SZONV v Minister for Immigration - [2010] FMCA 811

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 811

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – applicant not believed – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Applicant:

SZONV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1637 of 2010

Judgment of:

Driver FM

Hearing date:

22 October 2010

Delivered at:

Sydney

Delivered on:

22 October 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R Baird
Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1637 of 2010

SZONV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 28 June 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China. She made claims of what might be described as political persecution. Her protection visa claims are recited at [21] of the Tribunal’s decision (court book “CB” 134-136).

I received the court book as evidence.
The applicant included with her application a typewritten statement in English in which she made the following claims:
a)She is a law-abiding business person but her business was disturbed and ruined by a government official. She went to protect her legal rights and tried to seek justice, but she was persecuted by the government. She could not survive in China and fled to Australia.
b)In May 1995 she opened a beauty shop. She accumulated some money and in May 2002 she invested with her partners and set up a spa assembly hall with an area of 500 square metres. The main business was hair and body beauty, health massage, etc.
c)Some of their regular customers were employees of government departments, such as the Industrial and Commercial Bureau, tax office and PSB. They often abused their power and acted “wildly against law in the local community”. Whenever these people came, they would welcome them with a smile and tried their best to serve them and even though they refused to pay the bills every time, they dared not force them to pay.
d)On the night of 4 October 2008 the deputy director of the tax office, a Mr Li, came with his two friends and asked the applicant to get a prostitute for each of them. The applicant explained to them that she did not offer sexual services. Li became angry and said that every beauty shop should offer such services and that if she could not find the girls she should accompany them herself. He then began to touch her body. The applicant could not endure it and ‘raved’. Li became annoyed and began to beat her while his friends stood and watched. The staff saw this and came to stop Li. Before he left, he said ‘this is not over’.
e)From then on, the company was frequently disturbed by the government departments. The tax office came to inspect the accounts to make sure they were not engaged in tax evasion. The police often patrolled the centre to ensure there was no sexual service being offered. Some ‘loiterers’ often came to the centre to harass female staff. They called the police but did not receive effective help. As a result, the number of customers dropped dramatically and the business deteriorated.
f)On 10 November 2008 they heard a scream from a customer and rushed to see what happened. The customer said that the massage therapist overexerted and her back was hurt. They told her that they would send her to the hospital to check but she refused. The massage therapist said that she had confirmed the degree of pressure with the customer in advance and did not make any mistake. About two hours later a staff person from the Industrial and Commercial Bureau came to the shop and said that he received a complaint that an untrained employee hurt the customer. He required them to suspend the business to bring it up to standard and to compensate the customer for medical fees. They argued that it was not confirmed whether the customer was really hurt and they had to wait for the diagnostic report to decide whether it was true but he referred to a medical report which referred to an inappropriate massage. The applicant saw that the doctor who made the report was a Dr Liu. She was forced to close the shop and she was sad and angry that her business was ruined.
g)She still doubted the whole event, so she asked a friend to confirm the case with the Dr Liu. Dr Liu was reluctant to tell the truth at first. When he knew that his diagnosis influenced the business, he told them that Li found him that day and asked him to manipulate the medical record in the way he wanted. At first he did not agree but Li called the director of the hospital and Dr Liu was then ordered by the director of the hospital to do as Li wished. In China, doctors sometimes yield to the ‘big shots’ and help to manipulate documents.
h)The applicant then tried to find out who Li was. She estimated that he may be an influential person and there was likely to be a relationship between the woman and Li, the deputy director of the tax office. She hired a private investigator to investigate the case and found that she was the mistress of Li. The applicant realised that she was set up in a trap.
i)The applicant wrote a letter to the local Industrial and Commercial Bureau, requesting an investigation of Director Li for the abuse of power for revenge. She also required them to cancel the previous administrative decision ordering her shop to be shut down. Her requests did not receive any reply. She was told to wait no matter how many times she urged them.
j)In January 2009, after waiting for a long time without a reply, she decided to resort to legal action. She sued the Industrial and Commercial Bureau for its wrong decision, asking for it to be cancelled. Her case was commenced at the District Court on 16 March 2009. At first, Dr Liu agreed to take a stand in court but he was absent when called by the court. The applicant’s request to have a medical appraisal of Li’s case was also disapproved. The court dismissed the case due to lack of evidence. The applicant found that the ‘dark side of the society’ could not resolved by legal action but she still kept on appealing to the superior authorities.
k)On the morning of 10 May 2009 two policemen came to her home and arrested her. She was kept in a detention centre and was cut off from the outside world. She was not allowed to contact anybody and no one knew where she had gone. The police asked her whether she would insist on suing Director Li. She said yes. They then said that they would punish her and she was illegally detained for 15 days. During the detention she suffered a lot of torture.
l)She was disappointed with the Chinese government. Her basic rights could not be protected. She was scared to continue to live in China and arranged for an Australian visa through an agent.
The applicant was interviewed both by the Minister’s delegate on 17 February 2010 and by the Tribunal on 22 June 2010. The applicant also responded to an invitation to comment issued pursuant to s.424A of the Migration Act 1958 (Cth). The Tribunal made comprehensive findings of untruthfulness against the applicant. Essentially, the Tribunal disbelieved all of her claims. The Tribunal referred to inconsistencies in the applicant’s evidence and the late introduction of several significant claims. The Tribunal’s specific concerns are set out in its reasons at [72] (CB 150-153). The Tribunal was also concerned about a lack of supporting documentation in relation to important factual assertions by the applicant. On the other hand, the Tribunal rejected documents that the applicant did produce on the basis of independent information about the production of fraudulent documents and the Tribunal’s adverse credibility finding.
These proceedings began with a show cause application filed on

