SZOKC v Minister for Immigration

[2010] FMCA 937

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKC v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 937

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

Migration Act1958 (Cth), ss.91R, 422B, 424A, 425

Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356

Applicant: SZOKC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1022 of 2010

Judgment of: Barnes FM

Hearing date: 24 November 2010

Delivered at: Sydney

Delivered on: 24 November 2010

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1022 of 2010

SZOKC

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 13 April 2010.  The applicant, a citizen of the People’s Republic of China, arrived in Australia as the holder of a student guardian visa in December 2008.  She applied for a protection visa on 29 September 2009.  In a statement accompanying her protection visa application she claimed to have a well-founded fear of persecution in China on the basis of her practice of and activities in relation to Falun Gong.  She claimed to have been arrested in 2007 and sentenced to six months imprisonment and that during her imprisonment she was severely mistreated. 

2. The applicant attended a Departmental interview.  A delegate of the first respondent refused her application for a protection visa and she sought review by the Tribunal.

3. The applicant was invited to and attended a Tribunal hearing.  The only evidence before the court in relation to what occurred at the Tribunal hearing is the Tribunal decision record. 

4. In its reasons for decision the Tribunal summarised the applicant’s claims made in connection with her protection visa application.  The Tribunal also referred to her interview with the Department, recording that (relevant to the grounds relied on by the applicant in these proceedings) not all of her evidence could be discerned as the voice of the interpreter was in places too soft to be heard.  The Tribunal recorded in some detail the evidence given by the applicant at the Tribunal hearing and issues that it raised with the applicant and her explanations in those respects.

5. The Tribunal summarised the applicant’s claims that a friend had introduced her to a Mr “G” who was the leader of a local Falun Gong practice site, that she was arrested and charged with an offence, convicted and sentenced to a period of imprisonment during which time she was mistreated and that after her release she found she had been dismissed from her employment.  She claimed to fear persecution in China because she was a Falun Gong practitioner. 

6. However the Tribunal found, for reasons which it gave, that the applicant was not a Falun Gong practitioner in China and that she had not been arrested, charged and convicted of any offence in China. It disregarded conduct of the applicant in Australia under the provisions of s.91R(3) of the Migration Act1958 (Cth) (the Act).

7. In considering the applicant’s claims about what took place in China, the Tribunal had regard to “a number of inconsistencies in the evidence” before it.  The first of these was said to relate to “the place where police allegedly found the applicant at a Falun Gong practice session, together with Mr G and others”.  In the written statement of claims accompanying her protection visa application the applicant had claimed that this incident took place when she was practising Falun Gong at Mr G’s home, but her “oral evidence to the Tribunal was that she, Mr G and the others were practising at her home when the police came in and found them”. 

8. The second inconsistency identified by the Tribunal related to “the timing of this particular incident”.  The Tribunal had regard to the fact that in her written statement of claims the applicant claimed that the “police discovered her and others at a Falun Gong practice session on 11 November 2007”, consistent with a “document submitted… which purport[ed] to be a court record of [the applicant’s] conviction”.  It observed that “[r]eference to a calendar indicat[ed] that that date was a Sunday”, whereas in oral evidence the applicant had said “that the incident took place on a Friday evening after she returned home from work”.  The Tribunal noted that “[a]ccording to the applicant’s oral evidence, she did not work on Sundays”.

9. The Tribunal also had regard to an inconsistency relating to the “circumstances in which the applicant came to know Mr G”, in that “in her written statement [she] claimed that she had started to practice Falun Gong under “the influence of” a Ms W” who had introduced her to Mr G, “the leader of a practising site”, whereas her oral evidence to the Tribunal was that she met Mr G “by chance”.

10. The Tribunal then “considered, but discounted, an apparent inconsistency in the [applicant’s] evidence regarding the time when [she] took up Falun Gong”.  Having regard to the fact that the apparent inconsistency was between her written statement of claims and evidence to the Tribunal on the one hand and her oral evidence to the delegate on the other hand, the Tribunal found that as it was “unable to hear parts of [the applicant’s] evidence to the delegate because the recording of the interpreter’s voice was very soft, it [could] not discount the possibility that [the applicant had] later qualified [her] answer” that she commenced practising in 2000 consistently with her explanation to the Tribunal “that what she had meant was she [had learned] about Falun Gong in 2000 but actually commenced practising in 2005”. 

