SZHLJ v Minister for Immigration

[2008] FMCA 84

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 84

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZHLJ”.

Migration Act 1958 (Cth), s.91X, 424A

Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: SZHLJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3887 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 21 August 2007

Delivered at: Sydney

Delivered on: 1 February 2008

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Ms V McWilliam

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.

2. The application filed on 22 December 2006 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3887 of 2006

SZHLJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The female applicant was born in 1960 in Tianjin, the People’s Republic of China.  She arrived in Australia on 27 February 2005 and applied for a Protection (Class XA) visa on 29 March 2005.  A delegate of the first respondent refused to grant the visa on 27 April 2005 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“Tribunal”), which affirmed the delegate’s decision on 31 August 2005.  Upon review of the Tribunal’s decision in the Federal Magistrates Court, the matter was remitted to the Tribunal on 27 April 2006 to be determined according to law.

2. The second Tribunal rejected the applicant’s claim on 31 October 2006 (reference number 060585063) which is the decision the subject of these proceedings.

3. The applicant claims in her protection visa application that she was unemployed before coming to Australia, that she had worked at Tian Jin Dairy Company from 1984 to 2003 and that she speaks, reads and writes Mandarin after twelve years of education.  In addition, she claims she organised and participated in activities striving for freedom and democracy during the 1989 Democratic Movement.

4. The applicant claims that in 2000, she made public speeches to support Falun Gong and was interrogated by the local police.  She alleges that she was questioned for two days by the police after helping a Falun Gong member leave a park.

5. An amended application filed on 4 June 2007 contains the following ground of review:

   1. The Tribunal’s decision was infected by jurisdictional error because it relied on country information to support a finding that the applicant would not have had a passport issued to her if she was of any interest to the PRC authorities because of her political involvement or connection with Falun Gong members prior to the issue of that passport: CB 108.10.

   Particulars

   The information relied upon by the Tribunal is set out CB 103.7-104.1.  That information is highly qualified and refers in the first instance only to people whose “exit” in the judgment of the relevant department of the State Council would be harmful to the State security or cause a major loss to national interests and in the second instance applied only to people who were on a “wanted list”, neither of which necessarily applied to the applicant.  Thus the error made by the Tribunal may be classified as follows:

   (a) as a mistake of fact which led the Tribunal to fail properly to consider the applicant’s claims relating to her political involvement and connection to Falun Gong members prior to 2004;

   (b) the decision lacked a rational foundation because the purported foundation of it did not in fact support the reasoning relied upon by the Tribunal; and

   (c) there was no evidence to support the Tribunal’s finding of fact which was critical to its decision.

Consideration

1. At the first Court date, the applicant indicated that she wished to participate in the scheme that provides unrepresented applicants in refugee matters independent legal advice.  The applicant was allocated a panel advisor who indicates that he was unable to contact her to arrange a conference.   The advisor prepared written advice and an amended application using the Court Book and hearing tapes provided.  This was forwarded to the applicant by mail on 17 April 2007.  The amended application filed on 4 June 2007 has a completely new ground and different approach to that contained in the original application.

2. The Tribunal decision indicates that it did not accept the applicant’s claims on the basis of its view of the applicant’s credibility (CB 109.8, 110.10, 112.1).  The Tribunal found that if the applicant had been detained on the two occasions as claimed and was still obliged to report to the Public Security Bureau (PSB) regularly, then she would not have been allowed to legally leave China shortly thereafter.  The Tribunal relied on independent country information which indicates that people of concern to the Chinese authorities are not issued exit permits or allowed to leave China.  In the “Invitation to Comment on Information” letter (s.424A of the Migration Act 1958 (Cth)) of 5 October 2006, the Tribunal put to the applicant the independent country information it relied on (CX 72393 and CX 27863).

3. The Tribunal indicated that the lack of evidence provided by the applicant, together with the inconsistencies between her protection visa application and claims made at the hearing, resulted in it not accepting that she had organised staff members to approach the government seeking redress.  Nor did it accept that the applicant had been arrested and questioned by police.  The Tribunal was not satisfied that the applicant had a well-founded fear for a Convention reason.  The independent country information also did not support the applicant’s claim that she would be regarded as a traitor or subjected to serious harm because she seeks protection in Australia as a refugee. 

4. The Tribunal found that the applicant had manufactured her claims and was not of interest to the Chinese authorities because of past activities in China.  It also found that she would not be of interest to the Chinese authorities in Australia because she had contact with the Chinese Consulate General in Sydney.

