SZQZO v Minister for Immigration - [2012] FMCA 430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQZO v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 430

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal misunderstood the applicant – whether misunderstanding a question of fact – whether Tribunal failed to provide real hearing.

Migration Act 1958 (Cth), ss.422B, 424A

MZYGB v Minister [2010] FCA 1032

Applicant:

SZQZO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2985 of 2011

Judgment of:

Raphael FM

Hearing date:

7 May 2012

Date of Last Submission:

7 May 2012

Delivered at:

Sydney

Delivered on:

7 May 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Minter Ellison

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2985 of 2011

SZQZO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in this country as a tourist on 16 March 2011. On 25 March 2011 she applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 1 June 2011 a delegate of the Minister refused to grant her a protection visa. On 6 July 2011 the applicant applied for a review of that decision from the Refugee Review Tribunal. She attended a hearing before the Tribunal which interviewed her and considered her claim.
On 25 October 2011 the Tribunal wrote to the applicant, pursuant to the provisions of s.424A of the Migration Act 1958 (Cth),[1] setting out information which the Tribunal considered would, subject to the applicant’s comment or response, be the reason or part of the reason for affirming the decision under review. The applicant responded to that letter on 10 November 2011. On 25 November 2011 the Tribunal determined to affirm the decision not to grant a protection visa.
[1] “Act”.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of membership of a particular social group/religion/political opinion. She claimed that she had been a practising Falun Gong adherent since she had been in school. She told that she had been taught Falun Gong’s exercises by her physical education teacher at high school and that she had continued with the practice of the movement since that time.
The applicant told how she was working at a Holiday Inn hotel in her home town where she was mentored by a lady she describes as Aunty L. Regrettably Aunty L became stricken with lung cancer. The applicant went to see her and told her that she might get assistance from her symptoms through the practice of Falun Gong. Aunty L was unable to afford other medical treatment and so she agreed. The applicant attended her residence regularly and practised Falun Gong with her. This enabled Aunty L to go into remission. After about three months a neighbour saw them practising and reported them. The applicant claimed that she was arrested and taken to the local police station and was detained and tortured. She claimed to have been kept in a dark room and beaten. She claimed that she was not given food and drink for six days. Eventually, she claimed, she was released as a result of her parents paying a bribe.
The applicant says that about two years later she was arrested again, not because she was found practising Falun Gong, although she did continue with her practice in private, but because there was some form of general round-up prior to a national day as it was feared there was going to be a Falun Gong demonstration. Once again she claimed that she was detained, tortured and raped. Once again she managed to obtain a release as a result of the payment of a bribe. The applicant then moved away from her home town and eventually arranged that she should join a tourist group coming to Australia, where she left the group and made her claim for protection.
The Tribunal questioned the applicant in detail about her story and also about her knowledge of Falun Gong and its practices. The Tribunal found some serious inconsistencies in her story relating to a person she claimed was her husband who had originally been on her application but had been removed from it. It also found inconsistencies between her story and some information that the Department had obtained from the tour company which indicated that before the applicant was given permission to leave China investigations were made about her residence and employment. These investigations revealed that the applicant was a manager of a noodle factory, was not married and had been in regular employment for some considerable time. The Tribunal was also concerned about the applicant’s inability to give descriptions of simple Falun Gong exercises or the names of some exercises.
The s.424A letter dealt with the contradictions between the interview that the applicant had with the delegate and the information which she gave to the Tribunal concerning her husband. It dealt with the difference between the information given at the interview with the delegate about her knowledge of Falun Gong, and dealt with the information provided by the tour company. In the applicant’s response she told about an on-and-off relationship with a man she described as her husband whom she had not met until she came to Australia. She blamed the inconsistencies about her Falun Gong practice on her exhaustion and concerns about money. She said that the tour company had made all the arrangements for the visa.
The Tribunal in its findings and reasons sets out in detail the reasons why it did not find her to be a witness of truth. These followed the form of the matters raised in the s.424A letter. The Tribunal did not accept the applicant’s explanation. Having concluded that she had not told the truth, it did not accept that she had been a Falun Gong practitioner in China, or that she had been arrested and detained as she had said, or that she had suffered torture or been raped. The Tribunal concluded that the applicant would not suffer persecution if she returned to China now or in the near future, nor did she have a well-founded fear of persecution for a Convention reason.
On 23 December 2011 the applicant filed an application in this court seeking review of the decision of the Tribunal. There were three grounds in that application. The first was:
“In paragraph 127, the tribunal member misunderstand my de facto relationship with XG.”
In actual fact XG is the name of the applicant. But Mr X is the name of the person she claimed was her husband. The applicant has not provided any particulars as to how the misunderstanding arose, or whether the misunderstanding constituted a jurisdictional error. It seems to the court that the finding concerning her relationship is a finding of fact, and those are matters which are exclusive to the Tribunal: MZYGB v Minister [2010] FCA 1032 at [18] per Gray J. If one looks at the Court Book one can see that it was quite open to the Tribunal to make the finding it did about the applicant’s relationship with Mr X given the inconsistencies in her history between the delegate and the Tribunal.
The second ground of application was:
“The tribunal member failed to give me a chance to explain my work and detention history.”
Having read the Tribunal decision, which covers some 132 paragraphs and which goes into the applicant’s history in some considerable detail, I am unable to accept that even if this was indicative of a category of jurisdictional error the Tribunal made the failing claimed. The applicant’s work and detention history was taken up with her in a section entitled “Past Events” [59-87 CB124-127] and again referred to at CB135 in the findings and reasons. This claim cannot be substantiated.
The third ground raised by the applicant was:
“The tribunal member failed to provide me with an opportunity to comment on the above matter.”
The Tribunal member asked the applicant a series of questions concerning her work history and her detention at the interview and then provided her with a letter in which the concerns that he had following the interview were raised. The applicant had an opportunity to respond and did respond. The Tribunal’s responsibilities so far as the provision of procedural fairness are set out in s.422B and Division IV of the Act where an exhaustive statement of the natural justice hearing rule is codified. I accept the respondent’s submission that the Tribunal complied with all the requirements of that rule in the manner in which it treated the applicant. This third ground also cannot be sustained.
The applicant attended the hearing this morning, albeit after the application had been summarily dismissed because of her non-attendance. She told me that the Tribunal did not believe what her husband and herself had told them. Her husband, of course, did not give evidence, nor did he appear. She did not make any further comment about the Tribunal’s decision. In these circumstances, I must find that the application should be dismissed and that the applicant should pay the respondent’s costs which I assess in the sum of $4,000.00.

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

Date: 23 May 2012