11. The Tribunal had regard to the fact that the applicant submitted a photocopy of a document that she claimed was a court record of a judgment against her of 13 March 2008.  This was the “only external evidence supporting [her] assertion” of arrest, charge and conviction.  It noted country material “about the ease with which fraudulent documentation may be obtained in China”. 

12. The Tribunal also referred to the fact that when the applicant and her daughter applied for visas to come to Australia, they explicitly stated they were residing in city “T” and submitted a copy of the family’s household registration document dated June 2008 to that effect, as well as a document dated 15 July 2008 asserting the applicant had no criminal record and was now living at the T address.  The applicant’s evidence was that at the time of relevant events in China she was living in city “D”.  She claimed however “that she was required to give the address at which her daughter was born” for the document for the student visa.  The Tribunal did not accept that explanation.  It observed that “[h]ad the household registration document been dated prior to the time when the applicant claimed to have moved to [D], [it] might have had no regard to the address stated in the document”.  However, as discussed at the Tribunal hearing, the Tribunal observed that the document giving the T address was “dated some five years after the time the applicant claimed the family had moved to [D]”.  The Tribunal also had regard to the fact that while in her protection visa application the applicant claimed that she commenced working in D in July 2003 and that she had moved there in August 2003, this was in conflict with her oral evidence to the Tribunal that she moved to D in around 2000.

13. The Tribunal also found that “[t]he document submitted to the Department stating that the applicant had no criminal record [was] inconsistent with [her] claim that she was convicted in 2008”.  It had regard to her assertion that “some of the information and… documents given in support of the original [student and student guardian] visa applications in 2008 were fraudulent” and to country information that “indicates that it is quite easy to obtain fraudulent documentation in China” in finding that there was “no certainty that the alleged court document [was] genuine”.  The Tribunal did “not accept the applicant’s claim that it would not be possible to obtain fraudulent court document[s]”, given her claim “that an agent [had] obtained, on her behalf, a fraudulent official document asserting that she had no criminal record”. 

14. Given these contradictions and the other evidence before the Tribunal and the inconsistencies in the applicant’s evidence about the circumstances in which she was allegedly arrested, the Tribunal preferred to accept the evidence given in support of the original visa applications.

15. The Tribunal found, given these matters, that “prior to coming to Australia the applicant and her family resided in [T] and did not move to [D]”; that the document that was purported to be a record of her conviction was not genuine and that she “was not arrested, charged, convicted and imprisoned in [D]”.  It found that this finding “significantly undermin[ed] the applicant’s credibility” and that it also followed that it did not accept that she “was involved in the printing of Falun Gong literature in 2006” as claimed. 

16. The Tribunal also had regard to the fact that while at the hearing “the applicant [had] demonstrated some knowledge of Falun Gong, it was at a relatively superficial level”.  It set out aspects of the applicant’s knowledge, the limited amount she volunteered about the history and philosophy of Falun Gong and her inability to recite the verses practitioners are supposed to recite before performing various exercises and her explanation in that respect.

17. The Tribunal did “not accept that a person who [had] regularly practised Falun Gong with a teacher over a period of some two years or more would not have learn[ed] all the exercises”.  It had regard to the fact that “when the applicant sought to explain why she was slow in learning a particular exercise because it involved bending, she named the third exercise, whereas the [exercise that] involved bending [was] the fourth”.  The Tribunal found in all the circumstances that “the applicant was not a Falun Gong practitioner in China” and that such knowledge as she had of Falun Gong was gained in Australia in order “to strengthen her claims for protection on the basis of an alleged adherence to Falun Gong”.  It found that the applicant had delayed her application for protection “to give herself time to gained (sic) such knowledge”. 

18. The Tribunal had regard to the evidence consisting of four photographs showing the applicant at a Falun Gong demonstration in Australia in January 2010.  On the basis of her annotations to those photographs it found she “attended [that] demonstration, on a single day a month or so after her interview with the [Department]”, but observed that there was “no corroborating evidence of any other public involvement [on the part of the applicant] with Falun Gong activities in Australia”.

19. Given its finding that the applicant was not a Falun Gong practitioner in China, that she had delayed her application to gain knowledge in Australia and the other adverse credibility findings, the Tribunal found that the applicant had attended this demonstration to get photographs taken and “not through any commitment to Falun Gong”. It was not satisfied the applicant associated herself with Falun Gong practitioners and a demonstration in Australia for any reason other than to strengthen her claim to be a refugee and therefore disregarded such conduct under s.91R(3) of the Act.

