SZONV v Minister for Immigration and Citizenship [2011] FCA 66 (9 February 2011)

Last Updated: 10 February 2011

FEDERAL COURT OF AUSTRALIA

SZONV v Minister for Immigration and Citizenship [2011] FCA 66

Citation:		SZONV v Minister for Immigration and Citizenship [2011] FCA 66
Appeal from:		Application for leave to appeal: SZONV v Minister for Immigration & Anor [2010] FMCA 811
Parties:		SZONV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1552 of 2010
Judge:		COLLIER J
Date of judgment:		9 February 2011
Date of hearing:	8 February 2011
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	29
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Solicitor for the First Applicant:	Mr R Baird of Clayton Utz
Solicitor for the Second Applicant:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1552 of 2010

BETWEEN:	SZONV Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	9 FEBRUARY 2011
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1552 of 2010

BETWEEN:	SZONV Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COLLIER J
DATE:	9 FEBRUARY 2011
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against a judgment of Driver FM delivered on 22 October 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 28 June 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the applicant. His Honour had dismissed the applicant’s application for review of the Tribunal’s decision pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) finding that the applicant had not raised an arguable case for the relief claimed. Rule 44.12(2) provides that, to avoid doubt, a dismissal under r 44.12(1)(a) is interlocutory. Appeals from interlocutory decisions of the Federal Magistrates Court require leave of the Court (s 24(1A) Federal Court Act 1976 (Cth)).

BACKGROUND

2. In her protection visa application, the applicant claimed that in 2002 she and her partners set up a Spa assembly hall, which provided hair and body beauty services, as well as health massages. She claimed that on 4 October 2008, the deputy director of tax, Mr Li, came with his friends and asked for a prostitute for him and each of his friends. When she advised that they did not offer those services, he became angry and started assaulting her while his friends stood by and watched. She claimed that when the staff saw and came to stop Mr Li, he left, and said “this is not over”.
3. She claimed that following this incident, the business was frequently interrupted by government departments. In particular, she stated that their accounts were audited by the tax office, and the police often patrolled to ensure sexual services were not being offered. She claimed they contacted the police but to no avail and that as a result she lost a lot of business.
4. She stated that on 10 November 2008 a customer claimed a massage therapist hurt her, obtained a medical certificate, and made a complaint to the Industrial and Commercial Bureau, who came to the shop and required them to suspend the business. The applicant claimed that she subsequently found out from the doctor who wrote the medical certificate that he was forced by Mr Li and the hospital director to manipulate the medical records. The applicant claimed that through a private investigator, she discovered that the complainant was Mr Li’s mistress.
5. The applicant claimed she then complained to the Industrial and Commercial Bureau in writing and requested an investigation of Mr Li and his conduct, and that the administrative decision to shut down her shop be cancelled. She also claimed that after she received no response from the Bureau, she began court proceedings in January 2009, and that the case was opened on 16 March 2009. She said that the doctor agreed to give evidence in court but was absent when he was called by the Court. As a result, her case was dismissed. On 10 May 2009 she was arrested and was detained and tortured for 15 days.

REFUGEE REVIEW TRIBUNAL

6. The applicant appeared before the Tribunal on 22 June 2010 to give evidence and present arguments. After discussing the claims made by the applicant and the evidence before it, the Tribunal found it was not satisfied that the applicant was a person to whom Australia owed protection obligations.
7. The Tribunal found the applicant was not a credible witness, as she appeared to have memorised her written statement and repeatedly referred to it whenever she had difficulty answering questions at the hearing. The Tribunal also based this credibility finding on the inconsistencies in the applicant’s evidence, and on the fact that she raised some significant claims for the first time at the Tribunal hearing. The Tribunal also noted its concern about the lack of supporting documentation provided by the applicant, and did not accept her explanation that she did not know that she had to provide those documents.
8. However, the Tribunal did consider the PSB certificate, as well as the statements from the applicant’s colleagues and staff provided by the applicant but placed no weight on them. Having found the applicant was not credible, and having regard to country information the Tribunal found the documents were not genuine.
9. Based on the above, the Tribunal rejected the entirety of the applicant’s claims, and concluded that she not satisfy the criterion for a protection visa, and affirmed the decision of the delegate.

FEDERAL MAGISTRATES COURT

10. On 27 July 2010 the applicant filed an application for judicial review of the Tribunal’s decision. In that application the applicant wrote (without alteration):
    1. I am a law-abiding businesswoman, but my business was disturbed and ruined by the gervernment officials. On the night of 4 October 2008, the deputy director of the local tax officer, Li came to my shop with two friends asking me to get a prostitute for each of them. I explained to him that we didn’y have sexual service. Li suddenly got agried and said if I couldm’t find gils, I should provide sexual service with them and began to touch my body. I didn’t endure such insult and Li became annoyed and beat me. While Li and his friends were leaving, Li threatened : “ This is not over.” From then, he often created disturbances which forced me to close my shop. I was persecuted by the government officials. I could not survive in China and fled to Australia. The Chinese agent told me I must fill in the application form with being maried, otherwise the Australian consulate will not grant my visa. all the abovementioned claims and eivdencd are true ,but the DIAC and RRT officials all didn’t believe them. The Tribunal had bias against me and failed to consider my application to S91R of the Migration Act 1958.
       
