SZQPB v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 197
•6 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQPB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 197 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error shown – application dismissed. |
| Migration Act 1958 (Cth), ss.424AA, 424A |
| Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | SZQPB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1938 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 6 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms B Nolan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1938 of 2011
| SZQPB |
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 December 2009 on a visa granted to her to visit a student son in Australia. The visa expired in March 2010, and the applicant remained in Australia. On 20 September 2010 she applied for a protection visa. She was assisted by a person who may or may not have been a migration agent, and she subsequently employed other migration agents to assist her in the proceedings.
A statement attached to the visa application said that her husband had established a business with a certain name which was involved in trade between China and Korea, “mainly involved in subsidiary agricultural products”. It acquired an office building in their city, but in May 2009 the government gave notice of an intention to acquire and demolish the office building for use in building a shopping centre. She claimed that she and her husband regarded the offered compensation as unreasonable and refused to accept it.
Although this issue was outstanding, the applicant came to Australia. She kept in contact with her husband by phone, and was told that the electricity and water had been shut down for the building, and that in January 2010 the developer, aided by policemen, pulled down the building and her husband was arrested in the course of an altercation. Her statement said: “my husband was locked in the cell for 7 days and beaten by the policemen many times”, before being released upon the payment of money.
Her statement said that her husband “also wrote letter to higher authorities”, and a lawyer refused to take the case. Her husband continued to write letters, and on a date in August 2010 he was taken to the police station and left with a summons notice “which mentioned our company had been tax evasion”. Her older son was also invited to attend “for further investigation”. She said: “they are trying to make a false charge against us and therefore stop us from appealing”. She said:
I am so afraid to go back China, family members all persuade me not to get back. My husband is still in the jail. If I get back, I will definitely receive the same treatment. My older son is also afraid to get back [to the city]). He is hiding in other city.
A number of documents were subsequently submitted to the Department with translations, including statements by the applicant’s husband and two employees of his business, purported official documents concerning the acquisition of the property, and a summons dated 27 August 2010 requiring the husband to attend on 27 September 2010 “for an interrogation”. There were also three photographs said to show injuries on the back of the applicant’s husband.
A delegate interviewed the applicant on 15 December 2010, and made a decision to refuse the visa application on 11 January 2011. The delegate said that she did not find the applicant to be a reliable witness, and referred to contradictory testimony about her husband’s business, in particular, compared to information presented in the applicant’s son’s student visa application. This showed her husband working for a company with a different business name and different type of business, and with different addresses and business licences. The delegate referred to other concerns and doubts about the genuineness of the documents recently presented. The delegate was not satisfied that the applicant genuinely feared persecution in China, and referred to her delay in seeking protection in Australia.
The applicant appealed to the Tribunal, where she was at times assisted by migration agents. She attended a hearing on 5 May 2011, which was adjourned as a result of a Mandarin interpreter suggesting that she did not fully understand the applicant’s Korean dialect.
The Tribunal was subsequently reconstituted, and the new member conducted a hearing on 15 July 2011. Interpreters in both the Korean and Mandarin languages were in attendance, and it seems that the applicant mostly communicated in Mandarin. The Tribunal member later expressed the opinion that the applicant had not shown any difficulties in communication.
During the hearing, the Tribunal member discussed her refugee claims with the applicant, and put to her various concerns, including the concerns about the inconsistent evidence found in the student visa application. In respect of that information and other concerns, the Tribunal purported to follow the procedure set out in s.424AA of the Migration Act 1958 (Cth). No point is taken in this respect by the applicant in the present case, and I am not satisfied that there was any procedure required under that section or s.424A which was not followed by the Tribunal.
The Tribunal made a decision on 5 August 2011, affirming the delegate’s decision. In its “Findings and Reasons”, the Tribunal expressed a number of reasons for concluding “that the Applicant’s claims are not credible”.
The Tribunal thought that the applicant had contradicted herself when claiming that her husband had been in detention continuously since 26 August 2010, in particular in some of her evidence during the Departmental interview. The Tribunal also pointed out that this claim was inconsistent with the summons document which had been presented.
The Tribunal said that the applicant’s evidence about her husband’s responses to the compulsory acquisition of his business premises revealed “a degree of confusion”. It referred to the different statements about the name, nature, and location of his business, and the applicant’s inconsistent responses when these matters were put to her. The Tribunal preferred the information in the student visa application about the husband’s business, and was not satisfied that he was “in fact, involved in an agricultural trading business”. It was therefore not satisfied that her husband “ever suffered harm as a consequence of the forced acquisition and demolition of such a business”.
The Tribunal also thought that the applicant’s account of her husband’s responses to the acquisition were implausible, on the part of “a person said to be an astute businessman”.
The Tribunal also referred to the applicant’s delay in seeking protection, and was not satisfied with her explanation of ignorance of the availability of refugee protection.
The Tribunal indicated that it had had regard to the documents submitted by the applicant. It referred to the difficulties of accepting the summons document, including the absence of more than one signature. It was not satisfied as to what inferences could be drawn from the photographs.
The Tribunal considered claims made by the applicant from time to time that she was unable to express herself adequately, but it did not accept that this was true, based on its observations of her during the hearing and after listening to the audio recordings of the applicant’s Departmental interview.
The Tribunal concluded:
Summary
73.In the light of all the information before the Tribunal I am not satisfied that the Applicant’s husband was the proprietor of a company whose premises were compulsorily acquired by the government, that he appealed against such a decision, that he was arrested after a scuffle with police or that he was detained, beaten, released after seven days and then re‑arrested some months later. I am not satisfied that he is now in jail. This being the case I am not satisfied there is any reason to believe there is a real chance that the Applicant would be harmed by the authorities or anyone else in China for such a reason. She does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal.
74.I am not satisfied that the Applicant has a well‑founded fear of harm for a Convention reason should she return to China, now or in the reasonably foreseeable future, and I am not satisfied that she is a refugee.
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 those 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 be believed, nor to decide whether she should be given permission to stay in Australia.
The applicant’s original application contains the following three grounds:
1.RRT doubted my husband who is smart businessman’s reaction to demolishing . It is preconceived. Anything can happen.
2.RRT didn’t accept my explanation about the late protection visa application with discrimination. It is unfair.
3.RRT doubted documents I provided and my application which bases on the country information, it is discrimination.
She has not filed any amended application or written submission better identifying jurisdictional error, although she has received advice under the free legal advice scheme.
Today, in her oral submissions, the applicant complained about some of the Tribunal’s findings of fact, and labelled them as unfair and “discriminatory”. She suggested that the Tribunal should not have “doubted” her documents, and maintained that, in fact, her husband had been continuously in detention since August 2010.
However, in my opinion, these submissions sought only to persuade the Court to arrive at a different conclusion on the evidence. This is not its function, when reviewing the Tribunal’s decision.
I am unable to detect any part of the Tribunal’s reasoning or its conclusions, revealing such illogicality or unreasonableness as could provide jurisdictional error under the principles identified in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. It was the task of the Tribunal to interview the applicant and decide what was true, taking into account her evidence and her documentary corroboration. I am not satisfied that the outcome arrived at by the Tribunal was not open to it on the evidence before it.
Unaided by any better submissions, I am unable to indentify any jurisdictional error affecting this decision.
The decision is therefore a privative clause decision, and I must dismiss the application.
I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 16 March 2012
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