SZKBL v Minister for Immigration - [2007] FMCA 1952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1952

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal breached s.424A(1) of the Migration Act 1958 (Cth) – whether the applicant had a genuine opportunity to give oral evidence and present arguments.

Migration Act 1958 (Cth), ss.424A(1); 474

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZKBL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 195 of 2007

Judgment of:

Emmett FM

Hearing date:

22 November 2007

Date of last submission:

22 November 2007

Delivered at:

Sydney

Delivered on:

7 December 2007

REPRESENTATION

Applicant appearing on her own behalf

Solicitors for the Respondent:

Mr B. O’Brien, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 195 of 2007

SZKBL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant claims to be entitled to a protection visa on the basis that she is a refugee from the People’s Republic of China (“the PRC”) and fears persecution by authorities in the PRC by reason of political opinions imputed to her because of the assistance she gave to her cousin whom she believed to have been wrongly accused of murder. The Applicant claimed that she signed and sent petitions to the government seeking compensation on her cousin’s behalf resulting in her arrest by the Public Security Bureau (“the PSB”).
The Applicant arrived in Australia on 9 June 2006 and lodged an application for a protection visa with the then Department of Immigration and Citizenship on 24 July 2006.

Protection visa application

In support of her protection visa application, the Applicant provided a statement in which she claimed that in 2001, her cousin, who lived with her and was 16 years old at the time, was an apprentice carpenter who fell in love with the daughter of his employer. The Applicant stated that the cousin’s employer did not wish his daughter to marry “a poor person” like her cousin who had no parents. The Applicant stated her cousin was then beaten by his employer resulting in his hospitalisation for a week.
The Applicant stated that in March 2005 her cousin’s employer was killed and her cousin was arrested and charged with the murder by the PSB. The Applicant stated that she learnt that her cousin had confessed to the killing and would be sentenced to death. The Applicant stated that in April 2005 she went with a solicitor to visit her cousin and lodged an appeal.
The Applicant stated that in May 2005 a criminal gang of three was investigated by the PSB and items of property belonging to the murdered man were found, whereupon the Applicant’s cousin was immediately released. The Applicant stated that the PSB then believed the criminal gang had killed the Applicant’s cousin’s employer.
The Applicant stated that her cousin had suffered mentally since his release and that she had sought assistance from the solicitor to obtain compensation from the government for her cousin. The Applicant stated that in June 2005 the solicitor’s office was broken into by police and the files in relation to her cousin’s case were taken.
The Applicant stated that she continued to lobby the government by procuring the signatures of her family, relatives and friends upon a petition which she then signed and sent to the “government from Fuqing to Fujian, and then to the central government”. The Applicant stated that she did not receive any response to her petition. However, in December 2005 she was “suddenly arrested by the PSB” on the basis that she had “seriously damaged good reputation of the policemen in order to incite anti-government movement.” The Applicant stated that she was sent to do unpaid work as punishment. The Applicant stated that from December 2005 until March 2006 she was not allowed to return home and became ill. She stated she was finally released after her father bribed the police.
The Applicant stated that the persecution against her never stopped. The Applicant stated that since her arrest and release she has been dismissed from her work unit and has been unable to obtain other employment “because the policemen continually made me into troubles – questioning me about my routine activities from time to time; and threatening me not to seek any appeal from my cousin Mr Chen; and forcing me to report to the local police station once a week.”
The Applicant stated that the solicitor and her cousin in the PRC had secretly arranged for her to leave the PRC and come to Australia.
On 27 September 2006, a delegate of the Department of Immigration and Multicultural Affairs refused the Applicant a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations. The delegate noted that the Applicant had departed the PRC legally on her own name and had provided no detail as to how she was able to circumvent security procedures before departing if she had come to the adverse attention of the PRC government.

