SZACL v Minister for Immigration - [2003] FMCA 294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACL v MINISTER FOR IMMIGRATION

[2003] FMCA 294

MIGRATION – Review of RRT decision – application for protection visa – where applicant has claims in country and sur place – whether the applicant has a well-founded fear of persecution for reasons of political association – findings of credibility – whether the Tribunal took into account all relevant matters – no reviewable error found.

Migration Act 1958 (Cth), s.476(1)(e),(g) (Repealed)

W148/00A v Minister for Immigration [2001] FCA 679
Craig v South Australia (1995) 184 CLR 163

Applicant:

SZACL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1318 of 2002

Delivered on:

12 June 2003

Delivered at:

Sydney

Hearing date:

12 June 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Self-represented

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1318 of 2002

SZACL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of the Peoples Republic of China (PRC). She arrived in Australia on 23 June 2001. On 10 July 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 21 September 2001 a delegate of the Minister refused to grant her a visa and on 16 October 2001 she applied for review of that decision. The review was carried out by the Refugee Review Tribunal which interviewed the applicant. It made its decision on 25 October 2002 and handed it down on 19 November 2002.
The decision which the Tribunal came to was to affirm the original decision of the delegate. The applicant is a married woman from the Fujian Province. She claimed that she had two daughters and a son. These children together with her husband, two sisters, and three brothers, all remain in China. Her application for asylum was based upon an alleged well-founded fear of persecution for the convention reason of political opinion. Her fear arose in two ways; the first related to her actions in China and the second to her actions in Australia.
The applicant claimed that she became involved with two dissidents, Mr Wang Xiao Xin and Mr Wan Xiao Jun. Mr Wang Xin apparently had died in a car accident and Mr Wan Jun came to her province to escape persecution in Beijing. She claimed that she assisted him by providing him with employment in her clothing shop. Together they founded an underground political organisation called Democracy China in February 2001.
They used her shop premises to produce propaganda materials which they then distributed. There were about 39 members of the organisation. Mr Wang Jun was arrested in May 2001 at Fuzhou University. After the applicant had been questioned by the police on three occasions she decided she should leave China.
The above is the essential constituent of the applicant's claim relating to the situation in China. After being advised by the Tribunal that it did not have any corroborative evidence of any of these matters the applicant asked for further time in which to produce such evidence. She did so by way of two documents which are found at [CB 69, 70 and 71]. The document at [CB 69/70] is a form of "wanted poster" upon which there appears a photograph of the applicant. The document at [CB 71] consists of two photographs of her family's home having been sealed by the Public Security Bureau of Lianjiang County. The final photograph is a picture of the applicant, her husband, three children in a cottage in the mountain area where she claims they had to run to escape persecution.
The sur place claim made by the applicant is that since arriving in Australia she has joined the Falon gong movement. As a member of that movement she demonstrated outside the PRC Consulate in Sydney. She claims that her name was taken by the consulate staff and that she will be in danger if she returns to China.
At her interview with the Tribunal the applicant gave more details about her problems at home. She pointed out that having three children was in breach of China's one child policy and this caused problems for her husband who had previously been employed as a schoolteacher. She described to the Tribunal the type of pamphlets and fliers that were distributed by the democracy movement. She told it about her contacts with her family in China who had given her information about the closure of her shop and inquiries being made about her.
The Tribunal accepted that if the story which the applicant had given to it was true then she would be at risk of arrest and serious ill treatment in China. However, the Tribunal came to the conclusion that it could not accept her statements for reasons which it set out in some detail between pages [CB 89-92]. The Tribunal did not believe that the applicant that it saw was sufficiently motivated to have carried out the type of activities she claims to have carried out. The Tribunal was not impressed by the description of the fliers and other printed material which the movement claimed to have circulated. At [CB 89] the Tribunal says:
“ I am unable to ascertain what either Mr Wang or the applicant could hope to gain by distributing such materials, I find it very difficult to see why it would have been worth taking the risk of distributing them at all and consider it highly improbable that an experienced political activist might have been associated with their production.”
The tribunal told the applicant about its concern that none of the evidence that she was giving was corroborated. The Tribunal told the applicant that it had been unable to find any information which indicated the existence either of her organisation, or of either of the Mr Wangs. The documents which the applicant produced to the Tribunal in response to this criticism were found by the tribunal not to be genuine. The Tribunal's reasons in relation to the wanted poster are contained at [CB 90]. And in relation to the photographs on [CB 90/91] the Tribunal says:
“With the above order the applicant submitted three colour photographs. One was of an adult male, two boys (apparently teenagers) and a younger girl, who she claimed were her husband and her three children. The tribunal is unable to give any weight to this evidence, as she stated on the protection visa application form that she had two daughters and a son. The other two photographs were of doors which superficially appeared to have been covered in cross strips of paper with writing in Chinese on them. The applicant claimed that they were the doors of her shop and home and that the paper formed a police seal. However, it is apparent at a glance that the images have been tampered with. The police seals appear to have come from another photograph, and to have been cut-out and superimposed on the photographs of the doors. I am not satisfied that these photographs are of doors that have police seals attached to them.”
In regard to the wanted poster the Tribunal noted certain country information which indicated:
“ Any document, official or otherwise, can be either bought or forged in China. Irregular or improper use of documentation is widespread. Thus ... little evidentiary weight can be placed on any Chinese document (2000 update on Falon Gong, DFHE, FCIR, No 396/00).”
In relation to the applicant's sur place claim the Tribunal considered that the photographs provided to support that claim only indicated that activities were undertaken on a single day in June 2002 and that she was only briefly present there on that day. The Tribunal states at [CB 91]:
“In my view if she had attended approximately 100 protests outside the PRC consulate between September 2001 and October 2002 she would have been able to produce much more compelling evidence that she had done so. I cannot be satisfied that she has been present outside the consulate on more than this one occasion nor that, on that occasion, her conduct was that of a "protester".”
The application for an order of review submitted by the applicant states that she believes that she is a refugee and therefore satisfied the requirements to be granted a protection visa and that the Tribunal failed to assess her application in accordance with pertinent statutory requirements as prescribed in the Migration Act 1958 (Cth) (“the Migration Act”). The applicant claims that the procedures required to be observed were not observed and makes reference to s.476(1)(e) of the Migration Act. There is no s.476(1)(e) of the Migration Act currently in force. She also makes reference to s.476(1)(g) which is similarly not in force at the present time.
I asked the applicant to explain to me why she believed the Tribunal had not acted in accordance with law in the manner in which it came to its decision. The applicant claimed that the department had wrongly judged her case and ignored the evidence which she had produced. She complained that the department (by which I believe she means the Tribunal) did not believe her about the activities which she organised either in China or in Sydney. She insisted that she had told the Tribunal the truth but the tribunal was not interested and that she felt that all the Tribunal wished to do was to reject her application.
As Mr Reilly, for the respondent, made clear, the essence of the decision in relation to this particular application was based upon the tribunal's findings as to the credibility of the applicant. In W148/00A v Minister for Immigration [2001] FCA 679 at [64] Tamberlin and Nicholson JJ said:
“ A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”
There is abundant authority that a wrong finding of fact is not jurisdictional error. And so, even if the Tribunal were wrong as to its views on the applicant's credibility, provided those views were based upon available evidence and did not fall foul of the strictures imposed by the High Court in Craig v South Australia (1995) 184 CLR 163, they would not be reviewable by this court. I am satisfied that the Tribunal did take into account all the relevant matters and came to a conclusion that was open to it upon available evidence.
In those circumstances, I am unable to review the decision. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: