FEDERAL COURT OF AUSTRALIA SZIQX v Minister for Immigration & Citizenship [2007] FCA 1855 SZIQX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1502 OF 2007 JESSUP J 9 NOVEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD1502 OF 2007 BETWEEN: SZIQX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 9 NOVEMBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent Minister fixed in the sum of $3,600. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD1502 OF 2007 BETWEEN: SZIQX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE: 9 NOVEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter, the appellant appeals from a judgment of the Federal Magistrates Court of Australia delivered on 11 July 2007, by which an application for judicial review, presumably pursuant to s 39B of the Judiciary Act 1903 (Cth), in relation to a decision of the Refugee Review Tribunal ("the Tribunal") given on 28 November 2006, and handed down on 19 December 2006, was dismissed. The Tribunal had affirmed an earlier decision of a delegate of the respondent Minister to refuse to grant the appellant a protection visa under the provisions of the Migration Act 1958 (Cth) ("the Act"). 2 Although the history of the appellant's attempts to obtain a protection visa are complicated in some respects, for presently relevant purposes the only basis upon which the appellant claimed such a visa related to events which occurred since he came to Australia on 29 September 2004. As the Tribunal found, the appellant is a national of the People's Republic of China. He came to Australia for the purpose of undertaking studies at the Australian National University and at some point, it seems, after the conclusion of those studies, moved his residence to Sydney. While he was in Australia he commenced the practice of Falun Gong. His claim for a protection visa was based upon an assertion that he had a well-founded fear of persecution should he be required to return to China because of that practice, and because of the Chinese authorities' awareness of his engagement in that practice. 3 In the circumstances, the first question which the Tribunal was obliged to determine was that arising under s 91R(3) of the Act, namely, whether it was satisfied that the appellant engaged in the conduct upon which he relied otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. This required the Tribunal to identify the conduct to which the subsection referred and to consider the appellant's purpose in engaging in that conduct. The Tribunal undertook what appears, with respect, to have been a thorough and careful consideration of the appellant's practice of Falun Gong, and of all the objective circumstances from which his purpose in engaging in that practice might be inferred. 4 The present appeal has nothing to do with the Tribunal's conclusions in that regard, and Mr Archibald, who represented the appellant today, does not criticise the Tribunal with respect to its general approach to the matter of purpose insofar as the appellant's practice of Falun Gong is concerned. However, there was one piece of evidence which the appellant put before the Tribunal and with which the Tribunal dealt towards the end of its decision in a particular way. One of the documents which the appellant put before the Tribunal was a memorandum by himself dated 30 May 2006 on the subject of a visit which he made to the Chinese Consulate-General in Sydney. That memorandum is in the following terms: As the expiry date of my passport is 10th of June 2006, I went to Sydney Chinese Consulate to renew my passport after 10am on 24th of April. I filled in an application form for passport renewal in the Chinese consulate. After that, I lined up to the counter. It was a middle-age lady who served me. She asked for my passport. I gave it to her. She had a look at my passport and then looked at the file in the computer and her drawer. She asked me what kind of bridging visa I had. I answered: "It is a Falun Gong refugee application." She gave me back my passport and said, "No renewal for refugee applicants." I asked for the reason. She just ignored me. I left the consulate quietly. I knew that my name had been listed on the CCP black list. The Chinese government has cancelled my identity as a Chinese citizen. They had deprived my right of returning to China. I have become a refugee without nationality. All of these are due to my practice of Falun Gong. I have been in the open area outside the Chinese consulate on many occasions to strongly protest against the CCPs persecution that has been extended to Australia. The appellant placed a transcript of the proceedings before the Tribunal into the materials upon which he relied before the Federal Magistrate, and upon which he relies here. 5 In the course of the hearing before the Tribunal, the Tribunal referred to the memorandum set out above and questioned the appellant as to whether he would have been likely to volunteer the information that he was a Falun Gong practitioner when it would have been sufficient to have said that he was applying for a