SZOPA v Minister for Immigration

[2010] FMCA 1002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1002

MIGRATION – Review of decision of RRT – where grounds of application reveal no alleged jurisdictional error – where applicant alleges bias.

SCAA v Minister for Immigration& Anor [2002] FCA 668
SZJRU v Minister for Immigration [2009] 108 ALD 515

Applicant: SZOPA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1895 of 2010

Judgment of: Raphael FM

Hearing date: 10 December 2010

Date of Last Submission: 10 December 2010

Delivered at: Sydney

Delivered on: 10 December 2010

REPRESENTATION

Counsel for the Applicant: Ms S Sirtes

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1895 of 2010

SZOPA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who was granted a subclass 457 (temporary business) visa on 9 February 2006 and arrived in Australia on that visa on 7 March 2006.  She departed Australia on that visa on 12 May 2007 and returned on 8 June 2007.  She left Australia again on 14 March 2008 and returned on 25 April 2008.  On 9 February 2010 she applied for a protection (Class XA) visa.  On 20 April 2010 a delegate of the Minister refused to grant her a visa and on 18 May the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal, which, on 30 July 2010, determined to affirm the decision not to grant the visa and handed that decision down on the same day.

2. The original ground upon which the applicant claimed to be a person to whom Australia owned protection obligations arose out of her claimed adherence to and involvement with Falun Gong.  During the course of the Tribunal hearing it appeared that the applicant also had additional claims arising out of the fact that she had a second child for whom she was unable to obtain a hukou and that she had been forcibly sterilised following the birth of this child. In regard to the Falun Gong involvement the applicant claimed that she had met a practitioner in China who used to come and visit the store in which she worked.  One day she had slipped in the store while she was pregnant and a Ms W took her to hospital and took care of her.  She believed this was between May and June 2005.  Ms W introduced her to Falun Gong and she stated that she read the Zhuan Falun.  The applicant said that as a result of Ms W’s assistance her pregnancy was saved and she felt obligated to Ms W.

3. She said that she took up some practice of Falun Gong although this seems to be at a minimal level because she claimed to have an introverted personality.  After the applicant came to Australia with her husband she remained in contact with Ms W who persuaded her to bring back some Falun Gong material to her on her trips from Australia.  This the applicant agreed to do and in 2008 she became involved in gatherings in China with Ms W.  The applicant said that she had seen Falun Gong practitioners distributing material in Perth and realised that they were given more freedom in Australia than in China.  The applicant told how, on the day she was due to return to Australia in 2008, the police traced her to Ms W’s home and issued a summons requiring her to attend court.  She did not do so but flew back to Australia.  She remained in contact with Ms W but found out that she had been sentenced to 18 month’s imprisonment for organising illegal activities.  The applicant believed that if she returned to China she would be subject to an arrest.

4. In regard to the claims about her daughter the applicant said that as a second child her daughter would not be entitled to a hukou.  She said that the situation with the daughter was made even more difficult by the fact that the applicant had been the subject of domestic violence from her husband from whom she was now separated.  She said that although the daughter remained in China the husband did not wish to take any responsibility for her, he was only prepared to take responsibility for their son.  The applicant had told the Tribunal that she was required to undergo a sterilisation operation following the birth of this daughter. 

5. The Tribunal questioned the applicant in some detail upon her claims and, in particular, upon the circumstances surrounding her actual involvement in Falun Gong which the Tribunal concluded was minimal.  In particular the Tribunal concerned itself with the issue of the summons by the police which the Tribunal considered to be inconsistent with the seriousness of the offence alleged.  The Tribunal was also concerned that the applicant did not appear to have known about the summons being issued for some 18 months and the delay by the applicant in seeking a protection visa:

   “As indicated above, the Tribunal considers that the applicant’s claims have been tailored to accommodate the fact that she returned to China on two occasions.  And the fact that she did not seek protection in Australia until November 2009* shortly before her subclass 457 visa was due to expire, and some two years after she had arrived in Australia.  The Tribunal does not accept, that if the applicant had even a limited association with Falun Gong in China, and had taken Falun Gong material back to China, that she would not have sought protection in Australia much earlier than she did.”  [60] [CB 102]

