SZOUS v Minister for Immigration & Anor
[2011] FMCA 166
•16 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOUS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 166 |
| MIGRATION – Review of Refugee Review Tribunal decision – dismissal of application on account of the applicant’s non-appearance. PRACTICE AND PROCEDURE – Referral of judgment to OMARA in relation to the conduct of the applicant’s migration agent. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36 |
| SZOHY v Minister for Immigration [2010] FCA 1267 SZOPW v Minister for Immigration & Anor [2011] FMCA 48 |
| Applicant: | SZOUS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2569 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 16 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2011 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr R Baird Clayton Utz |
INTERLOCUTORY ORDERS
A copy of this judgment is to be provided to the Office of the Migration Agents Registration Authority.
The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
The Minister is to arrange to have the orders made today entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2569 of 2010
| SZOUS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”), made on 29 October 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the application are conveniently summarised in the Minister’s written submissions, filed on 10 March 2011.
The applicant is a citizen of China.[1] She arrived in Australia on 19 May 2010[2] and applied for a protection visa on 21 May 2010 under s.36 of the Migration Act 1958 (Cth) (“the Migration Act”).[3]
[1] Court Book (CB) at 4.
[2] CB at 18.
[3] CB at 1.
In a written statement in support of her application,[4] the applicant claimed that:
a)from July 1996, she and her husband ran a seafood shop in China;
b)in February 2009, the Fuqing City government sought to demolish the applicant's seafood shop with compensation payable to the applicant. The applicant would not agree to the proposed demolition on the basis that the proposed compensation was inadequate. Several other shop owners adopted the same position as the applicant;
c)she, her husband and others protested the demolition of her shop which led to physical conflict. The applicant's husband was beaten with a baton and the applicant also physically assaulted. The shop was demolished, despite the applicant's protests;
d)she was detained for seven days for disturbing the social order and malicious injury to police;
e)a couple of months later the applicant and her husband gathered 15 others and petitioned for just compensation. As a result, the applicant's husband was sentenced to a labour camp for three months for organising an illegal demonstration and disturbing the social order and the applicant and others were detained for 15 days for their participation in the demonstration and she was required to report her activities to the police on a weekly basis; and
f)she felt that she was followed and became fearful that she would be punished, tortured and placed in a mental institution for disagreeing with the Chinese government. She escaped China accordingly using a fake passport and fears reprisal if she returns.
[4] CB at 22-23.
The applicant was invited to attend an interview with a delegate on 23 July 2010.[5]
[5] CB at 54.
On 12 August 2010 the delegate rejected the applicant’s protection visa application and found that the applicant had a propensity to mislead the Department, that her claims could not be accepted as factually accurate and that she could not be considered a witness of truth.[6]
[6] CB at 80.
On 10 September 2010 the applicant lodged an application for review with the Tribunal.[7] She was invited to appear at a Tribunal hearing[8] which she accepted and attended on 27 October 2010.
[7] CB at 82-85.
[8] CB at 89.
At the commencement of the hearing the applicant submitted to the Tribunal her husband's arrest warrant, her detention warrants, her release notice and a statement from an employee corroborating her claims.[9]
[9] CB at 94-103.
Tribunal's decision
The Tribunal had regard to the Department's file relating to the applicant, the applicant's evidence submitted to the Tribunal and evidence from other sources.[10]
[10] CB at 126.
The Tribunal found the applicant to be completely lacking in credibility. It found that:
a)the applicant's evidence was vague and often evasive; [11]
b)she had difficulty with respect to evidence not contained in her written claims which she had memorised;[12]
c)she had little knowledge with respect to matters about which she could be expected to have greater knowledge;[13]
d)there were 11 separate instances of significant inconsistencies and deficiencies in her oral evidence; [14] and
e)she has been untruthful in her description of events in China. [15]
[11] CB at 127, paragraph [64].
[12] Ibid.
[13] Ibid.
[14] CB at 127-129, paragraph [66].