27 July 2010. The applicant continues to rely on that application. The application suffers from the defect that the asserted grounds primarily are a summary of her protection visa claims. The applicant is concerned that she was not believed in her claims. She asserts bias and a failure to consider her claims.
I made procedural orders in this matter on 17 August 2010. I gave the applicant the opportunity to file and serve an amended application and additional evidence, including a transcript of the Tribunal hearing. The applicant has not taken up those opportunities. In relation to the transcript, the applicant asserted from the bar table that her migration agent told her that there would be no need to prepare a transcript because I would already have it. I do not understand the basis on which the agent made that statement, if it was made. It is inconsistent with the orders I made on 17 August.
At the hearing today, the applicant made three assertions of error by the Tribunal. First, the applicant asserts that the Tribunal erroneously found that Dr Liu attended her hearing, which I take to mean her hearing in court in China. The Tribunal made no such finding. The Tribunal’s finding in relation to Dr Liu is set out at [72(e)] (CB 151):
The Tribunal considers the applicant’s description of her dealings with Dr Liu to be implausible. She claims that Dr Liu had not only falsified the medical report at the request of the head of the hospital, but also admitted doing so to the applicant, whom he had [not] met before. Despite admitting falsifying documents, Dr Liu asked the applicant not to ‘sell him out’, yet he also agreed to give evidence in court stating that he had falsified a medical certificate. The Tribunal does not accept this as a truthful description of events.
There is a typographical error in the fifth line of that paragraph as quoted above. The word “not” is missing between the words “had” and “met”. The word “not” should be implied. Otherwise, the statement makes no sense, in terms of the applicant’s evidence at the Tribunal hearing.
It is apparent from the Tribunal’s description of what occurred at the Tribunal hearing, in relation to Dr Liu, that the applicant asserted that Dr Liu had never seen her before[1]. The applicant accepted in the hearing before me today that the Tribunal’s summary of her evidence in relation to Dr Liu (reproduced at [45]-[47] of the decision) is a fair summary. There is no substance to the applicant’s assertion of error.
[1] See [45], CB 144.
Secondly, the applicant asserts that the Tribunal was in error in finding that she did not refer, in her written statement, to having visiting the Industrial and Commercial Bureau. The relevant finding is set out at [72(g)] (CB 152):
The applicant was confused about her dealings with the Industrial and Commercial Bureau. She stated in oral evidence that she wrote two letters and visited the Chief at the bureau. She did not refer to the visit to the Bureau in her written statement, claiming that she did not believe it was important, that she had ‘neglected’ it and that it was natural to appeal. If that is the reason for her failure to mention the personal complaints, it is unclear why she referred to the written complaints, which would have been equally natural. She stated that the two letters were written two weeks apart, but she also stated that she wrote one on 2 December and one on 27 December. When the Tribunal pointed out that two weeks did not leave sufficient time for the bureau to receive the complaint, investigate it and prepare a response for her, the applicant claimed that it was useless because the officials all covered for each other and would not investigate. It is unclear, then ,why the applicant would decide to visit the Bureau Chief and write letters if she felt even before the investigation could be undertaken that it was useless.
The applicant asserted that, in fact, she did refer in her written statement to having visited the Bureau. The written statement is reproduced in English at CB 29-31. The last full paragraph on page 30 includes the sentence:
I was told to wait no matter how many times I urged them.
The next paragraph includes the sentence:
But I still kept on appealing to the superior authorities.
The applicant had with her today a document in the Chinese language[2] which she says was her statement of her claims that she gave her migration agent. The interpreter at today’s hearing read the Chinese version of the above two passages. There did not appear to be any material difference in the Chinese version of the last full paragraph at CB 30. There did appear to be a difference in the sentence in the next paragraph as, in the Chinese version, the words apparently are:
[2] Received as an exhibit (exhibit A1).
But I still kept on making contact with the superior authorities.
