SZGEF v Minister for Immigration
[2007] FMCA 897
•7 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGEF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 897 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of her religion and opposition to the Chinese Government’s “one child” policy – applicant disbelieved in part – Tribunal finding no real chance of persecution – no reviewable error found – observations on the inability of a tribunal to make an adverse credibility finding against an applicant based on the manner in which the applicant gave evidence to a differently constituted tribunal. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Appellant P 119 of 2002 v Minister for Immigration (2003) FCAFC 230 Perera v Minister for Immigration (1999) 92 FCR 6 SZEEU v Minister for Immigration [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 SZICO & Ors vMinister for Immigration [2006] FMCA 435 SZICV v Minister for Immigration [2006] FMCA 1063 SZICV v Minister for Immigration [2007] FCAFC 39 WACO v Minister for Immigration (2003) 131 FCR 511 |
| Applicant: | SZGEF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG506 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 7 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,165.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG506 of 2007
| SZGEF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 19 December 2006 and was handed down on 9 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background to the applicant’s arrival in Australia, her protection visa claims, her review application and the Tribunal’s decision on it are set out in the Minister’s written submissions filed on 1 June 2007. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 11 of those written submissions:
The applicant, a citizen of China, arrived in Australia on 19 June 2004.[1]
[1] court book (CB) 12
On 3 August 2004 the then Department of Immigration and Multicultural and Indigenous Affairs (Department) received an application for a protection visa from the applicant.[2]
[2] CB 1
On 24 September 2004 a delegate of the Minister refused the application for a protection visa. [3]
[3] CB 39
On 24 October 2004 the Tribunal received an application for review of the delegate’s decision.[4] On 5 January 2005 the applicant attended a hearing before the Tribunal, and the Tribunal made a decision in respect of the applicant’s claims on 7 March 2005. The applicant applied to this Court for judicial review of that decision and the matter was remitted by consent back to the Tribunal for determination according to law on 5 September 2006 on account of an error of the type identified in SZEEU v Minister for Immigration.[5] On 6 November 2006 the Tribunal wrote to the applicant, advising her that it was unable to arrive at a decision in her favour on the material before it. The applicant was invited to attend a hearing and the applicant did so on 24 November 2006.[6] On 27 November 2006 the Tribunal wrote to the applicant’s authorised recipient to invite comment on adverse information derived from the applicant’s protection visa application[7]. The applicant responded by letter from her migration agent dated 11 December 2006[8]. On 9 January 2007 the Tribunal handed down a decision, affirming the decision of the delegate.[9]
[4] CB 50
[5] [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
[6] CB 75, 92
[7] CB 95
[8] CB 102-104
[9] CB 110
The applicant filed the application for an order to show cause in this Court on 15 February 2007,[10] and an amended application on 19 April 2007.
[10] If the Court was satisfied that actual notification occurred before 18 January 2007 (as stated in the application), then an extension of time cannot be granted, 15 February being the last day upon which the time limit in s.477 would have expired. SZICV v Minister for Immigration [2006] FMCA 1063 per Smith FM at [21], [51] – [54],[61] – [68]; upheld by SZICV v Minister for Immigration [2007] FCAFC 39 at [18], [67] [69] – [73] per Besanko and Buchanan JJ, Moore J dissenting. See also SZICO & Ors vMinister for Immigration [2006] FMCA 435 per Driver FM.
Applicant’s claims
The applicant set out some claims in an attachment to her protection visa application: CB 25 – 28. The Tribunal accurately summarised the claims in its decision: CB 113.5 – 114. The Tribunal also extracted the summary of the hearing before the Tribunal as constituted on 5 January 2005: CB 115 – 118. It is also clear that there was extensive dialogue between the applicant and the Tribunal at the second hearing.
