SZNUT v Minister for Immigration - [2009] FMCA 1292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1292

MIGRATION – Review of RRT decision – applicant a citizen of China – application for adjournment – where applicant claimed she had been promised a lawyer by her migration agent – where agent unregistered – where applicant alleged bias.

SZDFO v Minister for Immigration [2004] FCA 1192
SCAA v Minister for Immigration [2002] FCA 668
Minister for Immigration v Jia Legeng (2001) 178 ALR 421

Applicant:

SZNUT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1861 of 2009

Judgment of:

Raphael FM

Hearing date:

16 December 2009

Date of Last Submission:

16 December 2009

Delivered at:

Sydney

Delivered on:

16 December 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1861 of 2009

SZNUT

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 27 January 2009 and on 6 February 2009 applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. She attended an interview with a delegate of the Minister who, on 22 April 2009, refused to grant her a protection visa. On 5 May 2009 the applicant applied for a review of that decision from the Refugee Review Tribunal. She attended a hearing before the Tribunal and produced certain evidence to it. On 7 July 2009 the Refugee Review Tribunal affirmed the decision not to grant her a protection visa and handed that decision down on the same day.
The basis for the applicant’s claim that she was a person to whom Australia owed protection obligations was that she had been imputed with an association and affiliation to the Falun Gong. She told that, in 2007, whilst carrying out her profession as a taxi driver, some Falun Gong material had been found in the glove box of her vehicle. She had been stopped for a traffic offence and flyers and other material were found. She was taken to the local PSB and she says she was detained from 8 February 2007 until 6 August 2007. The applicant also claimed that in October 2008, after she had returned to her business as a taxi driver, she received a call from the radio taxi station requiring her to go to the Dadong Police Station. On arrival at the station she was arrested. She was told that she had passed to a customer a 10 Yuan banknote which had impressed upon it some writing supportive of Falun Gong. A copy of a note, similar to the one she refers to, is found at [CB 34]. The applicant told that she had denied any knowledge of the note and that the police appeared to have accepted this but required her to turn informer for them and to provide them with information about any other occurrences such as that one. She assumed that they required her to tell them details of any other passenger in her cab who might have passed to her a note similarly endorsed.
The applicant says that the police required her to report to them fortnightly. She was frightened that she would be arrested and detained again by the police. She was equally frightened that, if she gave the police any information, she would be the subject of a revenge attack from the person whose details she might be giving to the police. The applicant denied any connection with Falun Gong herself. The association had been imputed to her. Although there is some evidence of an association between her and another Falun Gong practitioner with whom she arranged to come to Australia [CB 23 and 25], [CB 86 and 87].
The Tribunal questioned the applicant about her story and why she believed that she was a refugee. It asked her why she retained the banknote that she had produced and why she believed she would be the subject of a revenge attack from any person that she identified to the police:
“[39]The Tribunal put to the applicant that it was having difficulty in understanding why, if the police had arrested and detained her as a Falun Gong practitioner for six months from February 2007, and then subsequently in October 2008 found she was in possession of another banknote annotated with Falun Gong material, they would not have again detained her for a second time -- and even for a longer period. However, she did not claim that this was the case: rather, she claimed they only sought her cooperation in identifying the person who was circulating the annotated banknotes. … She claimed that she did not cooperate, she would not have been allowed to go home. The Tribunal again asked why she would not cooperate, and she replied because, if she did, she was worried that someone might take revenge on her.”
The Tribunal also questioned the applicant and provided her with independent country information concerning the ability of Chinese citizens to travel abroad when they are persons who might be of interest to the PSB. The Tribunal asked the applicant why she thought she had been allowed to travel when she had been detained not just for a short period but for the lengthy period of six months. The Tribunal noted that the passport upon which the applicant travelled was her second passport.
The Tribunal, in its findings and reasons, which commenced at [CB 92] expressed the view that it was prepared to accept that the applicant had been asked to go into the Dadong Police Station on 28 October 2008 and provide an explanation for the annotated banknote. It also accepted that she was not accused of being the source of the banknotes or of being someone who was behind their distribution but rather that the police were simply seeking her cooperation in attempting to identify who was manufacturing or circulating them. The Tribunal found it significant that the applicant was not detained, arrested or abused on this occasion and concluded that if, as the applicant had claimed, she really had been arrested and detained for six months a year earlier, she would have been the subject of far more interest from the police in October 2008.
The Tribunal noted in regard to the witness statements provided by the applicant of two persons who claimed to have been detained with her that the information they gave was information that had been given to them by the applicant and was therefore of little value. After considering the applicant’s story, and in particular the concerns it had with what occurred in 2008, the Tribunal concluded that it could not accept the genuineness of those statements. The applicant has not suggested, and I do not believe, that the Tribunal did not consider the corroborative statements in an appropriate way.
The Tribunal concluded that it could not accept the applicant as a credible witness and:
