SZAIY v Minister for Immigration - [2004] FMCA 34

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIY v MINISTER FOR IMMIGRATION

[2004] FMCA 34

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – procedural fairness – whether the RRT breached s.424A considered – whether an asserted illness prevented the applicant from participating effectively in the RRT hearing considered – whether RRT obliged to follow UNHCR procedures considered – no reviewable error found.

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

Applicant VEAJ of 2002 v Minister for Immigration [2003] FCA 678
NAHV of 2002 v Minister for Immigration [2003] FCAFC 102

Applicant:

SZAIY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ535 of 2003

Delivered on:

29 January 2004

Delivered at:

Sydney

Hearing date:

29 January 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
The applicant is to pay the setting down fee of $327 within 28 days or obtain a waiver.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ535 of 2003

SZAIY

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 25 February 2003 and handed down on 14 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant claimed to be a victim of political persecution in China. The general background relating to the applicant's claims and the consideration of them by the delegate and by the RRT are set out in paragraph 1 through to paragraph 5 of written submissions prepared by Mr Bromwich for the Minister. I adopt that statement of background facts and circumstances for the purposes of this judgment:
On 22 September 2001, the applicant, a citizen of the People’s Republic of China (PRC), arrived in Australia. On 18 October 2001 he applied for a protection (Class XA) visa. The basis for the application was a claimed fear of persecution by reason of his political opinions and actions which he said were not tolerated by the authorities (court book, page 92.5).
On 20 November 2001, a delegate of the respondent wrote to the applicant advising him that information available to the Department indicated:
(a)that individuals who have obtained Chinese passports and exit permits to leave China after 1989 were thoroughly vetted and would not have been on any wanted list;
(b)that the applicant had not specified having had any real difficulties in obtaining a Chinese passport and leaving China;
(c)that the applicant had travelled on a Chinese public affairs passport which independent country information indicated would only have been issued to him if he was travelling on official government business or if the government was financing his travel; and
(d)that there was no mention of any of the political organisations to which he had referred in his statement in support of his application for a protection visa (court book, page 38).
Although the delegate’s letter appeared to have been returned undelivered (court book, page 39), at some stage the applicant received a copy of it and responded in a letter dated 20 December 2001 and received on 21 December 2001 (court book, page 42). That response described the circumstances in which the applicant said he obtained his passport and the further details about the organisations to which he said he had belonged and the publication to which he had referred. He also said that it wasn’t easy for him to explain his claims in writing and that the best thing for him was an interview.
On 15 January 2002 the delegate refused the grant of a protection visa (court book, page 44). On 7 February 2002, the applicant filed an application for review with the RRT (court book, page 53).
On 14 March 2003 the RRT handed down a decision made on 25 February 2003, affirming the delegate’s decision to refuse the grant of a protection visa. In reaching this decision and finding that it was not satisfied that there was a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason, the RRT:
(a)accepted the applicant’s account of his experiences up to 1997/98 and in particular:
that he was questioned about the activities of a dissident by the name of Lin during the 1989 pro-democracy movement;
that he joined a small union in the factory that he worked in 1995 and was detained for about 3 months in 1996 following a demonstration;
that he underwent a year’s reform through labour at the factory and was dismissed after 1997 union activities were discovered; and
that he was detained for investigation from October 1997 to March 1998 (court book, page 98.2);
(b)did not accept that the applicant was tortured while detained in 1996 (court book, page 98.3);
(c)was not satisfied that the applicant continued to face ongoing persecution as a result of his previous detentions (court book, page 98.4);
(d)did not accept the applicant’s claims in relation to his establishment of a political group called the New People’s Party (NPP) (court book, page 98.6);
(e)noted that the applicant’s written and oral evidence about when he established the NPP differed and that his knowledge and understanding of democracy and political matters generally was extremely superficial and in some cases odd (court book, page 98.6);
(f)did not accept as plausible that a person who claimed to have had such a long standing interest in an involvement in pro-democracy issues and discussion of such matters was instrumental in the establishment of a political party, or that the deputy chairman of such an organisation would have such a superficial understanding and knowledge of such matters (court book, page 98.7);
(g)also did not believe the applicant’s claims about the NPP because, despite a thorough search, no mention of it could be found or of its publication or of the major figures involved with it such as a person named Lin who the applicant suggested was a known dissident (court book, page 98.8);
(h)considered the applicant’s explanation for the lack of information available about the organisation and activities that he described were unconvincing and internally inconsistent (court book, page 99.1);
