SZOAE v Minister for Immigration
[2010] FMCA 170
•8 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 170 |
| MIGRATION – Chinese applicant claiming persecution under family planning policies – disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA |
| Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZIWY v Minister for Immigration & Anor [2007] FMCA 1641 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 SZNVW v Minister for Immigration & Anor [2009] FMCA 1299 |
| Applicant: | SZOAE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2732 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 8 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2732 of 2009
| SZOAE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in February 2009 on a temporary business visa. She travelled on a passport issued in China in her own name in 2007. On 9 April 2009 the applicant applied for a protection visa assisted by migration agent, Priscilla Yu. The history upon which she claimed to fear persecution if she returned to the Peoples Republic of China was set out in the application.
The applicant claimed to have married and had four children; the last two children notwithstanding two earlier sterilisation operations. She claimed that before their birth, she had successfully opened and conducted a clothing shop. However, as a result of her unexpected childbirths in 2005 and 2007 she and her husband had been subjected to significant financial penalties, which they could not pay. After the fourth child was born, the local government tried to force her husband to work at a “state-owned farm without any payment for one year”. She claimed that he ran away, and that she was forced to sell her clothing shop. In February 2008, she was taken by local officials to work at the state-owned farm in substitution for her husband. She said: “we worked in the farm for at least 10 hours every day and lived in old houses with very poor conditions. We were only allowed to return to our home once a month; and we in fact lost our freedom”.
The applicant said that she and two other people organised a strike at the farm in November 2008, but it was immediately suppressed by police. Three people, including herself, were arrested and sent to the Public Security Bureau in Fuqing “where we were subjected to interrogation for about a whole day and then we were detained at Fuqing Detention Centre”. The applicant claimed to have been mistreated, but eventually was released on bail after four weeks. She said that she was then assisted by her cousin to leave China. She said:
However, my parents and my brothers were immediately in troubles while the police found I failed to report to the local police station on time. Particularly, the police forced my father to substitute me to work at the farm. Right now, my father is still being subjected to persecution in the farm.
If I go back China, I do not think that the PRC authorities can or will protect me. On the contrary, I believe that I must be subjected to persecution on my return. I, therefore, seek a protection in Australia.
No corroborative support for these claims was presented to the Department of Immigration. A delegate interviewed the applicant, and formed an opinion that she was “modifying her story as contradictions appeared”. The delegate thought that: “if the applicant was of interest to the Chinese authorities, as claimed, she would have extreme difficulties in departing legally from China”. The delegate found that her fear of persecution was “neither genuine nor well-founded”. He refused the visa application on 20 June 2009.
On appeal, the applicant was assisted by her agent. She attended two lengthy hearings held by the Tribunal on 26 August 2009 and 23 September 2009. The second hearing was held after the applicant provided translations of three documents in Chinese, which she had presented to the Tribunal at the first hearing. These purported to be receipts of penalty fees in relation to the applicant’s third and fourth children, and an official document corroborating her release pending trial in November 2008. The applicant also presented photographs, which she agreed showed only her first two children with other members of her family.
At the conclusion of each of the hearings, the applicant was given the recording of the Tribunal’s hearings. She has not presented a transcript of the hearings, nor shown any reason why I should not accept the Tribunal’s detailed description of the two hearings. It is clear from the Tribunal’s description of its two hearings that it fully discussed with the applicant all of the issues upon which it ultimately decided the case.
The Tribunal made a decision on 12 October 2009, and affirmed the delegate’s decision.
In its findings and reasons, the Tribunal did not accept that the applicant had given a truthful account of her circumstances in China. At the outset, it addressed a claim made by the applicant in the course of the hearing that she had memory and other difficulties giving evidence. It said:
In reaching this conclusion, the Tribunal had regard to the Applicant’s claims that the mistreatment she sustained during her alleged detention had affected her memory and that she was illiterate and only had three years of primary education. However, the Tribunal does not consider that these factors had a significant detrimental effect on her ability to give evidence. No medical evidence was provided to the Tribunal to support the Applicant’s claim of memory loss. Moreover, throughout the hearings the Applicant was able to remember the details about both past and recent events and only appeared to suffer memory loss with regard to one issue – the names of her alleged two younger children. Further, the Applicant’s lack of education did not prevent her running a successful clothing business in China, reading the Chinese newspapers to learn about the situation of refugees in Australia or of identifying a number of migration agents amongst whom to choose one to help her with her protection visa application.
The Tribunal identified serious inconsistencies in the evidence given by the applicant, which led it to disbelieve that she had given birth to two additional children, with the consequences claimed. Significantly, the Tribunal said:
The Applicant’s claim was premised on the fact that she had given birth to four children. Yet, when questioned as to their names in two separate hearings, the Applicant had difficulty remembering the names of the two younger children. Moreover, the only photograph the Applicant produced showing herself and her husband was with the two older children. She admitted that no photographs of herself and her husband with all four children, or even of herself with all four children, existed.
