SZQWC v Minister for Immigration - [2012] FMCA 288

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQWC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 288

MIGRATION – Review of Refugee Tribunal decision – refusal of a protection visa – applicant claiming persecution principally because of the Chinese one child policy – applicant not believed – no jurisdictional error.

Migration Act 1958 (Cth), ss.36, 91R, 422B, 424A, 425

Abebe v Commonwealth (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration [2003] FCAFC 184
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NADH of 2001 v Minister for Immigration (2005) 214 ALR 264

Applicant:

SZQWC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2652 of 2011

Judgment of:

Driver FM

Hearing date:

10 April 2012

Delivered at:

Sydney

Delivered on:

10 April 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr I Temby
Minter Ellison

ORDERS

The application is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2652 of 2011

SZQWC

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 17 October 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Heibei Province in China and had made claims of persecution arising out of the application of the Chinese one child policy and his religion. The applicant’s wife and two children remain in China.
The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 4 April 2012.
On 15 October 2010, the applicant arrived in Australia from China[1].
[1] Court Book (“CB”) 3
On 10 December 2010, the applicant applied to the Minister’s Department (“the Department”) for a protection (Class XA) visa[2]. Attached to the applicant's application were copies of pages of his Chinese passport, his "Resident ID certificate" and a statement outlining his claims[3]. In the attached statement, the applicant claimed that[4]:
a)he and his wife had their first child in July 2009;
b)his wife fell pregnant with their second child in September 2010;
c)due to China's one child policy, his wife was ordered to have an abortion by the Chinese authorities;
d)he and his wife did not want the pregnancy aborted;
e)he and his wife were threatened with a penalty if the pregnancy was not aborted;
f)when he challenged the order made by the Chinese authorities, he was ordered to pay a penalty of 20,000 Yuan; and
g)he left China because he hated the family planning law.
[2] CB 1-29
[3] CB 25-29
[4] CB 26-27
On 27 April 2011, a delegate of the Minister wrote to the applicant, inviting him to attend an interview with an officer of the Department on 16 May 2011[5]. The applicant attended this interview[6].
[5] CB 32-33
[6] CB 39
On 16 May 2011, the delegate refused the applicant's application for a protection visa[7]. The delegate found the applicant to be a poor witness of truth[8] and found that the applicant did not have a genuine fear of harm and that there was not a real chance of persecution occurring in the reasonably foreseeable future[9].
[7] CB 38-45
[8] CB 44
[9] CB 45
The applicant was notified of this decision by letter dated 16 May 2011[10].
[10] CB 34-37
On 17 June 2011, the applicant sought review of the delegate's decision by the Tribunal[11].
[11] CB 54-56
On 22 July 2011, the Tribunal invited the applicant to appear at a hearing before the Tribunal on 6 September 2011 to give evidence and present arguments relating to the issues arising in his case[12] however that hearing did not proceed.
[12] CB 66-67
On 9 September 2011, the Tribunal invited the applicant to appear at a rescheduled hearing before the Tribunal on 13 October 2011 to give evidence and present arguments relating to the issues arising in his case[13].
[13] CB 76-74
On 13 October 2011, the applicant attended a hearing before the Tribunal, with the assistance of a Mandarin interpreter[14]. At the hearing, the applicant provided further written documents in support of his claims, including a letter from his wife[15] and birth certificates for his two children[16]. During the hearing, the applicant also advanced the following further claims:
a)he had been detained for two days by Chinese authorities after he had failed to inform them where his pregnant wife was staying[17];
b)the Chinese officials had discovered the whereabouts of his wife after he arrived in Australia, but his wife's aunt used her connections to prevent the officials from taking his wife[18];
c)his second child was born in June 2011, however the Chinese officials will not register the child[19];
d)he had been attending an Anglican Church in Campsie since he arrived in Australia and he intended to continue to attend a church if he returned to China[20];
