SZQRZ v Minister for Immigration - [2012] FMCA 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRZ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 132

MIGRATION – Review of decision of RRT – where RRT made finding about credibility – whether illogical or unreasonable – merits review.

Migration Act 1956 (Cth), ss.189, 424A, 425

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1
Minister for Immigration & Anor v SZMDS [2010] HCA 16

Applicant:

SZQRZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2225 of 2011

Judgment of:

Raphael FM

Hearing date:

10 February 2012

Date of Last Submission:

10 February 2012

Delivered at:

Sydney

Delivered on:

10 February 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Piper

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2225 of 2011

SZQRZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She was granted a student guardian visa on 26 July 2007 on the basis of her son’s student visa and entered Australia on 15 August 2007. That visa expired on 31 December 2007. The applicant did not return to China, she remained in Australia as an unlawful non‑citizen. Eventually, she was located and detained in May 2011 pursuant to s.189 of the Migration Act 1956 (Cth)[1]. On 19 July 2011 she applied for a protection (Class XA) visa. The application was considered by a delegate of the Minister following an interview of the applicant who was represented by a firm of solicitors and migration agents. On 9 August 2011 the Minister’s delegate refused to grant a protection visa and on 9 August 2011 her lawyers made an application to the Refugee Review Tribunal for review of that decision. The applicant attended a hearing before the Tribunal together with her adviser and on 29 August 2011 the Tribunal determined to affirm the decision under review.
[1] “Act”
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of religion. The applicant claimed that in China, in her home district of Fuqin, she had become a practising Christian and had held the meetings of a small family church in her home. She said that in February 2006 someone informed upon her to the police and the police attended a gathering and she was arrested. She was taken to a police station where she was held overnight and was released after payment of a fine of 2,000 RMB plus a bribe of 10,000 RMB to ensure that the fine was her only penalty. The applicant told that following her arrest, the police and officials remained interested in her and in her husband, who ran a restaurant business. It was claimed that corrupt officials would eat at her husband’s restaurant without payment. She claimed that the police were harassing her family and intimidating customers at the restaurant and so it was decided that she should leave the country before things got worse. She feared that if she returned she would be subjected to more abuse by the authorities, particularly as she intended to continue with her Christian activities.
The applicant was questioned about these matters by the Tribunal which also discussed with her the attitude of the Fuqin authorities towards these small Christian communities. The Tribunal discussed with her some inconsistencies in her story and also inconsistencies between evidence provided by her son in his own unsuccessful application and what she was telling the Tribunal. The Tribunal expressed concern to the applicant and requested her comment on the fact that although she claimed to have been an ardent Christian in fear of government repercussions should she return, she did not apply for a protection visa until some four years after her own visa had expired. Some matters of concern to the Tribunal were raised with the applicant in a s.424A letter dated 17 August 2011, which was responded to by the applicant’s advisers, and certain other concerns were raised with her at the hearing in a form consistent with the requirements of s.424AA [63] [CB 177].
In the end the Tribunal came to the conclusion that the applicant was not a witness of credibility:
“She was vague and evasive with her answers. She appeared to have memorised her written statement and often recited the information from it irrespective of the questions posed to her. On a number of occasions the Tribunal was required to pose its questions several times before eliciting a meaningful answer, rather than the recitation of her written claims. The Tribunal acknowledges the applicant’s claimed lack of education and illiteracy, however, the Tribunal also notes that the applicant had no difficulty expressing herself with respect to matters contained in her statement or matters relating to her family background. The Tribunal does not accept that the applicant’s lack of education have prevented her from expressing herself or giving evidence with respect to other issues. Rather, the Tribunal has formed the view that the inconsistencies in the applicant’s evidence and her evasiveness were reflective of her lack of credibility.” [76] [CB 180]
The Tribunal then proceeds in subparagraphs (a) to (g) [CB 180 - 182] to provide specific examples that caused it to come to the conclusion recited above. It concluded that:
“The Tribunal considers these discrepancies to be significant and the combination of these to be fatal to the applicant’s credibility.” [77] [CB 182]
Having concluded that the applicant had not been truthful in her claims and that she was not, in fact, a practising Christian in China, the Tribunal turned to consider the effect of her accepted attendance at churches in Australia. In [79] [CB 183] the Tribunal found that:
“The Tribunal is of the view that the applicant may have been aware about protection visas once she arrived in Australia or shortly after her arrival and that she simply made the decision not to apply for protection until she was “forced to,” for example, because of detention. In these circumstances, the Tribunal is of the view that the applicant’s attendance in church since 2007 was to enable her to gain knowledge about Christianity and to assist her in her future application for protection.
The applicant has not satisfied the Tribunal that she engaged in religious activities in Australia otherwise than for the purposes of strengthening her claim to be a refugee. The Tribunal disregards such conduct in accordance with s.91R(3) of the Act.”
[79-80 CB 183.]
On 30 September 2011 the applicant filed an application with this Court seeking review of the Tribunal’s decision. The grounds of the application were:
“1. The RRT member rejects my Tribunal story”
2.The member wrongly denies the link between my debts and the Chinese Government.”
The applicant did not expand on these grounds by way of an amended application. When she appeared in Court today she told me that she was a Christian in China although the Tribunal had said she was not. She said that the assessment of the Tribunal that she had only commenced Christian worship when she came to Australia was a wrong assessment. She said that it was true that she had been persecuted in China and that her shop had been closed down. She said that she had produced some documents which established this. The applicant also told me that she had gone to the local church in Lidcombe as soon as she came to Australia in 2007 and she did not think that this had been sufficiently taken into account. She told me that she had been converted to Christianity after suffering from a skin disease in China which had been cured with the assistance of a believer. She did not address the ground relating to her debts.
It hardly bears repetition that a decision as to the credibility of an applicant is one for the Tribunal par excellence. This Court is reviewing a decision of the Tribunal and is not sitting upon an appeal from it. Provided that the Tribunal shows in its decision record that the views it came to are based upon available evidence and are not come to in a manner that is so extreme or illogical that they offend against the views expressed by the High Court in cases such as Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [40], Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 this Court cannot interfere because to do so would be providing impermissible merits review of the decision.
As indicated in these reasons the Tribunal clearly showed the manner in which it came to its views about the applicant’s credibility and I am satisfied that those conclusions were not ones that no rational or logical decision-maker could have reached on the same evidence: Minister for Immigration & Anor v SZMDS [2010] HCA 16.
The second ground of application to this court makes reference to a matter that was not taken up by the applicant with the Tribunal or with the delegate. It was not addressed by her in her submissions to me today. The only possible relevance it could have to the claims that she made was in relation to her evidence before the Tribunal about the closing down of her husband’s restaurant. But the Tribunal disbelieved this as well for reasons which were available to it and it is also a conclusion with which this Court cannot interfere.
Ms Stone, who appears on behalf of the Minister, has provided the Court with helpful written submissions. At paragraph 16 she commences a section relating to compliance with s.424A of the Act and at [20] she commences one regarding compliance with s.425 of the Act. I have no doubt that the comments she makes are correct but I do not propose to make further reference to them as it does not seem to me that the failure to comply with those sections is envisaged in the applicant’s application. Suffice to say that if such a claim was being made I would reject it for the reasons given by Ms Stone in those submissions.
As I am unable to make a finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case I must dismiss the application. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $3,700.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 28 February 2012