SZNIK v Minister for Immigration & Anor [2009] FMCA 499 (27 May 2009)

Last Updated: 28 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIK v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 499

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 424A(1); 424A(3)(b); 424A(3)(ba); 424A(3)(c); 425; 474; pt.7; pt.8 div.2

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 SZIJK v Minister for Immigration and Citizenship [2007] FCA 141 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609

Applicant:

SZNIK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 599 of 2009

Judgment of:

Emmett FM

Hearing dates:

4 May 2009, 13 May 2009

Date of last submission:

8 May 2009

Delivered at:

Sydney

Delivered on:

27 May 2009

REPRESENTATION

Applicant appeared on her own behalf assisted by a Fuqing interpreter

Counsel for the Respondent:

Mr P. Reynolds

Solicitors for the Respondent:

Mr G. Conomos, Clayton Utz

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 599 of 2009

SZNIK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 February 2009 and handed down on 11 February 2009.
2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and previously elected as a member of a local village committee (“the Applicant”).
3. The Applicant arrived in Australia on 17 June 2008 having departed legally from Baiyun on a passport issued in her own name and a short-stay visitor visa issued on 15 May 2008.
4. On 28 July 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
5. On 25 October 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
6. On 16 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
7. On 10 February 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
8. On 12 March 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

9. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
10. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
11. Australia has protection obligations to a refugee on Australian territory.
12. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
    • “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
13. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

14. The Applicant provided a statement in support of her application in which she claimed to have suffered persecution by the Chinese government because she showed mercy to women who breached the policy of birth control in the conduct of her duties as a government officer in Jiang Yin town. The Applicant claimed to have been the Deputy Dean to the Jiang Yin town local government and responsible for the enforcement of the one-child policy for the town. The Applicant stated that on 1 February 2008 she sent a letter to Fu Qing municipal government in her own name “reflecting the non humanitarian action of the office.” The Applicant stated that her letter came to the attention of the Dean of the municipal government whose brother-in-law was the Deputy Director of the Police Bureau.
15. The Applicant stated that on 5 March 2008 an officer from the Fu Qing Discipline Inspection Bureau came to her office and accused her of accepting bribes and breaching the family planning policy. The Applicant claimed to have been detained over night and questioned by police about the allegations of bribery which the Applicant stated she continued to deny. The Applicant stated that she was released the following morning and forced to resign. The Applicant claimed to fear threats and persecution if she were to return to China by reason of the claims she has made.
16. On 4 September 2008, the Department wrote to the Applicant inviting her to attend an interview on 26 September 2008.

The Delegate’s decision

17. On 26 September 2008, the Applicant attended an interview with the Delegate to discuss her claims.
18. On 25 October 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
19. The Delegate found that the Applicant was unable to provide any evidence that she was a political activist who had suffered persecution in China and noted inconsistencies in the Applicant’s evidence. The Delegate was not satisfied that the Applicant held a profile that would attract adverse attention from authorities in China. The Delegate found there was no evidence to support the Applicant’s claims of having experienced any harm or mistreatment of sufficient gravity to amount to persecution.