The explanations offered were that the Applicant always called the two younger children by their nicknames and that she suffered from poor memory in recent years. The Tribunal does not accept these as plausible explanations. The Applicant could quickly recall the names of the two older children and to recall other names in the course of the hearing. It was only with the names of her purported two younger children that she suffered memory loss. Nor did she offer their nicknames in response to the question. It is the Tribunal’s view that the Applicant does not, in fact, have four children and that she did not give birth to the third and fourth children in contravention of the family planning policy as she claimed.
The Tribunal considered the documents purporting to be receipts for penalty payments, but did not accept them to be genuine. It noted evidence that there was a high incidence of fraudulent documentation in China, and said it did not put any weight on these receipts.
The Tribunal also noted inconsistencies in the applicant’s evidence about her claims to have been forced to have three sterilisations, and in relation to the claimed events at the state farm.
The Tribunal said that, in addition to inconsistencies in the applicant’s evidence, there was general evidence available to the Tribunal which “supports a conclusion that the applicant is not being truthful about her claims”. The Tribunal referred to statistical evidence that the rate of failure for female sterilisation in China was no more than one in a hundred. It also said that there were no reports to indicate that “serious violators of China’s one-child policy were subject to forced labour in farms and other institutions”. It said that a number of sources indicated that Fujian Province “has one of the least coercive family-planning regimes in China, that family planning rules are more strictly enforced in the larger cities than the poorer countryside and that almost a third of families in four Fuzhou counties have three or more children” (omitting references). The Tribunal said:
A review of the Laogai Handbook 2007-2008, considered to be the most authoritative record that exists on China’s Laogai system, found no reference to a “state owned farm” in the vicinity of (named) Town or (named) village as alleged by the Applicant, although the handbook refers to 16 prisons which include farms as part of their labour enterprises and lists twelve Re-education Through Labour camps in Fujian province.
The Tribunal expressly rejected as inconsistent with general information, the claims that the applicant’s husband had been subjected to a penalty of one year’s re-education through labour, and that the farm where the applicant claimed people were held who had contravened a family-planning policy “even exists”. The Tribunal said that it had not found any evidence that Chinese authorities made a practice of substituting one family member for another in administrative punishments.
For all these reasons, the Tribunal did not accept that the applicant had ever been sent to a state farm, nor that she had participated or been arrested in an anti-government protest at the farm and been detained as a result.
The Tribunal addressed the official document presented by the applicant purporting to corroborate her detention and release on bail. It identified inconsistencies on its face, which suggested to the Tribunal that it was not genuine. It also noted that the applicant had been able to leave China without difficulty on a passport in her own name.
For all the above reasons, the Tribunal did not accept any of the elements in the applicant's claim to have suffered persecution. In relation to the balance of her circumstances, it did not accept there was a real chance that she would suffer persecution or any breaches of the one-child policy in relation to her first two children, whose existence was accepted by the Tribunal. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention-related reason should she return to China.
The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter. I have power to do this 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 should be believed nor whether she should be given a protection visa.
The applicant relies upon grounds of review which were set out in her original application and repeated in a submission in Chinese, which was read to the Court by the interpreter at today's hearing.
The first and the second grounds are as follows:
1.The Tribunal failed to consider, fairly and properly, that special local culture and tradition in my hometown and my personal experience in China as well as my fear of persecution on return must make it very much difficult for me to speak freely and give a full and accurate account of my case at the Tribunal’s hearing.
2.The Tribunal failed to consider, fairly and properly, that my personal background and poor education must make it very much difficult for me to submit a perfect application which has completely stated all of my claims or given all of my evidence in support my application for protection visa.
The particulars to these grounds allege :
i)That the applicant was often “confused or in great difficulties if I am asked about my child's birthday” as a result of confusions about the Chinese lunar calendar.
ii)As a result of her persecution “all these terrible sufferings and miserable experience have severally damaged me, mentally and psychologically”, and also she was left “under huge pressure at the tribunal's hearing”.
iii)The Tribunal “failed to consider her vulnerable position coming from the countryside of Fujian”.
Contrary to the first particular, the Tribunal did not rely upon any difficulties of the applicant in remembering birth dates, but pointed to the apparent difficulties encountered by the applicant in recalling the names of her two younger children at both hearings, when compared to her ability quickly to recall the names of her other children and other relations.