protection visa, or that he had a bridging visa. Although, in the memorandum to which I have referred, the appellant said that he told the lady in the Chinese consulate that it was a Falun Gong refugee application, at one point in answering the Tribunal's questions he said that she had asked him what visa was he holding, and that he had replied, "A Falun Gong bridging visa." A Tribunal member pointed out that the correct name for the visa which he held was just a "bridging visa", and that he had, in effect, volunteered the additional information about Falun Gong. The Tribunal made it clear to the appellant that it had concerns about whether he was truthfully relating what occurred at the consulate or whether, he was giving the Tribunal this information simply for the purpose of strengthening his claim to a protection visa. 6 The matter was dealt with by the Tribunal, in its decision, in the following way. In that section of its decision in which it dealt with the course of the appellant's oral evidence before it, the Tribunal said: I noted that he had claimed that in April 2006 he was refused permission to renew his passport by the Chinese Consulate because he told the officer that he had applied for a Falungong refugee Visa". I told him that the name of the visa was "protection visa", so it was difficult to believe that he would have unnecessarily volunteered the information that he had made an application based on his Falungong activities. He responded that it was because he had not known how to say it; he thought if he lied and they found out he would be in trouble. I put to him that saying "protection visa" would have been the truth. He responded that he had not thought much. He had thought that they were just verifying him. I put to him that he was an intelligent person and that it was difficult to believe he would not have thought of the risk entailed in revealing that he had applied for a visa based on Falungong practice. He responded that he had handed out the Nine Commentaries about the Communist Party many times so they must have known him, so he decided to just say it. In the section of its decision in which it set out its findings and reasons, as I have said, the Tribunal concentrated upon the question whether the appellant's purpose for engaging in Falun Gong was to strengthen his claim to be a refugee within the meaning of the Convention. The Tribunal concluded that section of its reasons in the following terms: I accept that [the appellant] has participated Falungong practice sessions and in various protest activities designed to publicise the ill-treatment of Falugnong practitioners within China. Having considered whether he engaged in this conduct otherwise than for the purpose of strengthening his or her claim to be a refugee (see 91R(3) of the Act), for the reasons set out above I am not satisfied that he did. The Tribunal must therefore disregard that conduct when considering whether he is a refugee. 7 The Tribunal dealt with the matter of the appellant's visit to the Chinese consulate briefly in the following terms: I note his claim that he recently told a staff member at the PRC Consulate that he had applied for a "Falungong protection visa" or "Falungong bridging visa". In light of my concerns about his general credibility, I am not satisfied that he did give this information to Consular staff. 8 In the light of that finding of fact, the Tribunal was not required to address the question which might otherwise have arisen under s 91R(3) of the Act apropos the claimed visit by the appellant to the consulate. Since there were no other circumstances upon which the appellant based his claim to have a well-founded fear of persecution within the meaning of the Convention, the Tribunal affirmed the decision of the delegate. 9 Both in the Federal Magistrates Court and on appeal, the appellant's case was to the effect that the way in which the Tribunal dealt with his claim to have visited the Chinese consulate and to have told them about the Falun Gong protection visa, or the Falun Gong bridging visa, was such as to amount to a constructive failure to exercise jurisdiction. Mr Archibald submitted that the evidence put before the Tribunal by the appellant could not have been dismissed as cursorily as he said the Tribunal did by reference to no more than its concerns about general credibility. He submitted, both under the general law and under s 430 of the Act, that the Tribunal was under an obligation to articulate what those concerns were, and if it proposed to reject the evidence of the appellant, to disclose its chain of reasoning in that regard and the particular respects in which it found the appellant's evidence not to be credible. He relied particularly in this regard upon the judgment of Tamberlin and Nicholson JJ in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at 717, [67]. 