SZLLK v Minister for Immigration
[2008] FMCA 488
•9 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 488 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – material claims disbelieved by Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZLLK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3109 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 9 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3109 of 2007
| SZLLK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in February 2007, and on 9 March 2007 an application for a protection visa was lodged on her behalf by a migration agent, Priscilla Yu. A statement attached to the application set out the history upon which the applicant claimed to fear persecution if she returned to the People’s Republic of China.
The statement said that the applicant came from a rural family, and took employment in a radio station in her city after going to university. She claimed that in late 2006 she heard that her father’s farmland was confiscated for a government project, together with the land of very many other farmers. There were then protests by the farmers. She said that she attended at the site and found that it had been encircled by barbed wire. When she tried to take photographs she was immediately stopped by the police. When she went to a hospital to visit farmers who had been injured by the police in the course of their protests, she found two plain clothes policemen were waiting for her. They confiscated her notebook, camera and pocket recorder and took her to the Public Security Bureau (“PSB”), where she was subjected to interrogation before being sent to a detention centre. She claimed to have been physically and mentally persecuted there and held for nearly two weeks. While she was being held, her father organised a protest in front of the PSB “requiring the police to release me at once”, but the protest was suppressed and her father was arrested. She was only released when she agreed to confess, and was then required to report to the PSB once a week, but her father was not released for another month.
She claimed that in January 2007 she decided to draft a petition to express her political opinions against the government. She said she made 5,000 to 6,000 copies of a petition, organised farmers to distribute them, and sent copies to different government agencies. However, the police became aware of the petition, and she was questioned by them about three times. She said that “I eventually left China with help of a reliable friend”. After she left, the police attended her home with an arrest permit, since she had been denounced, and her father was arrested.
The applicant was interviewed about her claims by a delegate of the Minister, before the delegate made a decision refusing the visa application on 21 May 2007. In his reasons, the delegate did not accept the veracity of the applicant’s refugee claims due to various inconsistencies and implausibilities which emerged in the course of the interview, and which the delegate referred to in the statement of reasons.
On appeal, the applicant was again closely questioned about her claims by the Tribunal in a hearing held on 31 July 2007, which appears to have lasted for about three and a half hours with breaks. I only have before me the Tribunal’s description of that hearing. Although the applicant criticises the conduct of the hearing in her application, and although she was advised by me at the first court date that she should consider tendering a transcript of the hearing, she has not done so.
Following the hearing, the Tribunal sent a letter to the applicant identifying some particular concerns which, it told her, might indicate that she had not told the truth in relation to at least some of her claims, in particular, that police were suspicious of her involvement in activities critical of the government. The applicant was also invited to provide corroboration of her address in China, by way of a copy of her household registration. The applicant did not provide such a document, but did submit a copy of an employee identification card in relation to employment at a radio station.
The only other corroborative evidence which was presented by the applicant was a document written in Chinese handwriting, which she read to the Tribunal, and which she said showed the contents of the petition which she had typed and distributed.
On 11 September 2007, the Tribunal handed down a decision affirming the delegate’s decision. At the start of its findings and reasons it said:
The Tribunal had significant concerns about the applicant’s credibility, and notified her of these concerns in the course of the Tribunal hearing. On occasion, when doubt was expressed about a claim during the hearing, the applicant varied her information to accommodate the concern expressed by the Tribunal.
The Tribunal identified examples of her tailoring of her evidence at this point, and also subsequently in its carefully written statement of reasons.
The Tribunal was prepared to accept that the applicant had been employed in a radio station, but had difficulty accepting that she was unable to identify any friend at the radio station who could give evidence to corroborate her history. It was also prepared to give her the benefit of the doubt, and to accept, that her family’s land was confiscated, and that there had been a reaction by the local farmers. It also did not reject the possibility that the applicant’s father had been arrested and detained for a period after his land was confiscated. However, it did not accept that this would have been by reason of anything to do with the applicant’s activities, and did not accept her claims about her own involvement in protest activities.
The Tribunal gave a series of reasons explaining that conclusion, which addressed each of the elements in the applicant’s claimed history of persecution. It found her account of her communications with her father about the land acquisition to be lacking in credibility. It thought her account of her behaviour at the site of the confiscations and at the hospital to be lacking in logic and plausibility. It did not accept that the applicant was ever arrested in relation to the confiscation of her father’s land, nor that she was ever detained or mistreated or required to report weekly.
