SZOOF v Minister for Immigration

[2010] FMCA 827

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOF v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 827

MIGRATION – Review of a decision of the Refugee Review Tribunal –  findings of credibility are reasonably open to the Tribunal to make – Courts cannot engage in merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424AA, 424A, 425, 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592
SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46
Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration and Local Government Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437

Applicant: SZOOF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1695 of 2010

Judgment of: Nicholls FM

Hearing date: 28 October 2010

Date of Last Submission: 28 October 2010

Delivered at: Sydney

Delivered on: 28 October 2010

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 5 August 2010 is dismissed.

2. The applicant to pay the first respondents costs set in the amount of $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1695 of 2010

SZOOF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 5 August 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), which seeks review of the decision made by the Refugee Review Tribunal (“the Tribunal”) on 2 July 2010, which affirmed the decision made by a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia in September 2009 and applied for a protection visa on 6 October 2009. (See Court Book “CB” – CB 1 to CB 34 with annexures.) She was assisted in that by a registered migration agent (CB 9, CB 27 to CB 30).

Claims to Protection

1. The applicant’s claims to protection were initially contained in a statement annexed to the protection visa application (CB 31 to CB 33).

2. In essence these were that at the end of 1997, on the recommendation of a colleague, the applicant began the practice of Falun Gong to improve her health. She practised at home and sometimes with a group in a park.

3. The Chinese government began to outlaw Falun Gong in July 1999. However, the applicant continued to practice.

4. In August 2008, the applicant engaged in an argument with colleagues about Falun Gong. From that point she was regarded with “suspicion” and they “kept an eye” on her.

5. At the end of August 2008, three police officers went to her home and found a Falun Gong “disc” and book in her closet. She claimed to have been arrested and detained for three months, during which she was tortured, resulting in psychological trauma. Following release, the applicant was required to attend at the police station, as she said: “… for checking any time they wanted”.

6. In March 2009 the husband of a friend, who was a police officer, told the applicant that police were going to arrest three groups of Falun Gong practitioners, which included the applicant, and that she should think about escaping China.

7. Her passport had been taken whilst she was in detention. She paid her friend’s husband to get another passport and a visa to Australia. She obtained a visa and in August 2009 came to Australia.

The Delegate

1. The applicant was invited to attend an interview with the Minister’s delegate on 30 December 2009 (CB 39), but neither the applicant nor her representative attended (CB 41, CB 47).

2. The delegate was not satisfied that the applicant was a genuine Falun Gong practitioner or had been persecuted in China as a result. On what had been put before the delegate, it was found that the claims lacked credibility (CB 52).

3. Ultimately, the delegate was not satisfied that the applicant had substantiated her claims and found that there was not a real chance of the applicant suffering persecution for a Convention reason if she were to return to China in the reasonable foreseeable future (CB 52).

The Tribunal

1. The applicant applied to the Tribunal for review on 16 February 2010 (CB 54 to CB 57). She continued to be assisted by the same migration agent (CB 55). She was invited to attend a hearing on 20 May 2010. She did attend. A request for a further hearing was made by the applicant’s representative on 4 June 2010 (CB 77). This request was denied (CB 81). No further written submissions were made.

2. Any plain reading of the Tribunal’s decision record reveals that the Tribunal did not accept any of the applicant’s factual claims to have suffered harm in China ([93] at CB 101). The Tribunal found that the evidence that was given was inconsistent in a large number of respects with previous statements and that the applicant was not a credible witness ([94] at CB 101 to [100] at CB 102, [102] at CB 102 to [103] at CB 103, [109] at CB 103). This inconsistency also extended to what could be described as country information that was also before the Tribunal.

3. While the Tribunal noted that the applicant displayed some knowledge of Falun Gong, the adverse credibility findings led it to give little weight to this aspect of the applicant’s evidence ([101] at CB 102). Further, the conduct that the applicant claimed to have engaged in, in Australia, in relation to Falun Gong was disregarded pursuant to section 91R(3) of the Act ([106] at CB 103).

4. The Tribunal noted the applicant’s submission that she was “very nervous” during the hearing and did not know what she had said. But the Tribunal found that this would not be sufficient to overcome the findings of inconsistencies and a lack of credibility ([107] at CB 103).

5. The Tribunal was not satisfied that the applicant faced a real chance of persecution if she were to return to China ([110] to [111] at CB 103). The Tribunal affirmed the decision of the delegate ([114] at CB 104).

