SZMYG v Minister for Immigration & Anor [2009] FMCA 52 (16 February 2009)

Last Updated: 19 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 52

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China on several bases – show cause order in relation to whether prescribed procedures for dealing with claims of family violence apply in protection visa cases.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth) Migration Legislation Amendment Act (No 1) 2008 (Cth) Migration Regulations 1994

Minister for Immigration v Eshetu (1999) 197 CLR 611 SZMRV v Minister for Immigration [2009] FMCA 8

Applicant:

SZMYG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3019 of 2008

Judgment of:

Driver FM

Hearing date:

16 February 2009

Delivered at:

Sydney

Delivered on:

16 February 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms J Dinihan Clayton Utz

INTERLOCUTORY ORDERS

(1) Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), the first respondent is ordered to show cause why relief should not be granted in relation to the issues of:

• (a) whether Division 1.5 of the Migration Regulations 1994 has any application to protection visa applications;
• (b) if so, whether a breach of the procedure set out in that Division constitutes a jurisdictional error; and
• (c) if so, whether the Tribunal did fall into error.

(2) The matter is listed for final hearing at 10.15am on 26 May 2009.
(3) The applicant is to file and serve on the respondents any further submissions on which she wishes to rely not less than 14 days before the final hearing date.
(4) The second respondent is to file and serve on the applicant an outline of written submissions and list of authorities not less than 7 days before the final hearing date.
(5) Costs of today are costs in the proceedings.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3019 of 2008

