SZRKB v Minister for Immigration

[2012] FMCA 658

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRKB v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 658

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZRKB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 869 of 2012

Judgment of: Driver FM

Hearing date: 31 July 2012

Delivered at: Sydney

Delivered on: 31 July 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M Alderton
Sparke Helmore

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(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 869 of 2012

SZRKB

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 22 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 Fujian province in China and has made claims of religious persecution.  She arrived in Australia on 22 January 2008.  She applied to the Minister’s Department for a protection visa on 2 December 2011.   The Minister’s delegate rejected that application on 15 February 2012.

2. The applicant applied to the Tribunal for review of the delegate’s decision on 21 February 2012.  The applicant’s prior migration history and that of her son is detailed at [17]-[22] of the Tribunal decision[1]:

   According to the Department’s records, the applicant was granted a Student Guardian visa on 28 December 2007, on the same day that a Student visa was granted to her son.  The son’s application for a Student visa was submitted in August 2007 (see file CLF2007/123901), as was the applicant’s application for her Student Guardian visa (see file CLF2007/123924).  The applicant and her son arrived in Australia on 22 January 2008.

   The applicant’s son’s Student visa was valid until 15 March 2011.  The Tribunal is aware (see RRT file 1110609), that his enrolment in an education course was cancelled due to non-payment of fees in April 2009, and after his Student visa expired, he remained illegally in Australia until he was located by the Department in July 2011.

   He subsequently sought protection, claiming to fear to return to China because his father owed large debts which he was unable to repay and that he believed his father’s creditors would try to force him to repay the money and would mistreat him if he were unable to do so.  The Tribunal is aware that his application for a Protection visa was refused by the Department on 3 October 2011, and that this decision was subsequently affirmed by the Tribunal (differently constituted) on 24 October 2011.

   The Tribunal is further aware that the Minister declined to intervene in the case under section 417 of the Act, and that the applicant’s son subsequently left Australia on 24 January 2012.

   The applicant’s Student Guardian visa was valid until 31 December 2009.  However, the applicant did not leave Australia when the visa expired but remained here illegally, until she came to the attention of the Department in late November 2011 and was taken into detention.

   Departmental records indicate that the applicant came to the Department’s attention after police were called to a domestic dispute just before midnight on 26 November 2011.  She was interviewed by an officer of the Department (apparently by telephone, though this is not made clear in the interview record) about three quarters of an hour later, with the assistance of a Mandarin language interpreter.  According to the record of interview, the applicant said that she had come to Australia in 2007 on a visa which she thought was a tourist visa and which she had believed entitled her to remain in Australia for 2 to 3 years.  She was asked if she was intending to apply for any other visas, and she said she was intending to marry her boyfriend “in a short time,” though she indicated that she was currently married.  When specifically asked if there were any reasons why she could not return to her home country, she is recorded as saying there were no specific reasons though she did not have a good relationship with her husband and she “liked Australia”.  Several hours later, at 10:45 a.m. on 27 November 2011, the applicant was interviewed again and indicated her intention to apply for a Protection visa.

   [1] court book (“CB”) 94-95

3. The Tribunal notes, at [23] of its reasons[2], that the protection visa application was completed with the assistance of a registered migration agent.  That agent was Mr Yuen of the Refugee Advice and Casework Service, who continued to act for the applicant before the Tribunal.

   [2] CB 95

4. The protection visa application disclosed that the applicant is in a de facto relationship with a man in Sydney.  The applicant claimed to have left China legally in January 2008.  She apparently travelled on her own passport which she has since lost.  She claimed to fear returning to China because of her Catholic faith.  She claimed that both she and her father had got into trouble in China previously because of their faith.  The applicant was interviewed by the Delegate on 10 February 2012.  The Tribunal dealt at some length with the evidence given by the applicant on that occasion.

5. The Tribunal also referred at some length to the decision of the Delegate.  The applicant made no further claims in her review application to the Tribunal.  However, on 15 March 2012, the applicant’s migration agent submitted to the Tribunal five pages of documents he had received shortly before from the applicant.  The documents are identified by dot point at [68] of the Tribunal’s reasons[3]:

   ·     a “Labour camp detention release notification” dated 5 January 2007 said to have been issued by the Public Security Bureau of Fuqing city;

   ·    a summons dated 8 March 2008 “to appear on 10 March 2008” said to have been issued by the Public Security Bureau of Fuqing city;

   ·    a “Labour camp detention notification for one year period commencing on 5 Jan 2006” issued by the Public Security Bureau of Fuqing city; and

   ·    the front and back of a courier envelope.

