SZOIA v Minister for Immigration
[2010] FMCA 456
•29 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 456 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424AA; 474; pt.8 div.2 |
| SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZOIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG766 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 June 2010 |
| Date of Last Submission: | 29 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2010 |
REPRESENTATION
| Applicant appeared in person with a Fuqing interpreter |
| Solicitors for the Respondent: | Ms D. Watson, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 766 of 2010
| SZOIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 March 2010 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“the Applicant”).
The Applicant arrived in Australia on 18 November 2007 having departed legally from Fuzhou on a passport issued in her own name and a student guardian Subclass 580 visa issued on 31 October 2007.
On 17 August 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 12 November 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 18 December 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 10 March 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 8 April 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s claims
The Applicant’s claims before the Delegate and before the Tribunal are accurately summarised in the written submissions of the solicitor for the first respondent as follows:
“Applicant’s claims
3. The applicant claimed that, in China, she was forced to undergo two abortions at the behest of local family planning officials in 1994 and 1999. The applicant further claimed that her husband had died on 22 August 2006 as a result of internal injuries sustained after he had been beaten by members of the Local Family Planning committee in March 2000 (RD 62).
4. Further, the applicant claimed that following her departure from China, while the applicant was in Australia and without her knowledge or consent, the local village committee expanded their office space and her house was demolished (RD 74). The applicant produced to the Department (and later, the Tribunal) a photograph of her demolished house (RD 137).
5. The applicant claimed to fear persecution in China for speaking out about her husband's treatment and death and her own forced abortions (RD 100).
6. In her application to the Tribunal, the applicant claimed all the materials for her visa to come to Australia were prepared by her agent in China and that she did not know if they were genuine. The applicant otherwise repeated her claims made to the Department (RD 166-168).”
The Delegate’s decision
On 5 November 2009, the Applicant attended an interview with the Delegate.
On 12 November 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 7 January 2010, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 3 March 2010 to give oral evidence and present arguments.
On 3 March 2010, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“7. The Tribunal did not accept the credibility of the applicant's claims for the following reasons.
a. As set out above, the applicant claimed her house had been demolished in her absence. However, at the hearing the Tribunal commented that there was a photo on another Tribunal file which "... may show the same house being demolished, that is the photo on another file may show the same house, tractor and people" (at [33]). The Tribunal's reasons disclose that the applicant said the photo was sent to her by Guoying, her close friend.
b. In its findings, the Tribunal noted the photo provided by the applicant was also the same as that which appeared on another Tribunal file in which that visa applicant claimed the house being demolished was his. The Tribunal also considered three statements provided by the applicant in support of this claim but gave them no weight in light of the doubts about the photo. Accordingly, the Tribunal concluded that the applicant was not truthful about the demolition of her house.
c. As a consequence, the Tribunal was not persuaded that it was the agent who provided the Department with a letter from the applicant’s deceased husband (dated 28.6.07). The Tribunal took into account the 'placed certificate' and medical documents provided but, given that letter, was not persuaded they were authentic. Neither was the Tribunal convinced the photos allegedly showing the applicant's husband's funeral in fact did so.
d. The Tribunal considered evidence provided by the applicant's son but, given the letter and that he too claimed the house had been demolished, the Tribunal was not persuaded that he was telling the truth about the alleged date or the cause of his father's death.
e. In light of the letter, the Tribunal was not satisfied that the applicant's husband was assaulted in the manner claimed or that the applicant would protest about this on her return.
8. The Tribunal concluded that it was not satisfied the applicant had been telling the truth about her house being demolished, the alleged date and causes of her husband's death, and her forced terminations and sterilisation. The Tribunal went on to find that, even accepting the applicant's claims in relation to those family planning issues, her evidence was that they happened some years ago and that she had not claimed she would face any other consequence of the one child policy on her return to China. The Tribunal added: "Neither has she claimed she will face persecution for reason of her religion.””
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter.
On 27 May 2010 the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which she may wish to rely was verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents, headed in her own language.
At the commencement of the hearing, the Applicant confirmed that she relied on the grounds contained in an application filed on 8 April 2010 as follows:
“1. The applicant claims that the Tribunal failed to accept the plain fact that her husband has deceased. The applicant has provided documentary evidence proofing (sic) the husband’s death. By failing to accept this claim, the Tribunal fell into jurisdictional error.
2. The Tribunal failed to consider the applicant’s claims that her child’s student visa application and her guardian visa application were prepared by an education agent who had provided for the two visa applicant (sic) and the evidence provided by the applicant in her protection visa application.”
The Applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant did not make any meaningful or relevant submissions in support of either of the grounds or in support of her application generally, other than to assert that the Tribunal had not believed her that her husband had died and that she had no idea about material prepared by her agent.
