FEDERAL COURT OF AUSTRALIA

SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 18 July 2013: SZSBR v Minister for Immigration [2013] FCCA 847 (SZSBR). His Honour Judge Nicholls dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 20 September 2012. The Tribunal’s decision affirmed the decision of a delegate of the first respondent (Minister) made on 14 May 2012 to refuse the appellant’s application for a Protection Class (XA) visa (protection visa).

2    The appellant is a citizen of the People’s Republic of China who arrived in Australia on 15 October 2011. She travelled on a passport in her own name issued on 12 August 2011 and on a subclass TR-676 tourist visa. On 12 January 2012 the appellant applied for a protection visa with the assistance of a migration agent. The appellant failed to attend an interview with a delegate of the Minister on 11 May 2012 to which she had been invited after which the delegate made the decision to refuse the application.

claims

3    The appellant provided a written statement of her claims to support her application on 30 April 2012. Those claims are summarised at SZSBR [4]. The essence of her claims is summarised in the Tribunal’s reasons as (at [79]):

The applicant’s claims are that she was, in China, a Falun Gong practitioner and that she was twice arrested and detained for this reason (September to November 2005 and May to November 2009. She claims to fear persecution if she returns to China because, although she ceased to practise Falun Gong after her first arrest in September 2005 and has not practised since, the Chinese authorities will impute to her adherence to Falon Gong.

the tribunal’s decision

4    The Tribunal found that the appellant was not a truthful witness and had fabricated her claims for protection. It did not accept her claim to be a Falun Gong practitioner in China or at any time. It did not accept her claim to have been detained or subjected to any form of harm for that reason. Accordingly it affirmed the decision of the delegate not to grant the appellant a protection visa.

5     The Tribunal’s finding on the appellant’s credit had regard to her responses to the Tribunal’s concerns which were put to her about the genuineness of her claimed fear. They were:

a.    The lack of any corroborative evidence of her claimed arrests and periods of detention;

b.    That despite her credit being put in issue in the delegate's decision record, which the applicant has read, she made no effort to obtain any evidence although she stated at the hearing that such evidence may be available;

c.    That she obtained a passport and exit visa in her own name and departed China on a passport in her own name, which the independent information suggests are strongly indicative that she was not of adverse interest to the Chinese authorities;

d.    The three month delay attending her protection visa application, which she did not lodge at the first opportunity after her arrival in Australia and which she delayed until three days before her tourist visa was to expire;

e.    That her explanation for this delay was advice from a stranger she met once, rather than to have made enquiries with the Department;

f.    Her failure to attend the interview with the delegate, which was the best opportunity she had to prosecute her claim to Australia's protection;

g.    Her claim to have been sick on the day of the interview with the delegate, but neither instructing her agent, nor undertaking herself, to call the Department on the day to arrange for an alternative day; and

h.    The fact that she continues, as at the date of the hearing before the Tribunal, to rely on the services of the migration agent who, on her evidence (and the Tribunal does not endorse the applicant's accusations against that agent), negligently failed to act on her instructions that she was ill on that day and thereby failed to ensure that she had the best opportunity to present her claims to protection;

the appeal proceedings

6    The appellant filed her Notice of Appeal on 7 August 2013 which relies on the following grounds in respect of which no particulars were provided (errors in the original):

1.    The Second Respondent made a wrong test in making the decision.

2.    The Tribunal member asked me to provide the dates on which I was arrested. I could not remember the exact dates because it happened in September 2005 and in May 2009. I just wondering how many people can remember exact dates happened 7 years ago and three years ago, even some special things happened on that day. The Tribunal member mentioned this issue many times in the decision letter, such as paragraph 81, 87 and 92.

3.    The Tribunal member did not fully consider my claim that I had been persecuted in the past by Chinese government.

4.    In paragraph 90 of the decision letter, RRT member mentioned that I lodged my application just three days before my visitor visa expired. The Member did not consider the actual situation in relation to this matter. I arrived in Australia on 15 October 2011. Just a few days after I arrived in Australia, I went to a migration company to seek assistance. My migration agent [name of agent] asked what happened to me when I was in China, and he agreed to assist me. He asked me to write down what had happened to me in China. Then he asked me go to his office on 5 January 2012. I thought he had already lodged my application for a protection visa after first time I arrived in his office. After my protection visa was refused by the Tribunal, I asked [migration agent] why he lodged my application on 12 January 2012. He just said that my visitor visa valid until 15 January 2012.

