SZMRV v Minister for Immigration & Anor [2009] FMCA 8 (5 February 2009)

Last Updated: 6 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRV v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 8

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of “personal beliefs” – claims detailed before the Tribunal – factual claims generally accepted but applicant not otherwise believed – whether the Tribunal overlooked relevant material or breached s.424A of the Migration Act 1958 (Cth) considered – whether the Tribunal’s rejection of the applicant’s credibility was open to it considered given that the Tribunal appeared to accept the factual bases for the applicant’s claims.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425

Applicant A & Anor v MIEA (1997) 190 CLR 225 SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592

Applicant:

SZMRV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2235 of 2008

Judgment of:

Driver FM

Hearing date:

18 November 2008

Date of last submission:

16 December 2008

Delivered at:

Sydney

Delivered on:

5 February 2009

REPRESENTATION

Counsel for the Applicant:

Ms K Welshman

Solicitors for the Applicant:

Austin Haworth & Lexon Legal

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2235 of 2008

SZMRV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 19 August 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
2. The following statement of background facts is derived from the applicant’s written submissions filed on 6 November 2008 and the Minister’s written submissions filed on 10 November 2008.
3. The applicant is a Chinese national who arrived in Australia on 30 September 2000. She applied for a protection visa on 29 February 2008. The applicant claimed that she would be tortured and persecuted for her personal beliefs if she returned to China. Since arriving in Australia she has given birth to two children, one by her first husband, also a Chinese national who is resident in Australia, and one by her second husband who is an Australian citizen, and from whom she is now divorced. She also has a son in China who was born in 1999.
4. The applicant’s visa application was rejected by a delegate of the Minister on 30 April 2008 on the basis that the claims were vague and brief and there was nothing in them to substantiate a claim of Convention based persecution.

Application for review

5. On 19 May 2008 the applicant filed an application for review of the delegate’s decision.
6. On 1 July 2008 the applicant appeared before the Tribunal. She made the following claims at the hearing:
   1. She had three children and would be subject to the one child policy and be forced to undergo sterilisation and possible fines and imprisonment for having three children. She claimed her family in China had been harassed for this reason.
   2. She had been the victim of domestic violence from her former husband in China who had physically harmed her and attempted to force her to undertake a breast enlargement and to become a prostitute. She feared that he would harm her if she returned to China.
   100. She feared that her former husband would inform the authorities that she was associated with Falun Gong prior to her departure from China in 2000.
   4. She had been involved with the Jehovah’s Witnesses in Australia.
   5. Her father was imprisoned when she was 10 years of age and she owed money in China.
   6. She was badly treated by an employer and her first husband and was concerned for the welfare of her sons if she returned to China.
7. The Tribunal rejected these claims on the basis that the applicant was not a credible witness.

The application and evidence

8. These proceedings began with a show cause application filed on 28 August 2008. The applicant now relies upon a further amended application filed in court by leave on 18 November 2008. The grounds in that application are:
   • 1. The Tribunal failed to take into account relevant considerations.
     • Particulars
     • (a) The Tribunal failed to consider whether or not the Applicant, by reason of her status as a repatriated asylum seeker, member of the ethnic majority and mother of three subject to the one-child policy, belonged to a particular social group for the purposes of the Convention.
     • (b) The Tribunal failed to consider whether or not the Applicant held a particular political opinion for the purposes of the Convention.
   • 2. The Tribunal breached section 424AA of the Migration Act 1958.
     • Particulars
     • (a) The Tribunal orally gave the Applicant particulars of the following information which it received from the Applicant:
       • i. That there were many different reasons the Applicant did not want to return to China, many of them not mentioned in her protection visa application;
       • ii. That the Applicant feared persecution from the government in China as a result of her breach of China’s one child policy, by having two more children in Australia;
       • iii. That the Applicant feared persecution from the government in China because her first husband would tell the Chinese authorities that she was a Falun Gong practitioner;
       • iv. That the Applicant feared persecution from government officials in China generally, giving the example of her father was locked up when she was ten years old and lost all his belongings and business;
       • v. That the Applicant feared persecution from her first husband in China because he had beaten her up and had injured her so as to cause a scar on her forearm;
       • vi. That the Applicant feared persecution from the government in China as a result of her personal beliefs;
       • vii. That the Applicant had been attending a church hall in Deniliquin for Jehovah’s Witnesses for the last six months;
       • viii. That the Applicant feared persecution because her family in China had been harassed for money by local officials.
     • (b) The above information would have been the reason, or part of the reason, for affirming the decision under review by virtue of the following:
       • i. The information, if accepted and relied on, may have excluded the Applicant from the definition of refugee in the light of section 91R(1)(a) of the Migration Act which requires that a Convention reason or reasons must be the essential or significant reason for the persecution feared.
       • ii. The information, if rejected, may have led the Tribunal to a view that she did not really fear persecution.
     • (c) The Tribunal failed to ensure that the Applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review.
     • (d) The Tribunal further gave the Applicant oral particulars of the following information, the source of which is not clear:
       • i. That the Chinese government would not persecute the Applicant or someone in her position for breaching the one-child policy because two of her children were born overseas; and
       • ii. That the one-child policy applies equally to all Chinese citizens.
     • (e) The information contained in (d), although possibly incorrect, would have been the reason, or part of the reason, for affirming the decision under review by virtue of the following:
       • i. That the Applicant did not have a well-founded fear of persecution; and
       • ii. That, in any event, any persecution would not be for a Convention reason.
     • (f) The Tribunal failed to ensure that the Applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review.
     • (g) By breaching section 424AA, the Tribunal committed jurisdictional error either by that breach alone or by the resulting breach of section 424A.
9. I received as evidence the book of relevant documents filed on 16 September 2008 and an affidavit by Renee Quinn filed on 13 November 2008 to which is annexed a transcript of the hearing conducted by the Tribunal on 1 July 2008.

