SZQUL v Minister for Immigration
[2012] FMCA 118
•23 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 118 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of China’s one child policy – applicant not believed – no jurisdictional error. |
| Criminal Code Act 1995 (Cth) Crimes (Torture) Act 1988 (Cth) Migration Act 1958 (Cth), ss.422, 424 |
| Applicant S214 of 2003 v Refugee Review Tribunal [2006] 90 ALD 632 Chu Kheng Lim v Commonwealth [1992] 176 CLR 1 Coe v Commonwealth [1993] 118 ALR 193 Dietrich v R [1992] 177 CLR 292 Minister for Immigration: Ex parte Durairajasingham [2000] 74 ALJR 405 Kruger v Commonwealth [1997] 146 ALR 126 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 Minister for Immigration v Wu Shan Liang [1996] 185 CLR 259 Minister for Immigration v Yusuf [2001] HCA 30 SZBYR v Minister for Immigration [2007] 235 ALR 609 SZQGE v Minister for Immigration [2011] FCA 1018 WAEE v Minister for Immigration [2003] 75 ALD 630 |
| Applicant: | SZQUL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2442 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 23 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2012 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s cost and disbursements of and incidental to the application, fixed in the sum of $5,368.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2442 of 2011
| SZQUL |
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 23 September 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Fujian province in China. She had made claims of persecution arising out of the Chinese one child policy. The following statement of background facts relating to the applicant’s visa history, protection claims, and the decision of the Tribunal on them is derived from the Minister’s submissions, filed on 17 February 2012.
The applicant is a citizen of the People’s Republic of China.
The applicant arrived in Australia, with her son, on 17 March 2007 on a student guardian visa[1]. The visa expired on 31 December 2007 and thereafter the applicant resided in Australia without a visa until detained, as an unlawful non-citizen, on 6 June 2011.
[1] Court book (“CB”) CB 71
The applicant applied for a protection visa on 16 June 2011 and on 28 July 2011 a delegate of the Minister rejected her application[2].
[2] CB 67-77
On 8 August 2011, the applicant applied to the Tribunal for a review of the delegate’s decision[3]. She attended a hearing at the Tribunal on
13 September 2011 at which she was represented by the Refugee Advice and Casework Service (“RACS”). On 14 September 2011, the Tribunal sent the applicant a letter pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) (424A letter)[4]. On 21 September 2011, the applicant provided, through her representative, a written response to the 424A letter[5].
[3] CB 78-82
[4] CB 115-119
[5] CB 120-132
On 23 September 2011 the Tribunal affirmed the decision of the delegate of the Minister[6].
[6] CB 135-155
Applicant’s claims before the Tribunal
In essence, the applicant claimed that she feared persecution in China because of her political opinion against the “one child policy”.
In the evidence before the Tribunal, the applicant stated that she had two children born in 1987 and 1989, the second being born in contravention of the one child policy. As a result of the decision to have a second child, the applicant claimed:
a)she had to go into hiding while pregnant with her second child;
b)she was fined, and forcibly sterilised, for contravening the one child laws;
c)she was harassed and arrested on a number of occasions for non-payment of the fine (which the applicant claimed she could not afford to pay);
d)the relationship with her husband deteriorated due to violence and arguments arising from her contravention of the one child policy and the fine imposed on her; and
e)upon questioning by the Tribunal (and issues identified in the 424A letter), she had paid a “snakehead” to forge a number of the documents that were attached to her application for a guardian visa.
In addition, the applicant claimed that she had had to go into hiding and that her son had experienced problems as a result of her non-payment of the fine. She claimed that she feared further harassment, detention and arrest because of the outstanding non-payment and her claimed opposition to the one child policy.
Before the Tribunal the applicant raised additional claims that had not been raised in her application for a protection visa or in her interview with the delegate of the Minister. There matters were:
a)prior to 2007, the applicant had a gas shop. As a result of persecution by the authorities she was forced to close the shop;
b)her brother was arrested in 2005 when the authorities asked for payment of the fine (50,000 yuan) and she was unable to pay; and
c)she was a practising Christian after arriving in Australia having attended churches in Campsie and Lidcombe as well as participating in Christian activities in the detention centre. She stated that she would be persecuted for her Christian beliefs if she were returned to China.
Decision
The Tribunal found[7] that:
a)the applicant was not a credible witness;
b)there were a number of significant inconsistencies in the applicant’s evidence and that her evidence was “problematic” and there were “serious credibility concerns” about the applicant’s evidence;
c)she failed to make significant claims until the hearing before the Tribunal;
d)the applicant provided no evidence to support the applicant’s claims that she was affected by mental illness.
