SZOOI v Minister for Immigration & Anor
[2010] FMCA 816
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOOI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 816 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant not believed – no reviewable error found – application dismissed. PRACTICE AND PROCEDURE – Referral of transcript and judgment to the Office of the Migration Agents Registration Authority – conduct of the applicant’s migration agent – a migration agent who habitually fails to attend Tribunal hearings to which their clients are invited is not reputable. |
| Migration Act 1958 (Cth), ss.36, 65, 98, 103, 424A |
| BAL v Minister for Immigration [2002] FCAFC 198 NAWZ v Minister for Immigration [2004] FCA 160 |
| Applicant: | SZOOI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1741 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 25 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Baggett DLA Phillips Fox |
ORDERS
The transcript of today’s hearing is to be obtained and a copy of the transcript, together with these reasons, be sent by the Court to Office of the Migration Agents Registration Authority for such action as it considers appropriate.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1741 of 2010
| SZOOI |
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 14 July 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts concerning her arrival in Australia, her protection visa claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on
13 October 2010.
The applicant is a female citizen of China who claimed to fear persecution from Chinese authorities, following a protest in October 2006 against the demolition of a property she owned with her husband. She claimed she was arrested and detained for 24 hours in July 2006, and coerced into accepting compensation for the demolition.
The applicant arrived in Australia on 12 January 2008, and applied for a Protection (Class XA) visa on 30 December 2009. Her claims were set out in a statement accompanying the application.[1] The application was refused on 25 March 2010.[2]
[1] court book (“CB”) 24.
[2] CB 57.
The applicant claimed that, after the October 2006 protests, she remained in hiding in China until January 2008, when she came to Australia on a Student Guardian visa for her younger son. In November 2009, she claimed she heard that she was still wanted by the authorities.
The applicant claimed she divorced her husband in 2006, so that he would not be implicated if he chose to argue with the authorities about the demolition. She also stated that her husband moved to Argentina (alone) in 2001.
The applicant applied to the Tribunal for review of the original decision on 21 April 2010, and by letter dated 6 May 2010 was invited by the Tribunal to attend a hearing to give evidence and present arguments on 9 June 2010.[3] The applicant attended the hearing. On 10 June 2010, the Tribunal wrote to the applicant inviting comment on information that would be adverse to the applicant, to which the applicant responded by letter dated 5 July 2010. The Tribunal made its decision on 14 July 2010.[4]
[3] CB 83.
[4] CB 163.
The decision of the Tribunal
The Tribunal found that the applicant did not present credible or truthful evidence about crucial elements of her claims to be a refugee (at [76]).
The Tribunal found that there were so many aspects of the applicant's account which were implausible, that taken together with the other deficiencies in her evidence, a finding could appropriately be made that her overall account was not credible (at [79]).
The Tribunal found that the applicant had provided contradictory and untruthful information in relation to a central and significant matter, being her marital status, and found she had a clear willingness to allow false information to be submitted on her behalf to achieve a migration outcome (see [80]-[81]). The Tribunal also found the applicant had demonstrated a willingness to change her story over time (see [82]).
The Tribunal found the applicant's entire account of her response to the demolition of the property and subsequent events was highly implausible (specific reasons for which were given from [83] to [89]).
The Tribunal stated that its findings as to the overall lack of credibility of the applicant's account was strengthened by her delay in applying for a Protection visa for almost two years after her arrival in Australia (at [90]).
The Tribunal rejected the applicant's claims that she had a well-founded fear of persecution in China.
Consideration
These proceedings began with a show cause application filed on 10 August 2010. The application contains three unparticularised grounds:
1.[Tribunal] decision contained errors in law and is not in accordance with UN Convention regarding refugees.
2. Tribunal member used personal opinion to make final decision rather than fact or law.
3. The Applicant’s evidence was not considered by the Tribunal member in the making of the decision thereby denying the Applicant natural justice.
Before dealing with those grounds, I wish to deal with issues raised by the applicant at today’s hearing which raise concern about the conduct of the applicant’s migration agent, Weiming Qian of Good Fortune Company. Ms Qian is a well-known and experienced migration agent. She represents a substantial number of applicants. Some issues have arisen in proceedings before me and other federal magistrates in the past. In the present case, the applicant at the outset of today’s hearing complained that she had not received advice under the Minister’s Panel Advice Scheme.
