SZQPI v Minister for Immigration - [2012] FMCA 348

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQPI v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 348

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 425, 426

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
STBB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1587
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

Applicant:

SZQPI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1971 of 2011

Judgment of:

Barnes FM

Hearing date:

19 April 2012

Delivered at:

Sydney

Delivered on:

19 April 2012

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1971 of 2011

SZQPI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 1 August 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, first arrived in Australia in October 2009 as the holder of a subclass 456 visa. Relevantly, he last arrived in August 2010 and applied for a protection visa in January 2011. The applicant set out his written claims in his protection visa application. In essence, he claimed to fear persecution from corrupt officials in the local government. He claimed that he ran a successful export business, and that corrupt local government officials demanded money from him before he could export products overseas. He also claimed that a senior local government official had asked him to assist to help his nephew to obtain a visa to travel to Australia and that when he refused the local government refused to give him approval to export his goods to Australia.
The applicant also claimed that in late July 2010 the police came to his home, took him to the police station and questioned him about a child he described as his adopted child whom he said he found abandoned by the roadside in January 2008. He claimed the police accused him of child smuggling and that although he was released, he was warned he would be the subject of further investigation.
The applicant attended an interview with the delegate of the first respondent. The delegate refused the application for a protection visa, not being satisfied that the applicant’s conflict with local government officials had any nexus with the Refugees Convention or that it constituted persecution and finding that the family policies and laws in China were laws of general application and that the applicant’s claims in this respect lacked a Convention nexus.
The applicant sought review by the Tribunal. He had the assistance of a migration agent through the whole of this process. He attended a Tribunal hearing. The only evidence before the court of what occurred in the hearing is the Tribunal reasons for decision. After the hearing, by letter dated 16 May 2011, the Tribunal wrote to the applicant inviting him to comment on or respond to information and also to provide information. In particular the applicant was invited to comment on a number of specified inconsistencies the Tribunal had identified between information provided in his protection visa application, evidence he had given at the delegate’s interview and evidence at the Tribunal’s hearing. It was explained that such information raised concerns about his credibility and the credibility of his claims.
It is apparent that this part of the invitation was given to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Act). The first respondent submitted that, insofar as this related to inconsistencies, there was, in fact, no obligation under s.424A of the Act to put such information to the applicant. It is not necessary, for present purposes to determine that issue. There is nothing to suggest that there was any failure by the Tribunal to comply with the statutory requirements in relation to a s.424A invitation and, in any event, a Tribunal does not fall into error by putting information to the applicant which is not, strictly speaking, within s.424A(1) of the Act (SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68).
In addition, the Tribunal invited the applicant to provide detailed medical evidence prepared in accordance with enclosed guidelines on expert opinion evidence, regarding his claimed memory problems. This is clearly a reference to claims the applicant had made at the Tribunal hearing about memory problems. The Tribunal sought an opinion regarding the nature of any brain/memory problems the applicant had, the impact on his daily life and his ability to recall information and give evidence and how long he had had such problems. The letter required a response and the information by 8 June 2011 but advised the applicant that he could seek an extension of time.
