SZOFF v Minister for Immigration - [2010] FMCA 488

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 488

MIGRATION – Review of decision of RRT – no jurisdictional error pleaded or referred to by applicant at hearing.

Migration Act 1958 (Cth), ss.66(2)(d)(ii), 424AA, 424A

Applicant:

SZOFF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 503 of 2010

Judgment of:

Raphael FM

Hearing date:

1 July 2010

Date of Last Submission:

1 July 2010

Delivered at:

Sydney

Delivered on:

1 July 2010

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 503 of 2010

SZOFF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 19 January 1996 and applied to the Department of Immigration & Citizenship for a protection (Class AZ) visa on 10 April 1996. On 17 June 1996 a delegate of the Minister refused to grant a protection visa. On 2 September 2009, some 13 years later, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The Tribunal considered that the applicant had not been properly notified of the delegate’s decision in compliance with the notification requirements in s.66(2)(d)(ii) of the Migration Act 1958 (Cth) (the “Act”). It determined that the prescribed time period to make a valid application for review had not expired and so it carried out a review and invited the applicant to two hearings. It sent him a letter pursuant to s.424A of the Act and, during the course of the hearing, complied with the provisions of s.424AA in respect to certain matters [81] [CB 142]. On 10 February 2010, the Tribunal determined to affirm the decision not to grant a protection visa.
The applicant’s claims that he is a person to whom Australia owed protection obligations arose from his submission that he had four children in contravention of the Chinese one child policy. Because of his breach of the policy he told that he had been persecuted by the authorities who had severely damaged his property after he had left it to go into the mountains for his wife’s confinements. He also told that he had been fined 30,000.00 RMB because of the breach of the policy and the cardres had made it clear to him that this was not the end of the matter. He felt that if he returned he would continue to be persecuted and fined. During the course of the hearings and in response to the Tribunal’s inquiries, the applicant indicated that another reason why he did not wish to return to China was that he owed approximately 350,000.00 RMB, which was made up of the fine, interest upon it and the payment he made to a people smuggler to get him into this country in the first place, together with interest on that sum. He told the Tribunal that he was fearful of returning to China because he would be put in prison for not paying these moneys.
The applicant was questioned upon his story and was asked for details about the birth of his four children and his association with their mother. He produced to the Tribunal a document in Mandarin which was translated and which he would claim was a divorce certificate. But so far as I understand it from the Tribunal’s decision record, it seems to have been a document which indicated that he had never been married to the child’s mother. But it was, in fact, a decision of the Court in 2001 as to the custody of the child. I refer to “the child” because the applicant told the Tribunal that the other three children which he had had all died. One of the grounds upon which the Tribunal found that it could not accept the applicant’s story and that he was not a credible witness was that he gave various dates for the birth and death of these children which were not consistent.
During the course of the second Tribunal hearing the applicant confessed that he had, in fact, repaid the 350,000.00 RMB, saying that he had been frightened to tell the Tribunal of this in the first place. So, by the time the Tribunal came to make its decision, even if it believed the applicant, he was no longer in breach of the one child policy because he only had one child, and he did not owe anybody any money. He could therefore not be said to be a person to whom Australian owed protection obligations on the grounds originally submitted by him.
It would have been very simple for the Tribunal merely to have said that, although I acknowledge that at [118] [CB 150] it goes very close to it when it says:
“Whilst it is clear to the Tribunal that the applicant does not wish to return to China, it does not find that this is for reasons presented in his application for protection. The Tribunal therefore does not accept that there is a real chance the applicant will be persecuted if he returns to China now, or in the reasonably foreseeable future. As a result, the Tribunal is not satisfied, by the available evidence, that the applicant holds any well founded fear of any harm for a Convention reason should he return to China.”
My remarks are not intended to be critical of the Tribunal which gave this applicant a very fair and thorough review, providing him with every opportunity to persuade it of the merits of his claim, even though it had been some 13 years since the original delegate’s decision.
On 10 March 2010 the applicant filed an application with this Court seeking review of the decision of the Tribunal. There were three grounds put forward. The first was:
“The RRT did not give me a fair decision. They did not trust me. They thought I did not tell the truth.”
The first statement is a comment. It does not reveal a jurisdictional error. It certainly does not particularise one. To the extent that it is qualified by the two subsequent statements, the applicant is correct; the Tribunal did not believe that he told the truth. A credibility finding by the Tribunal that is adverse to an applicant does not of itself present a ground for review. The Tribunal came to its conclusions about the applicant’s credibility, based upon the evidence which he had provided to it and his responses to the Tribunal’s questioning. The conclusions which it reached were available to it on the evidence. For this Court to interfere would be to provide the applicant with a form of merits review to which he is not entitled.
The second ground of application was:
“The RRT failed to account my situation in China.”
I beg to differ with the applicant upon this. He told the Tribunal in some detail about his situation in China, both before he came to Australia and what he believed would happen if he returned. He admitted that he did not tell the Tribunal the entire truth in respect to the latter because the fact is, as the Tribunal makes clear, if he returned to China now he would only have one child and he would not owe anybody any money. From what the applicant told me today in Court, I suspect that what he meant by “his situation in China” was the fact that he was a divorced man, his father has died and he has been away for so long that he has lost connection with the country. Those are not grounds for providing asylum under the Refugees Convention.
The third ground of application is:
“RRT and DIAC doubt my claim without substantive evidences.”
This, again, is a statement of fact and it is one with which the Court agrees, if the applicant is referring to his own evidence. But what he is probably referring to is that his case was dismissed for no good cause. There is really very little difference between this ground and the first ground and I would dismiss it for the same reasons.
Before me today the applicant said that he did not think the Tribunal member had taken his case seriously, nor had it considered the documents which he had supplied. The Tribunal’s decision record commences at [CB 125] and concludes at [CB 152]. As stated, it held two hearings and sent a s.424A letter. To accuse it of not taking the applicant seriously is unfair and wrong. The applicant did submit three important documents to the Tribunal. The first was the court document of 2007 which the Tribunal considered at [110] [CB 149]. He produced a certificate from his doctor. That was considered at [114] [CB 150]. Finally, he produced a letter from his employer. That was referred to at [30] [CB 130]. The letter may well have been helpful to the applicant had he been applying for some temporary work visa but it was of little use in promoting a claim for refugee status.
The applicant told me that the Tribunal had failed to consider that his three children had passed away and that all the information he gave to the Tribunal was all true. This Tribunal at [116] [CB 150] concluded that it did not accept that the applicant had four children. Another Tribunal may have accepted that this was the case but that is not in itself a ground for review. The real point is that even if the applicant did have four children and three of them had now passed away, he could not be said to have been in breach of the one child policy upon his return. The Tribunal was entitled, from the evidence which it heard, to come to that conclusion and to act upon it.
The applicant told me that he had paid back the debt of 350,000.00 RMB and that he had been afraid to tell the Tribunal of this. He also said that the Tribunal did not consider that he was a skilled worker and that he had a lot of experience in the industry and that his employer had provided a reference. These are not matters which touch on a protection visa application. He told me that he wanted to stay here, that he had been here many years and that he was divorced. If he returned to China he would be persecuted. He said that he had paid tax for many years to the Australian government and that he did not wish to rely on any benefits, he works hard and relies on his own efforts. These are all matters which might go to some other application but they do not assist the Court to make a finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in his case. I am unable to make such a finding. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $3,700.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 July 2010