SZRAT v Minister for Immigration
[2012] FMCA 928
•25 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRAT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 928 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.411, 424A, 476 |
| SZMXS v Minister for Immigration and Citizenship [2009] FCA 1542 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | SZRAT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 30 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 30 of 2012
| SZRAT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 9 December 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, last arrived in Australia on 16 March 2011. He applied for protection in May 2011. In support of his protection visa application he claimed to be opposed to the Chinese Communist Party and to have expressed such views publicly in China. He claimed to have organised and participated in meetings of people opposed to the government and to have expressed anti-government views on the internet. He claimed that in 2010 he was taken to the police station and questioned due to participating in anti-government meetings. He made claims about what had occurred to others who had been involved in such arrests and protests.
The applicant was invited to attend a Departmental interview. His migration agent sought a postponement of the interview and provided a document from a “clinic” advising that the applicant had obtained acupuncture treatment for a sprained ankle and recommending he have “14 days off”. It was submitted that the delegate advised that he was not prepared to postpone the interview. The applicant through his migration agent indicated that he was not able to attend.
The delegate refused the application and the applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing. The only evidence before the court of what occurred at the hearing is the Tribunal reasons for decision. The applicant also provided the Tribunal with a written statement in support of his application in which he repeated the claims made initially and made additional claims about uploading posts to an anti-Chinese government website, and publishing posts in a specified “famous prodemocracy website”. He provided photographs said to depict the forced or violent demolition of a particular village and video clips to support his claims about what had occurred to a person whose protest he claimed he had supported.
Relevantly, the Tribunal recorded that towards the end of the hearing the applicant’s representative sought further time to respond to some of the Tribunal’s concerns and to provide further evidence, including translations. The Tribunal granted a further two weeks. It subsequently received a submission from the applicant’s adviser stating that posts the applicant made in China had been deleted from the website. The adviser provided HTML addresses for three posts the applicant claimed he posted while in Australia and translations for two. The adviser also addressed some of the concerns raised with him in the Tribunal hearing.
In its findings and reasons the Tribunal set out the applicant’s claims to fear returning to China on the basis of his political opinion and anti-government political views and his claims that while in China he had met regularly with three friends with similar views. It recorded that the applicant claimed the members of the group were “arrested on one occasion and one of the group was later arrested for attending an anti-government rally” and that in China he and other members of the group on occasion posted anti-government materials on the internet. H claimed that he did this from his home computer. The applicant claimed that he had been “too scared to take part in any other political activities while in China” but that since arriving in Australia he had posted anti-government views on some websites anonymously. Otherwise he had not taken place in any anti-government or pro-democracy activities. The applicant also claimed to fear returning to China as a result of an arrest of a friend and that he would not be able to express his political opinion for fear of persecution. However the Tribunal found that the applicant was not a credible witness. It rejected his claims about his political views and activities in China and Australia for reasons which it gave.
The Tribunal found that aspects of the information the applicant had provided gave rise to concerns about his credibility and the plausibility of aspects of his claims. In particular, the Tribunal had regard to inconsistencies between the evidence the applicant gave it and the Department and in his own evidence to the Tribunal, which the Tribunal detailed, as well as concerns about the plausibility of aspects of the applicant’s claims. The Tribunal did not find it credible that after the applicant’s arrest, which he suggested was brought about by a waiter or waitress in the restaurant where they met informing on them, the group would nonetheless continue to meet at the same restaurant at the same time and on the same day of the week.
The Tribunal also found the applicant’s claim that he did not come to the attention of the authorities for posting anti-government views on an anti-government website from his home computer since 2008 inconsistent with independent country information about control of the internet in China. It was of the view that if he had done so the applicant would have been detected and action taken particularly given his claims about having been arrested and questioned.
The Tribunal expressed concern about the fact that the applicant had not provided any documentary evidence consistent with his claims at the hearing, his inability to produce evidence of any postings under the pen name under which he claimed to have published those blogs and his later claims that they had all been deleted.
It also had regard to the absence of evidence supporting his claims about posting anonymous blogs in Australia. The Tribunal found that the translations the applicant provided after the hearing did not relate to the circumstances he had referred to in the hearing and were published and reported by other persons, neither anonymously nor by the applicant. In addition the Tribunal had regard to the fact that the third website was in Chinese and not translated. The Tribunal placed no weight on these websites as evidence in support of the applicant’s claims.
The Tribunal also had regard to inconsistencies and changes in the applicant’s evidence in relation to which websites he had posted blogs or information on while in Australia, inconsistencies in relation to political discussions he claimed he and his family had at home and inconsistencies about the circumstances surrounding his arrest (which it detailed) including whether he and the others were kept together, what day they were arrested and how long they were held at the police station.
The Tribunal considered the photographs and videos provided by the applicant. It accepted that the named village had been demolished, that a Mr Lu was involved in protests against the government and that the Chinese authorities use violence against political protestors. However it did not consider that this material supported the applicant’s specific claims about his own role in the events (which he claimed was to publish political opinions about them). While the applicant claimed to have a personal involvement with Mr Lu, the Tribunal found his evidence about that relationship to be vague and unconvincing and not consistent.
