SZOHZ v Minister for Immigration
[2010] FMCA 540
•19 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHZ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 540 |
| MIGRATION – Review of RRT decision – applicant a citizen of China and Falun Gong practitioner – where applicant arrived on a s.457 visa but did not apply for protection until much later – where application for judicial review filed 7 days late and no reason for delay provided in application for extension – extension granted – whether Tribunal failed to comply with s.424A or made illogical and/or irrational findings – where grounds for review not particularised – whether evidence corroborative. |
| Migration Act 1958 (Cth), ss.91R(3), 424A, 457, 477 |
| Minister for Immigration v SZMDS & Anor [2010] HCA 16 Minister for Immigration v SZNSP [2010] FCAFC 50 |
| Applicant: | SZOHZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 752 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 July 2010 |
| Date of Last Submission: | 19 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2010 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $2,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 752 of 2010
| SZOHZ |
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 1 December 2007. He applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 27 July 2009. On 12 October 2009 a delegate of the Minister refused to grant a protection visa and on 4 November 2009 the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant attended an interview with the Tribunal at which he presented arguments and also a letter [CB 75] from a person in his home town. On 23 February 2010 the Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of religion/membership of a particular social group. He claimed he was a follower of and adherent to Falun Gong. In a statement [CB 27] submitted to the Department with his PVA he explained that in 2002 the PSB questioned him as to whether he was still practising Falun Gong. When he confessed that he was, they gave him some anti-Falun Gong materials to read and then they asked him into a meeting room where they asked him to withdraw his support. He refused to write and he was detained and sent to a brainwashing course.
The applicant said that in June 2003 he was again detained in a detention centre. He was forced to stand in a dark, wet room from morning until midnight and suffered from sleep deprivation. They forced his eyes open so that he could not sleep. They tied him up to an iron chair. He went on a hunger strike and became very weak. He was force-fed over 100 times. He was insulted and tortured physically. Six months later, as a result of his family using their connections and bribing persons in authority, he was released. However, the PSB went to the school at which his child was studying and asked the teachers to lecture his child and asked the child to correct his behaviour. This caused serious problems for the child at school.
The applicant said he had a friend who was an important official in Shandong Province, and he helped the applicant to obtain a passport. He spent over RMB 100,000.00 with an agent who managed to obtain a visa for him to come to Australia under s.457. It was when that visa ran out that he applied for a protection visa. The Tribunal questioned him about the change of visas and why he had not applied for protection earlier than 2009 when he had been in the country for some time. The applicant told that he had originally been working outside of Sydney but he agreed that when he came to Sydney in December 2008 he learnt about the existence of protection visas.
The Tribunal questioned the applicant about obtaining a passport, and he explained that he paid a bribe to a friend to obtain one. He told the Tribunal after his passport was issued in March 2004, he went overseas to Korea and stayed there for two years. He agreed that he had re‑entered China on his passport for a month for Spring Festival. The applicant said that he had no difficulty entering and exiting China and, although he said he was questioned when he left, the Tribunal noted that he was still able to leave the country both for Korea and Australia.The applicant told the Tribunal that his wife had also left China and had come to Australia and applied for protection. They had left their two children behind in China.
The Tribunal questioned the applicant about his practice of Falun Gong and he told that he had commenced his practice in 2002. He said he had practised in Korea as well. He said that he practised in Australia and he went to practice groups in Auburn. The Tribunal asked the applicant what he had learnt about Falun Gong during the years that he had practised. The applicant was able to provide certain responses but had difficulty in explaining the exercises to the Tribunal. He provided some photographs to the Tribunal but they all appeared to have been taken on the same day.
“The Tribunal asked the applicant about the document he produced to the Tribunal in support of his claims; it asked the applicant if he wanted to tell the Tribunal about that document. The applicant said that it is a document from a co practitioner in China and also the post office receipt for the document.” [CB 99]
In its Findings and Reasons, the Tribunal accepted that the applicant was a citizen of China and had travelled to Korea on two occasions, but it did not accept as true his claims that he had left China at any time because he was persecuted for his Falun Gong practice, nor did it accept that he cannot or would not return to China because he feared persecution there for the reason that he claimed. It did not accept his statements as to his persecution and ill treatment.