In summary, the applicant claimed:
a)she was raised a Christian by her parents and had witnessed her parents’ dedication to God;
b)she was married in 1992 and gave birth to a daughter soon after that. However, her husband and his family were disappointed that the daughter was not a boy, so she had a second child, a son, in 1994;
c)the authorities soon found out about her second child and she was required to pay a ‘huge penalty’ which she found impossible;
d)she was targeted by birth control officials and she had to escape and hide in the mountains, seeking refuge with other women who suffered the same fate;
e)the birth control authorities arrested her parents-in-law and said they would not be released unless she surrendered. So she surrendered;
f)she was forcibly sterilised and was required to admit in writing that she owed the government a large penalty on account of her violation of China’s one child policy;
g)she was released in March 2002. From April 2002 to April 2004 she had to work in various ‘punitive jobs’ for the government for no payment;
h)she maintained her connections with the women who had the same experiences and ‘spread the gospel’ to them;
i)she spread religious propaganda in support of women who were victims of birth control policies. By doing this she came to the attention of the authorities;
j)in April 2004 she was advised by a friend whose husband worked for the PSB that she should escape China as soon as possible as she on the ‘black list’ and was to be arrested the next day;
k)she immediately went to a mountainous area and then escaped China by boat from Shenzhen city on 17 June 2004, arriving in Australia on 19 June 2004 on a false passport;
l)she cannot return to China because she is on the PSB’s black list, still owes the Chinese government money, and is regarded as a person who has used religion as a tool to stir up the anti-government movement. Her family have been subjected to investigations since she left China and have been told to report her to the PSB as soon as she returns.
The Tribunal’s decision
The Tribunal considered the two integers of the applicant’s claims; namely that she feared persecution on account of her religious belief and activities, and because she had actively protested and agitated against the government in opposition to China’s ‘one child policy’.[11]
[11] CB 126.4
The Tribunal:
a)did not accept that the applicant gave a truthful account of her journey from her home village to Australia[12] (and gave detailed reasons why);[13]
[12] CB 126.9
[13] CB 126.9 – 127.5
b)found that the applicant’s claims about where she had lived undermined her claims to have been hiding from authorities at the same time;[14]
[14] CB 127.7
c)found that her claim to have been arrested in February 2002 (which had not been included in her protection visa application) was contradictory;[15]
[15] CB 127.8
d)observed that the applicant was an unimpressive witness[16] (and gave detailed reasons why);[17]
[16] CB 127.9
[17] CB 128.1 – 128.4
e)observed that the applicant’s evidence was at odds with independent country information;[18]
[18] CB 128.5
f)noted that given the credibility concerns of the Tribunal, it would prefer independent country information to the applicant’s evidence where it differed with the applicant’s evidence;[19]
g)found, having regarded to much of the applicant’s own evidence, that there would be no further adverse consequences in China for the applicant as the result of her having had a second child;[20]
h)concluded that there was no real chance that the applicant will experience serious harm or systematic or discriminatory conduct in the future arising out of the birth of her second child;[21]
i)did not accept that applicant’s claims to have been involved in protests about China’s one child policy and found that the applicant was not adversely regarded by authorities for such a reason and did not accept she would be involved in such protests if she were to return to China;[22]
j)concluded that there was not a real chance the applicant would be involved in anti-government protests if she returned to China now or in the reasonably foreseeable future;[23]
k)noted that it had concluded that the applicant’s knowledge of Christianity was obtained in Australia;
l)found that the applicant was not arrested on 28 February 2002 in China for ‘spreading the gospel’;[24]
m)found that there was not a real chance that the applicant would be prevented from practising her religion if she returned to Fujian now or in the foreseeable future and that she will not have to modify her conduct in order to escape persecution on account of her religious beliefs.[25]
The Tribunal concluded that the applicant did not have a well founded fear of persecution for a Convention reason if she was to return to China.
[19] CB 128.6
[20] CB 128.7
[21] CB 128.8
[22] CB 128.9
[23] CB 129.2
[24] CB 129.3
[25] CB 129.5
The present proceedings began with a show cause application filed on 15 February 2007. In that application the applicant asserted actual notification of the Tribunal decision on 18 January 2007. On that basis I find that the application was filed within time. The applicant now relies upon an amended application filed on 19 April 2007. In that application the following grounds of review are raised:
There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1.The Tribunal erred by making a finding based on INCORRECT information, which has NOT been given by me but MISSTATED by the Tribunal itself.
a. I have NEVER said that I took 20 hours to get a place which was around 200 km away. What I have claimed is that when I left my village in April 2004, I travelled to a village called Linshan village (cut not “Number 03” village; which is a significant mistake of the interpreter) in Changle County, where was about 200 km away from my village; and hide there for about two months; and then went to Shenzhen City; and left china from Shenzhen City in the end. During the trip from Linshan Village in Changle County to Shenzhen City, I took a truck and spent about 20 hours.