(i)did not believe the applicant’s claim to be of serious adverse interest to the Chinese authorities by reason of his involvement in the NPP because he was able to get a genuine passport in his real name and particulars in May 2001 and leave the country openly and legally in September 2001 even though he claimed the NPP was being investigated since April 2001 and he was being followed (court book, page 99.4);
(j)found the applicant’s evidence about who helped him get his passport was not convincing given that the names provided in his oral evidence to the RRT differed from those stated in his written evidence to the RRT (court book, page 99.5);
(k)noted that in any case the applicant had not been politically active for two years now and there was nothing to suggest that even if he was of interest at the time that he is of serious adverse interest to the authorities or that he would become of such interest (court book, page 99.7);
(l)was not satisfied that the applicant was a high profile dissident or a leader or had the capacity to be regarded as a threat to the Chinese authorities (court book, page 99.7).
The applicant relies upon an amended application filed on 7 January 2004. There are four grounds set out in that application. They are:
(4)The RRT failed to exercise its jurisdiction.
Particulars
b)The RRT did not comply with its obligations under s.424A in respect of the information that any dissidents wanted by the authorities could not leave on a passport issued in their own name (court book, page 97.5).
c)The applicant relies on the decision in VEAJ OF 2002 v Minister for Immigration [2003] FCA 678.
d)As a matter of fact, the RRT relied upon information that any dissidents wanted by the authorities in China could not leave on a passport issued in their own name. Accordingly, it was obligated under the Migration Act 1958 (Cth) (“the Migration Act”) (s.424A) to give the applicant particulars of that information and to give the applicant an opportunity to comment upon it. It was obliged to do so by writing to the applicant [by] sending it to the applicant’s address. It did not do so and so failed to comply with an essential obligation under the Act: VEAJ of 2002 v Minister for Immigration.
(2)The RRT failed to fairly and carefully consider the applicant’s request in the supplementary document dated on 22 February 2003.
(a)The applicant attended a hearing on 14 February 2003. After that, the applicant requested the RRT to set out its concerns with his claims in writing so that he could answer the RRT’s questions in writing.
(b)The applicant’s request was mainly based on the following facts:
The applicant was beaten on the head and eventually suffered cerebral concussion during his 1996 detention, and the applicant could not recover properly because he was then subjected to one year reform through labour. Since then, the applicant has suffered from sequelae of cerebral concussion. So that the applicant always has headaches when he is nervous. In such a situation, the applicant feels confused and forgets things.
(c)The RRT failed to demonstrate its sufficient medical knowledge and professional medical background, and the RRT failed to seek any assistance or opinions or suggestions from qualified medical bodies.
(d)It is obviously unfair to refuse the applicant’s request in the supplementary document dated 22 February 2003.
(3)The RRT failed to provide the applicant a fair opportunity to fully and clearly claim his fear of being persecuted on return during and after the hearing. As a result, the RRT’s decision is obviously not based on correct and complete claims of the applicant.
(a)Based on the fact mentioned in above paragraph 2, the applicant may not be able to fully, completely and clearly make his claims during the hearing on 14 February 2003 before the RRT. The applicant therefore had to request an opportunity to make his claims in writing. Unfortunately, the applicant’s request had been refused by the RRT, and the applicant had lost his opportunity to give a full and complete claim.
(b)The RRT’s decision mainly relied on the hearing of 14 February 2003. However, as it has been mentioned in above, the applicant’s claims at the hearing could not be fully, completely and clearly made. Also, the RRT refused to give [a] further opportunity to the applicant. As a result, the RRT’s decision is obviously not based on correct and complete claims of the applicant.
(4)The RRT failed to carefully and fairly consider the applicant’s claims based on procedures and criteria prescribed in Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“UNHCR Handbook”).
(a)The applicant has been guided by paragraph 190, Part II, UNHCR Handbook that a qualified examiner should have necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs. Especially, an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own.
The RRT failed to demonstrate its necessary knowledge and experience and such an understanding.
(b)The applicant has been guided by paragraph 196, Part II, UNHCR Handbook, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. It may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Also, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
The RRT failed to use all the means at its disposal to produce the necessary evidence in support of the application. Also, the RRT failed to demonstrate that there are good reasons to the contrary.
(c)The applicant has been guided by paragraph 42, Part I, UNHCR Handbook, the applicant’s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation.
The RRT failed to consider the applicant’s statements in the context of the relevant background situation. Especially, the RRT failed to demonstrate its sound knowledge of conditions in the applicant’s country of origin.
(d)The applicant has been guided by paragraph 43, Part II, UNHCR Handbook, the considerations need not necessarily be based on the applicant’s own personal experience. What, for example, happened to his friends and relatives and other members of the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecution is well-founded.
The RRT failed to consider the fact that MA Mingyu as well as other more than 20 dissidents in China, who are actually in the same situation as the applicant’s, have already been arrested by the Chinese government. It must well show the applicant’s fear that sooner or later he will also become a victim of persecution is well-founded.