20. The Tribunal concluded that having disregarded the applicant’s conduct in Australia, and having found that she was not a Falun Gong practitioner and was not arrested, charged and convicted of any offence in China, there was “no reason… to believe [she] would face any harm for a Convention reason were she to return to China in the reasonably foreseeable future”. 

21. The Tribunal accepted the applicant’s evidence that she had a scar on her arm.  However it noted that there was an inconsistency between her oral evidence to the delegate as to how this was inflicted and her evidence to the Tribunal.  It was not satisfied that she had given a truthful account of the circumstances in which this injury took place and having concluded that she was not arrested and detained as claimed, it did “not accept that the injury which gave rise to the scar [was] related to any alleged arrest and detention in China”.

22. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and affirmed the delegate’s decision. 

23. The applicant sought review by application filed in this court on 11 May 2010.  In her accompanying affidavit she claimed to fear to go back to China.  This does not raise a ground of review.  The application contains three generally expressed and unparticularised claims.  The applicant raised some specific issues in the hearing today.  Before considering those issues I will address the grounds in the application. 

24. The first ground is expressed as a “hope Federal Magistrates Court could remit my application to RRT”.  Such an expression of hope does not allege or identify any jurisdictional error on the part of the Tribunal. 

25. The second ground is that:

    RRT is not fair to treat me.  They did not account the risk when i go back to China.

26. Insofar as this ground is intended to take issue with the Tribunal’s consideration of whether the applicant would face any harm for a Convention reason were she to return to China in the reasonably foreseeable future it is not made out. The Tribunal addressed this issue as set out above. The Tribunal considered the applicant’s claims, but made adverse findings for the reasons which it gave, particularly in relation to the applicant’s credit. In particular, it did not believe that she had been a Falun Gong practitioner in China and disregarded her conduct in Australia pursuant to s.91R(3) of the Migration Act. It was in those circumstances that the Tribunal found that there was no reason to believe that the applicant would face any harm for a Convention reason were she to return to China in the reasonably foreseeable future.

27. As the Tribunal did not accept the claims that the applicant made about events in China or that she was a Falun Gong practitioner in China and disregarded her conduct in Australia, it was under no obligation to consider any risk to a person who was found to be a Falun Gong practitioner with the experiences which the applicant claimed but which the Tribunal did not accept.  This ground is not made out in that respect. 

28. More generally, I note that the Tribunal’s obligations to accord the applicant procedural fairness are confined in accordance with s.422B of the Act. There is nothing in the material before the court to indicate any failure by the Tribunal to comply with the obligations in Division 4 of Part 7 of the Act. Nor is there anything in the material before the court to support any allegation of bias, whether actual or apprehended, insofar as that might be intended to be asserted by the applicant. As expressed, this ground is not made out.

29. The third ground is that the Tribunal:

    … protected the person like me who suffered and feared to go back.  But the member did not protect me.  It’s unfair. 

30. As the solicitor for the first respondent pointed out, if the applicant intended to claim that persons in circumstances similar to hers (where the Tribunal had found that such persons were not Falun Gong practitioners in China and that the only purpose of Falun Gong activities in Australia was to strengthen claims) had been granted protection visas there is no basis for any such contention.  It seems more likely the applicant meant that persons with similar claims to her had been found by the Tribunal to be persons to whom Australia had protection obligations under the Refugees Convention.  However such an assertion does not establish jurisdictional error.  It is for the Tribunal to make findings of fact in relation to the claims of the particular applicant before it.  In this case the applicant’s claims were rejected on the basis of all of her evidence.  The findings made by the Tribunal were open for the reasons which it gave, notwithstanding that it may be intended to assert that a different decision-maker might have reached a different conclusion on those facts.  Again, I note that there is nothing in the material before the court to support any claim of actual or apprehended bias.  Any such allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] and [127]). It is rare that it would be established on the Tribunal record of decision alone and there is nothing in the Tribunal’s reasons for decision to support such a contention (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 and SZHVL v Minister for Immigration and Citizenship [2008] FCA 356).

31. Further, insofar as the applicant intends to take issue with the fairness of the decision, merits review is not available in this court.  If she does seek to take issue with the unfairness of the process, there are no particulars in the application such as to support any such claim.

