SZOWN v Minister for Immigration - [2011] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 392

MIGRATION – RRT decision – Chinese applicant claiming fear of forced sterilisation – disbelieved by Tribunal – contradiction found in document submitted by applicant – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A(1), 424A(3)(b)

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1, (2011) 273 ALR 22

Applicant:

SZOWN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2751 of 2010

Judgment of:

Smith FM

Hearing date:

23 May 2011

Delivered at:

Sydney

Delivered on:

23 May 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2751 of 2010

SZOWN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a visitor’s visa in April 2010. On 28 April 2010 he lodged a protection visa application. It attached a statement containing a history upon which he claimed to fear persecution if he returned to his country of nationality, the People’s Republic of China.
He claimed that he and his wife had two children, born in 1992 and 1997. In July 2009 his wife became pregnant with a third child, but the local family planning office required her to undergo an abortion in her seventh month of pregnancy. The applicant claimed that “she had bled heavily during the operation and only the emergency treatment had saved her life”.
He claimed that on 25 January 2010, the family planning office issued a notice requiring the applicant himself to be taken to the hospital for surgical sterilisation. He submitted a purported official document with a translation in those terms. The applicant was fearful of an operation, and felt that his only choice was “to flee to overseas”. On the day after he received the notice he fled to a cousin’s house in Beijing, and a friend arranged for him to obtain a visitor’s visa to Australia. The applicant claimed at interview to have hidden from the authorities until leaving for Australia. He claimed that he had no knowledge of the false representations upon which the visitor’s visa had been granted.
The delegate interviewed the applicant on 7 July 2010, and although having some “credibility concerns”, he accepted that “key events raised by the applicant did occur as claimed”. However, the delegate thought that as a result of the High Court’s judgment in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, the applicant’s fears of forced sterilisation were not covered by the Refugees Convention. The delegate concluded that he was not a person to whom Australia owed protection obligations.
The applicant appealed to the Tribunal. He attended a hearing on 13 October 2010. This lasted nearly three hours, including a break. The transcript is not in evidence, and I accept the Tribunal’s description of the hearing.
According to the Tribunal, it questioned him about his claims. This included putting to him an inconsistency, which it detected in the record of the applicant’s interview with the delegate, as to what he had been told by his wife on the telephone concerning whether local officials repeatedly attended at their home to look for him after he left for Beijing.
The Tribunal said:
35.The Tribunal asked why the family planning officials would not have taken steps at the same time as the abortion procedure to undertake sterilisation of his wife. The applicant stated it was because she lost a lot of blood when she had the abortion, so they ‘dared not’ go ahead with it. The Tribunal indicated the medical staff would have had to undertake some medical procedure to stem the bleeding, and thus could possibly have continued with the sterilisation. The applicant stated his wife needed hospital care, and in relation to the issue of why they did not conduct the sterilisation of his wife, it was because her condition was not strong enough for them to do so.
The applicant had given similar evidence at his interview with the delegate.
The Tribunal put to the applicant various pieces of country information, some of which might have appeared inconsistent with some aspects of the applicant’s evidence. It told him that it “had doubts about the document notifying of the sterilisation procedure”, and referred to country information “about the ease with which fraudulent documentation could be obtained in China”. The Tribunal also told him that it had concerns about how his visitor’s visa had been procured.
The Tribunal sent the applicant a letter subsequent to the hearing, inviting him to comment in writing on the inconsistency it had identified in the delegate’s interview. In response, the applicant repeated an explanation he had given the Tribunal. He also forwarded another copy of the purported notice concerning the compulsory surgical sterilisation of the applicant, and also a second official document with a translation, which had not previously been given to the Department or the Tribunal.
The translation of the second document indicated that it was a “certificate for medical diagnosis” from a hospital in China in relation to the applicant’s wife treatment in the maternity unit. It then continued:
Impression:The patient had undergone the operation of abortion and tubal ligation from 9:00 to 11:00 in the morning with relatively high blood loss and weak physical health.
Advice:Unfit to work for 30 days
Doctor:(signature)
Date of Issue: 15 January 2010
Medical Certificate Seal of People’s Hospital of [City]
The applicant made no comment in his covering letter as to how he was inviting the Tribunal to address that certificate.
The Tribunal made its decision on 26 November 2010. After setting out the applicant’s evidence and referring to family planning information concerning the province of Hebei, the Tribunal set out its “Findings and Reasons”.
The Tribunal noted the two documents submitted by the applicant “purportedly from official sources”, and found that the medical certificate concerning the applicant’s wife “fundamentally contradicts the applicant’s oral evidence of the circumstances which formed the critical basis or trigger for the authorities issuing him with a notice to undergo a vasectomy”. The Tribunal said it was not satisfied that the two documents submitted by him reflected his actual circumstances, and did not give them weight. It concluded, on the basis of the contradiction in the applicant’s evidence, that he had “manufactured his claims entirely relating to his and his wife’s dealings with the family planning authorities in January 2010”.
The Tribunal found the applicant was not a witness of truth, and therefore did not accept the truth of the foundation of his claims to fear harm if he returned to China. The Tribunal did not accept that he had come to the adverse attention of the authorities for any reason.