b. Even if I stated in my protection application that I left China legally, it must still not be sufficient to “imply” that I did so using a passport in my own identity. As a matter of fact, leaving the country on a passport or travel document (not in my genuine identity but other’s instead) with normal legal procedure through the custom of a port in China could also be described as “leaving legally”. At least, I was not “smuggled” by others.
c.It is not my claim that I had moved from my home village to Longtian Town. It is the one which has been misstated or misunderstood by the Tribunal. Actually, I got married in June 1992; and my lovely daughter was born after that. However, owing to long-term influence of Chinese tradition, my husband’s family wanted a boy instead of a girl; and thus they were very disappointed. I knew that it was not my problems, but I did feel very sorry for my husband upon whom every one in the family looked down. I had to pray the God, and tell Him my sufferings in my heart. I believe, even today, that the God does indeed give me a hand. In July 1994, my son was born in the end… Owing to “One Child Policy” in China, I, and the whole family, took much cares to cover the truth from the beginning, in order to avoid the attention of the Chinese authorities. However, my son gradually grew up. The more he grew, the more I was worried about. The authorities eventually found my son, the second child of my family. Since then, I have become the victim of persecution by the PRC authorities, because I have had two children. According to relevant regulations of the local government, I had to pay a huge penalty, which was impossible for me or my families to undertake owing to our extremely impoverished situation. I, therefore, had to start a life that I had to hide in one village for some period and then spent some times at another village. Every time, when I heard official from the “Birth Control” authorities to come for me, I had to escape up to the mountainous area together with a lot of women; and sometimes, I had to hide in the cemetery! Obviously, during that period, I did not have a fixed residential address, but the address of my household registration (hukou in Chinese) was never changed.
d. It is not my claim that I had been arrested in February 2002, but the one which has been misstated or misunderstood by the Tribunal. Actually, in March 2002 my parents-in-law were arrested by the authorities; and the authorities clearly informed my family that they would not be released, unless I surrender myself to the authorities. In order to save my parents-in-law, I had to do what the authorities said; and I was arrested by the official of “Birth Control” as soon as I arrived there; and I was not released until the end of March 2002.
e. Furthermore, I really do not understand why the Tribunal completely ignored my complaint against the interpreter.
2. The Tribunal erred by failing to comply with its obligation under s.424A(1) of the Act.
a. The Tribunal has actually considered the information, which there was inconsistencies between my claims and the evidences from independent source in relation to “One Child” policy, as part of the reason in making its finding.
b. Under the s.424A(1) of the Act, the Tribunal should give me particulars of the information that it has considered as a reason or part of reason for affirming the decision under the review; and the Tribunal should ensure me to understand that the information would be directly in relation to my review application; and the Tribunal should give me a genuine chance to comment them.
c. However, the Tribunal failed to give me particulars of the information that it has considered as a reason or part of reason for affirming the decision under the review; and the Tribunal failed to ensure me to understand that the information would be directly in relation to my review application; and the Tribunal failed to give me a genuine chance to comment them.
d. It is apparently that the Tribunal failed to comply its obligation under s.424A(1) of the Act.
3. The Tribunal failed to properly assess my claims and correctly apply s.91R and thereby fell into jurisdictional error.
a. My sufferings in China would not only being fined, but particularly being detained and being mistreated physically and mentally.
4. The Tribunal erred by failing to comply with its obligation under s.425 of the Act.
a. The Tribunal has noted that “the applicant frequently appeared to have difficulty in responding to questions, even relatively simply ones, often pausing for quite lengthy periods”; and it means that the Tribunal has found that I might be subjected to many difficulties at the hearing before it. The Tribunal should not continue the hearing any more; instead, the Tribunal should find the reason; or at least, ask me about it directly. AS a matter of fact, I was indeed in extremely difficult situation on the day of the Tribunal’s hearing; and I was indeed under huge mental and psychological pressure, which made it impossible for me to give my oral evidences properly.
5. In summary, the Tribunal failed to consider my claims properly and fairly. Tribunal made its finding actually based on unwarranted assumption; the Tribunal ignored or failed to consider a claim in made to it; the Tribunal ignored other relevant materials which was before it; and the Tribunal misunderstood my claim or made mistake in relation to an important finding of fact.