The applicant conceded that the Tribunal did not have the document in the Chinese language. She provided that document to her migration agent, who prepared the English language version.
To the extent that there is any inconsistency between the Chinese document and the English document, the Tribunal would not have had any actual or constructive knowledge of that inconsistency. The applicant also had the opportunity to correct any errors in the English language document in responding to the invitation to comment and at the Tribunal hearing. I do not consider that there is any likelihood of errors in translation of her protection visa claims leading to a disabling of the Tribunal’s review process.
At the hearing, the applicant was invited to say whether she had made reference to visiting the Industrial and Commercial Bureau in her written claims. She first explicitly referred to visiting the Bureau at the Tribunal hearing[3]. This was explored further by the Tribunal at [58]-[59] (CB 147). At [59], the Tribunal records that it asked the applicant why she had failed to mention in her written statement that she had continued to go to the Bureau. This is understandable in the context of there being no express reference in the applicant’s written claims to visiting the Bureau. The Tribunal records the applicant as saying that she did not mention it in her written claims but she did go there. The Tribunal asked her why she did not mention it. She said that she probably left it out but she did go there.
[3] see [51] of the Tribunal’s reasons, CB 145
Before me today, from the bar table, the applicant asserted that what the Tribunal recounts at [59] is not an accurate representation of her evidence. She claims that she emphatically told the Tribunal that she did include in her written claims that she visited the Bureau. However, there is no evidence to support that assertion. In the absence of the transcript, which the applicant has had the opportunity to produce, I give that assertion no credence.
The second of the two statements in the written statement referred to above were discussed also with the applicant[4]. The Tribunal records the applicant as saying that her reference to appealing to the superior authorities was a reference to appealing to Deputy Chief Li. The applicant again asserted from the bar table today that the Tribunal has not accurately represented what she said at the Tribunal hearing. Once again, however, her assertion is not supported by any evidence. I conclude that there is no arguable case of error by the Tribunal in relation to the Tribunal’s findings concerning the applicant’s dealings with the Industrial and Commercial Bureau.
[4] see [62] of the Tribunal’s reasons, CB 148
Thirdly, the applicant asserts error by the Tribunal in the finding that she did not move out of her home for one and a half months after her release from detention in China. The Tribunal made no such finding. The Tribunal’s finding is at [72(l)] of its reasons (CB 152):
The applicant gave confused and inconsistent evidence about the time when she moved away from home. She initially stated that she left home in March, after she lost her court case. She then said that she moved out half a month after she was released from detention and that between March and May she sometimes stayed at home and sometimes she did not. In her application form she gave one address where she resided until October 2009. She also failed to mention in her written statement that she moved out from the family home.
The Tribunal did not make any finding about when the applicant moved out of her home, if ever. The Tribunal found that the applicant’s evidence about when she moved away from home was confused and inconsistent. That is supported by the Tribunal’s recitation of what the applicant said at the hearing, contained at [64] of its reasons (CB 148-149).
The applicant asserts bias by the Tribunal and a failure to consider her claims. There is nothing to support the allegation of bias. It is clear that her claims were considered.
Today, the applicant asserted that she was not served well by her migration agent, who was only interested in making money. There is no assertion of any fraud by the migration agent and poor quality service by the migration agent will not support an assertion of jurisdictional error by the Tribunal. I informed the applicant of her rights to make a complaint against her migration agent if she is dissatisfied with the service she has received.
I conclude that the applicant has failed to establish any arguable case of jurisdictional error by the Tribunal.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The Minister seeks an order for costs in consequence of the dismissal of the application. Scale costs in this instance would be $2,935. The Minister seeks an order for the payment of $2,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 October 2010