(e)The applicant has been guided by paragraph 48, Part I, UNHCR Handbook, possession of a passport cannot therefore always be considered as evidence of loyalty on the part of the holder, or as an indication of the absence of fear there may be cases where a passport has been obtained surreptitiously. In conclusion, therefore, the mere possession of a valid national passport is no bar to refugee status.
The RRT failed to consider the fact that the mere possession of a valid national passport is no bar to the applicant’s application, because his passport is obtained surreptitiously.
(f)The applicant has been guided by paragraph 53, Part II, UNHCR Handbook, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”.
The RRT failed to give weight to the fact that various sufferings and experiences of the applicant in China, if taken together, must produce a strong effect on his mind that can reasonably justify his claim to the well-founded fear of persecution on cumulative ground.
The applicant also presented extensive oral submissions in which he elaborated upon those grounds.
The applicant first asserts a breach of s.424A(1) of the Migration Act. He relies upon the decision of the Federal Court in VEAJ of 2002 v Minister for Immigration. The issue relates to country information referred to by the RRT and set out on page 97 of the court book. The country information relates to an assessment of the difficulty of known political dissidents being able to leave China, without government scrutiny, on their own passports. The applicant was not invited by letter to comment upon that country information by the RRT.
Mr Bromwich submits that there was no breach of s.424A, or indeed, the general law for several reasons. The first of those is that the country information was not the reason, or a part of the reason, for the rejection of the applicant's claims. Mr Bromwich submits that although the country information was specifically referred to in page 97 of the court book, it did not form part of the relevant reasons set out on page 99 of the court book. Rather than focusing on the country information in its reasons, the RRT preferred to concentrate on the fact that the applicant delayed leaving China after his decision to leave. His behaviour was inconsistent with that of a political dissident in fear.
Why then was the country information referred to at all? In my view, the answer lies in the decision of the delegate. The delegate had written to the applicant inviting him to comment on the same country information. The relevant letter is set out on pages 37 and 38 of the court book. The same country information was identified and relied upon by the delegate in his decision and that appears on page 48 of the court book. The applicant had responded to the invitation to comment by the delegate and his response appears on page 42 of the court book.
In the circumstances, the country information needed to be before the RRT and considered by it in some form as it formed part of the reasoning process of the decision of the delegate under review. Although the contrary is arguable, on balance I agree with and adopt Mr Bromwich's submission set out in paragraph 7 of his written submissions:
This ground should fail for three separate reasons. First, the information about the charges was not a reason or a part of the reason for affirming the delegate’s decision, such that the obligation under s.424A(1) did not arise. It was referred to in the general part of the RRT’s reasons, but not in the findings and reasons.[1] The RRT did not need to go that far. It simply did not accept the conjunction of claims and dates asserted by the applicant. In particular, the RRT did not believe that the applicant was of serious adverse interest to the authorities because (court book, page 99.4);
a)he got a genuine passport in his real name and particulars in May 2001, but did not leave until September 2001 despite claiming to have been of interest since April 2001 and to have been followed since then;
b)he applied for an Australian business visa and waited a further six weeks before leaving;
c)he did not leave quickly for another country for which he could have quickly and easily got a visa;
his evidence about who helped him get a visa was not convincing, with the names of who helped him changing between his oral and written evidence.
[1] See Applicant VEAJ of 2002 v Minister for at [41].
Even if I were wrong in that conclusion, I agree with and adopt Mr Bromwich's submissions in paragraph 9 of his written submissions:
Thirdly and in the alternative, there was no denial of procedural fairness as the substance of the material concerning the charges was in any event made known to the applicant. Even if, contrary to the above, there was an obligation to comply with s.424A(2) in the manner prescribed by s.441A in relation to the information, then that did not amount to a jurisdictional error.
The relevant country information had been made known to the applicant even before his application for review to the RRT. Under the general law there was no procedural unfairness in failing to disclose it again by the RRT.
It appears from page 94 of the court book that the relevant country information did come up during the course of the RRT hearing. That probably was sufficient disclosure by the RRT, to the extent that the RRT was under any obligation. It is not a jurisdictional error for the RRT to fail to disclose relevant information by one of the prescribed methods set out in s.424A(2): NAHV of 2002 v Minister for Immigration [2003] FCAFC 102.
In my view, there was sufficient disclosure by the RRT and, in any event, the applicant had been put on notice by the delegate that the country information was relevant to the determination of his claims. There was no practical unfairness. For that reason, even if I am wrong and there was a breach of s.424A(1), I would decline to provide prerogative relief in the exercise of my discretion.