I received evidence in the form of the documents comprising exhibit R1 which established that both the Court and the Minister’s solicitors had written on several occasions to the applicant’s panel advisor, Mr Michael McAuley, to make arrangements for the provision of advice. The Court wrote to the applicant on 1 September 2010 at the applicant’s address for service to provide her with Mr McAuley’s details. The applicant denied receipt of that letter.
The applicant also denied receipt of the Minister’s written submissions which were read to her by the interpreter before today’s hearing.
I received the affidavit of Alison Lena Faron made on 18 October 2010 which established that the submissions were sent by courier to the applicant at her address for service and were received by someone at those premises who signed for the documents. The applicant denied that the signature on exhibit B to that affidavit was hers but said that other people lived on the premises who might not have passed on the correspondence to her.
The applicant told me that she was concerned about the provision of free legal advice and enquired of her migration agent, Ms Qian, what she should do. The applicant states, in effect, that she was told by Ms Qian to wait and to do nothing. That is a concern to me in two respects. The first is that Ms Qian should know, as an experienced migration agent, that she could easily obtain the contact details of the panel advisor from either the Court or the Minister’s Department. There is nothing to indicate whether any enquiry was made. The second is that the circumstances raise a suspicion that Ms Qian may have considered that there was some advantage to be gained by the applicant not participating in the free legal advice arrangements and then seeking to raise that issue at today’s hearing. That would be improper.
I am satisfied that the Court and the Minister’s Department have done all that they could to ensure that the applicant received advice under the scheme. I am not satisfied that Ms Qian, as the applicant’s migration agent, did what she could or should have done to also ensure that outcome.
My other concern relates to what the applicant told me about an aspect of her claims raised for the first time at the Tribunal hearing. The applicant attended a hearing before the Tribunal on 9 June 2010. The applicant told me that Ms Qian did not attend. That is confirmed by [40] of the Tribunal’s reasons for decision[5]. The failure of a migration agent to attend a hearing before the Tribunal which is a central element of the review process should itself in my view be a matter of concern. In my view, a reputable migration agent should not without good reason fail to attend a Tribunal hearing with her client. A migration agent who habitually fails to attend Tribunal hearings is not in my view reputable.
[5] CB 169.
In the present case the concern is amplified by the fact that the applicant raised for the first time at the Tribunal hearing a new claim. That claim was that she found out since arriving in Australia that the authorities in China were still looking for her. The Tribunal dealt with that claim in [79][6]:
The applicant’s evidence contains numerous inconsistencies, in relation to significant matters, for which I find there is no satisfactory explanation. Her claims have shifted and changed over time, in a manner which I consider is indicative of a lack of truthfulness. She has introduced a substantial new claim (that her neighbour told her in November 2009 that the police were still looking for her) at a very late stage, when it is reasonable to expect that the information would have been available earlier. Many of the applicant’s claims are inherently implausible; while I am aware that credibility findings made on the basis of the plausibility of an account may be subjective and should be made with great caution, in this case, I consider tht there are so many aspects of the applicant’s account which are implausible, that, taken together with the other deficiencies in her evidence, a finding can be appropriately made that her account, overall, is not credible.
[6] CB 175.
The Tribunal regarded the claim as a recent invention. It was a factor in the Tribunal’s adverse credibility assessment. The applicant told me today that she had told Ms Qian, her migration agent, of the claim when her protection visa application was prepared. However, the claim was not included by Ms Qian in the written statement reproduced at CB 24 to 26. Failure to include the claim in the written statement at that time was plainly an issue of significance for the Tribunal. It was so significant that the Tribunal made express mention of it in its invitation to comment dated 20 June 2010[7].
[7] CB 97-101.
The applicant responded to that invitation to comment at CB 148 and 149 by letter dated 3 July 2010. The applicant told me that Ms Qian prepared that statement and the applicant signed it. Relevantly, the letter says that the failure to include the claim relating to information that the Chinese authorities were still looking for the applicant was the fault of the applicant and was her decision.
