SZKOV v Minister for Immigration - [2007] FMCA 1968

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKOV v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1968

MIGRATION – RRT decision – Chinese applicant claiming religious persecution – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Freedom of Information Act 1982 (Cth), s.41
Migration Act 1958 (Cth), s.424A

Kahtiresan v Minister for Immigration & Multicultural Affairs [1998] (unreported judgment, Federal Court of Australia, 4 March 1998)
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572
Re Refugee Review Tribunal; Ex parte H & Anor (2001) 179 ALR 425

Schwallie v Minister for Immigration & Multicultural Affairs [2001] FCA 417
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102

Applicant:

SZKOV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1412 of 2007

Judgment of:

Smith FM

Hearing date:

19 November 2007

Delivered at:

Sydney

Delivered on:

19 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr B Adam

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1412 of 2007

SZKOV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in 2001, and applied for a protection visa on the ground that she feared persecution if she returned to the People's Republic of China. A statement attached to her application narrated a history, in which she had been persecuted as a member of an underground church in China.
She claimed that she had organised secret gatherings in 1993, but was discovered in June 1994. Her group was banned, and she was forced to “accept six months punishment through hard labour” and to join an official church. She renewed her activities, but was again detained in October 1995 for three months, and “I had to accept one year labour reform under the monitoring of security department at the factory”, and her salary was stopped. She claimed that in March 1997 she set up the underground religious group for the second time, and organised bible studying and distributed religious leaflets. She again got into trouble at the end of 1998, and was dismissed from her employment and detained for “about a half year and subjected to physical and mental persecution.”
She said that when she was released in 1999 she again pursued religious activities among farmers in small villages. From 2000 to 2001 she went to at least 12 villages and set up special connection nets. However, the police were aware of her activities. She said by October 2001 she was on the black list of the Public Security Bureau, and was warned by a member of her church that she was “the major target of those policemen”. She said she went into hiding and then “left my home country ... with helps of my friends.” No corroboration of these claims was ever given to the Department nor to the Tribunal.
A delegate refused the application on 8 January 2002, and his decision was affirmed by a decision of the Tribunal handed down on 3 April 2003.
The Tribunal interviewed the applicant at a hearing. She produced to the Tribunal a passport which had a notation that it was issued in September 2001 as a replacement for a previous passport, which the applicant said she had obtained in 1997. The applicant confirmed that she travelled on the new passport to come to Australia, but could not explain how the Australian visa had been obtained, nor how she had experienced no problems at the border controls. The Tribunal clearly put to the applicant in the course of the hearing its difficulty in accepting that her travel on her own passport was consistent with her claimed history of persecution.
The Tribunal found that the applicant was not a witness of truth, and that she had fabricated her claims for refugee status. It did not accept any of her claimed history. It said at the commencement of its reasoning:
The applicant’s evidence at the hearing was unsatisfactory and unpersuasive. The applicant frequently contradicted herself in her claims, her responses were vague and at times she was non‑responsive to questions put to give her an opportunity to resolve contradictions or clarify vagueness. The applicant’s claims contradicted the available independent evidence to a degree significant enough that I am not prepared to accept her claims in preference to that independent information.
In particular, the Tribunal referred to country information which suggested that it was improbable that dissidents on a wanted list would be able to exit China on passports issued in their own names. It assessed the applicant's claims against that evidence, and found that the applicant was unable to reconcile the difficulties to the satisfaction of the Tribunal. It found that the applicant was of no interest to the Chinese authorities at the time she departed, and was satisfied that she did not have a well-founded fear of persecution for a Convention reason if she were to return to China.
The applicant now asks the Court to set aside the Tribunal's 2003 decision, and to order it to reconsider her refugee claims.
Her application was not commenced until 3 May 2007, shortly after she was taken into immigration detention. She has had a full opportunity to present to the Court all the evidence and arguments which she could make. She has not been continuously in detention, and has received referrals for free legal advice and a bundle of documents.
The applicant’s case was not dismissed at a show cause hearing which I held on 24 July 2007, but was set down today for final hearing. At that time I reminded her of the need to address her delay in coming to the Court. She subsequently filed an affidavit, in which she indicated that she was aware in 2003 of the Tribunal's decision, and that it was adverse. She then received advice from a migration agent that she could either appeal to the Federal Magistrates Court or apply to the Minister under s.417. She chose the latter course, and, when it was unsuccessful in September 2003, she accepted the agent's advice that there was no other avenue. It appears that she then decided to remain in Australia unlawfully, and took no steps to investigate her situation until 2006 when, in October 2006, she made an FOI request.
I was not satisfied on the applicant’s evidence that she had adequately explained at least three years of the delay in coming to the Court. However, I do not need to arrive at a conclusion whether relief should be refused for that reason. This is because I have considered the reasoning and procedures followed by the Tribunal, and am not satisfied that its decision was affected by any jurisdictional error.
The applicant was represented today by counsel, who addressed an amended application filed by the applicant on 13 July 2007. It contains the following four grounds:
1.The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.
