SZOPZ v Minister for Immigration

[2010] FMCA 1004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPZ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1004

MIGRATION – Review of decision of RRT – where applicant presents medical certificate – consideration of utility of adjournment where applicant is not represented and application reveals no ground of jurisdictional error.

Migration Act 1958 (Cth), ss.420, 422B, 424AA, 430

NAKX v Minister for Immigration [2003] FCA 1559

Applicant: SZOPZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2036 of 2010

Judgment of: Raphael FM

Hearing date: 9 December 2010

Date of Last Submission: 9 December 2010

Delivered at: Sydney

Delivered on: 9 December 2010

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2036 of 2010

SZOPZ

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 arrived in Australia on 12 January 2010 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 19 January 2010.  On 12 April 2010 a delegate of the Minister refused to grant her a protection visa and on 7 May 2010 she applied to the Refugee Review Tribunal for a review of that decision.  The applicant attended a hearing before the Tribunal which, on 13 August 2010, determined to affirm the decision under review and handed that decision down on the same day.

2. The ground upon which the applicant claimed she was a person to whom Australia owed protection obligations was that she had fallen foul of the local police who had tried to interest her in selling confiscated in the amusement parlour in which she was working.  She claimed that the police had made this proposal to her but that when she refused they organised some gangsters to make life difficult for her including beating her up and eventually having her arrested and placed into administrative detention for organising prostitution.  She claimed that if she returned to China there would be a continuation of this persecution.

3. The Tribunal questioned the applicant about her claims.  Almost immediately it ran into inconsistencies with regard to the addresses that the applicant was giving concerning her residence in China.  These were pointed out by the Tribunal but the applicant’s responses did not appear to alleviate the concern raised.  The Tribunal took up with the applicant its concern that even though she had been the subject of these alleged problems with the police and with the gangsters she remained in her position in the amusement parlour over a period of years.  The Tribunal expressed its concern to the applicant about the fact that her husband had been told about these occurrences and yet she said that he had condoned her remaining in her employment and, therefore, in danger from the police and the gangsters.  The Tribunal expressed its concern as to why it took from 2008, which was the last time the applicant was allegedly threatened until 2010 for her to leave the country.  The Tribunal explained its conclusions at [89] [CB 93]:

   “[89]The first named applicant claims she fears persecution in China because she refused to sell drugs for the police and gangsters.  She claims as a result of her refusal to sell drugs and their fear that she would report their request she was beaten twice, in August 2007 and October 2007, by people or gangsters associated with the police while working at the Karaoke bar, detained for six months on false claims of being involved in prostitution, was threatened and lost two employment opportunities.  She claims she lives in mental torture and fear and as a result was too scared to go onto the streets. 

   [90]The Tribunal has considered her claims and for the reasons set out below, including internal inconsistencies, the Tribunal finds that the applicant is not a witness of truth with regard her claims of being targeted by the police and those working for them.  It therefore finds she does not hold a genuine fear of persecution in relation to China because she refused to sell drugs for the police and the gangsters and their fear she may report it.  It follows it does not accept she was assaulted, detained or threatened or suffered any mental difficulty in China for the reasons she claims.”

4. The Tribunal did accept that the applicant had been assaulted on two occasions, but it did not accept that this was for any Convention reason.  It explains its grounds for this in subsequent paragraphs including the provision of extracts from her interview with the delegate.  The Tribunal noted that the applicant offered to provide it with certain corroborative evidence from her sister including the provision of a hukuo. Both the decision record and the court book indicate that she was given 10 days to do this [CB 71] but no additional information was provided.

5. On 15 September 2010 the applicant filed with this court an application for review of the Tribunal’s decision.  Although the applicant does not speak English, the application was typed and the grounds of her application are said to be:

   (1)RRT did not consider my case fairly.

   (2)I was threatened and beaten by the police in China.

   (3)I feared to go back to China as I would be persecuted if I returned to China.

