SZKMO v Minister for Immigration
[2007] FMCA 1212
•25 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1212 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 474; pt.8 div.2 |
| Re MIMIA; Durairajasingham (2000) 168 ALR 487 |
| Applicant: | SZKMO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1169 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 July 2007 |
| Date of last submission: | 25 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2007 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Mr M. P. Cleary |
| Solicitors for the Respondent: | Ms S. Kantaria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1169 of 2007
| SZKMO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 February 2007 and handed down on 13 March 2007.
The applicant was born on 16 November 1977 and claims to be from the People’s Republic of China (“the PRC”) (“the Applicant”).
On 15 November 2005, the Applicant arrived in Australia, having legally departed from the PRC on a passport issued in her own name and a visitor’s visa issued on 25 October 2005.
On 25 November 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by the PRC government in relation to the one child policy of that country. The Applicant claimed that she had three children between 1997 and 1999. The Applicant claimed that all three children were born at home as a result of the hospital’s refusal to treat the Applicant. The Applicant claimed that she has been in hiding as a response to government attempts to conduct tubal ligation surgery on the Applicant in accordance with the one child policy of the PRC.
On 12 February 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 15 March 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 20 February 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 April 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 25 October 2006, the Tribunal invited the Applicant to come to a hearing on 20 November 2006. The Applicant attended that hearing and gave oral evidence in which she expanded on her written claims.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant’s claims and the decision of the Tribunal are accurately summarised in paragraphs [8] – [13] of the written submissions prepared by counsel for the First Respondent as follows:
“The applicant’s claims
8. The applicant claims she fears persecution in the PRC by reason of her membership of a group, being parents of children born in breach of the PRC’s one child policy.
9. The applicant claims:
· she has 3 children, with the first being born before her marriage;
· her eldest 2 children were unofficially adopted out;
· due to her breach of the PRC’s one child policy, her and her family have experienced persecution and mistreatment;
· her eldest child was refused a birth certificate because the applicant was not legally married at the time of the child’s birth, and her other children were also denied birth certificates;
· she and her husband are liable to pay a “social compensation fee” for all 3 children;
· the authorities demolished her house; and
· she will be forced to undergo a tubal ligation should she return to the PRC.
10. In support of her application, the applicant also submitted documents, including a document purporting to be an official state order regarding the tubal ligation.
The Tribunal’s Decision
11. The Tribunal reviewed at length the claims and evidence. Firstly, it reviewed the applicable law in unobejtionable terms. It then set out the claims and evidence. Next, it set out the independent country information, and finally set put its findings and reasons.
12. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason and was not someone to whom Australia had protected obligations under the Convention. The Tribunal rejected the application for asylum on the following grounds:
· it found that the applicant lacked credibility and found that the claims made were not supported by any evidence on which the Tribunal could rely;
· it found that the applicant’s claims about not being able to get birth certificates did not sit with the independent country information;
· it gave no weight to the “family” photo of the husband’s letter or the purported tubal ligation order;
· it was not satisfied that the applicant had more than one child;
· accordingly, it was not satisfied the applicant would be identified as a person who had breached the PRC’s Family Planning Regulations.
13. For these reasons, the Tribunal found the applicant was not a refugee and affirmed the delegate’s decision.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant confirmed that she relied upon the grounds contained in her application filed on 10 April 2007. Those grounds are as follows:
“1. The RRT failed to afford the applicant procedural fairness
Particulars:
The Tribunal failed to give the applicant information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and the Tribunal failed to invite the applicant to comment on it. By failing to do so the Tribunal breached the Section 424A(1) of the Migration Act 1958.
Particulars:
The Tribunal stated that the applicant’s claims about not being able to obtain birth certificates for the first two children do not sit with independent country information. The tribunal failed to invite the applicant to comment on the inconsistency between her claims and independent country information. Although the tribunal does not need to invite the applicant to comment on country information, it should invite the applicant to comment on particulars of her claims which the Tribunal does not take into account on the basis of the country information.
2. The Tribunal failed to take into account important information and the documents the applicant provided were given no consideration at all.”
Each of the grounds was interpreted for the Applicant and she was invited to say whatever she wished in support of the grounds and in support of her application generally.
The Applicant sought to tender a letter written in English signed by her that briefly repeated her claims and otherwise attached a written advice dated 26 June 2007 from Partners in Law provided to the Applicant in accordance with the Panel Advice Scheme. The advice was marked “confidential” and had not been prepared in the nature of submissions to assist the Applicant. For that reason, this Court found those documents to be not relevant and inadmissible and rejected the tender.
Applicant’s assertion of no opportunity before the Tribunal to explain her claims
Before this Court, the Applicant stated that she was given no opportunity to explain her claims and her application was simply rejected. Such an allegation requires evidence. The Applicant was directed on 24 May 2007 to file and serve any evidence, including any transcript of the Tribunal hearing, by 21 June 2007. The Applicant confirmed that no further document was filed by her or on her behalf in support of her application. The Applicant participated in the Court’s Panel Advice Scheme.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims made by the Applicant and records further detail provided by the Applicant orally to the Tribunal. The Tribunal noted it had regard to a purported order from local authorities, dated 6 February 2006, that the Applicant undergo a tubal ligation. That document was provided to the Tribunal some weeks after the Tribunal hearing. However, a fair reading of the Tribunal decision makes it clear that the Tribunal considered that document. The Tribunal noted that the Applicant provided no other documents in support of the purported tubal ligation order. The Tribunal noted that the purported tubal ligation order post-dated the Applicant’s protection visa application. The Tribunal found the provenance of the purported tubal ligation order to be “explained rather vaguely in a letter from the applicant’s husband.”
