SZDGC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant is from the People's Republic of China. She arrived in Australia on 6 January 2003 and shortly thereafter applied for a protection visa on the basis that she had a well founded fear of persecution from Chinese officials if she was required to return to that country. The Minister's delegate refused to grant the appellant a protection visa. That decision was affirmed by the Refugee Review Tribunal. An application to review the tribunal's decision in the Federal Magistrates Court was unsuccessful. On appeal to the Full Federal Court, the tribunal's decision was set aside and the matter remitted to the tribunal for rehearing. The second tribunal also affirmed the delegate's decision. An application to review that decision in the Federal Magistrates Court was unsuccessful. We now have a second appeal to the Federal Court. 2 A broad outline of the appellant's claim for refugee status is to be found in a statutory declaration attached to her protection visa application and in additional information provided to the tribunal prior to its decision. This is how she put her case. The appellant was elected as the "Standing Member of Women at the Workers Union" of a large state-owned factory in Qingdao City, Shandong Province. In that capacity she sought to promote the basic human rights of women workers. The factory president threatened the appellant when she advanced the case for a female worker who was not satisfactorily compensated after suffering a serious injury during the course of her employment. For one year following this threat the only activity the appellant undertook in her role as standing member concerned birth control. 3 In April 2001 120 workers were dismissed from their employment. In response the appellant drafted and distributed several copies of a petition complaining about the dismissals. She arranged to send copies of the petition to "higher authorities of the factory", the Government of Qingdao City and the media. There was little response so the appellant organised for an open protest to be held on 22 April 2001. The appellant was involved in drafting an application to obtain permission for the protest from the Public Security Bureau ('PSB'). On 19 April 2001 the appellant went to the offices of the PSB for an interview concerning the application. She was immediately detained and interrogated at least five times. She was permitted to return home on 10 May 2001 on the condition that she signed a statement to the effect that she would persuade the relevant unemployed workers not to engage in any protests in the future. 4 On 11 July 2001 the appellant was dismissed from her employment because she continued to actively promote her political opinions. 5 Between July and December 2001 the appellant formed a small group to plan for the establishment of an independent union. On 8 January 2002 the appellant and several of her associates, including a person named Mr Xu, set up a "Preparation Committee" that would establish the union. The aims of the committee were to secretly recruit members and to secretly distribute propaganda materials to promote its political opinions. The appellant was responsible for recruiting members. The union was divided into four groups. Mr Xu and the appellant were both leaders of a group. 6 In December 2002 Mr Xu was detained. Mr Xu knew "too much" about the appellant's group and, as such, it temporarily suspended its activities. The appellant was so concerned that she went into hiding. Following this, the appellant left China with the assistance of a secret member in the Tourism Bureau of Qingdao City. In March 2001 the appellant applied to have her Chinese passport renewed. For reasons that cannot be explained by the appellant, in May 2001 she was issued with a new passport. She had to pay for the passport which was acquired with the assistance of a friend who worked at a travel agency. When she was departing China, she signed her passport after an official at the airport pointed out that her passport had not been signed. 7 Following her departure from China her husband was questioned on three occasions by the PSB. The appellant's husband told her that the PSB was aware of her political activities as a result of the confession of Mr Xu. 8 The appellant had a second basis for claiming refugee status. She said she was involved in Falun Gong protests in Australia. The appellant claimed that this was known to the Chinese authorities and would result in her persecution if required to return to China. 9 The second tribunal affirmed the delegate's decision largely because it did not accept the appellant's account of events. It found the appellant was not a credible witness and did "not accept as valid her previously claimed history of dissident political activity in China (PRC)". The tribunal did not accept that the appellant had "democratic political opinions", that she had previously organised union activity or that she had supported "the cause of human rights in China". 10 It will be necessary to say more about the tribunal's reasons in a moment. It is convenient before doing so to refer to the basis upon which the tribunal's decision was challenged in the Magistrates Court. Several grounds were relied upon, but the only grounds presently relevant are that: (a) the tribunal misunderstood the appellant's case and thus failed to address that case; and (b) the tribunal failed to consider corroborative evidence provided by the appellant before making an adverse finding in relation to her credit. 11 The Magistrate found that the tribunal had not erred in law. He said that the tribunal had referred to and considered all the evidence and dealt with all the issues that had been raised. The Magistrate said that the appellant had failed in her application because the tribunal "ultimately regarded the [appellant] as an unreliable witness who fabricated her claims". On appeal the appellant pressed the argument that the tribunal misunderstood and therefore failed to address the case she had put forth. She contends that her claim was rejected because the tribunal decided that under Chinese law a person who had engaged in dissident behaviour would be prevented from leaving China. The appellant points out that she had not claimed that she was actively pursued by the authorities until she left China. She notes that her circumstances were not that she left China following a history activity that endangered the safety, the honour and the interest of the country (such circumstances being sufficient, under Chinese law, to prevent a person from leaving the country). The appellant identified the substance of her case as being that she had a well founded fear of persecution as a result of her political views and opinions leading her to become a member of an underground group but that she had not come to the attention