SZMKH v Minister for Immigration

[2008] FMCA 1477

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1477

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

Migration Act 1958 (Cth), s.425

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553

Applicant: SZMKH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1538 of 2008

Judgment of: Smith FM

Hearing date: 20 October 2008

Delivered at: Sydney

Delivered on: 20 October 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Knackstredt

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1538 of 2008

SZMKH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant came to Australia on a tourist visa in September 2007.  The visa was given so that she could visit a daughter who was studying here.  On 1 November 2007, an application for a protection visa was lodged on her behalf by a migration agent. 

2. The applicant’s claims to fear persecution if she were returned to The People’s Republic of China were set out in a statement attached to the visa application.  She claimed that she had been pressured by her family to marry a person who had lent money to her father’s furniture factory business.  The marriage was unhappy, and the applicant was abused.  Eventually she divorced her husband after having several children. 

3. The former husband then pressured her family, and in particular her brother, to return the money, and the applicant claimed that the furniture factory had to be sold to meet his demands.  Also, to escape his continuing harassment, the applicant left her hometown in Hubei Province and lived in Fuqing City, where she worked in a clothing factory from July 2005.  She claimed that the former husband continued to pressure her brother, and he committed suicide in November 2006.  The applicant then returned to her family home in Hubei Province, and unsuccessfully sought a thorough investigation of her brother’s death. 

4. Moreover, from January 2007 she “began to contact those women who had seriously been subjected to domestic violence or sexual harassment or whose basic human rights had been wantonly ruined; and called those women to stand together with me to strive for our basic human rights”.  The applicant claims to have sent petitions to government agencies about this, and organised the distribution of “hundreds of leaflets”.  As a result, she was arrested and detained for three months.  The applicant said: “during that period, I was alleged to incite anti‑government protest and to express anti‑government opinions to the public.  I was subjected to miserable persecution at the detention centre”.  She was released after her father bribed the police.  However, “the local police as well as the [former husband] and local bullies continually gave me troubles after that”.  But, the applicant “did not stop my struggle against the corrupt Communist dictatorship.  After that, I continually organised some women to distribute many leaflets”. 

5. The applicant then claimed to have asked a friend in Fuqing to arrange her trip overseas, and left China with his help.  She said: 

   (17)Not long after my leaving, I was discovered to organise those anti‑government leaflets because some of women, who had distributed my leaflets, had been arrested by the police.  Since then, I have been regarded as an activist of anti‑government movement by the PRC authorities.  My parents, and other families, have been questioned by the police; and my home has also been searched by the PSB. 

   (18)I have already been on the black list of the PSB; and I must be subjected to persecution on my return … 

6. No supporting evidence for these claims was provided to the Department of Immigration, nor on appeal to the Refugee Review Tribunal. 

7. A delegate refused the application on 15 January 2008.  The delegate did not accept the applicant’s claims to have been persecuted as a political activist to be plausible, and found that the applicant did not have a well‑founded fear of being persecuted should she return to China. 

8. On appeal, the applicant attended a hearing held by the Tribunal on 2 April 2008.  A transcript is not in evidence, but the Tribunal gives a detailed description of the hearing. 

9. At the hearing, the applicant maintained her claims with some amendments. She was questioned about the absence of her daughter as a witness in her case, and about the details of her claims. The Tribunal questioned her about her claim that a friend in Fuqing had organised her travel to Australia. The Tribunal put to her information which it had obtained from the Department of Immigration concerning her tourist visa application. This included financial information, suggesting that she had a 20 per cent share in a furniture company, and bank accounts from which funds had been withdrawn to fund her daughter’s travel to Australia over the period when she claimed to have been held in detention in Hubei. The Tribunal suggested to the applicant that the documentation suggested that she was well established in Fuqing City as a business woman at that time and was not being persecuted in Hubei, as claimed.  The Tribunal also warned her about other concerns it had about her evidence. 

10. After the hearing, the information obtained from the tourist visa application was put to the applicant for written comment, as were other matters.  The applicant’s agent responded with a further statutory declaration.  It is clear that this was considered by the Tribunal when it arrived at its decision. 

11. The Tribunal handed down a decision on 20 May 2008, which affirmed the delegate’s decision. 

12. The Tribunal’s statement of reason contains a careful examination of the evidence.  Under the heading “Findings and Reasons”, the Tribunal said: 

    The Tribunal found that the applicant spoke with confidence about certain aspects of her personal experiences, such as her family and marriage circumstances, and her brother’s death.  However, it formed the view that she was a witness of low credibility generally.  She appeared to have a well‑rehearsed narrative, yet was reluctant to be drawn on or otherwise unable to explain key events and how they occurred.  … 

13. The Tribunal closely examined the evidence, and identified many reasons for having difficulty with some parts of the applicant’s evidence.  In particular, it noted points at which the applicant had difficulty explaining details of some elements of her claims, or gave unconvincing or changing responses. 

