SZMLB v Minister for Immigration & Anor [2008] FMCA 1248 (3 September 2008)

Last Updated: 15 September 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLB v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1248

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant not believed – conflicting information provided in earlier visa applications – conflicting information disclosed pursuant to s.424AA of the Migration Act 1958 (Cth) at the Tribunal hearing – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA, 425

Applicant:

SZMLB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1605 of 2008

Judgment of:

Driver FM

Hearing date:

3 September 2008

Delivered at:

Sydney

Delivered on:

3 September 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The applicant is to pay the setting down fee of $447 or seek a waiver of that fee within seven days.
(2) The applicant’s son’s name is not to appear on the transcript of proceedings.
(3) The transcript of today’s proceeding is to be obtained, placed on the court file and made available to the parties and their legal representatives for inspection.
(4) The application is dismissed.
(5) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1605 of 2008

SZMLB

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 handed down on 27 May 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
2. Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are conveniently set out in the Minister's written submissions filed on 28 August 2008. I adopt as background for the purposes of this judgment with minor amendments paragraph 1 second occurring through to paragraph 9 of those written submissions:
   • On 31 October 2007, the applicant, a citizen of the Peoples Republic of China (“PRC”), arrived in Australia (court book (“CB”) at page 37).
   • On 14 December 2007, the applicant lodged an application for a protection visa with the Department of Immigration & Citizenship (“Department”)(CB1-39). On 21 January 2008, a delegate of the first respondent (“delegate”) refused to grant the applicant a protection visa (CB45-57).
   • On 22 January 2008, the applicant applied to the Tribunal for review of the delegate’s decision (CB58-62).
   • On 10 March 2008, the Tribunal wrote to the applicant, inviting him to a hearing before it (CB67-69), which the applicant attended and at which he gave evidence (CB72-73).
   • On 27 May 2008, the Tribunal handed down its decision affirming the decision of the delegate (CB86-105).
   • The applicant’s claims
   • In her statutory declaration submitted to the delegate (CB30-35), the applicant made the following claims:
     • a) from October 2002, she built up a duck farm business. Her duck farm suffered from the threat of bird flu and corrupt officials from the Sanitation and Anti-epidemic centre used it as an excuse to extort money from her and other duck or chicken farmers in the Fujian area. They would regularly attend her farm, find problems with her ducks, and force her to pay “huge” penalties;
     • b) the applicant tolerated the “unfair treatment” and paid the fines. She also had to pay bribes on particular days, such as public holidays, to ensure the smooth running of her business;
     • c) in March 2007, she was approached by Mr Ye, a salesperson selling bird flu medication. It was too expensive and she did not purchase any of the medication. However, she was later pressured by corrupt officials from the Sanitation and Anti-epidemic station to purchase the medication because the company was run by Mr Ye’s aunt (a senior official) and various corrupt officials also had shares in the company. The frequency of inspections of her duck farm were subsequently reduced;
     • d) despite purchasing the medication, in June 2007, all duck and chicken farms were adversely affected by bird flu. The applicant learnt that the medicine had expired and that the central government required anti-bird flu medication to be supplied for free;[1]
     • e) on 21 July 2007, the applicant organised an open protest together with 15 duck and chicken farmers in Haikou town. More than 200 people attended. They urged the government to clean up corruption, protect basic human rights, to investigate and punish corrupt officials and dishonest businessmen, to set up a democratic system and to provide reasonable compensation for their losses;
     • f) the police arrested more than 20 people at the protest, including the applicant, who were detained for 10 days. During that period they were interrogated by the police and subjected to “inhuman mistreatment”. They were forced to (i) sign a confession as to their anti-government activities, (ii) promise that they would not have “any further actions”, and (iii) their families paid RMB 5,000 each as a penalty;
     • g) afterwards, the applicant assisted a friend distribute copies of a petition condemning the corruption, lack of human rights and use of illegal detention. Although the petition was anonymous, the officials suspected that the applicant was involved and was subjected to investigation by the Public Security Bureau (“PSB”), who interrogated the applicant three times; and
