SZLIQ v Minister for Immigration

[2008] FMCA 382

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIQ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 382

MIGRATION – Review of RRT decision – where Tribunal concluded the applicant was not credible – findings of fact open to Tribunal – whether Tribunal decision evidenced bias.

Migration Act 1956, s.424A(1)

Applicant: SZLIQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2908 of 2007

Judgment of: Raphael FM

Hearing date: 19 March 2008

Date of Last Submission: 19 March 2008

Delivered at: Sydney

Delivered on: 19 March 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent: Ms T Wong

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant pay the First Respondent's costs assessed in the sum of $3,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2908 of 2007

SZLIQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 12 January 2007 and on 26 February 2007 applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 19 March 2007 a delegate of the Minister refused to grant the protection visa. On 19 March 2007 the applicant applied for review of that decision from the Refugee Review Tribunal.

2. On 1 May 2007 the Tribunal wrote to the applicant offering her an opportunity to attend a hearing before the Tribunal on 22 June 2007. The applicant responded advising the Tribunal that she would wish to appear and she did so. On 17 July 2007 the Tribunal wrote to the applicant a letter pursuant to s.424A(1) of the Migration Act 1956 (the “Act”) inviting her to comment on information that the Tribunal considered would, subject to any comments she might have to make, be the reason or part of the reason for affirming the decision under review. The applicant responded to the letter by way of a statutory declaration dated 30 July. On 13 August 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 22 August 2007.

3. The circumstances in which the applicant considered she was a person to whom Australia owed protection obligations were that she was a poorly educated housewife living in an agricultural village in Fujian Province. In 2003 her husband went into the city to work leaving her to farm the small holding they owned. In January 2005 the party secretary of the village persuaded a number of villagers, including the applicant, to grant him some sort of right to have her land contract farmed in return for a small annual income. But the farming did not take place. The applicant approached the party secretary and queried what had occurred and asked that she be allowed to farm her own land. He refused. She learned that the party secretary had purported to sell her’s and the other villagers' land to a property developer, a transaction from which she received no benefit. The applicant then organised the local villagers to protest the action of the party official and she went into the city in order to do this. The applicant claimed that as a result of her organising the protests she was arrested and forced to work in a labour farm between June and October 2006. When she left the labour farm she was kept under surveillance. She continued to agitate. In December 2006 a friend of hers was arrested and the applicant took fright and arranged a departure for Australia. According to the Tribunal she appears to have arrived on a passport under someone else's name although with her own photograph.

4. The Tribunal questioned the applicant about her story.  The questions included ones about her knowledge of farming and the situation of her husband.  The questioning also dealt with the applicant's travel from China to Australia.  The Tribunal asked the applicant why she had not consulted a lawyer in connection with the land dispute and pointed out to her that the Chinese government had passed legislation which stated that all dealings in land should be in writing.

5. The concerns which the Tribunal had with the responses given by the applicant were articulated by it in the s.424A letter, which is extracted at [CB 105] in the Tribunal's record of decision.  The concerns raised included the applicant's knowledge of farming, her husband's presence at the farm and her alleged leadership of the group.  In relation to her knowledge of farming the Tribunal had serious concerns about the distance between each planting of sweet potatoes.  The applicant stated that she had planted sweet potatoes approximately 5 centimetres apart, whereas the Tribunal, apparently relying upon a book by Alan Searle, entitled "Growing Vegetables" [CB 74‑75] asserted that a farmer in China would plant sweet potatoes 18 inches apart.  The applicant responded in her statutory declaration that she did in fact plant the sweet potatoes between 15 and 18 inches apart and she did not know the exact meaning of a centimetre.  The Tribunal took the view that this response was not acceptable because the applicant had herself referred to centimetres in answer to the original question and therefore she must have understood what a centimetre was:

   “The Tribunal finds that if she did not understand that word, then she would not have used it and would have measured the distance in another way.  The Tribunal does not believe that the applicant has ever planted sweet potato.  This leads the Tribunal to conclude she is not telling the truth about her farming experience.  The Tribunal considers this goes to the heart of what she was doing in China and goes to the very basis of her claim that her farming land was taken and sold by the party secretary.”

6. It is not for this court to cavil with the Tribunal's findings of fact, even if it might disagree, and disagree strongly, with the conclusions reached provided those conclusions are available on the evidence (see: Minister for Immigration v Eshetu [1999] HCA 21 at [40] per Gleeson CJ and McHugh J). If the applicant's failure to plant sweet potatoes at the distance recommended by Mr Searle was the only ground upon which her application was to be rejected a court might have serious concerns. But in fairness to the Tribunal, although what appears to be an inordinate amount of emphasis has been placed on this fact, it was by no means the sole reason for the rejection of the applicant's evidence and is just part of its general concern as to her credibility because of the way in which she appears to have trimmed her responses and provided evidence that the Tribunal considered to be implausible. The Tribunal pointed out the implausibility of the applicant not having spoken to her husband about her arrangements with the local party secretary for leasing the land for the lengthy period of five to six years which she had stated she had done. This is a finding that is certainly available. But perhaps more important on the question of credibility is the change in the applicant's evidence about how often she saw her husband.

7. The Tribunal also criticised the applicant's credibility in relation to her position as a leader of the protest group.  The applicant told the Tribunal and told this court that she had had very little education.  Her evidence appears to be that she only had three years of primary education yet the Tribunal noted that she read and wrote and claimed to be an articulate leader of her village.

8. The Tribunal questioned the applicant as to why she had not taken legal advice in relation to her complaints.  The applicant gave what another Tribunal may have considered to have been a very adequate explanation which included her responses to the Tribunal's questioning about her knowledge of the recent reforms to land contracts and the attitude taken towards these in rural villages.  Once again another Tribunal may have accepted what the applicant said, but the fact that this Tribunal did not does not lead it into jurisdictional error.  What was important was that the matter was considered by the Tribunal and it is clear from the references made in the record of decision and from the 424A letter that these matters were considered.

9. As I am satisfied that the Tribunal could have come to an adverse view about the applicant's credibility from the available evidence I am unable to support the statement made in the application that the Tribunal made completely incorrect findings regarding the applicant's credibility.

10. The second matter raised by the applicant was bias.  She states that it was obvious that the Tribunal made its finding based on bias.  But as Ms Wong says in her helpful written submissions:

    “There is nothing on the face of the RRT's decision that suggests it failed to consider the applicant's claims in good faith or that it prejudged the issues to be decided: SBBS v  Minister for Immigration (2002) 194 ALR 749 at [43]‑[48]; Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425.”

    An allegation of bias is a serious one and if it is not particularised it should not be considered.  This allegation is not particularised.

11. Although the difficulties which the applicant claims she encountered namely, the apparent stealing of her land by a local party official and the reaction of the regional officials to her complaint have recently been the subject of some reporting in reputable journals, each application must be dealt with on its own particular merits and each Tribunal member must make up his or her own mind based upon his or her reading of the evidence and most importantly on his or her assessment as to whether or not he or she is satisfied that the applicant has a well‑founded fear of persecution for a Convention reason.  This Tribunal clearly was not so satisfied and came to that finding without falling into the jurisdictional errors identified by the applicant. 

12. I dismiss the application.  I order that the Applicant pay the First Respondent's costs assessed in the sum of $3,750.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  3 April 2008