SZRIA v Minister for Immigration

[2012] FMCA 686

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRIA v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 686

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China due to his connection with a Falun Gong leader – applicant not believed – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Minister for Immigration v Jia (2001) 178 ALR 421
Minister for Immigration v SZMDS (2010) 240 CLR 611
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
VHAJ v Minister for Immigration [2003] FCAFC 186

Applicant: SZRIA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 742 of 2012

Judgment of: Driver FM

Hearing date: 7 August 2012

Delivered at: Sydney

Delivered on: 7 August 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms V Bulut
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 742 of 2012

SZRIA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 23 March 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Shenyang City in Liaoning Province in China and had made claims of persecution based upon the sheltering of a Falun Gong leader in his home.  The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the Minister’s outline of submissions filed on 16 July 2012. 

2. The applicant is a citizen of the People's Republic of China and arrived in Australia on 30 April 2011.

3. The applicant applied for a protection visa on 25 July 2011.  The applicant claims to have harboured a Falun Gong practitioner and to fear persecution by the Chinese authorities.

4. The applicant's substantive claims are set out in a statement attached to his protection visa application[1] and can be summarised as follows:

   [1] court book (“CB”) 26-28

   a)on 20 November 2010, the applicant encountered Mr Wang, an old friend, at a bus station;

   b)Mr Wang told the applicant that he is a leader of a small group of Falun Gong practitioners and that the police were looking for him to arrest him;

   c)the applicant invited Mr Wang to stay at his house;

   d)as the applicant was experiencing back pain, the applicant started practicing Falun Gong and read the book Zhuanfalun at Mr Wang's suggestion;

   e)on 23 March 2011, a fee collector came to the applicant's house.  As Mr Wang was the only one at home, the fee collector asked questions of Mr Wang and saw that Mr Wang was watching a Falun Gong DVD;

   f)the applicant and his wife were fearful that the fee collector would report Mr Wang, so they bought him a train ticket and asked him to leave;

   g)on 26 March 2011, the police came to the applicant's house looking for Mr Wang and took the applicant and his wife to the police station for interrogation;

   h)the applicant denied any knowledge of Mr Wang's practices and was released but his wife, who admitted sheltering Mr Wang, was refused food and water and was detained for half a month; and

   i)the applicant's wife has since been sentenced to a one and a half year term of imprisonment, and he fears that he too will be imprisoned if he were to return to China.

5. The applicant attended an interview with the delegate of the Minister on 15 September 2011.

6. The applicant also submitted a number of documents in support of his claim, namely:

   a)three Taxi Management Fee receipts;

   b)a Chinese Road Transport Employees Qualification Certificate; and

   c)a Detention Warrant for the applicant’s wife noting the period of detention as 26 March 2011 to 9 April 2011.

7. On 16 September 2011, the delegate of the Minister rejected the application[2].  In summary, the delegate found the applicant not to be a witness of truth.  Numerous discrepancies in the applicant's evidence led the delegate to conclude that the claims were not true and that the applicant did not have a genuine fear of harm.

   [2] CB 46-57

The applicant's claims before the Tribunal

1. On 12 October 2011, the applicant applied to the Tribunal for a review of the delegate's decision[3].  The applicant attended a hearing at the Tribunal on 6 February 2012.

   [3] CB 58-61

2. The Tribunal affirmed the decision of the delegate on 23 March 2012.  The Tribunal's decision record is at pages 79 to 100 of the court book.

3. The applicant's oral evidence before the Tribunal is summarised at [35] to [63] of the Tribunal's decision record[4].  That evidence includes the following matters:

   a)the applicant was aware of the potential danger he was putting himself in by allowing Mr Wang to stay with him[5];

   b)the applicant gave Mr Wang a key to his home, and he was free to come and go as he wished[6];

   c)the applicant never practiced Falun Gong himself, and although Mr Wang mentioned the book Zhuanfalun to him, he had never read it[7];

   d)on 23 March 2011, a fee collector came to their home and although the applicant's wife was also at home, Mr Wang opened the door for him[8];

   e)on 26 March 2011, the applicant and his wife were taken to the police station where the applicant was assaulted by the police[9];

   f)the applicant's wife was held at the police station for three days, then was taken to a detention centre where she remained for two weeks[10]; and

   g)the applicant has no interest in practising Falun Gong[11].

