SZHFG v Minister for Immigration & Anor

[2008] FMCA 472

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 472

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China on the basis of the one child policy and religion – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 422B, 424, 424A

Minister for Immigration v Lay Lat (2006) 151 FCR 214 [2006] FCAFC 61
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZCIJ v Minister for Immigration [2006] FCAFC 62
VAF v Minister for Immigration (2004) 206 ALR 471

Applicant: SZHFG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 151 of 2008

Judgment of: Driver FM

Hearing date: 14 April 2008

Delivered at: Sydney

Delivered on: 14 April 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms L Clegg

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 151 of 2008

SZHFG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The decision was handed down on 8 January 2008.  The applicant is from China and had made claims of persecution based upon the Chinese one child policy.  She subsequently also claimed religious persecution.  Relevant background relating to the applicant's claims and the Tribunal decision on them is set out in the Minister's submissions filed on 11 April 2008.  I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to paragraph 17 of those submissions:

   The applicant, a citizen of China, arrived in Australia on 12 December 2004.[1]

   [1] Relevant Documents (“RD”) 15

   On 18 January 2005 the then Department of Immigration and Multicultural and Indigenous Affairs (“Department”) received an application for a protection visa from the applicant.[2]

   [2] RD 1

   On 17 March 2005 a delegate of the Minister refused the application for a protection visa. [3]

   [3] RD 31

   The applicant applied to the Tribunal for review of the delegate’s decision.[4]

   [4] RD 43

   A decision affirming the decision of the delegate was made by the Tribunal on 25 August 2005.[5]  On 21 September 2007 that decision was found to be affected by jurisdictional error by the Federal Court, and the applicant’s matter was remitted to the Tribunal  for consideration according to law.[6]

   [5] RD 125

   [6] RD 46, 125

   On 23 October 2007 the applicant was invited by the Tribunal to attend an oral hearing on 20 November 2007. Prior to the oral hearing the Tribunal received further submissions and material from the applicant.[7] The Tribunal also forwarded a s.424A letter to the applicant, to which the applicant responded.[8]

   [7] RD 53 - 65

   [8] RD 70 - 88

   An oral hearing was conducted on 20 November 2007, and a further oral hearing conducted on 26 November 2007.[9] After the oral hearing the Tribunal made some enquires with a witness, and on 30 November 2007 forwarded to the applicant letters pursuant to ss.424 and 424A of the Act.[10] The applicant provided a response on 5 December 2007.[11]

   [9] RD 89 - 99

   [10] RD 104  - 116

   [11] RD 118

   On 17 December 2007 the Tribunal made a decision, once again affirming the decision of the delegate.[12] 

   [12] RD 124 - 146

   The applicant’s claims

   The applicant set out some short written claims in her protection visa application.  In her protection visa application she claimed that she feared harm in China on account of the fact that she had had three children and had fallen foul of China’s one child policy. As a result she had been heavily fined, her second and third children (born in 1995 and 1996) refused ‘registration’, and the authorities had threatened to sterilise her. After her second child, in order to avoid the authorities she had hidden at her relative’s house.  After she became pregnant with her third child the authorities came and forced her to go to hospital for an operation. However, she escaped the hospital and hid once again at her relative’s house.

   She claimed that she came to Australia on 2004 so that she could save her children and have protection.

   In 2007, after the matter had been remitted to the Tribunal for re‑consideration,  the applicant claimed for the first time (in written material and in oral evidence at the hearing) that she also feared harm in China because of her involvement with  the ‘family church’ in China.[13] The applicant also claimed that she had attended a Christian Church in Sydney.

   [13] RD 63,

   The Tribunal’s decision

   The Tribunal extracted the applicant’s written claims contained in her protection visa application and summarised the oral evidence given by the applicant at the two oral hearings. It also referred to ‘post hearing evidence’ (comprising telephone evidence taken from the applicant’s pastor from the Chinese Christian Fellowship Church in Sydney) and the applicant’s response to its ss.424 and 424A letters.[14]

   [14] RD 127 - 136

   The Tribunal also set out some independent country information concerning the application and enforcement of China’s one child policy, exit procedures, and the treatment of Christians in the applicant’s province of Fujian.[15]

   [15] RD 137 - 141

   The Tribunal:

   a)noted that the applicant had been distressed throughout the oral hearings, and explained that this is why it had given the applicant a number of short adjournments during the first hearing and a further adjournment of one week. The Tribunal also explained that this was why it had sought to elicit more information from her through the ss.424 and 424A letters;[16]

   [16] RD 142.3

   b)found the applicant to be evasive in her oral evidence, indicating that it considered that the applicant’s behaviour was calculated to arouse sympathy and did not reflect the applicant’s genuine difficulties in presenting her case and giving evidence;

   c)in relation to the applicant’s claims concerning her fear on account of China’s one child policy and the treatment she sustained as a result thereof:

   ·noted (and explained) a number of inconsistencies which had arisen in the applicant’s  oral evidence and her written evidence, which could not be explained by her distress;

   ·did not accept the applicant’s explanations for the inconsistencies;

   ·found that the inconsistent evidence about ‘fundamental matters’ caused the Tribunal to question the applicant’s credibility; and

   ·concluded that it was not satisfied that the applicant had been of any interest to Chinese authorities (at either a local or national level), the PSB or the Family Planning unit, principally because she had remained in China for 10 years after she claimed she had first encountered difficulties with the authorities.

   d)noted that it found the applicant’s evidence about how she was able to exit China legally, and the evidence about her prospects of relocation  ‘incoherent and unresponsive’;

   e)accepted independent country information that the one child policy was a law of general application, and ‘appropriate and adapted to achieving a legitimate object’;

   f)found that the applicant had not suffered persecution for a Convention reason due to having more than one child in China;

   g)found that there was no real chance the applicant would be forced to undergo sterilisation in China;

   h)found that if the applicant did have more children, any fines imposed upon her would not amount to ‘serious harm’;

   i)in relation to the claims about religious persecution in China, rejected this claim because of the lateness of making the claim and general concerns about the applicant’s credibility;

   j)as to the claims concerning the applicant’s religious activities in Australia, found that it has been ‘minimal and limited to infrequent attendance at church’;

   k)pursuant to s.91R(3) disregarded the applicant’s claimed religious conduct in Australia on the basis that it was not satisfied that it had been engaged in other than for the purposes of strengthening her claims to be a refugee;

   l)found that the applicant would not engage in religious activities if she were to return to China, or associate with other practitioners or an underground church;

   The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.

2. These proceedings began with a show cause application filed on 21 January 2008.  The application is supported by an affidavit which I received as a submission.  I also have before me as evidence the book of relevant documents filed on 10 March 2008 and a supplementary book of relevant documents filed on 8 April 2008.  Counsel for the Minister also tendered a copy of the applicant's review application to the Tribunal, which became exhibit R1.  Further, the applicant tendered a bundle of correspondence from her panel adviser, Julian Gormly.  Prior to accepting those documents I satisfied myself that the applicant was consciously waiving privilege in Mr Gormly's advice.  The bundle became exhibit A1.

3. Subject to what I say below, I agree with and adopt for the purposes of this judgment the Minister's submissions in relation to the grounds in the application as set out in paragraphs 18 to 28 of those submissions:

   There are three grounds identified in the application.

   Ground 1: ‘failure to act judicially and afford procedural fairness’

   The Tribunal was not obliged to afford common law procedural fairness to the applicant, as this is a case to which s 422B applied.[17]

   [17] Minister for Immigration v  Lay Lat (2006) 151 FCR 214 [2006] FCAFC 61 and SZCIJ v Minister for Immigration [2006] FCAFC 62

   The particulars to this ground reveal that by this ground the applicant is really seeking a merits review of her case.

   The claim that it was not open to the Tribunal to reject her fear of persecution without ‘court material’ to support its conclusions about her commitment to Christianity, is self evidently such an attempt. The applicant’s complaint about the Tribunal’s approach to the evidence of Pastor Lawrence is another. It was open to the Tribunal to rely on the evidence of Pastor Lawrence that the applicant’s church attendance was sporadic and infrequent, and that he knew nothing of the applicant’s religious beliefs, commitments or experiences in China. This was raised in the post hearing s.424A letter (RD 106.6) and the applicant had an opportunity to comment on it.

   Ground 2: breach of s.424A

   Apart from the complaint about the Tribunal relying upon independent country information (to which the exception in s.424A(3)(a) applies) the applicant has not particularised this ground of review.

   To the extent that the s.424A was invoked in this case the Tribunal complied with its obligations by its s.424A letters to the applicant dated 30 October 2007 and 30 November 2007 respectively.

