SZOFO v Minister for Immigration
[2010] FMCA 455
•29 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOFO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 455 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal reached a decision that was not fair, did not trust the applicants, denied the applicants procedural fairness, did not use cases favourable to the applicants and failed to consider the risk to the applicants were they to return to their country of nationality – matter turns on its own facts. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| First Applicant: | SZOFO |
| Second Applicant: | SZOFP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 532 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 June 2010 |
| Date of Last Submission: | 29 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2010 |
REPRESENTATION
| The First Applicant appeared in person. |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 532 of 2010
| SZOFO |
First Applicant
| SZOFP |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are mother and daughter, are citizens of China. The first applicant claims that, while in China, she and her husband operated a shop which was expropriated by the government. She claims that her husband led a campaign against the local authorities for which he was arrested and detained. She claims that he later died as a result of the torture which he suffered while in detention.
The first applicant claims to fear persecution in China because of her husband’s actions.
The applicants arrived in Australia on 13 October 2007, the first applicant on a student guardian visa and her daughter, the second applicant, on a student visa. Both of these were cancelled on
31 July 2009. The applicants lodged an application for a protection visa on 9 July 2009. The second applicant was included in that application as a member of the first applicant’s family unit. This visa application was refused by a delegate of the first respondent (“Minister”) on
15 October 2009. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claims for protection visas are set out on pages 4 – 12 of the Tribunal’s decision.
The first applicant made the following claims in her protection visa application:
a)she and her husband had been operating a noodle shop in their local town since 1990. In February 2006 the local government expropriated their shop in order to build a highway. They, and other shop owners, were given very little compensation;
b)
in order to prevent their shops from being demolished, her husband organised the shop owners and local civilians. On
10 June 2006 they “engaged in conflict” with the demolition workers;
c)her husband was arrested and charged with public order offences and with hindering government policies. He was sent to a detention centre where he was tortured and beaten by the police and other prisoners;
d)he was released on 19 September 2006 but died shortly thereafter, on 17 October 2006, from liver failure caused by police torture;
e)she petitioned the local government to investigate her husband’s death and was assured by the secretary and two other officers that things would be taken care of. However, three days later, after she refused the hospital’s request to cremate her husband, the police came and threatened her, saying that she would suffer the same treatment as her husband if she opposed them. She was therefore forced to cremate her husband’s remains;
f)there is no democracy or human rights in China. If she continues to appeal to the higher authorities she will be put in gaol; and
g)local government in China is corrupt and will not protect her.
The first applicant also provided a notarised death certificate indicating that her husband, born on 27 November 1967, had died of disease on 17 October 2006.
At the Tribunal hearing on 5 January 2010 the first applicant made the following additional claims:
a)her husband’s date of birth was 26 October 1967;
b)she owned a flower shop in China which the authorities wanted to demolish. She was given 30,000RMB as compensation for the loss of her flower shop;
c)there were more than twenty shops on the street but she only knew two of the shop owners as they were her husband’s best friends. She did not know any of the other shop owners as she had little education and was always sitting at home or in her own shop;
d)after her husband’s death, the local police came to her house and threatened her from time to time and they would have put her in prison if she had continued to go against the government; and
e)because of her husband’s persecution, she dared not stay in China. She could not move elsewhere in China because she did not have the money and she had built the house that they were living in. She later said that she could not move within China because she was on a black list.
The second applicant also gave evidence to the Tribunal but none of any particular relevance to the claim to fear persecution. The second applicant’s evidence focused on the student visa on which she had travelled to Australia and which she said was cancelled in July 2008.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the first applicant was not a truthful or credible witness in light of the following inconsistencies and flaws in her evidence:
i)she had difficulty discussing the circumstances of her husband’s protest and detention and appeared to be reciting her statement in a rote fashion;
ii)at one point she said that she operated a noodle shop and at another said that it was a flower shop; she could not remember the names of the other shop owners who purportedly participated in the protest; she gave inconsistent evidence in relation to her husband’s death; and she gave incorrect dates of birth for her husband;
iii)she stated that all the evidence she had provided in relation to her application for a student guardian visa had been true. However, when the Tribunal put to her that that information appeared to indicate that her husband was alive in May 2007 (contrary to her claim that he died in October 2006), she then stated that all her documentation had been prepared by an agent in China and that she “had no idea”. Prior to this, she said that the application was prepared by her friend; and
iv)at the hearing the second applicant confirmed that the photograph of the person included in her student visa application was her father. When the Tribunal put to the first applicant that this might indicate that her husband was not dead at the time she claimed, the first applicant could not provide an explanation, stating only that “the devil must be with me at that time”. The Tribunal did not accept that this was an adequate response;
b)the Tribunal did not accept that the applicant’s husband was killed in China due to being detained and persecuted by the authorities;
c)the first applicant could not explain to the Tribunal’s satisfaction how she was able to work and live in China in the year after she claimed her husband died, nor could she adequately explain how she was able to provide, in relation to the student guardian and student visa applications, all the information from the authorities when they were purportedly persecuting her;
d)the Tribunal considered that the first applicant would not have been able to depart China on a passport in her own name if, as claimed, she was of such interest to the authorities that they had detained and tortured her husband until his death and then also threatened her from time to time;
e)the first applicant did not submit any medical evidence which suggested that she suffered from a condition which affected her memory or her ability to give evidence and, in the circumstances, the Tribunal was not satisfied that she suffered memory problems;
f)the Tribunal was not satisfied that the first applicant’s illiteracy overcame the problems the Tribunal identified in her evidence; and
g)the Tribunal found that the first applicant’s general lack of credibility was apparent from her evasiveness, lack of detail and inconsistent and ineffective responses to the Tribunal’s questions.