[15] CB at 130, paragraph [67].
The Tribunal commented that in the circumstances of this case, where the applicant could have easily provided documentary evidence to substantiate her claims - such as photographs of the destroyed shop, evidence of business ownership and evidence of licence cancellation - it was concerned about the lack of documentary evidence submitted and this led it to question the truthfulness of her claims.[16]
[16] CB at 127, paragraph [65].
The Tribunal considered the arrest warrants and release documents provided by the applicant at the hearing and found that the delay of five months (from the time of visa application to the date of provision to the Tribunal) in providing these documents caused it to question their provenance, as well as the applicant's credibility.[17] In respect of these documents, it stated that:
The Tribunal has found the applicant not to be a witness of credibility. The country information cited above indicates that fraudulent official documents including arrest and release certificates, are readily available in China. The Tribunal has formed the view that the documents presented by the applicant are not genuine documents and that these were prepared solely for the purpose of her protection visa application. The Tribunal gives these documents no weight.[18]
[17] CB at 130, paragraph [69].
[18] CB at 130, paragraph [70].
In respect of the statement from the applicant's employee, the Tribunal found that:
That evidence has not been tested. The writer claims that the applicant would be arrested if she were to return to China. She does not explain the source of that knowledge or the basis on which that claim is made. The Tribunal does not consider that testimony to be probative evidence of the applicant's claims. The Tribunal found the applicant not to be a witness of credibility. The Tribunal gives it no weight.[19]
[19] CB at 130, paragraph [71].
The Tribunal considered the applicant's invitation to carry out investigations in the applicant's village to prove that her property had been destroyed but determined not to do so not only because such investigations are not readily apparent and would not be readily available to the Tribunal, but also because even if it were established that the applicant's home and business were destroyed, this would not necessarily confirm the applicant's claims.[20]
[20] CB at 130, paragraph [72].
After considering the entirety of the applicant's claims singularly and cumulatively, the Tribunal rejected them and accordingly found that the applicant would not be persecuted in China because of her political opinion, her religion or any other convention reason if she were to return to China now or in the reasonably foreseeable future. The Tribunal affirmed the delegate's decision accordingly.
The present proceedings began with a show cause application filed on 29 November 2010. The grounds in the application are in template form, with which the Court is very familiar. I incorporate those grounds in this judgment:
1. RRT considered my case unfairly. They doubt my claim without substantive evidence.
2. Procedural Fairness has been denied by RRT.
3. RRT did not consider my situation in China. I will be put in jail if I go back.
The matter came before me for a first court date directions hearing on 31 January 2011. The applicant did not appear when the matter was called and procedural orders were made in her absence. However, she did attend after I had left the bench and the orders made were explained to her and a copy provided to her. On 10 March 2011, the Minister’s solicitors wrote to the applicant at her nominated address for service by express post, providing the Minister’s submissions and a list of authorities, and stating[21]:
We note that this matter is listed for show cause hearing on 16 March 2011 at 10.15 am in the Federal Magistrates Court, John Maddison Tower, 88 Goulburn Street, Sydney. If you do not attend the hearing, either in person or by legal representative, we are instructed to seek to have your matter dismissed with costs.
[21] Exhibit R1.
The letter was not returned and no response was received. When the matter was called this morning, there was no appearance by or on behalf of the applicant. There is no explanation for the applicant’s non‑appearance. The matter has been called twice. In view of the circumstances, the Minister seeks dismissal of the application in default of appearance by the applicant. That outcome is appropriate, but I also wish to make some observations on the present application and its relationship to a significant number of other applications which have been before this Court.
The applicant’s protection visa application[22] was prepared with the assistance of a registered migration agent, Ms Weiming Qian, who provided an address of PO Box 1510, Auburn, New South Wales 1835[23]. That application was rejected by the Minister’s delegate and the applicant sought review by the Tribunal. The review application is set out from CB 82. The applicant ostensibly prepared that review application herself, although it is apparent that she may have had some assistance in preparing it because someone has placed an X in the space for the applicant’s signature at CB 85.
