SZOZL v Minister for Immigration
[2011] FMCA 273
•20 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOZL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 273 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – principal applicant claiming religious persecution in China – applicants not believed – no arguable case of jurisdictional error – application dismissed. PRACTICE AND PROCEDURE – Referral of decision to the OMARA. |
| Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425 |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SZBYR v Minister for Immigration (2007) 235 ALR 609 VAF v Minister of Immigration (2004) 206 ALR 471; [2004] FCAFC 123 |
| First Applicant: | SZOZL |
| Second Applicant: | SZOZM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 216 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 20 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2011 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Mr M Alderton Sparke Helmore |
INTERLOCUTORY ORDERS
The Court directs that a copy of this decision be provided to the OMARA for whatever action it considers appropriate.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first and second applicants are 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).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 216 of 2011
| SZOZL |
First Applicant
SZOZM
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 13 January 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants a protection visa. There are two applicants, who I understand are husband and wife. The protection visa claims were made by the female applicant; the male applicant claimed as a member of her family. References in this decision to “the applicant” are references to the principal or first applicant.
The applicants are from China and had made claims of religious persecution. The following statement of background facts relating to the applicant’s protection visa claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 12 April 2011.
Both applicants are citizens of the People’s Republic of China (the PRC) who first arrived in Australia on Subclass 457 (Business long stay) visas on 23 November 2006. The applicant departed Australia on 23 December 2009 and returned on 19 February 2010.
On 15 June 2010, the applicants applied for protection visas: court book, (“CB”) 1-30. They appointed a migration agent (Ms Weiming Qian) to assist them in connection with that application: CB 31-34. In a typed statement accompanying the protection visa application (CB 39-42), the applicant claimed that she and her family were members of an underground family church in the PRC. After arriving in Australia the applicant claimed she attended a church in Sydney and sent Christian materials back home to her family. Her parents were subsequently arrested, detained and tortured until they confessed that they had received the materials from the applicant. The applicant’s parents were released after her brother paid a fine but they were told by the authorities that the applicant was required to return to the PRC for questioning and a summons was issued against her.
The delegate
The applicant was invited to (CB 49-51) and attended an interview before the Minister’s delegate on 13 September 2010: CB 88.6. She provided documents to the delegate and the delegate also had access to documents provided to the Department of Immigration and Citizenship (“the Department”) in connection with the applicants’ Business visa applications: CB 52-76; 83.5, 89.1.
In a decision dated 15 September 2010 the delegate refused the protection visa application: CB 82-90. The delegate accepted that the applicant was Christian and had attended house church services in PRC with her parents: CB 88.9. The delegate also accepted that the applicant had attended an Anglican church in Australia, had received Christian reading material and, whilst she retained some doubts, was also prepared to accept that the applicant had posted some materials to China: CB 89.5. The delegate found on the basis of independent information, however, that there was little support for the claim that attendees of house churches in the applicant’s province of Fujian were persecuted. Instead, the country information revealed that Fujian province was one of the most tolerant regions towards Christianity in China: CB 89.6. The country information also did not support the applicant’s claims that given her level of involvement and influence in the church in China she would be persecuted for importing (rather than publishing) religious materials: CB 89.7. The delegate found that the applicant had not demonstrated that she had an organisation or influential role in her church and concluded therefore that she would not face persecution in the reasonably foreseeable future for this or any other Convention-related reason: CB 89.8.
The Tribunal proceedings
The applicants filed an application for review with the Tribunal on 11 October 2010: CB 91-94. They again appointed the same agent to assist them in connection with the review before the Tribunal: CB 92, 102.
On 29 October 2010 the Tribunal wrote to the applicants inviting them to a hearing before the Tribunal on 10 December 2010: CB 99-101. Both applicants accepted the invitation (CB 103) and attended the scheduled hearing: CB 105-107. The agent declined to attend, however the applicants then appointed a new agent who did attend the hearing over two days subsequently conducted by the Tribunal: CB 105, 118 and 144 at [86]. Prior to the hearing the Tribunal contacted the applicant’s representative requesting that the applicant bring examples of the material from the church she claimed she sent to China: CB 104.
The second applicant husband did not make any separate refugee claims other than to advance concerns for his wife’s safety for the reasons she had indicated. He effectively applied as a dependent member of his wife’s family unit: CB 144, [81]-[83].