The Tribunal also had regard to two photographs provided by the Applicant of a “decrepit building” claimed by the Applicant to be the house in the PRC referred to by the Applicant’s husband in his letter and which he claimed the building was demolished by authorities. The Tribunal found that the photographs did not suggest demolition and, further, the Tribunal had not been able to find any evidence of families in breach of the one child policy suffering demolition of their houses. The Tribunal found that there was no evidence to suggest that the building in the photographs was occupied by he Applicant’s family in Fuzhou or was ever owned by the Applicant and/or her husband.
The Tribunal noted in its decision matters it explored with the Applicant relating to her claims of having given birth to three children and her claim of a liability to pay compensation in respect of the three children in accordance with the one child policy in the PRC.
The Tribunal noted explanations provided by the Applicant in respect of concerns raised by the Tribunal. For example the Tribunal noted that it questioned the Applicant about her evidence that she was denounced to the authorities by her neighbours, whereas she had also claimed that her neighbours had helped her avoid authorities when they had come to her home to enforce the purported tubal ligation order. The Tribunal noted the Applicant’s explanation that even though some neighbours helped her “there was gossip that found its way to the village head.”
The Tribunal also noted that the Applicant was unable to provide birth certificates in respect of her first two children and noted that her explanation was that the children were born out of wedlock. The Tribunal also noted the Applicant’s claim that she and her husband were liable for a further penalty because her two daughters had been adopted out to other families.
The Tribunal also noted the Applicant’s evidence that the marriage certificate that she claimed to be “fake” was accepted by authorities and she was, accordingly, able to claim a birth certificate for her son.
The Tribunal also noted other inconsistent evidence given by the Applicant at the hearing.
Ultimately, the Tribunal did not accept the purported tubal ligation order as authentic on the basis that its provenance was “dubious” and the penalty described did not appear in the regulations.
The Tribunal did not accept the Applicant as a witness of truth and found that her claim to be the mother of three children was not supported by any evidence on which the tribunal could rely. The Tribunal found that the Applicant’s evidence about having her daughters adopted out was “implausible” and had been “improvised in the course of the hearing.” The Tribunal found the Applicant’s evidence to be unreliable in respect of her explanation as to why she was unable to obtain birth certificates for her children and why she was unable to give birth in a hospital.
The Tribunal did not accept that the Applicant entered into a fake marriage and did not accept that the Applicant had breached family planing regulations in any of the ways claimed, “whether through extramarital conceptions and births, or through “excessive births” or through adoptions, or in other ways.”
The Tribunal was not satisfied that the Applicant had had any more than one child and, accordingly, was not satisfied that the Applicant would be identified as a person who has breached the family planning regulations of either the PRC or the Fujian province.
It is clear from the discourse referred to above that the Applicant was offered an opportunity to explain her claims. I do not accept the Applicant’s allegation that her claims were “just rejected” and that she had no opportunity to explain any further. Indeed it is clear from the Tribunal’s decision, being the only evidence before this Court, that the Tribunal also considered post-hearing material provided by the Applicant before making its decision.
Ground 1
Ground 1 asserts that the Tribunal failed to afford the Applicant procedural fairness because it did not invite the Applicant to comment on the inconsistency between her claims of not having been able to obtain birth certificates for the first two children and independent country information.
Ground 1 alleges that the Tribunal was obliged to invite the Applicant to comment on such an inconsistency pursuant to s.424A(1) of the Act. Whilst the particulars to Ground 1 acknowledge that the Tribunal is not obliged to invite the Applicant to comment upon independent country information, it alleges that the Tribunal is obliged to “invite the applicant to comment on particulars of her claims which the Tribunal does not take into account on the basis of the country information.”
The information about the failure of the Applicant to obtain birth certificates was information given by the Applicant to the Tribunal in the course of her oral evidence.
The Tribunal’s evaluation of that evidence and the weight ultimately given by the Tribunal to that evidence are matters for the Tribunal and do not enliven the obligations of s.424A(1) of the Act. The Tribunal’s rejection of the Applicant’s evidence where it did not accord with independent country information was a finding open to the Tribunal on the evidence and material before it and for which it provided reasons. The assessment of the Applicant’s credibility is a matter “par excellence” for the Tribunal (Re MIMIA; Durairajasingham (2000) 168 ALR 487, per McHugh J).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 is unsupported by particulars or evidence and is essentially dealt with above in these Reasons in relations to the Applicant’s claim made to this Court at the hearing that she had no opportunity to explain her claims to the Tribunal.
A fair reading of the Tribunal’s decision makes it clear the Tribunal took into account all information provided by the Applicant and gave consideration to the documents provided by the Applicant. The Tribunal’s ultimate rejection of the Applicant’s evidence and her documents arose from findings made by the Tribunal that were open to it on the material and evidence before it and for which it provided reasons.
Accordingly, ground 2 is rejected.
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 10 April 2007, is dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 25 July 2007
5
0
2