SZMUO v Minister for Immigration - [2008] FMCA 1671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMUO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1671

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant’s faith accepted but his claims of past harm not believed – no risk of future harm – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA, 425

Applicant:

SZMUO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2532 of 2008

Judgment of:

Driver FM

Hearing date:

12 December 2008

Delivered at:

Sydney

Delivered on:

12 December 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr G Johnson
DLA Phillips Fox

ORDERS

The transcript of today’s proceeding is to be obtained and provided to the Law Society of NSW and the Migration Agents Registration Authority for such action as they consider appropriate.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2532 of 2008

SZMUO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 4 September 2008. The applicant had claimed persecution in China on the grounds of his Christian faith as a member of the True Jesus Church.
The background facts relating to the applicant's claims and the Tribunal decision on them are set out in the Minister's written submissions filed on 4 December 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 11 of those written submissions:
The applicant is a male citizen of China born on 19 February 1963.[1] He arrived in Australia on 9 December 2007.[2]
[1]court book (“CB”) 41.
[2] CB 14.
The applicant applied for a protection visa on 22 January 2008.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 21 April 2008.[5]
[3] CB 1.
[4] CB 36-39.
[5] CB 68.
The applicant applied to the Tribunal for review of the original decision on 28 May 2008.[6] His further written claims were set out in an additional statement.[7]
[6] CB 79.
[7] CB 94-99.
The applicant gave oral evidence before the Tribunal on 21 July 2008. The Tribunal handed down its decision on 4 September 2008.
The applicant's claims
The applicant is a male national from Fujian province, China. He claimed to be beaten and detained by the Public Security Bureau (PSB) for printing and distributing materials about the True Jesus Church [26]. He was released from detention because family members bribed the PSB and bailed him out. He claimed that his case is still pending and he must report to the PSB whenever requested [28].
The decision of the Tribunal
The Tribunal was not satisfied that the applicant was unusually nervous or anxious, or that there was any other factor which adversely affected the applicant's ability to give and present arguments, including but not limited to, his claim that his expression in Mandarin was weak [71].
The Tribunal was satisfied that the applicant was a member of the True Jesus Church and was baptised in China in 1975. The Tribunal also accepted that the applicant attends the True Jesus Church in Sydney [72].
The Tribunal seriously doubted the veracity of the applicant's claims and his general credibility for the following reasons:
The applicant did not provide any official documents from the Chinese authorities to support his claim that he was detained by the PSB [82].
He was able to depart China legally using his own passport, and did not experience any difficulties in leaving China [86].
The applicant gave confusing and inconsistent evidence about his claim to have sent a letter to the Taiwanese headquarters of the True Jesus Church [87].
In the statement attached to his PVA, the applicant did not mention the date of a letter sent to the Taiwanese headquarters of the True Jesus Church [89].
In consideration of the adverse credibility against the applicant, the Tribunal did not accept that the applicant ever wrote any letter to the Taiwanese headquarters of the True Jesus Church, or that any such letter was confiscated by the PSB. The Tribunal further did not accept that the applicant printed and distributed True Jesus Church materials. The Tribunal was not satisfied that the applicant was arrested or detained for any length of time, or that the PSB searched his home [90].
In essence, the Tribunal did not accept that the applicant suffered any of the claimed harm [90]. The Tribunal was satisfied that the applicant would not suffer any Convention related harm if returned to China, and if he continued to practise his Christian faith as he had done in the past [91].
These proceedings began with a show cause application filed on 30 September 2008. The applicant continues to rely on that application. I incorporate in this judgment the grounds in the application:
1. [Tribunal] failed to carry out its statutory duty.
Particulars
a.(i) [Tribunal’s] duty under the Act s.424A arises at the time which the Tribunal receives information which would be the reason, or part of the reason, for affirming the decision under review.
(ii) In this case, the Tribunal had such information at some time prior to date of decision. In a letter, the Tribunal said:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone
(iii) The information before the Tribunal was: “The Tribunal has before it the Departmental file, which includes the protection visa application and the delegate decision record. The Tribunal also has had regard to the material contained in the Tribunal file, including the Application for Review.”
(iv) The Tribunal, therefore, had information caught by s.424A and failed to give particulars of that information to the Applicant, explain why it was relevant and give the Applicant an opportunity to comment upon it.
(v) The Tribunal should have included particulars of the information and explanation in its letter.
A failure to do so is a jurisdictional error.