Submissions

10. Counsel for the applicant made the following submissions:
    • Breach of China’s one child policy
    • The Applicant claimed at the Tribunal hearing that she feared persecution on the ground that she had breached china’s one child policy by having three children. The Tribunal accepted that the Applicant was apprehensive about how the one child policy would apply to her when she returned to China. However, while the Tribunal seemed to accept (CB 79, at para 44) that the Applicant could be subject to fines, imprisonment, forced sterilisation and forced abortion if she returned to China, it was not satisfied that she would be in such a position for a reason associated with the Refugees Convention. The Tribunal cited Applicant A & Anor v MIEA (1997) 190 CLR 225 in support of its reasoning.
    • The Applicant submits that the Tribunal failed to consider whether the Applicant, as a repatriated asylum seeker of the ethnic majority, from a rural area, who had breached the one child policy, belonged to a particular social group or held a particular political opinion for the purposes of the Convention. The Tribunal held (CB page 79, at para 44) that:
      • ...the independent evidence indicates that the one-child policy is imposed on all Chinese people and any punishments are a result of a perceived breach of Chinese laws and are not imposed for a Convention reason. It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purpose of the Convention.
    • The authority cited (Applicant A) contains an analysis of whether people who breached the one child policy, as it applied to Chinese couples more than ten years ago, belonged to a particular social group. In Applicant A, McHugh J found that the one child policy applied to all couples who had more than one child and that all couples who had more than one child did not constitute a social group for the purposes of the Convention, as there was no social attribute or characteristic to link them.
    • The Tribunal in its decision considered extrinsic evidence about the current application of the one child policy in China. It included advice from DFAT (CB page 77) to the effect that ethnic minorities are permitted to have more than one child, as are parents whose first child is disabled. In rural areas, couples are (unofficially) allowed to have a second child if the first child is a girl. While students who have children overseas may be exempted from punitive measures, repatriated asylum seekers are not.
    • In spite of the extrinsic evidence and the Applicant’s claims, the Tribunal held that the one child policy would not be applied ‘discriminatorily’ to the Applicant. However, the evidence suggests that ethnicity is a factor in the application of the policy, as is whether one lives in a rural or an urban area, and whether one is a repatriated asylum seeker. In the Applicant’s submission, the Tribunal erred in failing to consider whether those of the ethnic majority in China, those who live in rural areas and those who seek asylum in other countries constitute social groups within the meaning of the Convention. Likewise, the Tribunal failed to consider whether the Applicant held a political opinion for the purposes of the Convention even though the basis of the Applicant’s written claim was her ‘personal beliefs’.
    • Other claims
    • At the Tribunal hearing the Applicant raised a number of reasons why she feared returning to China. The number of claims raised was held against the Applicant and was the crux of the Tribunal’s adverse credit finding, in spite of the fact that the Applicant was repeatedly asked ‘Why is it that you don’t want to go back to China?’ (transcript Q 39, Q 48, Q 54). The claims are particularised in the second ground in the Applicant’s Amended Application.
    • In spite of expressing doubts about the veracity of each of these claims during the hearing, the Tribunal in its ‘Findings and Reasons’ accepted most aspects of the Applicant’s claims. In fact, the only claim explicitly and completely rejected was that the Applicant had been harmed by her first husband, resulting in the scar on her arm (page 80, para 48). Nonetheless, the Tribunal reasoned at para 53 (page 81):
      • Having considered all the evidence, the Tribunal does not accept that the applicant is a witness of truth and considers that the applicant manufactured claims at the Tribunal hearing progressively as each claim was questioned and doubted by the Tribunal. The Tribunal has found that it is not credible that she would not have, even in a cursory fashion, made the above claims to the Department in her application for a protection visa if she genuinely feared persecution for the reasons that she has claimed.
    • Far from strengthening the Applicant’s case for fearing persecution in China, the additional claims she made during the hearing became the main reason for the Tribunal affirming the Minister’s decision. The Applicant submits that if the information provided by the Applicant at the hearing was to be used against the Applicant, the Applicant should have been informed under section 424AA of the Migration Act 1958. The Tribunal informed [the] Applicant (transcript Q 82) as follows:
      • As I said before, I find it very problematic that none of this, there’s a whole range of claims that have been made today, none of them in your protection visa application. They’re very varied claims and it, I really do question whether you’re telling me the truth today. O.K. And as I said, as I said, if I don’t accept that you’re truthful or credible then I’ll agree with the department’s decision and find that you’re not a refugee.
    • The above appears to be an attempt to comply with section 424AA. However, the explanation does set out how the multitude of diverse claims raised freshly at the hearing would be relevant to the review or what the consequences of relying on the claims would be. It is not clear that the ‘whole range of ... varied claims’ is causally linked to the sentiment that ‘I really do question whether you’re telling me the truth today.’ It is not clear from the transcript whether the Tribunal doubts each of the claims on its own merits or whether it is the sheer number and diversity of claims that makes the Tribunal doubt all the claims, as well as those raised in the visa application. Looking at the decision, it is clear that the Tribunal took the latter view.
    • Furthermore, the Tribunal fails to explain at the hearing the consequences of relying on her various claims, which the Applicant submits are contained in ground 2(b) of the Amended Application. If the Tribunal did not accept the claims individually, or rejected them collectedly on the basis of an adverse credit finding, then the consequence would be a finding that the Applicant did not really have a well-founded fear of persecution. It is plain from the transcript that this was not adequately explained. What was not explained at all was that if the claims were accepted, they might be used to ground a finding that the essential or significant reason/reasons for the persecution feared were not associated with the Convention. After all the Tribunal did ask ‘why is it that you don’t want to go back to China?’ The question in that form was bound to elicit non-Convention reasons.