11. The Federal Magistrate held that the above claims were defective in the sense that they are primarily a summary of her protection visa claims. However, in respect of the allegation of bias, the Federal Magistrate noted that there was nothing to support that allegation, as it was clear all her claims were considered.
12. At the hearing before the Federal Magistrate, the applicant claimed that the Tribunal erroneously found that the doctor attended her hearing in China when it stated at [72(e)] (AB151):

The Tribunal considers the applicant’s description of her dealings with Dr Liu to be implausible. She claims that Dr Liu had not only falsified the medical report at the request of the head of the hospital, but also admitted doing so to the applicant, whom he had met before. Despite admitting falsifying documents, Dr Liu asked the applicant not to ‘sell him out’, yet he also agreed to give evidence in court stating that he had falsified a medical certificate. The Tribunal does not accept this as a truthful description of events. (Emphasis added)

13. In this regard, the Federal Magistrate held that this was clearly a typographical error and that the word “not” was missing between the words “had” and “met” in the sentence highlighted above. As the applicant admitted at the hearing that the Tribunal’s summary of her evidence in this regard as a fair summary, the Federal Magistrate held that this ground had no substance and was dismissed.
14. The applicant also asserted that the Tribunal erred in finding that she did not refer, in her written statement, to having visited the Industrial and Commercial Bureau. In particular, the Tribunal stated at [72(g)] (AB 152):

The applicant was confused about her dealings with the Industrial and Commercial Bureau. She stated in oral evidence that she wrote two letters and visited the Chief at the bureau. She did not refer to the visit to the Bureau in her written statement, claiming that she did not believe it was important, that she had ‘neglected’ it and that it was natural to appeal. If that is the reason for her failure to mention the personal complaints, it is unclear why she referred to the written complaints, which would have been equally natural...

15. In support of her claim, the applicant handed up the Chinese version of her statement that she gave her migration agent. The Federal Magistrate held that to the extent that there was any inconsistency between the document and the information before the Tribunal, the Tribunal would have had no actual or constructive knowledge of that inconsistency. Furthermore, the Federal Magistrate noted that the applicant had the opportunity to correct any errors in the English language document in responding to the invitation to comment and at the hearing before the Tribunal. The Federal Magistrate did not consider there to be any likelihood of errors in translation of her protection visa claims that would have lead to a disabling of the Tribunal’s review process.
16. The Federal Magistrate also had regard to the Tribunal’s decision record, which noted that it asked the applicant why she did not mention her visit to the Bureau in her written statement, to which she responded that she probably left it out but she did go there. In response to the applicant’s claim that she did tell the Tribunal that she did include in her written claims that she visited the Bureau, the Federal Magistrate noted that she did not provide a copy of the transcript, despite being given the opportunity to do so. Therefore the Federal Magistrate gave no credence to that assertion.
17. The applicant also claimed that the Tribunal erred by finding that she did not move out of her home for one and a half months after her release from detention in China. In this regard, the Federal Magistrate held the Tribunal did not make any finding about when the applicant moved out of her home, but rather, found that her evidence in this respect was confused and inconsistent.
18. In respect of the applicant’s claim that she was not served well by her migration agent, the Federal Magistrate stated that there was no assertion of any fraud by the migration agent and poor quality service by the migration agent will not support an assertion of jurisdictional error by the Tribunal.
19. His Honour concluded that there is no arguable case of jurisdictional error by the Tribunal, and accordingly, ordered that the application be dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules.

APPLICATION TO THIS COURT

20. The application for leave to appeal to this Court was filed on 11 November 2010. In a draft notice of appeal attached to an affidavit filed on the same date, the applicant raises the following grounds (without alteration):

1. RRT’s decision is inaccurate

2. My case should be re-examined by RRT.

21. In her affidavit, the applicant said:

1. RRT’s decision has not accurately and correctly reflect my situation and should be re-examined. The statement I have made above the court was misinterpreted, and have not reflect the truth and actual circumstances. Therefore there exist a lack of procedural fairness to my case.

2. I am indeed harmed by the Chinese government, and rejecting my case would land me in a very difficult situation. (without alteration)

CONSIDERATION

22. At the hearing the applicant was self-represented. The Minister was represented by Mr Baird of Clayton Utz.
23. No written submissions were filed by the applicant. In Court the applicant submitted, in summary, as follows:
    • she would be persecuted if she returned to China;
    • she would like the Court to reconsider the Tribunal’s decision.
24. I explained to the applicant that, in an application for leave to appeal against an interlocutory decision, principles relevant for consideration by the Court are:
    • whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered; and
    • whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

(Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398)

25. In this case the grounds of the application are vague and do not of themselves support either a case for reconsideration of the decision of the Federal Magistrate or a finding that substantial injustice would result if leave were refused.
26. Notwithstanding the absence of meaningful grounds for review of the first instance decision, I have examined both the decision of the Tribunal and the reasons of the Federal Magistrate in this matter.
27. From the decision of the Tribunal, it is clear that the Tribunal gave detailed consideration to the claims of the applicant and the evidence before it. To the extent that the Tribunal found that the applicant was not a person of truth and credibility, that the Tribunal gave no weight to documents produced, and that the Tribunal formed the view that the applicant had been untruthful in her evidence and that her claims had been fabricated for the purpose of her protection visa application, these were findings open to the Tribunal on the evidence before it.
28. Further, it is clear from his Honour’s judgment that the Federal Magistrate considered the reasons of the Tribunal and, to the extent that he was able on the material before him, the case of the applicant for review of the Tribunal’s decision. In my view there is no basis for any finding that his Honour’s decision is attended by sufficient doubt to warrant it being reconsidered.
29. In my view the appropriate order is that the application be dismissed with costs.
    

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 9 February 2011