On 8 June 2011, the last date for reply, the Tribunal received a request from the applicant’s migration agent for a further two weeks to provide the requested information. The letter stated that the applicant was having problems “getting an Expert Opinion Evidence in relation to his memory problem”. It did not address the issues raised by the Tribunal about which the Tribunal had asked the applicant to comment, such as the inconsistencies in his evidence. In any event, the Tribunal agreed to allow the applicant until 19 July 2011 to comment on or respond to the information and also to provide additional information.
On 19 July 2011, again, the last date for reply, the Tribunal received a further letter from the applicant’s migration agent, stating that the applicant was still unable to provide the expert opinion evidence in relation to his memory problems, that his Medicare membership had been suspended and that he was, therefore not able to afford the medical expenses. It was claimed that the inconsistencies in the applicant’s evidence were due to the “memory problem he ha[d] been suffering recently”, and that he “could not even remember his son’s date of birth during the hearing”. The agent requested the Tribunal to proceed with the decision on the basis of the information that was currently before it.
In its reasons for decision of 1 August 2011 the Tribunal set out, in detail, the claims made by the applicant at various stages in the review process, including what occurred at the Tribunal hearing. In essence, the Tribunal rejected the entirety of the applicant’s claims on the basis of adverse credibility findings. The Tribunal stated that it had a number of concerns with the applicant’s evidence which led it to find that he was not a credible witness, that he had not been truthful in relation to his experiences in China, his reasons for leaving or his fears about returning.
The Tribunal referred to the fact that the applicant had been invited to comment on a number of pieces of information pursuant to s.424A of the Act and that he had not responded “in any meaningful way”, despite having been given an extension of time, but that he had merely restated (and this is clearly a reference to his claim at the hearing) that “any inconsistencies [we]re a result of his memory problems”. The Tribunal had regard to the fact that no medical evidence had been provided, despite an extension of time up to the date of the decision and to the applicant’s explanation that “his Medicare had been withdrawn and therefore he had been unable to obtain appropriate evidence”. However the Tribunal considered that, “had the applicant’s memory been as poor as he claim[ed] then he would have sought treatment or an opinion in relation to this earlier” and hence “evidence of this would have been available”.
In the absence of medical evidence and having considered the applicant’s evidence, the Tribunal was not satisfied “the inconsistent and vague responses” he had provided were “a result of any defect in [his] memory”. It found that they were the “result of his attempt to fabricate claims in order to strengthen his protection visa application”.
The Tribunal then detailed a number of respects in which it found the applicant’s evidence to be “unpersuasive, vague, confused, conflicting and inconsistent”. It referred, in particular, to his evidence in relation to his children, his inability to recall and his inconsistent evidence about matters such as the dates of birth of the children, and to the absence of any explanation for why he had listed in his application and confirmed at the Departmental interview an “incorrect” date of the twins’ birth. The Tribunal did not accept that the applicant had memory problems and could not recall dates on the basis that, if this had been the case, it would have expected that he would “have left the dates [of birth] blank in the application form”.
The Tribunal also had regard to inconsistent information the applicant had given to the delegate and to the Tribunal about whether his children were working or studying. It did not accept his explanation for the inconsistency (that he was referring to the qualifications of his children and was not claiming they were studying). Nor did it accept that the significantly different evidence in relation to his children’s circumstances were the result of poor memory, as he “did not state that he could not remember details of his children’s situation but rather gave detailed evidence at both the interview and hearing which was inconsistent”.
The Tribunal also had regard to inconsistent evidence the applicant had given in relation to the age of his claimed adopted daughter. It did not accept that these inconsistencies were caused by problems with his memory as, again, he did not state he could not recall how old she was but rather gave inconsistent responses. The Tribunal took into account the possibility that the difference in the child’s “date of birth and claimed age may be a result of the lunar calendar and the Chinese method of calculating ages”, but found that this did not explain the inconsistent evidence as to how old the child was when she was found.