The Tribunal considered the applicant’s evidence about a fine imposed on the family following the birth of his second child in 1997, and a claimed detention of his wife at that time. The Tribunal had serious doubts about the latter claim, and it did not accept that he or his family had experienced any ongoing problems from the authorities after paying the fine relating to the birth of the second child.
Based on its findings, it was not satisfied that the applicant had a well‑founded fear of being persecuted on account of any Convention reasons should he return to China. It affirmed the delegate’s decision.
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 or his documents should be accepted, nor whether he should be given permission to stay in Australia.
The ground of the applicant’s application is:
In 2007, My wife became pregnant and both of us felt very happy. But the Chinese heartless officers insisted on bringing an end to the life of seven‑monthy old baby. My wife was so distressful that she lay in bed refusing to eat or drink. During the operation, she had bled heavily and only the emergency saved her life. The cruel CCP officers forced me for surgical sterilisation. I have provided the evidence to the Tribunal officer. Unfortunately the Tribunal officer didn’t take my claims and evidence into account according to S91R of the Migration Act.
This has not been explained in any subsequent amended application or written submission.
An affidavit by the applicant, prepared possibly with the assistance of the free legal advisor, refers to the medical certificate in relation to the wife, and argues:
3.The document does not say that my wife was sterilised on 15 January 2010. It says that she underwent an operation for abortion and sterilisation on 15 January 2010. As I told the case officer on 7 July 2010 (and as recorded at p 86 of the Court Book) my wife was so weak after the abortion surgery that she couldn’t undergo the planned sterilisation.
4.The Tribunal member did not give me an opportunity to correct his misunderstanding of the meaning of this document. Had I been given such an opportunity I would have provided the above explanation.
In relation to the ground contained in the application, there is no substance to the assertion that the Tribunal did not take the applicant’s evidence and claims into account, in the sense of considering what weight to give to them. The Tribunal, in my opinion, carefully identified all the applicant’s evidence, and weighed it when considering whether it should be believed and accepted as true.
The ground in the application therefore amounts to no more than an assertion by the applicant that the grounds of his refugee application should have been accepted. However, it is not the task of the Court to decide that.
I am unable to understand the reference to s.91R of the Migration Act 1958 (Cth), in the absence of a meaningful submission addressing the provisions of that section.
The applicant’s challenge to the Tribunal’s reasoning in relation to the medical certificate concerning his wife does not, in my opinion, raise any jurisdictional error. Contrary to the assertion in the affidavit, the document submitted to the Tribunal, in particular, the English translation of the Chinese document, plainly left it open to the Tribunal to conclude that it recorded that a completed operation on the wife had included tubal ligation. I am therefore not satisfied that, in fact, the Tribunal did proceed upon any “misunderstanding of the meaning of this document”.
I accept the Minister’s submission that the information found by the Tribunal in the document submitted by the applicant was not required to be put to him by way of a procedure under s.424A(1). This is clear from the terms of s.424A(3)(b). The Tribunal’s adverse reasoning in relation to that information was not itself ‘information’ within s.424A(1).
In my opinion, the Tribunal was not obliged to advise the applicant that it might rely in a very substantial way upon the contradiction between the terms of the document and the applicant’s previous evidence to itself and to the delegate. That contradiction, in my opinion, was manifest from the evidence, and the likelihood that the inconsistency might be relied up by the Tribunal when deciding the applicant’s general credibility could not be regarded as surprising. It had previously been clearly flagged to the applicant by the Tribunal that his credibility was in issue generally.
The relevant principles were recently explained by the High Court in Minister for Immigration & Citizenship v SZGUR [2011] HCA 1, (2011) 273 ALR 22 at [9]:
9Despite the language of the Tribunal’s letter, the existence of “inconsistencies” and “contradictions” in an applicant’s testimony and written submissions to the Tribunal is not “information” of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship, the term “information” in s 424A does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations”. Their Honours said:
“However broadly ‘information’ be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision‑maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision‑maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision‑maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond. But an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s 424A. …
(citations omitted)
In the present case, there was no “critical issue” which was “not apparent from the nature of the decision” to be made by the Tribunal as to the credibility of the applicant’s refugee claims. The conclusion which the Tribunal drew from the document and other evidence submitted by the applicant was, in my opinion, “obviously open on the known material”.
I therefore do not consider that any element of procedural unfairness attended the Tribunal’s making a decision on the reasoning set out in its statement of reasons, without further advising the applicant of the path of this reasoning.
The applicant today asserted that everything he had said at interview and his documents were true and genuine. He also contended that the fact that the Tribunal had not accepted his evidence showed that it had bias against him and Chinese people.
However, I am unable to detect any evidence suggesting either a specific or general bias, which might have caused the Tribunal not to weigh the applicant’s evidence with an open mind. In my opinion, the description of the hearing given by the Tribunal and its statement of reasons suggests, indeed, that it carefully and genuinely considered the applicant’s claims and evidence with an open mind. The fact that ultimately it did not believe his evidence shows, in my opinion, no more than it properly performed its statutory function to decide the matter before it.
For all the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 30 May 2011