SZMNX v Minister for Immigration

[2010] FMCA 443

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNX v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 443

MIGRATION – RRT decision – Chinese applicant claiming persecution after informal adoption of abandoned baby – disbelieved by Tribunal – reliance on country information – rejection of corroborative documents – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & SZNSP [2010] FCAFC 50
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 10
SZLPP v Minister for immigration & Citizenship [2009] FCAFC 51

Applicant: SZMNX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 492 of 2010

Judgment of: Smith FM

Hearing date: 16 June 2010

Delivered at: Sydney

Delivered on: 16 June 2010

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 492 of 2010

SZMNX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant is a national of the People’s Republic of China.  He arrived in Australia in October 2007 on a visa to visit his son, who had been studying here since May 2007.  On 30 November 2007 he applied for a protection visa, assisted by a migration agent.  The application attached a statement of the circumstances in which he claimed to fear persecution if he returned to China. 

2. The applicant said that he found an abandoned baby girl in 1993, who was kept in the home of his parents because “no government authority would like to claim responsibility for this matter”.  As a result, his mother had been kept in detention until a fine was paid, and she died as a result of this.  Every year subsequently “our family received notices of penalty”, and these penalties had to be paid “until the girl has grown up to 18 years old”.  His father was also persecuted for non-payment of penalties, and died in 2003.  After then, “local authority had been sending the penalty notices to my home under my name.  They kept forcing my wife and me to do vasoligation (and IUD) operations”.  He claimed that the authorities refused to register the girl, and “also didn’t allow her to be adopted by us”.  The family had to send her to an expensive private school, and the applicant was forced to seek employment away from his village.  He said: “even I tried to hide, I was still found by local authorities”.   In 2007, he was dismissed from his post in the village as local security officer, and “local authority kept coming to my home frequently and forcing me to do vasoligation operation since early of this year”.  He said he was forced to hide from the local authorities.  He had to separate from his family and decided to come to Australia. 

3. In support of his application, a number of official documents were given to the Department, with translations.  They included a copy of his household register which did not show the claimed adopted daughter, official receipts for the payment of a family-planning penalty of 8000 Yuan in 2003, 2004, 2005, 2006 and 2007, and various documents with 2007 dates concerning his dismissal from employment, demands for further payments of penalties, demands that he have vasoligation operations, and confirmation of the attendance of a daughter at a high school and primary school.

4. The applicant was interviewed by a delegate on 12 February 2008, and the delegate refused the visa application on 29 February 2008.  The delegate accepted parts of the claimed history in relation to the daughter, but was not persuaded as to the truth of the applicant’s claims to have been threatened with vasoligation.  The delegate said that he was satisfied that the applicant was of no interest to the Chinese authorities. 

5. The applicant appealed to the Tribunal, and was assisted by his migration agent.  In the course of the proceedings before the Tribunal he attended three hearings held by different members.  The decisions of the first two members were set aside by consent orders in this Court on grounds which I need not examine.  It is also unnecessary for me to examine the reasoning of the two previous Tribunal members.  They accepted or assumed the truth of parts of the applicant’s history in relation to the claimed informal adoption of a baby girl, but disbelieved other parts.

6. After the last remitter, the applicant attended a third hearing on 18 December 2009, conducted before the Tribunal member whose decision I am now reviewing.  In accordance with a request made by the applicant prior to the hearing, an interpreter with Fuzhou qualifications was in attendance.  However, as the transcript of the hearing which is in evidence before me shows, the applicant asked the interpreter to translate English at the hearing using Mandarin.  The interpreter confirmed with the Tribunal that she had interpreting qualifications in Mandarin.  The applicant confirmed his satisfaction with this arrangement, saying: “I prefer interpreter who can speak Fuzhou dialect because he can understand customs in my area”.  There is nothing in the English transcript to suggest that any problem of interpretation occurred in the course of the hearing, nor that the applicant ever expressed any dissatisfaction. 

7. It is apparent from the course of the hearing, that the third Tribunal member had investigated country information in relation to family planning regulations and administration in Fujian province in the relevant years.  The Tribunal clearly put to the applicant various inconsistencies between the information it located and aspects of the history claimed by the applicant in relation to his treatment as a result of informally adopting a daughter.  This included whether repeated annual fines were ever imposed, and whether forced sterilisation was occurring.  The terms of the regulations found by the Tribunal in this respect differed markedly from the terms of regulations presented by the applicant to earlier Tribunal members.  The Tribunal put these concerns to the applicant, and then explained that they might “…make it very difficult to believe that you are telling the truth about what happened when you found this abandoned girl” (see transcript page 29 and also preceding questions). 

