FEDERAL COURT OF AUSTRALIA

SZLHA v Minister for Immigration & Citizenship [2008] FCA 782

MIGRATION –impermissible review of merits – role of Refugee Review Tribunal to determine facts – task of judicial review – need for care when making credibility findings – no duty on part of Tribunal to call or hear further evidence

Migration Act 1958 (Cth) ss 424A, 426(3)

Abebe v Commonwealth [1999] HCA 14, 197 CLR 510 followed

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 followed

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Nguyen v Migration Review Tribunal [2008] FCA 524 followed

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407 followed

SZEOQ v Minister for Immigration & Citizenship [2008] FCA 257 followed

SZKQQ v Minister for Immigration & Citizenship [2008] FCA 242 followed

SZLHA v Minister for Immigration & Citizenship [2008] FMCA 143 cited

VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 followed

Kneebone S, The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role? (1998) 5 AJ Admin L 78

SZLHA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

Nsd 233 of 2008

FLICK J

28 MAY 2008

SYDNEY

THE ORDERS OF THE COURT ARE:

1.    The appeal be dismissed.

2.    The Appellant to pay the costs of the First Respondent fixed in the sum of $2,200.

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

REASONS FOR JUDGMENT

1                          The Appellant is a citizen of China who arrived in Australia on 23 November 2006.

2                          She applied to the Department of Immigration and Citizenship on 30 January 2007 for a Protection (Class XA) Visa. Her claim was based upon an assertion that she was a Falun Gong practitioner who feared persecution if she returned to China. A delegate refused to grant that visa on 24 February 2007 and an application for review was lodged with the Refugee Review Tribunal on 6 March 2007. The Tribunal affirmed the delegate’s decision.

3                          On 4 February 2008 the Federal Magistrates Court dismissed an application seeking review of the Tribunal’s decision: SZLHA v Minister for Immigration & Citizenship [2008] FMCA 143. The Appellant now appeals to this Court. The handwritten Notice of Appeal sets forth the Grounds of Appeal as follows (without alteration):

1.   the Tribunal did not carefully consider the information which was in favour of the applicant.

2.   the Tribunal no evidence or other materials to justify the making of the decision.

3.   the Tribunal failed to grant to me a visa without any proper grounds or any proper investigation.

4                          The Appellant appeared before the Court this morning unrepresented, but with the assistance of an interpreter.

5                          The Grounds of Appeal, it is considered, are but an impermissible attempt to review the factual merits of the decision reached by the Tribunal and should be rejected. A court conducting judicial review of an administrative decision must “beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The “weight” to be given to the evidence or particular pieces of information is for the Tribunal to assess: Abebe v Commonwealth [1999] HCA 14 at [197], 197 CLR 510 at 580. Justice Kirby there observed, in the context of those proceedings:

[197] It may be accepted that, as the applicant submitted, much of the Tribunal's statement of reasons focuses upon what the applicant said about her husband's arrest and whether what she had said on that subject was to be believed. But it did this in the context of assessing whether her claims that she had been persecuted in the past should be accepted. The Tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.

The task of making findings of fact, including findings as to credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 552, 559.

6                          In assessing credit, however, the Tribunal needs to be careful as to the manner in which it proceeds: cf Kneebone S, The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role? (1998) 5 AJ Admin L 78. A reading of the Tribunal’s reasons in the present appeal exposes the fact that the Tribunal was indeed very conscious as to the consequences of making such adverse findings. One instance is exposed by the following part of the Tribunal’s reasons:

This conclusion leads the Tribunal to find that those parts of her evidence as to her identity and how she came to leave China were untruthful. …

This does not automatically mean that the applicant’s evidence as to her practice of Falun Gong in China and related claims such as her detention is untrue. …

The Tribunal clearly proceeded carefully — and quite properly so.

7                          All of the Grounds of Appeal, it is considered, should be rejected upon this basis alone, namely that they are but an impermissible challenge to the merits of the decision as made by the Tribunal.

8                          It should further be noted, however, that each of the contentions sought to be advanced by those grounds is in any event misplaced.

