SZOFG v Minister for Immigration - [2010] FMCA 660

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFG v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 660

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 424AA, 425

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
NADR of 2001v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465; [2002] FCAFC 293
SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189; [2007] HCA 35

Applicant:

SZOFG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG504 of 2010

Judgment of:

Barnes FM

Hearing date:

18 August 2010

Delivered at:

Sydney

Delivered on:

18 August 2010

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG504 of 2010

SZOFG

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 3 February 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in April 2007. She applied for a protection visa on 10 July 2009. She indicated in her protection visa application that a personal statement would be provided.
The Department received a typed statement on 22 July 2009 in which the applicant claimed to fear persecution from the authorities due to her involvement with the Local Church. She also detailed past concerns arising from the application of the one-child policy in China. Relevantly, she stated that in 1990 she and her husband had left their hometown and moved to another part of China because of such concerns. She claimed that from 1990 to 2006, while she was away from her hometown her home, which she described as “my old house there”, was used for the Local Church to have activities, store material, and produce copies of documents for meetings and event information.
The applicant came to Australia with her daughter as the holder of a student guardian visa in 2007. She claimed that just prior to her planned return to China in 2009 she heard from her younger brother that on 5 April 2009 her husband had been arrested. She claimed that on 1 April 2009 “Christian fellows were gathering at [her] old house”, that the police came and searched the house, discovered a printing machine and information, confiscated the material, “sealed up” the house, and took the people to the police station.
On 5 April 2009, when her husband returned to the applicant’s hometown for a festival, he was arrested. She claimed that he was imprisoned for a week and mistreated and that he “put all blames (sic) on” her. She claimed that her family had urged her not to return to China because the police were looking for her and she feared arrest and persecution from the police.
The applicant was invited to and attended an interview with a delegate of the first respondent. Her application was refused by the delegate on 8 October 2009. The applicant sought review by the Tribunal. She attended a Tribunal hearing.
In its reasons for decision, which is the only evidence before the court of what occurred in the Tribunal hearing, the Tribunal set out at length the information said to have been given by the applicant in the Departmental interview and also what occurred at the Tribunal hearing. The Tribunal noted, among other things, concerns that it had raised with the applicant about particular issues, that she was asked to comment on information that would be a reason for affirming the decision and that she was given the opportunity to provide further material after the hearing, in particular, as to her activity in attending the Local Church in Australia. No such material was provided to the Tribunal.
After setting out country information about the Local Church in China and the treatment of followers, the Tribunal summarised the applicant’s claim to fear return to China based on her “claimed adherence to and assistance to members of the Local Church in China” and her claim to “have been an adherent for many years” and “to have provided a site used by a group of followers in Fuqing to produce literature” and “that her husband ha[d] been mistreated [in] 2009 as a result”.
The Tribunal recorded that during the Tribunal hearing the applicant had “added” a claim that “her father-in-law [had] died in police custody after [his] arrest for following the Local Church in 2005 and that her husband [had been] beaten [in 2005] when he protested” to the police.
The Tribunal concluded that “being aware that some followers of the Local Church [had made] successful” protection visa claims, the applicant had “fabricated a claim about her own past experiences in China, the claimed recent discoveries of police and harms to her husband”. It did “not believe [that] the applicant [was] a follower of the Local Church, that she [had] ever provided assistance to adherents in China in any way, that her husband ha[d] ever been of interest to Chinese authorities for this reason, nor that there [wa]s any interest in the applicant for this reason at the time [of the decision] or in the foreseeable future”.
The Tribunal summarised and discussed the reasons for this conclusion. First, it had regard to the fact that the applicant did not make a timely application for the protection visa. The applicant “waited some three months after finding out about the arrest of her husband and fears for her return to China before” applying for a protection visa. The Tribunal found that this “apparent substantial delay indicate[d] that the applicant’s claims about what she learned in April 2009 [we]re not true” and that had she been aware of such matters she would have made her application in a timely manner. It found that the “timing and nature of the application indicate[d] … that the applicant [had] fabricated claims of her past experiences and recent events”. It considered that while the applicant claimed she had been considering returning to China, she “could point to nothing which [had] altered between April and July 2009 which would support this view” and while she claimed “she was warned not to return to China by mid-April 2009, [she] could offer no plausible reason for not seeking protection closer to [that] time”.
Secondly, the Tribunal found that the applicant had added enormously to her claims over time. It referred specifically to the fact that prior to the Tribunal hearing she had not made any reference to the claimed death of her father-in-law or police assault on her husband in 2005, although these matters were said to be “clearly directly relevant” to her claimed fear as they arose from “her father-in-law’s following [of] the Local Church and the claim that he resided in the very house that [was said to be] the subject of current police interest”.