[22] CB at 1.
[23] CB at 8.
It is also noteworthy that the applicant provides an address for correspondence of PO Box 367, Auburn, New South Wales, 2144. I do not believe that that is the applicant’s own postal address. Before coming on the bench this morning, my staff identified 55 other matters which have been before this Court, in which that postal address was used by applicants[24]. Another unifying feature of these applications is the fact that, generally, the grounds supporting the protection application are found to have been fabricated. A further unifying feature is that in many, if not all of these cases, Ms Qian has at some stage been involved. In the short time available before I came on the bench, my staff identified four of the 55 matters where this postal address was used, where Ms Qian was mentioned in the Court’s judgment[25]. My staff have identified 12 other decisions of this Court in which Ms Qian has been mentioned. In those matters, several post office boxes in Auburn have been used as addresses for service by the applicants[26].
[24] SZJMG v Minister for Immigration & Anor SYG3103/07; SZJYI v Minister for Immigration & Anor SYG3916/06; SZKFO v Minister for Immigration & Anor SYG516/07; SZKNO v Minister for Immigration & Anor SYG1266/07; SZLEY v Minister for Immigration & Anor SYG2527/07; SZLMH v Minister for Immigration & Anor SYG3185/07; SZLNQ v Minister for Immigration & Anor SYG3275/07; SZLUM v Minister for Immigration & Anor SYG3923/07; SZLUO v Minister for Immigration & Anor SYG102/09; SZLVI v Minister for Immigration & Anor SYG3980/07; SZLVM v Minister for Immigration & Anor SYG3984/07; SZLVP v Minister for Immigration & Anor SYG3988/07; SZLXS v Minister for Immigration & Anor SYG216/08; SZLXT v Minister for Immigration & Anor SYG217/08; SZLYR v Minister for Immigration & Anor SYG320/08; SZMEN v Minister for Immigration & Anor SYG1023/08; SZOPI v Minister for Immigration & Anor SYG1932/10; SZOPA v Minister for Immigration & Anor SYG1895/10; SZOOZ v Minister for Immigration & Anor SYG1894/10; SZNMK v Minister for Immigration & Anor SYG908/09;
[25] SZLUM v Minister for Immigration & Anor [2008] FMCA 1073; SZMKL v Minister for Immigration & Anor [2008] FMCA 1463; SZMHB v Minister for Immigration & Anor [2008] FMCA 1062; SZMHA v Minister for Immigration & Anor [2008] FMCA 1535.
[26] SZMHA v Minister for Immigration & Anor SYG1271/08; SZMHB v Minister for Immigration & Anor SYG1272/08; SZMNP v Minister for Immigration & Anor SYG1837/08; SZOGZ v Minister for Immigration & Anor SYG658/10; SZMQQ v Minister for Immigration & Anor SYG700/09; SZNHB v Minister for Immigration & Anor SYG463/09; SZMKL v Minister for Immigration & Anor SYG1550/08; SZMGJ v Minister for Immigration & Anor SYG1226/08; SZMZT v Minister for Immigration & Anor SYG3152/08; SZLUM v Minister for Immigration & Anor SYG3923/07; SZOQG v Minister for Immigration & Anor SYG2079/10; SZOOX v Minister for Immigration & Anor SYG1835/10;
In a recent judgment[27], I drew attention to what I described as a sophisticated people smuggling operation from Fujian Province in China to Australia, in which persons are sheparded between China and Australia by criminals known as “snakeheads”. There is an Australian end to this people smuggling operation which, in my view, involves either unregistered migration agents operating illegally, or some registered migration agents.
[27] SZOPW v Minister for Immigration & Anor [2011] FMCA 48.
