SZRHZ v Minister for Immigration
[2013] FMCA 80
•20 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHZ v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 80 |
| 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 it denied the applicant procedural fairness, improperly rejected evidence and did not accept the genuineness of the documents the applicant submitted to it. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZRHZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 741 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 February 2013 |
| Date of Last Submission: | 12 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 741 of 2012
| SZRHZ |
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 26 July 2009 on a student guardian visa. On 15 December 2010 she applied to the Department of Immigration and Citizenship for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 20 May 2011. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. She 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 4-28 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in a statement accompanying her protection visa application:
a)her partner, with whom she became engaged in January 2009, starting working as a newspaper reporter in Fuqing in 2005. He soon became unhappy with his work because, under the Communist Party’s dictatorship, much of the news that they produced was either fake or inaccurate;
b)her partner became a supporter of Liu Xiaobo, the Nobel Peace Prize winner. Mr Liu was an opponent of China’s one-party system and her partner published many essays in support of Mr Liu on his blog;
c)on 9 March 2009 her partner was arrested for publishing his political opinions. Two days later, she was summoned to the police station where she was accused of harbouring her partner, beaten and abused. She was detained for seven days;
d)she accompanied her niece to Australia as the latter’s guardian in order to escape the trouble. She arrived in July 2009;
e)her partner was released in September 2009;
f)in October 2010 her partner told her that Mr Liu had won the Nobel Peace Prize. Because the news was banned in China, he asked her to send him some related news articles from the foreign media, which she did. Her partner published those materials and was then arrested on 15 November 2010. He had subsequently gone missing; and
g)the police discovered that the materials had come from her. Through her sister, the police issued her with a summons on 2 December 2010 accusing her of subversion of the government. They ordered her to report to police within two months. She was too scared to return to China.
Tribunal proceedings
The applicant appeared before the Tribunal on 17 August 2011 at which point she made the following additional claims:
a)she did not have any proof that she had been in a de facto relationship with her partner because she no longer had any contact with his family;
b)she did not keep on her computer a copy of the email which she had sent to her partner. She then said that she did not use her own computer but had used a computer at an internet café. Later, the applicant said that she did not email her partner the material; rather, she sent it using an instant messaging program called “QQ”;
c)she gave her original migration agents a “notice of detention” and a “notice of summons” which should have been provided with her protection visa application;
d)she knew that her partner had been arrested for posting the information she had sent him because the authorities sent her a summons accusing her of overturning the country’s authority. However, she did not know how the authorities came to know that the materials had come from her; and
e)she did not apply for protection when she arrived in Australia because she thought that things would calm down after a while and that she would be able to return to China to marry her partner. However, after she sent him the material, she dared not return.
In an undated letter sent to the Tribunal after the hearing, the applicant claimed that the originals of the “Summon[s] Certificate” and “Notification of Detention” had been posted by her migration agents to the Tribunal on 26 July 2011. The applicant provided a tracking summary from Australia Post which, she said, indicated that those documents had been delivered on 27 July 2011. She also provided certified copies of the Chinese versions of those documents which the Tribunal arranged to have translated into English. The first document was headed “Notice to Detainee’s Family or Workplace” and stated that the applicant had been detained on 11 March 2009 on suspicion of concealing a crime. The second document was headed “Subpoena” and was dated 2 December 2010. It relevantly stated that the applicant was suspected of subverting the state and required her to present herself to the Fuqing City Bureau of Public Security for questioning on 2 February 2011.
On 2 September 2011 the Tribunal wrote to the applicant pursuant to s.424A of the Act relevantly stating that it had not received the documents which the applicant asserted had been delivered to the Tribunal on 27 July 2011 and that Australia Post could not confirm that the tracker number provided by the applicant was linked to those two documents. The Tribunal advised the applicant that it might take the view that no original documents had been sent to it, that the copies provided by the applicant could not be authenticated and that, in the circumstances, the Tribunal might find, on the basis of country information which indicated that document fraud was pervasive in China, that the documents were fraudulent.
The applicant responded by letter dated 5 October 2011 essentially submitting that the Tribunal had lost her original documents due to its own negligence. She submitted that the Tribunal had accepted that document fraud was pervasive in China, and particularly in Fuqing, and believed for this reason that people from Fuqing were generally unreliable. The applicant submitted that this logic was arbitrary and unreasonable and contrary to the spirit of fairness and justice.
