SZMHS v Minister for Immigration
[2008] FMCA 1394
•29 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMHS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1394 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for perceived political opinions – disbelieved by Tribunal – no failure of procedure by Tribunal – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), ss.424AA, 424A(1), 424A(2A) |
| Applicant: | SZMHS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1319 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 29 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1319 of 2008
| SZMHS |
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 September 2007, and on 12 October 2007 applied for a protection visa assisted by a migration agent, Ms Priscilla Yu. An attached statement explained why the applicant feared to return to The People’s Republic of China.
The applicant claimed that she conducted a small shop selling drinks from May 2005 until December 2006, when it was closed by the government to give effect to a highway project. She and other shopkeepers did not receive any compensation, although they were informed that money to compensate was available. Their informant told them that corrupt local government officials had taken that money.
The applicant claimed that she and others were organised by Mr Z to protest and to seek investigation, but their efforts were unsuccessful. On a Monday in July 2007, Mr Z organised about 100 people including the applicant to “have an open protest”, in which the applicant “stood in the front line of those protestors, holding a big banner”. The protest lasted one hour, and was suppressed by the police. Mr Z, the applicant, and seven to eight others were arrested. The applicant was detained for nearly three weeks, mistreated, and released after her husband bribed the police. She was then required to report to the local police station once a week, and was regarded as a troublemaker with serious anti‑government ideology. She claimed to have been assisted by her husband to get a passport before these events occurred, and that her trip overseas was organised by her husband.
No supporting evidence for these claims was provided to the Department of Immigration, nor on appeal to the Refugee Review Tribunal.
A delegate interviewed the applicant, and on 13 December 2007 made a decision refusing the protection visa application. The delegate considered that the applicant might have lost property without compensation, but was not satisfied that the applicant had been arrested or detained or was a person of interest to the authorities for any reason at the time she departed China.
On appeal, the applicant was further assisted by her agent, and attended a hearing on 26 February 2008. At the end of the hearing, she was given the tapes of the hearing. However, she has not presented a transcript of what happened, and the Court has only the Tribunal’s description of the hearing.
According to the Tribunal, the applicant was asked many questions exploring her claimed history in China, and in her responses she gave significant elaboration to her claims. The Tribunal also questioned the applicant about whether she was living at her claimed address in Sydney, and whether she had, in fact, travelled with her husband to Australia as part of the same tourist group. The Tribunal also put to the applicant information from the Department’s files, suggesting that the visa in her passport had been obtained with fraudulent information about her employment.
According to the Tribunal, at the end of the hearing it gave the applicant “clear particulars [of] information which could be the reason or part of the reason for affirming the decision to refuse the protection visa”, and it set out the particulars which were given to the applicant. These included the giving by her to the Tribunal of inconsistent information and significant elaborations of claims which were not in the original visa statement, and also the information taken from the Department files concerning her travel on the tourist visa. The Tribunal said:
The Tribunal explained that these inconsistencies in her evidence could lead it to conclude that she was not telling the truth about her claims and she was not a credible witness she did not fear persecution in China for the reasons that she claimed. The Tribunal could conclude that she had her own shop, and that this business was closed down, that she did not receive adequate compensation that she protested, that she was detained for three weeks, and that she was mistreated during detention. The Tribunal could conclude that she had fabricated her claims about being labelled as an anti‑government activist or campaigner, and that she had come to the attention of the authorities in this regard. The Tribunal could come to the conclusion that she was of no adverse interest to the government as holding anti‑government beliefs, or being an anti‑government activist or campaigner.
The Tribunal invited the applicant to comment on or respond to those particulars of information which it had set out to her. It informed her that she could request time to do so. The applicant accepted the invitation and was allowed until 18 March 2008 for her comment or response.
The Tribunal also informed the applicant that she could request a copy of the audio record of the hearing, and that it could be available shortly after the hearing.
The second sentence of the first paragraph of the above quotation is problematic, but in the context I think that the Tribunal intended to say that it warned the applicant that it might conclude that the stated matters should not be accepted. The subsequent sentences seem clearly to indicate that this was the effect of the warning given to the applicant. Certainly, in the absence of a transcript I would not conclude that anything was said to the applicant which might have been misleading in this respect.
