SZQIG v Minister for Immigration & Anor [2011] FMCA 619 (11 August 2011)

Last Updated: 17 August 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQIG v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 619

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 425

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 MZYGV v Minister for Immigration [2010] FCA 1032 NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 SZMWO v Minister for Immigration [2009] FCA 814 SZNHS v Minister for Immigration [2009] FCA 1254 SZODW v Minister for Immigration [2011] FCA 5 SZOOI v Minister for Immigration & Anor [2010] FMCA 816 SZOZL v Minister for Immigration & Anor [2011] FMCA 273

Applicant:

SZQIG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1185 of 2011

Judgment of:

Driver FM

Hearing date:

11 August 2011

Delivered at:

Sydney

Delivered on:

11 August 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms J Reardon Minter Ellison

INTERLOCUTORY ORDERS

(1) The Court directs that a copy of this decision be provided to the OMARA for whatever action it considers appropriate.
(2) The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(3) 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 1185 of 2011

SZQIG

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 13 May 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 persecution based on a dispute with corrupt local officials. The following statement of background facts relating to the applicant’s claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 4 August 2011.
2. On 11 May 2010, the applicant arrived in Australia from the People's Republic of China [court book “CB” 3].
3. On 4 June 2010, the applicant applied to the Department of Immigration and Citizenship for a protection (Class XA) visa [CB 1]. The applicant attached a statement to her application in which she claimed to fear persecution in China because she was harassed by Chinese government authorities after she refused the offers of a developer with strong links to the government to buy her successful shoe business [CB 25-26]. The applicant claims that:
   1. on 10 June 2009, the developer led 10 people into the applicant's shoe shop claiming that her business licence was in question and “disordered” her shop [CB 25];
   2. on or about 17 June 2009 a group of people came to the applicant's store and beat her staff and drove customers away. The applicant told the police of this incident but they did not do anything about it [CB 25];
   100. on 2 July 2009, the applicant received a phone call from the developer, who threatened her that if she did not transfer her shoe shop, she would “get trouble in Qinhuangdao” [CB 25];
   4. the developer threatened the applicant's friend, who was going to publish an exposé on the developer's treatment of the applicant [CB 25];
   5. the applicant went to the city government to advise them of the way she had been treated but they did nothing [CB 26]; and
   6. on 15 September 2009, the applicant was taken to the police station, where she was “punched and kicked” [CB 26]. The police transferred her to a detention centre, where she was held for ten days, beaten and fined 10,000 yuan [CB 26]. The applicant agreed to transfer her shoe shop to the developer in order to secure her release [CB 26].
4. On 9 August 2010, a delegate of the Minister wrote to the applicant, inviting her to attend an interview with an officer of the Department on 20 August 2010 [CB 46]. Due to a failure of the recording device, the applicant's interview was not properly recorded and had to be repeated [CB 53]. Accordingly, on 27 September 2010 the applicant was invited to attend another interview with an officer of the Department on 6 October 2010 [CB 55].
5. On 31 January 2011, a delegate of the Minister refused the applicant's application for a protection visa [CB 81]. The delegate found that:
   • In her application the applicant has attempted to portray herself as undertaking actions which led her to be perceived as being anti-government, however, for the reasons stated above I do not accept that the applicant has been truthful in her claims and do not find that [she] has been involved in the activities as stated.
   • On the basis of the above information, I am not satisfied that the applicant was of any interest to the Chinese authorities for a Convention-based reason at the time of her departure from China. Nor am I satisfied that there is any evidence to indicate she would be of any interest to the authorities for a Convention-based reason in the reasonably foreseeable future if she were to return [CB 96].
6. On 25 February 2011, the applicant sought review of the delegate's decision by the Tribunal [CB 102].
7. On 21 March 2011, the Tribunal invited the applicant to appear before it on 29 April 2011 to give evidence and present arguments relating to the issues arising in her case [CB 117]. On 29 April 2011, the applicant appeared before the Tribunal with the assistance of a Mandarin interpreter [139].
8. On 13 May 2011, the Tribunal decided to affirm the delegate's decision not to grant the applicant a protection (Class XA) visa [CB 142]. The Tribunal notified the applicant of that decision by letter dated 16 May 2011 [CB 141].
9. The Tribunal rejected the applicant's overall claims on the basis of the following findings:
   1. the applicant's testimony was not convincing and she was not a credible witness because her story “continued to change with each telling” and contained inconsistencies [CB 151-152];
   2. the applicant's “overall claims lacked credibility given that she was unable to provide details such as what subsequently happened to her shop and where her employees lived” [CB 151];
   100. the applicant's “evidence in relation to where her shop was located had continued to change without adequate explanation” [CB 152]; and
   4. “the changing nature of the applicant's evidence is indicative of someone who is fabricating her claims rather than recalling events that had occurred” [CB 152].
10. The Tribunal accordingly found that it was:
    • not satisfied there is a real chance that the applicant will be targeted for a convention reason including perceived political opinion if she were to return. Neither is the Tribunal satisfied that the applicant will be involved in any form of activity that could give rise to a perceived political opinion if she were to return
    • [CB 152].
11. The Tribunal concluded that it was:
    • not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa [CB 152-153].

