SZRNI v Minister for Immigration

[2012] FMCA 965

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNI v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 965

MIGRATION – RRT decision – Chinese student claiming persecution – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.36, 424AA

Minister for Immigration and Multicultural Affairs v Jia (P43 of 2000) (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicant: SZRNI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1205 of 2012

Judgment of: Smith FM

Hearing date: 18 October 2012

Delivered at: Sydney

Delivered on: 18 October 2012

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr R White

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1205 of 2012

SZRNI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia on a student visa in April 2008 at the age of 18.  He embarked on some language studies, but soon ceased to pursue them. Eventually his visa was cancelled, and the applicant was taken into immigration detention at Villawood Immigration Detention Centre.  He pursued an appeal to the Migration Review Tribunal (‘MRT’) against the cancellation of his student visa, but was unsuccessful.  The details of that matter are not clear in the documents before me. 

2. The present matter concerns a subsequent application for a protection visa, which was lodged on 5 March 2012 while the applicant was still at Villawood IDC.  The application was lodged on the applicant’s behalf by a migration agent, who then represented the applicant throughout the proceedings before the Department of Immigration and the Refugee Review Tribunal. 

3. The applicant’s claims to fear of persecution if he returned to the People’s Republic of China were set out in a translated statement attached to his application.  The applicant claimed that when he was around the age of 8 or 9, he was introduced to Falun Gong by his father who had recently become a practitioner.  The applicant’s father took part in protests after the banning of the practice by the government, and the applicant claimed to have participated in a protest.  He claimed his father was arrested and held for a period until being released in 2000. 

4. The visa statement claimed that the father then went to Singapore illegally, and was sought by the police.  The family was harassed and forced to move to another district in 2002.  His father was arrested upon his return from Singapore in 2006, and the applicant himself was taken into detention because they “found that I was practised Falun Gong with my father”.  The applicant’s mother procured his release, and decided to send him abroad for study.  His father was eventually released but was required to report to the police, and the applicant had difficulty obtaining a passport.  His mother went into hiding and his father went to work in another city.  His visa statement claimed that a neighbour had “told us police went to my home several times to look for us”.  No corroboration for these claims was submitted to the Department, nor subsequently to the Tribunal. 

5. The applicant was interviewed about his refugee claims by a delegate of the Minister on 3 April 2012.  The delegate then made a decision refusing his protection visa application on 10 April 2012.  The delegate pointed to a number of reasons, and concluded that there was not a real chance of persecution occurring covered by the Refugees Convention, and that there were no substantial grounds for believing that the applicant would suffer significant harm covered by the complementary protection criteria for the grant of a protection visa.

6. The applicant appealed to the Refugee Review Tribunal.  He attended a hearing on 21 May 2012, which the applicant’s agent did not attend.  The applicant was still in detention, and the Tribunal’s proceedings, as with the previous and present proceedings, were conducted on an expedited basis.  A transcript of the hearing is not in evidence before me but the Tribunal gives an account of it in its “Statement of Decision and Reasons” which I have no reason not to accept. 

7. The Tribunal questioned the applicant about his claims, including a new claim that he had been detained and questioned on an earlier occasion in 2002 as well as later in 2006. The Tribunal also questioned the applicant about evidence he had given to the MRT on 23 February 2012. In particular, it put to him pursuant to the procedure in s.424AA of the Migration Act 1958 (Cth) his earlier evidence which might appear to have been inconsistent with his claims to fear harm. In the absence of a transcript, it is not possible to discern any possible omission in that respect in the Tribunal’s procedures.

8. According to the Tribunal, at the end of the hearing:

   57.The applicant said that he planned to talk to his representative on the afternoon after the hearing. The Tribunal indicated that it, if the applicant or his representative wished to make any further submissions (following any contact), they should let the Tribunal know urgently, and in any event before midday, 22 May 2012. The Tribunal flagged that it had extensive concerns about the truth of his claims for protection, and advised that it would consider all his evidence before proceeding to a decision.

