SZQNV v Minister for Immigration & Anor [2011] FMCA 1008 (15 December 2011)

Last Updated: 21 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQNV v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 1008

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant not believed – no arguable case of reviewable error. LAW REFORM – Observations on the need for a more robust protection visa assessment process at the primary level.

Federal Magistrates Court Rules 2001 (Cth)

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [195]- [197] Ebner v Official Trustee (2000) 75 ALJR 277 Minister for Immigration v Jia Legeng [2001] HCA 17 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZOPW v Minister for Immigration & Anor [2011] FMCA 48

Applicant:

SZQNV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1812 of 2011

Judgment of:

Driver FM

Hearing date:

15 December 2011

Delivered at:

Sydney

Delivered on:

15 December 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr I Temby

Solicitors for the Respondents:

Minter Ellison

INTERLOCUTORY ORDERS

(1) The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1812 of 2011

SZQNV

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 20 July 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution based upon her harbouring of a Falun Gong practitioner. The following statement of background facts relating to the applicant’s protection claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 8 December 2011.
2. On 18 November 2010, the applicant arrived in Australia from China[1]. She applied for a protection (Class XA) visa on 31 January 2011[2], claiming to fear persecution in China from the Chinese authorities, as a result of harbouring a Falun Gong practitioner[3]. The applicant claimed that her husband had been imprisoned as a result of these actions and had been hit whilst he was being interrogated in relation to the offence[4].
3. On 10 March 2011, a delegate of the Minister refused the applicant's application for a protection visa[5]. The delegate considered that the applicant's claims contained a number of implausibilities and did not accept any of her claims. The delegate did not accept that the applicant faces a real chance of persecution in China for reason of an imputed political opinion or for any other Convention reason[6].
4. On 4 April 2011, the applicant sought review of the delegate's decision by the Tribunal[7].
5. On 15 June 2011, the applicant appeared before the Tribunal, with the assistance of an interpreter in the Mandarin and English languages[8]. The Tribunal’s record of the evidence given by the applicant on that occasion, in which she elaborated on the claims made in her protection visa application, appears at [25]-[52] of the Tribunal’s reasons for decision.[9]
6. On 20 July 2011, the Tribunal decided to affirm the delegate's decision not to grant a protection visa to the application[10]. The Tribunal notified the applicant of that decision by letter dated 23 July 2011[11].
7. The Tribunal found that the applicant's claimed fear of persecution lacked credibility[12] and rejected all of those claims[13]. The Tribunal found that:
   1. it was difficult to understand why the applicant and her husband, being aware of the illegality of Falun Gong, would give the Falun Gong practitioner “free run” of their apartment[14];
   2. it was implausible that the Falun Gong practitioner would call his wife from the applicant's landline phone, despite being aware of the dangers of doing so[15];
   100. it was implausible that the applicant's husband would call the Falun Gong practitioner's wife and would continue to speak with her on the phone once she advised him that her phone calls were being monitored by the police[16]; and
   4. the applicant's delay in leaving China for three weeks after her visa was issued was inconsistent with the actions expected of a person who fears imminent arrest[17].
8. Accordingly, the Tribunal concluded that the applicant does not have a well-founded fear of persecution if she returned to China and that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention[18].
9. These proceedings began with a show cause application filed on 18 August 2011. That application is still relied on by the applicant and contains three grounds:
   • 1. RRT doubted the truth that I harboured Falun Gong practitioner and the things happen in [C]hina. It is preconceptive.
   • 2. RRT doubted my documents that I didn’t translate into English without well-founded, it is [discriminatory].
   • 3. RRT didn’t consider my situation, I will be put into jail if I go back to China.
10. The application is supported by a short affidavit, which I have received. I also have before me as evidence the court book filed on
    13 October 2011. Only the Minister made written submissions.
