SZOFG v Minister for Immigration and Citizenship[2010] FCA 1334

The tribunal's decision 6 The Refugee Review Tribunal affirmed that decision on 3 February 2010. At the tribunal hearing, the applicant raised for the first time, a claim that her father-in-law was also a member of the Local Church and lived at the house that had belonged to him, and that he had been arrested in 2005 at a Local Church gathering. She claimed that he had been detained for 15 days and died while in detention. She had claimed at the tribunal hearing that, because of her father-in-law's death, in March 2005 her husband, then, went to the police station to argue with them and he was bashed. She told the tribunal that she had not been asked about this matter in the interview with the delegate, and had not mentioned it at that time because she thought the interview was only about her personal experience. 7 The tribunal made an adverse finding about the applicant's very recent elaboration of those claims. In substance, the tribunal concluded that the applicant had fabricated her claims about her past experiences in China recounted above, and found those claims to be implausible. The tribunal noted that the applicant had added "… enormously to her claims over time" and that she had not been able to give a coherent and consistent account of her claimed attendance at a Local Church in Australia. The tribunal also noted that the applicant could point to nothing that had occurred between April and July 2009 which would support her assertion that during that period she had been considering returning to China, despite having been warned not to do so in mid April 2009. The tribunal found she could offer no plausible reason for failing to seek protection closer to that time, were her claims true. It concluded that her claims about the recent events were so implausible as to be unbelievable. 8 The tribunal noted that, on her account, the applicant's husband was the registered owner of the house in which production equipment and literature of the supposedly classified evil cult of the Local Church were found. It noted that she had subsequently claimed that her husband's father had died in police custody when resident at the same house. The tribunal commented on the incongruity that the applicant claimed that her husband had apparently convinced the police that despite her not having been in China for several years before the raid took place, she was the leader of the group that was found there. 9 During the course of the tribunal hearing, the tribunal set out at length information which appeared to have been given by the applicant to the delegate during her interview, and also other information that had arisen during the hearing before the tribunal, which the tribunal suggested might be a reason why the tribunal might reject her claims pursuant to s 424AA of the Act. The tribunal noted concerns it had raised with the applicant about particular issues and asked her to comment on that information because it would be a reason for affirming the decision under review. It gave her the opportunity to provide further material after the hearing, in particular as to her activity in attending the Local Church in Australia. However, the applicant did not provide the tribunal with any such material, despite it acceding to her request to be given the additional time to do so. 10 The tribunal also found that it was not satisfied that the applicant had attended the Local Church in Australia, for any reason other than to strengthen her claim to be a refugee, and therefore it disregarded that conduct, pursuant to s 91R(3) of the Migration Act 1958 (Cth). 11 The tribunal concluded that it did not believe her claims about any interest held in her by authorities in China or her past experiences there. It did not believe that the applicant had a well-founded fear of being persecuted for any Convention reason, should she return to China. The tribunal observed that while her written statement had made reference to claims of past mistreatment arising under the one child policy, she had not expressed any fears in respect of her having two children, were she to return to China now or in the reasonably foreseeable future. The tribunal was not satisfied that Australia owed the applicant protection obligations and affirmed the delegate's decision not to grant her a protection visa.

The proceedings before the Federal Magistrates Court 12 The application for review before the Federal Magistrates Court contained three grounds, namely that the tribunal: did not believe that her evidence was true. She alleged this was not fair; had used against her, in considering her application, other cases in which applicants for review had failed and also it had not believed that what she had said was true; did not consider that she would be put in jail when she returned, despite her claims that she would be at risk were she to return to China. 13 Her Honour said that she had given the applicant the opportunity to elaborate on those grounds in oral submissions, but that with one exception, which her Honour specifically addressed, she had reiterated that what she had said in her claims was true. The applicant argued that it was not fair that the tribunal had not believed her. Her Honour said, and I agree, that each of the grounds put forward by the applicant and what she had said in support, as recorded in her Honour's judgment, were substantively attempts to seek merits review that was not available in the proceedings. Her Honour was unable to identify any breach of the obligations of procedural fairness. 14 The additional matter to which her Honour had referred, and had been raised by the applicant during the hearing before her, was that the applicant asserted that the tribunal's decision was unfair because she claimed to have told her lawyer before the tribunal hearing that her father-in-law had died. Her Honour understood this to be an assertion that the applicant had told her lawyer of this claim prior to the tribunal's hearing, and that the lawyer had not included this information in the documents provided to the tribunal, leading to the tribunal's disbelief of her on this point. 15 Her Honour noted that in addition to the written statement which the applicant had provided on 22 July 2009 in support of her claim for a protection visa, she had not raised the issue concerning her father-in-law's death in detention and the bashing of her husband in 2005 on that occasion, either then or in the interview the applicant had had with the delegate. Her Honour observed that those claims could have been made during the interview. The trial judge noted that at the tribunal hearing, when asked about her failure to raise those claims earlier, the applicant said that, first, she had thought her translated 22 July 2009 statement contained that information, and, secondly, she did not know that she could have referred in the statement to her father-in-law's experience. 16 Her Honour was not satisfied that any claim of third party fraud had been raised or established by these matters: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. 17 Her Honour gave the applicant an opportunity to explain her ground that the tribunal had used "failed cases" against her. At that point of time the applicant raised with the trial judge the issue about her lawyer and father-in-law. Her Honour found that no jurisdictional error had been made out on those unparticularised assertions. She found that it was open for the tribunal to come to the view that it did in relation to the applicant's assertions and rejected her application with costs.

Consideration 18 The draft notice of appeal contained, as I understood it, the following grounds: the tribunal was biased against the applicant and did not make a fair decision on her case, and she was not satisfied with the decision of the trial judge to dismiss that case; the applicant did not get good advice from the lawyer provided by the Federal Magistrates Court's assistance scheme, and that lawyer just told her to abandon the application, otherwise she would lose a lot of money; the trial judge did not consider her case reasonably, and that there was no freedom of religion in China, so that the applicant feared to go back there because she was a member of the Local Church. 19 None of these grounds raises any conceivable basis on which the Court might otherwise have allowed the appeal, were it permitted to be filed out of time. First, there is no basis for suggesting that the tribunal was biased. This ground had not been raised before the Federal Magistrates Court. It is unparticularised and has no apparent substance. Secondly, the assertion of the advice said to have been given by the applicant's lawyer appears to have been eminently sensible, at least so far as she put her case before the trial judge and on an objective review of the tribunal's decision. Thirdly, there is no basis on which it could be suggested that the Federal Magistrate did not fairly and reasonably consider the applicant's case. 20 Her Honour appears to have carefully addressed each of the arguments put by the applicant and to have dealt with them on the merits as they appeared to her Honour. In substance, the rider to the third ground is really an invitation to conclude that her Honour had failed to give the applicant the merits review, which she misunderstood the process of her application to involve. That understanding, as I have said, and as her Honour said in her reasons, was erroneous. 21 I have read and considered her Honour's reasons, the tribunal's statement of decision and reasons, and the affidavit in support of the extension of time made by the applicant on 13 September 2009. I cannot perceive any arguable basis upon which it might be asserted that her Honour was not entitled to dismiss the application. Her Honour's decision was correct.

Consideration 22 For these reasons, any appeal brought were an extension of time granted to file the notice of appeal, would be doomed to fail. Having regard to those matters, in my opinion, the application should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.