11. Counsel for the applicant also made oral submissions in which she contended, by reference to the court book and the transcript, that a particular social group claim fairly arising from the available material had not been considered in any meaningful sense by the Tribunal. Counsel also submitted “formally” that the Federal Court’s interpretation of s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”) in SZLXI v Minister for Immigration [2008] FCA 1270 at [27] and SZLWI v Minister for Immigration [2008] FCA 1330 was wrong and that my interpretation of the section in SZLTC v Minister for Immigration [2008] FMCA 384 at [15]- [16] should be preferred. That was a formal submission because I am bound by the Federal Court decisions in SZLWI and SZLTC to the extent of inconsistency with my own.
12. The Minister relevantly submits as follows:
    • In respect to ground 1, the Tribunal considered and made findings in respect to the Applicant’s claims as they were put by the Applicant at the hearing. The Tribunal was not obliged to speculate on claims not made and which did not squarely arise on the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 at [58]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at [19].
    • A particular social group does not exist merely because the Applicant can point to particular personal circumstances that may differ from the circumstances of others and thereby claim that she held fears because of those circumstances.
    • There was simply no material before the Tribunal that suggested that the Applicant shared ‘associative qualities’ with other persons that set them aside, as a cognisable particular social group, from society at large: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240-1, 249, 263-4 and 285-6; Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 206 ALR 242 at [36], [65] and [69]; see also Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
    • Further, there was no evidence as to the existence of a causal nexus between the Applicant’s fears and her membership of that particular social group: Applicant A at 240. That is, there was no material that suggested that the putative persecutors would persecute the Applicant because she was a member of a particular social group or that she held fears for reason of her membership of the particular social groups: Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565.
    • There is no evidence of these matters because the claims have been formulated on an ex post facto basis. It is plainly not open for a Court to find jurisdictional error in these circumstances as the claims did not squarely arise from the material before the Tribunal: see S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112 at [1].
    • In respect to ground 2, no s 424A(1) obligations arose in the present case. The matters particularised in the amended application as being part of the reasons for decision arose from the Applicant’s testimony before the Tribunal. That testimony constituted information that was given by the Applicant to the Tribunal for the purpose of her application for review and was thereby excepted from s 424A(1) obligations by reason of s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [41]- [64]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 at [48]; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35].
    • Further, the Tribunal’s appraisal of that testimony was not information: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18].
    • Accordingly, in circumstances where no s 424A(1) obligations arose there can be no jurisdictional error based on s 424AA and in any case there is insufficient evidentiary basis for inferring a breach of s 424AA: SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 at [19]- [21]; NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21].
    • Further, in respect to the Tribunal’s obligation under s 425, the Tribunal was not obliged to provide the Applicant with a running commentary on her testimony: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [48]. It was natural and obvious that the Tribunal would hold suspicions about the disparate claims made by the Applicant at the hearing. She had not previously raised these claims. The Tribunal was not obliged to put to her that the entirety of her claims were a concoction and in any case there is no evidentiary basis for a contention that the Tribunal did not put its appraisals to the Applicant: SZBEL at [38]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1993) 49 FCR 576 at 591; NAOA at [21].
13. Counsel for the Minister also made oral submissions in relation to the issue of the applicant’s credibility in the context of the Tribunal’s compliance with s.425 of the Migration Act in relation to the obligation of disclosure identified by the High Court in SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152. Counsel for the Minister took me to the transcript of the Tribunal hearing to support his contention that the Tribunal did clearly identify for the applicant the essential and significant issues upon which the review was likely to turn.
14. I invited additional submissions from the applicant on the issues concerning s.425 and the High Court decision in SZBEL and also in relation to the question of whether the Tribunal’s credibility conclusion about the applicant’s claims was open to it in the light of the Tribunal’s own factual findings in relation to the applicant’s claims. I gave the Minister the right to reply in writing if considered necessary.
15. Counsel for the applicant made the following additional submissions that were filed on 2 December 2008:
    • SZBEL
    • SZBEL seems to place an obligation on the Tribunal to raise with the Applicant those issues which will be or ‘turn out to be’ determinative of the Tribunal’s decision, where those issues were not touched upon by the Minister’s delegate. It appears that such an obligation is in addition to those contained in sections 424AA and 424A of the Migration Act 1958. Those provisions refer to ‘information’ rather than ‘issues’ and the obligations set out in those provisions relate to information that would be the reason or part of the reason for affirming the decision under review. The obligation contemplated by the High Court in SZBEL is an obligation to give an applicant a sufficient opportunity to give evidence, or make submissions, about what turn out to be determinative issues, working backwards from the reasons for decision, rather than forwards from the legislation. There is nothing in that decision to suggest that there is a limitation on the type of ‘issues’ the Tribunal has an obligation to raise, certainly not of the kind of limitations set out in section 424A(3). Indeed, in SZBEL the ‘issue’ arose out of ‘information’ given by the appellant.