32. Nor do the matters raised by the applicant in oral submissions establish jurisdictional error, whether on any of the bases contended for in the application (such as the general allegation about unfairness) or on any other basis. 

33. I note first that the applicant did not file written submissions.  Nor did she file any affidavit evidence in support of her application, notwithstanding that provision was made for such material to be filed in the directions made on 10 June 2010. 

34. In oral submissions the applicant claimed first that when she attended the Departmental interview and was asked about the time and date she was arrested in China, she said it was 11 November 2007, but when asked the day of the week and the time said that it was a Sunday after she finished her work.  She told the court that she never said to the Department that she did not work on Sunday.  She went on to claim that after work the neighbours complained about noise at her home and the police appeared.

35. The applicant took issue with the fact that the Tribunal did not believe her.  She suggested that this was on the basis of the Tribunal member’s understanding that no-one would go to work on a Sunday, notwithstanding that she claimed that she had explained to the Department that she did work that Sunday.  The applicant expressed the view that the Tribunal formed an adverse view about her credibility because of this issue. 

36. The only evidence of what occurred in the Departmental interview is the material in the Court Book, including the delegate’s reasons for decision and the Tribunal decision which do not support the applicant’s contention about what she said to the delegate. 

37. As set out above, the Tribunal indicated some difficulty in relation to the Departmental interview, as not all of the applicant’s evidence could be discerned because the voice of the interpreter was in places too soft to be heard.  In any event, while the applicant’s claim is that she never said to the delegate that she did not work on Sunday.  What the applicant said or did not say to the delegate in this respect did not form any part of the reasoning of the Tribunal in relation to the applicant’s claims about the time and circumstances in which she was arrested.  Rather, it is apparent from the Tribunal reasons for decision, including its account of the Tribunal hearing and its findings and reasons, that the inconsistency about the timing of the incident when the applicant claimed that the police found her at a Falun Gong practice session related to an inconsistency between the document she submitted in support of her protection visa application and the purported court record (both of which referred to a detention on 11 November 2007) on the one hand and the fact that that date was in fact a Sunday and that in her oral evidence (which, it is apparent from reading the Tribunal decision as a whole, is a reference to her oral evidence to the Tribunal) the applicant said that the incident took place on Friday evening after she returned from work and according to her oral evidence (to the Tribunal) the applicant did not work on Sundays on the other hand. 

1. There is no reference in the Tribunal’s account of what occurred in the applicant’s interview with the delegate to any discussion about the day of the week.  Rather, it recorded that the applicant said she had been taken into custody after 5 pm on the day of question after she had gone home from work. 

2. There is, however, reference to an express consideration of this issue in the Tribunal hearing which clearly provided the basis for its findings about the applicant’s oral evidence.  The Tribunal recorded the following:

   The Tribunal asked on what days and hours the applicant worked as an office manager for the decoration company.  She said that she worked five days a week, from Monday to Friday inclusive, between 8 a.m. and 5 p.m.  The Tribunal said that it had noted her oral evidence before the delegate that she had been arrested in the afternoon, after going home from work.  She confirmed that this was the case.  She said that the incident took place on Friday afternoon.  She said that she and other practitioners had agreed to have a “gathering” at her home on that afternoon.  Given that she had to travel home from work, it would have been about 6 or 7 p.m. when the police arrived.  She said that one of her neighbours had reported them because they were making a noise.  She confirmed that the alleged incident took place at her home.

3. The Tribunal also recorded that the applicant had said “she could not recall the precise date of that incident, but agreed [it] would have been set out in the court document”.  The Tribunal noted that date was 11 November 2007 and accorded with the date in the written statement of claims but that 11 November 2007 was a Sunday. 

4. It is apparent from the Tribunal’s account of the Tribunal hearing and its findings and reasons that what it had regard to was the inconsistency between the applicant’s written claims and the evidence given by the applicant to the Tribunal in relation to the timing of the particular incident.  Hence, even if it were the case (and there is no evidence before the court to establish this) that the applicant made no statement to the delegate that she did not work on a Sunday, that does not establish any misunderstanding on the part of the Tribunal let alone jurisdictional error.