5. The applicant confirmed that she had not prepared written submissions in support of her amended application and did not wish to make oral submissions.  She indicated that she would rely on the amended application.  However, she also sought an adjournment of the hearing because she had had an operation in May 2007 which prevented her from preparing her case.  I note that this issue was raised when the applicant appeared at the first Court date on 27 February 2007.  Arrangements were made for early notification of a panel advisor to enable the applicant to receive advice at the earliest possible opportunity so that her case could be prepared prior to her going to hospital.

6. The applicant appeared at the directions hearing on 26 July 2007 after her surgery and the matter was set down for final hearing.  The applicant made no request then to adjourn the hearing.  There is no medical report to say that the applicant was not fit to attend and participate in the hearing.  In the circumstances, an adjournment was denied. 

7. Ms McWilliam for the first respondent assisted with written and oral submissions in response to the amended application.

8. The amended application raises complaints with respect to two issues in the Tribunal’s findings:

   a)That the information that the applicant would not have had a passport issued to her if she was of interest to the Chinese authorities was “highly qualified”.  This information did not apply to the applicant and the Tribunal failed to properly consider her claim.

   b)The decision lacked rational foundation.There was no evidence to support the Tribunal’s finding of fact which the applicant asserts was critical to the decision.

9. Ms McWilliam contends that the Tribunal made adverse findings as to the applicant’s credit and ultimately rejected her claim.  These findings were independent of any independent country information.

10. A Tribunal’s adverse credibility finding and consequent rejection of an applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. A review of this Tribunal decision clearly shows that each aspect claimed by the applicant in her visa application, her response to the s.424A letter and evidence given at the Tribunal hearing had been considered. The Tribunal reached its ultimate conclusion that the applicant was not a credible witness.

11. Ms McWilliam submits that the Tribunal identified and referred to information which indicated that individuals who obtained Chinese passports and exit permits were thoroughly vetted by Chinese security (CB 103.9). The applicant claims that she was of interest to the Chinese authorities. It is submitted that in the circumstances, the country information was directly applicable to the applicant. The s.424A letter raised with the applicant details of the relevant country information.

12. This was again ventilated during the Tribunal hearing and the apparent inconsistencies discussed.  However, the applicant maintained that the evidence she had provided was true and that she did not wish to make any substantial changes.  The applicant did acknowledge that she may have made minor errors with respect to timing but that the thrust of her claim was correct.  The Tribunal was not prepared to accept the inconsistencies between the applicant’s claim and the substantial body of independent information.

13. It is submitted that the choice, assessment and taking into account of independent country information is a factual matter for the Tribunal, see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ:

    11 The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

    12 The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.

    13 In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) [1993] FCA 545; (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.

14. Ms McWilliam submits that if the applicant disagreed with the independent country information, she could comment in her reply to the s.424A letter (CB 78). The letter clearly identified the country information and highlighted the apparent inconsistencies. She could have provided contrary information or brought witnesses to the Tribunal hearing. The applicant elected not to do so and this is reflected in her response to the Tribunal (CB 87-88). The Tribunal considered the applicant’s failure to address this significant issue in her response to its request (CB 110.2-5).

15. When the applicant was invited to respond to Ms McWilliam’s written and oral submissions, she said that she had been assisted in the preparation of her original application by a friend because of her lack of English and lack of knowledge on how to complete the visa application.  She also indicated that the medical treatment that she received in May 2007 had curtailed the preparation of her case.

Conclusion

1. The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Mandarin interpreter.  I note that the applicant has had the benefit of a redrafted application but unfortunately has no understanding of the issues before the Court or her obligations in presenting her case.  The applicant sought an adjournment on the basis of medical treatment that she received earlier in the year which interrupted the preparation of her case.  The Court has been aware of this issue since the first Court date and arrangements were made to assist the applicant.  At the directions hearing, the applicant indicated that she was in a position to proceed to the final hearing and no adjournment was requested.  I believe that the adjournment application made at the final hearing was an attempt to delay the matter.

2. The Tribunal has provided the applicant with an opportunity to address its concerns on a number of key issues affecting her overall credibility.  Despite this, the applicant did not address the Tribunal’s specific concerns but persisted with the claim which brings her credibility into serious dispute.  I am satisfied that the issues in the amended application have been satisfactorily addressed in the written submissions prepared by Ms McWilliam.  It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process.  The application should be dismissed with costs. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  1 February 2008