   [4] CB 87-94

   [5] CB 89 [46]

   [6] CB 89 [47]

   [7] CB 90 [49]

   [8] CB 90 [50]

   [9] CB 91 [53]

   [10] CB 92 [55]

   [11] CB 93 [59]

4. By letter dated 24 February 2012, the Tribunal invited the applicant to comment on or respond to information pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”)[12].  The information related to the applicant's visitor visa application and information he gave to the delegate of the Minister at his interview.  On 9 March 2012, the applicant provided a statement to the Tribunal in response to the 24 February 2012 letter[13].

   [12] CB 69-71

   [13] CB 72-76

The Tribunal’s decision

1. The Tribunal's findings and reasons are set out at pages 96 to 100 of the court book.

2. The Tribunal found the applicant not to be a credible witness[14].  The Tribunal found the applicant's evidence to be vague, lacking in detail so as to be unconvincing, and internally inconsistent[15].  Of particular concern to the Tribunal were claims relating to:

   a)the applicant's apparent long standing friendship with Mr Wang - given that the applicant alleged that he was not aware of Mr Wang's practices until he ran into him on 20 November 2010[16];

   b)Mr Wang's stay with the applicant - the applicant expressed that he feared that someone would find out he was harbouring a Falun Gong practitioner, yet he allowed Mr Wang to freely come and go, provided him with a key to his home, and allowed him to answer the door[17];

   c)the applicant's wife's presence when the fee collector came to their home and allegedly discovered Mr Wang - given that the applicant's evidence at the hearing was inconsistent with the applicant's written statement[18]; and

   d)the police interrogations and the subsequent detention of the applicant's wife - given the numerous conflicting accounts provided by the applicant in his written statement, during his Departmental interview and during the Tribunal hearing, which were not supported by the detention warrant provided by the applicant[19].

   [14] CB 97 [73]

   [15] CB 97 [75]

   [16] CB 97 [75]

   [17] CB 98 [76]

   [18] CB 98 [77]

   [19] CB 98-99 [79]-[80]

3. As the Tribunal found that the applicant was not truthful, it did not accept the Applicant's claims that he had picked up his friend who was fleeing authorities, that he provided shelter to his friend, or that the applicant or his wife were interrogated and detained by police.  The Tribunal found that there is not a real chance that the applicant will be detained and mistreated for any Convention reason now, or in the reasonably foreseeable future, if he returned to China[20].

   [20] CB 99-100 [81]

4. These proceedings began with a show cause application filed on 4 April 2012.  The application is supported by a short affidavit which I received. 

5. I also received as evidence, the court book filed on 15 May 2012. 

6. The matter came before me for first court date directions on 10 May 2012.  The applicant did not attend court on that day and procedural orders were made in his absence.  I note, among other things, that the applicant provided an address for service of 2501/57-59 Queen Street, Auburn and a postal address of PO Box 1519 Auburn 1835.  The postal address is one used by the migration agent’s business known as Eternity International.  The court book discloses that the applicant was represented by that firm from the time he lodged his protection visa application with the Minister’s Department.  Before the Tribunal the applicant was represented by Ms Jie Yu of that firm.  A copy of the orders made by me on 10 May 2012 was sent to the applicant at his address of service.  Among other things, the orders listed the matter for a show cause hearing at 2.15 pm on 24 July 2012.  I was unable to hear the case on that day due to a medical procedure and my associate wrote to the parties on 19 July 2012 to advise that the hearing had been relisted at 11.00am on 7 August 2012. 

7. The letter to the applicant was addressed to him at his postal and residential addresses.  The applicant did not attend court this morning at 11.00am for the hearing.  Before I came on the bench, however, my associate, with the assistance of the Mandarin interpreter engaged for today’s hearing, was able to contact him on his nominated mobile telephone number.  The applicant told me that he had been informed by his migration agent that the hearing today was at 2.00pm.  He was at the time, apparently, on a train and was intending to attend the hearing at 2.00pm.  He said that he had arranged to attend the office of his agent and then to be escorted to the court room. 

8. In view of the apparent confusion over the time of the hearing, I asked the applicant to arrange for his agent to come to court with him this afternoon to explain the circumstances.  At the hearing this afternoon, Ms Lin Zheng, who was apparently an assistant to the migration agent, attended court.  She confirmed that the applicant had been given incorrect information about the time of today’s hearing by the migration agency.  She also confirmed that the firm had received the Court’s letter to the applicant dated 19 July 2012. 