    • In this case, the reasons given by the Minister’s delegate for refusing the visa were based on the paucity of evidence. The Tribunal’s reasoning was quite different. The Tribunal’s decision was based on a finding that the Applicant was not a witness of truth and her claims were manufactured. It was also, according to the reasons set out in paragraph 53 on page 81 of the Relevant Documents, based on a consideration that none of the claims, indeed not even all of claims considered cumulatively, ‘would result in a real chance that the applicant would suffer harm in China for a convention reason’. These two aspects of the Tribunal’s reasoning, one based on an express rejection of the Applicant’s evidence, and one based on an implied acceptance of it, are contradictory. However, given that both these contradictory concerns turned out to be determinative, the Tribunal was, according the SZBEL, obliged to raise them with the Applicant. There is no doubt that the Tribunal raised its concerns about the Applicant’s credibility during the hearing. The transcript shows that the Tribunal mentioned that it had difficulty believing the Applicant many times. However, it did not raise with the Applicant that her claims, when considered both individually and cumulatively, would not result in a real chance that she would suffer harm for a convention reason.
    • For example, when the Applicant raised her concerns about being associated with Falun Gong (Qs54-57, page 12 of the transcript), the Tribunal merely told her that it found the claim very hard to believe. It did not tell her that considered individually, an association with Falun Gong (which it did accept at paragraph 47, page 80 of the Relevant Documents) would not result in a real chance that she would suffer harm for a convention reason. Likewise, the Tribunal failed to tell the Applicant that her involvement with Christianity, if accepted (which it was in paragraph 49, pages 80 & 81 of the Relevant Documents) would not result in her suffering harm upon her return to China. Other ‘determinative issues’ that the Tribunal failed to alert the Applicant to, either individually or cumulatively, include her fear of what the corrupt Chinese authorities would to her based on what had been done to her father when she was ten years old (paragraph 50, page 81 of the Relevant Documents), her poor relationship with her second husband, and her apprehension about her children born in Australia adjusting to life in China (paragraph 52, page 81 of the Relevant Documents).
    • It is strange that the Tribunal should on the one hand find that the Applicant is not a witness of truth, and on the other accept all her claims (save for her claim that her first husband bashed her causing a scar on her arm). However, such was the nature of the Tribunal’s reasoning and because the above issues were determinative, obligations arose. Those obligations were not fulfilled. The Applicant was not only on notice that her claims might not be believed; she was not on notice that they would not qualify her for refugee status if they were believed (which by and large they were).
    • The Applicant submits that the Tribunal did not comply with its procedural fairness obligations laid down by the High Court in SZBEL.
    • Unreasonableness
    • As has already been touched upon in these submissions, the Tribunal’s decision is very odd in that it simultaneously rejects and accepts the Applicant’s evidence. On the one hand, the Tribunal finds that the Applicant’s claims were progressively manufactured; on the other it accepts all those claims bar one in its ‘Findings and Reasons’. In the paragraph containing the Tribunal’s ultimate reasons, the strands of contradictory reasoning are brought together. The Applicant says that the contradiction between the findings and the reasons, and indeed, the contradiction between the two strands of reasoning, render the decision unreasonable to the extent of Wednesbury unreasonableness. The findings, which imply an acceptance of some of the Applicant’s claims and express an acceptance of others (and only explicitly reject one), are not just incompatible with but contradict the ultimate reasons for affirming the decision of the Minister’s delegate. In this way the decision is completely illogical. It may be inferred that the Tribunal has attempted to ‘cover all bases’ but these efforts have resulted in a confusing decision where the findings and reasons do not match up. The Applicant says that the decision reaches the requisite level of perversity to give rise to jurisdictional error.
16. Counsel for the Minister provided the following additional submissions that were filed on 16 December 2008:
    • In respect to the Tribunal’s obligation under s 425, the Tribunal was not obliged to provide the Applicant with a running commentary on her testimony and was not obliged to put its natural and obvious appraisals of her own testimony to the Applicant: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [32] and [48]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1993) 49 FCR 576 at 591.
    • It was natural and obvious that the Tribunal would hold suspicions about the disparate claims made by the Applicant at the hearing. She had not previously raised these claims in her application for a protection visa. The Tribunal clearly put the Applicant on notice of its appraisal of her credit. This was determinative of her claims, notwithstanding that the Tribunal considered whether those claims, if true, would give rise to a well founded fear of Convention related persecution.
    • In any case, the Tribunal was not obliged to put any of its appraisals of her testimony to her during the course of the hearing. Those appraisals constituted an obvious and natural evaluation of the Applicant’s testimony: Alphaone at 591. The appraisals are not in the realm of those appraisals that give rise to procedural fairness obligations: see for example Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 102 ALR 339; Minister for Ethnic Affairs v Kumar (FCAFC 31 May 1990 unreported).
    • The Applicant was aware that she was applying for review of a decision in respect to her application for a protection visa. The Tribunal member outlined, during the course of the hearing, the matters that she had to be satisfied of: T p 3; see questions 50, 51, 52, 53, 55, 64, 81 and 85. There was no breach of procedural fairness.
    • In respect to the allegation of unreasonableness, it was not unreasonable for the Tribunal member to make an adverse credibility finding as to the Applicant’s claims and then to consider, even if those claims were true, whether they could satisfy the Tribunal that she held a well founded fear of persecution. The findings were not contradictory or illogical. The findings were open on the material before the Tribunal and therefore not unreasonable: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137], [138] and [147]. It was open for the Tribunal to find that her fears were not Convention based. The fact that the Tribunal was prepared to accept some aspects of her claims but found other aspects of her claims to be manufactured was open to it and was a matter for the Tribunal. It was permissible for the Tribunal to approach its decision making in the manner it did: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282.
    • The findings were not perverse as there was no countervailing weight of material before the Tribunal that suggested that the Applicant’s claims were true: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 368.
    • The findings were not illogical and in any case illogicality does not, of itself, establish jurisdictional error: NACB v Minister for Immigration [2003] FCAFC 235 at [29]; NATC v Minister for Immigration [2004] FCAFC 52 at [27].