Consequently, the Tribunal rejected all the first applicant’s essential claims, including that her husband was involved in a campaign against the local authorities following the repossession of their land, that he was detained, harassed and died as a result, or that the first applicant herself was threatened or harassed.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1. RRT did not make fair decision for us. They did not trust us.
2.Procedural fairness has been denied. RRT did not use favourable cases to our application.
3.RRT failed to consider the risk for us to go back.
Ground 1
The first allegation in the application is composed of two parts. The first is that the Tribunal’s decision was not fair and the second is that the Tribunal did not trust the applicants. Dealing with the first element first, as it is pleaded it is not clear what this allegation was meant to mean. However, in her oral submissions today the first applicant, who appeared for herself and for the second applicant, told the Court that this ground was meant to convey that the Tribunal’s decision was unfavourable to the applicants.
As such, it is no more than a challenge to the Tribunal’s conclusion as to the merits of the application. However, such a claim cannot be brought in these judicial review proceedings, whose only role is to review the Tribunal’s decision to determine whether or not it has been arrived at in accordance with law. As long as no legal error is involved, the Court is not concerned with the findings and conclusions which the Tribunal has reached. That is to say, the Court cannot look behind the Tribunal’s decision on the merits of a visa application and it cannot substitute its views for those of the Tribunal as to whether a visa should be granted.
The second element of the first allegation is that the Tribunal did not trust the applicants. It was up to the applicants to demonstrate to the Tribunal that they merited its trust and they failed to achieve this. It is a matter par excellence, in the words of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], for the Tribunal to determine whether a witness is to be believed or not and it is not for the Court to interfere in that process, as long as the Tribunal approached it in good faith.
As to the question of good faith, no evidence has been adduced by the applicants to suggest that the Tribunal’s decision was tainted by bias, or any failure to conduct the review in a conscientious manner. The only evidence before the Court which would be relevant to this issue is the Court Book, which is exhibit A. Nothing in that document suggests to me that the Tribunal’s decision, or the conduct of its review, was affected by bias, whether actual or apprehended, or a want of good faith. That being so, the Court is not empowered to review the Tribunal’s findings on the credibility of the applicants, other than to observe that those conclusions were open on the evidence.
Ground 2
The second allegation is also made up of two elements. The first being that the applicants were denied procedural fairness and the second that the Tribunal:
… did not use favourable cases to our application.
The rules of natural justice, and thus the law of procedural fairness, have been codified for the purposes of the Tribunal’s review in those provisions found in div.4 of pt.7 of the Act. Of these, the most relevant are ss.424A and 425. Such obligations as the Tribunal had under s.424A were discharged by its letter of 7 January 2010.
As to s.425, I was initially concerned that the Tribunal may have confused its obligation to identify issues to the applicants, so that they could address them at the hearing, with its obligation to put adverse information to them pursuant to s.424A. However, having considered the issues arising out of the reasons for the delegate’s decision and the manner in which the Tribunal’s hearing was conducted, and having regard to the fact that the Tribunal’s decision was essentially a credibility based one, I am satisfied that the Tribunal met the requirements of s.425.
It is not apparent that any other provision of div.4 of pt.7 is relevant to this review. For these reasons, I conclude that the applicants were not denied procedural fairness.
As to the issue of non-use of favourable cases, this allegation really means nothing without particulars and there are none. The Tribunal’s decision reveals that it understood the law which it had to apply and that it applied that law correctly. It was required to do no more. This element of this ground does not demonstrate jurisdictional error on the Tribunal’s part.
Ground 3
The allegation that the Tribunal failed to consider the risk to the applicants were they to return to China proceeds on the assumption that the Tribunal accepted the factual allegations underpinning their claim to have a well-founded fear of persecution for a Convention reason. However, it did not. Most relevantly for determination of this allegation is the Tribunal’s statement at para.101 of its decision record where it said:
After considering the applicant’s claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to China now or in the reasonably foreseeable future, there is no real chance that she will be persecuted for the reason of her political opinion, membership or a particular social group or for any other Convention reason.
Submissions made today
The first applicant addressed the Court on the unfairness that she saw in the decision reached by the Tribunal and also explained why she and her daughter ought to receive protection in Australia. She also submitted that she did not understand how the Tribunal could have reached the decision which it did. In essence, the applicants’ submissions today do no more then invite the Court to review the correctness of the Tribunal’s decision as to whether the applicants are persons to whom Australia has protection obligations. That is to say, she invited the Court to review the merits of the visa application. For the reasons already given, the Court cannot do this.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 2 July 2010
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