SZQEE v Minister for Immigration & Anor [2011] FMCA 739 (8 September 2011)

Last Updated: 26 September 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQEE v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 739

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.422B, 424A, 425, 430

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZJRV v Minister for Immigration & Anor [2007] FMCA 1880

Applicant:

SZQEE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 803 of 2011

Judgment of:

Barnes FM

Hearing date:

8 September 2011

Delivered at:

Sydney

Delivered on:

8 September 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Minter Ellison

ORDERS

(1) The application is dismissed.
(2) The applicant pay the costs of the first respondent fixed in the sum of $4,500.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 803 of 2011

SZQEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 28 March 2011. The Tribunal affirmed a decision of the first respondent not to grant the applicant a protection visa.
2. The applicant, a citizen of the Peoples Republic of China, arrived in Australia on 4 May 2008 as the holder of a student guardian visa. That visa was to expire on 31 July 2010. On 30 July 2010 the applicant applied for a protection visa. In a statement attached to her protection visa application she claimed that she was fined for having a second child (apparently in 1994) and that her home (later referred to as her shop) in China was forcibly demolished by the local government in 2007 in order to rebuild a particular railway and that they did not get reasonable compensation. She claimed that she and her husband protested seeking “reasonable compensation”, that they were detained for 15 days and injured by the police (who accused the applicant and her husband of attacking them) and that they were both fined before they were released. She claimed that they sought further compensation from the provincial government and were threatened that if they appealed again they may be “caught and sent to detention”.
3. The applicant claimed that since then she had had a “mental problem”, “great pressure” and “couldn’t accept the unfair” treatment and that to protect her, her husband found an agent to arrange for her son to come to Australia to study and she came as his guardian. She claimed that in July 2009 her mother told her that her husband had been caught by the police again and that he had been charged and would be sentenced and was in detention and that she should not return to China.
4. The applicant attended an interview with a delegate of the first respondent at which she raised an additional claim regarding a forced abortion in 1992. The delegate noted that the applicant subsequently had two children. Her application was refused by the delegate and she sought review by the Tribunal.
5. The applicant was invited to and attended a Tribunal hearing on 15 February 2011. On 21 February 2011 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Act) putting certain information to her for comment. The information put to the applicant included information contained in her student guardian visa application. The Tribunal also gave her an opportunity to comment on inconsistencies in evidence that she had given to the delegate and to the Tribunal. The applicant responded to that information in a letter sent to the Tribunal on 16 March 2011.
6. In its reasons for decision the Tribunal set out the evidence before it including a summary of what occurred in the interview with the delegate and at the Tribunal hearing. The only evidence before the court of what occurred at the Tribunal hearing is the Tribunal reasons for decision. The Tribunal also set out in some detail its credibility concerns and the evidence of the applicant when inconsistencies and concerns were put to her at the hearing in relation to issues such as: her evidence about where she and her husband had lived; the date of demolition of their property; the arrest of her husband in 2009, the husband’s work; their address in the application for a student guardian visa as well as independent evidence about the location of a railway line that was contrary to the applicant’s claim that it passed through her village in China.
7. In its findings and reasons the Tribunal found that the applicant was not a witness of truth and that her account was not credible, having regard to a number of matters considered cumulatively. It found her evidence about where she and her husband lived after their home was demolished was “conflicting and confused” and that:
   • On the one hand, she claimed that the property was demolished in March 2007 and from that time they went to live with her parents in law. However at the same time she claimed that in fact it was not until she left China in May 2008 that her husband went to live with his parents”.

The Tribunal referred to the fact that the applicant “eventually claimed that her latter response was incorrect”, because she was “nervous and mistaken when she said it”. However the Tribunal found that the applicant’s confusion also extended to her evidence as to whether she lived with her parents-in-law before the property was demolished and that:

...this evidence had changed from the couple living with her parents in law after they were married, to not living with them, to living with them before the shop was purchased, to not living with them until after the shop was demolished to, finally, living with them before the shop was purchased.

