SZREZ v Minister for Immigration
[2012] FMCA 862
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZREZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 862 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal did not conduct a bona fide review, was biased, reached the wrong decision and denied the applicant a real and meaningful hearing. |
| Migration Act 1958, ss.425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZREZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 426 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 September 2012 |
| Date of Last Submission: | 14 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 426 of 2012
| SZREZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who arrived in Australia on 13 May 2010 as the holder of a student visa. On 30 May 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in China because of his perceived involvement in Falun Gong and his breach of the one child policy. On 22 August 2011 the applicant’s protection visa application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-19 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement lodged with his protection visa application:
a)he had been a sales manager from 1995 to 2010;
b)during a dinner conversation with friends on 1 May 2003 [recte: 2004], he commented that Falun Gong members had suffered at the hands of the Chinese government. His comments were reported to the local police who proceeded to detain him for three days. He was accused of being “an organiser” and of propagandising Falun Gong in public. The police “extorted confessions by torture” and he was required to write a guarantee and pay 5,000RMB before being released;
c)when his wife became pregnant with their second child he was told that she would have to have an abortion unless they paid a fine of 25,000RMB. However, two weeks after he paid the fine the Family Planning Office forced his wife to have an abortion. She was more than six months pregnant at the time;
d)after the abortion he went to the government to ask for justice but was accused and convicted by the Family Planning Office of disrupting the public service. He was detained for five days, during which time he was forced to confess and write a guarantee. He was released in mid-March 2006 after he paid a fine of 3,000RMB;
e)his wife was the organiser of an underground church in their village. On 22 May 2011 she was arrested by the local government and was still in detention; and
f)if he returned to China he would ask the government for justice and would be persecuted and treated unfairly.
The applicant appeared before the Tribunal on 23 January 2012 at which point he made the following additional claims:
a)when he had been in Singapore (which he had visited several times before coming to Australia) he had read some coverage about the Chinese government’s treatment of Falun Gong practitioners;
b)during the dinner on 1 May 2004, one of his friends started the conversation about Falun Gong. The next day he and about five or six of his friends were arrested. Because he was the only one who had travelled abroad, the police accused him of being a Falun Gong practitioner and of having Falun Gong connections overseas;
c)he was detained for five days (although he later said that it was for three days) and was forced to write a confession and the names of other practitioners. In his confession he wrote that he had drunk too much and was not a Falun Gong practitioner;
d)after this incident some unknown people walked around his home, possibly because they wanted to get information about him from his neighbours. He then said that his neighbours/friends told him that it had something to do with his Falun Gong activities and that these people already had information about his performance and whom he contacted while at home. He believed that they were government officials;
e)his wife fell pregnant with their second child in January 2006 and was arrested in March 2006. He then said that they found out about the pregnancy in late January/early February when his wife was two months pregnant and that she had the abortion on 16 March 2006 when she was four months pregnant;
f)he was away on business when his wife had the abortion. He learned of the abortion the day after it occurred, arrived home two days later and argued with the government on the third day. He then said that he learned of the abortion on the day it occurred and came home on the evening of the following day. Later, the applicant said that his wife had the abortion on 15 March, that he returned on 16 March and argued with the authorities on 17 March, following which he was detained for five days;
g)he could not remember the dates of his detention but it should have been on 24 or 25 March;
h)he did not receive a receipt for the payment of the fine in respect of his wife’s second pregnancy;
i)the Family Planning Office did not ask him to pay the fine; they just wanted his wife to have the abortion. He decided to approach another agency, the City Government Office, to resolve the problem and paid 25,000RMB to an official as “a kind of bribe”;
j)after his wife’s abortion, he approached the official who originally took his money and asked for a refund;