2.The Tribunal had bias against me when considered my application for a protection visa. The officer kept asking me why I had lodged the initial application for a protection visa two days before my visa was expired. My visa was only valid for one month, it took time for the preparation of my application, and it is reasonable why I had not lodged my application earlier. The officer should not have bias against me because of that.
3.The reason why I lodged my application for review at Federal Magistrates Court in 2007 was because I had not know English very well. I did not know this procedure very well and I did not have sufficient money to support my review.
4.The Tribunal referred to inaccurate independent information to refuse my application for a protection visa.
Ground 3 was, in effect, a response to the question of delay, which I have discussed above.
Ground 4 was not addressed by the applicant's counsel, and I am not, for myself, able to identify any “inaccurate independent information” relied upon by the Tribunal, nor can I see any reasons why it was not open to the Tribunal to rely on the general information concerning passport and exit procedures in China to which it referred in its reasons.
In relation to Ground 1, counsel argued that the applicant had not been given an opportunity to comment in writing on adverse material relied upon by the Tribunal, in particular, the general information about passport and exit procedures. However, this information was clearly excluded from the scope of the Tribunal's duties under s.424A(1) by s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572). Counsel cited Schwallie v Minister for Immigration & Multicultural Affairs [2001] FCA 417, however, I do not consider that that authority assists him, since the information which was not put to the applicant in that case was specifically about the applicant.
Counsel also argued that the Court should conclude that there was adverse particular information before the Tribunal, which it relied upon and did not put to the applicant in writing. He invited me to draw that inference from a letter to the applicant dated 10 May 2007, in response to her FOI request. This informed the applicant that she was given unqualified access to all of her Departmental file containing 95 folios, with the exception of two folios, 90 and 95. Folio 90 is described as “computer printouts” and folio 95 is described as “email ‑ third party information”. The FOI letter is unclear whether the whole of each of those folios was withheld on the basis of s.41(1) of the Freedom of Information Act 1982 (Cth), or whether they were released with deletion of such material. There is no evidence before the Court as to the contents of the deleted material or withheld folios.
There is no evidence before me to indicate whether this material on the Departmental file was of any significance whatsoever in the assessment of the merits of the applicant's refugee claims. There is also no evidence before me suggesting that the Tribunal has given any weight whatsoever to the contents of those folios. In those circumstances, the applicant has not made out any breach of s.424A(1) in relation to that material.
Counsel for the Minister points out in her written submissions that the Tribunal relied on information concerning the applicant's travel and her visa application. She submitted that this information was all obtained by the Tribunal from information given by the applicant in a written submission to the Tribunal, or from her passport presented at the hearing, or from her evidence given at the hearing. Her submission was not disputed by counsel for the applicant, and I accept it. The information was all, therefore, covered by the exception in s.424A(3)(b).
In relation to Ground 2, counsel for the applicant argued that an informed bystander might form an apprehension of bias within the test applied in Re Refugee Review Tribunal; Ex parte H & Anor (2001) 179 ALR 425, by reason of the Tribunal's reasoning, which, in his submission, revealed an over-reliance on impressions of the demeanour of the applicant at the hearing.
I do not accept this submission for several reasons. First, because I do not understand from the Tribunal's reasons that it drew adversely from its observations of her demeanour at the hearing. As the commencement of the Tribunal's findings and reasons indicates, the Tribunal found the applicant's evidence unsatisfactory and unpersuasive from its content, not from the manner in which it was given.
I am also not persuaded that there is any evidence that the Tribunal did not assess the applicant's responses at the hearing in the light of the general need to be aware of cultural and language difficulties facing an assessment of witnesses such as the applicant. Counsel for the applicant cited Kahtiresan v Minister for Immigration & Multicultural Affairs [1998] (unreported judgment of Gray J in the Federal Court of Australia, 4 March 1998) in relation to "the proper approach to findings on credit". However, in my opinion, the Tribunal's reasoning does not suggest any "over reliance" on intangible aspects of assessment of a witness's evidence. The Tribunal's reasoning proceeded logically, upon points of difficulty facing an acceptance of the uncorroborated claims of the applicant, and upon her inability to present answers which satisfied the Tribunal on relevant matters. The fact that its ultimate conclusion was against the applicant cannot establish that the Tribunal had a closed mind before it arrived at its decision.
Counsel did not seek to draw anything from a transcript filed by the applicant, to establish a reasonable apprehension of bias. I have read that transcript for myself, and would not draw such a conclusion. It appears that the applicant at times did show some distress and anxiety, but the Tribunal appears to have treated her with sympathy and, at one stage, adjourned the hearing on its own initiative. The Tribunal clearly drew its concerns to the attention of the applicant, and she was given, in my opinion, a fair opportunity to meet those concerns. I would not draw a conclusion in this case that the manner of its questioning displayed any of the characteristics which were found, for example, in Ex parte H and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102). The transcript is an incomplete record of the end of the hearing. However, it appears to me that the applicant was probably given every opportunity to say whatever she wished to say to the Tribunal.
In this case, I am not satisfied that any unfairness attended the making of the Tribunal's decision. I am not satisfied that it was otherwise affected by any jurisdictional error. I must, therefore, dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 27 November 2007