7    Grounds 2, 3 and 4 are the same as the grounds argued in the court below. The first ground is slightly different. In the court below, the appellant claimed that the Tribunal member had been biased and that ground is not raised in this appeal. His Honour dismissed all grounds in the appellant’s application for review of the Tribunal decision.

8    At the hearing of the appeal, the appellant was self-represented and was assisted by an interpreter. The Minister was represented by Counsel and provided brief written submissions.

9    I accept the Minister’s submission that a credibility finding is a finding of fact par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The Minister contends that the Tribunal’s findings were open to it for the reasons that it gave, and accordingly, this Court cannot review the merits of the Tribunal’s decision in accordance with well established principles (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eschetu (1999) 197 CLR 611 at [56]). The appellant’s grounds go to the question of whether the Tribunal’s findings were open to it.

First ground

10    This ground was not raised in the court below. Without particulars it has no meaning. At the hearing today, the appellant said the Tribunal had relied on the fact that she was able to obtain a passport in China in her own name and she travelled on a tourist visa.

11    The Tribunal relied on independent country information as suggesting that the appellant’s capacity to obtain a passport indicates that she was not of adverse interest to Chinese authorities. The country information relied on by the Tribunal is summarised at [73]-[76] of its decision record. This information indicates that the Chinese government attempts surveillance of passports and the movements of people of interest, though there are queries as to its effectiveness. On this basis, the Tribunal’s reliance on the country information is open to it. I note that this is one of several factors relevant to the Tribunal’s credibility finding, not the sole factor. I therefore reject this ground.

Second ground

12    This ground was considered by the court below at [29]-[35]. His Honour considered that this ground encountered an initial difficulty as it was not an attack on the Tribunal’s decision as a whole, rather on an adverse finding among others leading the Tribunal to its conclusion. Despite this, his Honour went on to say:

[33] In any event, even focussing on this specific matter, I agree with the Minister that the Tribunal’s reliance on the applicant’s inability to recall specific dates cannot be described as irrational, or unreasonable, or the like. That is because, while minds may differ as to this matter, it was reasonably open to the Tribunal to find that the applicant’s inability to provide relevant detail, and the absence of such detail weighed against the applicant’s claims to protection.

[34] The Tribunal’s reasoning was that the events relied on by the applicant were so traumatic (arrest, detention and physical harm) that there was an expectation that the applicant would have been able to have “sharp recall” of those events ([87] at CB 106). Further, and as noted above, the matter of the dates was only one aspect of the lack of details in this regard (see [87] at CB 106 and [92] at CB 107).

13    I find no fault with this reasoning and therefore reject this ground.

Third ground

14    This ground was dismissed by His Honour in the Court below on the basis that it conflated the Tribunal’s decision not to accept the appellant’s claims with a failure to consider them. His Honour referred to the paragraphs of the Tribunal’s reasons at which it considered the appellant’s claimed harm in China: see SZSBR at [45]. Accordingly this ground is not made out and I reject it.

Fourth ground

15    This ground was fully considered by the Court below at [36]-[44]. His Honour addressed the fact that three months is not especially long, but referred to the Tribunal’s reasoning at [90] and [91] which took into account that the appellant’s visitor’s visa was only for 3 months and she had the assistance of a migration agent so that to wait until 3 days before the visitor’s visa expired to lodge the protection visa application was not consistent with her claimed fear of persecution. In this way the delay had significance. Counsel for the Minister relied on a decision of the Full Court of this Court in Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 at [10]:

Finally, it is said the Tribunal erred in relying on the decision of Heerey J in Selvadurai v Minister for Immigration & Ethnic Affairs  (1994) 34 ALD 347 - to the effect that it is legitimate in assessing the genuineness, or at least the depth, of an applicant's claimed fear of persecution to take into account any delay by the applicant in lodging an application for a protection visa. The Tribunal member commented:

“In the present case the Applicant's delay in seeking Australia's protection, coupled with the fact that he has left and returned to Sri Lanka on three occasions after the events which he claims gave rise to his fear of being persecuted leads me to conclude that he does not have a genuine fear of being persecuted if he returns to Sri Lanka now or in the foreseeable future.”