8. The Tribunal also noted difficulties with the applicant’s unclear evidence as to whether it was he or his father who was known to have adopted the girl, and concerns arising from the terms of some of the documents which he had presented in corroboration. 

9. The Tribunal made a decision on 9 February 2010 affirming the delegate’s decision.  In its statement of reasons it identified all the evidence before it, including the evidence given by the applicant at all of the three hearings held by the Tribunal. 

10. In its findings and reasons it identified the factual premise in the applicant’s refugee claims, which it did not accept.  It said:

    In the present case, as I put to the applicant, I consider that there are good reasons for concluding that he is not telling the truth about having found an abandoned girl in September 1993 or about the problems he claims to have had as a result of having taken in this abandoned girl.

11. The Tribunal then identified various inconsistencies with country information which it regarded as authoritative, about practises in relation to receiving abandoned children in orphanages, the Fujian Province Family Planning Regulations, and the fines which were likely to have been imposed in relation to an adoption whether legal or illegal.  It said that the relevant regulations “do not authorize the use of coercive measures to force people to undergo sterilization procedures”.  It concluded that “the extracts from the Fujian Province Population and Family Planning Regulation which the applicant produced are not genuine”.

12. The Tribunal identified internal implausibility in the applicant’s claims that, on the one hand fine notices were being sent to his father, and on the other hand that officials always knew that he and not his father had adopted the girl. 

13. The Tribunal identified the documents that the applicant had produced in purported corroboration of his claims, and examined problems with some of those which it had discussed with him.  It then concluded:

    For the reasons given above I do not accept that the applicant is a witness of truth.  His claims regarding the circumstances in which he took in an abandoned baby girl and the problems he claims to have had as a result do not accord with the information available to me.  In particular, I do not accept that the applicant would have been told by the authorities to abandon the girl where he found her, as he claims, nor do I accept that he was required to pay fines annually until such time as the girl turned 18.  For the reasons given above I consider that the extracts which the applicant produced and which he said were from the Fujian Province Population and Family Planning Regulation are not genuine.  As I have indicated above, I do not accept that the applicant would have been given many of the documents which he has produced because they are not addressed to him nor is there any indication that copies were given to him.  Having regard also to the advice of the Australian Department of Foreign Affairs and Trade in relation to official Chinese documents I do not accept that the documents which the applicant produced to the Department in purported corroboration of his claims outweigh the other problems which I have with the applicant’s credibility. 

14. The Tribunal then said:

    For the reasons given above I do not accept that the applicant found an abandoned girl in September 1993 nor that when he went to the authorities in China he was told to abandon the girl where he had found her nor that after he took the girl in he was forced to pay penalties of 8,000 yuan each year until the girl turned 18 nor that he was forced to undergo a sterilisation procedure.  Since I do not accept the factual premise on which the applicant’s claims are based, I do not accept that, if he returns to China now or in the reasonably foreseeable future, there is a real chance that he will be required to pay any penalties under the Family Planning Regulations, that he will be forced to undergo a sterilisation procedure or that he will be punished for hampering the work of the family planning officials by hiding from them, as he claims.  Since I do not accept the factual premise on which the applicant’s claims are based I likewise do not accept that the authorities stopped paying him his salary as head of local security in 2003 because he had taken in the abandoned girl nor that they dismissed him from his post as the head of local security in 2007 for the same reason.

    Since I do not accept that the applicant has failed to comply with the Family Planning Regulations by illegally adopting an abandoned baby girl it follows that I do not accept that there is a real chance that he will be persecuted for a Convention reason in relation to any such failure to comply with the Regulations.  I do not accept on the evidence before me that there is a real chance that the applicant and his wife will fail to comply with the Family Planning Regulations if the applicant returns to China now or in the reasonably foreseeable future.  I likewise do not accept that, as the applicant told the second Tribunal, he is against the Chinese Government.  As referred to above, the applicant made this claim in the context of his claimed actions in taking in the abandoned baby girl.  Since for the reasons given above I do not accept that the applicant in fact acted in the way he has claimed I do not accept that he is against the Chinese Government as he claimed.