k)he had not been convicted of anything in China;
l)his wife was arrested on 22 May (2011) because of her religious activities. She was detained for one to two weeks and was released in the first week of June. He did not know the specifics because the officer who released his wife told her that he would not deal with women;
m)he was not involved with his wife’s underground church or religious activities;
n)he made the decision to stay in Australia after his wife’s arrest in May 2011. She warned him not to come back to China;
o)he did not apply for a protection visa earlier because he was on a student visa and was not aware that he could apply for a second visa. Also, he did not know Australian law. He later said that he had been advised by a migration agent to apply for protection once his student visa expired; and
p)he was interested in Falun Gong but did not learn how to practise it in Australia because he was concerned that the Tribunal would consider that he was only doing it to strengthen his claims.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal found that the applicant lacked credibility because his evidence often changed in response to the Tribunal’s questions and concerns. Further, there were significant inconsistencies in the applicant’s evidence and he had difficulty explaining certain aspects of his claims. The Tribunal’s specific concerns were as follows:
a)the applicant’s description of the May 2004 dinner was vague and unpersuasive. The Tribunal noted in this connection that:
i)it was only after repeated questioning that the applicant stated that he had learned about the persecution of Falun Gong practitioners in Singapore;
ii)given that the applicant had not previously done anything about his beliefs or discussed his views in public, it appeared odd to the Tribunal that the applicant would decide to do so in a public place and with a large group of people; and
iii)the Tribunal did not accept that the authorities would perceive the applicant to have been an organiser and a propagandist merely because he had travelled overseas and had spoken about Falun Gong at a dinner while drunk;
b)the applicant initially stated at the hearing that after the restaurant incident he was detained for five days but then said that it was for three days. He also said that he was asked to confess and reveal the names of other practitioners but claimed in his written statement that the police had extorted a confession by torture. The applicant then went on to state at the hearing that he wrote in his confession that he was not a Falun Gong practitioner which, in the Tribunal’s view, could hardly be called a “confession” extorted by torture;
c)the applicant’s claim about people questioning his friends and/or neighbours was vague and unconvincing. He initially stated that these people were unknown to him but then said that he believed that they were government officials. The applicant also speculated that “maybe” the officials were trying to get information about him from his neighbours but was vague about how his neighbours would know about his activities or his contacts. In addition, the applicant could not offer a meaningful explanation for why the officials would not question him directly rather than approach his neighbours;
d)the applicant’s evidence about his wife’s second pregnancy and abortion was confused and inconsistent:
i)in his written statement the applicant claimed that his wife was six months pregnant when she had the abortion. This was inconsistent with his evidence at the hearing that his wife was four months pregnant at the time of the abortion and that either his wife fell pregnant in January 2006 or he found out about the pregnancy in January 2006 when she was two months pregnant; and
ii)the applicant initially stated that he found out about the abortion the day after it occurred, returned two days later and approached the government on the third day. He then changed his evidence and said that he found out about the abortion on the same day and arrived home on the evening of the following day. Further, in his written statement the applicant claimed that he went to the government to ask for justice the day after the abortion;
e)with respect to the applicant’s claim that he paid 25,000RMB to a government official:
i)the Tribunal did not accept that the applicant would pay such a large sum of money without any documentary evidence or a receipt of payment, particularly given his claim that the money was demanded for the breach of an official policy and his claim that he had held a senior position in China and would therefore have been experienced with handling documents;
ii)the applicant said in his oral evidence that he did not approach the Family Planning Office because he and his wife were not given the option of paying a fine but were told that they had to have an abortion. This was inconsistent with the applicant’s written statement where he claimed that the government told him that if he paid the fine then his wife would not have to have the abortion;
iii)the Tribunal did not accept that the applicant would complain or argue with a government official and demand his money back in circumstances where he had no evidence of having made the payment and given that, as suggested in his oral evidence, it was not an official payment but a bribe; and