   Further, in assessing whether there has been any breach of s.424A, it is essential to recall the High Court’s unanimous reasoning in SZBYR v Minister for Immigration (2007) 235 ALR 609. To invoke the obligations in s.424A(1) the impugned ‘information’ must be information that was ‘in [its] terms a rejection, denial or undermining of the [applicant’s] claims to be a [person] to whom Australia owed protection obligations’: SZBYR at [17].[18]

   Also, much of the reasoning in this case amounted to ‘the Tribunal's subjective appraisals, thought processes or determinations’ about information given (or not given) to it by the applicant. The reasoning amounted to no more than the Tribunal identifying ‘gaps, defects, or lack of detail or specificity’[19] or ‘doubts, inconsistencies or the absence of evidence’: SZBYR at [18].

   Ground 3:  alleged denial of procedural fairness due to improper or inadequate interpretation  

   This complaint contains no meaningful particulars whatsoever. Further, it is baseless without an evidentiary foundation.

   As the applicant’s particulars appear to acknowledge, it is for the applicant to adduce satisfactory evidence to establish this allegation.

   It is apparent that there was some difficulty in the Tribunal obtaining details of the applicant’s claims from the applicant during the oral hearings. However, the Tribunal attributed that to the applicant’s ‘behaviour’ and ‘conduct’: RD136.5 and 142.2 – 142.6. There is no suggestion in the material before the Court that the interpretation standard at the hearing was deficient.[20]

   [18] See also comments of Kirby J at [86]: ‘The phrase "the reason, or a part of the reason" should not be narrowly read so as to diminish the obligations of s.424A (SAAP stands against such a narrow reading), the search is not simply for a passage in the Tribunal's discussion. It is for the identification of something more substantive’ .

   [19] The High Court was here citing VAF v Minister for Immigration (2004) 206 ALR 471.

   [20] See RD 89 and 97 where it is clear that the interpreter at the oral hearings was an accredited NAATI level 3 Fuqing interpreter (as had been requested by the applicant: RD 95 at 2b.)

4. In oral submissions, the applicant stressed that she had told the truth concerning her protection visa claims.  I explained the limited nature of the Court's jurisdiction which, I note from exhibit A1, had also been advised to her by Mr Gormly. 

5. The applicant also referred to interpretation problems before the Tribunal but produced no evidence to support that allegation.  It seems that she has no personal knowledge of interpretation problems but her former migration agent, Mr Chan, had made mention of some issue. 

6. In directions I made on 18 February 2008 I gave the applicant the opportunity to file a transcript of the Tribunal hearing by 3 April 2008.  She did not take advantage of that opportunity and referred to problems with her former migration agent.  I note from exhibit A1 that

   
   

   Mr Gormly had been in contact with the applicant's former migration agent and that he had advised the applicant of the importance of producing evidence to support an allegation of interpretation errors.  On the material before me, there is nothing to support any allegation of procedural unfairness based upon inadequate interpretation.

7. Counsel for the Minister drew my attention to two letters written to the applicant by the Tribunal dated 30 November 2007. The first appears at RD 106 to 108 and is plainly a letter written pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The second appears at RD 109 to 115 and purports to be a letter written pursuant to s.424 of the Migration Act.

8. Counsel for the Minister expressed doubt whether the letter was in reality written pursuant to s.424 given that the Tribunal was not seeking information so much as a response to its concerns.

9. It seems to me that the Tribunal took a pragmatic approach following two unproductive oral hearings. The letter written purportedly pursuant to s.424 was an attempt to achieve in writing what the Tribunal was unsatisfied had been achieved at the two oral hearings. I see no jurisdictional error in the Tribunal's approach. Whether the letter was or was not written pursuant to the power conferred by s.424, is unnecessary to decide. There is no statutory prohibition on a letter seeking comments from an applicant about oral evidence. There is nothing in the letter to indicate bias.

10. The Tribunal cannot be required to have repeated, unproductive oral hearings once the Tribunal has determined, on reasonable grounds, that an applicant is unable to deal with an issue orally.  The Tribunal may, where repeated hearings are unproductive, seek to complete the review process by writing to the applicant to provide an opportunity to deal with the Tribunal's concerns.  That is what occurred here. 

11. 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 so order. 

12. The application having been dismissed, costs should follow the event.  The Minister seeks scale costs in the sum of $5,000.  The applicant sought to continue her submissions relating to her application to the Court but did not make any submissions in relation to costs.  I note from exhibit A1 that Mr Gormly advised the applicant that her application to the Court was likely to fail and invited her to consider withdrawing her application.  When she tendered that correspondence, I invited her to consider that option but she elected to continue.  I see no reason to depart from the Court scale in this instance.    

13. I order that 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).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  17 April 2008