     • h) on 26 October 2007, the applicant’s friend was arrested by the PSB and the applicant left the PRC on 30 October 2007. The applicant is regarded as a key member in respect of the distribution of the petition because her friend confessed. Various relatives of the applicant have been interrogated by the PSB.
   • The applicant elaborated upon these claims at the Tribunal hearing.
   • The Tribunal’s decision
   • The Tribunal essentially rejected the entirety of the applicant’s claims because it rejected the applicant’s credibility. It did this because:
     • a) first, at the hearing, the applicant claimed that the first occasion on which she had come to the adverse interest of the Chinese authorities was 20 September 2007 when they interrogated her about the petition. She did not refer to the protest on 21 July 2007 until prompted. Given the significance of the first event and the unsatisfactory nature of her explanation when this inconsistency was put to her at the hearing, the Tribunal considered that this indicated that the applicant was not talking about events she had experienced personally ([34]-[35] at CB101);
     • b) second, likewise, her evidence concerning the nature of the interrogation following the demonstration on 21 July 2007 was unsatisfactory because the applicant appeared to confuse her claimed detention on this occasion with the alleged interrogations concerning the anonymous petition ([36] at CB102);
     • c) third, the documentary evidence submitted in the context of her son’s student visa application and her student guardian visa application indicated that she and her husband were involved in the “King Dnarmsa Spirulina Company”. This was inconsistent with her claim to have had a duck farm ([37] at CB102). The applicant claimed that she paid a “snakehead” to forge those documents, but the Tribunal rejected this explanation and accepted that the documents were genuine because:
       • i) the documents included a letter and bank statement from the Bank of China, being a reputable bank ([38] at CB102);
       • ii) the applicant claimed that the student guardian visa application was prepared by her friend and her son’s student visa application was prepared by the “snakehead”, whereas the allegedly forged documents were attached to both applications. This suggested that the “snakehead” was not responsible for the genesis of these documents, and the applicant was unable to provide an explanation in this regard ([39]-[40]); and
     • d) the applicant acquired her passport on 30 January 2007 and obtained a substantial bank loan around the same time (whereas the alleged protest occurred in July 2007 and her friend was arrested in relation to the petition in October 2007). This indicated that the applicant planned to travel to Australia before the claimed events involving her duck farm. It found the applicant’s explanation at the hearing in this regard unsatisfactory ([41] at CB103).
   • The Tribunal accordingly concluded that ([42] at CB103):
     • a) the applicant and her husband were involved with a “Spirulina” business as per the documents submitted together with her son’s student visa application and her student guardian visa application; and
     • b) the applicant had fabricated her story about a duck farm for the purposes of claiming refugee status.
3. These proceedings began with a show cause application filed on 23 June 2008. The applicant continues to rely on that application. I incorporate the grounds in that application in this judgment:
   • 1. The Tribunal failed to comply with its obligations under s.424AA of the Act.
     • Particulars
     • In the Tribunal’s decision, the Tribunal stated that:
     • The Tribunal asked whether she wished to comment or respond now or wanted more time. She stated the duck [farming] is true. The spirulina company is false. The Tribunal asked if that is all she wished to say. [She did not comment].
     • The Tribunal asked if there was anything else she wanted to say – that the Tribunal had not spoken about. She said she wants the Australian government to keep her here.
     • The Tribunal asked why her son was not included in the application. She stated she thought he was – she had put her 3 children on the form she had signed at Ms Yu’s place. The Tribunal indicated she was the only applicant and only review applicant.
     • The applicant did not seek additional time to respond or comment on the information. Nor did the Tribunal consider that the applicant reasonably needed additional time to respond or comment on the information.
     • While the Tribunal made its decision, the Tribunal has considered the information obtained from my visa application of the Department’s file (CLF2007/94210). These include:
     • – The application for a Student Guardian visa was dated 27 June 2007 and lodged in Australia on 2 July 2007. The reasons given for the application were: “I miss my son very much and want to take good care of him so that he can focus on study” (question 36).
     • - My son ... arrived had his passport issued on 7 August 2006; his student visa was granted on 20 April 2007; and he entered Australia on 9 May 2007. A letter from an education provider showed he was enrolled in English for High School.