   [3] CB 101

6. Both the applicant and her de facto partner appeared at a hearing before the Tribunal and gave evidence.  It transpired that the applicant’s de facto partner is himself a refugee who has achieved permanent residence in Australia[4]. 

   [4] The Tribunal records at [72] of its reasons that the man was formerly a Falun Gong practitioner (and was presumably granted a protection visa on that basis) although he has since become a Catholic and attends worship at a church in Flemington, the name of which he did not know.

7. The applicant was questioned at length by the Tribunal about her experiences in China and her circumstances in Australia.   The Tribunal clearly identified at the hearing concerns it had with the applicant’s claims.  Those concerns centred around inconsistencies in her evidence and implausibilities in some of her evidence.  The Tribunal was also concerned about the delay on the part of the applicant claiming protection in Australia.

8. The Tribunal was also concerned that, although the applicant claimed to attend a Catholic Church in Sydney, she did now know the name of the church or any of the priests there.  She was also confused about the time of church services and how she got to and from church. 

9. The Tribunal had regard to country information involving document fraud in China at [126]-[128] of its reasons. The Tribunal also referred to information from the Minister’s Department about the high incidence of migration fraud by persons from Northern Fujian province[5]:

   [5] CB 109-110

   Fraudulent documentation are relatively easy to obtain in China, and sources consulted by the Tribunal over several years indicate that there is a high incidence of fraudulent documentation in that country.  For example, in a May 2007 advice, DFAT stated there is a “high incidence of fraudulent documentation in China” (Department of Foreign Affairs and Trade 2007, DFAT Report No. 644 – RRT Information Request: CHN31695, 17 May).

   In June 2009, the Canadian Immigration and Refugee Board provided information on fraudulent documents in China.  According to sources cited by the Board, fake documents of all kinds are easy to obtain in China, and that the market for fraudulent documents is “rapidly expanding.”  One source, described as a US Consular official based in southern China is quoted as saying that Chinese documents are “assumed to be fraudulent unless proven otherwise.”  (Immigration and Refugee Board of Canada 2009, chn103134.e -  China: The manufacture, procurement, distribution and use of fraudulent documents, including passports, hukou, resident identity cards and summonses; the situation in Guangdong and Fujian particularly (2005-May 2009), 24 June).

   On 11 February 2010, the Department of Immigration and Citizenship (DIAC) provided the following information (with specific reference to Fujian) based on information received from the Guangzhou post in China:

   The northern Fujian area, representing the cities of Fuzhou-Fuqing-Changle-Minqing, have had non-compliance rates greater than any other part of this province.  This area of northern Fujian has had a long history of both legal and illegal emigration and consistently features in non-compliance analysis.

   Fraud across the range of applications is a major issue for the Guangzhou post and the province of Fujian is of particular concern.  Integrity checking in this province regularly reveals large scale highly organised immigration fraud with organisers shown to be sophisticated and well resourced.  Since 2005 the rate of fraud detected in visa applications lodged by persons claiming to reside in Fujian province has consistently remained above 25% of all fraud detected.  However, applicants who claimed to reside in Fujian province have consistently comprised 10% or under of the total visa caseload in the Guangzhou catchment.  A fraud rate of 25% is therefore disproportionate to the lodgement rate and indicates that applications from persons claiming to reside in Fujian province represent a higher risk of presenting fraud to support visa application.

   The cities in northern Fujian including Fuqing, Changle, Pingtan, Minqing, Minhou, Lianjiang and Luoyuan tend to be more regularly associated with fraud than cities in southern Fujian.  In the most recent program-year 2008/09, of the instances of fraud identified in Fujian, 46% originated in the city of Fuqing, 17% in Fuzhou and 8% in Xiamen.

   In the 2008/09 PY, the overall non-genuine rate for all finalised subclass 679 referrals was 65%, which identified the caseload as high risk, with much of the fraud identified originating from northern Fujian.

   (Department of Immigration and Citizenship 2010, Email to RRT: Research & Information ‘RE: 679 (Sponsored Family Visitor) – high level of visa non-compliance and higher non-return rates for Fuqing, Fujian’, 11 February).

