SZREK v Minister for Immigration - [2012] FMCA 508

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZREK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 508

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Tribunal gave proper consideration to applicant’s evidence.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 425, 474, Pt.8

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant:

SZREK

Second Applicant:

SZREL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 356 of 2012

Judgment of:

Emmett FM

Hearing date:

13 June 2012

Date of Last Submission:

13 June 2012

Delivered at:

Sydney

Delivered on:

4 July 2012

REPRESENTATION

The applicants appeared in person with the assistance of an interpreter in the Mandarin language.

Appearing for the Respondents:

Ms D Watson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The proceeding before this Court, commenced by way of application filed on 17 February 2012, is dismissed.
The applicants pay the costs of the first respondent.

NOTE: There was no application made by the solicitor for the first respondent for a fixed costs order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 356 of 2012

SZREK

First Applicant

SZREL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 January 2012 and handed down on that day.
The applicants claim to be citizens of the People’s Republic of China (“China”) and the first named applicant claims to be a Falun Gong follower.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

The applicants arrived in Australia on 17 February 2005, having departed legally from China on passports issued in their own name and with visitor visas which were valid until 17 March 2005. After this time the applicants remained unlawfully in Australia until 22 March 2011 when bridging visas were granted.
On 11 May 2011 the first named applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act (“the Applicant”). Supporting documentation was provided with the application. The second named applicant submitted an application for a protection visa as a member of the Applicant’s family unit, and consequently relied on the Applicant’s claims for protection.
On 5 July 2011, the Delegate refused the applicants’ application for protection visas.
On 28 July 2011, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 23 January 2012, the Tribunal affirmed the decision of the Delegate not to grant protection visas to the applicants.
On 17 February 2012 the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant set out her claims to protection in a statement attached to her protection visa application.
The Applicant claimed that she first arrived in Australia on 18 June 2004 to visit her son who was studying in Australia. During her visit the Applicant claimed that she stayed with a friend who gave her “some health products, clothes and a letter” to take back to China with her and to give to an acquaintance of her friend. On arrival in China the Applicant claimed that she delivered the material to the acquaintance and left her mobile and work number as a contact.
The Applicant claimed that on 15 June 2004, she was directed to attend the head office of her work. On her arrival, the Applicant claimed that officers from the “Department of Discipline and policemen” met with her. The Applicant claimed that she was questioned over the package she had delivered. On confirmation that she had delivered the package the Applicant claimed that she was questioned on the contents of the letter in the package, which she claimed that she denied knowing about. Consequently the Applicant claimed that the police “complained about [her] attitude” and she was then taken to a branch office in Badaguan where they continued to question the Applicant. The Applicant claimed that the police said that they had found some materials relating to Falun Gong in the package which had been delivered by the Applicant, and consequently the “police took [her] as being [a] participant of overseas Falun Gong”.
The Applicant claimed that on 16 June 2004, she was escorted to Dashan Jail where she was handed a “Punishment Notice” and consequently detained for 15 days. During her incarceration, the Applicant claimed that she was interrogated and prevented from sleeping for 24 hours as she was made to sit on a stool and was hit with a bat if she was about to fall asleep.
The Applicant claimed that on 22 June 2004, she was released from detention after a bribe was paid by her younger brother. The Applicant claimed she was convicted, but that the police refused to provide an explanation as to why she was convicted. Consequently, the Applicant claimed that she was dismissed from her employment in July 2004 for the incident and for her connection with Falun Gong. Further, the Applicant claimed that her husband was stigmatised at work for what had occurred to her, causing him to resign from his employment in August 2004.
The Applicant claimed that after the incident she was placed under “community supervision including reporting to police”. The Applicant claimed that she became depressed and lived in fear as a result of the “social and political pressure”.
The Applicant claimed that that her family in China has been “affected” as a result of her involvement in Falun Gong and have consequently warned her and her husband not to return to China as there would be “more misfortunes” for them.

The Delegate’s decision

On 30 June 2011, the Applicant attended an interview with the Delegate.
On 5 July 2011, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate found the Applicant to be a “most unreliable witness” and was not satisfied that the Applicant had any commitment to Falun Gong nor that she had suffered harm in China as claimed. The Delegate found that the Applicant’s delay in leaving China after her release from detention, her ability to obtain a new passport in Australia without incident, and her delay of over six years in lodging a protection visa application indicated that she was neither of interest to Chinese authorities nor had a genuine fear of persecution in China as claimed.