In relation to the applicant’s claim that she had drafted and made 5,000 copies of a petition, the Tribunal referred to inconsistent evidence about where she had been living at the time, and to implausibility in her account. It formed the conclusion that her “account of the method of her dismissal from the radio station appeared to have been invented”. It gave weight to a point previously made by the delegate: that it was difficult to accept that, if she was questioned by the police about a petition on three occasions, they made no attempt to search her accommodation or her parents’ house. The Tribunal was not satisfied that the police had an adverse interest in the applicant as a result of the preparation or distribution of a petition.
In relation to the claim that her father had been arrested after her arrival in Australia, the Tribunal formed the view that the applicant had invented details of an arrest warrant, in order to found the claim that she would be at risk of persecution if she returned to China. The Tribunal referred to the fact that the applicant had been “extremely vague” about how she arranged to leave China on a passport which she claimed was in her name, but had been submitted with forged documents to obtain a visitor’s visa.
The Tribunal concluded that it was not satisfied that the applicant had suffered persecution in the past within the meaning of the Convention. It said that she had not demonstrated that she held political opinions which were likely to bring her to the adverse attention of the authorities in the future. It found that she had not “made out a case that she herself was associated with any activities which might cause the authorities to investigate her on her return to China”. It was not satisfied that there was a real chance that she would be persecuted for a Convention reason if she returned to China.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order that it reconsider her claims. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether she is qualified for a protection visa or any other permission to stay in Australia.
The applicant relies on an argument which is set out in the original application filed in the Court. She repeated this argument to me today. The argument is presented in support of a claim that there was error of law amounting to jurisdictional error or procedural error constituting an absence of natural justice.
Essentially, the argument is encapsulated in paragraph 1 of the particulars:
1.The Tribunal incorrectly assessed my credibility.
The difficulty with the argument is apparent from this proposition. This is that it is a challenge to the merits of reasoning followed by the Tribunal which was within the area of the Tribunal’s jurisdiction, and which performed its duty to form its own judgment about the applicant’s credibility.
The argument which is developed in the subsequent paragraphs of the particulars, also claims that the applicant was denied the opportunity to give evidence and to present arguments relating to the issues arising in relation to the decision under review, as is required by s.425 of the Migration Act 1958 (Cth) as explained in various decisions of the High Court. It is alleged:
However, the Tribunal has, in fact, not tolerated me to give my oral evidences which would, definitely, make my claims described in my written materials well understood; and the Tribunal has, in fact, not tolerated me to present my argument relating to the issues arising in relation to the decision under review. My oral evidences or my arguments at the hearing before the Tribunal have, unfairly, regarded as that “… the applicant varied for her information to accommodate the concern expressed by the Tribunal …”
However, no particular conduct in the course of the Tribunal’s hearing is identified to the Court which denied the applicant a fair hearing. Nor has a transcript been presented to show this. On the Tribunal’s description of the hearing, and on its statement at the beginning of its “Findings and Reasons”, the applicant was afforded the opportunity to present evidence and submissions which is required by s.425. I would not make any finding to the contrary.
The particulars of the application also criticise some elements in the Tribunal’s reasoning leading to its conclusions about credibility. They are submitted to be based “on nothing but its assumptions” about Chinese family relations, and it is suggested that the Tribunal misstated the applicant’s evidence. However, these arguments appear to present new evidence to the Court, which was not in fact before the Tribunal. The arguments do not satisfy me that there was any material evidence which was overlooked by the Tribunal, when it arrived at its assessment of the applicant’s credibility. Nor am I satisfied that the Tribunal made any finding which was not open on the evidence.
The particulars also suggest that “the Tribunal has, in fact, failed to bring independent mind to consider my comments on the issues raised in the Tribunal’s letter”, referring to its s.424A letter. In the applicant’s response to the Tribunal’s letter an attempt was made to rationalise the inconsistencies to which it drew attention.
However, the Tribunal set out in its statement of reasons the contents of both its letter to the applicant and the applicant’s response. I conclude that it is probable that the Tribunal gave full consideration to the applicant’s response, and I can find no substance to the suggestion that it did not bring an “independent mind” when it did so. If the application suggests apprehended or actual bias, I can find no evidence which could satisfy the tests identified in the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 or Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
I have considered all of the arguments presented by the applicant in her application, and I am not satisfied that the Tribunal’s decision was 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: Lilian Khaw
Date: 17 April 2008
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