The Tribunal’s review and decision

20. On 16 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided further material in support of her review application, being a purported medical certificate dated 6 June 2008. That certificate stated that the Applicant was “identified by psychologists that she must live in quiet place and not be influenced by environmental factors. This is to prevent possible degradation into schizophrenia.” (“the Medical Certificate”).
21. The second document purported to be a summons stating that the Applicant had violated the one-child policy and accepted bribes using her work power and was summonsed to attend the police station in China on 30 September 2008 for questioning (“the Summons”). The Summons was sent to the Tribunal prior to the Tribunal hearing. The Applicant claimed to have received the Summons after her arrival in Australia and after lodging her protection visa application.
22. On 2 December 2008, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 20 January 2009 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
23. On 20 January 2009, the Applicant gave evidence at a hearing before the Tribunal.
24. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
25. The Tribunal found the Applicant was not a witness of truth.
26. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
    • “13. It accepted that the PRC’s national planning policies retained harshly coercive elements in law and practice, that a large fine was payable for unapproved children, and that Local Women’s Federations assisted the government implement family planning on a local level ([74]).
    • 14. However, it rejected the Applicant’s claims to fear persecution because it found that the Applicant was untruthful and that she had created her claims in order to obtain a protection visa ([75]). This was for a number of reasons:
    • a) first, although the Applicant claimed to have been employed as the Director of the Village Committee of Hai Liang for 20 years, and as the Deputy Dean in Jiang Lin town, she could not explain what her job involved in any detail or the structure of the organisation in which she worked ([76]);
    • b) second, she was unable to explain in some cogent way the administrative system in relation to family planning in the town or village where she worked, nor was she able to refer to the name of the document in which the local family planning policies were set out, whereas a person who held the position of Deputy Dean in Jiang Yin should be able to do so ([77]-[78]);
    • c) third, a person who wrote a letter to a government Department criticising the actions of her superior ought to be able to explain what she hoped to achieve by such an action, whereas the Applicant was unable to do so ([79]);
    • d) fourth, the Applicant claimed that persons who carried out forcible abortions or sterilisations were paid a bonus, but she was unable to cogently explain who paid the bonus, nor was it consistent with independent evidence ([80]-[82]);
    • e) fifth, the Applicant’s evidence as to the content of the family planning law was inconsistent with the Fujian regulations and the Applicant was unable to articulate the sources of family planning law and policy in Fujian ([83]);
    • f) sixth, although independent evidence indicated that in 1997 the Fujian province emphasised training for birth planning workers, the Applicant stated that she did not receive such training. The Tribunal rejected the Applicant’s submission that the local authorities did not do things in accordance with government policy, because this was not mentioned in the independent country information ([84]).
    • 15. The Tribunal placed no weight on the medical report submitted by the Applicant because it did not identify the qualifications of the writer or set out the basis of the opinion, that the Applicant needed to live in a quiet place. Further, it did not identify and present a medical condition or state that the Applicant suffered one in the PRC ([86]). It was also apparent that the Applicant was able to meaningfully participate in the hearing ([87]).
    • 16. The Tribunal also placed no weight on the Summons because, weighing up the document against the Applicant’s evidence, it did not accept that the claimed events had occurred hence it rejected the claim that the Summons was served upon her by the PSB as part of their investigation of her ([88]).”

