SZSQY v Minister for Immigration
[2013] FCCA 1157
•7 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSQY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1157 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Mental Health Act 2007 (NSW), s.32 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575 Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 SZOJF v Minister for Immigration and Citizenship and Another (2011) 199 FCR 286 SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1 SZOPV v Minister for Immigration and Citizenship and Another (2012) 126 ALD 290 SZQEHv Minister for Immigration and Citizenship [2012] FCA 127 |
| Applicant: | SZSQY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 521 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 7 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 521 of 2013
| SZSQY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 13 February 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of the People’s Republic of China, arrived in Australia on 30 August 2010 as the holder of a temporary business visa. He lodged an application for a protection visa on 13 March 2010. His claims were set out in the statement accompanying his protection visa application. The Applicant claimed that from mid-2009 on he encountered difficulties after the local Chinese authorities attempted to take his factory from him and re-zone the land. He and his partner were ordered to stop the business and move out before 2010.
He claimed he unsuccessfully attempted to negotiate with the town government, that his partner was taken away and detained and mistreated by the police who had suggested that he should agree with the demolition or be seriously punished. The Applicant then agreed with the town government that the factory would be closed. His partner was released. He claimed that they lost money.
The Applicant claimed that he decided to complain to the Haian county government, which accepted his petition in January 2010. However he claimed that later that month the Haian police warned him not to appeal. He then decided to complain to the provincial government. In February 2010 he registered his name, address and contact information with the petition department. He claimed that the police came to where he was staying and detained him. He was then taken to a Haian detention centre. He claimed he was tortured and released after 15 days. He then took steps to obtain an Australian visa. However he claimed he also wrote a long letter to the State Bureau for Letters and Calls complaining about government corruption and injustice. He claimed that after his arrival in Australia his wife had informed him that the local police had searched his home looking for him and that the Haian town government had evidence he was abroad. He feared the police would take him away if he returned to China.
The Applicant was invited to, but did not attend, an interview with the delegate of the First Respondent. The delegate refused his application.
The Applicant sought review by the Tribunal. The Tribunal invited him to a hearing on 8 January 2013 which he attended. It appears from the Tribunal hearing record that the hearing commenced at or about 11.33 a.m. and concluded at 12.48 p.m. The applicant had the assistance of a Mandarin-speaking interpreter. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
The Tribunal recorded that in the hearing it explored the Applicant’s claims and discussed concerns about his evidence and credibility. It put to him for comment specific concerns about aspects of his claims.
On 11 January 2013 the Tribunal wrote to the Applicant inviting him to comment on or respond to information, in particular movement records in relation to the time he arrived in Australia. This was said to be relevant to the delay in his application for a protection visa. The Applicant did not reply to that letter.
In its findings and reasons the Tribunal summarised the Applicant’s claims. It recorded that at the hearing he had stated that the local government had breached a contract it had with the business that he and his partner had operated by taking back the leased land on which he operated the business. He claimed that after he closed the business and sold the equipment he had complained to a number of authorities, that he received warnings and was detained, and that after he applied to come to Australia he had complained to the central authorities because he wanted “justice”.
The Tribunal did not find the Applicant’s evidence convincing. It found that he had not given a convincing account of why he decided to complain only after he had agreed to close his company and had sold his equipment, of what he hoped to achieve by complaining after the government had taken back the land or after he had applied to come to Australia.
It also had regard to an inconsistency in his claims. In the written statement accompanying his protection visa application the Applicant referred to detention by the county police in 2010 for 15 days, but at the hearing he stated he was detained for nine days in 2009. The Tribunal considered the Applicant’s explanation that he was unable to recall when he was released and that his memory was not good, but was not convinced that someone who had stated in his statement that he was held for 15 days in 2010, approximately six months before he came to Australia, could not recall a non-specific time marker for such events at the hearing.
Nor was the Tribunal convinced that the Applicant had acted in a manner consistent with his alleged persecution, having regard to his delay of some one year and eight months in applying for a protection visa after he arrived in Australia. The Tribunal did not accept the Applicant’s explanation that he did not know and did not understand English or immigration applications. It was unconvinced that a person who had allegedly complained to authorities in the manner he claimed in China would not have sought information as to his asylum options about the time of his arrival if he had travelled to Australia to seek protection. Nor was the Tribunal satisfied that such a person would simply hide in the expectation that things would change in China. The Tribunal was not satisfied that the Applicant had acted in a way that was consistent with his wanting to escape the Chinese government and seek Australia’s protection. It did not accept that he came to Australia for the reasons claimed.
