SZOGM v Minister for Immigration
[2010] FMCA 721
•2 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOGM v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 721 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 |
| Applicant: | SZOGM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 612 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 2 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 September 2010 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 612 of 2010
| SZOGM |
Applicant
And
| MINISTER FOR IMMIGRATION & 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 24 February 2010. The Tribunal affirmed a decision of the 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 November 2007. She applied for a protection visa in August 2009. She claimed in connection with her protection visa application to have suffered past mistreatment and harassment by local authorities, including “demolition” of her home and “removal” of her husband’s petrol station. She also claimed that in 1995 she was forced to have an abortion. She later claimed she had been forced to undergo sterilisation.
The Tribunal found however that the applicant was “evasive in her dealing with the Tribunal” and “frequently failed to respond to [its] questions, particularly with respect to matters that were not contained in her [protection visa application] statement” which she had no difficulty recollecting. It described particular instances of evasiveness and changes in the applicant’s oral evidence which had led it to the view that the applicant had been untruthful in some of her answers and that at times she had exaggerated or fabricated her evidence in response to Tribunal concerns.
The Tribunal found that the applicant’s two year delay in lodging a protection visa application suggested that she had no fear of persecution in China and that she did not depart China in order to avoid persecution. It addressed, but did not accept her explanations in that respect.
The Tribunal accepted that the applicant may have been forced to have an abortion and to be sterilised in 1995 and that she “had an argument with the authorities at that time”. However the Tribunal found that it was not necessary to determine whether such harm was Convention-related because the Refugees Convention imposed a “forward looking test”. The Tribunal pointed out that the test was not simply whether the applicant had suffered persecution in the past, but whether there was a real chance that she would suffer persecution in the reasonably foreseeable future. The Tribunal found that the applicant had not claimed and that there was “no real chance that she [would] be seriously harmed in the future because of her abortion and sterilisation in 1995”.
Notwithstanding some confusion and inconsistencies in the applicant’s evidence about being required to give money to the authorities in January 2007, being beaten up and having her business closed, the Tribunal was prepared to accept that she was “asked to provide money to the local officials and that at least on one occasion she refused and was beaten”, her tools confiscated and her hairdressing business closed for two months. However the Tribunal had regard to country information indicating that “corruption [wa]s rampant in China and that demands for money by officials [occurred] frequently”. It was of the view that the applicant was targeted as “part of a common practice” and was “not satisfied that the applicant had been targeted by officials for any Convention reason”.
In addition, the applicant had not suggested, and the Tribunal was not satisfied, that she was denied state protection for a Convention reason. The Tribunal noted that the applicant remained in China for a further 10 months after these events and did not refer to any other harm as a result of this incident. She had also resumed her hairdressing business. The Tribunal found that the applicant did not suffer serious harm and that there was no real chance of future serious harm, and that her delay in a lodging a protection visa application also suggested she did not genuinely fear harm. It found that there was “no real chance that the applicant [would] suffer serious harm in the foreseeable future as a result of the January 2007 incident”.
The Tribunal expressed concern about the absence of official documentation about the applicant’s claims that her husband’s petrol station was “destroyed without compensation”. However it found that even if it accepted the applicant’s claims that her husband’s petrol station had been taken away, the compensation case was still ongoing. It found that if “reasonable compensation [wa]s paid,…the taking of the petrol station [would] not amount to serious harm”, and that if not, this was not for any Convention reason. The Tribunal found that any harm the applicant claimed she had suffered as a result of the taking of the petrol station was past harm, that it would not extend into the future and that there was “no real chance [she would] suffer serious harm in the foreseeable future as a result of the petrol station being taken away”. Again, it referred to the delay in the application for a protection visa as indicating an absence of a genuine fear of persecution on the part of the applicant.
The Tribunal also found that “the applicant’s evidence about the [claimed] demolition of [her] house and [its] consequences…to be vague, inconsistent and confused”. It had regard to the various statements the applicant had provided, and was prepared to accept that her house had been demolished, but formed the view that the applicant had been “untruthful in her evidence about the consequences of [such] demolition” and that her confusion about these events suggested they were “not of great significance” to her.
Having outlined its concerns about aspects of the applicant’s evidence, the Tribunal expressed the view that the applicant had “either been granted compensation or that the compensation case was still ongoing”. It did not accept that her “family had been denied compensation”, that the applicant’s “husband and son were beaten when asking for compensation”, that “the applicant or her husband had complained to the authorities or [that they had been] warned not to stir up trouble”.
The Tribunal considered the applicant’s claim that she would “complain in the future and that [that was] the reason she was fearful of harm”. It found that this claim was inconsistent with the applicant’s stated belief on several occasions at the Tribunal hearing that there was little purpose in making complaints, “as well as her evidence that the compensation matter was still ongoing”. It found that “despite her claimed desire to complain, [the applicant] had taken no steps to do so” since she had known of demolition of the house in mid-2009, except for one phone call to the village committee two or three months earlier.
The Tribunal “did not accept that the applicant ha[d] any intention of speaking against the demolition and lack of compensation in the future and that this [wa]s so not because [she would] be afraid to speak out, but because there was no need for her to do so”. The Tribunal did “not accept there [wa]s a real chance that the applicant [would] be persecuted in the reasonably foreseeable future as a result of the demolition of her house”.