8. The Tribunal found that the applicant also revealed confusion about the date the property was demolished. Her evidence had “alternated from the date being in March 2007 to being on 3 July that year”.
   She continued to give such inconsistent dates even after the Tribunal made it clear that there was a difference in her accounts. The Tribunal did not accept that the applicant would be mistaken about any of these matters if she was telling the truth. It found her “conflicting and changing evidence” to reflect “poorly on her credibility”.
9. It also had regard to the absence of any explanation for the applicant’s failure to mention in her initial evidence to the Tribunal (when asked what she had been told by her family since she came to Australia) the important information that her husband had been arrested in July 2009.
10. The Tribunal also had regard to the fact that the information in the application for a student guardian visa conveyed a “very different picture of the family’s position” from that put forward to the Tribunal. While allowing for the possibility that asylum seekers would resort to the use of false documents to obtain a visa, the Tribunal was of the view that there remained the fact that “in these documents, the applicant and her husband had represented to the Department as late as March 2008 that they were residing at the very address she claimed they were forced to leave in March 2007 when their property was demolished”.
11. The Tribunal addressed the applicant’s explanation that “she was honest, she was going through difficult times and that this was the work of someone trying to smuggle her out of China and about which she did not know anything”, but that “after the property was demolished she did not change her household registration and that was the reason for using that address in her visa application”.
12. The Tribunal disbelieved this explanation, finding that the impression conveyed by the student guardian visa application that the applicant was still at that address when her application was made reflected the fact that the property was never demolished. In reaching this conclusion the Tribunal considered the applicant’s conflicting and changing evidence about matters central to her refugee claim and what it described as the “blatant omission of the very serious matter of her husband being arrested for a second time”. It also had regard to the fact that while the applicant maintained that the railway line in question went through her village, information available to the Tribunal (as discussed with her) indicated that it did not follow that route.
13. As the Tribunal found that the applicant was not a witness of truth and that her account was not credible it did not believe that the Chinese authorities ever sought to demolish her premises for the construction of the particular railway. It did not find credible her claim that her property was demolished and disbelieved her account of her conflict with and detention by the authorities and her claims about their further interest in the couple, including her husband being arrested a second time and that the authorities had visited her family to find her since she left China.
14. The Tribunal rejected the applicant’s account of all these events, finding no credible evidence that she and her husband were of interest to the Chinese authorities.
15. The Tribunal accepted that the applicant came from a village in Fujian Province and was married with two children. It also accepted that she was forcibly sterilised in the past as she claimed, but noted that “she did not claim she would be persecuted on this or any similar basis if she returned to China”. It found that the applicant’s past experiences in that respect did “not afford any fear of persecution in the reasonably foreseeable future given, that, after she was forcibly sterilised, the authorities took no further interest in her (apart from their claimed interest in her on the basis of demolition of the property, an account the Tribunal did not believe”).
16. The Tribunal found no credible evidence that if the applicant returned to China there was a real chance she would suffer persecution based on any Convention ground considering her claims individually and cumulatively. The Tribunal had regard to the fact that in the statement accompanying the protection visa application the applicant referred to having a “mental problem” as a result of the claimed demolition of her home and subsequent events. However, the Tribunal disbelieved the applicant’s home was demolished and noted that the applicant had no difficulties giving her evidence at the hearing.
17. The Tribunal also addressed the applicant’s claim at the hearing to have scars from maltreatment she received when her property was demolished and she was detained. However, it reiterated that it did not believe the applicant’s property was demolished as claimed or that she was detained and found that there was no credible evidence as to how she sustained the scars that she said she had.
18. For the sake of completeness the Tribunal noted that apart from the information put forward in her student guardian visa application, it had raised other matters with the applicant in the s.424A letter but that it “did not rely on them in reaching its finding that the applicant was not credible” and that her comments in response to those matters “did not relate to the issues that had impugned her credibility”.
19. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations and affirmed the delegate’s decision.
20. The applicant sought review by application filed in this court on 27 April 2011. The application contains three grounds as follows:
    • 1. The Refugee Review Tribunal (RRT) failed to comply with the duties imposed by section 430(1)(d). The RRT did not consider my evidence in relations to my confusion of date and years due to my mental health.
    • 2. The RRT did not comply with the duties imposed by section 422B. The RRT denied me procedural fairness. The RRT did not consider my mental health and suffering I had as a result of the persecution from the Chinese authorities.
    • 3. The RRT did not consider my application and claim fairly. The RRT find that I am not a reliable witness because I did not provide relevant and significant evidence to the Department of Immigration and Citizenship, however did you this evidence at the Tribunal hearing. The RRT did not provide reasoning to this finding. Hence, it gives grounds to believe that the RRT did not weight my evidence and taking my evidence into consideration. Therefore, RRT has denied my procedural fairness.