The present application

12. These proceedings began with a show cause application filed on 9 June 2011. The grounds in that application are:
    • 1. RRT refused my application unfair.
    • 2. RRT did not weigh my evidenc[e], saying my documents is not true. It is not fair.
    • 3. I will be put in jail if I return to China.
13. Those grounds are unparticularised. I received as evidence an affidavit filed by the applicant with her application in which she refers to her fear of returning to China. I also received as evidence the court book filed on 11 July 2011.
14. I gave directions in this matter on 30 June 2011. I noted in the orders made on that day that the applicant had stated that her show cause application had been prepared by Ms Weiming Qian, a registered migration agent. I also noted that the applicant no longer wished to use the postal address associated with Ms Qian which had been put forward as an address for service. The applicant told me from the bar table today that she had understood from Ms Qian that further material would be filed on her behalf in these proceedings. However, she also told me that she had dispensed with Ms Qian’s services. The fact is that while I gave in my orders made on 30 June 2011 an opportunity for the applicant to file and serve an amended application and further evidence, including a transcript of the Tribunal hearing, nothing further has been filed.
15. The applicant told me that she has had the benefit of advice under the Minister’s Panel Advice Scheme and she discussed with the panel adviser the possibility of obtaining a transcript. She appears to have acted on advice that the cost of obtaining a transcript may not be worth the result.