2. As a matter of fact, the Tribunal has apparently failed to give me the important information, completely and clearly, during the hearing, which have been used as the reasons or part of reasons, for affirming the decision that is under the review;
3. [Tribunal] has, particularly, failed to ensure me during the hearing, to well understand why the information, normally called as “independent country information” (ICI), is relevant to the review;
4. It is because of the reason mentioned above that it is impossible for me to have fair chance to comment on the ICE before [Tribunal] affirming the decision;
5. [Tribunal] failed to observe its obligations under s.425 of the Act. At the hearing, I should be entitled to give oral evidence to support my claims as well as to comment on adverse information. Such of my rights were deprived of and restricted at the hearings. I was often interrupted by the Member and the interpreter. I often lost my thoughts and flow of thinking due to such interruptions and restrictions.
6. The facts that I did not file enough submission after the hearing was because it was very risky for me to have evidence of persecution transferred to us in Australia from china. It could even take a long time because I need to wait for suitable opportunity and trusted friend to bring them to Australia.
7. It is true that I suffered persecution in China because of my Falungong involvements. Several my friends in similar situation as mine have been granted refugee status (protection visas) in Australia. I have been treated differently by this different Tribunal Member. I feel that I was treated unfairly by the [Tribunal] Member.
The applicant conceded that paragraph 7 in the grounds is false because he has not been and has never claimed to be a Falun Gong practitioner.
The solicitor for the Minister also pointed out that paragraph a.(iii) under the heading “Particulars” appears not to relate to this decision of the Tribunal. This suggests that the grounds in the application may be some sort of template. Curiously, the applicant's protection visa application at question 44 (CB 20) also contains the assertion that the applicant feared persecution in China because of involvement with Falun Gong and political opinions. The applicant conceded that that assertion was false.
In response to questions from me, the applicant stated that his migration agent, Ms Grace Xiao Chen of Aussie Sino Angel Pty Ltd, PO Box 1178, Bankstown, New South Wales, 1885, had completed his protection visa application and his application to this Court. He was not given the opportunity to check the contents of those documents. The applicant told me that it was Ms Chen who decided upon the grounds to put in his application to this Court. Ms Chen is apparently a migration agent and her photograph appears on the Migration Agents Registration Authority website. The applicant confirmed that the photograph displayed on the website purporting to be that of Ms Chen was indeed the agent who has been assisting him. The applicant told me that he had paid Ms Chen some hundreds of dollars for her services in relation to these present proceedings in addition to the money he had paid her for her assistance before the Department and the Tribunal.
I am concerned that Ms Chen has either knowingly or carelessly made false claims to both the Minister's Department and this Court. I am also concerned that Ms Chen may have been providing services in the nature of legal services in relation to these proceedings which she is not permitted to provide. In the light of those concerns, I directed the transcript of today's proceedings to be obtained and to be provided to the Law Society of New South Wales and the Migration Agents Registration Authority for such action as they consider appropriate.
The show cause application is supported by a short affidavit by the applicant which I received as a submission. I have before me as evidence the court book filed on 5 November 2008. The applicant did not file any written submissions, although I gave him the opportunity to do so in orders made by me on 7 November 2008. He did not take up my invitation to make oral submissions.
There is no substance to the asserted breaches of ss.424A and s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The grounds advanced in relation to s.424A amount to the proposition that the obligation to make disclosure pursuant to s.424A necessarily arises whenever the Tribunal sends a hearing invitation containing the statement that the Tribunal has considered the material before it in relation to the application but is unable to make a decision in the applicant's favour on that information alone.
I reject that proposition. The mere fact that the Tribunal is unable to make a favourable decision on the papers does not mean that the Tribunal has information before it, which may be a reason or part of the reason for affirming the decision under review, requiring disclosure pursuant to s.424A(1).
The Tribunal purported to go through a process of oral disclosure at the hearing conducted by the Tribunal on 21 July 2008. Paragraphs 45 through to 52 of the Tribunal's decision[8] refer to a range of matters raised with the applicant during the course of the hearing which bore upon the applicant's credibility and the well‑foundedness of his fear. Those matters all related to the applicant's own evidence given to the Tribunal for the purposes of the review, and country information.
[8] CB 130 and 131
In paragraph 59 of its decision[9] the Tribunal said:
At the end of the hearing, the Tribunal indicated to the applicant that he was entitled to seek additional time to comment on and/or respond to the information that the Tribunal had given him in the course of this hearing that the Tribunal considered could or would be a reason for affirming the decision to refuse him a visa. The Tribunal asked him if he needed more time to comment on and/or respond to the information. Upon further discussions with his advisor it was agreed that any written submissions would be provided by 28 July 2008.