The Tribunal found that not mentioning these claims indicated that “the applicant was prepared to embellish and add to her fabricated claim”. It did not accept her explanation for her failure to mention these matters in her relatively detailed written statement provided to the Department or during the Departmental interview and found that “to not mention the later claimed extraordinary events because she thought she should only write and speak of recent, personal experience [wa]s not believable”.
The third matter that the Tribunal had regard to in reaching its view that the applicant had fabricated her claims was that she had “not been able to give a coherent and consistent account of her claimed attendance at a Local Church in Australia”. The Tribunal did not believe that a person who had the claimed background of the applicant “in their support of the Local Church in China would be able to give only the most general account of [her] practise in Australia”. It referred to the fact that at the Tribunal hearing “the applicant [had been] unable to recall with any real clarity the persons who assisted her [to attend] purported gatherings in Australia, the regularity of her attendance or those who organised the congregation she claimed to attend”.
It found that “her claim that she was not aware of people’s names, apart from one”, despite attending meetings for some two years in Australia was “not believable”. The Tribunal referred to the fact that the adviser had sought “additional time to investigate the provision of additional material”, but that no such additional material had been forthcoming.
The Tribunal found that the applicant’s claims were “implausible in light of information about the treatment of followers of the Local Church” in China where Chinese authorities took an adverse interest in them. It stated:
She claims that her husband, a registered owner of the house in which production equipment and literature of a classified evil cult were found, who in the relatively recent past has been of interest to authorities, and whose father died in police custody when a resident of the same home, has convinced police that his wife, who had not been in China for several years when the raid took place, was the leader of this group. Her husband, it is claimed, was released by police, albeit having to report regularly, while the interest of police is to await the return of the applicant to arrest her.
The Tribunal found that in a context where independent information suggested that there were ongoing attempts to close down the Local Church in some regions of China, this account of events was not believable. It found that if the claims about “the connection of the applicant’s husband with the home, his proximity to it in April 2009, the history of his treatment by the authorities and the fact that literature and production equipment were located [at the home] were …true, it [wa]s not believable that he would be held by [the] police for a relatively short time and released and [that] the focus of official interest would be the applicant”.
For these reasons the Tribunal did “not believe that the applicant ha[d] given a truthful account of her claimed past involvement with the Local Church in China, her support of that church or current interest in her or other family members in China”. The Tribunal acknowledged that “the applicant did exhibit some knowledge of the arrangements and history of the Local Church”, but found that “this was not sufficient to overcome its concerns about the credibility of the claims [she] made about her own experience and [the] interest in harming her in China”.
The Tribunal accepted that the applicant may, “on limited occasions, [have] attended gatherings associated with the Local Church in Australia”. However it was “not satisfied that the applicant undertook this conduct for any reason other than to strengthen her claim to be a refugee”. It referred to the fact that her claims about her conduct in Australia were “vague and unconvincing” and found that “her lack of knowledge of other practitioners or leaders indicated she had limited interest or involvement in the Local Church in Australia”. It was of the view that her “involvement in Australia ha[d] only been to support th[e] application and [did not arise] from any genuine belief”. The Tribunal disregarded that conduct pursuant to s.91R(3) of the Migration Act1958 (Cth).
Hence, as it did not believe the applicant’s claims about past experiences and disregarding her conduct in Australia, the Tribunal concluded that it did not believe that the applicant held a well founded fear of being persecuted for any reason should she return to China.
It observed that her only claims to fear harm arose from her association with the Local Church, claims that the Tribunal did not believe were genuine. It referred to the fact that in her written statement the applicant had referred to past harms arising from the application of China’s one child policy, but also that she had not expressed any fears in this regard in respect of her return to China at the time of the decision or in the foreseeable future.
The Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant sought review by application filed in this court on 10 March 2010. She has not filed any amended application or written submissions.
The application for judicial review contains three grounds. The first is that “RRT did not believe that the evidences provided by me are true. That’s not fair”. The second is that: “RRT use failed cases against my application. They did not believe the whole things I said are true.” and the third is: “RRT did not consider that I would be put in jail if I return. I have risk to go back to China.” In her accompanying affidavit the applicant reiterated her claim that she would “[n]ot have peaceful life in China. [She would] live in fear”. She stated that she “refused to go back to China as Chinese (sic) forbids [her] to keep [her] belief.”
The applicant was given the opportunity to elaborate on these grounds in oral submissions. With one exception, to which I will return, she basically reiterated that what she had said was true, that she had not lied and that it was not fair that the Tribunal had not believed her. Each of the grounds and what the applicant said orally and in her affidavit attempts to seek merits review. Merits review is not available in this court.