21. The applicant did not file written submissions, but was given the opportunity today to make oral submissions about the grounds in her application.
22. In her oral submissions she sought impermissible merits review.
    She reiterated her fear of returning to China and asked the court to consider her mental health and give her protection.
23. When asked what “evidence” of her “mental health” she referred to in her grounds, the applicant confirmed that she had not given any documentary medical evidence to the Tribunal or to the Department.
24. There is some overlap between the grounds in the application. As the submissions for the Minister suggest, the three grounds can in fact be seen as raising five grounds, all of which I will consider.
25. The first ground is that the Tribunal failed to comply with the duties imposed by s.430(1)(d). This is clearly intended to be a reference to the Migration Act. It is also claimed that the Tribunal did not consider that the applicant’s evidence that her confusion about dates and years was due to her mental health.
26. Dealing first with the issue of the Tribunal’s compliance with s.430(1)(d) of the Act. Section 430(1) provides that where a Tribunal makes a decision it must prepare a written statement that refers to the evidence or any other material on which its findings of fact were based. Apart from the reference to whether the applicant’s evidence in relation to her confusion about dates and years was due to her mental health, the applicant has not particularised any way in which it is said that the Tribunal failed to comply with s.430(1) of the Act.
27. In any event, as the Minister submitted, to the extent alleged by the applicant, breach of the obligations imposed by s.430(1) of the Migration Act does not constitute jurisdictional error (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J).
28. For the sake of completeness I note in any event that there is nothing in the material before the court to establish any failure on the part of the Tribunal to comply with s.430(1) of the Act.
29. Insofar as the applicant appears to base this contention on a claim that the Tribunal did not consider that her confusion about dates and years was due to her mental health, the only evidence before the Tribunal or the court in relation to the applicant’s mental health consists of her initial claim in the statement accompanying her protection visa application in which she asserted that she had a “mental problem”. There is no suggestion of any other evidence or claim being made to the delegate or of any written evidence being provided to the Tribunal in that respect. Nor is there evidence of any general claim being made at the Tribunal hearing of that nature, other than the fact that the applicant referred to being “nervous and mistaken” in relation to the issue of conflicting evidence that the Tribunal put to her.
    She subsequently claimed to be an honest person and that was going through “difficult times”. The applicant also claimed in response to the s.424A letter sent to her by the Tribunal that she mentally suffered after she was detained.
30. However it is apparent from the Tribunal reasons for decision that the Tribunal specifically considered the applicant’s claim to have a “mental problem” as a result of the claimed demolition of her home and the events that were said to have flowed from that event. However the Tribunal did not believe that the applicant’s home was demolished. Moreover it noted that she had “no difficulties giving her evidence at the hearing”.
31. The Tribunal specifically had regard to the applicant’s explanations in relation to various aspects of her evidence which it relied on in making the adverse credibility finding. It has not been established that the Tribunal failed to refer to the evidence or material on which the findings of fact that it made were based or that it failed to consider the applicant’s explanation for her confusion. Insofar as the applicant takes issue with the fact that the Tribunal did not accept her explanation this seeks merit review.
32. The solicitor for the first respondent suggested that it was possible that part of ground three of the application also sought to raise an analogous claim insofar as it was alleged that the Tribunal did not “provide reasoning” for its finding that the applicant was not a reliable witness because she “did not provide relevant and significant evidence to the Department”. She claimed that she gave such evidence at the Tribunal hearing.
33. However, as set out above, the Tribunal gave detailed reasons for its findings in relation to conflicts in the applicant’s evidence and also provided reasons for its reliance in part on the applicant’s initial failure to provide particular evidence of apparent relevance in assessing her credibility. In particular, the Tribunal specifically addressed the applicant’s failure to explain her initial failure to mention to the Tribunal the claim about her husband being arrested in July 2009.
    Her late adoption of that incident only after prompting by the Tribunal was found to be “most unconvincing”.
34. Whether seen in terms of s.430 or as an intended claim that the Tribunal failed to consider integers of the applicant’s claim, no such claim is made out on the material before the court. Insofar as the applicant’s reference to her mental health may be seen as raising an assertion that the Tribunal failed to consider the impact on her evidence of the state of her mental health and in particular her competency to give evidence at the hearing, that claim is not made out.
35. The Tribunal has an obligation to ensure that a hearing invitation is a meaningful invitation and to satisfy itself that an applicant can understand the nature of the proceedings and is in a position to give instructions and evidence (as considered in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32). However there is nothing in the material before the court to suggest or establish that the Tribunal failed to comply with s.425 of the Act or in any way deny the applicant procedural fairness in the manner in which the hearing was conducted.