Documents were also provided to the Tribunal by the applicant (CB 108-113), which the Tribunal considered: CB 134, [45]-[47]; CB 139-140, [66], [69].
At the Tribunal hearing, the applicant gave evidence about the claims made in her protection visa application and added that her brother was arrested and beaten by the authorities in October 2010: CB 135, [49]. The applicant also claimed for the first time that she and her family were taken by the police to a ‘brainwash class’ in 2005: CB 137, [57]. The Tribunal questioned the applicant about why she had not previously mentioned this claim (CB 137, [58]), and later proceeded under s.424AA to put its concerns to the applicant in this regard and give her an opportunity to comment: CB 141, [70]. The Tribunal also raised a further concern with the applicant at the hearing: CB 141, [70]. It noted that she appeared to have given inconsistent evidence at the Departmental interview (CB 133, [41]) and at the Tribunal (CB 140, [69]) about how the summons asking her to return to China was issued. The identified gaps or inconsistencies in the applicant’s evidence were identified as being relevant to the Tribunal’s assessment of the credibility of the applicant’s claims and evidence: CB 141, [71].
The Tribunal also put a further concern to the applicant at the hearing relating to the timing of the lodgement of her protection visa application: CB 143, [78]. The relevant information consisted of the dates on the applicants’ passports as to when their Subclass 457 visas were due to expire and evidence on the Department’s file that the second applicant’s employment in Australia had ceased on 22 April 2010. The relevance of this information was attributed to the Tribunal’s concern that the applicants only applied for Protection visas because the basis for their continued stay in Australia was about to cease.
Whilst accepting some aspects of the applicant’s claims and evidence as credible and reliable, the Tribunal retained concerns about significant aspects of the applicant’s claims and evidence and her credibility: CB 149, [99]; CB 150, [104]. The Tribunal accepted that the applicant participated in small unregistered Christian church gatherings in China, was now a Christian and that her church participation in Australia was not engaged in for the sole purpose of strengthening her claim to be a refugee: CB 149, [100]-[101]. However, the Tribunal was not satisfied on the basis of adverse credibility findings that the applicant sent Christian materials from Australia to her family in China, that she or any of her family members had been arrested, detained or had received (or will receive in the future) adverse attention from the Chinese authorities: CB 153, [114]. Consequently, the Tribunal also found that the second applicant husband failed to satisfy s.36(2)(b) of the Migration Act 1958 (Cth) (“the Migration Act”): CB 153, [116].
Adverse credibility findings
The Tribunal’s adverse credibility findings were based on a number of factors. The Tribunal found that the applicant failed to provide a plausible explanation as to why she was prepared to leave her child with her parents in-law in China when she returned to Australia in February 2010 but was not prepared to do so for a few hours to enable her to attend church when she was in China: CB 150, [105].
The Tribunal was also concerned by the applicant’s evidence that she formed an intention in February 2010 (prior to her claims of becoming aware in March 2010 of her parents’ detention) to remain permanently in Australia with her son and was prepared to pay a significant price to enable this to happen: CB 150, [106].
The Tribunal noted further that when this concern was put to the applicant at the hearing she raised the new claim that she and her parents were taken to the police station in 2005 for “brainwashing” and provided no plausible explanation for not raising this claim previously: CB 151, [107].
The Tribunal also found that the applicant had not provided a plausible explanation as to why she took the risk of sending materials to her parents in China and carrying them with her when she returned in December 2009. It found her evidence in this regard was vague and unpersuasive: CB 151, [108].
The Tribunal also found that her claims were inconsistent with accepted independent country information which indicated that the Chinese authorities in Fujian take a liberal approach to unregistered Church gathering conducted on a small scale: CB 153, [111]. On the basis of this information, and the evidence of the applicant that she and her parents had only attended gatherings no larger than six or seven people, the Tribunal was not satisfied that the applicant’s parents were arrested or that the applicant or her family faced a real chance of future persecution: CB 153, [111].
Finally, the Tribunal found that its concerns regarding the applicant’s credibility were compounded by her delay of over three and a half years in lodging a protection visa application after first arriving in Australia: CB 154, [113]. The Tribunal also found that the timing of this application was significant given that the applicants’ Subclass 457 visas were due to expire in November 2010 and the second applicant’s employment and sponsorship had ceased: CB 154, [113].
The present application
These proceedings began with a show cause application filed on 11 February 2011.
There are three grounds in the application:
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 grounds are in template form, which are common to those applications where applicants have been or are being assisted by the migration agent Weiming Qian of Good Fortune Company. The grounds are unparticularised. This Court and the Federal Court have expressed concern on a number of occasions about the difficulty confronting the Courts in circumstances where template grounds are used[1].
[1] SZOUS v Minister for Immigration & Anor [2011] FMCA 166, SZOHY v Minister for Immigration [2010] FCA 1267
In addition, professional legal advice can only be given by a qualified legal practitioner in good standing. While migration agents may provide some support and assistance to applicants before the courts, they are not entitled to perform the work of a legal practitioner unless they are one. The applicant told me that she is being assisted in the proceedings in this Court by Ms Jie Yu, registered migration agent number 0964563.
The court book, which I received as evidence, discloses a curious history of these applicants’ dealings with Ms Qian and Ms Yu as their migration agents. The court book discloses that the applicants provided a postal address to the Department and the Tribunal at PO Box 367 in Auburn. That is an address that has been provided by a very large number of applicants for protection visas, which was the subject of comment by me in SZOUS v Minister for Immigration& Anor [2011] FMCA 166.
The court book discloses that the applicant engaged Ms Qian to assist her, both before the Minister’s Department and before the Tribunal. On 25 October 2010, I gave judgment in the case of SZOOI v Ministerfor Immigration & Anor [2010] FMCA 816. In that case, I was critical of the conduct of Ms Qian, who was the agent for the applicant in that case, and directed that the transcript of the hearing before me and my decision and reasons be referred to the OMARA. The court book discloses that three days later, on 28 October 2010, the first applicant appointed a new migration agent, Ms Yu (CB 102). This occurred, apparently, immediately before the Tribunal issued its first hearing invitation to the applicants (CB 100). The Response to the Hearing Invitation, apparently completed on 29 October, stated that the former agent, Ms Qian, would not attend the Tribunal hearing (CB 103). On the same day, the new agent, Ms Yu, signed the Appointment of Representative form (CB 102). Ms Yu did attend both hearings conducted by the Tribunal (CB 134 [44] and CB 144 [86].
Ms Yu is a registered migration agent and the OMARA website discloses that she is a sole trader with the business address of 14/261 King Georges Road in Roselands, 2196, and a postal address at the same address. Curiously, in the Appointment of Representative form signed by the first applicant and Ms Yu, Ms Jie Yu provided a postal address at PO Box 1519 Auburn, 1835. That is very close to the postal address used by Ms Qian. Even more curiously, Ms Yu, in the same form, identified the same phone and fax numbers as used by Ms Qian. This raises a concern that, in response to my judgment in SZOOI, Ms Qian elected to give the appearance of withdrawing from the record in this case while still being involved behind the scenes. In light of that concern, I will direct that a copy of this judgment be provided to the OMARA for such action as it considers appropriate.
In addition to the court book, I received as evidence the affidavit of Susan Archer, made on 14 February 2011, to which is annexed a transcript of the Tribunal hearing prepared by Ms Archer. I received as a submission the applicant’s affidavit filed with her show cause application on 11 February 2011.
Consideration
The applicant was not in a position to make any legal submissions in support of her show cause application. She is dissatisfied with the Tribunal decision. She is, in particular, dissatisfied with the Tribunal’s findings in relation to religious freedom in Fujian Province in China. Her dissatisfaction, however, simply reflects disagreement with the Tribunal’s fact-finding.
In my view, the Tribunal’s decision discloses a careful and thorough analysis of the applicants’ claims by the presiding member. I am satisfied that all of the applicants’ claims were properly considered by the Tribunal. The applicant was properly invited to a hearing, pursuant to s.425 of the Migration Act. The transcript of the Tribunal hearing satisfies me that the hearing opportunity was a fair one. I see no legal error in the approach taken by the Tribunal in this case. The Tribunal appears to have understood its legal obligations under the Migration Act and to have performed them.
The Tribunal had a thorough understanding of the issues bearing upon the application before it and the principles relevant to the determination of refugee status. The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to her claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[2] The Tribunal’s conclusions that some of the applicant’s claims and evidence were not credible are findings of fact par excellence.[3] The Tribunal’s findings were open to it for the reasons provided, and the Court cannot review the merits of the Tribunal’s decision.[4] In respect of the grounds in the show cause application, I agree with and adopt, for the purposes of this judgment, the Minister’s written submissions.
[2] Minister for v Wu Shan Liang (1996) 185 CLR 259 at 281-282
[3] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
[4] Minister for Immigration v Wu Shang Liang op. cit., at 272
Ground 1
The assessment of the applicants’ credibility and evidence is a matter for the Tribunal to determine par excellence.[5] The weight to be given to the applicants’ claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[6] In any event, there was a comprehensive basis identified for the Tribunal’s doubts about the applicant’s credibility and claims: CB 150-152, [104]-[111].
[5] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
[6] Minister for Immigration v Wu Shan Liang op. cit., at 281-282
Ground 2
Again, no particulars are provided in this ground of review and the applicants have made no attempt to identify the mandatory procedures the Tribunal is alleged to have failed to observe. No error is apparent in the procedures adopted by the Tribunal. It validly invited the applicants to attend a hearing (CB 114-117), which they both accepted: CB 103. Both applicants then attended the hearing, which lasted three and a half hours: CB 105-107. That hearing was adjourned to 31 December 2010 when further issues of concern were put to the applicants. The Tribunal ensured that at the hearing the applicant was put on notice of the determinative issues on the review and was given an opportunity to comment on them: CB 143, [78]; CB 141, [70], CB 141, [71] and CB 145-147 [88]-[94]. As such, no breach of s.425 of the Migration Act is apparent.[7]
[7] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [33]-[35]
In relation to s.424A, the dates contained in the applicants’ passports and the inconsistencies in the first applicant’s evidence were not strictly required to be put to the applicants because they did not constitute “information” for the purposes of s.424A(1). Rather, they were identified inconsistencies or the Tribunal’s subjective appraisals, thought processes or determinations and were the basis for some of the Tribunal’s conclusions about the evidence. This does not constitute “information” for the purposes of s.424A.[8] There was no error, however, in the Tribunal adopting a cautious approach in this regard.[9]
[8] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18], citing with approval: VAF v Minister of Immigration (2004) 206 ALR 471 at 477; [2004] FCAFC 123 per Finn and Stone JJ
[9] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]
In any event, the Tribunal complied with the procedural requirements in s.424AA. It thoroughly explained how the information was relevant to the review and the consequences of the information being relied upon by the Tribunal as required by s.424AA(b)(i). The Tribunal advised the applicant that she could provide her comments orally or in writing and request an adjournment of the hearing as required by s.424AA(b)(iii): CB 141, [71]; CB 143, [78]. The applicant appears to have elected to respond immediately and orally to some of this information (CB 143, [78]) and also requested and was granted a short adjournment before responding: CB 141, [71]. The Tribunal took into account the applicant’s explanations and responses but rejected them on the basis that they were unpersuasive and not plausible: CB 151, [107]; CB 152, [110].
The applicants have not articulated any concern in this regard in their application for judicial review and there is no evidence (such as a transcript) to indicate that the Tribunal did not comply with its obligations under s.424AA. Accordingly, and pursuant to s.424A(2A), no breach of s.424A is apparent.
As there is no basis to find that the Tribunal denied the applicants procedural fairness, this ground cannot succeed.
Ground 3
The Tribunal comprehensively considered the applicants’ claims and evidence (CB 128-147) and also independent country information about China relevant to the applicant’s claims: CB 147-148. As noted, the Tribunal was not required to accept the applicant’s claims and the weight to be given to the evidence was a matter entirely for the Tribunal to determine.[10] In substance, this ground is an impermissible invitation to the Court to review the Tribunal’s factual findings.
[10] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282
The applicant in this case has failed to demonstrate any arguable case of jurisdictional error on the part of the Tribunal. In the circumstances, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant expressed opposition to a costs order in the amount prescribed under the Court Rules. While the applicant would apparently seek a costs order in a lesser amount, I see no reason to depart from the Court scale. I will order that the first and second applicants 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 certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 10 May 2011
2
11
1