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SZOOQ v Minister for Immigration & Anor [2011] FMCA 82 (14 February 2011)

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SZOOQ v Minister for Immigration & Anor [2011] FMCA 82 (14 February 2011)

Last Updated: 22 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOQ v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – RRT decision – Chinese applicant claiming persecution as a Shouter – disbelieved by Tribunal – no jurisdictional error – application dismissed.


Minister for Immigration & Citizenship v SZGUR [2011] HCA 1
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39
Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant:
SZOOQ

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 1774 of 2010

Judgment of:
Smith FM

Hearing date:
14 February 2011

Delivered at:
Sydney

Delivered on:
14 February 2011

REPRESENTATION

Counsel for the Applicant:
Applicant in person

Counsel for the First Respondent:
Mr J King

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,800.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1774 of 2010

SZOOQ

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

(revised from transcript)

  1. The applicant lodged an application for a protection visa on 9 February 2010 assisted by a migration agent, Mr Harry Huang of Pricilla International Co Pty Ltd. In the visa application she claimed to be a person who had arrived in Australia in December 2009 on a false Hong Kong passport. She enclosed documents purporting to establish the identity which she claimed in the visa application, and set out a history upon which she claimed to fear persecution if she returned to her claimed country of nationality, the People’s Republic of China.
  2. She claimed to have been introduced to the Christian sect known as “the Local Church” and “the Shouters” by an English language teacher in 2006, and to have assisted him in conducting gatherings of the Local Church. She attended secret gatherings regularly after being baptised in 2007. With two other “church sisters”, she recruited other students and “eventually, we had 52 members in total”.
  3. In October 2009, after she and the language teacher had finished a secret gathering and she was travelling home on the back of his motorcycle, they were stopped by a police car. The police found Shouter literature in the teacher’s bags, and they were both immediately arrested. The applicant was interrogated, mistreated, and tortured, but she was released on bail for medical treatment about six weeks later, after denying any involvement in the Shouters. She said:
  4. She claimed that, after arriving in Australia, she discovered that the two other church sisters had been arrested, as had other church sisters, and that her father was questioned by the police in the middle of January 2010. Her father was warned by the police to confess everything in relation to her illegal activities. The applicant said that she had “continually attended the Local Church in Australia”, and that believed she must be subject to persecution on return.
  5. The applicant attended an interview by the delegate on 28 April 2010. The delegate questioned her about two student visa applications which had been made in China by the person whose identity she claimed, the second application being refused on 10 November 2009. It was put to her that both student visa applications had been refused because false documentation had been submitted, but the applicant denied that false information had been submitted.
  6. The delegate also put to the applicant that the counterfeit Hong Kong passport, on which the applicant claimed to have travelled to Australia, contained a false entry stamp in relation to her claimed arrival at Sydney airport. The applicant however maintained that she had entered Australia using that passport on the date stamped.
  7. The delegate also questioned the applicant about her involvement in the Local Church.
  8. The delegate made a decision on 10 May 2010, refusing her visa. The delegate found that the applicant “was prepared to fabricate and use false information in relation to her departure from China and her entry into Australia”. The delegate was not satisfied that the applicant had travelled to Australia from Hong Kong.
  9. The delegate found the applicant’s responses about the Local Church gatherings she had attended in China to have been inconsistent with country information, and did not accept that she was a member of the Local Church in China, nor that she had been detained by the People’s Republic of China authorities as a result. The delegate thought that her claims to have attended a Local Church in Sussex Street in Sydney on a monthly basis had been done for the sole purpose of strengthening her claims for protection.
  10. The applicant appealed, assisted by her migration agent.
  11. The Tribunal sent an invitation to the applicant to comment in writing upon the information which had been put to her by the delegate, concerning the lodging of two student visa applications in China in 2009 supported by “non-genuine” documents. It also put to her that the passport and entry stamp which she had presented with her protection visa application were not genuine, and suggested that these facts might lead the Tribunal to find that she was not a person of credibility.
  12. The applicant responded, denying all knowledge of the “non-genuine” documents presented in China. She said: “I have really had no ideas about them”, and suggested that she had left those applications to an agent. She also gave an account of passing through Sydney airport with the assistance of a ‘snake-head’ guide, and without any knowledge whether in fact the Hong Kong passport had been used on that occasion. She said she was “really unable to explain why the entry stamp on the Hong Kong passport was not genuine one”.
