SZNGM v Minister for Immigration
[2009] FMCA 377
•16 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNGM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 377 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of People’s Republic of China – credibility – no apprehension of bias – no reviewable error. |
| Migration Act 1958 (Cth) ss.422B, 424A, 425, 474 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister of Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZNGM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 417 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 April 2009 |
| Date of Last Submission: | 16 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr White |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 417 of 2009
| SZNGM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China who has applied to the Court to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 27th January 2009, and handed the decision down the following day. In its decision the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant now seeks from the Court an order setting aside the Refugee Review Tribunal's decision. The Minister has filed a Response opposing the application claiming that the application for judicial review does not provide any particulars or any legal ground for review.
The Response also claims that the application is inviting the Court to undertake a review of the merits of the Tribunal decision, which is not a part of the function of the Court. The Minister claims that the application for judicial review does not establish any jurisdictional error in the Tribunal's decision.
Background
The Applicant arrived in Australia on 7th February 2007. She applied for a Protection (Class XA) visa on 15th August 2008. The Applicant provided a typed statement in English prepared for her by a migration agent in support of her application.
In that statement she claimed that she had not had any education, that she was married, and that she had three children. She claimed to have been fined by the Chinese government for the birth of the two extra children because of the one child policy in China. She also claimed that she was forced to have an operation by the government so that she would not have any more children. She claims to have suffered depression since then.
The Applicant claims that she and her husband invested a sum of money in a fruit shop in October 1993. Subsequently, it was explained to the Refugee Review Tribunal that the description of the fruit shop was an error and the shop actually sold seafood. The Applicant's statement shows that the government planned to build villas on the land in June 2004, and resumed all the businesses in the market.
The agreement was that the Applicants would be paid compensation and a down payment of one quarter of the amount was made. The balance was to be paid three months later. The Applicant and her husband agreed, but the balance of the payment was never paid. This also happened to other shop owners and the Applicant's husband, along with 30 other shop owners complained to the city and provincial governments, and then attended a rally at the city. Police attended and beat the protestors and the Applicant claims that her husband and two other people were arrested and detained for three months.
The Applicant's husband was beaten whilst he was in detention and when he was released he had to be put into hospital. Because of the expenses of the medical treatment, the Applicant had to remove him from hospital after two days. The Applicant claimed that she went to the Fuzhou Government Building to complain but was detained for seven days and not released until after her husband had paid a sum of money.
The Applicant claimed that her husband borrowed money and made arrangements for her to obtain a passport and a visa. The Applicant's three children are studying in Australia and the Applicant arrived in Australia in February 2007 to look after the children. She claimed that her husband applied for a visa to enter Australia on two occasions, but those applications were refused. She claimed that she did not apply for a protection visa promptly because she did not understand immigration law in Australia.
A delegate of the Minister for Immigration and Citizenship invited the Applicant to attend an interview which was scheduled to take place on 3rd October 2008. The Applicant did not attend the interview although she did submit some documents.
The Delegate’s Decision
The delegate of the Minister refused the application for a protection visa on 17th October 2008. Curiously, the delegate's reasons for decision claimed that the Applicant feared persecution for reasons of her religious belief and the delegate found the Convention ground of religious opinion was the essential and significant reason for the harm that she feared. That does not accord with the Applicant's statement at all.
The delegate noted that the Applicant did not attend the interview on 3rd October 2008 and recorded that the delegate was unable to test the Applicant's claims for that reason. The delegate referred to the number of vague and unsubstantiated claims made by the Applicant and concluded:
There is no evidence before me to suggest that the applicant was engaged in any political or anti-government activities which the Chinese authorities could consider to be subversive.[1]
[1] See Court Book at page 60.
The delegate was not satisfied that the Applicant was owed protection obligations and refused the application.
Application to the Refugee Review Tribunal
On 14th November 2008, the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Applicant provided a postal address for receipt of documents, being a post office box number in a Sydney suburb.
The Tribunal wrote to the Applicant on 4th December 2008, inviting her to attend a hearing on 3rd February 2009, but that invitation was changed on two occasions. First, to 15th January and then to 21st January 2009.
The Tribunal also wrote to the Applicant on 12th December 2008 in a letter headed “Invitation to Comment on/or Respond to Information in Writing”. The letter was, clearly, intended to comply with the provisions of section 424A of the Migration Act. The letter informed the Applicant that she was invited to comment on or respond to information that the Tribunal considered would, subject to any comments or response that she made, be the reason or a part of the reason confirming the decision under review.