9. The Tribunal noted at paragraph 58 that it had “received no further submission as of late 23 May 2012”.

10. The Tribunal’s decision was made on 23 May 2012 and was sent to the applicant’s agent on 24 May 2012.  In its decision, the Tribunal affirmed the delegate’s decision.  The Tribunal recounted the evidence presented by the applicant throughout the course of the proceedings in some detail.  Under the heading “Findings and Reasons”, it identified the applicant’s claims to qualify for a protection visa, in particular his claims that he and other members of his family had been detained and harassed by authorities by reason of his father and his practise of Falun Gong in China. 

11. The Tribunal said that it took into account the age of the applicant and his claims of poor memory and limited knowledge, but said “these factors do not, in its view, satisfactorily explain all the gaps and anomalies in his claims and evidence”.  The Tribunal explained the defects in the applicant’s evidence which it perceived, noting: 

    66.At the Tribunal hearing, the applicant indicated that he is not currently a Falun Gong practitioner, and he does not fear persecution in China on the basis of prospective Falun Gong practice. Rather, he fears persecution because of his and his father’s adverse records with local authorities, as (former) Falun Gong practitioners, and, in the applicant’s case, as an imputed practitioner, through his association with his father and his father’s non-compliance with the authorities’ regulations.

12. The Tribunal said that these statements by the applicant were consistent with other evidence suggesting that he had a limited knowledge of Falun Gong and a lack of engagement with Falun Gong since arriving in Australia.  The Tribunal found the applicant’s explanations for this lack of engagement “wholly unconvincing”.  It concluded “that the applicant is not a Falun Gong practitioner”, and did not accept “that he had refrained from practice or modified his conduct in Australia for any reasons”.

13. In relation to his claims about events in China, the Tribunal did not believe that members of the applicant’s family had been harassed.  It pointed to the absence of evidence of disruption to the applicant’s education and to that of his brother.  In this respect, the Tribunal referred to the applicant’s evidence given at the hearings of both tribunals:

    69.(b)ii.   Asked about his evidence at the MRT hearing on 23 February 2012, intimating that his whole family lives together in Fujian, the applicant indicated that at least part of that evidence was true, because his brother had been living there at that time, but recently moved to Xiamen to start studying there. His brother’s completion of his studies in Fuqing and commencement of studies in Xiamen add to the Tribunal’s concern that the applicant has not given a reliable account of his family’s circumstances and that, in any event, they are not subject to significant restraints.

14. The Tribunal was unsure whether to accept that the applicant’s father had lived in Singapore, and concluded that this was possible and it was possible that he was currently not living at home.  But it said:

    69.(b)iv)  …Given the extent of its concerns about the applicant’s evidence as a whole, it is not prepared to accept at face value that the applicant’s father is working outside Fujian for any reasons related to the applicant’s claims for protection.

15. The Tribunal also considered the applicant’s conduct since arriving in Australia, including his evidence at the MRT hearing, in which:

    70.…When asked about his prospects of returning to China, (he) replied vaguely that he did not know.  He gave no inkling that he personally feared harm of any kind.

16. The Tribunal did not accept the applicant’s explanations for a delay of almost four years in lodging a protection visa application.  It said that it “does not accept that he lacked the resources or contacts to enquire about protection, if he genuinely required it”.

17. The Tribunal concluded:

    72.The above concerns, set out in paragraphs 65 to 71 above, considered cumulatively, lead the Tribunal to conclude that the applicant’s claims for protection lack credibility, and that he is not a witness of truth. The Tribunal therefore does not accept that the applicant’s father is or was a Falun Gong practitioner; or that the applicant was or is a Falun Gong practitioner, or was associated with any practitioners.

18. The Tribunal referred in detail to associated claims and found that the relevant events had not occurred.  The Tribunal concluded:

    78.Having found that the applicant has no association with Falun Gong, has not experienced past harm arising from that, and has no adverse profile with PRC authorities, the Tribunal finds there is no real chance of the authorities targeting him on his return to China. The applicant has no motivation in engage in Falun Gong or any other potentially risky conduct, and will therefore also not need to refrain from any conduct to avoid potential persecution.