Ground 1
Ground 1 asserts that the Tribunal failed to accept that the Applicant’s husband had died and was cremated on 22 October 2006, even though the Applicant gave to the Tribunal a document that she claimed was her husband’s cremation certificate.
However, in support of her guardianship visa, issued on 31 October 2007, the Applicant had provided a letter purportedly from her husband, dated 28 June 2007, supporting her application and stating that he would provide “economic and spiritual support for her”.
The Tribunal’s decision record states that the Tribunal gave this inconsistent information to the Applicant in accordance with s.424AA of the Act, indicating to the Applicant that it may not believe her evidence that her husband was dead. The decision record states that “The applicant chose to respond orally”. I accept the submission by the solicitor for the First Respondent, Ms Watson, that, in the absence of any assertion of a failure to comply with s.424AA, it was open to the Court to infer that the Tribunal informed the Applicant that she may respond at that time or seek additional time to comment on or respond to the information.
Further, there was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 27 May 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing, however, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Applicant makes no complaint to this Court of any failure by the Tribunal to comply with s.424AA in giving the Applicant information that may be the reason, or part of the reason, for affirming the decision under review. Accordingly, I accept that the Tribunal did give the information referred to in accordance with s.424AA.
In the circumstances, it was open for the Tribunal on the evidence and material before it to reject the Applicant’s claim that her husband had been cremated on 22 October 2006.
Otherwise, ground 1 is more in the nature of a disagreement with the findings of the Tribunal. Such a complaint invites merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).
Accordingly, ground 1 is not made out.
Ground 2
In ground 2, the Applicant asserted that the Tribunal failed to consider her claims that her child’s student visa application and her guardian visa application were prepared by an agent who had provided fraudulent documents, including the Applicant’s husband’s letter, dated 28 June 2007.
The claim does not appear to be seeking to raise migration agent fraud in the sense explained in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. In any event, such an allegation has not been particularised or supported by any evidence or submissions. The ground appears to be confined to an assertion that the Tribunal failed properly to consider the Applicant’s explanation for inconsistent information provided in support of her guardianship application and in support of her protection visa application.
The Tribunal’s decision record makes clear that the Tribunal considered carefully the Applicant’s assertion that her agent had prepared her guardian visa application without her knowledge of the contents or material in support. However, the Tribunal was not satisfied that this assertion explained the inconsistency in the materials provided in the student visa application and guardian visa application with the Applicant’s evidence in support of her protection visa application.
The Tribunal noted the contents of a letter written by the Applicant to the Tribunal, dated 4 February 2010, in support of her review application asserting that her agent in China prepared the materials for her guardian visa application. She stated that:
“All materials requiring for coming to Australia are prepared by my agent in China and I don’t know how they did. I have no idea if the materials of student guardian made by the agent are real or fake”.
At the Tribunal hearing, the Applicant told the Tribunal that she did not see the application for a guardian visa, but that she told the agent about her family situation and that her husband was already dead. She said that, otherwise, she did not discuss her husband with the agent.
The Tribunal noted that it put to the Applicant that the letter, dated 28 June 2007 purportedly from her husband in support of her guardianship visa application, may cause the Tribunal not to believe her evidence that her husband was cremated on 22 October 2006. The Tribunal noted the Applicant’s response that she did not know how the agent operated and that maybe he had thought it was easier for her to leave China in this way.
The Tribunal found that the Applicant was not a credible witness and had “continued to lie to the Tribunal about substantial parts of her claim.”
Ultimately, the Tribunal comprehensively rejected the Applicant’s claims of past persecution in China, including her allegations of forced terminations and sterilization. The Tribunal found that the Applicant lacked overall credibility and found that a photograph provided by the Applicant of what she alleged to be her demolished house was the same as a photograph given by another review applicant who stated that the house was his.
The Tribunal also gave this information to the Applicant in accordance with s.424AA of the Act stating that the information may cause the Tribunal not to believe her evidence that her house had been demolished. The Tribunal noted the Applicant’s response that the photograph was sent to her from a close friend in China. This friend and two others purportedly signed a statement, dated 28 September 2009, stating that the Applicant’s house in China “has been removed secretly… in March 2009” without prior notice to the Applicant. The Tribunal placed no weight on the statement signed by the friends as corroborative of the Applicant’s claim that the house in China had been demolished because of the information before it that another applicant had claimed the house was his.
It was open to the Tribunal not to accept the Applicant’s explanations and to disbelieve her evidence. The Applicant’s credibility is a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Otherwise, ground 2 is no more than a disagreement with the findings of the Tribunal. As stated above, such complaint invites merits review which this Court cannot undertake.
Accordingly, ground 2 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 29 June 2010
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