10 The Federal Magistrate disposed of the point then made by the appellant in the following terms: A fair reading of the Tribunal's decision makes it clear that its decision is peppered with concerns about the Applicant's evidence given at the hearing. Whether these concerns are characterised as being "general credibility",implausibility of lack of satisfaction matters not so long as it is clear that the Tribunal has understood the claims made by the Applicant, considered those claims and made findings on material questions of fact. The Tribunal did so. The Tribunal's lack of satisfaction about this claim made by the Applicant is because of its concerns about his general credibility. A fair reading of the Tribunal's decision makes clear what those concerns about the applicant's general credibility are. Furthermore, those concerns are borne out in the Tribunal's ultimate finding that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention. The Federal Magistrate concluded her reasons for judgment in the following terms: However, as stated above in these Reasons, the reasons for the Tribunal's lack of satisfaction are apparent from a fair reading of the decision. A fair reading of the decision makes it clear that in using the phrase "concerns about his general credibility", the Tribunal was referring to those matters that it has mentioned in its decision that caused it concern and which are readily discernable from its decision. The finding by the Tribunal that those matters caused it concern is a finding of fact that was open to the Tribunal on the evidence and material before it. A fair reading of the decision makes it clear that the Tribunal simply was unable to reach the level of satisfaction required to satisfy it that the Applicant met the statutory criteria required for being a refugee. The Tribunal appears to have done no more than summarise those concerns as reflecting on the Applicant's credibility. The Tribunal has perhaps used a looseness of language in characterising its concerns in that way. However, a looseness of language and an inadequacy in the way in which reasons may have been expressed is not sufficient in the reasons of an administrative decision maker to demonstrate that the Tribunal's decision is affected by an error going to its jurisdiction. In this last respect, her Honour referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 11 As I read the reasons of the Tribunal within the statutory context in which it was operating, I am not sure that I agree with the Federal Magistrate that the Tribunal disposed of the application before it because it was unable to reach the level of satisfaction required to satisfy itself that the appellant met the statutory criteria required for being a refugee. Broadly her Honour is correct, but specifically it seems to me that the Tribunal was engaged in a process, first, of sorting what facts should be regarded and what facts should be disregarded pursuant to the injunction in s 91R(3) of the Act; and, secondly, of deciding whether the appellant had made good his case under the Refugees Convention. As I indicated earlier, once the substantial factual basis of the appellant's case had been disregarded for the purposes of s 91R(3),the result otherwise mandated by the Convention was all but self-evident. 12 I agree with the Federal Magistrate that a fair reading of the Tribunal's decision as a whole discloses the concerns about general credibility to which it referred in the paragraph in contention. Her Honour did not identify where and how those concerns were disclosed in the text of the Tribunal's decision and, in part, her task was not made the more simple by the circumstance that the Tribunal's decision was not replete with a series of adverse comments as to credibility directly in relation to statements made by, or information provided by, the appellant. It seems that this may not have been a case in which the Tribunal dealt with the matter of credibility at the basic level of direct lies. However, "credibility" is a general term in itself. Particularly when the Tribunal used the expression "general credibility" in its decision, I think that it was referring more to the nature of the appellant's case as a whole. 13 I shall attempt to make clear what I mean by this concept, but before doing so, I should commence by referring back to the passage in the Tribunal's decision which I have set out above, and in which it dealt with the evidence given to it by the appellant, specifically with respect to what he said occurred at the Chinese consulate. In that passage, there are two specific instances in which, according to the Tribunal, it pointed out to the appellant that that evidence was "difficult to believe". On any view, the Tribunal had expressed concerns about the credibility of the appellant, specifically with respect to the matter upon which he based the relevant aspect of his claim. If nothing else, I think that the Tribunal's approach to this task was a proper one, entirely within jurisdiction, and not made otherwise by reference to the broad, and perhaps not wholly enlightening, reference to general credibility which it made towards the end of its decision. 