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’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant had been in a de facto relationship in China because, apart from her assertions to this effect, she did not provide any evidence to support this claim. The applicant said at the hearing that this was because she did not have any contact with her partner’s family but the Tribunal found that she could have provided her own mementos, such as photographs, letters or shared accounts, as evidence of the relationship;
b)despite its finding that they were not in a de facto relationship, the Tribunal went on to consider whether there was any evidence to indicate that the applicant had had dealings with her alleged partner. The Tribunal noted in this regard that:
i)other than her own evidence, the applicant did not provide any proof that her partner had supported Mr Liu, that she had sent him materials about Mr Liu from Australia, that her partner published those materials and was arrested as a result or that the authorities knew that the materials had been sent by her;
ii)the applicant’s evidence about how she sent the information to her partner was inconsistent. She initially stated that she did not have a copy of the relevant emails on her computer. She then said that she did not have copies of the emails because she had used a computer at an internet café and not her own. The applicant went on to say that she had sent her partner the materials via an instant messaging program called “QQ” and not by email; and
iii)when asked by the Tribunal whether she had any evidence that her partner had published the material she sent him, the applicant reasoned that “she knew it” because the Public Security Bureau had sent her a summons accusing her of overturning the country’s authority. The Tribunal did not find this evidence convincing;
c)in light of these matters, the Tribunal did not accept that the applicant’s alleged partner supported Mr Liu or that she had sent him materials from Australia which he published, leading to his arrest. Further, the Tribunal did not accept that the applicant had been identified by the authorities as the source of those materials;
d)the Tribunal noted that the applicant arrived in Australia in July 2009 but did not lodge her application for a protection visa until 15 December 2010. The Tribunal did not accept, having rejected her claims to have had a de facto partner in China, that the applicant originally intended to return there to get married and that it was only after she sent the materials to her partner that she feared doing so. The Tribunal found that the applicant’s delay in lodging her protection visa application indicated that she did not have a fear of returning to China and was not a credible witness; and
e)the Tribunal noted that the two documents provided by the applicant, namely the summons certificate and the notification of detention, were copies of original documents. However, because the originals did not reach the Tribunal – the Tribunal noting in this regard that there was no evidence that the applicant had actually sent them – their authenticity could not be checked. Having already found that the applicant was not a credible witness and in light of the extensive country information relating to the pervasive nature of fraudulent documents emanating from China, the Tribunal found that the two documents provided by the applicant had been fabricated.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.RRT failed to comply with procedural fairness.
2.RRT and Immigration Department denied my evidence without conscience.
At the hearing of this application, the applicant made additional allegations.
Denial of procedural fairness
The allegation that the Tribunal failed to accord the applicant procedural fairness was not particularised. For the purposes of Tribunal hearings, the rules of natural justice, or procedural fairness, have been codified by s.422B of the Act in those provisions contained in div.4 of pt.7 of the Act. The applicant did not identify which, if any, of those provisions she believed had not been observed by the Tribunal.
The most important of the provisions found in div.4 of pt.7 are ss.424A and 425 and the Tribunal observed the requirements of both of them. In relation to the former, the information which the Tribunal relied on in reaching its decision was information which was excluded by s.424A(3) from the reach of the operative part of the section, s.424A(1). Moreover, although it was not obliged to, the Tribunal nevertheless did send the applicant a notice pursuant to s.424A, alerting her to the information which it thought would be the reason or part of the reason why it might affirm the delegate’s decision.
Section 425 required the Tribunal to invite the applicant to a hearing and to ensure that she was aware of the issues which would be determinative of the review. The applicant attended the Tribunal hearing and there is no reason to think that the hearing was anything other than a real and meaningful opportunity for her to place her evidence and arguments before the Tribunal. The principal issue in this case was whether the applicant’s account was to be believed and the Tribunal’s repeated requests of her for evidence corroborative of her several allegations can have left her in no doubt that the credibility of her story had to be demonstrated. Moreover, the applicant’s credibility was expressly put in issue by the s.424A letter.
For these reasons, no breach of the Tribunal’s obligations under either of these sections is apparent. Nor, to the extent that any other of the provisions in div.4 of pt.7 might have been applicable, has any breach of the Tribunal’s duties in connection with them been demonstrated.
Improper rejection of evidence
The applicant did not explain what she meant by the allegation that the Minister’s department and the Tribunal “denied” her evidence “without conscience”. First, it should be observed that this review is concerned only with the Tribunal because, in the circumstances of this matter, the Court’s jurisdiction does not extend to reviewing the delegate’s decision. As to the Tribunal, it rejected the applicant’s account because she was unable to offer any acceptable corroborative evidence in support of it, even something which would have confirmed the existence of her relationship with her alleged de facto husband. It was open to the Tribunal to reach the conclusions it expressed.
Submissions at hearing
At the hearing of this application, the applicant made various submissions principally directed to the merits of her visa application. The Court is not empowered to reconsider the factual findings reached by the Tribunal or its conclusion on the merits of the visa application.
The applicant also submitted that the Tribunal had lost the original police documents which her migration agent had sent it. She implied that it was unfair or unreasonable for the Tribunal to reject the genuineness of those documents in circumstances where its capacity to assess their authenticity had been lost by its own failures. The first thing to be said about this allegation is that the applicant did not prove to the Tribunal, and has not proved to the Court, that the documents were actually sent to the Tribunal. No record of the addressee of the relevant envelope was tendered and so there was no evidence of where the letter was sent other than what the applicant asserted. However, it was not suggested, even if the Tribunal did lose the documents, that it did so intentionally. In those circumstances, the Tribunal’s inability to satisfy itself that the original documents were genuine, because findings of that sort were not open if those originals were not available for inspection by document experts, was unfortunate but of no legal significance. The Tribunal was under no obligation to accept that the photocopies were reproductions of originals which were genuine. That it did not do so was not indicative of error.
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-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 February 2013
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