of the authorities until she left the country. She pointed to her evidence that her husband had been questioned by officials after she had left China to demonstrate that it was only after she left China that the authorities began to actively pursue her. The appellant also noted in her submissions that she had told the tribunal that her application for a second passport had been filed prior to her being detained by the PSB. 12 On appeal the appellant pressed the argument that the tribunal misunderstood and therefore failed to address the case she had put forth. She contends that her claim was rejected because the tribunal decided that under Chinese law a person who had engaged in dissident behaviour would be prevented from leaving China. The appellant points out that she had not claimed that she was actively pursued by the authorities until she left China. She notes that her circumstances were not that she left China following a history of activity that endangered the safety, the honour and the interest of the country (such circumstances being sufficient, under Chinese law, to prevent a person from leaving the country). The appellant identified the substance of her case as being that she had a well founded fear of persecution as a result of her political views and opinions leading her to become a member of an underground group but that she had not come to the attention of the authorities until she left the country. She pointed to her evidence that her husband had been questioned by officials after she had left China to demonstrate that it was only after she left the country that the authorities began to actively pursue her. The appellant also noted in her submissions that she had told the tribunal that her application for a second passport had been filed prior to her being detained by the PSB. 13 In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 the appellant sought refugee status on the basis that he was a member of a particular social group constituted by businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals. The tribunal had decided the case against the appellant on the basis that he could not establish that any persecution he had suffered arose out of his membership of a particular social group constituted by businessmen in Russia. In their joint judgment Gummow and Callinan JJ (with whom Hayne J agreed) said at [27]: The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of "businessmen in Russia" was a reason for his persecution and relevantly nothing more. The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. 14 This approach is consistent with several previous decisions in the Federal Court. For example in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42], Allsop J (with whom Spender J agreed) said: The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. 15 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, concerned an Iranian who had applied for a protection visa. The appellant and his family were members of the Sabian Mandaean religion. The appellant's son had married a Muslim woman. The appellant claimed this had repercussions for him and his family as his son's marriage to a Muslim woman was unlawful according to the principles of Islam, and that members from the Imam's offices would likely persecute the appellant and his family if they returned to Iran. The tribunal rejected the appellant's claim for refugee status on the basis that he had not given credible evidence. The tribunal did not make any reference to the claimed fear of persecution resulting from the marriage of the appellant's son, although it did refer to that event in its overview of the appellant's case. The Full Court (French, Sackville and Hely JJ), found the tribunal had erred in law. It said at [44] and [45]: It is central to the exercise of the dispositive powers conferred by s 415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Act … The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty … to conduct a review of the decision. 16 The way the appellant had put her case to the tribunal bears repeating. She claims that she was the "Standing Member of Women at the Workers Union" of a large state-owned factory, and in that capacity sought to promote the basic human rights of women workers and became involved in issues concerning fair compensation for injured workers. She also claimed to have petitioned various authorities and the media after a number of female workers were dismissed from employment and subsequently decided to organise a legal protest. She was then detained and interrogated by the PSB. Ultimately, she was dismissed from her employment because of her political opinion following which she decided to help form a committee that secretly sought to establish an independent workers union. In 2002 the PSB arrested Mr Xu, a member of the committee, and fearing for her own safety, the appellant left China. The basis of the appellant's claim for refugee status was that she would face persecution if required to return to China because the PSB is aware, as a result of confessions made by Mr Xu, of her involvement in establishing the union. 17 On a fair reading of the tribunal's decision, it is apparent that it found against the appellant upon reasoning that did not address the substance of her case. It based its decision substantially on the basis that it did not accept as credible her explanation as to how she was able to obtain a passport to leave China. In its reasons the tribunal referred to country information that dealt with the ability of a person with a dissident history to leave China. That information was to the effect that if Chinese citizens engage in adverse conduct then they are generally unable to obtain a passport or exit the country. The information referred to Article 13 of the Law of the People's Republic of China on the Control of the Exit and Entry of Citizens. Under that Article, Chinese authorities involved in issuing passports have the power to cancel or invalidate passports. The country information also referred to Article 22 of the Regulations Concerning Implementation of Law of Exit and Entry of Citizens, which states that a person's passport can be cancelled or declared invalid if "[t]he holder has [been] involved in activities that are endangering the safety, the honour and the interest of the Country". The information also indicated that the exit control system at Beijing Airport is computerised and the names of all persons departing the country are checked through the computer system. The tenor of the information was that, generally speaking, if a person is able to obtain a passport in China it can be assumed that the Chinese authorities are not pursuing that person. 