e)his wife had been informed that he would not be allowed to work should he return to China, as a result of breaching the family planning laws[21]; and
f)he had been detained by the Chinese authorities for a second time, again for two days[22].
[14] CB 80
[15] CB 83-84
[16] CB 87, 89
[17] CB 102, [36] and [37]
[18] CB 102, [41]
[19] CB 103, [43]; CB 103-104, [50]
[20] CB 103, [44]-[47]
[21] CB 103, [48]
[22] CB 105, [65]
On 17 October 2011, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa[23]. The Tribunal notified the applicant of that decision by letter dated 18 October 2011[24].
[23] CB 97-109
[24] CB 96
The Tribunal found that the applicant was not “a witness of truth” on the basis of its concerns as to the credibility of the applicant's account[25], which ultimately led the Tribunal to conclude that there was “no credible evidence that if the applicant returns to China there is a real chance he will suffer persecution based on any Convention ground”[26].
[25] CB 107, [79]
[26] CB 108, [88]
The Tribunal considered that the applicant “gave the appearance of a witness endeavouring to recollect a fabricated account of events rather than someone relating an account of events that had actually taken place”[27] and also found that the applicant's evidence to the Tribunal “differed in fundamental and significant respects from that given in his statement”[28]. In particular, the Tribunal found that:
a)the applicant gave two conflicting accounts regarding the timing of when he claimed that the Chinese authorities located his wife at her hiding place, and introduced new material to explain the discrepancy when it was raised with him at the Tribunal's hearing[29].
b)the applicant gave two conflicting accounts regarding whether he had received anything in writing from the Chinese authorities ordering his pregnant wife to have an abortion, and again introduced new material to explain the discrepancy when it was raised with him at the Tribunal's hearing[30].
[27] CB 106, [67]
[28] CB 107, [78]
[29] CB 106, [69]-[73]
[30] CB 106-107, [74]-[77]
Given the adverse credibility finding made, the Tribunal gave no weight to the supporting documents provided by the applicant[31] and disregarded the applicant's attendance at an Anglican Church in Australia pursuant to s.91R(3)(b) of the Migration Act 1958 (Cth) (“the Migration Act”)[32].
[31] CB 108, [83]
[32] CB 108, [84]-[87]
Accordingly, the Tribunal could not be satisfied that the applicant was a person to whom “Australia has protection obligations under the Refugees Convention” and therefore concluded that he did not satisfy the criterion set out in s.36(2)(a) of the Migration Act for a protection visa[33].
[33] CB 108, [89]
These proceedings began with a show cause application filed on 21 November 2011. The applicant continues to rely upon that application. There are three grounds in the application which are not particularised:
Refugee Review Tribunal denied procedural fairness to me.
The RRT member ignored my evidence. He misdirect me to answer questions.
I have not received the CD as requested.
I received as evidence the court book filed on 22 December 2011. The applicant filed an affidavit in support of his application which contained mixed allegations of fact and submissions. I receive the affidavit as evidence to the extent that it made allegations of fact and otherwise as a submission.
The Minister’s submissions address the grounds of review in the application. The first ground is an asserted denial of procedural fairness. As the Minister notes, the Tribunal’s obligation to afford procedural fairness under the general law is circumscribed by s.422B(1) of the Migration Act.
I am satisfied that the Tribunal complied with its obligation under s.425 of the Migration Act to invite the applicant to a hearing and to provide a real hearing opportunity. There is no doubt that the applicant understood the essential and significant issue upon which the review would turn. That issue was the credibility of the applicant’s claims.
I accept the Minister’s submission that the Tribunal’s obligations under s.424A of the Migration Act were not engaged because the decision was based on adverse credibility findings made by the Tribunal based upon the applicant’s own evidence. I also accept that the Tribunal’s concerns about the applicant’s varying accounts of events were put to him during the hearing.
I agree with the Minister’s submissions in relation to the second ground of review. The Minister submits that Ground 2 of the application contains two separate allegations of jurisdictional error; namely, that the Tribunal “ignored my evidence” and that the Tribunal “misdirected me to answer questions”.