SZMYG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 28 October 2008. The decision was made after the commencement of amendments to the Migration Act 1958 (Cth) (“the Migration Act”) which commenced on 15 September 2008 removing the procedure for the handing down of Tribunal decisions[1]. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
2. The applicant is from China and had made claims of persecution based upon her practice of Falun Gong. She was not believed either by the Minister's delegate or by the Tribunal. The Tribunal found that the applicant was not a truthful person and that she had fabricated her claims in relation to her Falun Gong practice. This was based in significant part on the Tribunal's assessment of the applicant's credibility having regard to her extremely limited knowledge of Falun Gong and what appeared to have been a fabricated claim to have seen Master Li in China at a time following his exile from China.
3. The applicant also claimed before the Tribunal that she had suffered harm by reason of domestic violence and because of the Chinese one child policy. The claim in relation to the one child policy appeared to be linked to the applicant's claim of being a Falun Gong practitioner. The Tribunal found that the one child policy was relevantly a law of general application and would not be applied in a discriminatory fashion against the applicant.
4. The applicant's claims of domestic violence do not appear to have been clearly linked to a Convention ground but the Tribunal rejected the factual claim.
5. These proceedings began with a show cause application filed on 20 November 2008. The applicant continues to rely on that application. The application asserts that the Tribunal erred in its application of the “real chance” test under the Convention and that the Tribunal did not refer to any independent information in consideration the application. There is also a generalised allegation of failing to carry out the Tribunal's statutory duty.
6. The applicant filed an affidavit with her application which I received as a submission. The affidavit repeats in general terms the grounds in the application. The applicant also filed written submissions on 12 February 2009. In those submissions the applicant asserts a breach of s.420 of the Migration Act in relation to the Tribunal's objective of providing a mechanism of review that is fair, just, economical, informal and quick.
7. I received as evidence the court book filed on 12 December 2008. The applicant told me from the bar table that she had not received the court book prior to today's hearing. I accept that is so because the envelope containing it sent from the Minister's solicitors was incorrectly addressed and was returned to sender. However, the documents in the court book, with the exception of minor, internal administrative documents of no consequence, have all been seen by the applicant previously and she has not been disadvantaged.
8. There is no substance to grounds of review raised in the application. As pointed out by the Minister's solicitor, the Tribunal correctly set out the real chance test at paragraph 16 of its reasons and applied it at paragraph 64 of its reasons[2]:
   • The Tribunal does not accept that the applicant is, or has ever been, a Falun Gong practitioner or that she has ever been detained for practicing Falun Gong as claimed. The Tribunal also does not accept that the applicant has ever come to the attention of the Chinese authorities as claimed or that she is of any interest to the Chinese authorities for practicing Falun Gong. The Tribunal does not accept that the applicant and her colleague fled China because they were wanted for questioning in relation to the possession of Falun Gong material or that the applicant’s family has since been questioned about the applicant. Nor does the Tribunal accept that the applicant was dismissed by her employer for her practise of Falun Gong. Nor does the Tribunal accept that the applicant’s sister was a Falun Gong practitioner or that either the applicant’s sister or the applicant were taken to the local police station and forced to sign a guarantee that they will not practise Falun Gong. As the Tribunal does not accept that the applicant has ever been a practitioner of Falun Gong, the Tribunal does not accept that she will be involved in practising Falun Gong in China upon her return. The Tribunal therefore does not accept that there is a real chance that she will be persecuted for reasons of involvement in Falun Gong if she returns to China now or in the reasonably foreseeable future, whether this claim is regarded as falling under the Convention grounds of religion, membership of a particular social group (such as ‘Falun Gong practitioners’) or imputed political opinion. The Tribunal also does not accept that the applicant was the victim of domestic violence in China and does not accept that she genuinely fears harm as a result of this issue. Nor does the Tribunal accept that the applicant faces harm for a Convention reason as a result of her breach of the one-child policy. As a result, the Tribunal is not satisfied by the available evidence that the applicant holds any genuine or well-founded fear of any harm for a Convention reason should she return to China.
9. Contrary to the application, but consistently with the applicant's oral submissions today, the Tribunal did refer to country information in making its decision[3]. The Tribunal is entitled to have regard to the independent evidence it sees relevant as it sees fit.
10. In her oral submissions the applicant asserted bias on behalf of the Tribunal, but I reject that submission. The material before me does not support an allegation of bias, either actual or apprehended. I also reject the asserted breach of s.420 of the Migration Act. In any event, that section is facultative and does not impose obligations on the Tribunal, the breach of which would constitute a jurisdictional error: Minister for Immigration v Eshetu (1999) 197 CLR 611.
11. In her closing submissions, the applicant referred to her claim of having been a victim of domestic violence in China. The Tribunal dealt with that claim in paragraph 61 of its reasons[4]:
    • The Tribunal has also considered the applicant’s other claims, as raised at the Tribunal hearing in relation to domestic violence and one-child policy. The applicant claimed at the hearing that her husband had regularly abused her and had gambling problems. As discussed with the applicant at the Tribunal hearing, the applicant did not claim in her detailed statement that was provided to the Department that she had any problems in relation to domestic violence. The Tribunal has listened to the Department’s tapes of the interview. Although the Tribunal accepts that the applicant stated to the Department officer when interviewed that her family was “not good” to her, she did not raise in issues in relation to violence or problems with her husband. The applicant was interviewed by a female officer of the Department and in such circumstances the Tribunal would expect that the applicant would raise any such issues to the Department if she genuinely feared harm on return as a result of this issue. The Tribunal does not accept the applicant’s claim that she did not inform the officer of the department about these problems because she wished to “save face”. The Tribunal considers that the applicant has manufactured this claim at the Tribunal hearing in an attempt to bolster her claims to be refugee. The Tribunal does not accept that the applicant was a victim of domestic violence in China and does not accept that she genuinely fears harm from her husband or any other family members if she returns to China.
12. In my view, that claim and the manner in which the Tribunal dealt with it gives rise to an issue meriting a final hearing in this matter.
13. I raised the issue in SZMRV v Minister for Immigration [2009] FMCA 8 at [32]:
    • There may be a further issue concerning the manner in which the Tribunal dealt with the applicant’s claim of domestic violence. That was one of the issues raised orally by the applicant at the Tribunal hearing. The Tribunal rejected the applicant’s factual claim of having suffered domestic violence. However, the Tribunal did not deal with that issue in accordance with the formal (and strict) guidance prescribed in Migration Regulation 1.23. The applicant was apparently not invited to submit a statutory declaration in accordance with regulation 1.24. If the Tribunal had been presented with evidence in the prescribed form (and perhaps in any event) the Tribunal would have been required to obtain an independent expert’s opinion in accordance with regulation 1.23(1B) because the Tribunal was not satisfied that the applicant had suffered the domestic violence claimed. However, the issue was not argued before me and it would not be appropriate to make any finding in the absence of submissions.
14. The question is whether Division 1.5 of the Migration Regulations 1994 (“the Migration Regulations”) which sets out special provisions relating to family violence has any relevance in relation to claims made in support of protection visa applications and, if so, whether a failure by the Tribunal to follow the procedure prescribed in those regulations would constitute a jurisdictional error.
15. I will order that pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), the first respondent is ordered to show cause why relief should not be granted in relation to the issues of:
    1. whether Division 1.5 of the Migration Regulations has any application to protection visa applications;
    2. if so, whether a breach of the procedure set out in that Division constitutes a jurisdictional error; and
    100. if so, whether the Tribunal did fall into error.
16. I will order that the matter be listed for final hearing at 10.15am on 26 May 2009. The applicant is to file and serve on the respondents any further submissions on which she wishes to rely not less than 14 days before the final hearing date. The second respondent is to file and serve on the applicant an outline of written submissions and list of authorities not less than 7 days before the final hearing date.
17. I will order that costs of today are costs in the proceedings.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 February 2009

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[1] Migration Legislation Amendment Act (No 1) 2008 (Cth) (No 85, 2008)
[2] court book, page 98
[3] court book, pates 92-95
[4] court book, page 97