Application to the Court

1. The application that the applicant has put before the Court is in the following bare terms:

   “(1) The Refugee Review Tribunal has ignored relevant considerations in making of the decision.

   (2) The making of the decision was an improper exercise of the power conferred by the enactment.

   (3) There was no evidence or other material to justify the making of the decision.”

2. Before the Court today the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms Whittemore appeared for the respondent.

3. In addition to the Court Book, I had before me today written submissions filed on behalf of the first respondent. Nothing further was received from the applicant despite the opportunity provided to her at the first Court date to file evidence and written submissions in support of her application to the Court.

4. When given the opportunity to address the Court today, it was quite clear that the applicant had come to this Court with a misconception as to the real nature of these proceedings. The applicant’s submissions, which began with her complaint that she was not convinced by the last judgment which I took that to mean the Tribunal’s decision, because everything that she had said to the Tribunal was truthful. In essence her submissions amounted to a complaint about the Tribunal’s adverse findings as to her credibility and the truthfulness of her account of what she said had occurred in China.

5. I explained the situation to the applicant as to the real nature of the proceedings today and how they were to be distinguished from the nature of the proceedings before the Tribunal. The applicant insisted that the Tribunal did not believe her and that she had nothing further to add.

6. I should just note that at the first Court date the applicant indicated that she wished to participate in the legal advice scheme available to applicants who have sought protection in Australia and subsequently come before this Court. She was assigned a lawyer on the panel of lawyers for that purpose. A member of the bar was appointed to advise her.

7. It is clear from the certificate issued to the Court by that panel member that a time and a place had been arranged with the applicant at which advice could be given to her, that she confirmed her attendance two days prior to that date. But, for whatever reason left unexplained, she did not attend. That of course is entirely a matter for the applicant.

Consideration

1. Turning now to the applicant’s complaints as they are before the Court today.

2. The complaint that the Tribunal did not believe her, on its own, and indeed in the circumstances presented by the material that is before the Court and, in particular, the Tribunal’s decision record, does not reveal legal error on the part of the Tribunal.

3. As is often said, findings of fact, including findings of credibility, are for the Tribunal to make in the exercise of its function (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”) per McHugh J) as the “decision-maker par excellence”. On the material that is before the Court, the Tribunal’s findings were all open to it to make and for which it gave cogent, and it must be said, comprehensive reasons. In these circumstances no legal error is revealed.

4. Ground one in the application complains that in making its decision the Tribunal ignored relevant considerations. No further particulars are provided. Nothing was said by the applicant of any relevance to that complaint today. It must be said that in the absence of any particulars this ground is essentially meaningless. It does not reveal legal error on the part of the Tribunal.

5. In any event, as I said earlier, on the only relevant evidence before the Court, that is the material contained in the Court Book, the Tribunal’s analysis reveals that it did address all of the claims made by the applicant.  That is claims made by the applicant both in writing and at the hearing. It was in fact the inconsistency, and it must be said the many inconsistencies, identified by the Tribunal in the applicant’s own account that underpinned its rejection of her credibility. In all, ground one, as best as it can be understood, is not made out.

6. The applicant’s second ground is that, in making its decision, the Tribunal improperly exercised the power conferred on it by the Act. Again, no particulars have been provided. As I have now stated on a number of occasions, the Tribunal’s decision turned on its findings relating to the applicant’s lack of credibility ([109] at CB 103). Again as I said earlier, such findings were properly within the jurisdiction of the Tribunal to make (Durairajasingham). No error is revealed in this regard.

7. The Tribunal invited the applicant to a hearing pursuant to s.425 of the Act. It raised the issue determinative of the review. Overwhelmingly, this was the credibility of the applicant’s entire factual account as to what she said had relevantly occurred in China. I say this with the High Court’s judgment in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 in mind.

8. I note further that the Tribunal properly discharged its obligation in relation to what the High Court explained as being the meaning of “information” for the purposes of s.424A(1) of the Act, through the use of the facility available to it by s.424AA of the Act (SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46). The Tribunal’s account reveals it explained the relevance of the information to the ultimate decision that it would make.

9. Essentially, this was that the various and numerous inconsistencies in the information that the applicant had provided, inconsistencies with this information and other information available to the Tribunal, and some implausible aspects of what she had said may lead the Tribunal to question her credibility.

10. It is quite plain that the Tribunal provided further time from the conclusion of the hearing for the applicant and her advisor to respond in writing.  She did not do so. The Tribunal pressed the advisor for any response within the time that had been provided (I note here the “file note” that is recorded at CB 76).