Reasoning

Did the Tribunal fail to take into account a relevant consideration?

17. The applicant asserts that the Tribunal failed to consider whether she faced a well-founded fear of persecution by reason of her status as a repatriated asylum seeker, a member of the Han ethnic majority in China and a mother of three subject to the Chinese one child policy. The applicant asserts that the Tribunal needed to consider whether these various attributes placed her in a position of risk as a member of one or more particular social groups in China. The applicant also asserts that the Tribunal failed to consider whether she held a particular political opinion for the purposes of the Convention.
18. The Tribunal dealt with the applicant’s claim in the following way[1]:
    • When asked at the Tribunal hearing why she feared harm in China, the applicant first stated that it was in relation to the one-child policy. As indicated above, this claim was not mentioned on her application for a protection visa. Nevertheless, the Tribunal is prepared to accept that the applicant, a young woman of some 27 years, who has 3 children, would be apprehensive as to how the one-child policy would be applied to her. As discussed with the applicant at the Tribunal hearing, the independent evidence indicates that the one-child policy is imposed on all Chinese people and any punishments are as a result of a perceived breach of Chinese laws and are not imposed for a Convention reason. It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purpose of the Convention (Applicant A & Anor v MIEA (1997) 190 CLR 225, per McHugh J at 258). Whilst the Tribunal accepts that the imposition of forcible sterilization, abortion or other methods of limiting the applicant from having further children would be abhorrent to the applicant, the Tribunal is not satisfied that such methods of birth control would be imposed discriminatorily upon the applicant for reason of her membership of a particular social group [or] for any other reason associated with the Convention. Nor is the Tribunal satisfied that the imposition of further fines or, even imprisonment for the non-payment of fines, would be imposed discriminatorily upon the applicant for reasons of her membership of her particular social group, or for any other Convention reason.
19. In reaching its decision on this claim, the Tribunal took into account independent evidence from the Department of Foreign Affairs and Trade about the Chinese family planning policy[2]. That evidence dealt with the application of the policy and some exceptions to it, including less stringent application in urban areas, and to students (but not professionals) who have a second child overseas and later return to China.
20. The applicant did not articulate any particular attributes that might be relevant to the construction of a particular social group claim but simply expressed her fear of the application of the one child policy because she had three children. Nevertheless, the information provided by the applicant to the Tribunal included information that she was a member of the Han ethnic majority and that she had lived in China in a rural area and that she was seeking protection under the Refugees Convention. The applicant now asserts that the Tribunal needed to consider each of these attributes in order to determine whether they placed her at risk as a member of one or more particular social groups subject to the application of the Chinese one child policy in a more stringent fashion than might otherwise be the case.
21. The Tribunal did not have to make out a claim or claims for the applicant that she had not made herself. What the applicant is now trying to do is construct a claim that was not put to the Tribunal in its present form. In my view, there was nothing sufficiently compelling arising from the material before the Tribunal that required the Tribunal to consider the applicant’s claim on a basis other than that which was put. The Tribunal considered the claim as put and rejected it. The Tribunal also had regard to the applicant’s protection visa application which referred to her “personal beliefs”. The Tribunal was not required to speculate about what those might have been or whether they might have a political character. I see no error in the Tribunal’s approach. I reject the first ground of review.

Did the Tribunal breach s.424AA of the Migration Act?