[7] CB 151 at [60], [67] and [71]
In summary, the basis for these findings was primarily the following:
a)The applicant gave inconsistent accounts of her employment in China. In her protection visa application the applicant stated she was a housewife; in the interview with the delegate the applicant stated that she had savings from selling fruit; and during the hearing, the applicant stated that she had a gas shop that was closed down by the authorities. The Tribunal was not satisfied by the applicant’s explanation for failing to raise the gas shop earlier, finding that although the applicant may well have been stressed and anxious by reason of her detention in Australia it did not accept that ownership of a gas shop would have been forgotten in circumstances where it was closed down due to her failure to pay the fine for contravention of the one child policy;[8]
b)The applicant gave inconsistent evidence about when she was arrested and forcibly sterilised in China. Her account differed between claiming she could not remember (in her initial statement), claiming she was arrested and sterilised in June/August 1992 and then went into hiding (interview with the delegate) and claiming that she had been arrested many times but could not recall when but possibly in 1997. The Tribunal considered that forced sterilisation was such that the applicant could reasonably be expected to provided consistent evidence about it[9];
c)The applicant’s claim to have been in hiding for several years was inconsistent with her claim to have operated a petrol station and to have cared for her son in the village in which she claimed she resided[10];
d)The applicant claimed that she was able to borrow 300,000-400,000 yuan from her relatives to pay for her travel to Australia in 2007 but not pay the 50,000 yuan fine. The Tribunal did not accept that her relatives would be willing to help her come to Australia but not help her pay a fine[11];
e)The applicant arrived in Australian in March 2007 and her visa expired in December 2007 but she did not apply for a protection visa until 16 June 2011 after she had been detained. The Tribunal did not accept the applicant’s explanation for the delay (being that she was illiterate and that her son did not discuss the matter with her for that reason). The Tribunal considered that in circumstances where the applicant was with her son and living in the Chinese community she would have become aware of the ability to claim protection if she had genuinely left China because of fear of harm[12];
f)The applicant’s evidence in relation to her son’s local residence registration (“the hukou”) was contradictory. The Tribunal accepted that a compensation fee for having a second child would have been imposed on the applicant and that the documentation provided by the applicant on the student guardian visa, including the hukou, was false. However, subsequently the applicant had provided a hukou to the Tribunal that included both her and her son’s name and the Tribunal accepted that this was genuine. The Tribunal identified country information (put to the applicant) that “out of plan” children (that is, children born in contravention of the one child policy) can obtain hukou registration upon payment of the compensation fee. The Tribunal did not accept the applicant’s explanation that her son was only registered for a “population survey” whilst nevertheless being pursued for non-payment of the fine.[13]; and
g)the Tribunal did not accept the applicant’s explanation for failing to raise her Christianity prior to the hearing before the Tribunal[14].
[8] CB 151 at [61]
[9] CB 151 at [64]
[10] CB 151 at [64]
[11] CB 151 at [65]
[12] CB 151 at [66]-[67]
[13] CB 153 at [69] - The applicant suggested that her son could have been registered without payment of the fine or with part payment of the fine, something that the Tribunal found to be inconsistent.
[14] CB 154 at [70]
I understand that the applicant’s son is held in immigration detention, but is being held separately from the applicant. I understand also that he has made his own protection claims which are being considered separately. The applicant expressed concern about her son’s state of health, threats made against him in the detention centre, and her inability to see him on a regular basis.
The applicant asks that she be housed at the detention centre with her son. As I explained to the applicant, the management of Australian detention facilities is not something that the court can deal with in the exercise of its jurisdiction under the Migration Act. However, the Minister’s legal representatives have undertaken to report back to the Minister’s department the applicant’s concerns and requests.
These proceedings began with a show cause application filed on
26 October 2011. The applicant continues to rely upon that application. There are three grounds in the application:
1. Failing to take into account very relevant facts of the matter
2. Error of Law in the decision itself and in the manner in which the Refugee Review Tribunal conducted the hearing and matter.
3. Failing to take into account the Commonwealth obligation under the International [Covenant] and the Convention against Torture and Cruel unhuman or [Degarding] Treatment or Punishment CAT.
I received as evidence the court book filed on 2 December 2011.
