FEDERAL COURT OF AUSTRALIA

SZOFC v Minister for Immigration and Citizenship [2010] FCA 1269

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Driver delivered on 8 June 2010. Such decision dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 9 February 2010. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa (‘the protection visa’) to the appellant.

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China who arrived in Australia on 16 March 2009. On 30 April 2009 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship (‘the Department’). A delegate of the Minister refused such application on 15 July 2009. On 12 August 2009 the appellant filed an Application for Review with the Tribunal. The Tribunal conducted the appellant’s hearing on 15 October 2009, 13 November 2009 and 17 December 2009. On each occasion the appellant was assisted by a registered migration agent and an interpreter.

3                     In her visa application, the appellant claimed to fear persecution in China for reason of her political opinion. She claimed to have been involved in organising a protest in October 2007 against the building of a chemical plant in Nanxiao Village, Jiangjing Town, Fuqing City, Fujian Province, China (‘the appellant’s village’). She claimed the local residents strongly objected to the building of the factory because it would occupy a large portion of farmland and would cause serious pollution in the locality. The appellant claimed that in helping to organise the protest, she was the assistant to three organisers (‘the protest organisers’), who included her mother and two other persons. The appellant stated that from August to October 2007, she and the protest organisers approached local government officials at least 10 times asking that the plans to establish the factory be abandoned. However, such requests were rejected and the appellant and the protest organisers were threatened with punishment if they continued with their activities. Despite these threats from the government, the appellant claimed that the protest organisers decided to organise an open protest to be held on 16 October 2007.

4                     The appellant claimed that approximately 500 people attended the protest in Jiangjing Town. The appellant claimed that the protesters were stopped outside the police station in Jiangjing Town by the local police. The appellant claimed that after the protesters were beaten with sticks, more than 20 of the protesters including the appellant and the protest organisers were arrested. After a period of detention and questioning, the appellant claimed that on 12 December 2007 she and the protest organisers were formally arrested and subject to persecution and torture. The appellant claimed that following such treatment, the police coerced confessions from those arrested.

5                     The appellant claimed that on 21 January 2008, her mother was sentenced to three years’ imprisonment, the other two protest organisers were sentenced to two years’ imprisonment, and that she was sentenced to one year’s imprisonment. The appellant claimed she was mistreated during her incarceration at the Fujian Female Prison, and that the police continued to harass her when she was released in October 2008.

6                     The appellant also claimed that she was unable to obtain a passport in her own name, but with the support of other villagers had obtained both the funding to leave China and a passport in another person’s name containing an Australian visa. She claimed the police would continue to harass her if she returned to China, and that since her arrival in Australia the police had called on her family and her husband in China to ask where she was. She claimed she would be arrested if she returned because the authorities believed she was a threat to national security.

THE TRIBUNAL’S DECISION

7                     The Tribunal found that the appellant was not a witness of truth and had fabricated her claims in respect of her role in any protest in October 2007. On the basis of independent country information the Tribunal accepted that there had been a protest against the confiscation of land for the construction of a chemical factory in August 2007 in the appellant’s village (‘the August 2007 protest’), and found that a DVD submitted by the appellant related to this protest. The Tribunal found that the appellant did not appear in the DVD because she had not been present at the August 2007 protest. The Tribunal did not accept that the appellant had helped to organise, or had participated in, any protest in October 2007. The Tribunal noted that it was apparent that events in her village had been monitored and reported on since the August 2007 protest, and as such, the Tribunal considered that it was implausible that the alleged protest in October 2007 would have occurred and been unreported. The Tribunal noted that the appellant made no mention of the August 2007 protest until it was raised with her by the Tribunal. In this regard, the Tribunal made the following comments at paragraph [110] of its Findings and Reasons:

The Tribunal is of the view that the appellant had deliberately failed to mention that there had been a protest in August 2007 as this would have cast doubt on her claims that there had been a separate incident also because of land confiscation for the construction of a factory, within 2 months.

8                     The Tribunal concluded that the appellant had fabricated her claims using the August 2007 protest as the basis for an alleged October 2007 protest which did not occur. When confronted with such information the appellant claimed that there were two sub‑villages of the same name and that the protest of August 2007 involved a different sub-village.

9                     The Tribunal also found that the supporting documents put forward by the appellant did not contain truthful information, noting independent information which indicated that many official documents purporting to be from China are forged. In this regard, the Tribunal commented that the fact that the appellant was able to obtain a false passport exemplified her experience in obtaining false or fraudulent documents.

10                  The Tribunal rejected all of the appellant’s claims of past protest activity and associated harm. While accepting that the appellant had used another person’s passport to come to Australia, the Tribunal found that the appellant had done so because such passport contained an Australian visa and not because she was on a blacklist as she claimed.