iv)the applicant said in his oral evidence that the government official whom he paid was from the Local Government Office and that this agency was different from the Family Planning Office. However, in his written statement the applicant claimed that he was in conflict with the Family Planning Office;
f)the applicant said (in respect of his wife’s second pregnancy) that he thought he was detained on 24 or 25 March. He later said that he argued with the government on 17 March and was detained for five days so he could not have been released on 24 or 25 March. Further, in his written statement the applicant claimed that he was released in mid-March, which was inconsistent with his oral evidence that his wife had an abortion on 15 or 16 March, that he returned one or two days later and argued with the government and was then detained for five days. The Tribunal was of the view that it was not unreasonable to expect the applicant to have a more accurate recollection of events as significant as an abortion performed on his wife and his own detention;
g)the applicant informed the Tribunal that he had never been convicted but stated in his application form that he had been convicted of two offences in China, one in May 2004 and another in March 2006;
h)the Tribunal found the applicant’s suggestion that an officer told his wife that he would not deal with her because she was a woman, even though she had been found to have engaged in illegal activity and had signed a confession, absurd and utterly implausible. The Tribunal noted in this connection that there was nothing in the available information to suggest that the Public Security Bureau refused to deal with women or that women were able to breach laws and regulations without punishment because of their sex; and
i)the applicant informed the Tribunal that he decided to stay in Australia after his wife called him and told him to stay. However, he also informed the Tribunal that his wife was detained around 22 May (because of her religious activities) and was not released until early June, after the applicant made his application for protection (on 30 May 2011). The applicant was unable to offer a meaningful explanation as to how his wife could have warned him not to go back to China if she was in detention at the time he made his application.
The Tribunal was also concerned that the applicant’s claims were unsupported by any documentary evidence. In particular, the applicant’s inability to provide evidence of his wife’s operation, his convictions and their arrests – evidence which the Tribunal considered should have been readily available to him – caused the Tribunal to question the veracity of the applicant’s claims.
The Tribunal found in light of these matters that the applicant had fabricated his claims for the purposes of his protection visa application. Even so, the Tribunal noted the following further matters of concern:
a)it was not credible, in the context of the applicant’s claims to fear persecution in China, that he would make plans to return there at the conclusion of his studies (as claimed at his departmental interview) rather than make any attempt to remain in Australia to avoid ongoing harm and harassment which he alleged he had experienced in the past;
b)the applicant informed the Tribunal that he inquired about obtaining a long stay business visa a few months after arriving in Australia. He could not provide a meaningful explanation for why he would be seeking such a visa if, as he claimed, he had a job in China and his employer had sent him to Australia to study. The applicant’s inquiries about obtaining a business visa suggested to the Tribunal that the purpose of his travel to Australia was to seek employment rather than protection; and
c)the applicant entered Australia in May 2010 but did not apply for protection until May 2011 despite his claimed persecution in China. The Tribunal noted that the applicant claimed that he did not know Australian law, which was inconsistent with his claim that he had sought advice from a migration agent shortly after he had arrived in Australia. The applicant then changed his evidence and said that his migration agent advised him that he could apply for a protection visa after the expiry of his student visa. It appeared to the Tribunal that the applicant’s sole motivation in applying for protection was the imminent expiry of his student visa which, in turn, raised doubts as to the claimed detention of the applicant’s wife in May 2011, being only a few weeks before his student visa was due to expire. The timing of these events suggested to the Tribunal that the applicant had fabricated his claims for the purposes of his protection visa application.
The applicant claimed that if he returned to China he would argue with the authorities and demand justice and would be detained as a result. However, having rejected the applicant’s claims of past persecution in China, the Tribunal did not accept that there was any reason for the applicant to be arguing with the authorities such that he would come into conflict with them in the future.
