SZOSH v Minister for Immigration - [2011] FMCA 128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 128

MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424A(1), 425

Khan v Minister for Immigration & Citizenship [2011] FCAFC 21
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48, (2010) 273 ALR 122
Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425
SZEWL v Minister for Immigration & Citizenship (2009) 174 FCR 498

Applicant:

SZOSH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2328 of 2010

Judgment of:

Smith FM

Hearing date:

25 February 2011

Delivered at:

Sydney

Delivered on:

25 February 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2328 of 2010

SZOSH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in August 2007 on a student guardian visa. The visa expired in August 2008, and the applicant remained in Australia with her son. On 5 May 2010, she applied for a protection visa assisted by Mr Harry Huang of Pricilla International Co Pty Ltd. Her claims to fear persecution if she returned to the People’s Republic of China were set out in the application. No corroborative documents were ever presented to the Department or Tribunal, although the son was called as a witness at the Tribunal hearing.
In the visa application, the applicant explained how she came from a village in China where she had been engaged in housework and farm work. She gave a history of having four children contrary to family planning policies, and incurring harassment by officials at the time of their birth, and the need to incur huge debts to pay registration fines. Her last child was born in 1995. Her application was unclear whether she claimed that these events gave rise to a current fear of persecution in China.
More recently, the applicant referred to a protest conducted in front of the police station in a local town, against corrupt officials who had misappropriated funds which had been made available for building a road to her village. The protest, she claimed, had been organised to demand the release of two persons who had been sentenced for revealing this information. She said the protest occurred on a date in March 2007, and she described it:
On 8 March 2007, many of them, including my husband and me, gathered spontaneously in front of the police station in [the town], urging the police to release [the two persons]. The police not only refused to do so but also alleged us to have “anti‑government” protest and suppressed us with truncheons. In order to defend ourselves, my husband and I, as well as many others had to fight against the police. At the beginning, our people were obviously more than the police; and thus the police were unable to disperse us. But, later on, more and more police came from the Public Security Bureau (“PSB”) in [the home city] and even Fuzhou City; and eventually we were dispersed by the police. Many of us were wounded by the police. Particularly, I was arrested by the police together with other about 6‑7 people.
The applicant said that she was interrogated by police who “intended to force me to admit that I had played a leading role in so‑called ‘anti‑government’ and ‘anti‑Communist’ protest”. The applicant said she denied this, but “I condemned the police to protect unfairly those corrupt Communist officials and to trample on our basic human rights”. As a result of her responses, “the police regarded me as a ‘diehard’ with strong political opinions against the Communist government. I was therefore sent to the detention centre in [the home city]”. She was detained for 48 days, in which she was mistreated physically and mentally. She was released after the payment of a bribe, but she was required to report to the local police station in the town every week, and was “required to be ready for further investigation by the PSB from time to time”.
She had already obtained a passport and intended to take her son overseas for education, and she obtained her visa in July 2007 and claimed to have passed through the airport with the payment of a bribe. She said that after she left, the police had visited her home and arrested her husband and detained him for two weeks, and that she was on the “black list” of the PSB. She said: “therefore, I must be arrested by the police again on my return; and I must be once again subjected to persecution by the PRC authorities”.
The applicant was interviewed by a delegate in the Department of Immigration on 16 July 2010. She attended with her agent.
The delegate made a decision on 13 August 2010, refusing a visa. The delegate thought that the applicant appeared unable to express any political opinions in the course of her interview, and that this was inconsistent with her claim that she was regarded as a person with strong political opinions which she had expressed to the police. The delegate also thought that elements in her case had been exaggerated. The delegate noted that she had been able to depart China using her own passport on a visa issued to her in that passport, and was not satisfied that she had been truthful. The delegate thought that her past persecution in relation to family planning had not been persecution which was subject to the Convention. The delegate noted that the applicant had applied for protection after a long delay after arriving in Australia, and rejected all her claims as not credible.
The applicant appealed to the Tribunal, assisted by her agent. She attended a hearing of the Tribunal on 30 September 2010 with her son. Her agent was not in attendance. A transcript of the hearing is not in evidence, and I rely upon a description given by the Tribunal which is quite detailed. The hearing appears to have lasted more than three hours.