11                  Given the above findings, the Tribunal was not satisfied there was a real chance that the appellant would be harmed for reasons of her political opinion, or for any other reason under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, ‘the Refugees Convention’, or ‘the Convention’) if she were to return to China. The Tribunal concluded that she was not a person to whom Australia owed protection obligations under the Refugees Convention.

APPLICATION TO FEDERAL MAGISTRATES COURT

12                  By Application dated 9 March 2010 the appellant applied for judicial review of the Tribunal’s decision. In such application the appellant complained that the decision of the Tribunal included a reasonable apprehension of bias. Driver FM held that there was nothing in the Tribunal decision or in the evidence before the Court which supported an allegation of bias. Rather, Driver FM held that the Tribunal’s decision demonstrated that it had gone to considerable lengths to thoroughly investigate the claims made by the appellant and had made a reasoned decision.

APPEAL TO THIS COURT

13                  On 29 June 2010 a Notice of Appeal from the decision of Driver FM was filed in this Court. The appellant’s grounds of appeal are set out verbatim:

1.                  His Honour at the Federal Magistrates Court erred in law in his finding (at [10] of his Honour’s reasons for judgement). The Refugee Review Tribunal (“the Tribunal”) might have established that my claims concerning a protest in October 2007 was a fabrication but such a Tribunal’s finding was established on her incorrect and unwarranted assumption – the Tribunal thought only one piece of the land in my home village had been confiscated by the government and that there was only one protest. However, Mr He’s evidence and the documents that he had brought to me from China have significantly evidenced that the Tribunal’s finding is completely incorrect and that my evidence is definitely true and genuine, because there are two piece of land in my home village had been confiscated; and there were two protests. Therefore, there was definitely a reason that the Tribunal must take a genuine attempt with independent mind to consider Mr He’s evidence and the document brought by him to me. As a matter of fact, I have never attempted to place myself in a protect which actually occurred in August 2007; and that details in my claims concerning the protest were absolutely accurate.

2.                  His Honour erred in law (at [11] of his Honour’s reasons for judgment), because the Tribunal’s decision has included a reasonable apprehension of bias.

3.                  His Honour erred in law (at [12] of his Honour’s reasons for judgement), because the Tribunal’s decision has included jurisdictional error.

SUBMISSIONS

14                  The appellant provided written submissions and made oral submissions at the hearing with the assistance of an interpreter. The written submissions of the appellant raise one further ground of appeal in addition to those contained in the Notice of Appeal and are largely not directed to the content of the Notice of Appeal. For the purposes of this judgment, the Court will deal with each of the grounds raised in the Notice of Appeal, before addressing the contents of the appellant’s submissions.

Ground 1 of Notice of Appeal

15                  As stated above, the first ground of appeal in the Notice of Appeal seeks to question the Tribunal’s factual findings that while a protest had occurred in August 2007, no protest occurred in October 2007 and that the documentation provided by a Mr He should be rejected as untruthful.

Finding

16                  The above ground seeks to dispute the factual findings of the Tribunal. The decision to reject both the evidence of Mr He and the claims of the appellant was made in consequence of the Tribunal’s finding that the appellant was not a witness of truth. The Tribunal further found that the documents provided by Mr He did not contain truthful information.

17                   A finding on credibility is a finding of fact and a function of the primary decision‑maker ‘par excellence’: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 at [67]. Such finding was a proper exercise of the Tribunal’s function and the Tribunal provided extensive reasons for the making of its factual findings. The Tribunal’s finding on the veracity of the documents supplied by Mr He is likewise a finding of fact. The Federal Magistrate was correct in holding that such findings were open to the Tribunal and no error of law is disclosed by such ground.

Ground 2 of the Notice of Appeal

18                  The second ground of the Notice of Appeal alleges that his Honour erred in law because ‘the Tribunal’s decision has included a reasonable apprehension of bias’.

19                  Driver FM had concluded in his decision there was no substance whatsoever to an allegation of bias. No written submissions or particulars were made in support of such allegation.

Finding

20                  Having considered the decision of the Tribunal, this Court can find no possible basis for the allegation of bias. The mere fact that the Tribunal found adversely to the appellant does not lead to any inference that bias or an apprehension of bias existed. The Court can discern no error by the Federal Magistrate in rejecting this ground and accordingly rejects Ground 2 of the Notice of Appeal.

Ground 3 of the Notice of Appeal

21                  The third ground of the Notice of Appeal alleges that ‘the Tribunal’s decision has included jurisdictional error’.

22                  Such ground is inadequately particularised in the Notice of Appeal however the written submissions provided by the appellant relevantly contain the following:

On one hand, “…the Tribunal accepts that many protests I China are not reported…” but, on the other hand, the Tribunal thought that my protest must be reported. The Tribunal’s finding was significantly relied on that “one protest against the land confiscation in Hua Tang Village held in August 2007 was report…”, then the protest in which I had been involved must also be reported.

