case where the Tribunal simply had not been satisfied of the claims.  The  Tribunal said:

The Tribunal does not accept that the applicant was of interest to family planning officials in China or that she was forcibly sterilised in China as she claims.  The Tribunal also does not accept that the applicant was practising in/belonged to the Shouter sect in China and does not accept that she was baptised as a Christian and set up a Bible study group in China as she claims.  It follows that it does not accept that she was the leader of a Bible Study group which also distributed propaganda material against the government in China.

8                     The basis for the rejecting as untrue the claim by the applicant that she converted to Christianity in China, joined the Shouter sect and formed a Bible group, was the rudimentary answers, in the Tribunal’s view, to questions about what she knew and preached about Christianity. 

9                     In SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129, the Tribunal had found that the appellant had fabricated the claim that he had become a Falun Gong practitioner in 2002.  It rejected his contention that his wife had been detained upon her return to China, and was not satisfied that his involvement in Falun Gong activities before being taken into detention in 2004 was otherwise than for the purpose of strengthening his refugee claims. 

10                  In respect of this finding, the Full Court of the Federal Court (French, Lander and Besanko JJ) said at [45]:

Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine.  Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.

The Full Court concluded in the circumstances of that case:

…there was ample ground for the Tribunal to find that the appellant’s case was fabricated and, a fortiori, that it could not be satisfied as required by section 91R(3) that his engagement in Falun Gong activities was otherwise than for the purpose of strengthening his claim to be a refugee.

11                  The Tribunal’s finding, that the appellant’s claim of being interrogated by authorities in China about her religious or political activities with the Shouter Sect of the Christian church was false, was based on the failure by the applicant to be able to provide their approximate dates to the Tribunal.  The justification was that her evidence of and answers about conversion to Christianity, joining the Shouter Sect and forming a Bible group was, in the Tribunal’s view, rudimentary in nature. 

12                  The Tribunal accepted that the applicant had attended an organisation in Australia called “the Local Church in Sydney.”  The Tribunal also accepted country information that indicated that the Shouter sect of the Christian church was also known as the Local Church. 

13                  The Tribunal, however, said:

… there is no evidence before the Tribunal about the purpose, background and business of the Local Church in Sydney.  The Tribunal does not accept that the applicant has attended the Christian, Shouters sect church in China prior to her leaving that country and considers and finds that she will not attend such a Church if she returns to China.

14                  Concerning the question of sterilisation, which one would have thought was capable of objective verification one way or the other, the Tribunal said:

Apart from the applicant’s evidence to the Tribunal which the Tribunal considers is unreliable, there is no other evidence to support her claim that she has been forcibly sterilised in China.  The applicant took time to remember the date when she claims she was forcibly sterilised in China when asked by the Tribunal and the Tribunal finds that this claim has been invented by the applicant to assist her claims for a protection visa. 

(Emphasis added).

15                  The strength of the Tribunal’s findings generally, and the assessment of the factors underpinning them, were matters for the Tribunal to make and assess.  It is difficult not to avoid the concern, nonetheless, the findings being so fragilely based, they were made so as to render the decision appeal-proof.

16                  McHugh J explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [66]-[67]:

[66]     In this case the tribunal made an express finding that it did not accept the prosecutor’s wife’s evidence.  That was sufficient to comply with the requirements of section 430(1). 

[67]     In addition, the prosecutor alleges the tribunal breached s 430(1) by failing to set out reasons for its findings that the prosecutor’s claim that members of PLOTE tried to recruit him were, “utterly implausible”.  However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence.  If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.  In any case, the reason for the disbelief is apparent in this case from the use of the word, “implausible”.  The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

17                  As Sir Gerard Brennan has indicated, it is not the function of the Court to correct administrative injustice or administrative error.  If judicial review has that consequence, so be it, but it is not the function of the Court to substitute its view as to findings of fact for the findings which the Tribunal reached. 

18                  The Federal Magistrate outlined the finding by the Tribunal that it did not accept the appellant as a credible witness.  His Honour stated that reasons were given for that conclusion.  Although another Tribunal may have not come to those same conclusions, the matters on which the conclusion was made were within the task allotted to the Tribunal and decisions of credibility are decisions of the Tribunal par excellence.

19                  His Honour noted that although one may not agree with the assessment, it would be difficult to say that it was not a logical assessment based upon rational grounds.  His Honour also made the point that it was not the job of the Court to substitute its views for those of the Tribunal.

20                  I have considered in detail the reasons for judgment of Raphael FM.  In my judgment no error attends his Honour’s conclusions.  In particular, there is nothing to doubt the correctness of his finding that there was no jurisdictional error in the decision of the Tribunal. 

21                  For these reasons the appeal to this Court has to be dismissed.

22                  At the hearing I expressed my concern at the sweeping nature of the factual findings by the Tribunal, particularly in the absence of medical evidence one way or the other as to the correctness of the claim of sterilisation, and I made observations to the appellant in this case as to the avenues that may be open to her pursuant to s 417 of the Migration Act 1958 (Cth), particularly if medical evidence can be obtained which corroborates important aspects of her claim that were so roundly rejected by the Tribunal.

23                  The orders of the Court are that the appeal is dismissed and the appellant is to pay the costs of the first respondent, which I fix in the sum of $2,800.00.

24                  A copy of the transcript of this proceeding is to be provided to the appellant.

Associate:

Dated:         29 August 2007