SZONY v Minister for Immigration
[2010] FMCA 884
•3 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZONY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 884 |
| MIGRATION – Review of RRT decision – applicant a citizen of China – possible claim for actual or apprehended bias not particularised – where other grounds essentially seeking merits review. |
| Migration Act 1958 (Cth), ss.422A, 422AA, 422B |
| Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 |
| Applicant: | SZONY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1659 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 November 2010 |
| Date of Last Submission: | 3 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2010 |
REPRESENTATION
| For the Applicant: | In person by telephone |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1659 of 2010
| SZONY |
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 20 September 2009 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 21 December 2009. On 1 April 2010 a delegate of the Minister refused to grant her a protection visa and on 28 April 2010 she applied for a review of that decision from the Refugee Review Tribunal. She appeared before the Tribunal at a hearing on 17 June 2010. On 30 June 2010 the Tribunal determined to affirm the decision not to grant her a protection visa and handed that decision down on the same day.
The basis of the applicant’s claim that she was a person to whom Australia owed protection obligations was that she and her husband had owned and run a pharmacy business in her home town, the premises of which were compulsorily acquired by the local authority and which had not provided her with adequate compensation. As a result of her complaints about the adequacy of the compensation and her and her husband’s refusal to leave the premises the applicant came into conflict with the local authority and was forcibly removed from the premises. She spent some time in administrative detention as a result of this activity and apparently of getting herself involved in an altercation with the police. The applicant told the Tribunal that even after the detention had concluded she continued to make representations to the local authority including a petition in which she accused a local government official of corruption. She indicated that she had become aware that the property company which intended to purchase the building in which her pharmacy was housed offered 300,000 yuan as compensation to her but the local government official only offered her 80,000 yuan and she believed he had pocketed the rest. When the Tribunal asked her what she thought would happen if she returned to China she said that she thought that the authorities might send her to gaol because she will appeal again and sue them again. The applicant had claimed that she had attempted to take some court proceedings against the official but the courts did not allow her to file these.
At the hearing the Tribunal questioned the applicant about her claims. In the Tribunal’s view the applicant was able to respond to questions concerning matters that were contained in her application but had difficulty in responding to any tangential questions that were not reflected in that statement. It found that there were numerous inconsistencies between the information provided in her written application and at the hearing.
“[64]The most significant is that in her written claims she stated that Director W and other officials had gone to the pharmacy on numerous occasions and issued threats that the building and the business would be demolished on 1 July if they did not move out, whereas at the hearing she stated that she went repeatedly to see W and other officials at their office and clearly stated that this was the only place where she spoke to them …
When asked to explain this apparent inconsistency, her initial response was confused and appeared evasive, and she seemed to try to avoid committing to one version of events.…
[65]There were other inconsistencies in the applicant’s account, which considered singly might not be of great significance, but when considered in the light of the other deficiencies lead, in my view, to a conclusion that overall, her claims cannot be believed. …
[66]I consider that these deficiencies in her oral evidence – primarily her inability to provide consistent evidence in her written claims and her oral evidence, – and her inability to provide a detailed and coherent account of events not specifically covered in her written claims - reflects a lack of truthfulness in her account and leads me to conclude that she has fabricated the basis of her claims to refugee status.” [CB 106-107]
The Tribunal then considered certain documents provided by the applicant in purported corroboration of her claims. It came to the view on the basis of independent country information that it could not accept these documents as being genuine. It took the same view of some statements allegedly prepared by an employee and another business owner who witnessed the applicant’s arrest.
The Tribunal considered the applicant’s statement that she will continue to sue and petition if she returned to China:
[72]“…Yet in my view she has demonstrated her lack of resolve by first of all, leaving China, and then applying for protection. I consider that these claims are mutually inconsistent and again reflect poorly on the applicant’s credibility. I do not accept that the applicant’s parents are continuing to protest on her behalf. Nor do I accept that the applicant has any intentions of continuing to petition if she returns.”[CB 108].
The Tribunal’s conclusion was that it did not accept the applicant’s credibility and that it did not believe that she was a person to whom Australia owed protection obligations on the basis of the claims that she had made. The Tribunal had earlier expressed to the applicant its concern that even if all the claims were true they might not constitute persecution with a relevant Convention nexus. And in my view, this observation was apt.