I accepted as evidence the court book filed on 5 April 2007. That is the only evidence I have before me.
The applicant did not file any written submissions but took the opportunity to read a prepared statement. That statement rehearsed with some additional detail the grounds of review in the amended application. The applicant dealt in detail with the first ground of review. Essentially, the applicant contends that the Tribunal erred in relation to its fact finding. This is said in part to be a result of interpretation difficulties. The question of interpretation difficulties was raised with the Tribunal but was rejected in part. It was not raised during the hearing but was raised in response to the s.424A invitation sent to the applicant. There is not on the face of the record of the Tribunal decision any evidence supporting the contention that there were interpretation problems at the hearing conducted by the present Tribunal. The applicant produced no transcript of the hearing. I asked her if there was any reason why she had failed to produce a transcript; she said there was not. The opportunity for a transcript was specifically adverted to in order 3 made by me on 8 March 2007.
In her oral submissions the applicant expressly stated that she had not paid a fine for the birth of her second child. This directly contradicts the Tribunal’s statement on page 128 of the court book that:
The applicant’s oral evidence was that she has paid a fine as a result of her having a second child, and the Tribunal accepts that this is the case.
Unfortunately for the applicant, her assertions of factual errors remain assertions. The only real doubt about the Tribunal’s fact finding and conclusions relates to the question of the applicant’s use of a false passport. The Tribunal accepted that the applicant arrived in Australia with a false passport and that she may have done so with the assistance of a people smuggler (CB 126). However, the presiding member found that the applicant had left China legally using her own documentation (CB 127). The finding that the applicant had left China legally appears to be based upon a tick box to question 47 in the applicant’s protection visa application (CB 20).
The Tribunal’s reasoning on the issues of how the applicant left China and arrived in Australia is not easy to understand but may reflect a view that the applicant had two passports, one false and one genuine or that she disposed of her genuine passport after leaving China and acquired a false one before her arrival in Australia. That issue is not discussed expressly by the presiding member in his reasons and the Court is left to draw inferences. While the reasoning of the Tribunal may be questionable, it is not possible to conclude that the Tribunal made a factual error or drew a false conclusion.
In other respects I agree with and adopt for the purposes of this judgment paragraphs 12 through to 15 of the Minister’s written submissions in relation to the first ground of review:
For the most part, the particulars to this ground of review simply seek to revisit the merits of the applicant’s case before the Tribunal, and take issue with the Tribunal’s findings of fact.
To the extent that the applicant alleges there was an error in interpretation in connection with the answer she gave about leaving her village in April 2004, this issue was addressed by the Tribunal: CB 126.9 – 127.2. The error of interpretation concerning the name of the village to which the applicant travelled was identified by the applicant in her statutory declaration in response to the s.424A letter from the Tribunal (see CB 104 at [7]), and was taken into account and accepted by the Tribunal as an error: CB 126.2. The applicant also alleges an error in interpretation concerning her answer about the 20 hour period she claimed it took to reach Linshan village (particular (a)) and her claim to have been arrested in February 2002 (particular (d)). The Tribunal addressed these assertions and rejected them respectively at CB 126.4 and CB 127.9.
Whilst an error in interpretation at a Tribunal hearing can give rise to jurisdictional error in limited circumstances,[26] in this case the Tribunal’s attention has been brought to the alleged errors by the applicant in seeking to explain certain inconsistencies and discrepancies in her evidence before the Tribunal. The Tribunal’s findings in connection with the alleged errors in interpretation are not open to review by this Court. Even if the applicant could establish that the Tribunal made an error of fact in connection with those findings (which is not the case), such an error would be an error within jurisdiction.
The Tribunal did not ‘completely ignore [the applicant’s complaint] against the interpreter’ (particular e). First, there is no evidence that a complaint was made. Second, to the extent that the matters raised by the applicant in the statutory declaration can be taken to amount to such a complaint, these matters were considered by the Tribunal (see above).
[26] Perera v Minister for Immigration (1999) 92 FCR 6; WACO v Minister for Immigration (2003) 131 FCR 511, at [63]–[68]; Appellant P 119 of 2002 v Minister for Immigration (2003) FCAFC 230 at [17] – [37].
