SZQRR v Minister for Immigration
[2012] FMCA 99
•14 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQRR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 99 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – no arguable case of jurisdiction error. PRACTICE AND PROCEDURE – Observations on weakness in the integrity of the review process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424AA |
SZOUS v Minister for Immigration & Anor [2011] FMCA 166
| Applicant: | SZQRR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2181 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 14 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr B O’Brien DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) 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 $3,123 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 2181 of 2011
| SZQRR |
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 decision was made on 1 September 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon her practice of Falun Gong. The Tribunal recited the applicant’s visa history and claims at [2]-[4][1] and [20]-[26][2] of its reasons:
[1] court book (“CB”) 126
[2] CB 128-129
The applicant, who claims to be a citizen of China (PRC), arrived in Australia on 8 January 2011 and applied to the Department of Immigration and Citizenship for the visa on 28 March 2011. The delegate decided to refuse to grant the visa on 12 May 2011 and notified the applicant of the decision.
The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
The applicant applied to the Tribunal on 9 June 2011 for review of the delegate’s decision.
…
The applicant was born on 13 December 1961 in Shanghai, China. She speaks, reads and writes Mandarin. She arrived in Australia on a Visitor Visa on 8 January 2011 with a passport issued in her own name by the Chinese authorities in May 2010. Her visa was issued in Shanghai in June 2010. She has had nine years of formal education. The applicant has a daughter on a student visa in Australia and a husband in China.
Attached to the applicant’s application for protection visa was a typed statement. A summary of the applicant’s claims for protection contained within that statement is as follows.
The applicant claims she was born in Shanghai China on 13 December 1961. She claims she was seriously persecuted by the Chinese government because of practising Falun Gong. She claims she came to Australia to apply for a protection visa from the Australian government. The applicant claims she suffered diseases due to her overwork in 1979 for which she could find no treatment. She claims that in July 2002 she set up a limited company. In 2007 she claims her husband developed severe rheumatism. She claims that her husband’s sickness was cured due to Falun Gong and his health improved. She claims that her husband then advised her to practice Falun Gong. She claims she has practised Falun Gong with her husband since the year 2009. She claims that after practicing Falun Gong for 4 months she felt better and her health problems were cured. She claims she then concentrated on studying other stances of Falun Gong and reading some books written by Hongzhi Li. She claims this taught her to be truthful, kind and tolerant and she was hoping to strengthen her body through Falun Gong without involvement of political issues.
She came to Australia on 6 August 2010 for sightseeing. She returned to China on 2 November 2010. She claims that her husband and she were reported by other people because of publicising Falun Gong and practicing Falun Gong. She claims that in the afternoon of 1 December 2010 she and her husband were caught by five policemen from their company. She claims they were sent to Shanghai City … Police Station. She claims they were interrogated for the whole night. She claims they were forced to confess. She claims her husband told them that he actively publicised Falun Gong because it could treat diseases and that there were no people backing them. She claims that the police believed that her husband was a die-hard. She claims they used a baton to beat her husband. She claims her husband was found guilty of organizing Falun Gong gatherings, publicising Falun Gong and disturbing social security. She claims her husband refused to sign the warranty to stop practicing Falun Gong and he was sentenced for one year and five months in prison. She claims she was also found guilty of practicing Falun Gong without reporting. She claims her husband was put in Shanghia Qingpu prison and she was detained in Shanghai City Yangpu No.2 Detention House.
She claims that she was detained for 15 days. She claims the Falun Gong practitioners in her prison were often beaten by police. She claims that if she said anything about Falun Gong she was not allowed to eat or go to the toilet and was made to pee in her trousers. She claims she was brainwashed every day and forced to listen to radio tarnishing Master Hongzhi LI. She claims she was tortured physically and psychologically and she therefore signed a warranty to stop practising Falun Gong against her will. She claims she was released on 17 December 2010.
She claims her husband suffered more than her. She claims no one was allowed to visit Falun Gong practitioners who were in her husband’s team. She claims he was tortured. She claims he is now lame in his left leg.
She claims that as her husband was in prison their company could not survive. She claims they were arrested by police in front of many people. She claims that due to this she lost many contracts. She claims that the business collapsed. She claims she suffered a mental collapse. She claims her family fell apart under the persecution of the Chinese government because of practicing Falun Gong. She claims that she then decided to leave China. She claims that as she had a visitor visa she was able to return to Australia.