In the course of the hearing, the Tribunal asked the applicant some questions about how her student guardian visa application had been prepared and signed, and it showed her parts of that document. The applicant denied that it had been signed by her and said that it had been prepared by an agent.
The Tribunal’s description of the hearing shows that on several occasions, it repeated the same question when non‑responsive answers were given. In addition, on several occasions, the Tribunal put to the applicant that she was able to recite parts of the history set out in the visa application, but appeared unable to answer questions exploring details or matters not covered by the visa statement. The applicant did, however, give some additional evidence about the events concerning the protest and subsequent events. It appears to me that the Tribunal put to the applicant all the matters which subsequently provided its reasons for its decision.
The Tribunal referred briefly to evidence given by the applicant’s son, in particular concerning the family’s decision to send him abroad for education.
The Tribunal made a decision on 6 October 2010, affirming the delegate’s decision. In its “Findings and Reasons”, it explained a general conclusion:
55.The Tribunal found the applicant not to be a credible witness. The applicant’s oral evidence to the Tribunal was given in a manner that suggested that she had memorised her evidence and her statement and was not recounting her experience. The applicant was vague or evasive with respect to matters not contained in her statement, and on most occasions the Tribunal was required to repeat the questions many times before eliciting a meaningful response from the applicant. Her responses to many of the questions posed to her consisted of the applicant reciting her written statement almost verbatim. The applicant claims that due to her limited education she had difficulty writing down her claims however she was represented by an experienced migration agent and had ample time to ensure that her application was complete and accurate. Even making generous allowances for the applicant’s limited education and nervousness, the Tribunal finds the applicant to have been untruthful and manipulative and that her recitation of evidence was not a reflection of events she had personally experienced.
The Tribunal said that, additionally, it found aspects of her claims implausible and gave three illustrations. It also illustrated areas where the applicant’s answers had been “very vague and unresponsive” and where she had been “unable to provide specific information”. The Tribunal said that some of her responses suggested that her claims “were prepared by a third party and do not reflect her personal experience”.
The Tribunal said that it was “concerned about the very significant delay in the applicant’s application for the protection visa”, and referred to the applicant’s explanations for this. However, the Tribunal thought that her conduct suggested that she did not have a fear of persecution, and that her description of events in China had not been truthful.
The Tribunal said:
59.For these reasons, the Tribunal has formed the view that the applicant completely lacks credibility and that she has not been truthful in her evidence. The Tribunal has considered the evidence of the applicant’s son but it does not override these concerns.
The Tribunal then addressed each element in the applicant’s claimed history, and was prepared to accept no more than there had been a proposal to build a road in the applicant’s village and that it was not built. It did not accept that the applicant had been involved in any activities leading to adverse interest by the authorities concerning this. It therefore specifically rejected each of the elements in her refugee claims concerning the protest incident and her claimed detention.
The Tribunal addressed the applicant’s evidence concerning her breaches of the one child policy and the harms she suffered as a result. It found nothing to suggest that her breaches of family planning laws remained of concern to Chinese officials, and it found that there was no real chance that she would be persecuted as a result of breaching the family planning laws if she were to return to China.
The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed, nor whether she qualifies for a protection visa or other permission to stay in Australia.
The applicant’s grounds are set out in her application:
1.The Tribunal’s decision has included a reasonable apprehension of bias; and the Tribunal made its finding based on its unwarranted assumption.
2.The Tribunal failed to comply with her obligation under s.424A(1) of the Act.
3.The Tribunal has failed to comply with her obligations under s.425 of the Act.
These three grounds have been explained in a written submission which was recently filed.
The written arguments supporting Grounds 1 and 3 were repeated by the applicant to me today. In effect, she alleges that the Tribunal considered the applicant’s evidence with a closed mind. In particular, it blindly applied a preconceived assumption that an uneducated person from rural China would not be regarded as a leader of a protest and a political activist. The submission also suggested that bias, or a failure to give the applicant a proper opportunity to give her evidence under s.425 of the Migration Act 1958 (Cth), was manifest by behaviour by the Tribunal and the interpreter, who “laughed at her”.