22. The applicant asserts that the Tribunal breached s.424AA by not providing to her a sufficient explanation so as to ensure that she understood why adverse information identified by the Tribunal at the hearing was relevant to the review and the consequences of the information being relied on in affirming the decision under review.
23. The Tribunal records in its reasons for decision what transpired at the hearing conducted on 1 July 2008. Although it is not entirely clear, it appears that at two points the Tribunal may have embarked upon a purported disclosure pursuant to s.424AA. First, at paragraph 35 of its reasons[3] the Tribunal decision states:
    • The Tribunal advised the applicant that it was concerned that in her protection visa application she had simply stated that she feared harm as a result of her “personal beliefs” but had made a range of disparate claims to the Tribunal at the hearing. The Tribunal stated that it may find that the applicant is not truthful and may therefore find that it was not satisfied that she is a refugee and would therefore agree with the Department’s decision. The Tribunal advised the applicant that she was entitled to request a further opportunity to respond.
24. Secondly, at paragraph 40[4] the Tribunal states:
    • After the Tribunal again discussed its view that it may find that she had engaged in conduct in Australia in relation to Jehovah’s witnesses in order to strengthen her claim to be a refugee, the applicant queried whether that meant that her claim to be a Jehovah’s witness was irrelevant. The Tribunal again explained that it would disregard the conduct if it found that she had engaged in it to strengthen her claim to be a refugee. The applicant stated that it did not matter because it was not her original purpose anyway. When again informed that she was entitled to request further opportunity to respond, the applicant queried whether she could provide further documents or something in writing. The Tribunal agreed that she could do so. The applicant stated that she does not know what she should provide.
25. I accept the Minister’s submissions concerning the application of s.424AA of the Migration Act. That section was not enlivened in the circumstances of this matter as no obligation of disclosure arose under s.424A(1). The Tribunal was simply responding to information provided by the applicant to the Tribunal at the Tribunal hearing for the purposes of the review. The Tribunal’s disclosure was nevertheless appropriate in order to meet any obligation of disclosure that may have arisen pursuant to the principles identified by the High Court in SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592. That disclosure was sufficient for the purpose of ensuring that the applicant understood the essential and significant matters upon which the review was likely to turn. This was especially so as the applicant had raised a number of claims for the first time at the Tribunal hearing.
26. I find that the Tribunal did not breach s.424AA of the Migration Act and that the Tribunal met its obligations to ensure an effective hearing opportunity pursuant to s.425.
27. I reject the second ground of review.

Was the Tribunal’s adverse credibility conclusion unreasonable or open to it on the material available to the Tribunal?