Further, it is well established that credibility is a matter for the Tribunal. The Tribunal’s adverse credibility findings which formed the basis of its decision were open to it on the material before it for the reasons which it gave. Factual matters are, as submitted for the first respondent, for the Tribunal to determine and do not, without more, come within the scope of the court’s jurisdiction (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 and NADR of 2001v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465; [2002] FCAFC 293).
In determining whether an applicant has a well-founded fear of persecution the Tribunal is entitled to resolve questions of credit, to attribute weight to particular evidence and to consider the inherent improbability of events. The fact that the Tribunal did not believe the applicant (and there is no suggestion that she provided any evidence apart from her written statement and what she said to the Department and the Tribunal) does not establish a jurisdictional error.
While there is a reference to fairness in the application, there is nothing in the material before the court or in what the applicant said to establish any lack of procedural fairness. In oral submissions the applicant explained that in her view the Tribunal decision was unfair because she claimed that she had told her lawyer that her father-in-law had died already. I take that to mean that she had told her lawyer of this claim prior to the Tribunal hearing. She claimed that the lawyer did not add that information to her documents and so the Tribunal said that her claim was not true.
Insofar as in this oral submission the applicant might be seeking to raise some allegation of third party fraud or a failure to comply with s.425 of the Migration Act in the sense considered in SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189; [2007] HCA 35, no such claim is made out. I note in that respect that in addition to her written statement provided to the Department the applicant was invited to and attended a Departmental interview. It is apparent from the Tribunal reasons for decision that she did not raise her claims about her father-in-law’s detention, death and bashing of her husband in 2005 on that occasion. As the solicitor for the first respondent pointed out, even if these claims had not been included in the written statement there had been an opportunity for the applicant to raise these claims before the Department.
At the Tribunal hearing, when asked about her failure to raise these claims earlier the applicant was asked about the translated statement signed by her and presented to the Department. The explanation she gave to the Tribunal was that she thought the statement had to contain information about her personal experience and she “did not know that she could refer to her father-in-law’s experience” and also that she had not been asked about this during the Departmental interview and did not mention it because she thought this was only about her personal experience.
At the Tribunal hearing the applicant raised for the first time the claim that her father-in-law was a member of the Local Church who had lived in the house which had belonged to him, that he had been arrested in 2005 at a Local Church gathering, detained for 15 days and had died while in detention and that “because of her father-in-law’s death her husband went to the police station to argue with them and he was bashed” on 26 March 2005.
The Tribunal finding in relation to the elaboration on the applicant’s claims is set out above. It was open to the Tribunal on the material before it to reach the conclusion that it did in that respect. The concerns the applicant raises today are not such as to establish that the Tribunal failed to raise with her dispositive issues under s.425. The Tribunal, according to its account of the hearing, referred to the fact that the applicant’s statement and interview with the Department had not referred to problems the applicant later claimed her father-in-law had experienced.
In addition, the applicant was asked to comment on information which the Tribunal considered would be a reason for affirming the decision of the delegate (s.424AA), including the fact that prior to the Tribunal hearing she had not made any reference to the problems occurring before 2009, in particular involving her father-in-law and husband. Again, the Tribunal recorded that the applicant had reiterated that “she did not understand about the whole process” and “thought she only had to give information about her personal experience…this was what she spoke with her lawyer about” and that she “did not know that she could refer to her father-in-law’s experience when preparing the statement or during the interview”. I note that this explanation is not consistent with the explanation the applicant provided today.
In any event the oral submissions of the applicant do not establish third party fraud on the SZFDE principles.
I gave the applicant an opportunity to explain her claim that the Tribunal used “failed cases” against her application. It was at that point that she claimed that it was not fair and made the claim about having told her lawyer about her father-in-law. No jurisdictional error is established on that basis and this ground is un-particularised. The Tribunal clearly considered the applicant’s claims to fear harm should she return to China and rejected those claims. No jurisdictional error is established on the basis contended for in ground one or in ground two.
As the Tribunal did not accept the applicant’s claims it was open to it to find as it did that it did not believe that the applicant held a well-founded fear of being persecuted for any reason should she return to China, thus sufficiently addressing her claims that she feared being put in gaol if she returned. Ground three is not made out.
Similarly, the statements in the affidavit accompanying the application seek impermissible merits review and do not establish jurisdictional error.

As no jurisdictional error has been established the application should be dismissed. Before I make the orders I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the respondent. The applicant reiterated that it was unfair and that what she said was the truth. However, as I had endeavoured to explain to her, merits review is not available in this court. Her belief in the truth of her evidence to the Tribunal is not a reason for departing from the normal principles in relation to costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 8 September 2010