“[54] In short, and given all the above, the Tribunal does not accept the applicant’s claim that she is a refugee because she was asked to cooperate with the police in the identification of any further passengers who gave her such annotated notes, or that she would be the subject of harm from the police for her failure to do so, or because she did not continue to report them after she came to Australia, and the Tribunal does not accept these claims. Nor is the Tribunal satisfied that there is a real chance that she will be subject to revenge from a passenger in a most unlikely event she reported their passing her and annotate and banknote to the police, [sic] or that the applicant has a well founded fear of serious harm amounting to persecution for Convention reason on this basis. In short the Tribunal is satisfied that the applicant has greatly embellished her claims for the purpose of enhancing her claims for a protection visa, and the Tribunal finds that the applicant is not a credible witness.”
On 4 August 2009 the applicant filed an application to this court. She gave an address in Hurstville. There were three grounds of application with which I shall deal shortly but first, it is appropriate to say something about what occurred at the hearing today. The applicant told the court that she had employed a migration agent whose address was in Hurstville and that she had all the documents and she had promised her a lawyer and the applicant had paid her some money, (I am not told how much), and she had vanished. She asked for an adjournment. I declined to give the applicant an adjournment because, though I am prepared to accept the truth of what she says concerning this migration agent, I note that she appears to be an unregistered migration agent who is not prepared to put her name to any document, including an application for review, nor to accompany her client to a hearing.
In this particular case the agent did apparently accompany the applicant to an interview with a lawyer appointed pursuant to the Legal Advice Scheme. And the applicant confirmed to me that she received advice from this lawyer on 23 September 2009. She did not apparently get a copy of the lawyer’s advice which was sent to the address in Hurstville. The applicant herself lives in Campsie. However, I am prepared to infer, from my familiarity with the Legal Advice Scheme, that the applicant was left in little doubt at the end of the interview that her prospects for obtaining review of the Tribunal’s decision were weak in the extreme. I have considerable sympathy for the applicant in this regard. I have previously expressed my concern from the Bench at what appears to be a very unfortunate preponderance within the Chinese community of unregistered migration agents who prey upon the very many members of that community who seek to remain in this country, either as refugees or on some other basis. It is somewhat disappointing that I have received no indication that these views are being taken seriously within the community and that something is being done to put an end to it. But, as I explained to the applicant, this is a problem within her community and it is not something that the government or the courts should be responsible for. The principal reason why I refused the applicant the adjournment she sought was because I did not see any utility in it. Having read the Green Book thoroughly, and having considered the grounds of application, I came to the view that the Tribunal had not fallen into jurisdictional error in the manner in which it reached its decision.
The first ground of application was:
“I have enough fear of persecution to go back to my home country.”
This is a statement which does not go to the Tribunal’s decision. It could be inferred that what the applicant is saying is that she was concerned that the Tribunal did not believe her. She made that plain to me in her oral submissions but, as I explained to her, this court is unable to place itself in the shoes of the Tribunal and come to a decision about her credibility. Matters of credibility are matters for the Tribunal par excellence. Because the applicant did not understand the limited scope of this court’s jurisdiction in these matters I read to her part of the seminal decision of Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 at [8] and [9].
The second ground raised by the applicant was:
“Refugee Review Tribunal decision record item No: 56 is bias against me. Whether I did or did not have any protest doesn’t mean that I have no well-founded fear.”
Paragraph 56 of the Tribunal’s decision deals with the Tribunal’s consideration of whether the applicant has any claims that may not have been clearly articulated, other than those which were principally before it. Rather than showing bias on the part of the Tribunal paragraph 56 indicates that the Tribunal was carrying out its duty to ensure that any possible claim that the applicant might have arising out of activities in China were considered. I need hardly say that a complaint of bias arising from pre-judgment involves a state of mind by the decision maker whilst exercising the decision-making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented; SCAA v Minister for Immigration (2002) FCA 668 per von Doussa J or that the allegation must be “distinctly made and clearly proved”; Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J].
The third ground of application was:
“Refugee Review Tribunal decision record item No. 16: A person can have a well-founded fear of persecution even if it is 50 per cent or below when it occurring.”
Paragraph 16 of the Tribunal’s decision is a paragraph that has been described as “boilerplate”. It describes what the Tribunal understands as a well-founded fear. It actually makes the point that:
“A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”
I take it that what the person who wrote this document for the applicant was really trying to say was that this applicant’s well-founded fear should have been accepted even though the possibility of persecution was below 50 per cent. It will be recalled that the Tribunal did not consider that there was a real chance of persecution and so what is being complained of is the mathematical formula that might have been adopted by the Tribunal when it came to its conclusion. To my mind a proper reading of the Tribunal’s decision is that the applicant would have no fear whatsoever if she returned to China because the first incident she complained about did not occur and the second incident was not of significance.
For these reasons I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions. As I have said I have considered the Green Book and I am unable to find any other ground that might be available to the applicant. The application is dismissed. The applicant must pay the first respondent’s costs which are assessed in the sum of $3,400.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 December 2009