I received, as a submission, the applicant’s supporting affidavit filed with her application. The applicant was not in a position to elaborate in any meaningful way upon the grounds in her application. She is concerned that she was not believed by the Tribunal. That concern with the outcome of the review before the Tribunal, of course, says nothing about the process followed by the Tribunal, leading to that outcome.
The Tribunal had serious credibility concerns about the applicant’s claims, and disbelieved them. It was apparent that the applicant had engaged the assistance of others in order to fabricate documents permitting her to travel to Australia with her son. At the hearing before the Tribunal, the applicant revealed that documents she had earlier relied upon, concerning the registration of her son’s birth, were false, and that the birth was registered in 1999. The Tribunal accepted that the hukou registration in 1999 was genuine, but had difficulty following what it described as the applicant’s vague references to a population survey in 1999.[15] At the hearing before me today, I queried with the applicant whether her reference to 1999 and the population survey was a reference to a Chinese census in that year. The applicant confirmed that it was. The applicant also confirmed my understanding that, in census years, the social compensation fee for an out-of-plan birth has, in the past, been substantially reduced.[16] She confirmed that she took advantage, as many Chinese families do, of that reduction to register her son’s birth in the census year, in order to obtain a reduced fine.
[15] See the Tribunal’s reasons at [69], CB 153
[16] The Chinese policy of substantially reducing the social compensation fee for out of plan births registered in census years supports complete and accurate participation in the census and is readily understandable. It is generally known but seldom discussed.
If the applicant had been more frank with the Tribunal, the Tribunal may have been in a better position to understand the true facts. However, I do not see, in that aspect of the Tribunal’s reasoning, any factual error, let alone any jurisdictional error.
In the absence of particulars, it is difficult to deal with the applicant’s assertions of jurisdictional error. The applicant was in no position herself to elaborate upon those assertions. The Minister’s submissions traverse the assertions as comprehensively as possible in the absence of particulars. I agree with and adopt those submissions.
Ground 1: failure to take into account relevant facts
The exact basis of this ground is unclear. It is not particularised and the “very relevant facts” that the Tribunal is alleged to have not considered are not identified by the applicant.
Insofar as this is a complaint about the manner in which the Tribunal dealt with the facts presented by the applicant it must fail because;
a)it is apparent from a close reading of the decision that the Tribunal took into account and considered all the facts and matters put by the applicant[17];
b)the applicant appears to be taking issue with the manner in which the Tribunal; considered the facts. That is an invitation to undertake merits review – something that is beyond the scope of review of this Court: Minister for Immigration v Wu Shan Liang[18];
c)the Tribunal’s handling and analysis of the facts put before it by the applicant disclosed no error of law, bearing in mind that:
i)the Tribunal is not required to provide the applicant with a “running commentary” as to its views of the applicant’s evidence or identify every reason why a claim may not be successful: Applicant S214 of 2003 v Refugee Review Tribunal[19];
ii)the Tribunal is not under any obligation to refer to every piece of evidence submitted by an applicant in determining an applicant’s claim: WAEE v Minister for Immigration[20];
iii)it is central to the Tribunal’s decision making that it assess and weigh the claimant’s evidence and make findings as to whether the applicant’s evidence is credible: Re Minister for Immigration: Ex parte Durairajasingham[21];
iv)subject to specific statutory requirements under s.424A, the Tribunal was not required to put its reasoning process to applicant or the content of its proposed reasons for comment prior to making a decision: SZBYR v Minister for Immigration[22]; and
v)it is up the Tribunal to give whatever weight its thinks appropriate to the evidence place before it for consideration.
[17] CB 138-150
[18] [1996] 185 CLR 259
[19] [2006] 90 ALD 632
[20] [2003] 75 ALD 630
[21] [2000] 74 ALJR 405
[22] [2007] 235 ALR 609
It is plain from the decision that the Tribunal in this case was troubled by a large number of significant inconsistencies in the applicant’s evidence and, on the basis of those inconsistencies; the Tribunal did not believe the applicant’s claim. The applicant’s real complaint appears to be that the Tribunal ought to have believed her claims. In fact, the Tribunal properly weighed the applicant’s claims and rejected them, as it was entitled to do. The Tribunal properly discharged its statutory function.
If the applicant’s claim is that the Tribunal failed to take into account a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend[23] and Minister for Immigration v Yusuf[24] then such a claim must also be rejected. It is well established that to succeed an applicant must show that the consideration was one that the decision maker was bound to take into account. The applicant has not identified what the relevant issue is. Rejection of an applicant’s evidence because the decision-maker is not persuaded that it is credible is not failing to take into account a relevant consideration; rather, it is the Tribunal discharging its statutory function to weigh the evidence and make a decision.