14. The crux of the Tribunal’s decision was its rejection of the applicant’s claim that she had returned from Fuqing City to live in her family home in Hubei after her brother’s death, and had there become a political activist for women’s issues.  To test this, the Tribunal carefully considered the documentation provided in support of the visitor visa application for Australia, and thought that there was strong evidence that the Fuqing City bank accounts were “indeed the applicant’s personal accounts, or at least that they are operated on her behalf”.  

15. The Tribunal noted the applicant’s denial that it was her signature on the tourist visa application, and that she was the person who had been telephoned by the Australian consulate to confirm details.  It also considered her suggestion that it should engage an expert to compare the signatures and analyse the telephone recordings.  It said: 

    However, the Tribunal considers it unnecessary to do so.  Whether the applicant signed the documents and took the Consulate’s telephone call herself, or had someone do it on her behalf, the Tribunal finds that the contents of those documents and the telephone call must have emanated from the applicant, and that they are compelling evidence that she was based in Fujian. 

16. The Tribunal identified many other reasons for rejecting the central claims of the applicant to have engaged in political activities, to have been persecuted as a consequence, and to have been a person of interest to the Chinese authorities.  The Tribunal also rejected the applicant’s claims that she was a person who had suffered disadvantage and hardship, and found that she had funded her daughter’s travel and study in Australia. 

17. The Tribunal accepted that she had had an unhappy marriage with her former husband and had divorced, but did not accept that the background to this was as presented by the applicant.  It did not accept the applicant’s claims that the State had denied the applicant protection against domestic violence or other harms for any reason. 

18. The Tribunal referred to the applicant’s passport showing that she had left China six weeks after obtaining her Australian visa, and thought that this was inconsistent with the conduct of a person who genuinely feared persecution.  It did not accept that the authorities had taken action against her or her family members following her departure.  It did not accept that she had any political opinion which would influence her future conduct and put her at risk of persecution for her political opinion if she returned to China.  The Tribunal found that the applicant “has not suffered Convention‑related persecution in China, for any reason, and that there are no circumstances that might give rise to a real chance of such harm”. 

19. The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration.  I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error.  I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia. 

20. The applicant has presented an argument to establish jurisdictional error which is set out in her original application.  It is an argument which is not easily comprehended, but appears to contain one ground that “the Tribunal unfairly rejected my evidence that I relocated from Fujian to Hubei after my brother’s death in November 2006 and that I started protest action in favour of women’s rights”.  

21. Various arguments are then presented under the heading “Particulars”, which consist of extracts from the applicant’s statutory declarations, with contentions that this evidence was ignored, intentionally misstated or distorted, unfairly dealt with, or addressed with findings which reveal apprehended bias.  The argument concludes that the findings of the Tribunal were incorrect, and that if it “had considered my evidences or claims properly and fairly; then it must accept” the applicant’s claims to have been persecuted for political reason. 

22. I have considered these arguments very carefully, but essentially in my opinion they do not raise more than an argument about the merits of the Tribunal’s reasons.  It is very clear that the Tribunal in fact did consider all the passages from the applicant’s statutory declarations which are extracted in the application. 

23. For myself, I have been unable to identify any particular part of the applicant’s claims or evidence that she presented to the Tribunal which was not carefully examined by the Tribunal in the course of its statement of reasons.  The Tribunal’s findings were, in my opinion, clearly open to it on the material before it.  It has shown that it engaged in an examination of the evidence which was far from irrational or unreasonable, and its examination shows a genuine attempt to arrive at the truth in relation to the applicant’s claims and evidence.  

24. I can find no evidence which might cause an informed lay observer to fear that the Tribunal might have closed its mind to the applicant’s claims and evidence before it arrived at its decision.  The fact that the Tribunal ultimately did not accept the applicant’s central claims does not, in my opinion, support any apprehension of bias arising from a closed mind.  Rather, the parts of its statement of reasons which are attacked show it performing its statutory jurisdiction to determine the matter before it. 

25. Far from being satisfied that the Tribunal did not give adequate reasons, in my opinion its reasons reveal an impressive attempt to come to grips with the applicant’s evidence, and carefully to explain why it has not accepted her key claims. 

26. Counsel for the Minister in his written submissions suggested that the applicant may have contended in her application that she had been confused at the Tribunal’s hearing, and that it had failed to appreciate or take this into account. I have doubt whether, in fact, this is a contention made by the applicant in her application. However, there is no evidence before me to suggest that the applicant was in any mental or physical condition at the hearing which might have prevented her from taking advantage of the hearing required under s.425 of the Migration Act 1958 (Cth) in a ‘meaningful’ way (see Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]).

27. The applicant attended today and read a submission to the Court which was written in Chinese.  It made the same points as appear in her application. 

28. Taking into account all of her submissions, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error.  I must, therefore, dismiss the application. 

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  4 November 2008