Consideration

16. The grounds of review in the application are not illuminating because they are unparticularised. The third ground is an attack on the merits of the Tribunal decision which is beyond the scope of these proceedings. Grounds 1 and 2 are a general assertion of unfairness both in relation to outcome and process.
17. In her oral submissions, the applicant expressed concern about the manner in which she was questioned by the presiding member at the hearing conducted by the Tribunal. The applicant repeatedly stated that the method of questioning adopted by the presiding member was inappropriate. I asked the applicant if she was alleging that the presiding member was biased and she said that she was not making that allegation. I understand the applicant to be saying that the method of questioning adopted by the presiding member was in some way unfair because the presiding member kept covering the same issues repeatedly in different ways. The applicant also contends that she did not have a fair opportunity to present her own claims. In her submissions in reply, she referred to difficulties in communication at the hearing through the interpreter and difficulties with the complexities of the Australian legal system.
18. In the absence of a transcript the only evidence I have of what occurred at the Tribunal hearing is that recited in the Tribunal’s decision. An examination of the Tribunal’s decision shows that the applicant was pressed on questions of detail about her claims at the hearing. As I pointed out to the applicant, she was invited to a hearing because the Tribunal was unable to make a favourable decision on the papers. She should have anticipated that the Tribunal had doubts or concerns about her claims. The hearing was an opportunity for the applicant to seek to overcome those doubts and concerns. She was unable to do so.
19. On the contrary, it is apparent that the oral evidence given by the applicant at the Tribunal hearing heightened rather than lessened the Tribunal’s concerns because of the inconsistencies identified. The available evidence of what occurred at the Tribunal hearing does not persuade me that the applicant has an arguable case of jurisdictional error. The Tribunal was entitled to question the applicant in a manner it considered appropriate in order to test the accuracy and veracity of her claims. The hearing opportunity afforded the applicant appears to have been a real one. There is no arguable case of a breach of s.425 of the Migration Act 1958 (Cth).
20. As I have already noted, the applicant has not asserted bias. In other respects, in relation to the grounds in the application, I agree with the Minister’s written submissions.
21. To the extent that the applicant seeks, through grounds 1 and 3, to challenge factual findings made by the Tribunal, this is not a permissible ground of judicial review: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54; Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259. The first respondent submits that findings of fact are within the proper exercise of the second respondent's function: Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407.
22. As Gray J stated in MZYGV v Minister for Immigration [2010] FCA 1032 at [18]:
    • There is no room on an application for judicial review to the Federal Magistrates Court ... for argument that the Tribunal has reached wrong conclusions of fact.
23. The Federal Magistrates Court does not have the power to “make changes to the facts as found by the Tribunal” (at [18]).
24. In relation to Ground 1, the fact that the Tribunal came to a conclusion which was unsatisfactory to the applicant “is not in itself a ground of judicial review”: SZMWO v Minister for Immigration [2009] FCA 814 at [23] per Barker J.
25. As to Ground 2, the weight that should be accorded to a particular piece of evidence is a matter for the Tribunal to decide: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.
26. A claim that the Tribunal failed to give weight to an applicant's evidence amounts to an impermissible attempt to engage the court in merits review of the second respondent's decision: SZNHS v Minister for Immigration [2009] FCA 1254 at [23] per Barker J; NAHI v Minister for Immigration [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.
27. In any case, the Tribunal considered, but rejected the applicant's evidence as being of no weight:
    1. the Tribunal “did not find the applicant's testimony convincing and finds that she is not a credible witness” [[40], CB 151]; and
    2. the Tribunal found that “given its overall concerns as well as the information that suggests that just about any document can be forged in China, the Tribunal does not place weight on [the applicant's documentary evidence]” [CB 152].
28. The Tribunal was entitled to decide not to place any weight on the applicant's documentary evidence because of its reliance on country information indicating the ready availability of fraudulent documents in China: SZODW v Minister for Immigration [2011] FCA 5 at [25] per Katzmann J; NAHI v Minister for Immigration [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.
29. I have also considered whether the conduct of the applicant’s migration agent or agents might support an arguable case of error by the Tribunal. The material in the court book supports an inference that the applicant was supported before the Tribunal by a person or persons associated with the migration agent’s business of Ms Weiming Qian, who, as the applicant herself acknowledged, was assisting the applicant in relation to her court application.
30. The review application completed by the applicant appears at CB 102 to 105. The applicant acknowledged the signature at CB 105 as her own but she stated from the bar table that she was simply asked to sign the form without any understanding or explanation of its contents. The form [CB 103] nominates as the applicant’s adviser, Ms Jie Yu. The contact details given, although ostensibly those of Ms Yu, may in fact, be those of Ms Qian. For her part the applicant thought that her migration agent was someone else again, a Mr Li.
31. I dealt with similar circumstances in SZOZL v Minister for Immigration & Anor [2011] FMCA 273, in particular at [25] and [26]:
    • The court book discloses that the applicant engaged Ms Qian to assist her, both before the Minister’s Department and before the Tribunal. On 25 October 2010, I gave judgment in the case of SZOOI v Minister for Immigration & Anor [2010] FMCA 816. In that case, I was critical of the conduct of Ms Qian, who was the agent for the applicant in that case, and directed that the transcript of the hearing before me and my decision and reasons be referred to the OMARA. The court book discloses that three days later, on 28 October 2010, the first applicant appointed a new migration agent, Ms Yu (CB 102). This occurred, apparently, immediately before the Tribunal issued its first hearing invitation to the applicants (CB 100). The Response to the Hearing Invitation, apparently completed on 29 October, stated that the former agent, Ms Qian, would not attend the Tribunal hearing (CB 103). On the same day, the new agent, Ms Yu, signed the Appointment of Representative form (CB 102). Ms Yu did attend both hearings conducted by the Tribunal (CB 134 [44] and CB 144 [86].
    • Ms Yu is a registered migration agent and the OMARA website discloses that she is a sole trader with the business address of 14/261 King Georges Road in Roselands, 2196, and a postal address at the same address. Curiously, in the Appointment of Representative form signed by the first applicant and Ms Yu, Ms Jie Yu provided a postal address at PO Box 1519 Auburn, 1835. That is very close to the postal address used by Ms Qian. Even more curiously, Ms Yu, in the same form, identified the same phone and fax numbers as used by Ms Qian. This raises a concern that, in response to my judgment in SZOOI, Ms Qian elected to give the appearance of withdrawing from the record in this case while still being involved behind the scenes. In light of that concern, I will direct that a copy of this judgment be provided to the OMARA for such action as it considers appropriate.
32. I delivered that judgment on 20 April 2011. It is noteworthy that very shortly before that judgment was delivered Ms Yu withdrew as the applicant’s authorised representative and recipient in this case. This also immediately followed the applicant’s acceptance of the hearing invitation issued to her in which Ms Yu stated that she would not attend the hearing [see CB 124]. The Tribunal wrote to Ms Yu on 19 April 2011 to confirm her withdrawal as authorised recipient [see CB 125 to 131]. Included in those documents was a change of contact details form. That form was completed and apparently returned to the Tribunal by facsimile on the same day [CB 132-133]. The applicant denies any knowledge of that document and disputes that the signature on page 133 is hers. An alarming feature of this document is that although it purports to be a document completed by the applicant and giving new contact details for her, the contact details given are the same as those previously given for the agent Ms Yu, which, as I have earlier indicated may, in fact, be contact details for Ms Qian. If that is the fact, then there appears to have been a conscious attempt to mislead the Tribunal as to the circumstances of this applicant. That merits investigation by the Office of the Migration Agents Registration Authority.
33. However, it does not appear to me that if there was any fraud it disabled the Tribunal’s review function. The applicant had already accepted the Tribunal’s hearing invitation and attended the hearing to which she was invited. She attended alone, although she told me that she was guided to the Tribunal’s premises by an agent. Following the hearing the Tribunal made its decision which completed the review process.
34. It does not appear to me that the hearing or the decision of the Tribunal was impacted by the conduct of those apparently assisting the applicant in any detrimental way. I find that there is no arguable case that the Tribunal’s review function was disabled by any fraud by the person or persons representing themselves as agents or otherwise assisting the applicant in relation to the review.
35. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
36. In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister has incurred solicitor and own client costs of $6,450. The Minister seeks an order for costs in accordance with the Court scale of $3,123. The applicant claimed impecuniosity but, as has been repeatedly stated, that 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-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 17 August 2011