14 However, there seems to be more to the Tribunal's concerns about general credibility that merely the reference to the appellant's evidence about his visit to the Chinese consulate. In a number of instances, the Tribunal, in its decision, was concerned to identify respects in which the appellant's case as an entity simply did not hold water, as it were. One might commence with the Tribunal's observation that the appellant had entirely resiled from the claims to fear persecution which were set out in his initial application. Dealing specifically with his then reliance upon his more recent taking up of the practice of Falun Gong, the Tribunal said: Much of [the appellant's] behaviour suggests that in September 2005, when he applied for a protection visa, he was looking for a means through which he could remain in Australia. He has claimed that there was no reference in the initial application to his interest to Falungong because the person who assisted him failed to mention it. The Tribunal has no means of ascertaining the truth of this claim and no further evidence has been submitted by [the appellant] to confirm it. In any case, he has since told the Tribunal that he had an interest in Falungong at that time, and an intention to take up the practice, but had not yet done so. It seems that, at some point, the appellant provided the Tribunal with a letter from his aunt in Sydney in support of his claim to be a bona fide Falun Gong practitioner. About that letter, the Tribunal said: I do not consider the content of the "SOS" letter from his aunt to be reliable as a source of evidence, as she asserts that after graduating from the ANU in Canberra [the appellant] had often visited her and told her that he was benefiting from Falungong practice. That assertion is not consistent with his claim to the Tribunal that he did not take up Falungong practice until after he moved into her house in Sydney - in other words, he would not have been visiting her. More generally about the timing of the appellant's taking up of Falun Gong, the Tribunal said: [The appellant] said in his oral evidence to this Tribunal that he had wanted to do Falungong practice and knew where the Falungong practitioners were in Canberra, but had made no enquiries in Canberra about this. He said he had needed time to find the "place and people" in order to practice Falungong - yet according to his own evidence he had already found them. His long delay in taking up Falungong group practice, whether in Canberra or during the first two months or so in Sydney, in my view signals that he merely took it up in order to enhance his protection visa application, which by then had been refused by the Delegate. I have considered his written, post-hearing, explanation for this delay, relating to his dilemma about what he should do, in that his family wanted him to return home, that he was worried about causing trouble for them, and the career he had established in China, and job offers from universities there since his graduation from ANU, would be lost if he remained in Australia. He did not refer to any of these reasons during the Tribunal hearing. When asked why he had chosen to take up Falungong practice just a week before the first Tribunal hearing, he responded merely that after graduating he had had time to take it up but it had taken him time to get used to life in Sydney. 15 In my view, the passages to which I have referred bespeak a very serious concern on the part of the Tribunal about the factual coherence and believability of the entire case of the appellant. It would not be inaccurate to describe those concerns as being about the appellant's general credibility. The question before the Tribunal, of course, was not so much whether particular facts occurred but what was the appellant's purpose in the context of s 91R(3) of the Act. It was, I consider, legitimate for the Tribunal to take into account the concerns which it had about the appellant's case, about the way the case was presented in the Tribunal, and about the light it threw upon his purpose generally, even in relation to particular facts about which the Tribunal was required to make findings. This is what it did in the paragraph which Mr Archibald has criticised. I am disposed to agree with the Federal Magistrate that a fair and comprehensive reading of the whole of the decision of the Tribunal illuminates the concerns to which it referred in that paragraph. In my view, it does so in a way which constitutes a sufficient setting out of the Tribunal's reasons for the purposes of s 430 of the Act, and a sufficient exercise of its jurisdiction generally. 16 For those reasons, I am not satisfied that the Tribunal constructively failed to exercise its jurisdiction in relevant respects, and I am not persuaded that the Federal Magistrate fell into error. The appeal, therefore, will be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 27 November 2007 Counsel for the Appellant: Mr I G A Archibald Solicitor for the Appellant: Michaela Byers Solicitor Counsel for the Respondent: Ms L Clegg Solicitor for the Respondent: Sparke Helmore Date of Hearing: 9 November 2007 Date of Judgment: 9 November 2007