There was no evidence before the Tribunal, and there is no evidence presented to the Court, raising any foundation for the applicant suffering from any mental or psychological impairment of a medical nature which the Tribunal was required to take into account, or which might now prove to my satisfaction that she was denied a meaningful opportunity to present her evidence at a hearing. The principles which I discussed in SZIWY v Minister for Immigration & Anor [2007] FMCA 1641, and SZNVW v Minister for Immigration & Anor [2009] FMCA 1299, can have no application on the evidence before me.
In the paragraph which I have extracted above, the Tribunal considered the applicant's claims to the Tribunal when in seeking to explain deficiencies in her evidence by reference to her educational, cultural and other background. I am not satisfied that there is any part of this evidence of the applicant which was overlooked or insufficiently considered by the Tribunal, particularly in the absence of a transcript in relation to these parts of the hearing. I am not satisfied that there was any aspect of the applicant's presentation which the Tribunal was bound to take into account and has failed to consider.
The third ground is:
3.The Tribunal failed to bring an unprejudiced mind to the review and the Tribunal’s decision has included a reasonable apprehension.
i)The Tribunal failed to consider my claims or evidences correctly. Instead, my evidence has significantly been changed or misstated by the Tribunal. Firstly, regarding the farm, I have never ever said that it is a formal “labour farm” or “labour camp” or “prison” or “jail”. What I say is that a stated-own farm belonged to L Township Government. The farm was near D Village in L Town. The main products in the farm were various vegetables, such as green vegetable, tomato and so on. The farm also had watermelons.
ii)Secondly, I have never ever said that the farmers in the farm have been legally and officially sentenced to accept “Reform through Labour” by normal legal procedures. Instead, I said that “there were about 50 farmers; and all of us were the people who had been alleged to seriously violate against the ‘Birth Control Policy’. We worked in the farm for at least 10 hours every day; and lived in old houses with very poor conditions. We were only allowed to return our home once a month; and we in fact lost our freedom”. Apparently, if it were a formal “labour camp” or others like what the Tribunal has described in its decision, then it would be impossible for us to be allowed to return our home once a month and I would not use the words like “we in fact lost our freedom”.
iii)Thirdly, it is quite normal in China that I was still regarded as an “individual private business owner” by the Public Security Bureau (“PSB”) even if I had already sold my business, because my occupation might have still been described as an “individual private business owner” in my personal files with the PSB or in the PSB’s computer system. Also, I was arrested by the PSB for my active role played in the protest held on 3/11/2008; and thus it is quite normal the PSB named my case as “08113 incident”
There is no substance shown in evidence before me to establish the contention that the Tribunal failed to address the applicant's evidence with an open mind, before it arrived at its decision.
The first and second particulars are incorrectly premised in fact. In the applicant's evidence to the Tribunal, she referred to a local farm and a government-owned farm, and also in the course of oral evidence to a state-owned labour farm. The applicant specifically confirmed that the farm was “one of the re-education through labour farms run by the government” (see paragraph [43] and also [38] of the Tribunal's reasons). Moreover, the Tribunal's researches into the existence of any farm at which people were forced to work for the state in the location suggested by the applicant were not confined in the argued manner. Rather, it is clear that the Tribunal’s inquiries encompassed any state-owned farm in the suggested location, at which the claimed forced labour might have occurred. Thus, even if the contended mistakes by the Tribunal were capable of being evidentiary of a closed mind, no such mistakes were made.
The third particular of bias presents evidence or a submission to the Court which does not appear to have been presented to the Tribunal, to explain a defect in the official document given to the Tribunal. The applicant herself, it appears, was unable to explain the point when it was put to her by the Tribunal (see paragraph [84] of the Tribunal's reasons). This particular therefore cannot provide evidence of a mind which was closed to a proper consideration of the evidence and submissions given to it.
In my opinion, there is no evidence raising a concern about apprehended bias under principles explained by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]
Ground four contends that “the Tribunal failed to comply with its obligations under the Act”, and its particulars refer to s.424A(1) and s.424AA of the Migration Act. No particulars of “information” used by the Tribunal that “would be the reason, or a part of the reason, for affirming the decision that is under review” were given. I, for myself, am unable to identify any such information.
The general information from the Tribunal's researches in relation to family planning, and state-owned farms, was not required to be put to the applicant under the identified procedures (see s.424A(3)(a)).
In the absence of any obligation under s.424A(1), a failure to follow procedures under either of the sections would not carry jurisdictional consequences (see SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415). In any event, it appears to me on the Tribunal's description of the hearing, that the Tribunal member very thoroughly put all its concerns to the applicant in the course of the two hearings and gave her a very fair opportunity to answer them.
I therefore cannot give any substance to ground 4.
For the above reasons I can find no merit in any of the grounds presented by the applicant to the Court. In my opinion the Tribunal's decision was a privative clause decision, and I must dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 15 March 2010
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