The two explanations are inconsistent. Either the letter Ms Qian prepared on behalf of the applicant in response to the invitation to comment was false or what the applicant told me today was false. If what the applicant told me today was true, then there is an implication that the Tribunal was misled in order to protect Ms Qian. The circumstances should be investigated. I do not think that those circumstances amount to agent fraud because I am unable to determine on the material before me where the truth lies and because the issue was not of such significance as to disable the review process. The Tribunal made comprehensive adverse credibility findings against the applicant of which this was simply one element.
However, in my view, the circumstances of the preparation of the protection visa claim, the failure of Ms Qian to attend the Tribunal hearing and the circumstances of the preparation of the response to the invitation to comment should be investigated by the Office of the Migration Agents Registration Authority. So should the circumstances in which the applicant apparently did not participate in the provision of free legal advice under the Minister’s panel advice scheme.
The applicant told me that she would co-operate in an investigation of these matters by the Office of the Migration Agents Registration Authority. I will direct that the transcript of today’s hearing be obtained and that a copy of the transcript, together with these reasons be sent by the court to the Office of the Migration Agents Registration Authority for such action as it considers appropriate.
There is no substance to the grounds of review raised by the applicant. The Tribunal decision turned on adverse credibility findings which were, in my view, open to the Tribunal from the material before it. The Tribunal did not apply the wrong test on protection obligations, see in particular at [91], including the Tribunal’s template recitation regarding the refugee definitions.
The applicant saw significance in the Tribunal’s unwillingness to accept her explanation for a false student guardian visa application made on her behalf in China. The Tribunal dealt with that application at [80]-[81] of its reasons[8]:
Moreover, the applicant provided information in her application for a student guardian visa that was substantially inconsistent with the information provided in her protection visa application regarding her marital status. In the protection visa application, the applicant stated that she divorced her husband in November 2006 in order to protect him from her claimed difficulties with the authorities in relation to the demolition of the house. However, in the student guardian visa application form and the “Personal particulars for character assessment” form submitted with it, the applicant stated that her marital status was “married”. These documents were signed in August and November 2007, respectively. Submitted with the student guardian visa application was a translation of a letter purportedly written by the applicant’s ex-husband …, dated 28 August 2007, in which he described himself as her husband and stated he would provide support for the applicant to be the guardian of their child in Australia; and bank documents indicating that [the husband] had taken out a loan in order to provide support to the applicant in Australia. The applicant now claims that the truth is that she and her husband were divorced in November 2006, and has submitted a document which she claims is their genuine divorced certificate. She claims that the student guardian visa was completed by a migration agent and neither she nor her husband was aware of its contents. She claims that she was forced to make “mistakes” because she needed to escape from China. The Tribunal has considered these explanations. While, in some circumstances, information as to marital status might be peripheral to a person’s refugee claims, in this case, the applicant has sought to make out that her divorce from her husband was solely due to her claimed difficulties with the authorities. In these circumstances, I consider that it is a matter which goes to the heart of her claims. While it is possible that, as the applicant claims, a migration agent was responsible for the provision of false information and documents with the student guardian application, I consider that the applicant’s failure to take responsibility for the application submitted on her behalf, and to ensure that the information and documents submitted in it were truthful and accurate, reflects extremely poorly on her honesty and her credibility. I have considered her explanation that she was forced to make mistakes in order to get away from the people who were chasing her, and am well aware that genuine refugees may be forced to rely on false documentation in order to be able to flee an immediate threat of persecution, but no not consider that that is the situation here. If the applicant’s evidence were accepted, she was last threatened by the authorities in October 2006; she applied for her son’s visa in May 2007 and made a calculated decision, based on advice she claims to have received, to apply for her own visa later. Significantly, she does not claim that her son was at risk of harm. She gave vague evidence that people were looking for her at her shop in August 207 and a few times before that, but does not claim any more interest in her until November 2009; moreover, she delayed lodging her protection visa application once she was in Australia for almost two years. I do not consider that the applicant’s response, as demonstrated by the timing of her actions, to the threat of persecution which she claims arose in October 2006, reflects the actions of a person fleeing in haste from a threatening situation. The applicant appears to me to have taken a calculated approach to planning her departure, and to have acted quite slowly in relation to securing her position. I do not accept, in these circumstances, that the applicant had no choice but to use false documents to secure her departure in order to avoid a threat of danger.