9                          As to the first ground, the Tribunal did consider the information which was before it. It held a hearing on 16 April 2007 and the now Appellant attended. The “RRT Hearing Record” reveals that the hearing took some two and a half hours. The reasons provided by the Tribunal set forth at the outset the manner in which the Tribunal proceeded, the questions asked of the now Appellant, and her responses. Those reasons further set forth what it termed “INDEPENDENT COUNTRY INFORMATION” relevant to the treatment of Falun Gong practitioners. The Tribunal thereafter set forth its findings, based upon the evidence before it, and its reasons for decision.

10                        Relevantly, the Tribunal made adverse findings as to the now Appellant’s credibility. It thus found as follows:

… the Tribunal does not accept that the applicant is telling the truth about being a Falun Gong practitioner in China or that she is a genuine Falun Gong practitioner now. The Tribunal’s view flows from its findings about her credibility.

The Tribunal then recounted the now Appellant leaving China and returning. Its reasons continued:

The Tribunal also finds it implausible that the applicant, on her own evidence, could be in hiding from January 2006 because she is wanted by the PSB [Public Safety Bureau] yet would risk arrest by leaving China and returning in order to activate her passport so she could then get an Australian visa. This is more consistent with someone just engaging in a scheme to show a record of return travel in order to get an Australian visa.

The Tribunal proceeded to conclude that the now Appellant had practiced Falun Gong since arriving in Australia, but further found that “she has done this solely for the purpose of assisting her claim for refugee status in Australia”. The Tribunal’s ultimate finding was as follows:

… The Tribunal has found that the applicant has not been a practitioner of Falun Gong in China in the past, has not been a genuine practitioner of Falun Gong while here in Australia and finds, following from this, that she will not be a Falun Gong practitioner should she return to China.

Thus, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason should she return to China, now and in the foreseeable future.

11                        These findings of the Tribunal were based upon a consideration of the entirety of the evidence which was placed before it, including the evidence advanced by the now Appellant. Those findings of the Tribunal were open to it to be made. Clearly, the ultimate findings and reasons were based upon an assessment of the Appellant’s credibility. The task of making those findings has been entrusted to the Tribunal, and not the Federal Magistrates Court or (more relevantly) to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings “par excellence” entrusted to the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration & Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration & Citizenship [2008] FCA 257 at [27] per Lander J.

12                        The first ground is further without substance because the “information which was in favour of the applicant” — and which it was contended was not “carefully consider[ed]” — as referred to in the first Ground of Appeal, was in fact “carefully consider[ed]”. Although that “information” was not identified in the Notice of Appeal, it was identified by the Appellant during the course of her oral submissions, as translated. That “information”, it was said, was her evidence concerning:

(i)      the Appellant’s practice of Falun Gong in China;

(ii)     the reasons for her address being different between that set forth in her protection visa application and that recorded on a different application for a business visa;

(iii)   the reasons for her identification details being altered;

(iv)                her persecution in China prior to her arrival in Australia; and

(v)   her persecution in China should she be returned to China.

But each of these matters was in fact addressed and considered by the Tribunal. There has been no failure to consider that “information” which the Appellant claims was not considered.

13                        Even if the ground can be construed as anything other than an impermissible attempt to revisit the merits of the Tribunal’s decision, it is without substance. The findings as made by the Tribunal were findings of fact entrusted by the legislature to the Tribunal to make. Moreover, those findings were based upon a consideration of all the evidence, including that “information” which it erroneously was said was not considered.

14                        The first Ground of Appeal is thus rejected.

15                        The second Ground of Appeal is equally difficult to understand. The oral submissions as advanced by the Appellant at the hearing of the appeal, as translated, explained that this ground was intended to focus attention again upon the discrepancies as between the information set forth in her business visa application and her protection visa application. Rather than there being “no evidence” to support the findings as made by the Tribunal, the reasons of the Tribunal set forth the basis upon which it proceeded. In part the Tribunal found as follows:

The Tribunal considers that this would be too complicated a matter for a travel agent to just create letters that are forgeries in order to get a visa. There may be repercussions against the above-named organizations and reputations would be at stake. The Tribunal considers that the relevant China Chamber of Commerce, the organizer of the Trade Expo, with Government Departments would have carefully selected the participating companies and the companies would have carefully selected their candidates for the Expo.