The Tribunal’s review and decision

On 28 July 2011, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 2 September 2011, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 10 November 2011 to give oral evidence and present arguments.
On 17 November 2011, the Tribunal wrote to the applicants identifying concerns it had about the Applicant’s evidence and the evidence of her witnesses, particularly in relation to inconsistencies. The applicants were invited to comment on the information by 12 December 2011.
On 6 December 2011, the Applicant responded to the Tribunal’s letter and included further documents.
On 10 November 2011, the Applicant attended the Tribunal hearing and gave evidence, she was assisted by her migration agent. The Tribunal also heard evidence from the Applicant’s husband.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised in the written submissions of the first respondent’s solicitor, Ms Watson, as follows:
“6. The RRT concluded that neither applicant was a person to whom Australia owed protection obligations and affirmed the decision not to grant the applicants protection visas.
7. In its reasons for decision, the RRT identified a number of concerns that it had with the applicants’ claims which are summarised as follows:
a)   The first applicant’s evidence regarding the delivery of the package was vague and lacking in detail;
b)   The first applicant’s claim that she was arrested in June 2004 and continued to be monitored by the authorities was not accepted, for a number of reasons:
·   Firstly there was a delay of 7 months between her release from detention and her departure from China;
·   The first applicant did not seek protection in Australia for over 6 years after her arrival here;
·   The first applicant was also able to renew her passport at the Chinese consulate in Sydney in 2011, which the RRT considered indicated that she was not a person of interest to the Chinese authorities;
·   The first applicant was able to leave China using her own passport, which again was indicative that she was not of ongoing interest to the authorities;
·   The detention documents provided by the applicant clearly indicated that the reason for arrest was due to bringing Falun Gong materials across the border from overseas, yet the first applicant had said she had only discovered the reason for her arrest after her brother had made inquiries;
·   The detention documents stated that the first applicant was detained for 15 days, although the first applicant stated during the RRT hearing that she was detained for 7 days. When this was pointed out, the first applicant said that she had been released early after payment of a bribe.
c)   The first applicant was not able to respond to questions about Falun Gong to demonstrate any depth of understanding and knowledge of her claimed practice, which she claimed commenced in 2010 while she was in Australia.
8. Furthermore, the RRT found that, in so far as the first applicant had engaged in Falun Gong, she had done so for the purposes of strengthening her application for a protection visa. Therefore, it disregarded her evidence regarding her claimed involvement pursuant to s. 91R(3) of the Migration Act 1958.
9. The RRT noted that the first applicant had provided documents in order to support her claims. However, in light of the finding that the RRT made in relation to the first applicant not being a credible witness, it indicated that these concerns far outweighed any weight the documents might otherwise carry.”

The proceeding before this Court

The applicants were unrepresented before this Court, although they had the assistance of an interpreter in the Mandarin language.
On 24 April 2012, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that she wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicants were referred to the Court’s Legal Advice Scheme for free legal advice. The applicants have participated in the Court’s Legal Advice Scheme and received free legal advice. The applicants were also provided with the contact details of legal services providers and interpreting and translation services in documents headed in their own language.
At the commencement of the hearing, the Applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application and that the applicants had no further documents to present to the Court this morning in support of their application.
In the application, filed on 17 February 2012, under the heading “Orders sought by the Applicant (Identify each order sought by way of final relief)” the following was stated:
“1. I disagree with Immigration and RRT’s decision. They did not well consider my risk or danger if I return to origin.
3. RRT did not give a thorough and prudent consideration or investigation upon my explanation, evidence and witness statement provided in and off the hearing in relation to my history and persecution ever experienced in China, and I don’t think this is fair enough for justice of my claim and decision made apparently against facts for certain.”
In the same application under the heading “The Grounds of the Application are:”, the following was stated:
“1. I am a Chinese citizen and Falun Gong practitioner, who have been persecuted by Chinese government. I had been arrested by police and under threat of government authority.
2. I have a fear to go back to China considering my history and unchanged policy of systematic suppressing against Falun Gong in China.
3. [A]s a committed Falun Gong practitioner, I will never give up my belief where I go, and the Chinese government will never let me go if I pursue Falun Gong in China.
4. I have strong concern about my safety and impact on my family members, relatives and associates who once offered me sympathetic assistance due to my Falun Gong background if return. In considering my age, in particular family background Australia is the most safe and ideal place for our entire family to settle.”
Each of the complaints was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
The solicitor for the first respondent, Ms Dale Watson, tendered a bundle of documents identified as “Relevant Documents” filed on 16 March 2012 and marked Exhibit 1R. Exhibit 1R disclosed that the Applicant first visited Australia as a tourist in 2004 when she stayed with her friend and witness, Ms Fan, who allegedly gave her the package to take back to China.
In support of the application, the Applicant said that the Tribunal had not considered carefully her current situation or her past situation. She said that the Chinese government wanted to trick her into going back to China.
The Applicant was keen to explain why she had not applied for a protection visa between 2005 and 2011. I explained to the Applicant that it was not for this Court to reconsider her claims and make different factual findings or reach different conclusions. I explained to her that the role of the Court was confined to considering whether the decision of the Tribunal was affected by a mistake that goes to its jurisdiction. In those circumstances, the only relevant findings in relation to the Applicant’s explanation for her failure to apply for a protection visa between 2005 and 2011 are the findings made by the Tribunal in respect of that matter.
The second applicant was also invited by the Court to say whatever he wished in support of the application. However, the second applicant had nothing to say.
The Applicant’s written claims make clear that her difficulties in China commenced following her delivery of Ms Fan’s package to Ms Fan’s friend in China.
The Tribunal summarised the oral evidence given by the Applicant and the witness, Ms Fan, and the second applicant. The Tribunal also summarised various exchanges it had with the Applicant about her claims and noted matters of concern that it had put to the Applicant and noted her responses. The Tribunal noted in some detail the substance of the exchanges.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 24 April 2012, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