     • – A Household Register issued 9 November 2006 shows that I and my husband were farmers.
     • – A bank account statement from the Bank of China dated 29 May 2007 showed my husband had 150,000RMB in it time deposit.
     • – A letter dated 10 January 2004 by ‘King Dnarmsa Spirulina Company’ labelled a ‘Cultivating Contract’ showed my husband entered into a contract with that company to cultivate spirulina for 10 years to 2014.
     • – A letter dated 7 January 2007 by ‘King Dnarmsa Spirulina Company’ discussed the contract with me and my husband and outlined the amount of spirulina produced by us, and our income, in 2004, 2005 and 2006.
     • The Tribunal has also considered the information obtained from my son’s application for his student visa [The Department’s file (CLF2007/13528)]. These include:
     • – My son’s application was signed on 15 December 2006 and lodged on 29 January 2007.
     • – A letter from the Bank of China outlined details of the Student loan offered to the applicant’s husband in order to finance the son’s study in Australia. The loan was liar 500,000rmh.
     • – A letter dated 10 January 2004 by ‘King Dnarmsa Spirulina Company’ labelled a ‘Cultivating Contract’ showed the applicant’s husband entered into a contract with that company to cultivate spirulina for 10 years to 2014.
     • – A letter dated 7 January 2007 by ‘King Dnarmsa Spirulina Company’ discussed the contract with the applicant and her husband and outlined the amount of spirulina produced by them, and their income, in 2004, 2005 and 2006.
     • Subject to s.424AA of the Act, if an applicant is appearing before the Tribunal because of an invitation under section 425:
     • (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
     • (b) if the Tribunal does so – the Tribunal must:
       • (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
       • (ii) orally invite the applicant to comment on or respond to the information; and
       • (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
       • (iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
     • In my case, the Tribunal indeed orally gave me particulars of the above-mentioned information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. But, the Tribunal failed to ensure, as far as is reasonably practicable, that I understood why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review.
     • The Tribunal might orally invite me to comment on or respond to the information; and the Tribunal might advise me that I might seek additional time to comment on or respond to the information. But, the Tribunal failed to ensure me to understand what exact the meaning for such an invitation was. Significant evidence is that
     • – When I was asked whether wished to comment or respond now or wanted more time; I just simply stated that the duck [farming] is true. The spirulina company is false. In other words, I definitely did not understand what the Tribunal’s invitation would mean; and
     • – Particularly, the Tribunal has obviously realised that I did not understand its invitation at all, but failed to make any further explanation; instead, The Tribunal asked if that is all I wished to say. Again, I was completely confused, and even without making any comment.
     • The Tribunal then made [a] completely incorrect finding that The applicant did not seek additional time to respond or comment on the information...
     • My right under s.424AA of the Act have unfairly deprived by the Tribunal; and the Tribunal has failed to comply with its obligations under s.424AA of the Act.
   • 2. The Tribunal failed to consider my evidences properly and the Tribunal made its decision with apprehensive bias.
     • Particulars
     • The Tribunal failed to consider properly my evidence that my best friend organised my guardian visa application and a snakehead had earlier organised my son’s student visa application. The Tribunal failed to consider properly that it was impossible for me to explain why the same employment documents were provided in both applications, because neither my best friend nor the snakehead would tell me exactly how they had done for me and what documents they have prepared for me.
     • The Tribunal made its finding with apprehensive bias. The Tribunal’s finding that employment documents are genuine is based on nothing apart from its unwarranted assumption.
4. I received as evidence a short affidavit filed by the applicant with her application, the court book filed on 23 July 2008 and a supplementary court book filed on 1 September 2008.
5. I reject the grounds of review in the application. Assuming s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”) was engaged, I am satisfied that the Tribunal met its obligations under the section. The Tribunal was dealing with glaring inconsistencies between what had been put by the applicant in her protection visa application and what had been put in her son's student visa application and a student guardian visa application. One or other of the sets of claims had to be false. I infer from what the Tribunal says at CB 99 and 100 that the Tribunal obtained information concerning the student guardian and student visa applications from departmental records. On that basis, the Tribunal had before it information requiring disclosure pursuant to either s.424A or s.424AA of the Migration Act. The Tribunal plainly embarked upon a course of oral disclosure pursuant to s.424AA. I am satisfied on the basis of the Tribunal's record of what occurred at the Tribunal hearing that the Tribunal accurately identified the information of concern to it and the significance the Tribunal saw in that information.