9. There is no reason why applicants in this jurisdiction should not be supported by migration agents in relation to proceedings in the Court, provided that unqualified persons do not attempt to provide legal services.  It would assist, however, if migration agents are assisting applicants in particular cases, for that to be disclosed.  It was not disclosed in the present case until today.  It is important where applicants choose to provide an address for service that is the address of a migration agent, that the Court and the respondents to the application can have confidence that correspondence sent to that address will be drawn to the applicant’s attention promptly and the contents of correspondence will be accurately recounted.  Unfortunately, that did not occur in this case.  The consequence could have been the dismissal of the application this morning on account of the applicant’s non attendance.  Fortunately, the Court was able to accommodate a hearing this afternoon. 

10. There are three grounds of review advanced in the application:

    1. RRT and DIAC have bias against me.

    2. RRT’s reasoning is illogical and prejudicial.

    3. I was not given opportunity and resource to respond to RRT’s third party information.

11. The first ground is an allegation of bias.  An assertion of bias is a serious matter which should not be lightly made and if made should be supported by clear evidence[21].  There is nothing the court book to support the applicant’s assertion.  In his oral submissions, the applicant expressed concern about the adverse credibility finding made by the Tribunal.  However, as I explained to him, the fact that he was not believed by the Tribunal does not establish bias. 

    [21] Minister for Immigration v Jia (2001) 178 ALR 421 at [69]

12. In the absence of proper particulars and evidence, there is nothing in the Tribunal's decision record to support a claim of bias, either actual or apprehended, in the sense identified by the High Court in Re Refugee Review Tribunal; Ex parte H[22].

    [22] (2001) 75 ALJR 982 at [27] to [31]

13. There is also no substance to the assertion of illogicality or prejudice in the Tribunal’s reasoning.  The Tribunal’s adverse credibility finding was open to it on material before it.  There is a logical basis for the Tribunal’s reasoning, drawing upon perceived inconsistencies in the applicant’s account. 

14. If a decision maker makes a finding contrary to the one the applicant desires, that in itself is not illogicality.  Only if it is demonstrated that no rational or logical decision maker could have reasonably made that finding on the available evidence does irrationality arise[23].  A finding that the Tribunal's decision was illogical cannot be made where “it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”[24]. 

    [23] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ

    [24] SZMDS at [133]

15. The third ground is an assertion of a lack of opportunity to deal with what the applicant describes as “third party information”.  The applicant confirmed what the Minister anticipated in his written submissions, namely that this was intended to be a reference to country information.  The applicant confirmed that the ground relates to [63] of the Tribunal’s reasons[25]:

    The Tribunal informed the applicant that it had some independent information before it that indicates that while there is some evidence that family members and advocates of Falun Gong practitioners may suffer problems with the authorities, there are limited reports of other people being punished for helping or harbouring those involved with Falun Gong or if action is taken they are only warned or issued with fines or administrative detention and asked if he wanted to make any comments about that?  The applicant said in response that sometimes they say one thing but they do another thing, so for example they might say that they will fine you and then they will sentence you for one year.

    [25] CB 94

16. There is no substance to this ground. The Tribunal was under no obligation to disclose the country information referred to under the Migration Act either in writing or orally[26].  Neither did the country information amount to an essential or significant issue upon which the review would turn.  The Tribunal exceeded its legal obligations in raising the country information with the applicant but it was entitled to do so in order to support the objective of procedural fairness.  There is no legal error in the way in which the Tribunal dealt with that information. 

    [26] see s.424A(3)(a) of the Migration Act and VHAJ v Minister for Immigration [2003] FCAFC 186, at [50] per Kenny J

17. The applicant was not able to advance any other arguable case of jurisdictional error by the Tribunal.  He referred to the circumstances of his wife and daughter in China, but those concerns go to the merits of the Tribunal decision, which this Court cannot address.  I find that there no arguable case of jurisdictional error by the Tribunal has been established. 

18. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”)

19. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks costs fixed in the scale amount of $3,239.  The applicant asked for an explanation of the costs, which I gave him.  He did not otherwise wish to be heard on costs.

20. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  10 August 2012