The Tribunal also found that the applicant had “provided unpersuasive evidence in relation to the amount of the social compensation fee he was required to pay in order to register” his third and the claimed fourth child. It set out the details of the inconsistencies of his evidence and his response when this was put to him at the Tribunal hearing. It indicated that it did not accept his explanation in that respect, for reasons which it gave. In light of country information, the Tribunal did not accept the applicant’s claims about the amount of fine he had to pay for registration of a fourth illegally adopted child or that he would have been unable to register the adopted child on his household registration because her “source” was “not clear”.
The Tribunal “found the applicant’s evidence in relation to the circumstances of his fourth child’s adoption to be unsatisfactory”. In particular it did not accept that the applicant had not thought about difficulties he would face in adopting her, given his claims he had had difficulties registering his third child and had to pay fines and bribes in order to do so. It found that the applicant’s evidence suggested that he had not attempted to register his adopted child, inconsistent with his subsequent evidence that he had attempted to do so.
The Tribunal also had regard to inconsistent evidence in relation to witnesses who saw the applicant picking up the child by the roadside, and who were said to have been interviewed by the police. It did not accept that this inconsistency was caused by the applicant’s poor memory, because he did not state he could not recall how many witnesses there were, but gave inconsistent responses.
In addition, the Tribunal set out in detail concerns it had with what it regarded as the applicant’s “unsatisfactory, vague and difficult to follow” evidence in relation to his business and employment history, in particular, his inability to remember relevant dates or timeframes and also the provision of inconsistent evidence notwithstanding that the applicant had maintained he was confident that the protection visa application form was correct. While in other circumstances, the Tribunal may not have considered this significant, it found, in light of its overall concern about the applicant’s credibility and its dissatisfaction with his evidence about his employment and business history, that this information supported its view that the applicant had fabricated his evidence about his employment and business history. The Tribunal also had regard to an inconsistency in the applicant’s claims about whether he had lived elsewhere than at one address in China.
The Tribunal also addressed the fact that, at the hearing, the applicant had indicated that he “wished to provide evidence to support his claims, such as photographs and a copy of his hukou” (household registration) that he claimed was to be faxed to him the day after the hearing. The Tribunal recorded that during the hearing the applicant also indicated that he had some photos of his family which he could provide through “QQ chatting software”, but that the Tribunal stated it “was unable to connect to his QQ software in the hearing and [that] he should speak to his representative about how to provide any such evidence” if he would like to do so.
As indicated above, the Tribunal wrote to the applicant after the hearing giving him the opportunity to respond to its concerns and to provide further evidence within a timeframe that was extended. However, as the applicant confirmed today, he did not provide any such photographic or documentary evidence to the Tribunal. In its findings and reasons, the Tribunal referred to the fact that it had granted time to the applicant to provide such evidence, including an extension of time, but that he had not provided any documentary evidence in support of his claims. The Tribunal considered it would have been relatively easy for the applicant to obtain some evidence, such as copies of documents showing the names and dates of birth of his children and documents relating to his business.
The Tribunal also had regard to the applicant’s request, reiterated on more than one occasion at the hearing, that the Tribunal obtain a video/audio link to the child he claimed was his adopted daughter and that this would show that she called him “Dad”. In its account of the hearing the Tribunal recorded that it had considered the request but did not consider it was appropriate or that it would assist the applicant’s claims. The Tribunal did not believe it could obtain “any meaningful evidence” from a child who was three to five years old.