6. The Tribunal invited the applicant to comment and advised her that she could either comment then at the hearing or later (CB 99). The applicant now says that she did not understand the significance of the information or the opportunity to comment later. I reject that contention. The applicant made submissions today through her son, who appeared by leave on her behalf. He made the point, I think fairly, that his mother could not have done much more than continue to assert which documents she said were true and which were false. She had effectively done all she could do at the hearing.
7. The applicant's son asserted that his mother did not understand the significance of what she was being asked because she did not understand Mandarin well. I note, however, that the applicant had identified her language as Mandarin/Chinese in her protection visa application and her application to the Tribunal as well as for the purposes of her application to this Court. There is no indication on the record of the Tribunal hearing that there were any interpretation difficulties and that issue was not raised in the application to the Court.
8. I agree with the Minister's submissions in paragraphs 15 to 19 of those submissions that the Tribunal met its obligations pursuant to s.424AA of the Migration Act at the hearing.
9. As to ground 2, there is no evidence to support the contention of apprehended bias. The applicant is plainly concerned that the Tribunal preferred the information in the student visa and student guardian visa applications to that in the protection visa application. Apart from the applicant's own assertions that documents relating to a Bank of China loan and the family business in the student visa and student guardian visa applications were false and invented by a snakehead and a friend, the Tribunal had no reason to disbelieve the authenticity of those documents or the accuracy of the statements contained in them. It seemed to the Tribunal implausible that those documents would be false. It was open to the Tribunal to rely on those documents in preference to the assertions in the protection visa application which were plainly incompatible. It was open to the Tribunal to conclude that the protection visa claims were themselves false.
10. The applicant's son at the hearing before me today went through the supplementary court book and identified various details in the student visa application and the student guardian visa application which are allegedly false. Curiously, his mother had told the Tribunal at the hearing that the content of both applications, as opposed to the documents provided with them, were true and accurate. According to the applicant’s son, key details in both applications were provided by the snakehead.
11. The Court was able to verify that the person nominated in the student visa application as the authorised recipient and who is said to have assisted with the preparation of that application was a real person and that the contact telephone number was accurate. The person Jin Qi Xue answered the telephone number when it was dialled and confirmed that she had assisted with the completion of the application. She stated that she was not a registered migration agent but at the time was working as a student agent.
12. The applicant's son confirmed on his own behalf and on behalf of his mother that they had not drawn the Minister's Department's attention to any false information in either the student visa application or the student guardian visa application or the documents provided with them.
13. In view of the specific allegations that the signatures of the applicant, her husband and her son had been forged on those applications and that false information and false documents had been provided, which were identified by the applicant's son, I directed that the transcript of the proceedings be obtained and made available for inspection. I have in mind that the Minister's Department may wish to pursue those allegations further. That is beyond the scope of this proceeding.
14. There is, in my view, no jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
15. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,000. The applicant, through her son, asserted an inability to pay, but that is not a reason for the Court to refrain from making a costs order. I see no reason to depart from the Court scale. 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 $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 September 2008

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[1] There is also a reference to a Ms Lin being missing, but it is not clear who she is or how she fits into the picture.