   *[this statement seems at odds with the PVA dated 9 February 2010]

6. The Tribunal also considered the other claims of the applicant:

   “The Tribunal has considerable doubts in relation to the applicant’s claims of forced sterilisation, and the inability of her daughter to obtain a hukou.  The Tribunal considers that a full sterilisation is a significant matter, and does not accept that the applicant would not have included it in her statement to the department, prepared with the assistance of a registered migration agent, if it had occurred as she has claimed.  The Tribunal does not accept the applicant’s claim that because it is unrelated to a Falun Gong claim, that she did not mention it.”  [63] [CB 103]

7. The Tribunal did accept that the applicant had had domestic issues with her husband and took into account her claims that she took sleeping pills and was depressed and suicidal but:

   “The Tribunal does not accept that this is the reason for the highly problematic nature of her evidence.  And is strongly of the view, that the reason for the problematic evidence is due to the fact that the applicant has manufactured a set of claims in an attempt to provide a basis of protection in Australia.  The Tribunal does not accept that the applicant fears harm in China for any of the reasons that she claims.  Accordingly, the Tribunal is not satisfied that the applicant has ever suffered harm in China for reasons of her actual or imputed practice of Falun Gong, or any association with Falun Gong and is not satisfied that there is a real chance that the applicant will suffer harm for those reasons if she returns to China now or in the reasonably foreseeable future.” [64] [CB 103]

8. On 27 August 2010 the applicant filed with this court an application for review of the Tribunal’s decision.  There were three grounds of application:

   “(1)  The Chinese officer did send me summons certificate.

   (2)         Chinese police went to my parents’ home many times for searching me.

   (3)         I will be put in detention centre in China if I return to China.”

   These “grounds” are not indicative of a jurisdictional error on the part of the Tribunal.  They are merely a repeat of the applicant’s assertions which were not accepted by the Tribunal.

9. Before me today the applicant said that she believed the Tribunal was prejudiced against her.  She said that the Tribunal did not believe all her evidence and that the member was biased because she asked if the applicant knew English and did not believe the applicant’s answer that she only knew a little bit.  The applicant told me that she was depressed and had autism because she suffered domestic violence and that was why she was unable to convince the Tribunal of the truth of her statements.

10. In SCAA v Minister for Immigration& Anor [2002] FCA 668, von Doussa J noted:

    “That a finding of actual bias against a decision-maker is a grave condemnation of the ability of the decision-maker to discharge his or her functions with impartiality.”

    And went on to say at [38]:

    “In my opinion it will be a rare and exceptional case where actual bias could be demonstrated solely from the published reasons for decision ... the mere fact of an adverse finding at the end of the matter give rise to no inference as to the state of mind of the decision-maker before, and whilst the matter was under consideration, nor of pre-judgment of the issues fell for decision.”

11. In this matter the Tribunal came to a conclusion about the credibility of the applicant.  A credibility finding is one for the Tribunal to make and provided it has been made upon available evidence it is not permissible for this court to interfere.  The Tribunal’s conclusions about the applicant’s credibility were made on the basis of available evidence as can be seen from the decision record.

12. The Tribunal gave some consideration to the applicant’s claim relating to the forced sterilisation.  As Ms Sirtes notes in her helpful written submissions forced sterilisation was a matter which exercised the Federal Court in SZJRU v Minister for Immigration [2009] 108 ALD 515. But that was a case in which the applicant claimed that if she returned to China she would be forced to undergo sterilisation. Regrettably this applicant has already undergone such an operation and therefore there would be no fear involved. Having considered the Tribunal’s decision as a whole I am unable to see any basis upon which it could be claimed that it is the product of a jurisdictional error. The application must therefore be dismissed. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $5,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  21 December 2010