If it were the case, then all protests in China would be reported while one or some of protests had been reported. Obviously, it is the case in China. In other words, it is definitely possible that many protests in China are not reported even if one or some of protests has been reported.

Therefore, the Tribunal’s decision is completely incorrect.

23                  The Tribunal accepted that many protests in China were not reported. At [106] of its decision it held:

The Tribunal accepts that many protests in China are not reported. However, in this instance, a protest against land confiscation in Hua Tang village held in August 2007 was reported, as was the arrest and sentencing of the 3 organisers.

24                  The appellant submits that it was possible, based upon the Tribunal’s findings, that the protest in which she was involved was not reported.

Finding

25                  Such ground is again merely a challenge to the factual findings of the Tribunal. The Tribunal found on the basis of independent evidence in the form of media reports that a protest had occurred in the appellant’s village in August 2007 which had lead to the arrest of three protesters. Such protesters were sentenced in January 2008, an event which was also reported. Although the Tribunal acknowledged that many protests in China are not reported, it concluded that given the reporting of the August 2007 protests in the appellant’s village, any protest in the same village in October 2007 would have also been reported. As the Tribunal was satisfied that such protest was not reported and following the Tribunal’s adverse finding on the appellant’s credit, the Tribunal found that no protest had occurred in the appellant’s village in October 2007.

26                   The interpretation and weight to be provided to independent country information is a matter entirely for the Tribunal: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 84 ALD 545 at [8]; NBKT v Minister for Immigration and Multicultural Affairs and Another (2006) 156 FCR 419 at [81], [84].

27                  The Tribunal’s finding was a finding of fact, open to the Tribunal on the evidence before it. There is no inconsistency in the Tribunal’s findings and accordingly no error in the Federal Magistrate’s decision to reject such ground.

Ground raised by the Submissions

28                  The appellant’s written submissions provide one further ground of appeal. The respondent submits that leave is required before reliance can be placed on such ground.

29                  Under such ground the appellant submits that Driver FM erred because his Honour failed to find that the Tribunal did not consider the appellant’s evidence fairly, logically, reasonably and properly. The appellant alleges that the Tribunal refused to consider documentary evidence provided to it because of the Tribunal’s finding that fraudulent documents were readily available from China.

30                  The appellant’s submissions provide a list of the documentary evidence that she alleges the Tribunal failed to consider including a ‘Letter of Petition’; a ‘Notification to the Family/Relative Work Place of the Arrested’; a ‘Notification on Permission to Appointing Defender’; a ‘Certificate of Release’; a letter sent by the appellant’s husband to her, and an official letter from Fuqing Municipality Jiangjing Town People’s Government. The appellant claims that the Tribunal failed to make any genuine attempts to consider her documentary evidence and failed to provide such evidence to the Department’s Document Examination Unit. The appellant noted in her submissions that the Tribunal had accepted that the appellant was able to provide detailed information concerning her imprisonment despite rejecting her claim that she had been imprisoned following a protest in October 2007.

Finding

31                  As stated above, the Tribunal’s findings in relation to the appellant’s credibility and to the veracity of the supporting documents provided to it are findings of fact: see NAHI at [10].

32                  The Court is satisfied that the Tribunal had regard to the above documents but rejected them on the basis that the information they contained was not true. As stated above, the Tribunal noted that independent country information indicated that many official documents emanating from China were forgeries. Furthermore the Tribunal was satisfied that no protest had been staged in the appellant’s home village in October 2007 and did not accept the appellant’s claims in relation to such protest. Accordingly the Tribunal rejected supporting documentation which attested to the truth of such claims. Further, the Tribunal had no duty to make further inquiries in respect of such documentation: see generally Minister for Immigration and Citizenship v SZIAI and Another (2009) 111 ALD 15; SZNBX and Another v Minister for Immigration and Citizenship and Another (2009)112 ALD 475.

33                  The Tribunal acknowledged that the appellant was able to provide detailed information concerning a detention centre and of an inmate’s day. However, the Tribunal concluded that the ability to describe such a place and an inmate’s experiences did not satisfy it that the appellant herself had been placed in detention for the reasons she claimed.

34                  The Tribunal provided extensive reasons for the making of its factual findings. There is no basis upon which it could be said that Driver FM erred in failing to find that the Tribunal considered the appellant’s evidence unfairly, illogically, unreasonably or not properly. This ground of appeal is solely a challenge to the fact-finding made by the Tribunal. No error of law is disclosed by such ground.

Conclusion

35                  The Court is unable to find any jurisdictional error on the part of Driver FM as claimed in the Notice of Appeal or the submissions.

36                  It follows that the appeal is dismissed.

Associate:

Dated:         19 November 2010