In its findings and reasons the Tribunal recorded that it had initially indicated to the applicant that it would consider this request in the course of the hearing and later make a decision on whether to grant it, that it considered this request “during the course of the hearing” and “in depth during the adjournments” but that it had reached the conclusion that it would not take steps to grant the request to set up such a video link as it did “not consider it would have been able to obtain any meaningful evidence from such a young child, especially as there was no evidence in relation to the child’s identity”.
The Tribunal concluded that “the combination of these matters” caused it to find that the applicant had been untruthful in his evidence concerning events in China and to reject his evidence. It did not accept he had three biological children or a fourth child whom he found by the roadside and illegally adopted. It did not accept on the evidence before it that he ran a plastic factory in China or that he owned one or two trucks with which he ran a transportation business. It did not accept that he was subjected to threats or extortion by a government official wanting assistance in bringing his nephew to Australia. Nor did it accept that he was or is under investigation in relation to his illegally adopted daughter or that there was a real chance he would be arrested and charged with child smuggling if he returned to China as he had claimed. The Tribunal did not accept that he had travelled to Australia (and this is clearly a reference to the last travel to Australia) to avoid persecution. It found no real chance the applicant would face persecution for any other Convention-related reason if he were to return to China now or in the reasonably foreseeable future and was not satisfied he had a well-founded fear of persecution for a Convention reason if he returned to China now or in the reasonably foreseeable future.
The applicant sought review by application filed in this court on 5 September 2011. There are four paragraphs under the heading “Grounds of application” that are reiterated and explained in the accompanying affidavit. These grounds relate in essence to what might be described as the applicant’s claimed memory problems. He first claimed that “the Tribunal’s decision was affected by judicial error in failing to accept [his] claims about his memory problems”. He reiterated his claim that “he left China because he was mistreated by the corruptive Chinese government”, that the Chinese police alleged that he had engaged in child smuggling “simply because he adopted an abandoned child”, that he “suffered from depression and memory loss after he fled China and came to Australia”, that he had “been living in fear and also having sleeping problems” and that he only slept three hours before the Tribunal hearing.
The applicant claimed that due to his medical problem “he could not respond to the Tribunal’s questions appropriately” and that he had problems understanding and answering the Tribunal questions, that some of his answers were inconsistent with his previous evidence and that he could not even get children’s date of birth correct.
The application states that when he was asked by the Tribunal to provide medical evidence in relation to the memory loss, the applicant “could not afford the medical costs”. He took issue with the fact that the Tribunal rejected his claims in relation to his memory problems and suggested that the Tribunal had said that he should have sought medical treatment in China and “ignored his claims that his medical problem only occurred after he came to Australia”.
First, insofar as these grounds seek merits review by reiterating the applicant’s claims, merits review is not available in this court. Further, insofar as the applicant relies on what occurred at the Tribunal hearing the only evidence in that respect before the court is the Tribunal decision. The applicant was afforded but did not take the opportunity to put a transcript of the hearing before the court.
In relation to the alleged memory problems and the Tribunal’s consideration of those claims, the Tribunal recorded that at the hearing, the applicant claimed for the first time that he was unable to recall dates as there was “something wrong with his brain”. He did so in the course of discussing the time he had been working for various companies and when he had bought shares in one of these companies. According to the Tribunal decision he said he could not recall exactly when it was and that there was something wrong with his brain. When asked what this meant, he said he had “difficulty recalling dates and couldn’t even remember his children’s birthdays”. Relevant to the claims that are made now, when the Tribunal asked the applicant whether he had been to see a doctor, he replied that he did “not think there [wa]s anything wrong he just [could] not recall dates and years”.