18 After referring to the country information the tribunal said: The applicant has insisted in oral evidence that all her initial claims are truthful and she has attempted to reinforce and clarify some of her evidence following the original affirmation of the decision by the previously constituted Tribunal and also in additional information prior to the second hearing. The Tribunal is, however, not convinced of the truthfulness of the applicant's initial refugee claims prior to her arrival in Australia. The Tribunal is not satisfied that a person who claims to have had her very adverse history of detention and harassment and who engaged in dissident behaviour as part of a struggle for democratic rights to the point where she felt the necessity to hide and flee China (PRC) could obtain a passport and leave China (PRC) unhindered. 19 The following passage in the tribunal's reasons is also important: [W]hen the applicant claimed that the PSB came around after her departure to her house, on three occasions, the Tribunal become [sic] perplexed at this claim. Why would the PSB suddenly take interest in a dissident (who they had detained previously) but who subsequently was not the subject of monitoring? Why would they not prevent her departure at the airport through the monitoring control of the border police? How could she sign off her new passport in front of a border control officer without him being alerted to her significant dissident history? How would she leave unhindered when so obviously a person subject to the strictures of the Exit and Entry Law as outlined to her by both Tribunals and which would prevent her unhindered departure? 20 Inconsistencies in the appellant's evidence were referred to by the tribunal. But the inconsistencies concerned her obtaining a passport and leaving China: [T]he Tribunal finds that the more likely explanation for the inconsistencies is that the applicant's explanations have been made "on the run". With the effluxion of time the applicant has managed to elaborate evermore scenarios to explain away the various discrepancies in her story as they have emanated from both Tribunal hearings. She has at times been, for instance, unable to advance a persuasive argument why she was able to leave China (PRC) unhindered in rebuttal of logical observations by both Tribunals based on China (PRC) [sic] law or reliable country information. [Emphasis added] And again: The Tribunal is satisfied from the evidence of her departure that the answer to all of these questions is that the applicant was patently not the subject of adverse attention by the China (PRC) [sic] authorities. The claims she has made are a fabrication to give verisimilitude to her claims to be a refugee from the persecution she claims to have suffered in the PRC for her pro-democracy and anti-CCP and union activities. The Tribunal does not accept as convincing that she was able to leave China (PRC) unhindered with a valid passport whenb [sic] two days after she left she claimed the PSB came around to her house looking for her and harassing her spouse. The Tribunal finds unpersuasive her claim that the reason the PSB has shown adverse interest in her (after the departure) was the possibility of her union activist friend having divulged her activities to the PSB but that she later claimed she was (actually) able to leave unhindered because her friend did not divulge her name to the PSB ("they had no interest in her"). The Tribunal regards her comment as indicative that she is an unreliable witness and her claims are a fabrication. [Emphasis added] 21 It is plain that the tribunal's conclusions were based on the view that the appellant was not a credible witness and had fabricated stories. In turn the appellant's lack of credibility is founded on her ability to obtain a passport and leave China. 22 The tribunal did not deal with the appellant's case that she feared persecution because of her political opinion. It was sidetracked into an investigation of how the appellant was able to leave China. It overlooked the appellant's case that she was not being actively pursued by the authorities while she was in China and that her problems arose after she left. That is to say, the tribunal did not address the substance of the case put forward by the appellant. 23 It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to "consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding". I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said "it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness' credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence. 24 For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant's evidence. Lee and Moore JJ said at [27]: Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied … it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 at [82]-[85] per McHugh, Gummow and Hayne JJ. 25 The appellant submitted that the conclusion that she had lied to the tribunal was based on the operation of Chinese law relating to the exit and entry of citizens and the issue of passports in circumstances where she had told to the tribunal that (a) she had only been administratively detained after her request for permission to hold a work related protest; (b) she had given an undertaking to persuade those unemployed workers to not engage in any protests in the future; (c) she had not come under any further adverse notice and was not actively sought until after her departure; (d) her application for the second passport was filed before her detention through a friend and money was involved; (e) her Australian visa was obtained through a secret member in the Tourism Bureau of Qingdao City; (f) Chinese law provides for cancellation of the passports of those who have been involved in activities that are endangering the safely, the honour and the interest of the country; and (g) some of the country information speaks only of the probability that a person who has obtained a Chinese passport and exit permit would not be on wanted lists. 26 I am in no doubt that, contrary to the views of the Magistrate, the tribunal should have had regard to the documents put forward by the appellant in order to assess her credibility. In its reasons the tribunal explained how it would have regard to the documents. It said: The applicant has claimed in her most recent submission that: The documentary evidences [sic] that I have previously submitted is true and important evidence in support of my claims. The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic. 27 This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant's claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant's credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant's evidence fell into the S20/2002 category. It plainly did not fall into that category. 28 I would allow the appeal with costs, set aside the orders made by the Magistrate, set aside the decision of the tribunal and remit the matter to the tribunal for determination according to law. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.