There is no substance to the asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). It is true that the Tribunal relied in part upon information derived from the applicant’s original protection visa application. However, the Tribunal met its obligations under s.424A by writing to the applicant inviting comment on that information on 27 November 2006.
The applicant complains of the Tribunal’s use of country information in relation to the Chinese one child policy. That information is referred to by the Tribunal in its reasons on page 128 of the court book. The country information was not disclosable information for the purposes of s.424A. In other respects I agree with and adopt for the purposes of this judgment paragraphs 16 and 17 of the Minister’s written submissions in relation to the second ground of review:
There is no breach of s.424A here. The Tribunal complied with its obligations under s.424A when it forwarded the letter dated 27 November 2006 to the applicant: CB 95. The applicant responded to this request to comment upon the information in the Tribunal’s possession that could have been the reason or part of the reason for affirming the decision under review: CB 103.
The Tribunal did take into account the response (CB 125.2 – 126.3) and ultimately relied upon some of that information (CB 127.1, 127.3, 127.7, 127.8). However the Tribunal discharged its statutory obligation in connection with s.424A.
Neither is there any substance to the asserted breach of s.91R of the Migration Act. I agree with and adopt for the purposes of this judgment paragraph 18 of the Minister’s written submissions:
As stated above, the two integers of the applicant’s claim were considered by the Tribunal. Further, it is evident from the decision record that all aspects of the applicant’s factual claims were thoroughly canvassed and tested by the Tribunal member at the hearing, and then addressed in the Tribunal’s Findings and Reasons. There is no doubt that the Tribunal understood the requirements of s.91R – they were set out in the decision: CB 112. However, the claim that the Tribunal did not correctly apply s.91R can have no real merit in a case where the Tribunal simply did not believe much of the factual basis of the applicant’s claim.
The asserted breach of s.425 of the Migration Act refers to a passage in the Tribunal’s reasons on page 128 of the court book. The presiding member said:
As noted above (page 9), the applicant frequently had difficulty in responding to questions. In particular, the Tribunal notes that, the applicant frequently appeared to have difficulty in responding to questions, even relatively simple ones, often pausing for quite lengthy periods. While the Tribunal has only a tape recording to go by and was not able to observe the applicant’s demeanour, the Tribunal formed the impression that the applicant was not recounting spontaneously her own experiences.
It is apparent from what the presiding member says on this point on page 9 of the reasons (CB 118) at about point 2 that the presiding member was referring to a recording of the first Tribunal hearing. To that extent the asserted breach of s.425 of the Migration Act is misguided. Counsel for the Minister nevertheless pointed out that the applicant appeared to have difficulty in answering some questions before the second Tribunal (see, for example, CB 119 at about point 5 and CB 121 at about point 9). The mere fact that the applicant paused for a long time in answering certain questions does not even remotely establish that the hearing opportunity afforded the applicant was not a real one. There is no evidence that the applicant drew to the Tribunal’s attention during the second hearing any issue that might have warranted an adjournment. That said, I have some concern with the Tribunal’s statement on page 128 of the court book about the manner in which the Tribunal dealt with the tape recording of the first Tribunal hearing.
In my view it is not open to a decision-maker to draw adverse credibility conclusions against an applicant based not on the evidence given by an applicant to a previously constituted Tribunal but on the manner in which that evidence was given when the Tribunal as currently constituted did not conduct that earlier hearing and was not in a position to observe the applicant. In the present case I do not think that the passage points to a jurisdictional error. The presiding member concedes that he was not in a position to observe the applicant’s demeanour and the audio tape listened to by the presiding member in his words simply left him with an “impression.” In the circumstances one wonders what the point of the reference was.
The final ground of review if it is an independent ground is dealt with in the Minister’s submissions at paragraph 20. I agree with and adopt for the purposes of this judgment that paragraph of the Minister’s written submissions:
The allegation that the Tribunal failed to consider the claims ‘properly and fairly’ is unparticularised, as is the claim that the Tribunal ignored relevant material and made factual mistakes. To the extent that there is a suggestion of an allegation of bias there is no basis whatsoever for a claim of bias, which is a serious allegation and is not lightly found.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,165. The applicant said that she would be unable to pay costs but impecuniosity is not a reason for the Court to refrain from making a costs order. The court scale of costs in this instance would call for an order in the sum of $5,000. I accept the Minister’s party-party assessment and order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,165.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 June 2007
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