The applicant also referred to problems with his memories when other inconsistencies were put to him in relation to evidence about his work history. At the conclusion of the hearing, he again sought to explain the inconsistencies in his evidence by reference to his memory problems. He also claimed to have suffered from insomnia and that his “mind [wa]s under enormous pressure”. The Tribunal asked the applicant whether he had seen a doctor in relation to this, (presumably being the insomnia), and he “stated that he had not because he did not feel his memory [wa]s that bad”, at which point the Tribunal stated that it would be writing to him, he would have a period of time in which to respond and he could use this time to provide any additional evidence that he wished to provide.
As indicated above, the Tribunal wrote to the applicant, asking him to provide medical evidence. It gave him an extension of time but he ultimately failed to take up this opportunity instead requesting the Tribunal to make a decision on the basis of the information available to it.
On the material before it and in the absence of medical evidence, the Tribunal was not satisfied that the applicant’s inconsistent and vague responses were the result of any defect in his memory. The Tribunal considered the applicant’s explanations in this respect but had particular regard to the fact that he did not say he could not recall relevant dates or facts but rather that he had given inconsistent dates or facts.
The Tribunal was not under an obligation to accept uncritically the claims made by the applicant in relation to his memory problems. In the absence of any evidence to support such claims and given the nature and extent of the inconsistencies described by the Tribunal, the Tribunal’s findings rejecting the memory problems as an explanation for the difficulties in the applicant’s evidence were open to it for the reasons it gave on the material before it. It is notable that the Tribunal’s account of the Tribunal hearing is detailed and is consistent with the Tribunal’s approach to the applicant’s evidence.
Insofar as the applicant relied on the fact that he was unable to afford to provide medical evidence because his Medicare had been suspended, the Tribunal considered this explanation. The Tribunal did not find that the applicant should have sought medical treatment in China, but rather that if his memory had been as poor as he claimed, he would previously have sought treatment or an opinion and evidence of this would have been available. Such finding was open to the Tribunal on the material before it for the reasons which it gave. I bear in mind in that respect that when the applicant was asked whether he had sought medical treatment, he provided an explanation which in fact suggested that his memory was not as bad as he was suggesting.
It cannot be said that it ignored his claim that his medical problem occurred after he came to Australia in a manner constituting jurisdictional error. It was open to the Tribunal on the material before it, including the claim that the Medicare coverage was “suspended” to find that if the applicant’s memory problem had been as great as he claimed that he would have sought treatment earlier and hence that there would have been evidence of some sort available in that respect.
This is not a case in which there was any obligation on the Tribunal to provide further time to the applicant. It considered his request for an extension of time. It granted such request. Ultimately, his adviser asked the Tribunal to proceed on the information before the Tribunal at that time.
There is nothing in the material before the court to suggest that the claims that the applicant made to the Tribunal or that he makes now in relation to his memory were such that he was unable to participate in the Tribunal hearing in a meaningful sense. I note that there is no evidence before the court to support the applicant’s claims, which he reiterated today in relation to his memory problems such as to give any cause for concern about whether the Tribunal complied with s.425 of the Migration Act in affording a meaningful opportunity to the applicant to participate in the Tribunal hearing.
The claims that the applicant makes in relation to his memory problems do not establish jurisdictional error on the part of the Tribunal.
In oral submissions the applicant took issue with the Tribunal’s failure to set in place video/audio link to take evidence from the child that he said he had adopted who was aged, depending on which account one accepted, somewhere between three to five years of age.
The Tribunal has the power to take evidence from other persons and the applicant had the opportunity to ask the Tribunal to take evidence from other persons. However, while the applicant may request the Tribunal to call witnesses (and I note that this was not done in accordance with s.426 of the Act but rather done informally at the hearing) this does not oblige the Tribunal to call any witnesses referred to by an applicant. (See STBB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1587).
It has not been established that there was any lack of procedural fairness in the Tribunal’s approach to the applicant’s request. It considered that request. It indicated in its reasons for decision that it had considered the request during the hearing and during adjournments, but for reasons which it gave (in particular that it did not consider that it was appropriate or would assist the claims and did not believe it could obtain any useful evidence from a child aged three to five years old) reached a decision not to take such evidence, particularly as there was no evidence in relation to the child’s identity.
It has not been established that the Tribunal either failed to comply with any statutory obligations or otherwise fell into jurisdictional error in its approach to the applicant’s request that it obtain a video link to hear the child call him “Dad”. Nor has it been established more generally that there was a failure by the Tribunal to make an inquiry about a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
The applicant also told the court that he now had copies of his household registration, registration certificates and photographs. However he conceded that these documents had not been put before the Tribunal. It has not been established that the Tribunal fell into error in not having regard to documents that were not put before it. Again I note in that respect that the applicant was given the opportunity after the hearing to put documents before the Tribunal and there was no suggestion to the Tribunal that further time was required to provide such documents. Rather, the adviser asked the Tribunal to make its decision on the material that was before it.
More generally, the Tribunal’s findings in relation to credibility were findings which were open to the Tribunal on the material before it for the reasons which it gave. It was also open to the Tribunal to find that it did not accept that the claimed memory problems provided an explanation for the inconsistencies and other deficiencies in the applicant’s evidence for the reasons which it gave.
The applicant also sought to raise in some way today the fact that he had asked a psychologist for a certificate and that he was told he needed to see the psychologist for six months before such a certificate could be provided. There is no evidence that any such explanation was provided to the Tribunal in support of any application for additional time to provide medical evidence. The claims that the applicant makes in this respect do not establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.

RECORDED: NOT TRANSCRIBED

The applicant has been unsuccessful and the Minister seeks that he pay his costs in the sum of $4,400. The applicant has stated that he has no money. However the applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the legal costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining whether and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 15 May 2012