We see nothing wrong with this statement. Of course, the existence of delay does not end the inquiry. There may be a good reason for the delay, notwithstanding genuine and deep fears of persecution. In this case, the Tribunal did not suggest otherwise. We do not think the Tribunal misunderstood or misused the decision of Heerey J.

16    The appellant’s explanation to the Tribunal for the delay was reliance on advice from a stranger at Central Station in Sydney within days of her arrival; the stranger referred her to the migration agent. I agree with his Honour that the Tribunal’s inference from the delay was open to it and not irrational. That is so, even if it might be regarded as harsh. Further, his Honour was correct to note at [44] that the explanation advanced in the fourth ground was not available to the Tribunal, and so the new information in this ground invites impermissible merits review. It was also only one of several factors leading to the Tribunal’s credibility finding.

17    I also reject this ground.

Other matters

18    Although they were not raised as a ground of appeal, Counsel for the Minister made reference to two other matters addressed in the court below because of concerns raised by the Judge.

19    The first involved a comment made by the Tribunal at [83] of the decision record which suggested that it would not accept the claims of the appellant unless those claims were corroborated by supporting evidence. Such a comment raised the concerns expressed in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98, that a court could not reject the evidence of the appellant simply because no evidence could be adduced in support. On this issue, his Honour said:

[52] When the Tribunal’s decision record is read fairly, and that includes holistically, I accept the Minister’s submission that the Tribunal did not fall into the error identified in Machmud (see [48] – [50] above). A fair reading of the whole of [83] (at CB 105), and in the context of [80] (at CB 104) and [82] (at CB 105) and what immediately follows at [84] (at CB 105), reveals that the Tribunal, on balance, reasoned that the applicant’s responses to the concerns that it put to her were not such as to assuage its concerns about the applicant’s credibility.

[53] I note that one of these concerns is in the following terms ([82](b) at CB 105):

“That despite her credit being put in issue in the delegate’s decision record, which the applicant has read, she made no effort to obtain any evidence although she stated at the hearing that such evidence may be available.”

[54]    In context, this reinforces the view that I have ultimately taken of the Tribunal’s reasoning. That is, the credibility of the applicant’s entire factual account was at issue, the Tribunal had doubts about her credibility (for a number of reasons), these doubts and reasons were exposed to the applicant, yet she made no effort to obtain any such corroborative evidence. That is, even though she had told the Tribunal that such evidence may be available.

[55]    In this light, the issue for the Tribunal was its various doubts about the applicant’s claims which were not addressed by the applicant in the opportunity given to her. Ultimately that led to the Tribunal finding that the applicant had failed to give any satisfactory explanation for the absence of corroborative evidence. No legal error is revealed in these circumstances.

20    I do not find fault with this reasoning, although the Tribunal’s language is perhaps more forcefully expressed than desirable. I also find support in the reasoning of the Full Court of this Court in MZXSA V Minister for Immigration and Citizenship [2010] FCAFC 123 at [91] and Finkelstein J’s reasoning in Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336.

21    The second issue noted by his Honour was that the Tribunal had afforded the appellant the opportunity to comment on the eight matters referred to at [5] above which it said went to its finding that the appellant was not a credible witness. At [83] of the Tribunal’s reasons, the Tribunal says that it did this pursuant to s 424AA of the Migration Act 1958 (Cth). I accept his Honour’s reasons at [58]-[64] that what the Tribunal did was in excess of its obligations but putting those matters to the appellant was not adverse to her interests or unlawful.

22     I therefore dismiss the appeal and order that the appellant pay the costs of the first respondent as agreed or assessed. I also order that the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

Associate:

Dated:    15 November 2013