  13. The applicant attended a hearing held by the Tribunal on 13 July 2010. The hearing seems to have lasted for about three hours. A transcript has not been tendered by either party, and I rely upon a lengthy description given by the Tribunal in its statement of reasons.
  14. According to the Tribunal, it questioned her about the making of the student visa applications in China; about how she had obtained her false passport and travelled from Hong Kong; about how she had become involved in the Local Church in China and suffered the attention of the authorities; and about other matters including, in my opinion, all the matters upon which the Tribunal ultimately decided the case.
  15. The Tribunal made a decision on 16 July 2010, affirming the delegate’s decision. After setting out all the evidence before it, including the evidence taken at the hearing, the Tribunal referred to sources of information concerning the beliefs and practices of members of the Local Church.
  16. The Tribunal then set out a number of concerns under the heading “Findings and Reasons”, which caused it to find that the applicant was not a credible witness and to disbelieve her entire claims concerning events in China, including whether she had had any involvement in the Local Church in China.
  17. The Tribunal did not directly rely upon the applicant’s presentation of false documentation in China supporting two student visa applications, nor the false entry documentation presented in relation to the protection visa application. Nor did it base its conclusions upon an adverse view of the extent of the applicant’s knowledge about the Local Church when questioned by the delegate and itself.
  18. Rather, the Tribunal identified a long list of elements in the applicant’s responses in the course of the hearing, which led it to conclude that she was a person who had memorised a history of refugee claims, and then become evasive or vague or inconsistent when questioned about non-memorised details.
  19. The Tribunal illustrated its concerns about the applicant as a witness by discussing her responses about the making of her student visa applications. The Tribunal thought that her evidence about when she had knowledge of these applications being refused had changed under questioning. It did not believe that she would have prepared documents, signed applications, attended medical examinations, and engaged another person to assist her, and yet have no knowledge as to those applications or their timing, and have made no inquiries about the outcome, as she had claimed.
  20. The Tribunal concluded:
  21. The Tribunal then explained its concern about the applicant’s precise recollection of dates given in her visa statement, but not other events. It found inconsistencies in her evidence about what she was told by her father about raids on the home, and whether her parents themselves belonged to the Local Church. The Tribunal thought that her evidence about her involvement with organising gatherings at the Local Church were “vague and evasive”, and that her evidence about her release from detention was “unsatisfactory” for reasons it explained.
  22. The Tribunal considered the applicant’s explanations for delay in lodging the protection visa application after arriving in Australia, and thought that she had been untruthful in her responses. The Tribunal said that it had formed the view that she was “a person who completely lacks credibility and that she has not been truthful in her evidence”. It rejected globally and in detail all her claims to have had involvement with the Local Church in China, and the events that she claims to have happened there.
  23. The Tribunal said that it acknowledged that she displayed “strong knowledge about the precepts of the local church and Christianity in general, which is in contrast with her vague and evasive answers with respect to the events and arrangements in China”. It accepted evidence that she had attended a Local Church in Australia. It said it formed the view that her knowledge had been obtained from those activities, and not from activities in China. It was not satisfied that she had engaged in religious activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee, and disregarded such activities pursuant to s.91R(3) of the Migration Act 1958 (Cth).
  24. The Tribunal found that the applicant would not engage in religious activity if she returned to China, and there was no real chance that she would be persecuted for reasons of religion. It therefore concluded that she was a person to whom Australia did not have protection obligations under the Refugees Convention.
  25. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make those orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
  26. The applicant’s application contains five grounds which have been developed in a written submission. The grounds are:
  27. The argument in support of Ground 1 suggests that it would not have been possible for her to have displayed the knowledge of the Local Church accepted by the Tribunal, “if I just attended the Local Church for a half year in Australia”. She also argued that the Tribunal could have “easily obtain the evidence from the Elders who have named and whose phone numbers have listed in the reference” from the Local Church.
  28. In relation to the first contention, in my opinion it does not rise higher than arguing with the merits of the Tribunal’s assessment of the applicant’s displayed knowledge of the Local Church. There is not in the applicant’s argument nor otherwise, evidence of any illogicality or unreasonableness of decision-making which would amount to jurisdictional error under principles which have been recently examined in the High Court in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, and in the Federal Court in Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 and Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159.