The Tribunal does not consider that the evidence provided by the applicant shows that the Department’s file documents are not genuine. It further considers that the applicant’s claims are implausible: the Tribunal does not accept that a person who was not actually the person described in the business visa application could obtain a business visa in this way. The Tribunal considers that it is more plausible that a business person who has a previously unblemished police record could obtain a passport and an Australian visa and attend a Trade Expo and then seek asylum without any knowledge of the relevant China Chamber of Commerce or the person’s employers.

The Tribunal therefore does not accept that the documents on the Department’s file are fabrications used to create a new business identity for the applicant for the purposes of seeking asylum. The Tribunal therefore concludes that the Department’s file documents are genuine. Thus, the implausibility of the applicant’s claim and the weight of the documentary evidence on the business visa file suggests to the Tribunal that what is stated on the Department’s business visa file about the applicant is indeed her true identity.

That finding is, again, one entrusted to the Tribunal and it is not considered that it is possible to sustain a contention that the conclusion of the Tribunal was without evidential support.

16                        The second ground is also rejected.

17                        The final ground is also misconceived. The task of the Tribunal was to review the decision of the delegate in accordance with the Migration Act 1958 (Cth). On 15 May 2007 the Tribunal wrote to the now Appellant pursuant to s 424A of the Migration Act and specifically identified those matters in respect to which her comments were invited. That letter in part referred to evidence which had been given as to the work carried out by the now Appellant and evidence as to her true identity. The letter continued:

Such a conclusion may lead the Tribunal to find that parts of your evidence to it as to your identity was untruthful. This in turn may cause the Tribunal to doubt your truthfulness in relation to other parts of your evidence, such as your Falun Gong practice both here and in China, and it may also lead the Tribunal to find that you deliberately set out to contrive a claim for refugee status through your attendance at Falun Gong activities and related protests and demonstrations here in Australia.

Further time was sought by the now Appellant to respond to that letter and further time was in fact granted by a Tribunal officer. The now Appellant attended before the Tribunal at a hearing conducted on 16 April 2007 and ultimately replied to the May 2007 letter in July 2007.

18                        The Tribunal, it is considered, thereafter proceeded carefully and fairly and properly set forth in some detail the “grounds” upon which it based its decision. 

19                        The final Ground of Appeal, it should finally be noted, refers separately to the Tribunal proceeding without “any proper grounds” and to proceeding without “any proper investigation”. The reference to “proper grounds”, it is considered, adds nothing to the first two Grounds of Appeal. What further “investigation” should have been undertaken, but was not undertaken, was again not set forth in the Notice of Appeal but was developed during the Appellant’s oral submissions, as translated. The contention was that the Tribunal failed to call as a witness — or failed to make inquiries of — a fellow Falun Gong practitioner.

20                        That more specific contention must also be rejected. On 21 March 2007 the Appellant signed a “Response to Hearing Invitation” as forwarded to her by the Tribunal. That document asked a limited number of questions of the now Appellant. One of those questions was:

“Do you want the Tribunal to take oral evidence from any witnesses?”

That question was left unanswered. There is no further evidence to support a contention that the now Appellant asked the Tribunal to call the fellow practitioner as a witness or that the Tribunal denied a request to call that witness. Reference was made in the Tribunal’s reasons to the prospect of another person providing evidence, but the Tribunal noted that the now Appellant said of this person that she “had stated a few months ago that she was not writing letters for anyone any more to help in refugee applications”.

21                        In such circumstances it cannot be concluded that there was any failure on the part of the Tribunal to make a “proper investigation”. Nor was such a contention advanced before the Federal Magistrates Court. It should further be noted that even had the Appellant requested that a witness be called before the Tribunal, the Tribunal was under no duty to allow such evidence to be given: Migration Act 1958 (Cth), s 426(3). As was the like conclusion in VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178, there is not considered in the present proceedings to be any reason to find that an obligation was imposed upon the Tribunal to call or to hear further evidence from the fellow Falun Gong practitioner referred to by the now Appellant.

22                        The final ground is thus also rejected.

23                        An Affidavit was filed in Court on the day of hearing seeking a fixed costs order in the event that the appeal was dismissed. That Affidavit sought a fixed costs order in the sum of $2,200. There is no reason to question that quantification.

ORDERS

24                        The orders of the Court are:

1.       The appeal be dismissed.

2.       The Appellant to pay the costs of the First Respondent fixed in the sum of $2,200.

Associate:

Dated:         28 May 2008