Finally, having considered the applicant’s claims singularly and cumulatively, the Tribunal found that there was no real chance she would be “persecuted for any Convention reason if she [were to return] to China now or in the reasonably foreseeable future”.
In her application for review filed on 22 March 2010 the applicant relies on two grounds. She did not file any amended application or written submissions and when given an opportunity to address these grounds in oral submissions, in essence claimed that her claims were true and sought merits review. Merits review is not available in this court.
The first ground is that the “Tribunal referred to evidence from other sources regarding acquisition of property and compensation, bribery and corruption in China…when rejecting the applicant’s refugee claims”, but “failed to invite [her] to comment on such evidence”. It is apparent that this is a reference to the Tribunal’s consideration of independent country information.
Insofar as this ground purports to rely on s.424A of the Migration Act 1958 (Cth), the short answer is that such country information is within the exception in s.424A(3)(a). On the material before the court, the Tribunal was not obliged to put such independent country information to the applicant in the Tribunal hearing pursuant to s.425 of the Act. The Tribunal’s obligation under s.425 was to afford the applicant the opportunity to ascertain the dispositive issues arising in relation to the decision under review, see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. Section 425 does not oblige the Tribunal to put to the applicant items of evidence as such. There is nothing in the material before the court to suggest that the Tribunal failed to comply with s.425 in some broader sense.
I note in that respect that the only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s account of that hearing. In this case it would appear that the applicant was on notice of determinative issues arising on the review, including her credibility, that aspects of the harm she claimed to fear were not referable to a Convention reason and that past incidents she had experienced did not amount to serious harm by virtue of a number of factors, including by the delegate’s findings that her fear of persecution was not Convention-related and that she was not of interest to the authorities, as well as from matters put to her during the Tribunal hearing.
The Tribunal recorded that it raised with the applicant matters such as her delay in applying for a protection visa, inconsistencies in her evidence, the apparent lack of a Convention nexus in relation to material aspects of her claims, what, if any, future harm she feared due to her 1995 sterilisation, and also concerns it had about her documentary evidence. More generally, it put to “the applicant that it would need to consider whether she ha[d] been truthful in her evidence”.
Indeed, according to its account of the hearing, the Tribunal did in fact raise aspects of certain parts of the independent country information with the applicant, such as the availability of organisations in China to deal with corruption and “organisations and courts that would allow her to speak out”. No breach of s.424A or of s.425 in the manner contended for in ground one of the application is made out.
I note for the sake of completeness that the Tribunal sent a letter to the applicant under s.424A of the Act on 4 January 2010, in particular in relation to her delay in applying for a protection visa and some inconsistencies in her claims about demolition of her house. A copy of this letter is annexed to the affidavit of Katherine Nicole Harper affirmed on 1 September 2010. It is not necessary to determine whether such matters in fact amount to information that would form the reason or part of the reason for affirming the delegate’s decision within s.424A(1) of the Act. As the Full Court of the Federal Court stated in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at 30, the Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s.424A has no application. Ground one is not made out.
Ground two is that the “Tribunal failed to give sufficient consideration to the applicant’s claim that she was mistreated by the Chinese Government due to her breach of the one-child policy”. In oral submissions, the applicant took issue with the impact on her health of the events that occurred to her in 1995, in particular the abortion and sterilisation. However, as I endeavoured to explain to her, merits review is not available in this court and her claims in that respect were considered by the Tribunal. The Tribunal accepted that the events complained of by the applicant had occurred in 1995 but found that there was no well-founded fear of persecution in the future as a result of the abortion and sterilisation.
Insofar as the applicant may be intending to contend that the Tribunal failed to consider what future harm she feared because of her claim of mistreatment in 1995, this issue was specifically raised with her during the Tribunal hearing. The Tribunal recorded that the applicant said she had two children already and they told her it was against the law. One of the children was only five years old. She was arrested and forced to have an abortion and then sterilised. When the Tribunal again asked her what future harm she feared as a result, she said that “because of what happened, the house being demolished and other things, if she back, she will talk about that”. It has not been established that the Tribunal failed to have regard to the applicant’s claims in this respect in a manner constituting jurisdictional error.
The applicant’s concerns in this respect and more generally her oral submissions that she was persecuted and that the Department and the Tribunal did not believe her and that she was telling the truth, do not establish jurisdictional error. As indicated, merits review is not available in this court. Insofar as the applicant raised humanitarian concerns, in particular the availability of medical treatment in Australia, this court does not have any discretion to grant a visa as the applicant may be seeking. These are not matters that establish jurisdictional error, although they may be matters that the applicant may raise with the Minister.
However as no jurisdictional error has been established, the application must be dismissed. Before I make the orders, I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4,000. When given the opportunity to comment on the application for costs, the applicant repeated some of her claims about what occurred in China. A disagreement with the merits of the Tribunal decision is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.
The applicant claimed that she did not understand and appeared to then claim that she did not speak Mandarin. However the interpreter provided for this hearing is, as requested, a Fuqing interpreter. There is nothing in the circumstances of this case to warrant a departure from the normal principle. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 23 September 2010
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