The Tribunal concluded that the changing nature of the Applicant’s evidence and his delay in seeking asylum were indicative of someone fabricating his claims rather than recalling events that had occurred. It was not satisfied the local government evicted the Applicant, that the police took away his partner on suspicion of theft, that the Applicant agreed to close his company or that he then complained to higher government, was detained and released. Nor did the Tribunal accept that before he left China the Applicant wrote a letter to the State Bureau for Letters and Calls, that the police came and searched his home or that the leaders of the town government came as claimed.
In addition, the Tribunal considered a claim made by the Applicant for the first time at the hearing that he had four children and the authorities had stopped their education because he was an offender. The Tribunal recorded that the Applicant had confirmed that his children were already registered and that it had put to the Applicant that if it did not accept he was telling the truth it may not believe this claim either.
Based on its findings, the Tribunal was not satisfied there was a real chance the Applicant would be targeted for a Convention reason, including his perceived political opinion, if he returned to China. It found that there was no real chance that he would be persecuted for a Convention reason if he returned to China now or in the reasonably foreseeable future.
In addition, the Tribunal was not satisfied that there were any substantial grounds for believing that as a necessary and foreseeable consequence of removal to China there was a real risk the applicant would suffer significant harm. It affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed on 15 March 2013. In an accompanying affidavit he endeavoured to provide an explanation for the delay in lodging his protection visa on the basis that he did not understand English. This does not appear to raise a separate ground, but in any event it is apparent from the Tribunal’s decision that such an explanation was considered by the Tribunal, but was not such as to overcome the Tribunal’s concerns.
In his application the Applicant relied on three grounds. In addition, he sent to the Court a copy of a report dated 3 February 2013 from South West Sydney Psychological Services. As the Applicant is self-represented and as it appeared that such report may be relevant in relation to the Applicant’s fitness at the time of the Tribunal hearing of January 2013, I allowed him to tender a copy of the report. The First Respondent’s solicitor addressed any issues that might be raised by that report.
It is convenient to consider first the grounds raised in the application for review as elaborated on by the Applicant in oral submissions. The first ground in the application is that the Tribunal asserted that the Applicant fabricated his claims for protection. The Applicant acknowledged the Tribunal’s right to suspect his credibility, but stated that the Tribunal:
cannot say without any evidence that I fabricated my claims for the purpose of refugee protection visa. Therefore, I found RRT’s decision unfair.
Insofar as the Applicant claimed and reiterated on a number of occasions that his claims were genuine and that the events complained of in China occurred, he seeks impermissible merits review as I endeavoured to explain to him.
More broadly, if he intended to take issue with the Tribunal’s credibility findings, credibility findings are a matter for the Tribunal. The findings the Tribunal made were open to it on the material before it for the reasons which it gave (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405).
Beyond this, the Applicant appears to have misunderstood the nature of the Tribunal’s review obligation. It is well-established that the role of the Tribunal is to determine the merits of the applicant’s claim and to assess the evidence before it. It is for the applicant to advance evidence and arguments in support of his claim that he has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out as Gummow and Hayne JJ pointed out in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187].
The proceedings before the Tribunal are inquisitorial. The Tribunal is not in the position of a contradictor. Nor is it for the Tribunal to make good an applicant’s claims. Rather, it is for the applicant to make out his case to the requisite standard. Section 65 of the Migration Act 1958 (Cth) (the Act) requires the decision-maker (in this case the Tribunal) to reach a positive state of satisfaction as to whether protection obligations are owed. In the absence of such a positive state of satisfaction the legislation mandates a refusal of the application (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73).
As discussed above, in this case the Tribunal was unable to reach the requisite state of satisfaction because of its concerns about the Applicant’s credibility having regard to issues in relation to his evidence (in particular the changing nature of that evidence) as well as his delay in seeking asylum. The concerns raised by the applicant in ground 1 of the application do not establish jurisdictional error. This ground is not made out.
Ground 2 is associated with ground 1. It is that the Tribunal “could not determine subjectively that [the Applicant did not] have a fear of persecution, and [would] not be persecuted once he returned to China. [The Tribunal] did not have any supportive evidence”.