11. The applicant’s agent ultimately responded in writing. He said that the applicant was very nervous during the hearing, understood that her application may be refused because of inconsistencies between what she said and her written statement and her application and “hoped” that the Tribunal would give her another chance for a hearing.

12. The Tribunal refused the request for another hearing. What is immediately apparent is that no error is revealed in the Tribunal’s refusal to conduct another hearing in relation to this information, or in relation to the applicant’s claims that she was nervous at the hearing.

13. There was no obligation for the Tribunal to provide a further hearing given that the dispositive issue had been aired at the hearing. It properly took into account in its analysis the submission made on her behalf by her agent that she had been nervous at the hearing.

14. The Tribunal specifically turned its mind to this matter and found that this was not sufficient such as to oblige it to conduct a further hearing, and that in any event nervousness did not explain the large number of inconsistencies in her evidence ([80] at CB 97 to CB 98). The Tribunal’s consideration of this request reveals that it acted neither capriciously nor arbitrarily in refusing the request. Simply, the Tribunal found that this claimed nervousness did not explain the inconsistencies in her account.

15. Section 425 obliges the Tribunal to invite the applicant to attend at a hearing to give evidence and make submissions in relation to the issues arising in relation to the review of the delegate’s decision. The Tribunal plainly did this. A clear inference can be drawn from the Tribunal’s consideration of the request for a further hearing that the Tribunal was satisfied that the applicant had already been provided with a meaningful opportunity to present her evidence and arguments.

16. I note further, for the sake of completeness, that no error is revealed in the Tribunal putting to the applicant, pursuant to s.424AA, information that is otherwise excluded from the obligation in s.424A(1) and s.424A(3).

17. I note also that the Tribunal’s engagement of s.91R(3) in relation to conduct in Australia again reveals no error.

18. Whatever the applicant may have meant by the reference in ground two to an improper exercise of the power conferred by the enactment remains unexplained, and is not evident on what is before the Court.

19. In ground three the applicant complains that there was no evidence or other material to justify the Tribunal’s decision. Again it must be said that in the absence of further particulars or explanation this complaint is unclear.

20. In these circumstances, at best, this seeks impermissible merits review of this Court.  A relevant authority has plainly established that any request for merits reviewed by this Court, as I tried to explain to the applicant at the beginning of this hearing, is not permitted (Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

21. As I have noted already, the Tribunal rejected the applicant’s claims based on a finding that she was not a credible witness. This was drawn from perceived inconsistencies in her own evidence and statements as well as inconsistencies with other information available to the Tribunal.

22. The applicant’s seeming complaint in ground three must be rejected on a factual basis at least. That is, that the evidence and material that in a sense “justify” the Tribunal’s decision is the applicant’s very own evidence and material which she chose to put before the Minister’s department in the first instance, and then before the Tribunal.

23. Further, as I have already said, the applicant was given the opportunity to provide further responses to the Tribunal (CB 74, CB 81, [60] at CB 94 to [81] at CB 98). For whatever reason she chose not to do so. In all, ground three is not made out.

24. I should just note for the sake of completeness, and particularly for the applicant’s benefit, that there is no compulsion on the Tribunal to accept any, or indeed all, of what an applicant chooses to put before it or to say to it (Randhawa v Minister for Immigration and Local Government Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). Ground three is not made out.

Conclusion

1. It is the case that for the applicant to succeed before the Court today, the Court would need to find, at the very least, jurisdictional error in the Tribunal’s decision. As I tried to explain to the applicant during the course of the hearing, that is a “legal mistake”. No such error can be discerned. I will therefore make an order dismissing the application that has been put before the Court.

Costs

1. In considering the Minister’s application for costs, I am satisfied that an order for costs should be made in this case in the normal way. There is nothing before the Court that would argue against the making of such a costs order. The applicant told the Court that she does not have any money. That, of course, is unfortunate for her. But it is not a satisfactory or sufficient reason such that the order should not be made.

2. As to the amount, I note that under the relevant Schedule to the Rules of this Court (Federal Magistrate Court Rules 2001, Sch.1, Part 2), the Minister could have sought an amount up to $5,865. While I take the view that I am not strictly bound by what is set out in the Schedule, that remains as a useful guide to what generally may be said to be reasonable in matters of this type. In any event, the Minister seeks an amount far less than the amount set out in the Schedule.

3. I am satisfied, having regard to the work that has actually been done by the Minister’s solicitors in responding to the application, that the amount sought is a reasonable amount. I am going to therefore make the order as sought by the Minister.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  9 November 2010