The Tribunal’s decision

On 27 October 2006, the Applicant lodged an application for review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Applicant did not provide any further information in support of her application.
On 7 November 2006, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the information before it in relation to her application but was unable to make a decision in her favour on that information alone. The letter went on to invite the Applicant to come to a hearing and to send any new documents or written arguments she wished the Tribunal to consider.
On 8 November 2006, the Tribunal wrote to the Applicant’s authorised recipient requesting that she provide additional information by 22 November 2006 as to: the relationship with her cousin; her cousin’s current medical and historical condition; any evidence surrounding the ceasing of her employment; evidence in relation to her engagement of a solicitor to act for her cousin in the PRC; and any other evidence in support of the claims set out in her statement in support of her protection visa application.
On 22 November 2006, the Tribunal received a statutory declaration from the Applicant in response to the Tribunal’s letter dated 8 November 2006. The Applicant said that she was still waiting for “documentary evidences required by the Tribunal”. The letter stated that it was “particularly dangerous” for her family to send her documents because police frequently went to her home and her family’s phone and mail is being closely monitored by the PSB.
Prior to the Tribunal hearing, the Applicant gave the Tribunal a notarial certificate confirming her relationship with her cousin and 2 untranslated documents, that the Tribunal then had translated. The Tribunal stated that one document appeared to require the Applicant to leave her employment in December 2005 and the other document appeared to indicate that her cousin has a mental illness. The Tribunal noted that it considered these documents in reaching its decision.
The Applicant appeared before the Tribunal on 4 December 2006 and gave oral evidence.
The Tribunal stated that the Applicant confirmed the accuracy of the contents of her statement provided in support of her protection visa application. The Tribunal noted the further oral evidence provided by the Applicant and noted exchanges it had with the Applicant about her various claims.
The Tribunal noted matters of concern that it put to the Applicant about her evidence and noted the Applicant’s responses. In particular, the Tribunal asked the Applicant about the letters she wrote to the government and noted that the Applicant stated that she was not seeking money for her cousin, rather for treatment “because he was wronged”.
The Tribunal noted that the Applicant said that, because she received no reply from the authorities, she took her cousin to the hospital herself. The Tribunal noted that it asked the Applicant why she was seeking compensation for treatment if she was able to take her cousin to the hospital herself. The Tribunal noted the Applicant’s response that upon further exploration of this matter she was “asking for life long support” from the government.
The Tribunal explored with the Applicant what happened to the other persons who signed letters and noted the Applicant’s response that nothing had happened to them and only the Applicant had been arrested because she had organised the appeal and was the leader. The Tribunal noted that the Applicant first said that neither of her parents signed any of these letters, and then changed her evidence to say that her father had signed the letters. The Tribunal noted that the Applicant said that the authorities were only looking for the organiser of the letters and that is why her friends and relatives who had also signed were not listed.
The Tribunal noted that the Applicant did not know how she was able to leave the PRC if she was of interest to the authorities. However, it noted her response that she borrowed money in the order of AUD30,000 to get out of the PRC and which she was obliged to repay.
The Tribunal noted independent country information before it suggested that people of interest to the authorities could not easily leave the country. The Tribunal noted that it put this independent country information to the Applicant and that the Applicant responded that she was helped by the solicitor and a smuggler.
The Tribunal also noted that it asked the Applicant why the documents that she had recently provided to the Tribunal were not provided earlier either to the Department or to the Tribunal. The Tribunal noted the Applicant’s response that she was afraid that “they were looking for her” and that she had wanted to bring the documents herself. The Tribunal noted the various responses and explanations made by the Applicant and did not regard any of her responses as explaining why the letters were sent from the PRC in November 2006 and not at an earlier stage.
Nevertheless, the Tribunal accepted the information contained in the documents presented by the Applicant that the Applicant has a cousin with a medical condition and that the Applicant may have lost her job.
However, the Tribunal did not accept that the Applicant lost her job for the reasons claimed, nor that the Applicant’s cousins medical condition was caused by the claimed mistreatment by authorities.
The Tribunal was not satisfied that the Applicant had written letters to the Chinese government in relation to “the treatment of her cousin in custody or seeking compensation for her cousin or for any other reason.”
The Tribunal rejected the Applicant’s claim of having been persecuted by the Chinese authorities because of any political opinion that may be imputed to the Applicant.
The Tribunal found the Applicant became “highly evasive” when questioned about how her father was able to bribe the officials to effect her release from the factory.
The Tribunal found the Applicant not to be a credible witness and that she was “often evasive and vague in her evidence.” The Tribunal noted that it had difficulty obtaining a response from the Applicant to its questions and that the Applicant “gave the impression that she had memorised the contents of her written statement”. The Tribunal found that she was unable to “coherently address any issues falling outside that statement.” The Tribunal noted that the Applicant had limited education and that she may have been anxious in giving oral evidence and that it had made allowances for “nervousness and other matters which may have prevented the applicant from giving evidence effectively.”
The Tribunal was not satisfied about any of the Applicant’s claims, including that her cousin was imprisoned and sentenced to death for the murder of his employer. The Tribunal found her evidence on that issue to be “confused”.
On 19 December 2006, the Tribunal handed down its decision affirming the decision under review.