[9] CB 132
The Tribunal unfortunately did not specify at that point what the information was that the applicant was being invited to respond to. I draw the inference that the invitation related to the information disclosed in the Tribunal's reasons relating to the hearing. The difficulty is that a good deal of information was disclosed and none of it appeared to require disclosure pursuant to s.424A or s.424AA.
The Tribunal does not commit jurisdictional error by exceeding its obligation of either written or oral disclosure pursuant to those sections. Indeed, it well could have been a commendable and prudent approach to take. However, difficulties are likely to arise if disclosure of particular information is required pursuant to s.424A and the Tribunal does not clearly identify what that information is at the point of addressing its obligations under s.424AA. The difficulty in this case, if such disclosure had been required, is that the Tribunal in effect deconstructed the performance of its obligations under s.424AA and dealt with different aspects at different points during the hearing. Assuming what the Tribunal reproduces in its reasons at paragraph 59 is an accurate description of what the presiding member said, the applicant would have been left in some doubt as to what the information was that he was being invited to respond to in later submissions. There is a risk that in dealing with such an invitation at that level of generality particular information requiring disclosure and being disclosed during the course of the hearing may be overlooked. The better approach that I have seen taken by some Tribunal members is to clearly address at a single point during the hearing all of the aspects of s.424AA that need to be complied with.
Neither was there any breach of s.425 in this case. The applicant was invited to attend a hearing before the Tribunal and did attend. The hearing opportunity was a real one. While the applicant asserts that he was constantly interrupted by the presiding member, there is nothing in the available material to support that assertion. I reject the contention that s.425 was breached.
I have considered for myself whether any other issue of jurisdictional error arises in this case. The Tribunal formed an adverse view about the applicant's credibility on the basis of a range of aspects of the applicant's evidence including what the Tribunal saw as inconsistencies. Two examples of those inconsistencies are dealt with by the Tribunal in paragraph 86 and paragraph 89 of its reasons:[10]
[10] CB 139
86. The applicant has claimed that up until his departure, he still had to report to the PRC authorities. He also claimed that the case against him is still pending. In the course of the hearing, the applicant was asked and he confirmed that up until his departure from China he had to report to the police station daily or every second day. This is somewhat inconsistent with post-hearing submissions that after he was released from the detention centre in China, he had to report to the PSB every other day. Firstly, having to report to the Chinese authorities is not a minor issue and the Tribunal is of the view that the inconsistency raises doubts about the applicant’s claims. Secondly, given the above noted country information, the fact that the applicant left china legally using his own passport when arguably he was still of adverse interest to the PRC authorities, raises further doubts about his claims. The Tribunal is not persuaded by his explanations that he was not a criminal and he was not on the wanted list. The Tribunal is of the view that person who are of adverse interest to the Chinese authorities, generally have difficulties in leaving china and that the fact that he left china using his own passport raises doubts about the veracity of his claims and his credibility generally.
…
89.Furthermore, the Tribunal notes that in the statement that he had provided in support [of] the application, there is no mention that he had sent the letter on 13 April 2007. When invited to comment on and/or respond, he said that the statement was general, which the Tribunal finds unconvincing. The Tribunal is of the view that the fact that the applicant did not mention a significant matter, such as the date in the statement raises doubts about the veracity of his claims and his credibility generally.
For myself I do not see any inconsistency between saying, one has to report to a police station “every second day" and later saying, one has to report to the police station “every other day". Neither would I myself place great significance on the omission of a date of a letter in written protection visa claims, when the date of the letter is later disclosed. Just as the Court should not approach Tribunal reasons with an eye too finely attuned to identify error, neither should the Tribunal approach claims of persecution with an eye too finely attuned to identify inconsistencies. Nevertheless, the conclusions on credibility drawn by the Tribunal were open to it on the material before it. While a different Tribunal member might have taken a more generous attitude on the particular issues of inconsistency I have drawn attention to, the approach taken by the Tribunal does not point to any jurisdictional error.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision that the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,000. Scale costs in this instance would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 December 2008