This ground also reflects a misunderstanding of the Tribunal’s role. It is not the case that the Tribunal must itself inquire into or have supportive evidence before it can affirm a decision to refuse to grant a protection visa. Rather, the Applicant is required to put evidence and claims to the Tribunal which is to determine whether it is satisfied he or she has a well-founded fear of persecution on that basis.
Insofar as this ground might be taken as an allegation that the Tribunal was under an obligation to make some inquiry, there has not been any identification of a critical issue the existence of which is easily ascertained such as to give rise to an obligation on the Tribunal to inquire in the manner considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. Ground 2 is not made out.
Whether in support of these grounds or perhaps as a separate ground, in oral submissions today the Applicant contended that there was irrationality in the Tribunal’s decision or that the Tribunal had acted in a way that was not rational. He did not identify the manner in which the Tribunal decision was irrational or illogical. However it would appear that his concern is with its failure to accept the truth of his claims. In any event, there is nothing in the material before the court to establish or support any claim of irrationality or illogicality such as to constitute jurisdictional error in the manner considered by the High Court in the Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 as explained by the Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1.
The Tribunal set out matters of concern and had regard to the applicant’s explanations. Its reasoning process is not such that it could be said that no other reasonable decision-maker could have come to the same conclusion on the same material. It has not been established that there was irrationality or illogicality such as to amount to jurisdictional error either as part of ground 1 or 2 or on some other basis.
Ground 3 in the application took issue with the Tribunal hearing. The Applicant stated that the Tribunal “meant to confuse [him] by keeping asking [him] questions” and “they did not let [him] rest”. He complained that the “hearing lasted for one hour and a half” and that the Tribunal was “against the humanitarian spirit”.
There are a number of issues raised in this ground. Insofar as the Applicant takes issue with the conduct of the Tribunal hearing, as mentioned above the only evidence before the court as to the conduct of the hearing is the Tribunal’s account in its reason for decision. The Applicant had the opportunity, pursuant to directions made on the first return date, to file a transcript of the Tribunal hearing. He did not do so. There is nothing in the Tribunal’s account of the hearing to suggest that the Tribunal either deliberately confused the Applicant or had that effect on the Applicant by asking him questions, or not letting him rest, or that the length of the hearing was in some way such as to inhibit or affect the Applicant’s capacity to participate in the hearing in a meaningful way in the sense considered in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, and Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575.
It is for the Tribunal to raise issues of concern with the Applicant at the hearing. The Tribunal’s account of the hearing does not raise any issue in relation to the manner in which it did so. Nor is there any evidence that the Applicant sought and was not given any break during the hearing. The length of the hearing about which the Applicant complains is not such as to give rise to any concern as to the conduct of the hearing. It cannot be inferred on the material before the court that the Tribunal meant to confuse the Applicant, whether this is seen as an allegation of actual or apprehended bias, or a failure to comply with s.425 of the Act, or otherwise a lack of procedural fairness.
It is clear that the Tribunal put its concerns to the Applicant. The First Respondent acknowledged that the Tribunal pressed the Applicant in respect of inconsistencies in his evidence. However this was not inappropriate, given that the Tribunal is required under s.425 of the Act, to raise dispositive issues including credibility concerns with the applicant for comment (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152). It is not indicative of jurisdictional error in this case. There is no evidence to support any contention that the member’s questioning style was apt to confuse the Applicant or otherwise indicative of jurisdictional error.
The applicant tendered a report from a psychologist, Mr Smith, dated 3 February 2013. I have had regard to that document, insofar as it might be seen as being relied upon to raise any allegation of jurisdictional error. When I asked the Applicant why he sought to rely on the psychological report, he indicated that in effect it provided support for his claims about events in China. The difficulty with any contention that the psychological report was or should have been seen as corroborative of the Applicant’s claims about events in China is that there is no suggestion that the report was before the Tribunal. The report is dated after the hearing on 8 January 2013, albeit before the Tribunal decision of 13 February 2013. However there is no suggestion or claim that this report was before the Tribunal. Hence there cannot be any substance in a contention that the Tribunal in some way fell into error in failing to have regard to the report as corroborative of the Applicant’s claims (as to which see generally SZOJF v Minister for Immigration and Citizenship and Another (2011) 199 FCR 286.