However, I am not persuaded on the evidence that this complaint has been established. I am prepared to assume that the applicant did find the hearing upsetting, and believes that the Tribunal behaved in an unsympathetic manner. I can find no evidence that at any stage the Tribunal “laughed at the applicant”. In my opinion, the informed bystander whose perspective I am obliged to consider under principles of apprehended bias (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425), would have understood the proper purposes of the aspects of the hearing which might appear from the Tribunal’s description to have possibly upset the applicant, and would not have apprehended that they might show a closed mind or a refusal genuinely to consider the merits of the applicant’s case.
It was the duty of the Tribunal to explore at the hearing whether the applicant was a person who would have been regarded as a leader of a village protest, and who would have articulated criticisms of the government which would lead her to be regarded as a leader of a protest, so as to incur the penalties which the applicant claimed to have suffered. In my opinion, the Tribunal’s repeated questioning of the applicant about events, and its concern that she may have memorised a claim prepared by someone else rather than have recounted actual experience, was understandable and not inappropriate. In the absence of additional evidence by way of a transcript or sound recording, I would not find in the Tribunal’s own description of the hearing any evidence supporting the allegations made in Grounds 1 and 3.
In so far as the argument in the written submission contends that evidence of a closed mind appears from the Tribunal’s reasoning, there is no substance to that contention, in my opinion. On my reading of the reasons of the Tribunal, it did not proceed from a general assumption that non‑educated people would not be regarded as political activists in China. Rather, it examined the particular circumstances of the applicant, so as to consider the plausibility of the particular events she claimed by a close assessment of the evidence given by the applicant.
The argument of bias presented in the written submission essentially fails because it relies only upon the adverse conclusions ultimately arrived at by the Tribunal, and does not point to any conduct by the Tribunal preceding the making of its decision (see Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [18], and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48, (2010) 273 ALR 122 at [44]).
In relation to Ground 2, the applicant’s written submission argues in relation to s.424A:
Particulars
The Tribunal has considered the information, which my son has given at the Tribunal’s hearing in relation to delay of lodgement for a protection application, as a reason, or a part of the reason, for affirming the decision that is under review. But, the Tribunal failed to give me the particulars of the information; and the Tribunal failed to ensure me to understand why it is relevant to the review; and the Tribunal failed to invite me to comment on it.
There have been some differences of opinion in the Federal Court whether reliance upon information given by a witness to the Tribunal may become subject to obligations under s.424A(1). So far as I am aware, the most recent decision, which is for that reason binding on me, holds that those obligations do arise (see the judgment of Rares J in SZEWL v Minister for Immigration & Citizenship (2009) 174 FCR 498 at [44]).
However, the argument presented in the applicant’s written submission fails, in my opinion, for the foundation reason that the Tribunal’s reasons show that it did not rely upon any information given to it in the evidence of the son, in particular, in relation to the applicant’s delays in making a protection visa application. As I have explained above, it was the applicant’s own evidence about this which the Tribunal considered and assessed adversely.
Counsel for the Minister drew the Court’s attention to information taken from the applicant’s student guardian visa application, which might have become subject to obligations under s.424A(1). The obligations would arise, if I were able to conclude in the language of s.424A(1), that it was information which “the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
However, I am not satisfied that the Tribunal ever did so consider the information. Although the information was discussed with the applicant at the hearing, the Tribunal’s findings and reasons did not rely upon that information at all. This is a situation where, as the High Court found in Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at [24]‑[26], the thought processes revealed by the Tribunal’s statement of reasons suggest that it did not consider that the information came within the terms of s.424A(1). The nature of the information, and the applicant’s responses to it when it was discussed with her at the hearing, do not themselves suggest that it necessarily would have satisfied the description in s.424A(1) (cf. Khan v Minister for Immigration & Citizenship [2011] FCAFC 21). I am therefore unable to identify any information which the Tribunal failed to put to the applicant for written comment, contrary to s.424A(1).
I note that before the hearing, the Tribunal did invite written comment on a number of inconsistencies in the evidence, and received a response. That may have been an appropriate procedure, but it was not required by s.424A(1).
For the above reasons, I have been unable to find any jurisdictional error as contended by the applicant or otherwise. I must therefore dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 8 March 2011