These concerns led the Tribunal to find that the applicant was not credible. It rejected his claims about his political views and activities in China and Australia. It did not accept that the applicant held or expressed any anti-government views in China or Australia, that he attended weekly meetings with friends with similar political views or that one of them was later arrested and the applicant went into hiding as a result. It did not accept the applicant was a person of interest to the Chinese authorities or that he left China as a result of a fear of persecution because of his political views.
The Tribunal considered the applicant’s claim that if he returned to China, he would not express his political views for fear of the consequences. However, having regard to its failure to accept that he had expressed anti-government views in Australia or become involved in any movements, organisations, protests and rallies and the fact that it did not accept that he had been unable to find information about such activities in circumstances where he claimed to be a regular user of the internet with a daughter who “would have access to other students [in Australia] and a minimum level of English”, the Tribunal was of the view that had the applicant “had a desire to express his claimed political opinions he would have been able to find out details of how to become involved and would have done so in Australia where he is free to express political views”. The Tribunal found that the fact that he had not done so suggested that he did not have a “genuine desire” to be involved.
In light of its findings the Tribunal did not accept that the applicant would express any anti-government views in China or that he would not do so out of a fear of persecution. It did not accept that he had any genuine desire to express such views or to be involved in anti-government activities. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to China now or in the reasonably foreseeable future. It affirmed the decision of the delegate.
The applicant sought review of the Tribunal decision by application filed on 6 January 2012. In that application he seeks review not only of the Tribunal’s decision, but also of the delegate’s decision. Insofar as he seeks review of the delegate’s decision, as submitted by the solicitor for the first respondent, the delegate’s decision is an RRT reviewable decision (see s.411 of the Migration Act 1958 (Cth)). It is therefore a primary decision within s.476(4) of the Migration Act. Under s.476(2), this Court has no jurisdiction in relation to a primary decision. Hence, insofar as the applicant takes issue with the delegate’s failure to postpone the interview, that does not establish reviewable error.
The applicant was invited to and attended a Tribunal hearing and there is no evidence that he was in ill health or otherwise unable to participate in the Tribunal hearing at that time.
The first ground, that the Department “failed to take into account [his] health and denied [him] an opportunity to attend an interview”, does not disclose any jurisdictional error on the part of the Tribunal or other reviewable error.
The second ground is an unparticularised claim that the Tribunal “failed to consider the evidence provided by [the applicant]”. In oral submissions the applicant took issue with the Tribunal’s failure to accept his evidence and his reasons. He suggested that it rejected everything he submitted. Insofar as the applicant seeks merits review, merits review is not available in this Court. The issue that the applicant takes with the Tribunal’s factual findings does not establish jurisdictional error.
While the Tribunal is not obliged to refer in its reasons to every piece of evidence submitted by an applicant, see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46], in this case the Tribunal considered the documentary evidence submitted by the applicant. However it found that it did not support the applicant’s claims or that it was not evidence to which weight could be given in support of the applicant’s claims. Such findings were open to the Tribunal on the material before it for the reasons that it gave. The Tribunal specifically referred to the photographs and videos provided by the applicant, but found that they did not support the applicant’s specific claims about his own role in relation to the demolition of a particular village and the involvement of Mr Lu in protests against the government.
The Tribunal also had regard to the evidence of the applicant and the information he provided in relation to website addresses. I note that in the course of the hearing, the Tribunal had indicated to the applicant that if he wished to put evidence of anything specific to his claims, he would need to provide a translation. A translation was provided in relation to two websites. The Tribunal found that they did not relate to the circumstances the applicant had claimed and stated they were published by others, not anonymously or by the applicant as he had claimed. It was open to the Tribunal to consider but not place weight on such material as evidence in support of the applicant’s claims. The Tribunal also placed no weight on the untranslated information from a website. While no specific issue was raised about this by the applicant, I note that the Tribunal is not under a general duty to obtain a translation of all material that an applicant seeks to rely upon (see SZMXS v Minister for Immigration and Citizenship [2009] FCA 1542).
Furthermore, in this case in the hearing (as well as in letters sent to him) the Tribunal specifically drew the attention of the applicant to the need to provide a translation of any evidence specific to his claims. The Tribunal took the untranslated document into account, but was unable to place weight on it. No jurisdictional error is apparent in this regard. Insofar as the applicant’s contention in ground two takes issue with the Tribunal’s failure to accept his claims, that seeks impermissible merits review and does not establish jurisdictional error. Ground two is not made out.
Ground three is a general claim that the Department and the Tribunal “failed to give [the applicant] a fair treatment”. As indicated, this Court has no jurisdiction to review the decision of the delegate. The general and unparticularised claim in relation to the Tribunal is not made out. There is nothing in the material before the Court to suggest that the Tribunal in any way failed to comply with its obligations under Division 4 of Part 7 of the Migration Act. It is not apparent that there is any information which would enliven its obligations under s.424A(1) of the Act. It appears that in the course of the hearing the Tribunal raised dispositive issues with the applicant. Indeed it put to the applicant concerns about various aspects of his evidence and country information about government control of the internet. The Tribunal also gave the applicant the opportunity to provide further information after the hearing. It has not been established that the Tribunal failed to comply with its statutory obligations or that it otherwise failed to accord the applicant procedural fairness. Ground three is not made out.
As none of the grounds relied on have been established, the application should be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,300. The applicant told the Court that he did not have the money to pay these costs. The applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent although it may be a matter to be taken into account by the Minister in determining how and when to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 9 October 2012
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