28. In its findings and reasons at paragraphs 43 and 44 of its decision the Tribunal summarised the applicant’s claims and appeared to reject them outright as fabrications[5]:
    • The applicant claimed to the Department that she left China because her personal beliefs were not permitted by the Chinese Communist party and stated that she had become accustomed to the way of life in Australia. The applicant made no further claims until the Tribunal hearing when she claimed that she would suffer harm because she has had 3 children and would be subject to the one child policy and this would result in forced sterilization, fines and possible imprisonment. The applicant claims that her family in China has been harassed by local officials as a result of the birth of the applicant’s children in Australia. The applicant further claimed at the Tribunal hearing that she has been the victim of domestic violence from her first husband who has physically harmed her and attempted to force her to undertake a breast enlargement and to become a prostitute. The applicant fears further harm from him in China. The applicant also claims that she fears her first husband will inform the authorities that she is associated with Falun Gong and claims some association with Falun Gong piror to her departure from China in 2000. The applicant also claims that she had some association with Christianity in China and has been involved with Jehovah’s witnesses in Australia. The applicant also claimed that her father was subject to imprisonment when she was 10 years of age and that she owes money in Australia. The applicant further claimed that she has been badly treated by an employer and her first husband and is concerned for the welfare of her sons if she returns to China.
    • The Tribunal does not accept that the applicant is a credible witness. The applicant’s claims as made on her protection visa were extremely minimal and consisted primarily of the claim that her personal beliefs were not permitted by the Chinese government and that she had become accustomed to the way of life in Australia. Whilst the applicant stated on her protection visa that she was a Christian, no further claims were made in relation to this issue to the Department. By contrast, at the Tribunal hearing, the applicant raised various and disparate claims. The Tribunal considers that the applicant did so following the concerns expressed by the Tribunal in relation to her initial and apparently main claim in relation to the one-child policy. The Tribunal considers that the applicant added claims in a piecemeal fashion following doubts and concerns expressed by the Tribunal in relation to each of the claims. The Tribunal thus considers that the applicant did so in an attempt to overcome the concerns raised by the Tribunal as to the problematic nature of her claims. The Tribunal does not accept that it is credible that the applicant would not raise significant claims associated with the one-child policy; fear of harm due to domestic violence, fear of being imputed as a Falun Gong practitioner and her claimed association with Jehovah’s witnesses in Australia if she genuinely feared harm as a result of these factors. The Tribunal does not accept the applicant’s explanations that the agent was too busy and did not listen to her. The Tribunal considers that if the applicant had mentioned the above claims to an agent, they would have been on the application form in some manner, even if they were mentioned only cursorily to the Department. The Tribunal’s consideration of the evidence follows.
29. What is troubling is that the Tribunal then proceeds to consider each of the applicant’s claims in more detail and accepts the factual bases for many of them. I have already quoted above the Tribunal’s reasoning in relation to the applicant’s claims about the Chinese one child policy. In relation to the other claims, the Tribunal stated[6]:
    • The Tribunal accepts that the applicant may be harassed upon her return for the payment of money by local officials. The Tribunal is also prepared to accept that the applicant’s family in China has been harassed for money by local officials and her mother has been forced to move away. However, the applicant is in Australia and believes for that reason that the applicant’s family has money. Thus, the applicant’s own evidence indicates that it is the action of corrupt officials who are motivated by monetary gain and not motivated to harm the applicant or her family for a Convention reason. The Tribunal is not satisfied that any past actions by local officials are motivated by a Convention reason and does not accept that any future actions on the part of officials seeking money from the applicant in relation to her overseas born children would occur for a Convention reason.
    • The applicant also claimed that her first husband is angry because she has divorced him and would inform the Chinese authorities that she is a Falun gong practitioner. As stated above, the applicant made no claims to the Department in relation to a fear of imputation as a Falun Gong practitioner and only did so at the Tribunal hearing in a somewhat belated fashion following concerns raised by the Tribunal relating to her claims in relation to the one-child policy. The Tribunal considers it significant that the applicant did not make this claim to the department and considers that if she genuinely feared that she would be imputed as a Falun Gong practitioner that she would have made this claim to the Department. The applicant herself stated at the hearing that she would have joined Falun Gong in 2000 if she had wanted to become a refugee earlier, indicating an awareness that a claim of Falun Gong may ground a successful application for refugee status and is an important claim.
    • Nevertheless, even if the Tribunal accepts that the applicant had some association with Falun gong prior to her departure in 2000, her own evidence indicates that it was minimal and was essentially because some people who where Falun gong helped her at some time several years ago. The applicant’s own evidence does not indicate that she was ever considered a Falung Gong practitioner prior to her departure and is not satisfied that this would result in the applicant being imputed as a Falun Gong practitioner upon her return to China. Nor is the Tribunal satisfied that the applicant’s first husband’s claimed involvement of some kind with Falun Gong, in circumstances where the applicant has divorced him in Australia and was not considered a Falun gong practitioner prior to her departure, would result in the applicant being imputed as Falun Gong practitioner upon her return to China. The Tribunal also does not accept that it is credible that the applicant’s first husband, who is currently in Australia, would inform the authorities that the applicant is a Falun Gong practitioner if he himself has had any involvement with Falun Gong, thereby exposing himself to the risk of future harm. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant would be subject to harm in China as a result of any imputed practice or association with Falun Gong either in China or in Australia.
    • At the Tribunal hearing, the applicant also claimed that she has been subject to domestic violence from her first husband. The applicant initially claimed at the hearing that this harm related to her first husband attempting to force her whilst they were in Australia to become a prostitute and have a breast enlargement. The applicant subsequently claimed, again after concerns with her evidence were raised, that her first husband had physically assaulted her and showed the Tribunal a large scar on her arm. As discussed above, the applicant made no claims to fear her first husband to the Department. The Tribunal considers that if the applicant were genuinely fearful of her first husband and he had harmed her physically resulting in significant harm that she would have made this claim to the Department. The Tribunal does not, therefore, accept that the applicant was harmed by her first husband resulting in the large scar on her arm. In any event, given that the applicant’s own evidence was also that her first husband resides in Australia, albeit with no rights as a permanent resident, the Tribunal considers that the chance that he will be able to harm her upon her return to China in the reasonably foreseeable future is remote.