[23] [1986] HCA 40
[24] [2001] HCA 30
Ground 2: error of law in the decision and the manner in which the Tribunal handled the matter
Insofar as this is a claim about an error of law, the applicant does not identify what error has been allegedly been made by the Tribunal.
A proper reading of the decision shows that no error was made by the Tribunal.
Insofar as this is a claim about the manner in which the Tribunal dealt with the applicant then it must be rejected. Division 4 of Part 7 of the Migration Act is an exhaustive statement of the natural justice hearing rule in relation to the Tribunal: s.422B. The Tribunal dealt with the applicant’s application in conformity with the requirements of Part 7. In particular;
a)the Tribunal identified for the applicant a number of matters of concern it had about the applicant’s evidence and which might form part of the Tribunal’s reasons for rejecting the applicant’s claim and put those matters to the applicant for comment pursuant to s.424A[25]. The applicant provided further evidence in relation to those matters[26]; and
b)the Tribunal identified for the applicant certain country information that seemed inconsistent with the applicant’s evidence and provided the applicant with an opportunity to comment on those matters during the hearing[27]. In any event, where the country information is of a general nature that does not apply to a specific individual the Tribunal is not required to put such information to an applicant: s.424A(3)(a).
[25] CB 115-119
[26] CB 120-132
[27] CB 146 at [37] and [39]; CB 153 at [69]
Ground 3: Convention against Torture
The applicant’s reliance on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (“Torture Convention”) is misplaced for a number of reasons.
First, it is assumed that the applicant is relying upon the non-refoulement provisions of the Torture Convention contained in Article 3.[28] However, although a number of aspects of the Torture Convention have been incorporated into Australian law,[29] the non-refoulement provisions had not as at the time of the Tribunal decision. International conventions do not form part of Australian in the absence of incorporation into domestic law by statute: Chu Kheng Lim v Commonwealth[30]; Dietrich v R[31]; Coe v Commonwealth[32]; Kruger v Commonwealth[33].
[28] Article 3 states that “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.
[29] Crimes (Torture) Act 1988 (Cth); Division 274 of Schedule 1 of the Criminal Code Act 1995 (Cth).
[30] [1992] 176 CLR 1
[31] [1992] 177 CLR 292
[32] [1993] 118 ALR 193
[33] [1997] 146 ALR 126
Given this, the Tribunal did not commit any reviewable error in not taking the Torture Convention into account. The Tribunal carried out its statutory mandate of review pursuant to s.36 and Part 7 of the Migration Act. It was under no obligation to consider non-binding international conventions: SZQGE v Minister for Immigration[34].
[34] [2011] FCA 1018
In any event, given the findings of the Tribunal in relation to the applicant’s claims, the argument is moot. The Tribunal considered all of the evidence placed before it by the applicant and on the basis of that material concluded that the applicant claims were not credible, including any claim in relation to how the applicant had been treated in China and how she might be treated upon her return to China.
Secondly, and for the sake of completeness, the Minister notes and I accept that the Migration Amendment (Complementary Protection) Act 2011 (“MACP”) amends the Migration Act so as to be consistent with the application of certain aspects of the International Covenant on Civil and Political Rights (“ICCPR”) and, in particular, to provide for non-refoulement in certain circumstances where an applicant may be tortured if returned to a particular country.[35] The amendments to the Migration Act do not apply to the applicant as the substantive provisions of theMACP do not commence until 24 March 2012.[36]
[35] Certain amendments to s.36 of the Act: ss.12-15 of MACP.
[36] The MACP commences on a day to be fixed by Proclamation or, if there has been no commencement within six months of the day on which the MACP received Royal Assent, on the day after the end of the six month period: s.2(1) MACP. The MACP received Royal Assent on 14 October 2011 and, I understand that 24 March 2012 will be proclaimed for its commencement.
While in the future, the Tribunal might need to take into account claims of protection arising in relation to the ICCPR, and the Torture Convention, there was no such obligation at the time of the Tribunal’s decision in this case.
I find that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision, and the application must be dismissed. I so order.
In consequence of the dismissal of the applicant, the Minister seeks an order for costs. Scale costs in this instance would be $6,240. The Minister seeks the lesser amount of $5,368. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,368.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 28 February 2012
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