With respect to the allegation that the Tribunal ignored the applicant's evidence;
a)the Tribunal's reasons for decision show that the Tribunal complied with its statutory obligation to consider the applicant's individual claims against the criteria for a protection visa set out in the Migration Act, including whether the applicant had a well-founded fear of persecution for a Convention reason[34];
b)the Tribunal's reasons for decision show that the Tribunal had regard to all of the applicant's evidence advanced in support of his claims, including that presented in his protection visa application[35], his interview with the delegate[36] and at the hearing before the Tribunal[37];
c)having considered the applicant's claims and evidence, the Tribunal made a finding that the applicant lacked credibility and concluded that his claims could not be believed;
d)the Tribunal put its concerns regarding the applicant's credibility to the applicant at the Tribunal's hearing; and
e)the adverse credibility finding made by the Tribunal was open to the Tribunal on the material before it for the reasons it gave[38].
[34] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [45]
[35] CB 20-24
[36] CB 25
[37] CB 27-51
[38] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 191-2
With respect to the allegation that the Tribunal misdirected the applicant in relation to questions that it asked;
a)the proceedings of the Tribunal are inquisitorial in nature and the Tribunal is not required to uncritically accept the applicant's claims[39];
b)in testing the veracity of the applicant's claims, the Tribunal was entitled to ask the questions it considered relevant to the review it was undertaking to satisfy itself of particular matters[40];
c)the applicant was assisted at the Tribunal’s hearing by a Mandarin interpreter; and
d)there is no evidence that the Tribunal misdirected or otherwise misled the applicant at any stage of the Tribunal's hearing.
[39] Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ; Minister for Immigration v Guo (1997) 191 CLR 559 at 596
[40] NADH of 2001 v Minister for Immigration (2005) 214 ALR 264 at [125]
The third ground of review concerns the alleged non-provision to the applicant of the sound recording of the Tribunal’s hearing. While the applicant asserts non-provision of the sound recording there is no evidence to support that assertion. The applicant says that at the end of the Tribunal hearing the presiding member inquired if the applicant would like a copy of the sound recording and he answered “yes”. He asserts that he subsequently received a letter from the Tribunal but the CD containing the sound recording was not included.
The Minister submits that the ground advanced by the applicant does not provide a basis for the relief claimed. I agree Ground 3 does not provide a basis for the relief claimed by the applicant for the following reasons;
a)first, Ground 3 contains a mere factual assertion which does not disclose any recognisable ground of judicial review;
b)secondly, there is no evidence that the applicant made a request for an audio recording of the Tribunal's hearing; and
c)thirdly, any failure by the Tribunal to provide an audio recording of the Tribunal's hearing (which the Minister does not concede occurred in this case) could not be regarded as having affected the decision made by the Tribunal or the Tribunal's jurisdiction to make its decision as;
i) the applicant had been afforded an opportunity to give evidence, present arguments and respond to the Tribunal's concerns at the Tribunal's hearing; and
ii) there is no evidence that the applicant requested any additional time to make further submissions following the conclusion of the hearing nor any basis upon which the Tribunal would have been obliged to accede to such a request.
The applicant told me that he has now obtained the CD containing the sound recording of the Tribunal hearing and he has listened to it. I put to the applicant that having listened to the recording, if there was some problem concerning the conduct of the Tribunal hearing apparent from the recording, he would have raised that problem. The applicant has not, however, after listening to the sound recording raised any issue of concern.
I conclude that the applicant has failed to demonstrate any jurisdictional error by the Tribunal. The Tribunal decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs fixed in the sum of $4,500. Scale costs in this instance would be $6,240. The applicant asserted an inability to pay costs but that is not a reason for the court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 13 April 2012