As for the applicant’s suggestion (made at his departmental interview) that he might wish to take up the practice of Falun Gong in the future to lose weight, the Tribunal found it to be disingenuous and made solely to add weight to his protection visa application, noting that:
a)the applicant had not shown any interest in Falun Gong before or since his arrival in Australia;
b)if the applicant were genuinely interested in the practice of Falun Gong he would have pursued it regardless of what he thought the Tribunal might conclude about it;
c)even if the Tribunal found that the applicant had engaged in the practice of Falun Gong solely for the purpose of strengthening his claims to be a refugee, that would not jeopardise (or advance) his application for protection and he would not have been disadvantaged in any way by taking up the practice of Falun Gong in Australia if he wanted to; and
d)it was not credible that the applicant would take up the practice of something that was illegal and might cause him serious harm only for the purposes of losing weight. In the Tribunal’s view, if the applicant’s purpose was to lose weight then he could achieve it by other means.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The RRT did not carefully consider my real situation.
2.The RRT made the decision with baseless conjectures and suspicions of my case.
3.The RRT has been completely ignored my real situation, and did not make analyses of my specific case.
In his supporting affidavit the applicant also alleged:
Decision made by the RRT is racial discrimination and did not deal with of my case for humanitarianism.
At the hearing of this application the applicant submitted that he had told the Tribunal the truth and that he had not been able to obtain documents supportive of his claims.
The allegations in the application
The allegations made by the applicant in his initiating application assert that the Tribunal did not undertake the review in good faith and, as a result, did not conduct a review as required by the Act. The foregoing lengthy summary of the evidence recited by the Tribunal in its decision record, together with the reasons which it articulated for its decision, demonstrate that such allegations have no basis in fact. It is plain that the Tribunal undertook a thorough consideration of the various claims made by the applicant, and the evidence he advanced in support of those claims, and concluded that they were not to be believed.
These allegations in the application are also open to be understood as a critique of the findings made and conclusions reached by the Tribunal. However, as stated earlier in these reasons, the Court is not empowered to embark on a reconsideration of the applicant’s claim to be entitled to a protection visa and an allegation of that sort does not provide a basis on which the Tribunal’s decision could be set aside.
The allegations might also be understood to assert bias on the part of the Tribunal. If so, the allegation should have been much more clearly articulated. Should there be such an allegation contained in the application, then it is not sufficiently clearly articulated and particularised for a finding of bias to be made. For instance, the applicant has not identified what particular aspects of the Tribunal’s conduct would support a conclusion that it was biased.
For these reasons, the allegations made in the application do not provide a basis to conclude that the Tribunal’s decision was affected by jurisdictional error.
The allegations made in the affidavit
The allegations made in the affidavit filed with the initiating application repeat, with different references, the allegations of bias and failure to conduct a bona fide review made in the application. Again the allegations are not particularised and, to the extent that a want of good faith is asserted, are contradicted by the content and detail of the Tribunal’s decision record. Further, the applicant adduced no evidence to support the allegation of racial discrimination. For these reasons, the matters raised in the affidavit in support do not provide a basis on which the Tribunal’s decision should be set aside.
The allegations made at the hearing
The applicant’s submission that he had told the Tribunal the truth was, in substance if not in form, an invitation to the Court to conclude that the conclusions which the Tribunal had reached concerning his credit and on the merits of his allegations were wrong. However, for the reasons already given, the Court cannot review the Tribunal’s findings on the merits of the applicant’s visa application. In particular, it cannot substitute its own view of the facts for that of the Tribunal and to use such views to set the Tribunal’s decision aside.
The allegation that the applicant had not been able to obtain documents which might have supported the claims he made in support of his visa application was not supported by any evidence of what those documents might have been and why they were not available at the time of the Tribunal hearing. More significantly, the applicant did not adduce or point to any evidence which would suggest that the absence of those documents was in some way the product of conduct or a decision of the Tribunal which had the effect of denying him the real and meaningful invitation to a hearing, and thus to a proper hearing of his claims, as was his right under s.425 of the Act. As a consequence, I do not conclude that the absence of those documents evidenced a breach by the Tribunal of its obligations under s.425.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 21 September 2012
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