The Tribunal received a written response from the applicant’s agent, which enclosed a statutory declaration and various documents corroborating her relationships with people in China and her place of residence in Australia. The Tribunal referred to this material in its statement of reasons, both in its narration of the background to the matter and also in the course of its findings and reasons. There is no reason to conclude that it did not take it into account.
In its “Findings and Reasons”, the Tribunal said that “overall the Tribunal found the applicant’s evidence to be inconsistent and unconvincing”. The Tribunal identified and explained particular areas where the applicant had significantly elaborated her claims during the hearing, which led the Tribunal to conclude that she was “mak[ing] her evidence up as she went along”.
The Tribunal also relied upon the apparently inconsistent evidence given to the Department of Immigration in relation to the applicant’s employment circumstances. It did not consider that the applicant had adequately explained this. The Tribunal concluded:
Based on the Tribunal’s impression, the above‑noted evidentiary concerns and in consideration of the evidence as a whole, the Tribunal finds that the applicant is not a credible witness and that she has fabricated her claims in order to support her application for a protection visa.
The Tribunal, therefore, did not accept any elements in the applicant’s claimed history of persecution in China. It was not satisfied that she had a well‑founded fear of persecution for a Convention‑related reason.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter to the Tribunal for further consideration. 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 should be given a protection visa or any other permission to stay in Australia.
The applicant has been given an opportunity to take advice and file an amended application and evidence, but relies only upon the grounds set out in her original application. This contains three grounds. They were repeated and the third ground was elaborated, in a submission in Chinese which the applicant brought to the hearing and which was read to the Court by the interpreter.
The first ground contends that the Tribunal failed to comply with obligations under s.424AA of the Migration Act 1958 (Cth). It is argued, without particulars, that the Tribunal failed to give clear particulars of information which it put to the applicant at the hearing about inconsistencies in her evidence and also in relation to the visitor visa information.
However, I can find no substance for these contentions in the evidence before me. On the Tribunal’s description of the hearing, it followed the requirements of s.424AA, and precisely indicated matters of concern to it. It warned the applicant that they might lead the Tribunal to conclude that her claims about being an anti‑government activist or campaigner were fabricated. Contrary to the applicant’s oral submission, the Tribunal plainly gave the applicant a reasonable opportunity to respond after the hearing in writing, and she took advantage of that opportunity.
I therefore do not accept that this ground is made out.
The second ground in the application is that the Tribunal failed to comply with obligations under s.424A(1) of the Migration Act. No particulars of information which were required to be put to the applicant in writing under that section are identified.
In the circumstances I have described above, I am not satisfied that there is any particular of information falling within s.424A(1) which the Tribunal did not sufficiently address by way of a procedure under s.424AA. In that circumstance, s.424A(2A) applies, so that the applicant was not obliged to be given a written notice inviting comment.
The third ground in the application is that “I do not think that my application has been fairly considered by the Tribunal according to the laws”. No particulars of this contention are given in the application, nor in any written submissions filed and served before the hearing. However, the applicant’s submissions to me today complained that the Tribunal had been unfair because, although she had provided documents concerning her marriage, her current address, and how she had left China, the Tribunal had not addressed these matters, but had based its decision upon other reasons. The applicant’s submissions suggested that she had been misled by the Tribunal into thinking that these issues would be important to the Tribunal’s decision.
However, this argument is not supported by the evidence which is before me, as to what happened at the hearing. As I have noted this consists of the Tribunal’s description of the hearing. It is clear from that description that the hearing was occupied extensively by the Tribunal investigating the applicant’s claimed history of persecution in China, and by the Tribunal expressly identifying reasons why it might not be found persuasive and credible. It was these issues upon which the Tribunal then decided the matter. I do not accept that anything happened at the hearing, which might have misled the applicant into not being aware of the issues upon which the Tribunal ultimately determined the matter.
I am, therefore, not persuaded that Ground 3 is made out, insofar as its complaints might raise jurisdictional error.
For the above reasons, I am not satisfied that any jurisdictional error affects this decision of the Tribunal, and I must, therefore, dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 10 October 2008
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