11. The applicant made oral submissions, in which she confirmed that her concerns are, first, that in her view the Tribunal adopted a pre-conceived view about the merits of her claims. Secondly, the applicant considers that the Tribunal did not deal properly with an arrest warrant in respect of her husband in the Chinese language that she had submitted to the Minister’s delegate. Thirdly, the applicant is concerned that her claims were true and should have been accepted.
12. The third ground of review can be dealt with readily, as it is an attack upon the merits of the Tribunal decision. The assertion that the Tribunal did not consider the applicant’s claims is patently false.
    I agree with, and adopt the Minister’s submissions in that regard.
13. Taken at its highest, Ground 3 of the application may be taken to allege that the Minister failed to have regard to the applicant's claims that she was a refugee. To the extent that Ground 3 seeks to challenge the factual findings of the Tribunal, this is not a permissible ground of judicial review: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [195]- [197]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-72.
14. The Tribunal’s reasons for decision set out in detail the claims and evidence the applicant had presented in her protection visa application, in her interview with the Minister’s delegate and to the Tribunal itself, and that it made findings in relation to those claims. The Tribunal’s reasons for decision show that it understood the claims being made by the applicant, which it confirmed with the applicant at the Tribunal’s hearing[19].
15. In respect of the first ground, although I agree with the Minister’s submissions, there are additional comments that I wish to make.
16. Ground 1 of the application appears at one level to seek to challenge the factual findings of the Tribunal. The applicant cannot succeed on that basis as findings of fact, including findings of credibility, are matters within the jurisdiction of the Tribunal and cannot be challenged in a judicial review application: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [195]- [197]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-72; Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 423.
17. Ground 1 might also be taken to allege bias on the part of the Tribunal. There is, however, no evidence to support such a claim in the present circumstances.
18. An allegation of bias is a serious charge to be made against a decision-maker and must be clearly made and distinctly proved: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425. There is no evidence that the Tribunal was so committed to a conclusion already formed prior to the hearing as to be incapable of alteration, whatever evidence or arguments may have been presented (Minister for Immigration v Jia Legeng [2001] HCA 17 at [72]) or that a fair-minded observer might reasonably apprehend that the Tribunal had not brought an impartial mind to the resolution of the questions to be decided (Ebner v Official Trustee (2000) 75 ALJR 277 at 279).
19. This applicant, like many applicants from China, used the services of people who may be unscrupulous or even commit a criminal offence in assisting applicants. I have, on many occasions, drawn attention to concerns about the circumstances in which many applicants from China come to Australia and are assisted in putting forward claims for protection[20]. The answer to those concerns is to deal with the people who prey on applicants like this one. It is not to demonise the applicants who seek protection.
20. The Tribunal records, at [51] of its reasons[21], that the applicant initially was unsuccessful in applying for an Australian visa in China. She used the services of an agent in China. At [48] of its reasons[22], the Tribunal records that the applicant paid her agent 100,000 renminbi (RMB) to obtain the visa she ultimately got. The applicant confirmed to me from the bar table today that this was a bribe.
21. Assuming that this is true, and there is no reason to doubt it, either her agent was corrupt and kept that money, or an official who issued the visa was corrupt and took that money. Obviously, an allegation of corruption in obtaining an Australian visa is a matter of serious concern.
22. The applicant also used the services of an agent to assist her with her protection claim. As is usual in cases like this, the applicant could not remember the name of the agent. This raises a concern that the agent may be an unregistered migration agent, operating illegally. The applicant told me that she only paid the agent $200, and this was for translation services. That may be so, but it is equally possible that the applicant is saying what she has been told to say.
23. It is a concern that applicants in the position of this applicant generally claim not to recall the names of agents who have assisted them. Decision-makers faced with hundreds, or even thousands, of such cases are apt to become cynical. The Government has announced that next year the Tribunal will deal with review applications by irregular maritime arrivals. That is a very important responsibility and the Tribunal would be assisted if it were not to be continually burdened by applications such as this which ought to be more thoroughly scrutinised by the Minister’s Department[23].