The Tribunal put to the Applicant information about when she obtained a visa on 9th January 2007, the fact that she did not travel to Australia until 7th February 2007, did not apply for a protection visa until 15th August 2008, and did not attend the interview with the delegate on 3rd October 2008.
The Tribunal also drew the Applicant's attention to the fact that on her application for a protection visa she had provided details of a claim that she was the co-owner of a seafood shop, but in her statement she referred to a fruit shop.
The Tribunal asked the Applicant about the amount of time that she claimed that she had been detained and the dates when she was detained. The Tribunal informed the Applicant why it considered that information relevant and asked her to provide written comments or response by 6th January 2009.
The Applicant replied to the Tribunal's letter on 16th December 2008, explaining that she delayed her arrival in Australia for a month because she had to borrow money from friends and she said that she is not familiar with Australian law and did not know where to find assistance until eventually she found a migration agent to help her apply for a protection visa.
That explained why it took from 7th February 2007 until 15th August 2008 to apply for a protection visa. She claimed that she did not receive a letter inviting her to attend the interview, but curiously said:
Since I do not understand English and do not know who wrote to me and the content of the letter. If I knew the interview, I will go.[2]
[2] See Court Book at page 74
She explained that her migration agent had made a mistake because the spelling of characters of fruit and aquatic products in Chinese is similar and the English translation was wrong.
The Applicant attended a hearing on 21st January 2009. The Tribunal Hearing Record shows that the Applicant attended as did her daughter, both of whom took an affirmation. The Applicant had the assistance of an interpreter in the Fuqing dialect. The Applicant produced her passport to the Tribunal. At the hearing, the Applicant gave evidence and also her daughter gave evidence.
The Tribunal’s Decision
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found in the Court Book at pages 86 through 105. In the Hearing Record the Tribunal set out the Applicant's claims taking from her application for a protection visa and provided a detailed summary of the Applicant's evidence to the Tribunal.
That summary is comparatively lengthy, commencing at page 91 of the Court Book and going through to page 100. The Tribunal also consulted information from other sources, particularly, to advices from the Department of Foreign Affairs and Trade relating to the high incidents of fraudulent documentation in China. The Tribunal also referred to a statement from the Canadian Immigration and Refugee Board dated in September 2005.
The Tribunal’s Findings and Reasons
The Tribunal noted that the Applicant travelled to Australia on a valid Chinese passport and claimed to be a national of the People’s Republic of China. The Tribunal accepted that the Applicant was a national of China and assessed her claims against that country. However, the Tribunal formed a negative view of the Applicant's credibility. The Tribunal said:
The Tribunal found the applicant to be a witness who completely lacked credibility. The applicant was evasive in many aspects of her evidence and referred to her depression and confusion only when confronted with matters relating to her credibility or when asked questions which she appeared unable to address.
The Tribunal noted the Applicant's claim of confusion and depression, but said:
Given the selective effect of the applicant's depression and condition on her evidence, the Tribunal is not satisfied that whatever medical condition or ailment she claims to suffer from has prevented her from giving evidence. The Tribunal finds that the applicant has been able to present evidence to the Tribunal and that she has been given a genuine opportunity to do so. The Tribunal finds that the applicant's evasiveness was not the result of her condition, but, rather, a reflection on her credibility.[3]
[3] See Court Book at page 101.
The Tribunal then set out a number of reasons as to why it did not accept the Applicant was a credible witness. The Tribunal went on to say:
The combination of these concerns causes the Tribunal to find that the applicant is not a witness of credibility and that she was untruthful in her evidence to the Tribunal. The Tribunal finds that the applicant's evidence was fabricated in its entirety.[4]
[4] See Court Book at page 104.
The Tribunal also considered the evidence of the Applicant's daughter, but gave that evidence no weight, noting that it had found the Applicant's evidence to be fabricated and noting that the Applicant had told the Tribunal that she dictated her statement to her daughter who recorded it.