  29. In my opinion, the reasoning of the Tribunal was open to it on the evidence which it examined, in particular the applicant’s presentation as a witness at the hearing. Its reasoning was logical and reasonably based on that evidence. Other Tribunal members may or may not have arrived at different assessments of credibility, but in my opinion no jurisdictional error flawed the Tribunal’s conclusion in that respect.
  30. The Tribunal was under no obligations to conduct further investigations of its own in relation to the applicant’s connections with the Local Church, whether by inquiry with local elders or otherwise (see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [1], and Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [1], [20], and [86]).
  31. Turning to Ground 2, which alleges a reasonable apprehension of bias, the applicant points to nothing that happened in the course of the procedures of the Tribunal, and at the hearing in particular. The applicant’s written argument essentially relies upon the following argument:
  32. The difficulty with this argument in support of a ground of bias is that the Tribunal’s ultimate reasoning generally provides no basis before drawing conclusions of bias (see Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [18]).
  33. Moreover, the present Tribunal’s reasoning concerning the applicant’s evidence about the making of her student visa application and her knowledge of that process was not, in my opinion, “illogical, unreasonable and completely incorrect”. In my opinion, that part of the Tribunal’s reasoning was open to it as a matter of law, and displayed no jurisdictional error.
  34. Ground 3 alleges a failure of obligations under s.424A(1). However, essentially, in my opinion, the Tribunal’s decision is not based upon any information giving rise to obligations under that section, since it is based upon an assessment of the applicant’s presentation as a witness when questioned about relevant matters, including her student visa applications.
  35. It might be arguable that in the paragraph I have extracted above, the fact that false documents were submitted with the student visa applications partly informed the Tribunal’s adverse conclusion, although I am doubtful about this. In any event, in my opinion the requirements of s.424A in relation to that information had been satisfied by the correspondence between the Tribunal and the applicant’s agent preceding the hearing.
  36. The applicant’s written submission is wrongly premised upon an argument that the Tribunal was required to “clearly and fairly, give me particulars of the exact or accurate information which the Tribunal has considered as a reason or part of the reason in her decision”. In effect, it argues that the Tribunal is obliged to give advance warning of all the details of its thought processes when deciding the case. However, authorities on s.424A clearly show otherwise (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26).
  37. I am unable to identify any breach of obligations under s.424A(1) whether in relation to a written invitation under that section or oral procedures under s.424AA.
  38. The applicant’s argument in relation to Ground 4, concerning s.425, suggests that the Tribunal “refused to make me clear what the issues were in relation to my application”. There is an assertion, without any evidence, that the applicant “thought that I had well been understood by the Tribunal; and there were no issues (negative) arising from her against my claims”.
  39. I do not accept that submission. It must have been abundantly clear to the applicant from the Tribunal’s questioning that it had concerns about many aspects of her responses to it, and that she might be disbelieved in relation to her claims in their entirety. Such must have been apparent from the delegate’s decision, and also from the pre-hearing correspondence. I am unable to identify any issue in the proceedings which was not ‘extant’ or ‘apparent’ and was therefore required to be better put to the applicant by the Tribunal (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, also Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489 at [51], and Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [9]). I am unable to detect any procedural unfairness by the Tribunal, whether in the course of the hearing or otherwise, which might give rise to a perceived failure to follow implied obligations under s.425 of the Migration Act.
  40. The applicant’s written submission treats Ground 5 as a conclusion based upon success in one or more of the preceding grounds, rather than an independent ground of review. In its terms, it does not present jurisdictional error but rather the applicant’s belief or concern as to the outcome of the matter. Contrary to her asserted belief, in my opinion her application was “fairly and carefully assessed by the Tribunal”.
  41. At the hearing today, the applicant addressed me in relation to the student visa issues, which I have considered above. She also claimed that the Tribunal had not asked her “anything” about her experiences in China. However, manifestly that was not the case, on the Tribunal’s description of the hearing.
  42. The applicant did not present any further supporting arguments in relation to her grounds of review.
  43. For the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Smith FM


Associate:


Date: 18 February 2011

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