SZNJP v Minister for Immigration - [2009] FMCA 897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 897

MIGRATION – Review of RRT decision – applicant a citizen of China and subject to that country’s one-child policy – applicant alleged that Tribunal took an unreasonable view of her evidence and disregarded it in favour of independent country information – where applicant did not receive s.424A letter.

Migration Act 1958 (Cth), ss.424A, 441A, 441C, 477

Minister for Immigration v NAMW (2004) 140 FCR 572
SZFLM v Ministerfor Immigration [2007] FCA 863

Applicant:

SZNJP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 720 of 2009

Judgment of:

Raphael FM

Hearing date:

7 September 2009

Date of Last Submission:

7 September 2009

Delivered at:

Sydney

Delivered on:

7 September 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 720 of 2009

SZNJP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in Australia on 2 May 2007 and on 10 May 2007 she applied for a protection (Class XA) visa. On 4 June a delegate of the Minister refused to grant her a protection visa and on 2 July 2007 she applied for a review of that decision from the Refugee Review Tribunal. She attended a hearing before the Tribunal and following that hearing the Tribunal wrote to her inviting her to comment on some information which the Tribunal considered would, subject to any comments she might make, be the reason or part of the reason for affirming the decision under review.
That letter was dated 17 September 2007. At [CB 84] there is a copy of the envelope in which the letter was purportedly placed. That letter has on it a date, 19/9, which I take to be 19 September, being the date upon which the letter was placed in the envelope and posted to the applicant. The letter was returned to the Tribunal on 23 October and received by the Tribunal on 25 October. On 23 October the Tribunal had determined to proceed to issue its decision, notwithstanding the non-receipt of the letter, and the decision was handed down on 13 November 2007.
The applicant claims that she did not receive a copy of the decision letter either and it was not until March this year that she attended at the Tribunal’s offices to inquire about the processing of her review and was told that a decision letter had been sent. She received a further copy and then made an application to this Court on 26 March 2009. Although the applicant is not out of time to file her application (see s.477 Migration Act1958), the Minister submits that, even if I was to find that there was a jurisdictional error, I should not grant relief because of the applicant’s delay. It is not necessary for me to deal with this submission because I am unable to find jurisdictional error in the decision of the Tribunal.
The applicant claimed to be a person to whom Australia owed protection obligations because she was the victim of the Chinese one-child policy. She says that she has two children, a girl and a boy. After the girl was born a contraceptive device was provided to her, as is common practise in China. She arranged to have this contraceptive device removed and became pregnant with her second child. She says that she had to hide from the family planning bureaucrats in her mother’s orchard until some time after the birth of her son. Some time later she became pregnant again but this time her situation was discovered and she says she was forced to have an abortion and then an operation to sever her fallopian tubes. She was also forced to pay a fine and a special levy relating to the education and social security benefits to be provided for her second child. All this occurred in about 1999.
The Tribunal considered in detail independent country information concerning the way in which the one-child policy was implemented in China and, in particular, in the province of Guandong from where the applicant came. It considered the independent country information relating to forced abortions and enforced sterilisation. It noted that that information indicated that Chinese women were not forced into abortions.
The applicant gave evidence about the medical procedures performed upon her. It is correct to say, as the Tribunal did, that there was some inconsistency in her history. She told the Tribunal, and she tells the Court, that she has had very limited education and it would not be unreasonable for another Tribunal to have taken the view that the essential elements of her story appeared correct and that the inconsistencies were of no import. However, the views of inconsistencies and their relation to the credibility of an applicant are matters for the Tribunal par excellence and this Court cannot interfere where the Tribunal has come to conclusions based upon available evidence.
The Tribunal summed up its views of the applicant at [CB 116]:
“Based upon the Tribunal’s impression, the above notes evidentiary concerns and in consideration of her evidence as a whole, the Tribunal finds that the applicant is not a witness of credit. It does not accept that she was forced to move away from her local inhabitancy, or that she was “constantly examined by the family planning officials”. The Tribunal does not accept that the applicant had the IUD removed illegally, or that her television, gas fittings and rice were removed by the authorities because she did not attend regular check-ups. It does not accept that she was forced to have an abortion, or that she was forced to have a sterilisation operation. The Tribunal does not accept the applicant’s view that the independent information, which indicates that there is no evidence of forced abortions in Quandong, is incorrect. The Tribunal does not accept that the applicant was forced to have regular water stream testing. It does not accept that she would undergo water stream testing in the future if she returns to China. There is evidence from Dr Kan that there is a “scar on her abdomen”. The Tribunal accepts this evidence. The Tribunal accepts that the applicant has had an operation that involved the removal of her fallopian tubes. However, based on the independent information available and the inconsistent evidence of the applicant, referred to above, the Tribunal does not accept that this operation was forced upon the applicant. The Tribunal considers that the operation was performed at her request.”
The Tribunal’s reasons for the last finding were based upon questioning of the applicant, which seemed to indicate that after she had undergone this operation she had paid the required fine and charge and that her son was permitted to enrol in educational facilities and to receive social security benefits. It could be said that the Tribunal need not have gone any further than making this finding and it was not necessary to make the positive findings that it did concerning the applicant’s previous medical history but, while soever inconsistency, however slight, is accepted as a ground for disbelief, the Tribunal would not have fallen into jurisdictional error by adopting the course that it did.
In the application which was filed with this Court, the applicant claims that the Tribunal did not provide her with procedural fairness because she did not receive the letter inviting her to make comment on the relevant issues. Whilst the Tribunal may well have been assisted had the applicant responded to the letter, the legal position is that, by virtue of the provisions of s.441A(4) and s.441C(4) of the Act, the applicant is deemed to have received the letter, whether she did so or not. I also note and accept that much of the letter requested the applicant’s comments upon independent country information, which would not necessarily be required by virtue of s.424A(3)(a); Minister for Immigration v NAMW (2004) 140 FCR 572. On the other hand, the first two and a half pages of the letter deal with inconsistencies in her evidence.
The second ground of the application was that the applicant was not provided with procedural fairness because she did not receive the decision letter from the Tribunal. Non-receipt of a decision letter does not give rise to jurisdictional error in the decision itself; SZFLM v Ministerfor Immigration [2007] FCA 863. It may have an effect upon the time in which the application was lodged but that is not a relevant matter for this hearing.
Finally, the applicant submitted that the decision involved an error of law because the Tribunal disregarded her evidence and made the decision only based on background information. That is not what the Tribunal did. The Tribunal considered the evidence given by the applicant thoroughly and reported upon it in the reasons for decision. It certainly contrasted the information provided by the applicant with independent country information and, in so doing, carried out its task appropriately. It discussed the independent country information with the applicant at the hearing [CB 109] and then provided her with another opportunity to deal with it which, unfortunately, she was unable to take advantage of due, she says, “to the actions of our landlord.”
Before me today the applicant said that the decision of the Tribunal was unreasonable and unfair because she did not receive the s.424A letter. She did not understand what the letter was about and she cannot speak English very well, nor does she have a lawyer. She does not know what happened with regard to the letter. She told me that she had told the truth to the Member and she wished for protection from the persecution which she had suffered in China. These matters appear to me to be seeking impermissible merits review and they do not advance the applicant’s case that the Tribunal fell into jurisdictional error in the manner in which it came to its decision. I dismiss the application. The applicant is to pay the respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 15 September 2009