The Tribunal found that the applicant's statement about why he did not apply for a protection visa earlier than he did was not credible:
“In the Tribunal's view the applicant's evidence of how he came to apply for protection in Australia, including his evidence that he told the Tribunal that he applied for a sponsored visa and a student visa but when that failed, “then I went for this one”, indicates that he only applied for protection as he had no other avenues for getting a visa to stay in Australia. In the Tribunal's view if the applicant genuinely left his country and did not want to return there because he feared harm there for the reasons that he claims, he would have applied for protection earlier than he did so.” [45] [CB 101]
The Tribunal did not accept that the applicant practised Falun Gong in private because it took the view that he knew very little about the basic exercises. It accepted that he had gone to public Falun Gong gatherings and had had himself photographed there but came to the view that he had not done this otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. The Tribunal applied s.91R(3) of the Act.
The Tribunal also considered what it should do about the document that the applicant had provided. It came to the view that:
“Given that the Tribunal considers that the applicant is not a witness of truth and has given the Tribunal untruthful evidence about his claims, it does not consider that this information is reliable evidence of the facts in it.” [51] [CB 102]
On 7 April 2010, the applicant filed an application for review of the decision of the Refugee Review Tribunal with this Court. This application was seven days outside the time limit for applications to be filed and as such the applicant needs an extension of time to be granted by the Court under s.477 of the Act. Section 477 provides that an applicant has 35 days in which to make an application to this Court but that the Court has the power to extend that time by whatever period it feels appropriate if:
“(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
There is a box to tick in the application forms where an extension of time is requested and the applicant ticked that box. He did not, however, fill in the grounds of the application for the extension of time and so he has not complied with the provisions of the Act. However, his delay in making the application was only seven days. He told me today that he paid $400.00 to a “friend” to make the application for him and he did not know about the time limit.
To my mind, all other things being equal, the interests of justice require that where the same amount of time can be expended in listening to an applicant's full case as in making an assessment of the prospects of success of that case in order to come to an interlocutory decision in respect of the application, it is better to allow the application so that a final hearing has taken place and any risk of an interlocutory appeal being successful and requiring the matter to be heard again is obviated. For that reason, I allowed the application to go ahead.
The applicant's friend gave three grounds upon which he argued on behalf of the applicant that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. He first said that:
“The Tribunal has failed to comply with section 424A of the Act and thereby committing jurisdictional error of law.”
He particularises this claim by setting out the other part of the provision of s.424A. He does not indicate what information he is referring to and, as all the information upon which the Tribunal relied was that given to it by the applicant or based upon independent country information, there are no grounds upon which s.424A was required to be utilised in this application.
The second ground was that:
“The RRT failed to attain or failed to exercise jurisdiction by reason that the RRT erred in law in not acting judicially in acting upon findings based on illogical and/or irrational reason.”
Once again, no particulars are provided of the alleged illogicality or irrationality. My attention was helpfully drawn by Ms Weston, who appeared on behalf of the Minister, to the views expressed by Crennan and Bell JJ in Minister for Immigration v SZMDS & Anor [2010] HCA 16 at [131]:
“…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
If one applies this test to the decision of this particular Tribunal one will find, whilst it is doubtful if any other Tribunal would have come to a different conclusion about the evidence, that it was possible that they might. I can see no part of the Tribunal's decision about which one could say that no rational or logical decision maker could arrive at on the same evidence. I am quite satisfied that this decision cannot be impugned for the reasons suggested.
The third ground nominated by the friend was that:
“The RRT failed to attain or failed to exercise jurisdiction by reason that the RRT erred in law in failing to take into account a relevant consideration for the reason that the Tribunal made a finding that were illogical and/or irrational.
Particulars: the applicant's claim to have been detained and tortured in June 2003 was a relevant consideration in respect to the applicant's claims of being at risk of persecution.”
The Tribunal did take into account the applicant's claims that he was detained and tortured in June 2003. The Tribunal deals with this issue at [39] [CB 99] of its Findings and Reasons and, in the subsequent paragraphs, explains why it does not accept the story. For the reasons which I have already given, none of those reasons could be considered to be illogical or irrational.
The Minister rightly brings to my attention the fact that minds have differed in the past over the acceptance or otherwise of what could be described as corroborative evidence, in particular, the practice of some Tribunals to discount corroborative documentation on the basis of its findings concerning the applicant's credibility. This area of the law was considered by a Full Bench of the Federal Court in Minister for Immigration v SZNSP [2010] FCAFC 50 (“SZNSP”) where a document written by a person who the then applicant had warned of impending problems was considered to be non‑corroborative.
The letter in the instant case found at [CB 75] is vague in the extreme and, if the test described in SZNSP was applied to it, it clearly failed. In these circumstances, the applicant has no grounds upon which he can successfully argue that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The application must be dismissed. The applicant must pay the first respondent's costs which I assess in the sum of $2,800.00.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 July 2010
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