The proceeding before this Court

On 19 January 2007, the Applicant filed an application for judicial review of the Tribunal’s decision.
Despite having been given leave on two occasions by this Court to file an amended application and any evidence in support of her application, no further documents have been filed by or on behalf of the Applicant in support of her application.
The Applicant appeared at the hearing before this Court without representation. However, she had the assistance of an interpreter.
The Applicant confirmed that she relied on the grounds identified in the application filed on 19 January 2007.
The Applicant then stated that she had wished to have a Fuqing interpreter at the Tribunal which she had not had. However, the Tribunal stated in its decision that the Applicant was assisted at the Tribunal hearing by “a Chinese interpreter in Fuqinese dialect.” There is no evidence provided by the Applicant in the nature of a transcript or other evidence to support her allegation. In the circumstances, the Court accepts as accurate the Tribunal record that states that the Applicant was assisted by an interpreter in Fuqing.
The grounds identified by the Applicant in the application filed in this Court on 19 January 2007 are as follows:
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
2. There was procedural error in the Tribunal’s decision constituting an absence of natural justice.”
Ground 1 is supported by particulars that allege a breach by the Tribunal of s.424A(1) of the Migration Act 1958 (Cth) (“the Act”) in that the Tribunal considered “inconsistencies of my evidence given at the hearing before it as part of reasons.”
The particulars assert that such information should have been provided to the Applicant in writing with an explanation as to why it was relevant and inviting the Applicant to comment.
The Tribunal provided in great detail the inconsistent evidence provided by the Applicant during the course of her oral evidence and her exchanges with the Tribunal.
Inconsistencies provided by an applicant in oral evidence to a Refugee Review Tribunal is not information that enlivens the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]).
To the extent that the Tribunal relied on these inconsistencies in making its adverse credibility finding, such findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Particulars to ground 1 also assert that the Applicant was “very emotional with tears covering my face from the beginning to the end; and was definitely impossible for me to understand why it would be relevant to the review; and it was definitely impossible for me to comment on it.” The Applicant provided no evidence in support of this allegation and did not identify the matters she was not able to comment upon.
In relation to the Applicant’s distress during the hearing, the Tribunal made specific reference in its decision to the fact that it had made allowances for any anxiety or lack of education on the part of the Tribunal and nervousness she had exhibited “and any other matters which may have prevented the applicant from giving evidence effectively.”
A fair reading of the Refugee Review Tribunal’s decision makes plain that it took into account the Applicant’s anxiety. In the circumstances, there is no demonstrated error on the part of the Refugee Review Tribunal in continuing with the hearing.
Accordingly, ground 1 is not made out.
Ground 2 is supported by particulars similar to those in support of ground 1. They assert that the Applicant was not given a “good and genuine opportunity” to give her oral evidence and present her arguments because of her emotional distress. The particulars state that the Applicant was “very emotional with tears covering my face from the beginning to the end. In such a situation, neither was I able to give my oral evidence properly and accurately in support of my claims; nor to present my argument against the issues arising from my review application.”
The particulars also assert that the Tribunal member should have given the Applicant a “chance for a rest; or to adjourn the hearing for the time being… because… it was impossible for me to do anything properly or accurately in that particular circumstance.”
A fair reading of the Tribunal’s decision makes clear that the Applicant had an opportunity to provide evidence to the Tribunal in support of her claims and to present arguments. A fair reading of the Tribunal decision does not suggest that the Applicant either sought an adjournment and was denied one or made any other complaint during the hearing that was ignored by the Tribunal about her mental state. The Applicant provided no evidence in support of such assertions.
As referred to above in these Reasons, a fair reading of the Tribunal’s decision makes it clear that, the Applicant’s emotional distress was taken into account by the Tribunal in the consideration of her claims.
Otherwise, the Tribunal invited the Applicant to come to a hearing in accordance with the statutory regime. A fair reading of the Tribunal’s decision discloses that the Tribunal understood the Applicant’s claims; explored them with the Applicant in great detail; made findings in respect of those claims based on the evidence and material before it and for which it provided reasons.
The Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for which it provided reasons. Credibility findings are a matter “par excellence” for the Refugee Review Tribunal (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407).
A fair reading of the Tribunal’s decision discloses that the Tribunal applied the correct law to the facts as it found them. The Tribunal concluded that, if the Applicant were to return to the PRC now or in the reasonably foreseeable future, there was no real chance that she would suffer serious harm by reason of any express or imputed political opinion or for any other Convention related reason. The Tribunal concluded that, based on all the evidence of the Applicant’s claims considered both individually and cumulatively, the Applicant’s fear was not well-founded within the meaning of the Convention.
As stated above in these Reasons, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. The Tribunal not being satisfied that the Applicant is a person to whom Australia has protection obligations, was bound to affirm the decision under review.
Accordingly, ground 2 is not made out.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 19 January 2007 is dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 6 December 2007