The proceeding before this Court

27. The Applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter.
28. On 3 April 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. No further application or evidence was filed by or on behalf of the Applicant.
29. At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Court also provided to the Applicant, headed in her own language, a contact list of providers of legal assistance and interpreting services. The Applicant has participated in the Court’s legal advice scheme and received advice from Mr Colbourne of counsel.
30. The Applicant confirmed that she relied on the grounds contained in the application filed on 12 March 2009.
31. The grounds of the application are expressed as follows:
    • “1. RRT used old information to my application. It is not fair.
    • 2. Procedural Fairness has been denied. RRT did not consider my application fairly. They did not count into my evidence. I would be put in jail if I return to China.”
32. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of her application generally. The Applicant confirmed that she had filed no further evidence or any submissions in support of her application.
33. At the commencement of the hearing, the Applicant made a new complaint that she had asked the Tribunal for a break during the hearing to take heart medication but that the Tribunal had refused. The Applicant was given leave to give evidence on oath in support of this new allegation. The Applicant gave evidence that the night before the Tribunal hearing she had taken two sleeping tablets and she normally takes one sleeping tablet. She said that at the hearing she had difficulty in breathing and asked for a rest to have some more medication. However the Applicant said her request was refused by the Tribunal who told her that the hearing would be finished soon.
34. Because of the Applicant’s new complaint, the hearing was adjourned and the parties were directed to file and serve any further evidence upon which they intended to rely. The matter was adjourned for further hearing on 13 May 2009.
35. At the further hearing on 13 May 2009, the Applicant filed an affidavit, affirmed 11 May 2009, annexing a document purporting to be a copy of a “Wanted” poster of the Applicant and dated 10 February 2009. Upon enquiry from the Court, the Applicant told the Court that this was not a document that she had given to the Tribunal for its consideration. On that basis, the First Respondent objected to the reading of the affidavit on the grounds of relevance. The affidavit was rejected.
36. Also, at the further hearing on 13 May 2009, the Applicant confirmed that she had not filed any further evidence or submissions in support of her new complaint referred to above. The Applicant declined to make any further oral submissions in support of that complaint.
37. On 8 May 2009, the First Respondent filed an affidavit of Gregory Markus Conomos, sworn 8 May 2009, annexing a transcript of the Tribunal hearing. The First Respondent also filed supplementary written submissions in relation to the Applicant’s claim of having been refused an adjournment by the Tribunal to take heart medication.
38. The Court gave the Applicant until 22 May 2009 to file any further submissions in response to those of the First Respondent. No further document or submissions have been filed by or on behalf of the Applicant.
39. The transcript of the Tribunal hearing made clear that the hearing lasted approximately 2 hours and 4 minutes.
40. The transcript shows that the Applicant’s request for an adjournment was made 1 hour 49 minutes into the hearing. That request was made as follows:
    • “A Can I have a break?
    • TM Madam we’re just about to finish so you’ll be able to have a break. Now can you tell me what it is that you fear about returning to China?”
41. Thereafter, the hearing continued without any complaint by the Applicant, until the Applicant raised for the first time that her heart was not well. At 1 hour 56 minutes into the hearing the Applicant made a brief reference to her heart medication. The transcript is as follows:
    • “A I think I should go to the doctor although it’s expensive. My heart, my heart is not well.
    • TM Okay. Well what this doctor says is that ... sorry what this report says is, that the psychologist identified that the patient must live in quiet and not be influenced by outside environments.

A Yes.

• TM This is to prevent possible degradation into schizophrenia. Okay. That’s what this medical report says.
• A So if I have to ... not much pressure and happier then I will be better. Everyday I’m having this medicine, this medication. I’m having this medication now as favour to the heart.
• TM And that’s been given to you by this Fujing (sic) City Hospital has it?

A Yes.
TM Okay. Okay thank you the hearing is completed.”

42. A fair reading of the transcript does not support the allegations made by the Applicant’s oral evidence to this Court that she requested an adjournment to take heart medication and that adjournment was refused and the hearing continued for more than 15 minutes.
43. The request for an adjournment clearly did not provide any reasons as to why the Applicant may have required a break. Thereafter, the Applicant made no further request for a break nor did she make any complaint about the Tribunal’s proposal to finish the hearing. The exchange about the Applicant’s heart condition and heart medication does not appear to be linked to any further request for an adjournment and certainly was not provided as the basis for the Applicant’s original request to the Tribunal for a break. It is quite apparent that the hearing did conclude following the Applicant’s evidence about her heart medication, however, clearly not for that reason.
44. In the circumstances, I find that the Applicant did not ask for an adjournment in order to take her heart medication. Further, the transcript does not suggest that the Applicant needed an adjournment for any identified reason. Further, at no stage during the hearing, did the Applicant suggest that she needed to take medication for her heart at any particular point in time.
45. Ultimately, it is a matter for the exercise of the Tribunal’s discretion as to whether it grants any request for an adjournment. Given that the Applicant did not provide any reason for the request and that the Tribunal was of the view at the time the request was made that the hearing was shortly to conclude, the Tribunal’s exercise of its discretion to refuse an adjournment was properly exercised.
46. Accordingly the Applicant’s allegation of a request by her to the Tribunal for an adjournment in order to take heart medication is not made out.
47. There was no reason given for the Applicant’s request to have a break at that point in time.