This operation is widespread and relatively sophisticated. The fact that the operation appears to proceed unchecked, both in China and in Australia, should be a matter for concern. Such a process leads the determination of refugee status into disrepute. It is my belief that substantial sums of money are involved in this corruption of the process for the determination of refugee status. It needs to be dealt with. I have perused the decision of the Tribunal and note the numerous references in that decision to the applicant’s migration agent, who is not named in the decision. It appears from reading those reasons that the applicant was telling the Tribunal that she had been assisted by a migration agent, both before the Department and before the Tribunal although in the latter case, the involvement of the agent was not disclosed.
I have no doubt that the applicant received assistance in the preparation of the application to this Court. The template grounds used by the applicant are of no assistance to her, and the frequent use of such template grounds are a matter causing concern both to this Court and the Federal Court. That concern has been expressed trenchantly by the Federal Court last year[28]. It is inappropriate that applicants seeking protection in this country should be demonised because they used the services of unscrupulous people. People seeking protection are often in a very vulnerable position, and may be preyed on by others seeking to profit from their plight. The claims for protection must be dealt with on their merits, and the Tribunal did so in this case.
[28] SZOHY v Minister for Immigration [2010] FCA 1267.
However, the corruption of the process for seeking protection and having those claims dealt with brings the entire system into disrepute and the time has come for a more concerted effort by the Minister and his Department and the Office of the Migration Agents Registration Authority to deal with the serious issues of concern. I will direct that a copy of this judgment be provided to the Office of the Migration Agents Registration Authority. It is otherwise a matter for the Minister’s legal advisers to consider what action may be appropriate, in the light of these reasons.
I will order that the application be dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application, having been dismissed, the Minister seeks an order for costs in accordance with the Court scale. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I will further direct that the Minister arrange to have the orders made today entered, and that the Minister cause a sealed copy of those orders to be served by ordinary prepaid post on the applicant at her last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 18 March 2011
SZNKI v Minister for Immigration & Anor SYG796/09; SZNBE v Minister for Immigration & Anor SYG3254/08; SZMYZ v Minister for Immigration & Anor SYG3092/08; SZMTC v Minister for Immigration & Anor SYG2388/08; SZMKM v Minister for Immigration & Anor SYG1555/08; SZMKL v Minister for Immigration & Anor SYG1550/08; SZMJV v Minister for Immigration & Anor SYG1517/08; SZMJA v Minister for Immigration & Anor SYG1442/08; SZMHH v Minister for Immigration & Anor SYG1288/08; SZMHB v Minister for Immigration & Anor SYG1272/08; SZMHA v Minister for Immigration & Anor SYG1271/08; SZMFE v Minister for Immigration & Anor SYG1108/08; SZGYM v Minister for Immigration & Anor SYG949/08; SZMOG v Minister for Immigration & Anor SYG1931/08; SZNRB v Minister for Immigration & Anor SYG1384/09; SZOAL v Minister for Immigration & Anor SYG2783/09; SZHAX v Minister for Immigration & Anor SYG2420/05; SZHXH v Minister for Immigration & Anor SYG868/07; SZLHH v Minister for Immigration & Anor SYG2787/07; SZLHQ v Minister for Immigration & Anor SYG2818/07; SZLIN v Minister for Immigration & Anor SYG2900/07; SZLIY v Minister for Immigration & Anor SYG2923/07; SZLPP v Minister for Immigration & Anor SYG3453/07; SZLUI v Minister for Immigration & Anor SYG524/09; SZOFG v Minister for Immigration & Anor SYG504/10; SZOPL v Minister for Immigration & Anor SYG1960/10; SZOQJ v Minister for Immigration & Anor SYG2088/10; SZOQK & Anor v Minister for Immigration & Anor SYG2095/10; SZOTL v Minister for Immigration & Anor SYG2405/10; SZOUT v Minister for Immigration & Anor SYG2570/10; SZOVH v Minister for Immigration & Anor SYG2627/10; SZOWJ v Minister for Immigration & Anor SYG2740/10; SZOXO v Minister for Immigration & Anor SYG23/11; SZLDU v Minister for Immigration & Anor SYG2435/07; SZGYL v Minister for Immigration & Anor SYG2161/08.
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