15. The Tribunal did not accept that the applicant had been dismissed from his job as head of local security for the reasons he claimed, nor that there was a real chance that he would be persecuted for reasons of real or imputed political opinion if he returned to China.

16. The Tribunal noted that the applicant had made no claim to have had problems practising his religion as a Christian, and it did not accept that there was a real chance that he would be persecuted for one or more of the five Convention reasons if he returned to China. 

17. The applicant now asks the Court to set aside the Tribunal’s decision and remit the matter for a further hearing in the Tribunal.  I have power to make those orders only 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’s documents were genuine, nor whether he should have been believed in all or parts of his history, nor whether he should be given any permission to stay in Australia.

18. The applicant’s application contains the following three grounds:

    1.I would be prosecuted if I return to China just because I got two children.

    2.During the hearing the Tribunal member told me the hearing was informal, thus, I thought I have another formal hearing hold by the Tribunal.

    3.The Tribunal failed to consider the whole of my case.

19. The applicant filed a transcript of the English parts of the hearing, without identifying any particular part of concern to him.  On my reading of it, it does not appear to support any contention of jurisdictional error.  He also submitted two documents in Chinese, one of which he informed me had been translated, to produce a document in English which I have received as a written submission.  Another handwritten Chinese document he presented is obscure to me, as is its claimed relevance to any of the arguments presented by the applicant. 

20. The applicant’s written submission obscurely referred to his being told “that the hearing was informal”.   As ultimately elucidated by me with the applicant, it appears that he was addressing the second ground in his application for review, by conceding that this ground had been inserted by an agent who was currently helping him, but was untrue.  The applicant clearly confirmed that, in fact, he did not think that he would have “another formal hearing” after the hearing held on 18 December 2009.  Certainly, there is nothing in the evidence before me to suggest that he or his agent were ever told anything by the Tribunal which might have suggested this. 

21. The other two grounds of the application appear to invite the Court to decide the applicant’s refugee claims for itself, or contain an unparticularised contention of a failure to consider evidence. 

22. On my reading of the Tribunal’s decision, it did address all the applicant’s claims and all of his evidence which had been presented at any stage in the course of the proceedings in the Department and before the Tribunal.  The contention that the Tribunal “failed to consider the whole of my case”, in my opinion, is only a criticism of the reasoning adopted by the Tribunal, when rejecting all his claims on the basis that it was not satisfied as to the “factual premise on which the applicant’s claims are based”.  However, in my opinion, that reasoning was open to the Tribunal, both as a matter of law and on the evidence before the Tribunal.

23. The applicant’s written submissions contain some obscurities which were not elucidated in his oral submissions.  Paragraphs 1 and 2 make obscure complaints which appear to concern the contents of interviews conducted before the last hearing of the Tribunal.  The points made by the applicant are unclear and, in any event, they do not have a bearing on how the present Tribunal decided the matter. 

24. Most of the other points appear to me to be arguments as to the correctness of the reasoning followed by the Tribunal.  Some of them are factually incorrect.  For example, in relation to paragraph 9, in fact the Tribunal clearly understood that the applicant was claiming to have been subjected to a fine of RMB8000 yuan every year.

25. The applicant criticises the Tribunal when not accepting that his corroborative documents outweighed “the other problems which I have with the applicant’s credibility”.  However, in my opinion, its reasoning about the documents clearly discloses no error amounting to jurisdictional error, in particular, in the light of the discussion of the Full Court in Minister for Immigration & SZNSP [2010] FCAFC 50.

26. The applicant’s criticises the Tribunal for giving weight to the information identified in its own researches.  However, this does not, in my opinion, raise any error which allows me to remit the matter.  The Tribunal was entitled to conduct its own general researches, to assess the applicant’s evidence against that information, and to use it as a basis for rejecting the credibility of his claims to have been persecuted (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 10, and SZLPP v Minister for immigration & Citizenship [2009] FCAFC 51 at [151]-[153]).

27. After taking into account all the submissions made by the applicant, I have been unable to identify any jurisdictional error affecting this Tribunal’s decision.  I must, therefore, dismiss the application. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  1 July 2010