Ground 1

48. Ground 1 makes the bare assertion that the Tribunal had used old information in relation to her application which she alleged was not fair. I understand the reference to “old information” to be a reference to old country information. When the Court asked the Applicant what was the country information that she said was no longer relevant, the Applicant responded that it was information relating to persecution in China. The Applicant confirmed that she did not provide to the Tribunal any country information herself.
49. A fair reading of the Tribunal’s decision record identifies with particularity the country information to which the Tribunal had regard. The Applicant did not provide any particulars, evidence or submissions to suggest that any of the country information relied upon by the Tribunal was incorrect.
50. It is well established that it is for the Tribunal to decide the country information to which it has regard and the weight it gives that material (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]). Moreover, a bare assertion that the Tribunal used old country information does not amount to a source of jurisdictional error (SZIJK v Minister for Immigration and Citizenship [2007] FCA 141 per Allsop J at [10]).
51. In any event, a fair reading of the Tribunal’s decision makes clear that the Tribunal generally accepted that China’s one-child policy retained “harshly coercive elements in law and practice.” The Tribunal also acknowledged that the penalties for violating the law were strict and summarised the general policy.
52. However, the Tribunal did not accept that the Applicant was a witness of truth and comprehensively rejected her claims. In particular, the Tribunal rejected that the Applicant had been employed by the village committee as a person responsible for family planning in any capacity; and rejected her claim of having written a letter to the municipal government criticising government policy. The Tribunal did not accept that there was any adverse political opinion imputed to the Applicant. Neither did the Tribunal accept that the Applicant had been detained by the Public Security Bureau for one night, threatened or harassed or that any member of her family had been harassed.
53. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the information contained in the Applicant’s Medical Certificate, however, was not satisfied that the Applicant suffered from any medical condition affecting her ability to recall information or events.
54. The Tribunal also considered the Applicant’s capacity to participate meaningfully in the Tribunal hearing and satisfied itself that the Applicant was able to do so. The Tribunal noted that the Applicant did not at any time suggest that she did not understand the Tribunal’s questions or that she did not understand the interpreter. The Tribunal also noted that the Applicant did not claim to be suffering from any condition or symptoms which could affect her ability to participate meaningfully in the hearing.
55. The Tribunal did not accept that the Applicant had ever held a position of authority in her local town. The Tribunal also, did not accept that she had been reported for accepting bribery and that the Summons was served on the Applicant since she arrived in Australia. Neither did the Tribunal accept. In the circumstances, the Tribunal gave the Summons no weight.
56. Ultimately, it is for the Tribunal to evaluate the evidence and material before it and make relevant findings. As stated above, the Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
57. Accordingly, Ground 1 is not made out.

Ground 2

58. Ground 2 makes a bare assertion that procedural fairness has been denied. Again this ground is not supported by particulars, evidence or submissions.
59. I accept the submission of counsel for the First Respondent that if the Applicant was intending to refer to common law procedural fairness, s.422B of the Act makes clear that Part 7 Division 4 of the Act provides an exhaustive statement of the requirements of the natural justice hearing rule.
60. If the Applicant was intending to refer to breach of a statutory provision in Part 7 of the Act, a fair reading of the Tribunal’s decision record and the review conducted by the Tribunal make clear that the Tribunal complied with the obligations of s.425 in inviting the Applicant to come to a hearing, which she attended and at which she gave evidence. A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored in some detail with the Applicant her claims and put matters of concern that it had arising out of her evidence to the Applicant (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; 228 CLR 152).
61. There was no information to which the Tribunal had regard which enlivened the obligations of s.424A of the Act. The only information considered by the Tribunal was information given to it by the Applicant for the purposes of her review, together with independent country information. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b), s.424A(3)(ba) and s.424A(3)(c) of the Act. To the extent that the Tribunal relied on inconsistencies in the Applicant’s evidence in making its adverse credibility findings, those thought processes are not information that enliven the obligations of s.424A (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [17]-[18]).
62. To the extent that the Applicant makes an allegation that the Tribunal did not “count into my evidence”, a fair reading of the Tribunal’s decision does not support such an allegation. As stated above, a fair reading of the Tribunal’s decision makes clear that the Tribunal explored in great detail with the Applicant her evidence and put to her matters of concern it had arising out of her evidence and noted her responses.
63. Accordingly, Ground 2 is not made out.

Conclusion

64. A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
65. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
66. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
67. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 27 May 2009