The Tribunal took the view that the Applicant's daughter's familiarity with the Applicant's circumstances was a result of her work with the statement and not from any other source. The Tribunal considered the supporting documents presented by the Applicant but rejected those documents as not being authentic documents. The Tribunal said:
The applicant's own oral evidence to the Tribunal, which is consistent with the available country information, is that fraudulent documents may be obtained through the payment of money. The Tribunal has found the applicant to be a witness who completely lacked credibility and who has fabricated her evidence. The Tribunal finds that the documents presented by the applicant are not authentic documents and that they were obtained to further the applicant's application. The Tribunal gives these no weight.[5]
[5] See Court Book at page 104.
The Tribunal rejected the Applicant's claims in their entirety including her claim of a fear of persecution for a breach of the one child policy. The Tribunal found that the Applicant had no real chance of being persecuted because of any matters arising from the closure of her business or from the one child policy.
The Tribunal, in summary, found there was no real chance that the Applicant would be persecuted for any Convention reason if she were to return to China and affirmed the decision not to grant her a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced these proceedings by filed an application and affidavit in support on 23rd February 2009. She sets out in her application two grounds of review:
1. RRT did not take my evidence into account. RRT took the cases which are against me. They did not use the successful cases to support me.
2. RRT did not consider my application fairly. I would be in risk if I returned to China.
Submissions
The Applicant did not provide any written outline of submissions but attended Court and made oral submissions. She also answered questions put to her from the Bench. The Applicant was asked to explain and expand on the two grounds of review in her application.
When asked about Ground 1 in her application as to why she said the Tribunal did not take her evidence into account, "but took cases that are against me and did not use successful cases to support her”, told the Court that she could not go back to China, she had brought this case, and her husband was in hiding in Fuqing.
As to the Applicant's second ground that the Tribunal did not consider her application fairly, the Applicant told the Court that the Tribunal did not give consideration to the fact that she would be arrested if she were to return to China. She complained that she was not given an opportunity go to the Court, meaning the Tribunal, again. She told the Court that she had said to the Tribunal that her mind was very confused and she said that she had a headache at the time of the Tribunal hearing and had attempted to tell this to the Tribunal through the interpreter.
The Applicant's claim was effectively that the Tribunal did not believe what she said, although she reiterated that she had told the truth. She told the Court that her daughter had told the Tribunal that the Applicant could not sleep well and would often wake up crying. Clearly, the Applicant found the proceedings before the Court distressing and on two occasions I adjourned the hearing as the Applicant had become distressed and I allowed time for her to recover her composure.
The Applicant complained that the Tribunal decision was unfair because the Tribunal did not accept her evidence and did not consider that there was a real chance that she would be arrested if she were to return to China.
Mr White, solicitor who appeared for the Minister, submitted that the Applicant's claims essentially amounted to merits review. The Minister has referred the Court to the decisions of the Minister for Immigration & Ethnic Affairs v Wu Shan Liang[6] and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[7] in support of the submission that it is not the function of the Court to engage in fact finding about the merits of an Applicant's case.
[6] (1996) 185 CLR 259 at [272]
[7] [2004] FCAFC 10
Mr White submitted to the Court that the Applicant had complained that the Tribunal had not given consideration to the risk of her being arrested if she returned to China, but submitted that the Tribunal had not accepted any of the Applicant's claims. He did not believe that her evidence was truthful or credible.
He referred to the Applicant's claim that she was in some way unfit to give evidence at the Tribunal hearing because of medical condition, but noted the Tribunal had considered and rejected that claim. He also pointed out there was no reference in the Tribunal decision record to any claim that the Applicant had suffered from a headache at the hearing. There was no evidence provided that the Applicant suffered from a medical condition on the day of the hearing.
In short, Mr White submitted that the Tribunal's adverse credibility findings were open to the Tribunal on the evidence that was before it.
The Applicant made a lengthy submission in reply reiterating that she had suffered from a headache, that she suffered from depression, she took issue with the fact the Tribunal did not believe her. She claimed to wake up in the middle of her sleep because of headaches; this has been the situation since she was arrested. She claimed to have a recurrence of depression from time to time and claims that her situation and the fact that her husband has had to go into hiding results from their business being taken and from the government not providing the compensation that was claimed.
She claimed to suffer from difficulty with sleeping and told the Court that she was unable to return to China, reiterated her claim that her husband was in hiding in the village. She told the Court that her three children were studying in Australia but she does not work, and took issue with the Tribunal's refusal to believe her.