The applicant appeared before the Tribunal on 2 August 2011 to give evidence and present arguments. The Tribunal asked the applicant questions about her fear of harm and about Falun Gong. The Tribunal, at [50] of its reasons[3], indicated it had some concerns with the applicant’s credibility. At [54] of its reasons[4], the Tribunal recalls that the applicant was told that the Tribunal was having difficulty believing she was a Falun Gong practitioner, as she did not know the exercises.
[3] CB 132
[4] CB 133
The Tribunal found, at [60] of its reasons[5], that the applicant was not a witness of credit. The Tribunal found the applicant’s oral evidence was inconsistent, confused and in many instances not forthcoming. The Tribunal had to repeat questions and constantly ask for more details. The Tribunal had several times invited the applicant in writing, before the hearing and at the hearing, to provide further information. No further information or documentation was provided. The applicant, in the Tribunal’s words, provided only her own “unsubstantiated, scant evidence”.
[5] CB 135
At the hearing, the Tribunal purported, pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”), to put inconsistencies in the applicant’s oral and written claims to her. At [67] of its reasons[6], the Tribunal found the applicant’s lack of knowledge of the principles and meaning of Falun Gong and her inability to discuss her interest or the practice and exercises to be highly inconsistent with her claim to have practised Falun Gong since 2009, even if periods of that practice were done alone or in secret. In light of the deficiencies in the applicant’s evidence, the Tribunal did not accept that the applicant was a Falun Gong practitioner in China or has been or practises Falun Gong in Australia. Accordingly, the Tribunal was not satisfied that the applicant faced a well-founded fear of persecution in China by reason of the practice of Falun Gong.
[6] CB 138
These proceedings began with a show cause application filed on
28 September 2011. The applicant continues to rely upon that application. There are three grounds in that application:
1. RRT refuses my application without considering my evidences carefully. It is unfair.
2. RRT [distracts] me to ask questions which is not relevant to my application eg: When did my husband and I know each other.
3. RRT doubts my credibility based on the inconsistent information of my family that I gave, which is not relevant to case.
The application was supported by a short affidavit filed with it. The applicant did not recognise that document when I showed it to her.
I received it as a submission. I received as evidence the court book filed on 28 October 2011.
In her oral submissions, the applicant expressed concern about the Tribunal’s disbelief of her claims. She considers it unfair for the Tribunal to have expected her to have had any particular level of knowledge about Falun Gong. She asserts the truth of her claims and seeks a different outcome. She claimed that the Tribunal was biased.
There is no evidence to support the assertion of bias. The Tribunal met its obligation to invite the applicant to a hearing. According to the Tribunal’s record of what occurred at the hearing, that was a fair opportunity for the applicant to explain her claims and to answer the Tribunal’s questions. Unfortunately for the applicant, the Tribunal’s concerns about her claims were heightened rather than alleviated by her evidence.
In my view, on the material before it, the Tribunal was entitled to conclude that the applicant’s claims had been invented. The Tribunal purported to go through a process of oral disclosure at the hearing, pursuant to s.424AA of the Migration Act. To the extent that such disclosure was required, I am satisfied that the Tribunal met its obligation. I am not persuaded that the Tribunal took into account any irrelevant considerations or had regard to irrelevant material. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.
It follows that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I so order.
This case represents another of many examples of weakness in the integrity of the review process. The review application completed by or on behalf of the applicant[7] was incomplete. In particular, section C and section G were left blank. The applicant disclosed in her protection visa application that she was assisted by Ms Xie Yu, a registered migration agent[8]. The applicant confirmed before me today that she continued to be assisted by Ms Yu. She confirmed that she had obtained Ms Yu’s assistance to complete the review application. It is noteworthy that the review application specifies as the address for correspondence PO Box 367 Auburn, New South Wales 1835. That is an address which has in the past been used by Ms Yu[9]. It is a concern if migration agents feel the need to conceal their assistance to a review applicant. The circumstances of that apparent need for concealment could be further investigated by the Minister’s Department.
[7] reproduced at CB [111]-[114]
[8] CB 8
[9] See SZOUS v Minister for Immigration & Anor [2011] FMCA 166
In consequence of the dismissal of the application, the Minister seeks an order for costs. The solicitor for the Minister sought the sum of $3,500. The applicant sought to avoid an order for costs and indicated her intention to appeal. I see no reason to depart from the Court scale in this matter, which was relatively straightforward.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 20 February 2012