In any event, lest there be any doubt in that respect, as pointed out by the solicitor for the First Respondent the psychologist’s account of the Applicant’s claims was expressly said to be based on the Applicant’s account of what occurred in China. It is not such as to provide any support for a claim that it was a document that the Tribunal had to take into account as corroboration of his claims.
More generally, there is no obligation on the Tribunal to press an applicant to call further evidence on an issue or even to seek an adjournment.
I have also had regard to whether the report is supportive of any contention that applicant was unfit to participate in the hearing conducted by the Tribunal on 8 January 2013 in the sense considered in NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALD 56, SCAR and more recently SZOPV v Minister for Immigration and Citizenship and Another (2012) 126 ALD 290 and SZQEH v Minister for Immigration and Citizenship [2012] FCA 127. While this was not an issue specifically pleaded by the Applicant, it was implicitly suggested by his submissions and the tender of the report
It is well-established that the Tribunal’s obligation under s.425 of the Act to invite an applicant to a hearing requires the Tribunal to provide a real and meaningful opportunity for the Applicant to attend a hearing. For such a real opportunity to be given the Applicant should be competent to give evidence and present arguments in relation to relevant issues at hearing. However the Applicant bears the onus of establishing that he was not fit to take part in the Tribunal’s hearing (see Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30] and SZNVW).
In this case the Applicant has not met that onus for a number of reasons. First, there is nothing in the Tribunal account of what occurred in the hearing to raise any concern about the Applicant’s fitness to participate in the hearing or his ability to give evidence and present arguments in relation to relevant issues. His explanation for his inability to recall when and for how long he was detained was that his memory was not good. There is no evidence that he raised any broader issue with the Tribunal. The Tribunal’s account of the hearing does not raise concerns in that respect.
Moreover, it is clear that the report was not prepared for the purpose of addressing the Applicant’s fitness to participate in the Tribunal hearing in January 2013. The report was provided to named solicitors in response to a request to assess whether the Applicant’s charges of “Disobey Request/Signal to stop for Breath Test, Police Pursuit; Not Stop; Drive Recklessly” and “Fail/Refuse to Undergo Breath Analysis” relating to events on 10 November 2012 might be relevant to s.32 of the Mental Health Act 2007 (NSW). The report was clearly prepared for the purposes of the Applicant’s appearance before the Burwood Local Court on 7 February 2013 in relation to those charges.
The psychologist expressed the opinion that what the applicant explained he had experienced on the date of the alleged offences in November 2012 were psychotic symptoms involving verbal hallucination and a delusional belief that he was targeted by the police for his arrest and forced return to China. Relevantly, in the report of February 2013 the psychologist stated that such symptoms were temporary, related to a discrete period of excessively elevated mood of fear and, importantly, that the symptoms had not since returned. The events of 10 November 2012 were categorised as a brief psychotic episode with marked stressors. The psychologist described such categorisation as relating to symptoms that lasted for a day but less than a month, with the individual fully returning to the prior level of functioning and that the symptoms were not the result of another condition. The psychologist saw no evidence to suggest that the applicant suffered from a mood disorder or development delay, and saw no dysfunctional personality issues at play, but recorded that the Applicant was courteous, pleasant and cooperative with the interpreter and the psychologist, that he had language and interpersonal skills, clear insight expected of someone with average intellectual ability and an adequate memory of events. He presented as a confident, insightful and respectful person who was appropriate in his responses.
In these circumstances the psychologist’s report in relation to the events of a particular day in November 2012 and the circumstances experienced by the Applicant are not such as to give rise to an inference that the Applicant was unfit to participate in the Tribunal hearing on 8 January 2013. Nor did the psychologist diagnose any condition that may have affected the Applicant’s capacity to participate in the hearing on 8 January 2013.
The Applicant’s submission today that his mind went blank in part of the hearing because he was worrying about the consequences of refusal is not supported by any of the evidence before the Court or by the psychologist’s report. It has not been established that he was not fit to participate in the Tribunal hearing.
No jurisdictional error has been established, either on the basis contended for in ground three of the application or in relation to the Applicant’s fitness to participate in the Tribunal hearing.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The Minister seeks costs in the sum of $5,200. The applicant told the Court that he did not have any money at the moment. However his lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent. Such a likelihood was drawn to the Applicant’s attention at the directions hearing. Nor is it a reason for reducing the amount of the costs, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is less than the amount provided for in the Schedule to the Federal Circuit Court Rules 2001 (Cth). It is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Associate:
Date: 4 September 2013
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