24. Notwithstanding concerns about the applicant’s manner of coming to Australia, and the process by which she was assisted in seeking protection, there is no evidence that the Tribunal adopted a pre-conceived attitude to the review application. The Tribunal’s record of what occurred at the hearing conducted by it indicates that it was a genuine opportunity for the applicant to seek to persuade the Tribunal about her claims. The Tribunal properly put to the applicant its doubts about those claims. The Tribunal’s findings and reasons on the applicant’s claims indicate to my satisfaction that the conclusions reached by the Tribunal on the credibility of the applicant’s claims were open to it on the material before it.
25. In my view, there is no arguable case of bias on the part of the Tribunal.
26. In relation to Ground 2, I have taken into account the applicant’s assertion of error in relation to the Chinese language document submitted by her. The Tribunal deals with that document at [65] of its reasons[24]:
    • I have reached these conclusions having had regard to the Chinese language document submitted by the Applicant at the departmental interview which was described by her then as an arrest warrant issued for her husband. No English language version of this document has been submitted and I am not satisfied that reliance can be placed on it sufficient to outweigh my concerns about the credibility of key elements of the Applicant’s account.
27. The Tribunal might have explained more clearly why the document did not outweigh the Tribunal’s concerns about the credibility of the key elements of the applicant’s account.
28. It may have been that because the document was in Chinese, the Tribunal could not understand enough about it to place great weight upon it. That is unlikely. The Tribunal’s reasons for decision make tolerably clear that it did not reject the truth of the relevant document merely because it had not been translated into English, but because the Tribunal gave greater weight to the concerns it had regard the credibility of the applicant's claims. The Tribunal did not err in taking this approach.
29. The Tribunal may have reasoned that even if the applicant’s husband had been arrested, that did not necessarily support the key elements of her claim concerning telephone calls made by the Falun Gong practitioner who the applicant was said to have been harbouring. It is also possible that the Tribunal had some doubt about the authenticity of the document. While the Tribunal might usefully have better explained this reasoning, that paucity of reasoning does not, of itself, point to a jurisdictional error.
30. I otherwise agree with and adopt the Minister’s submissions in relation to ground 2.
31. It was open to the Tribunal to find that the evidence which was tendered in support of the applicant's claims should be given little or no weight (Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30 at [49]) and that the weighing of the evidence before the Tribunal was a matter within its jurisdiction to determine (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291-92). Once the Tribunal had determined that it could not rely on the applicant's supporting documents, the Tribunal had no further duty to inquire into the genuineness of the documents: Minister for Immigration v SGLB (2004) 207 ALR 12 at [43].
32. In my view, there is no arguable case of jurisdictional error in respect of the manner in which the Tribunal dealt with the document.
33. On the basis of the show cause application and the applicant’s submissions, and on my own examination of the material, I am not persuaded that the applicant has advanced an arguable case of any jurisdictional error by the Tribunal.
34. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
35. In consequence of the dismissal of the application, the Minister seeks scale costs of $3,123. The applicant said that she understood that liability, but would not be able to pay it. As has been repeatedly stated, impecuniosity is not a reason for the court to refrain from making a costs order. 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 $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
    

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 16 December 2011

---

[1] court book (“CB”) 3
[2] CB 1
[3] CB 29-31
[4] CB 31
[5] CB 48-56
[6] CB 55
[7] CB 67
[8] CB 110
[9] CB 127-132
[10] CB 122-135
[11] CB 120-121
[12] CB 133, [56]
[13] CB 134, [64]
[14] CB 133, [59]
[15] CB 133, [60]
[16] CB 134, [62]
[17] CB 134, [63]
[18] CB 135, [67]-[68]
[19] CB 128, [27]
[20] SZOPW v Minister for Immigration & Anor [2011] FMCA 48
[21] CB 132
[22] CB 131
[23] I have previously recommended that protection visa applicants should be required to be made through a registered migration agent who is a legal practitioner: SZQKF v Minister for Immigration & Anor [2011] FMCA 566
[24] CB 134