SZOFC v Minister for Immigration

[2010] FMCA 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFC v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 396

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Minister for Immigration v SZNPG [2010] FCAFC 51
SZNPG v Minister for Immigration [2009] FMCA 1033

Applicant: SZOFC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 490 of 2010

Judgment of: Driver FM

Hearing date: 8 June 2010

Delivered at: Sydney

Delivered on: 8 June 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 490 of 2010

SZOFC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 9 February 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and has made claims of political persecution.  The following statement of background facts is derived from the Minister’s written submissions filed on 26 May 2010. 

2. The applicant arrived in Australia on 16 March 2009: court book (CB) 196 [2], using a passport in another person’s name, and applied for the visa on 30 April 2009: CB 1-46. The delegate interviewed the applicant on 13 July 2009: CB 55-56, and refused the visa on 15 July 2009: CB 79-90. The applicant applied to the Tribunal for review on 12 August 2009: CB 91-95. The Tribunal held hearings on 15 October 2009: CB 105-106, 13 November 2009: CB 124-125, and 17 December 2009: CB 148-149. On 23 December 2009 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (“the Migration Act”): CB 152-154.

3. The applicant claimed to fear harm in China for reason of her political opinion.  She claimed to have organised protests against the building of a chemical plant in her village in Fujian province in October 2007, and to have been detained on 12 December 2007 and sentenced to one year’s imprisonment.  The applicant claimed to have been mistreated in detention, and that the police continued to harass her when she was released in October 2008.  She claimed that she was unable to obtain a passport in her own name, and so with the help of money from her family and other villagers purchased a passport in another person’s name containing an Australian visa.  She claimed the police would continue to harass her if she returned to China, and that since her arrival in Australia the police had called on her family and her husband to ask where she was.  She claimed she would be arrested if she retuned because the authorities believed she was a threat to national security.  See generally CB 198-213.

4. The Tribunal found that the applicant was not a witness of truth, and had fabricated her claims: CB 218 [110]. It accepted on the basis of independent country information that there had been a protest against a chemical factory in August 2007 in the applicant’s village, and found that the DVD submitted by the applicant was of this protest, and the applicant did not appear in it because she had not been there. The Tribunal rejected the applicant’s claim that there was another such protest in October 2007 in which she had participated, noting that it was clear events in the village were monitored and reported on since the August 2007 protest, and that it was implausible that the alleged protest in October 2007 would be unreported. The Tribunal noted that the applicant made no mention of the August 2007 protest until it was raised with her by the Tribunal. The Tribunal concluded that the applicant had fabricated her claims using the August 2007 protest as the basis for an alleged October 2007 protest which did not occur. It rejected all the applicant’s claims of past protest activity and associated harm: CB 219 [114], 220 [118]. While accepting that the applicant had used another person’s passport to come to Australia, the Tribunal found that this was because it contained an Australian visa, and not as she claimed because she was on a blacklist: CB 219 [116]. The Tribunal found that the applicant had fabricated the documents she had submitted in support of her claims: CB 219 [117]. See generally CB 216-220.

5. These proceedings began with a show cause application filed on 9 March 2010.  The applicant continues to rely upon that application.  The application is supported by a short affidavit, which I received. 

6. I also have before me as evidence the book of relevant documents filed on 5 May 2010. 

7. Both parties made written submissions.  I also received oral submissions from both parties today. 

8. The applicant asserts that the Tribunal decision discloses bias.  I accept the Minister’s submission that bias, as evidenced by a tribunal decision alone, will be very rare.  The point was reinforced forcefully by the Full Federal Court very recently in the Minister for Immigration v SZNPG [2010] FCAFC 51. In any event, there is nothing on the face of the Tribunal decision or indeed in any of the available evidence to support an allegation of bias[1].  The applicant had made detailed claims centring on a protest in her home village arising out of land confiscation.  Perhaps because the claims were detailed the Tribunal gave those claims detailed attention.  The Tribunal had regard to the interview of the applicant conducted by the Minister’s Department and itself conducted three hearings.  The Tribunal took the trouble to investigate the applicant’s factual claims about the protest that the applicant claimed occurred in October 2007.

   [1] This case is different from SZNPG where I accepted an oral submission by counsel for the Minister that the “well had been poisoned” at the Tribunal hearing (see SZNPG v Minister for Immigration [2009] FMCA 1033 at [20]), with the consequence that the following invitation issued pursuant to s.424A appeared to be an empty gesture, and that no real consideration was given to the response. My acceptance of that submission was fundamental to my reasoning in that case. Curiously, counsel for the Minister on the appeal in that case appears to have made the opposite submission, namely that the case was not a “poisoned well” case at all. It does not appear that the Full Federal Court on the appeal adverted to the reversal of the Minister’s position.

9. The Tribunal discovered as a result of that research that there was a land protest at the same place as claimed by the applicant but it had occurred three months earlier. The applicant had had supplied video evidence of the protest and the Tribunal was able to establish with reasonable certainty that the video evidence was of the protest in August 2007, not the claimed protest in October 2007. The Tribunal raised its concerns about the applicant’s claims with her at the third hearing it conducted on 17 December 2009. The Tribunal also wrote to the applicant on 23 December 2009 purportedly pursuant to s.424A of the Migration Act inviting comment on the information obtained by the Tribunal. The applicant replied by a letter dated 7 January 2010. The Tribunal took that response into account in its reasons at [83]-[88] (CB 212-213).

10. In her response the applicant provided two documents by which she sought to support her claims concerning the claimed protest in October 2007.  The first document was purportedly authored by a person called Mr He.  The applicant now complains that the Tribunal did not contact Mr He to verify the information in his purported statement.  There was no reason why the Tribunal was required to do so.  The Tribunal had already established that the applicant’s claim concerning a protest in October 2007 was a fabrication.  The Tribunal found at [113] of its reasons (CB 218) that the purported statement by Mr He was also untruthful.  The Tribunal also found that the other document (a purported document from the Fuqing Municipality Jiangjing Town People’s Government) was not genuine.  The substantial effort made by the Tribunal to check the applicant’s detailed claims led the Tribunal to conclude at [104] of its reasons (CB 216) that the applicant had attempted to place herself in a protest which actually occurred in August 2007 but that some of the details that she gave in her claims concerning the protest were inaccurate.  This enabled the Tribunal to conclude that the applicant’s claims were false. 

11. There is no substance whatsoever to the allegation of bias.  Rather, the decision is an example of the Tribunal going to considerable lengths to thoroughly investigate and make a reasoned decision on the claims made by the applicant.  In so doing the Tribunal may have exceeded its legal obligations but there is no legal error involved in such circumstances.

12. I reject the ground of review in the application.  I conclude that the Tribunal decision is free from jurisdictional error and that it is therefore a privative clause decision.  It follows that I must dismiss the application and I so order. 

13. Costs should follow the event in this case.  The Minister seeks an order for costs in accordance with the Court’s scale.  The applicant continues to assert that she was wronged by the Tribunal.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:  Rebecca Chen

Date:  11 June 2010