36. The only evidence of what occurred in the hearing is the Tribunal reasons for decision. The Tribunal considered the applicant’s claim about having a “mental problem”. There is no evidence in support of any such claim before the court other than the statements the applicant made from the bar table. Nor was written evidence in that respect provided to the Tribunal such as to raise any concern in this respect. It has not been established that the applicant was under a mental disadvantage at the hearing such that she was denied an effective opportunity to give evidence and present arguments in a meaningful manner. No jurisdictional error is established on this basis.
37. Ground two, which to some extent might also be seen as raising this issue, is that the Tribunal did not comply with the duties imposed by s.422B of the Act. It is also contended that the Tribunal denied the applicant procedural fairness and that it did not consider her “mental health and the suffering” she had undergone as a result of the persecution she received from the Chinese authorities.
38. Section 422B of the Act relevantly provides that the Division in which the section appears (Division 4 of Part 7 of the Act) is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. It also states that in applying the Division the “Tribunal must act in a way that is fair and just”.
39. There is nothing in the material before the court to suggest that the Tribunal failed to comply with any of the procedural obligations required of it under Division 4 of Part 7 of the Act. As indicated, the Tribunal invited the applicant to attend a hearing, which she did.
    She had the assistance of an interpreter in the requested language and gave evidence. It is apparent from the Tribunal account of the hearing that the Tribunal raised with the applicant dispositive issues and matters of concern to it including, in particular, the inconsistencies in her evidence and also the information in her subclass 580 visa application form. It explained to her the relevance of its concerns in that respect.
40. In addition, after the hearing the Tribunal wrote to the applicant under s.424A of the Act, putting various matters to her for comment. As set out above, the Tribunal addressed her response in its reasons for decision insofar as the matters raised in that respect were relied upon in the decision (in particular the information put forward in her subclass 580 visa application). Insofar as the Tribunal relied on inconsistencies in the applicant’s own evidence to it or with her written evidence to the delegate, such matters would be within the exception to s.424A of the Act in s.424A(3).
41. It has not been established that the Tribunal failed to comply with s.424A of the Act. The Tribunal was not required to put its provisional reasoning to the applicant for comment, including the possibility of potential adverse findings in that respect as considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18].
42. It has not been established that the Tribunal denied the applicant procedural fairness in a manner constituting jurisdictional error.
    In relation to the claim that the Tribunal did not consider the applicant’s mental health and suffering as a result of persecution by the Chinese authorities, as set out above the Tribunal considered all the applicant’s claims, but did not accept that she had suffered the past events that she claimed had occurred to her in relation to demolition of her home and the events that flowed thereafter. It gave reasons for its findings in that respect. Its credibility finding were open to it for the reasons which it gave on the material before it. Findings of fact, including findings of credibility, are a matter for the Tribunal (see Durairajasingham at 423). The Tribunal’s reasoning is not such as to establish a jurisdictional error in the manner contended for by the applicant. Ground two is not made out.
43. Ground three is that the Tribunal did not consider the application and claim fairly. The Tribunal was said to have found that the applicant was not a reliable witness because she did not provide relevant and significant evidence to the Department but gave it to the Tribunal and that the Tribunal did not provide reasoning for this finding. This was said to indicate that the Tribunal did not consider or give due weight to her evidence and denied her procedural fairness.
44. As set out above, the Tribunal did not simply make its credibility finding on the basis of the failure of the applicant to raise certain matters with the delegate, but rather its finding was based on a number of reasons including inconsistencies in her claim and other issues as discussed above. The Tribunal provided reasoning in respect of its adverse credibility finding.
45. The weight to be given to particular items of evidence is a matter for the Tribunal (see Durairajasingham and also Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6). It was entitled on the material before it for the reasons which it gave to find that the applicant’s evidence was so lacking in credibility that it accorded it no weight (see SZJRV v Minister for Immigration & Anor [2007] FMCA 1880 and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30).
46. The Tribunal also considered the applicant’s claims in relation to her past forced sterilisation. It found that she did not have a well-founded fear of persecution in the future on that or on any other basis.
47. It has not been established that the Tribunal fell into jurisdictional error in the manner in which it assessed the weight to be given to the applicant’s evidence or in any other manner as contended for in ground three.
48. As indicated earlier, the applicant’s oral claims sought merits review. Merits review is not available in this court. As no jurisdictional error has been established the application must be dismissed.
49. The applicant has been unsuccessful in these proceedings. There is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The applicant told the court that the amount sought, $4,500, was a lot of money and that she did not have that much. However the applicant’s lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, albeit it may be a matter that the Minister takes into account in determining when and how to seek to recover such costs.
50. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 26 September 2011