On 30 July 2010 the applicant filed an application with this Court. I should point out here that although the applicant filed the application in Sydney she indicated an address in Queensland. She then attended a directions hearing before a Registrar of this Court in Sydney. However, on 11 October she wrote to this Court advising that she was in Queensland (at the address she had previously given) and wanted her hearing to be arranged in that state.
The Court responded that if she wished the matter transferred to Queensland or alternatively heard by video conference she would need to take out an application in the proper form. No such application was made. The matter therefore proceeded in Sydney. The applicant did not appear but she was able to be contacted at the telephone and she helpfully made her way to the Federal Court in Brisbane where arrangements were made for her to appear by telephone. In my view anything she wished to have said was said and was adequately translated and interpreted by Ms Tang, the interpreter who was present in Sydney. If the applicant has any complaint about the judgment, which is about to be delivered, she should ensure that an appeal is filed in Brisbane and not in Sydney if she wishes to appear in that State.
The application contains three grounds. The first is:
“My pharmacy was dismantled. I was persecuted in China. RRT didn’t consider my application fairly.”
The first two sentences are statements of fact. They do not consist of an indication of jurisdictional error. The third sentence indicates a possible claim for actual or apprehended bias. To the extent that it might also claim some lack of procedural fairness I would note that this application was subject to the provisions of s.422B of the Migration Act 1958 (the “Act”) which provides that Division 4 of Part VII of the Act is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule.
The applicant has not particularised any breach of the provisions of that division and I accept the view put forward by the respondent that there was no information relied on by the Tribunal that that would have been information that required to be referred to the applicant pursuant to the provisions of ss.424AA or 424A. Insofar as the Tribunal considered the applicant not to be a witness of truth it explained its reasons in some detail and it is clear from the decision record that it put its concerns to the applicant at various times during the course of the interview.
Insofar as the ground raises the possibility of actual or apprehended bias this is a matter which must be distinctly made and clearly prove: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at[70] per Gleeson CJ and Gummow J.
No particulars have been provided and it is not for this Court to guess what the applicant may have meant by what she has put in her grounds of application when it gave her an opportunity to expand on them orally as it did.
The second ground of application is:
“RRT low assess my risk to return to China. I may be put in gaol.”
It seems to me that this ground is inviting the Court to reconsider the Tribunal’s merits decision upon the dangers allegedly facing the applicant should she return. This Court is restricted in its activities to assessing the manner in which the Tribunal reached the decision and not the decision itself. If the court reassessed the Tribunal’s decision, it would be providing impermissible merits review.
The third ground contained in the application was:
“RRT didn’t weigh my evidence. RRT used faulted cases against my application.”
It should be clear from my précis of the Tribunal decision and from a reading of that decision by any interested person that the Tribunal in fact did weigh the applicant’s evidence with some care. It carefully questioned the applicant upon the claims that she made and pointed out to her inconsistencies in her evidence and requested explanations. It weighed that evidence against its own knowledge and independent country information and came to a conclusion which was, respectfully, well open to it on its findings. The second sentence is difficult to comprehend. Perhaps the applicant is referring to the independent country information that the Tribunal utilised to conclude to make conclusions about the documents. The Tribunal is entitled to take into account independent country information for this purpose.
In her affidavit accompanying the application the applicant makes the following statement:
“I need religious freedom and I fear to go back to China.”
The respondent notes that this was not a claim made before the Tribunal. The Court asked the applicant about the claim and through her interpreter she specifically denied that this was an additional claim or that she feared any religious difficulties should she return.
The applicant told the Court that the Tribunal had not believed her and that they thought all her documents were false and explained that she did not agree. She also complained that the lawyer provided to her under the Minister’s scheme had not done the job properly because he had advised her that an application to this Court would be pointless. As it will be clear by now that the applicant’s case is destined for failure it seems to me that the lawyer involved gave accurate and correct advice.
I am satisfied that the Tribunal made its decision in this case without falling into jurisdictional error in the manner in which it came to that decision. The application is dismissed. The applicant shall pay the first respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 12 November 2010
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