I am therefore satisfied that the applicant has provided contradictory and untruthful information in relation to a central and significant matter – her marital status. In these circumstances, and given her clear willingness to allow false information to be submitted on her behalf in order to achieve a migration outcome, I have serious concerns about the reliability and truthfulness of the information provided in her protection visa application. Against this overall concern as to her lack of credibility, the other deficiencies in the applicant’s evidence assume even greater significance.
[8] CB 175-176.
The applicant is concerned that the Tribunal should have accepted that she is divorced. The issue for the Tribunal was not the question of fact whether she was divorced or not but that she had provided contradictory and untruthful information in relation to her marital status. In my view, the Tribunal was right to be concerned and its decision is not attended by any jurisdictional error.
For the reasons it stated, the Tribunal was entirely unconvinced as to the credibility of the applicant, which led it to fundamentally reject her claims to fear persecution for political reasons. The primary inconsistencies that concerned the Tribunal were raised both at the hearing, as well as in writing pursuant to s.424A.
The applicant also complains that the Tribunal relied upon its own opinion. Plainly, the Tribunal formed an adverse opinion about the applicant’s credibility. The assessment of the applicant’s credibility was a matter for the Tribunal. As I have already stated, the Tribunal was entitled to form its view on the material before it. On my reading of the Tribunal’s decision, there was no aspect of the decision which was determined by any inappropriate or unavailable use of personal opinion by the presiding member. Indeed, ss.36 and 65 of the Migration Act 1958 (Cth) (“the Migration Act”) require the “satisfaction” of the particular decision maker.
The third ground that the applicant’s evidence was not considered by the Tribunal is refuted by the Tribunal’s reasons. The applicant had the benefit of a Tribunal hearing which she attended. The Tribunal exceeded its obligations under s.424A of the Migration Act in its invitation to comment dated 10 June 2010. The Tribunal took into account the applicant’s written and oral claims, including her response to the invitation to comment.
In my view, the Tribunal met its obligations concerning the review in the Code of Procedure in the Migration Act. There is nothing in the Tribunal decision or in the process as evidenced by the court book, which I received, to establish any jurisdictional error. In other respects I agree with the Minister’s written submissions, in particular in relation to the Tribunal’s use of documents submitted by the applicant.
A number of documents appear on the Department and Tribunal files as having been submitted by the applicant in connection with her protection visa application. The Tribunal records that it was aware of those documents (at [28], [29] and at [68] in relation to the divorce certificate), some of which are discussed at [80].
There is no obligation for the Tribunal to refer to every piece of evidence that is supplied to it by an applicant.[9] However in this case, the Tribunal has proper regard to the applicant's documents, and drew conclusions based upon those documents. The Tribunal’s findings were open to it.
[9] MZWBW v Minister for Immigration [2005] FCAFC 94.
I note that the applicant, in an attempt to explain inconsistencies that had arisen between matters set out in her protection visa application and matters set out in her earlier filed student guardian visa application, had submitted her student guardian visa application had been prepared by a migration agent, and that neither she nor her ex-husband had been aware of its contents, including its annexures.[10]
[10] Section 98 of the Act provides that a person who does not fill in their own visa application form is taken to have done so if it filled in on their behalf. Section 103 of the Act proscribes the giving of false or bogus documents to the Department or a tribunal on review.
In cases where a migration agent lodges an application with the knowledge and consent of a person, the application constitutes a valid application, even if it contains incorrect information or false documentation.[11]
[11] NAWZ v Minister for Immigration [2004] FCA 160; BAL v Minister for Immigration [2002] FCAFC 198; SZGJO v Minister for Immigration [2006] FCA 393.
It was open for the Tribunal to attribute responsibility for the contents of the student guardian visa application to the applicant, despite the applicant's assertion that she was unaware of the application's contents.
In any event, the Tribunal’s view that the applicant's student guardian visa application reflected poorly on her honesty, was one of many bases upon which the applicant's credibility was impugned.
Finally, the applicant asserted before me that the interpreter at the Tribunal hearing made errors of interpretation, because of difficulty understanding her accented Mandarin. I reject that assertion because there is no evidence to support it. Neither is there any evidence that any issue regarding the quality of interpretation was raised with the Tribunal.
I find that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,200. The applicant said that she would not accept my judgment. 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 $4,200.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 October 2010
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