    79.At the end of the Tribunal hearing, the applicant said that he hates China and does not wish to return there. The Tribunal understands this comment to have highlighted the applicant’s wish to stay in Australia, rather than return to China. It does not detect in this any political opinion that would influence the applicant’s conduct if he were to return there.

19. The Tribunal dealt with the complementary protection provisions of s.36 of the Migration Act in the light of its earlier findings:

    82.The Tribunal has also considered whether the applicant meets the alternative criterion for complementary protection. In light of the above findings, the Tribunal is not satisfied that the available information provides a basis for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to the receiving country, China, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

20. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power to decide for myself whether the applicant should have been believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.

21. The applicant’s grounds set out in his application are as follows:

    1.I am a person two whom Australia has protection obligations.

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

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

22. These have not been explained or amended by any amended application or written submission filed in court, and I am unable to give them any arguable substance as jurisdictional errors. 

23. In his terms, Ground 1 invites the Court to make a finding which it does not have the jurisdiction to make. 

24. Ground 2 does not provide any particulars of evidence supporting such a serious allegation, in effect, of actual bias.  Nor have I been able, unaided by any pertinent submissions, to discern any possible substance to complaints of bias, whether actual or apprehended, under principles explained in the High Court (see Minister for Immigration and Multicultural Affairs v Jia (P43 of 2000) (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425).

25. Ground 3 has not been explained by any evidence or submissions before me. It appears inexplicable. The applicant, in fact, was represented by a migration agent of his own choice throughout the whole proceedings before the Department and Tribunal.  There is no evidence of any action taken or not taken by that agent which might provide a ground of jurisdictional error vitiating the Tribunal’s decision.

26. The applicant today made some points of criticism of the Tribunal’s procedures, which did not appear to bear upon the grounds of review. 

27. His first point complained that the Tribunal had made a decision two days after the hearing.  He suggested that this showed a “casual” approach to his case, with an inference that the Tribunal had not genuinely considered his claims and evidence or had approached its task with its mind closed against him.

28. However, as I have noted above, I can find no evidence that might support an apprehension of a closed mind.  Reading the Tribunal’s decision, it shows a detailed consideration of the applicant’s claims and evidence, and the speed of decision-making might appear to suggest a desire to deal with the matter when it was fresh in the mind of the decision-maker, and also to respond to the applicant’s circumstances as a detainee.  I am certainly not persuaded that the speed of decision is evidence of any defect in procedure amounting to jurisdictional error on the part of the Tribunal.

29. The applicant’s second point unclearly criticised the Tribunal for its reasoning concerning his evidence given to both tribunals about his brother’s recent studies in China.  The point sought to be made by the applicant was unclear, but he appeared to suggest that the Tribunal had not given proper weight to the evidence he gave before it, which explained that his brother’s circumstances had changed between the two hearing dates.

30. However, it appears to me that, in the paragraph I have quoted above, the Tribunal was alive to that evidence and, indeed, accepted it.  The point made by the Tribunal was that the evidence about the brother’s studies suggested, in combination with other evidence, that the family had been living in China without being harassed by officials in the manner claimed by the applicant.  I am not persuaded that this reasoning was not open to the Tribunal as a matter of law.

31. The applicant’s third point was that the Tribunal had mistakenly thought that he wanted to go back to China, and that a contrary wish should have been manifest from the fact that he had applied for protection.  However, undoubtedly the Tribunal was aware that he did not wish to return to China, and it said so in paragraph 79, which I have quoted above.  What the Tribunal was not persuaded of, was that the applicant had suffered harm in the past or would face a real chance of persecution, or a real risk of significant harm, if he returned to China.

32. Taking into account all that the applicant has said to me today, I am unable to identify any ground upon which I can give the relief sought in the application to the Court. I must therefore dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  23 October 2012