In particular, the Tribunal noted that the Applicant had not been convicted of any offence in China, although she claimed to have been detained for seven days and was required to report weekly to the police for three months thereafter.
The Tribunal also noted that it raised with the Applicant its concern over the fact that she had not been a Falun Gong practitioner in China but had only commenced to practice Falun Gong in Australia in 2010. The Tribunal noted that this might lead the Tribunal to find that she was engaging in that conduct in order to strengthen her application to be a refugee. The Tribunal noted the Applicant’s response that this was not so.
The Tribunal also identified with particularity the country information to which it had regard. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal comprehensively rejected the Applicant’s claims of past persecution in China and of having been arrested and detained and placed under community supervision for the reasons claimed. The Tribunal found the Applicant’s inability to respond to questions indicating any depth of understanding and knowledge of Falun Gong to be unimpressive and her responses to be general and shallow. The Tribunal found that at times her evidence appeared rehearsed and unconvincing.
The Tribunal found that the Applicant had fabricated her evidence about her ability to leave China without any difficulty. The Tribunal found that the Applicant’s ability to renew her passport at the Chinese consulate in Sydney in 2011 to be a strong indication that the Applicant is not a person to whom is of interest to the authorities in China.
Further, the Tribunal found there was no convincing or plausible evidence before it to indicate any circumstances which would have prevented the Applicant from seeking protection in Australia immediately or soon after her arrival in Australia. The Tribunal referred to Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (“Selvadurai”) where Heerey J at [349] stated as follows:
“The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution…”
The Tribunal found that the Applicant’s delay indicated that, at the time of her arrival in Australia and for the six years thereafter, the Applicant did not have a strong fear for her personal safety or future wellbeing in China.
The Tribunal also found the Applicant’s delay in leaving China, upon her claimed release from detention in June 2004, to raise serious concerns about the subjective fear the Applicant claimed to have.
The Tribunal found that any engagement in Falun Gong by the Applicant in Australia was for the sole purpose of strengthening her refugee application and that therefore such conduct should be disregarded pursuant to s.91R(3) of the Act.
The Tribunal summarised exchanges it had with the Applicant’s witnesses and stated:
“The Tribunal has had regard to the evidence of Ms Fan and Mr Cao however the Tribunal has determined this application on the basis of the applicant’s evidence.”
A fair reading of the Tribunal’s decision record makes clear that the Tribunal found the Applicant to be of so little credibility, that the Tribunal was not prepared to put weight on any corroborative evidence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49]) .
In any event, Ms Fan’s evidence was not capable of being corroborative of the Applicant’s claims of persecution in China. Similarly, the Applicant’s husband’s evidence was not corroborative of the persecution the Applicant claimed to have suffered in China.
The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The Tribunal’s decision record does not support the Applicant’s complaints that the Tribunal “did not give a thorough and prudent consideration or investigation” to her claims and her evidence or that they were not properly considered by the Tribunal.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai per Heerey J at 348).
The Applicant was invited to attend a hearing pursuant to s.425 of the Act and indeed attended that hearing and gave evidence. The Tribunal heard evidence from each of the Applicant’s witnesses which it considered. The Tribunal put to the Applicant both during the hearing and in writing the matters of concern that it had about the Applicant’s evidence and noted the Applicant’s responses.
Moreover, a fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72] per Gleeson CJ, [127] per Kirby J).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
In the circumstances, the Applicant’s complaints appear more to be a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Following the Delegate’s decision, the Applicant was aware, or should have been, that her credibility was an issue. Both the Delegate’s decision and the Tribunal’s exchanges with the Applicant during the hearing were sufficient to indicate to the Applicant that everything she said in support of her application was in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47]).
In the circumstances, the complaints made by the Applicant to this Court, both orally and in writing, do not demonstrate any jurisdictional error on the part of the Tribunal and none is otherwise apparent on the face of the Tribunal’s decision record or the conduct of its review.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants and their witness at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:

Date: 4 July 2012