5. In particular, as discussed in Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108, in light of the Tribunal’s account of the evidence given at the Tribunal hearing, it could not be said that there was no probative evidence to ground the Tribunal’s findings in that respect. As the Tribunal observed, the evidence it relied on in this respect included the applicant’s confirmation at the Tribunal hearing that the incident took place on a Friday evening and her evidence that she worked Mondays to Fridays on which basis (as the Tribunal found) it could be inferred that according to her she did not work on Sundays. The findings of the Tribunal in relation to inconsistency in the applicant’s evidence were open to it on the material before it for the reasons it gave.

6. Moreover, as pointed out by the solicitor for the first respondent, the Tribunal exercised some caution in having regard to what was said or, indeed, not said in the Departmental interview as discussed above in relation to when the applicant took up Falun Gong.  There is nothing in the Tribunal consideration of the Departmental interview and what was said by the applicant in that interview that establishes any jurisdictional error in relation to the issue of concern raised by the applicant in oral submissions.  I note in that respect that the Tribunal’s account of the evidence that the applicant gave to the delegate may also have suggested a possible inconsistency in relation to the time the applicant was imprisoned.  However such evidence was not relied upon or referred to by the Tribunal in its findings and reasons, consistent with the possibility that the applicant said something further to the delegate that was not apparent on the recording of the interview.

7. In submissions in reply the applicant added that she had never said that she had been arrested on Friday and that she doubted the accuracy of the Tribunal record, because she said it was on Sunday after 5 pm after work.  It appears that in this respect the applicant is seeking to take issue with the Tribunal’s account of what occurred at the Tribunal hearing.  However there is no evidence before the court to support any such claim.

8. The applicant had the opportunity to put a transcript of the Tribunal hearing before the court.  She did not do so.  She raised this issue for the first time in submissions in reply.  The Tribunal’s account of what occurred in the Tribunal hearing is not such that it should be inferred that it made such a mistake.  The applicant’s contention does not in any way establish any jurisdictional error on the part of the Tribunal.

9. Insofar as the applicant referred to obtaining early release after a sentence of six months, the Tribunal did not accept her claim of arrest, charge and conviction for reasons unrelated to any issue about the time she claimed she had actually served in prison.

10. The other matter raised by the applicant in oral submissions was a claim that the Tribunal based its doubt about her credibility on an issue in relation to her address and a possible inconsistency between her protection visa claims and claims made in the student and student guardian visa applications.  She sought to provide an explanation to the court for the reason that her household registration document referred to the family living in T, while she was in fact working in D.  She submitted that the Tribunal could not understand why she was not using the D address and that perhaps the Tribunal did not understand the household registration system in China. 

11. Again, this contention does not establish jurisdictional error. It is apparent that there was an inconsistency identified by the Tribunal in that respect. This issue was raised with the applicant at the Tribunal hearing. The Tribunal put to the applicant its concern about the inconsistencies in her evidence as to where she lived, when and where she had started work in D and other matters connected with her evidence about her residential address. It also explained that such inconsistencies could lead it to conclude that she had not lived and worked in D. Insofar as that was a determinative issue, the Tribunal complied with s.425 of the Act. It raised such matters with the applicant in the course of the hearing for comment.

12. In relation to the specific concern expressed by the applicant in these proceedings, it was for the Tribunal to decide whether or not it accepted the applicant’s explanation, which it set out and which it addressed in its findings and reasons.  The Tribunal’s findings were open to it on the material before it for the reasons which it gave, having regard in particular, to the date of the document in question.  Merits review is not available in these proceedings and the applicant’s contention does not establish jurisdictional error. 

13. As no jurisdictional error has been established, the application must be dismissed. 

    RECORDED  :  NOT TRANSCRIBED

14. The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  The applicant referred to the fact that she had no job and claimed that she could not afford the amount sought.  However that is not a reason for departing from the normal principle, albeit it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. 

15. The Minister sought costs in accordance with the amount provided for in the Schedule to the Federal Magistrates Court Rules in the sum of $5,865.

16. The applicant was self-represented.  She raised unparticularised and generally expressed grounds, albeit I accept that the solicitors for the Minister independently investigated whether or not there were any other grounds identifiable.  This was not a matter that involved a detailed consideration of matters of legal complexity, although there was some additional factual material and it was necessary for the solicitors for the first respondent to file supplementary documents, having regard to the Tribunal’s consideration of the student visa and student guardian visa applications.

17. Doing as best I can on the material before me and having regard to the nature of this and other similar matters, I consider that an appropriate amount in the particular circumstances of this case is the sum of $5,000.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 December 2010