10. In its reasons, the Tribunal rejected the applicant’s claims of past harm in China.  The Tribunal also found that the documents submitted by the applicant were not genuine.  The Tribunal found that the applicant was not a witness of truth.  The Tribunal accepted that the applicant had attended Church occasionally, both in China and Australia.  The Tribunal was of the view that the applicant had probably attended the officially recognised Catholic Church in China. 

11. The Tribunal took into account the applicant’s attendance at church in Australia. It is implicit in that consideration that the Tribunal was satisfied that the applicant’s conduct in Australia was for a reason or reasons other than enhancing her protection claims.  The Tribunal found that the applicant does not have a strong commitment to Christianity and to Roman Catholicism in particular.  The Tribunal found that the applicant did not have a well-founded fear of harm in China by reason of her faith. 

12. These proceedings began with a show cause application filed on 19 April 2012.  There are three grounds in the application:

    1. I am a person to whom Australia has protection.

    2. The R.R.T member was racially Prejudiced against me.

    3. The solicitor recommended to me by R.R.T spoke in favour of R.R.T instead of protecting me.

13. I provided the applicant the opportunity in directions I made on 17 May 2012 to file and serve an amended application giving particulars of her claims.  She has not taken up that opportunity.  I note that the applicant received advice under the Minister’s panel advice scheme on 31 May 2012. 

14. I received as evidence the court book filed on 11 May 2012.  I also received the applicant’s affidavit made on 23 March 2012. 

15. There is no substance to any of the grounds in the application.  The first ground impermissibly invites the Court to review the merits of the Tribunal decision.  I am satisfied that the Tribunal considered all of the applicant’s claims and made findings on them.  The Tribunal made comprehensive adverse findings of credibility against the applicant.  Those findings were open to the Tribunal for the reasons it gives. 

16. There is no evidence to support the contention of racial prejudice or any other form of bias by the Tribunal.  When I questioned the applicant about this ground, she expressed concern about the Tribunal’s rejection of her documents.  Those documents were provided by the applicant’s family to her migration agent, and forwarded by him, on instructions, to the Tribunal.  The Tribunal was concerned about the form of the documents, in that they were not originals, and country information that fraudulent documents are readily available in China.  The Tribunal was also concerned about apparently conflict between what the documents said on their face and the applicant’s oral evidence at the Tribunal hearing.  The Tribunal acted lawfully and properly in considering the documents in the course of weighing the applicant’s credibility. 

17. As explained by the applicant from the bar table today, the third ground is an attack upon the applicant’s registered migration agent.  She appears to be concerned that Mr Yuen did not advocate strongly enough on her behalf.  As I told the applicant, if she has some complaint about Mr Yuen, she can make that complaint to the Office of the Migration Agents Registration Authority.  It is clear from the court book that it was not the Tribunal who suggested the applicant engage the services of Mr Yuen.  I note that Mr Yuen acted from the time the applicant made her protection visa application under the Commonwealth’s IAAS assistance scheme.  The applicant complains that Mr Yuen did not provide to the Tribunal the documents she had obtained from her family.  That is contradicted by page 76 of the court book, which shows that Mr Yuen provided the documents to the Tribunal within two days of receipt by him.  The applicant says that Mr Yuen told her she should check the documents.  That may well be right.  The authenticity of the documents was a concern at the Tribunal hearing, which Mr Yuen attended. 

18. The Tribunal notes that towards the end of the hearing, the applicant’s agent, in response to a question from the Tribunal, acknowledged that the documents were not original documents[6].  Mr Yuen told the Tribunal that the applicant’s family had sent these documents in that form and that he was unable to establish why originals had not been sent.  On the basis of the material available to me, I am unable to conclude that Mr Yuen represented the applicant in anything other than a professional and responsible manner. 

    [6] CB 109 at [122]

19. Even if there had been some fault or neglect on the part of Mr Yuen, which I do not accept, it would have had no legal significance in terms of the validity of the Tribunal decision.  There is nothing whatsoever in the available material to support a claim of agent fraud.

20. I find that the applicant has failed to establish an arguable case of jurisdictional error by the tribunal. The application should therefore be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I will so order.

21. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant had nothing to say on the issue of costs, although she continued to assert her protection claims. 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(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  2 August 2012