    • The applicant has claimed on her application for a protection visa that she is a Christian. The applicant claimed that she had been given some books whilst in China on Christianity. The Tribunal is prepared to accept that this occurred. However, the applicant did not claim either to the Tribunal or the Department that she suffered harm in China as a result of this and the Tribunal is not satisfied that the applicant would suffer any harm upon her return for what appears to be extremely minimal contact with Christianity.
    • The applicant also claimed that her father was imprisoned when the applicant was 10 years of age. The applicant referred vaguely to arbitrary imprisonment resulting in her father losing his livelihood and claimed that in China there is no regard to law and policy. The Tribunal accepts that the standard of human rights in China is poor and that officials act arbitrarily. However, the Tribunal does not accept that the applicant will suffer any harm as a result of her father’s imprisonment when she was 10 years of age, thus some 17 years ago.
    • The applicant belatedly claimed at the Tribunal hearing, after prompting from the Tribunal in relation to her claim to be a Christian, that she had attended the Jehovah’s witness hall in Deniliquin. The applicant claimed no previous association with the Jehovah’s witnesses in China and claimed to the Tribunal that it was only in the last 6 months that she had done so. The Tribunal is prepared to accept that the applicant has had some minimal contact with the Jehovah’s witnesses in Australia in recent months. However, given that she did not have any contact with the Jehovah’s in China and it is only recently that the applicant initiated contact with the Jehovah’s in Australia, the Tribunal considers that the applicant did so only for the purpose of strengthening her claim to be a refugee in Australia. Accordingly, the Tribunal is not satisfied for the purposes of s.91R(3) of the Act that the applicant engage din this conduct otherwise than for the purpose of strengthening her claims to be refugee. Accordingly, the Tribunal disregards the applicant’s conduct in Australia in participating in Jehovah’s witness activities in assessing whether she has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol.
    • The Tribunal accepts that the applicant’s son has been teased about his parent’s absence from China. The Tribunal also accepts that she has a poor relationship with her second husband (an Australian citizen) and that she had difficulties with an employer in Australia. The Tribunal does not accept that any of these issues are related to the Convention. Similarly, while the Tribunal accepts that the applicant has become accustomed to the Australian way of life during her 8 years in Australia and has considerable apprehension about how her 2 Australian born children will adjust to life in China given that they have never lived in China, whilst the [Tribunal] considers that these factors are unfortunate, they are unrelated to the Convention.
30. Finally, the Tribunal repeated its global adverse credibility finding in the following terms[7]:
    • Having considered all the evidence, the Tribunal does not accept that the applicant is a witness of truth and considers that the applicant manufactured claims at the Tribunal hearing progressively as each claim was questioned and doubted by the Tribunal. The Tribunal has found above that it is not credible that she would not have, even if in a cursory fashion, made the above claims to the Department in her application for a protection visa if she genuinely feared persecution for the reasons that she has claimed. However, even having considered the applicant’s claims as raised at the hearing, the Tribunal has not accepted that any of the claims would result in a real chance that the applicant would suffer harm in China for a Convention reason. The Tribunal is also not satisfied that, even if considered cumulatively, that the applicant’s claims as raised at the Tribunal hearing, would result in a real chance that she would be harmed in China for a Convention reason. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will be harmed in China in the future. The Tribunal finds that the applicant does not have a well founded fear of persecution if she returns to China now or in the reasonably foreseeable future.
31. The issue to resolve is how the Tribunal could simultaneously find that the applicant’s claims were “manufactured” at the Tribunal hearing and accept the factual basis for many of those claims. This raised a question in my mind whether the Tribunal’s approach was unreasonable in the Wednesbury sense or whether the adverse credibility conclusion reached by the Tribunal was open to it after it had accepted many of the applicant’s factual claims. Having considered and reconsidered the matter in the light of the parties’ submissions I have concluded that the explanation for the Tribunal’s approach is that the Tribunal did not accept that the applicant had any genuine fear of persecution for the reasons she asserted (with the possible exception of her claim in relation to the one child policy) although the factual bases for the claims were in part true. In other words, while the Tribunal accepted that the applicant may suffer harassment from corrupt local officials, that her first husband is angry with her following their divorce, that she had some minimal involvement with Falun Gong prior to her departure from China, that the applicant had some involvement with Christianity in China and that her father was imprisoned when she was 10 years of age, that the applicant’s son has been teased about his parents’ absence from China, that the applicant has a poor relationship with her second husband, that she has difficulties with an employer in Australia and that she has become accustomed to the Australian way of life during her stay here, the Tribunal did not accept that any of those matters gave rise to a genuine fear of persecution for a Convention reason on the applicant’s part. The Tribunal concluded that the applicant was bringing forward as many matters as she could think of (which appeared at least in part to have a factual basis) in order to enhance her protection visa claims. In the case of her attendance at the Jehovah’s witness hall in Deniliquin, the Tribunal was required to disregard that conduct pursuant to s.91R(3) of the Migration Act and did so. The adverse credibility conclusion reached by the Tribunal that the applicant had “manufactured” claims is, in my view, a reference to manufacturing claims of a well-founded fear of persecution on various bases, rather than manufacturing the facts upon which those claims were based. In some instances, the applicant was found to have manufactured those facts but in other instances she was not. In all instances, however, the applicant was found to have manufactured her asserted fear of persecution. The Tribunal’s approach, while somewhat confusing, was open to it on the material before it. It therefore does not support a finding of jurisdictional error.
32. There may be a further issue concerning the manner in which the Tribunal dealt with the applicant’s claim of domestic violence. That was one of the issues raised orally by the applicant at the Tribunal hearing. The Tribunal rejected the applicant’s factual claim of having suffered domestic violence. However, the Tribunal did not deal with that issue in accordance with the formal (and strict) guidance prescribed in Migration Regulation 1.23. The applicant was apparently not invited to submit a statutory declaration in accordance with regulation 1.24. If the Tribunal had been presented with evidence in the prescribed form (and perhaps in any event) the Tribunal would have been required to obtain an independent expert’s opinion in accordance with regulation 1.23(1B) because the Tribunal was not satisfied that the applicant had suffered the domestic violence claimed. However, the issue was not argued before me and it would not be appropriate to make any finding in the absence of submissions.
33. I find that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
34. Costs should follow the event in this case. I see no reason to depart from the scale of costs in the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The parties have been put to additional expense as a result of my invitation for additional submissions after the trial of this matter but that additional expense should lie where it falls.

I certify that the preceding 34Error! No text of specified style in document.!Syntax Error, !Error! No text of specified style in document.Error! No text of specified style in document.!Syntax Error, !thirty-fourthirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 February 2009

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[1] CB 79
[2] CB 77-78
[3] CB 75
[4] CB 76
[5] CB 78-79
[6] CB79-81
[7] CB81