The second ground of review relates to what happened after the RRT hearing. The applicant wrote to the RRT on 22 February 2003, about one week after the hearing, complaining of medical problems and asking for a further opportunity to answer the RRT’s questions in writing. The applicant attached medical certificates and a pathology report with that letter. The documents appear at pages 81 through to 87 of the court book. This issue is dealt with by the presiding member on pages 96 and 97 of the court book:
On 25 February the Tribunal received a letter from the Applicant dated 22 February, prepared with undisclosed assistance as it was typed and in English. The Applicant now claimed that at the hearing (14 February) he was unable to answer some questions or to explain his claims clearly because during his 1996 detention he was tortured by police; he was beaten on the head and eventually suffered cerebral concussion, he couldn’t recover properly because he was then subject to one year reform through labour and since then he’s suffered “sequelae of cerebral concussion” so that he always has headaches when he’s nervous and in such situations he feels confused and forgets things. To support these claims he saw a doctor for a full examination but the doctor couldn’t find anything wrong at that time. The Applicant asked the Tribunal to set out its concerns with his claims in writing so that he can answer the Tribunal’s questions in writing. Copies of test results, prescriptions and medical certificates dated 18 February for that day due to headache, and 20 February due to hypertension and headache were enclosed.
The Tribunal has considered the Applicant’s request. The Tribunal notes that the hearing supplements information already provided and the Tribunal is satisfied in this case that the Applicant has had ample opportunity to give evidence and present arguments to support his claims. During the hearing there was no indication that the Applicant was having difficulty due to illness. Therefore the Tribunal is not satisfied that the Applicant was impaired in his ability to give evidence and present his case and accordingly the Tribunal has not taken any steps to seek additional evidence from the Applicant in writing.
In his written submissions, Mr Bromwich relied upon s.422B of the Migration Act but, properly, withdrew that reliance when I pointed out that the application to the RRT pre-dated the commencement of that section. The issue is whether the refusal by the RRT to give a further opportunity to the applicant to answer questions in writing was a breach of any provision of the Migration Act, or whether it was procedurally unfair under the general law.
The RRT was under no statutory obligation to give the further opportunity to the applicant that he sought. Neither was the procedure adopted by the RRT unfair under the general law. This was not a case of the RRT being put on notice before or during a hearing that an applicant suffered from a medical condition which impaired his or her ability to participate effectively. The applicant asserted a serious medical problem after the hearing. He presented medical documents which, on their face, failed to corroborate his assertion. No medical problem was apparent to the RRT at the hearing. The applicant had already been given an ample opportunity to present written material and to present material orally. In these circumstances, the RRT was under no obligation to do anything further.
The final ground raised by the applicant relates to asserted failures by the RRT to meet its obligations as set out in the UNHCR handbook on procedures and criteria for determining refugee status under the Convention. There is no substance to this ground.
As explained by the applicant before me today it is primarily a dispute over the merits of the RRT decision. Otherwise it represents a misunderstanding by the applicant of the procedural obligations upon the RRT. Those obligations derive principally from the Migration Act and, by extension, the Refugees Convention. They do not extend, as asserted by the applicant orally, to presenting evidence against his claims. Neither is there any obligation on the RRT to accept the applicant's claims. I reject that ground.
No other jurisdictional error is apparent to me from my reading of the relevant material. Accordingly, the RRT decision is a privative clause decision. I must dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful, Mr Bromwich seeks an order for costs. I am told that the Minister has incurred costs in the order of $5,500. On a party/party basis on a matter of this complexity in my view a costs order fixed in the sum of $4,000 is adequate. In addition, the applicant has not yet paid the setting-down fee of $327 payable for the hearing of this matter. I will therefore order that the application is dismissed; the applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $4,000 and the applicant is to pay the setting down fee of $327 within 28 days or obtain a waiver.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 6 February 2004