   The applicant received assistance through the Minister’s scheme from a legal adviser and was offered the opportunity to amend her application when she attended before a Registrar of this court at a directions hearing.  There was no amendment made to the application.

6. On 8 December 2010, the day before this hearing, there was received by the court a medical certificate in the following form:

   “Medical Certificate

   This is to certify that Ms Applicant

   Attended my surgery on 8/12/2010

   Because of Anxiety/Depression.

   Sick leave from 8/12/2010 to 14/12/2010 is recommended.”

   I note that the doctor who signed the certificate is the same doctor who signed the certificate found at [CB 60] but I do not consider that there is anything sinister in this as the applicant tells me, understandably, that she can only go to a doctor who speaks Mandarin.  The court contacted the applicant and informed her, through an interpreter, that it had sent a copy of the letter and the medical certificate to the respondent and asked the respondent whether it was prepared to consent to an adjournment.  The respondent did not consent and so the applicant was required to attend court to make a formal application.  This she did.

7. She told the court that her mind was not clear and she was muddled.  She says that she has not slept and she was relying on sleeping tablets that the doctor had given her.  The respondent maintained its objection stating that the medical certificate was not clear in that it made no reference to the applicant’s ability to attend court and would appear to have been written on the assumption that the applicant was a person in full time employment and not a person who is required to be in court for approximately one and a half hours.

8. In NAKX v Minister for Immigration [2003] FCA 1559 Lindgren J considered a medical certificate which was in the following form:

   “This is to certify that on 13/12/2003 I examined the above named person.  In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.”

   His Honour said at [6]:

   “6The medical certificates are quite unsatisfactory.  They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing. 

   7I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ - apparently each was able to attend upon the medical practitioner. 

   8If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

   9.  … The certificates have the appearance of being pro forma certificates which are available for the asking.”

   His Honour refused the adjournment.

9. The medical certificate that is before me does not even go so far as the one that was before his Honour in making reference to a court appearance.  The applicant was able to attend court this morning.  I accept that she is distressed. 

10. The reasons that I decided that this matter should continue were twofold.  First, the applicant appeared capable of presenting her case and the medical certificate did not suggest to the contrary.  Second,  having read the court papers prior to the hearing, having carefully considered the application and being aware that the applicant spoke no English and was clearly a person of little education, it seemed to me pointless to provide her with an adjournment because there was nothing that she would be able to do that would persuade me that the grounds of application which she had submitted articulated a jurisdictional error on the part of the Tribunal.

11. The fact is that when an applicant has received legal assistance under the Minister’s scheme and yet makes no amendment to her original application, the only possibility that she might have of persuading the court that a jurisdictional error was available to be found is if the court finds it itself. The court is indeed, in these circumstances, her best friend. The applicant did not suggest that providing her with some short adjournment would enable her to obtain further legal advice or to produce submissions that might persuade me that a jurisdictional error could be found. Her case, by which I mean the Tribunal’s findings in it, was one seen frequently in this court, being the product of a lack of credibility. It hardly bears repeating that decisions upon credibility are those of the Tribunal par excellence. Provided the Tribunal based its findings on available evidence and complied with the provisions of the Migration Act 1958 (the “Act”) and provided it complies with the provisions of s.420 of the Act in regard to its way of operating and s.430 of the Act in the manner in which its decision is written, which I believe it did in the instant case, and provided it complies with the provisions of s.422B with regard to procedural fairness, there is seldom any ground for review. In the instant case the Tribunal utilised the provisions of s.424AA [73] [CB 91], even though the information was probably not required to be put to her in that manner.

12. In all the circumstances I believed it was not appropriate to grant the applicant an adjournment and I do not believe that the Tribunal fell into jurisdictional error in the way in which it reached its decision.  Neither the grounds of application contained in the written document nor anything that the applicant said to me at the hearing when she referred to the Tribunal not being fair because they did not believe her, indicate a ground of jurisdictional error that the court could accept. 

13. The application is dismissed.  I order that the applicant pay the first respondent’s costs which I assess in the sum of $3,800.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  21 December 2010