Conclusions
The reason why the Tribunal found against the Applicant was because it did not believe her claims. It made a comprehensive finding that she was not a credible witness. It took evidence from her daughter, but did not give her daughter's evidence any weight because of its comprehensive finding about the Applicant's lack of credibility and the view that it took that the daughter was able to give the evidence that she did because of her familiarity with the Applicant's statement.
The Tribunal rejected the Applicant's documents produced in support of her claim on the basis of the prevalence of document fraud in China and its comprehensive rejection of the Applicant's credibility. The ascertainment of credibility or the lack of it on the part of a witness is essentially a matter for the administrative decision maker, in this case, the Refugee Review Tribunal.
It is a matter of fact and is arrived at by a consideration of the evidence. Essentially, it is a fact finding exercise for the Tribunal and not for the Court. (See Re Minister of Immigration and Multicultural Affairs; Ex parte Durairajasingham[8]). Provided there is evidence upon which a finding of adverse credibility can be made there is no scope for the Court to interfere.
[8] (2000) 168 ALR 407 at [67]
The Applicant's grounds of review are, as has been submitted, essentially, claims for the Court to conduct a review of the factual merits of the Applicant's refugee case. This, of course, the Court cannot do. The claim that the Tribunal did not take the Applicant's evidence into account is not borne out by the Tribunal's decision record as the bulk of the decision consists of a detailed summary of the Applicant's claims in her protection visa application and her evidence to the Tribunal.
The claim that the Tribunal did not consider the application fairly, which is the Applicant's second ground, is a complaint about the Tribunal's ultimate finding, which is predicated on the Tribunal's thorough rejection of the Applicant as a credible witness. It was open to the Tribunal to do that.
If it was intended in any way to indicate a suggestion of apprehension of bias on the Tribunal and a claim that the Tribunal did not consider the application fairly, no evidence whatsoever has been led in support of that, and no claim has been made in that respect other than a complaint that the Tribunal rejected the truthfulness of the Applicant's evidence, it did not believe her.
This Court frequently sees claims of apprehended bias. In my view, and in fairness to the Applicant, the use of the phrase "RRT did not consider my application fairly" does not, in fact, represent a claim of bias against the Tribunal because the Applicant has made no effort to suggest that the Tribunal was in any way biased.
I mention that fact only to indicate that I have considered that aspect or what may be an aspect of the Applicant's claim and have decided that such a claim has not been made.
The Applicant, of course, is not legally represented in these proceedings. I have considered the Tribunal decision record and supporting documents independently of the Applicant's claims and for that matter independently of the Minister's submissions in order to ascertain whether there is any arguable case for any other jurisdictional error. I am unable to discern any. It is clear that the Tribunal complied with the provisions of s.424A of the Migration Act in writing to the Applicant and putting certain information to her before the hearing.
The Applicant replied to that letter in a letter which is set out at page 74 of the Court Book. The Tribunal considered that information in its decision at page 101 of the Court Book. The Tribunal also considered Independent Country Information which is not, of course, subject to the requirement of sub-section 424A (1) of the Migration Act. There is no breach of s.424A.
I am not of the view that there is any breach of s.425 of the Act. The Applicant was invited to attend the hearing. She attended that hearing, gave evidence with the assistance of an interpreter. The Tribunal heard her evidence and heard the evidence of her witness.
The issues discussed at the hearing related to the credibility of the Applicant's entire case. In my view, that was not an aspect of which the Applicant would be unaware. The delegate's decision had indicated that the delegate was unsatisfied that the Applicant had made out a case due to the vague and unsubstantiated nature of her claims and, of course, the Applicant's failure to attend the interview with the Minister's delegate.
There is no breach of s.425 of the Migration Act, certainly not as understood when considering SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[9].
[9] [2006] HCA 63
There is no breach of Division 4 of Part 7 of the Act, as it is that Division, as s.422B of the Act makes clear, which contains an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with.
I am satisfied that no jurisdictional error is shown in the Tribunal decision. In the absence of jurisdictional error the Tribunal decision is a privative clause decision, as defined in s.474 of the Migration Act, and under s.474 there is then no entitlement to any relief such as an order in the nature of certiorari to set aside the Tribunal's decision.
It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent, the Minister for Immigration and Citizenship. The Applicant has been unsuccessful in her claim and, in my view, it is appropriate that the Court should make an order for costs in favour of the First Respondent. The amount sought is $4,000.00 which is within the scale provided by the Federal Magistrates Court Rules. I am satisfied that that is an appropriate figure.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 30 April 2009
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